                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  January 9, 2018
                Plaintiff-Appellee,

v                                                                 No. 334262
                                                                  Wayne Circuit Court
LAWRENCE LEE COLLEY,                                              LC No. 16-000129-01-FC

                Defendant-Appellant.


Before: CAMERON, P.J., and SERVITTO and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant of two counts of first-degree criminal sexual conduct, MCL
750.520b(1), two counts of third-degree criminal sexual conduct, MCL 750.520d(1)(b), and
kidnapping, MCL 750.349, for sexually assaulting his home healthcare nurse. Defendant argues
that the trial court improperly denied his motion to suppress his statements during a video-
recorded interrogation and subsequently erred by allowing the prosecution to play the video for
the jury. Despite defendant’s disability, he was competent to waive his rights and speak to the
police. We affirm.

                                       I. BACKGROUND

        The victim was a nurse’s aide at an out-patient rehabilitation company. Defendant was
her client and required care because he had suffered a traumatic brain injury (TBI). On the day
in question, defendant became intoxicated on alcohol and possibly marijuana before holding the
victim captive in his home and forcibly sexually assaulting her. The victim was finally able to
escape when defendant went outside to smoke a cigarette. She immediately summoned help and
went to the hospital for a sexual assault examination. DNA evidence linked defendant to the
offense. Defendant was arrested sometime after 9:50 p.m. that day.

        Not long before noon the following day, Redford Township police Detective Daniel
Bailey interrogated defendant in a recorded interview. Bailey read defendant his Miranda1 rights
at the beginning of the meeting. Defendant acknowledged that he understood those rights,


1
    Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).


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waived them, and signed an advice of rights form. Defendant’s statements during his
interrogation essentially boiled down to the following: defendant’s encounter with the victim was
consensual, he did not threaten her, he did not rape her, the victim never said no, and the victim
seemed to be an active participant.

        Defendant later moved to suppress any statements from the recorded interrogation,
arguing that his waiver was not knowing, intelligent, and voluntary. Defendant claimed that he
was incompetent to waive his rights because of his TBI, he required psychotropic medication,
and he was likely intoxicated at the time of the interrogation. The court ordered defendant’s
evaluation at the Michigan Department of Health and Human Services Center for Forensic
Psychiatry. Psychologist M. Judith Block conducted the evaluation. Dr. Block rated defendant
in the borderline to low average intelligence range. She noted no “gross memory impairment”
and found him to be a logical thinker. Defendant was able to give a simple but accurate
explanation of each Miranda right and to explain why police conduct suspect interviews.
Ultimately, Dr. Block concluded that defendant was competent to waive his Miranda rights.

       The trial court held a hearing but denied defendant’s motion to suppress:

              All right. I’ve had an opportunity . . . to review the report from the Center
       for Forensic Psychiatry as well as the DVD. And the test here is whether the
       defendant was aware of the nature of the rights he had abandoned and the
       consequences of the decision to abandon them. And the People have to show by a
       preponderance of the evidence that the [waiver of Miranda] was knowingly,
       voluntarily, and intelligent and also is based on a totality of circumstances
       analysis.

               In this particular case the defendant stated that he did not have any kind of
       a medical emergency, he . . . denied being on alcohol or drugs, although that
       flipped back and forth, but he understood his rights and he signed them. And as I
       reviewed the tape he seemed to be – there was a free flow of conversation
       between the two of them[,] there didn’t seem to be any confusion or
       noncommunication going on between the two parties. That, taken in context with
       this extensive report from Dr. Block, . . . and again employing the [totality] of the
       circumstances test, . . . I’m going to deny the Motion to Suppress the Statement.

The prosecutor then played the video-recorded interrogation for the jury at trial.

                                          II. ANALYSIS

      A defendant’s Fifth Amendment protections under Miranda have been oft-described in
Michigan courts. As stated in People v Tanner, 496 Mich 199, 209; 853 NW2d 653 (2013):

       [W]hen a suspect has been afforded Miranda warnings and affirmatively waives
       his Miranda rights, subsequent incriminating statements may be used against
       him. . . . A suspect’s waiver of his Miranda rights must be made “voluntarily,
       knowingly, and intelligently”. . . . The United States Supreme Court has
       articulated a two-part inquiry to determine whether a waiver is valid:

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          First, the relinquishment of the right must have been “voluntary,” in the
          sense that it was the product of a free and deliberate choice rather than
          intimidation, coercion or deception. Second, the waiver must have been
          made with a full awareness of both the nature of the right being abandoned
          and the consequences of the decision to abandon it. Only if the “totality of
          the circumstances surrounding the interrogation” reveal both an uncoerced
          choice and the requisite level of comprehension may a court properly
          conclude that the Miranda rights have been waived. [Quoting Moran v
          Burbine, 475 US 412, 421; 106 S Ct 1135; 89 L Ed 2d 410 (1986).]

        We review de novo a trial court’s determination that a defendant’s waiver of his Fifth
Amendment rights was voluntary, knowing, and intelligent. People v Gipson, 287 Mich App
261, 264; 787 NW2d 126 (2010). We review the court’s underlying factual findings for clear
error. Tanner, 496 Mich at 206. “Deference is given to a trial court’s assessment of the weight
of the evidence and the credibility of the witnesses.” Gipson, 287 Mich App at 264.

       The Court has described in detail the element of voluntariness:

               Whether a waiver of Miranda rights is voluntary depends on the absence
       of police coercion. A waiver is voluntary if it was the product of a free and
       deliberate choice rather than intimidation, coercion, or deception.             The
       voluntariness of a defendant’s statements is determined by examining the totality
       of the circumstances surrounding the interrogation. A court should consider
       factors such as: the duration of the defendant’s detention and questioning; the age,
       education, intelligence, and experience of the defendant; . . . the defendant’s
       mental and physical state; whether the defendant was threatened or abused; and
       any promises of leniency. [Id. at 264-265 (quotation marks and citations
       omitted).]

      The Gipson Court also outlined the test for determining whether a statement was
knowing and intelligent:

              Whether a waiver was made knowingly and intelligently requires an
       inquiry into defendant’s level of understanding, irrespective of police conduct. A
       defendant does not need to understand the consequences and ramifications of
       waiving his or her rights. A very basic understanding of those rights is all that is
       necessary. Intoxication from alcohol or other substances can affect the validity of
       a waiver, but is not dispositive. [Id. at 265 (citations omitted).]

Sufficient evidence must be presented that the defendant “understood that he did not have to
speak, that he had the right to the presence of counsel, and that the state could use what he said in
a later trial against him.” People v Tierney, 266 Mich App 687, 709; 703 NW2d 204 (2005)
(quotation marks and citation omitted).

        Defendant argues that the combination of his TBI, prescribed psychotropic medicine, and
intoxication from alcohol and marijuana rendered him incapable of rendering a knowing and
intelligent waiver of his Fifth Amendment rights. Defendant’s medical records and the report

                                                -3-
prepared by Dr. Block disprove his first two contentions. Although defendant’s IQ falls within a
borderline range, he was able to describe the meaning and purpose of each Miranda warning to
Dr. Block. At his interrogation, defendant indicated that he understood his rights and read and
signed an advice of rights form. Defendant exhibited more than the “very basic understanding of
[his Miranda] rights” necessary for his waiver to be considered knowing and intelligent.

        Moreover, although defendant has been prescribed psychotropic medication, there is no
indication that he was in an altered state at the time of his interview. Defendant’s medical
records indicated that he did not suffer from psychosis or delusions. And defendant portrays
himself as alert and aware of his situation in the recorded interview.

        There also was no indication that defendant was still under the influence of alcohol or
marijuana during the interrogation. Indeed, defendant denied using marijuana. The interrogation
was conducted more than 12 hours after defendant’s arrest, an ample period for defendant to
sober up. After reviewing the recording we observed no sign of lingering intoxication.
Accordingly, defendant has not overcome the evidence that his Miranda waiver was knowing
and intelligent.

       The trial court also did not err in determining that defendant’s waiver was voluntary.
Neither defendant’s detention nor his interrogation was so long as be coercive. Defendant had
been in custody for approximately 13 hours and he likely slept through the majority of that
period. The interrogation itself lasted only 55 minutes.

        Defendant was 20 years old when he was arrested and had no experience with the
criminal justice system. As noted, defendant had suffered a TBI and had a below-average IQ.
However, defendant indicated during the interview that he understood the rights he was waiving
and knew that he had been arrested for sexually assaulting his home healthcare nurse. The video
reveals that defendant had no difficulty communicating with the interrogating officer despite his
disabilities. Indeed, the officer was unable to confuse defendant into admitting guilt through
basic interrogation techniques. Further, as soon as defendant indicated that he had a TBI, the
detective delved into the level of defendant’s disability to ensure that defendant was competent.
Detective Bailey only continued the interrogation after defendant acknowledged that he could
read and write and did not suffer memory deficits.

        And the interrogation techniques employed by the officer were not overly coercive or
abusive. Detective Bailey told defendant things would go easier for him if he told the truth,
indicated that the investigation showed defendant raped the victim, suggested defendant take a
polygraph, and occasionally talked in vulgar terms about defendant’s desire to have sex with the
victim. Despite these techniques, defendant adamantly denied his guilt. Moreover, this conduct




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all occurred after defendant waived his Miranda rights and therefore did not influence
defendant’s decision. On this record, we discern no error in the trial court’s admission of
defendant’s video-recorded statement against him.

      We affirm.




                                                       /s/ Thomas C. Cameron
                                                       /s/ Deborah A. Servitto
                                                       /s/ Elizabeth L. Gleicher




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