Opinion
353004
09-16-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. EDWARD PEBLO PITTMAN, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 18-008813-01-FH
Before: Rick, P.J., and Ronayne Krause and Letica, JJ.
Per Curiam.
Defendant appeals as of right his bench trial convictions of possession of a firearm during the commission of a felony (felony-firearm), third offense, MCL 750.227b, possession of a firearm by a person convicted of a felony (felon-in-possession), MCL 750.224f, and carrying a concealed weapon (CCW), MCL 750.227. Defendant was sentenced, as a fourth-offense habitual offender, MCL 769.12, to 10 years' imprisonment for his felony-firearm conviction and time served for his felon-in-possession and CCW convictions. We affirm.
I. FACTUAL BACKGROUND
This case arises from a traffic stop where Detroit Police Officer Max Dorflinger stopped a vehicle driven by defendant because of a defective license plate lamp. After Officer Dorflinger approached the vehicle, he smelled "a strong burnt odor of marijuana coming from the vehicle." Officer Dorflinger identified himself, told defendant why he was stopped, and asked for defendant's driver's license, registration, and proof of insurance. Defendant reported being previously stopped for the same reason and provided his driver's license. While the passenger and owner of the vehicle, Antonia Johnson-Byrd, was looking for the vehicle's registration and insurance, Officer Dorflinger observed defendant "dip his left hand" under the driver's seat as though "he was attempting to conceal something . . . ."
Officer Dorflinger's body camera captured the incident and a redacted version of this footage was admitted as an exhibit. The parties, however, have not been able to locate this exhibit for our review-apparently neither party retained a copy and the police department may have lost its original video during a transfer of records following the purchase of new computers. Nevertheless, the parties and trial court reviewed the exhibit during trial and summarized portions of what was depicted without objection. To the extent their summaries are relevant to the issues presented, we have included them.
Officer Dorflinger asked defendant to step out of the vehicle due to the odor of marijuana. Officer Dorflinger detained defendant in handcuffs and walked him to the front of the police car, asking "if he had been smoking" and whether "there was any weed in the car . . . ." Defendant responded that he and his cousin had smoked in the car earlier and "that there was probably a tail in the ashtray . . . ." Officer Dorflinger understood the term "a tail" to be slang for a used marijuana cigarette.
Officer Dorflinger's partner removed Johnson-Byrd from the passenger's seat. On the basis of the freshly burnt marijuana odor, Officer Dorflinger searched defendant and the vehicle. He recovered a used marijuana cigarette from the car's ashtray and a handgun from under the driver's seat. Upon finding the marijuana and handgun, Officer Dorflinger returned to defendant and searched him again, asking "[d]o you have any weed on you?" and "[a]re these gloves?" At that point, Officer Dorflinger took defendant into custody and locked him inside the back of the scout car. As defendant was getting into the scout car, he asked if he could talk to Officer Dorflinger, who repeatedly attempted to tell defendant that "[i]t's not time to talk." Even so, defendant began explaining that a friend gave the gun to him and that "he had been trying to sell it all day."
After ordering a tow truck for Johnson-Byrd's car, Officer Dorflinger saw defendant eating marijuana in the scout car's backseat. Officer Dorflinger opened the door and directed defendant to spit it out. Defendant spit "out what he could" and reported that he had "swallowed it all." Medical personnel were contacted and cleared defendant.
The following afternoon, Detroit Police Department Detective Dennis Christie read defendant his Miranda rights during a recorded interview. Although defendant apparently invoked his right to counsel and his right to remain silent, he did not remain silent. Instead, defendant once again admitted that he had gotten the gun from someone who had given him fishing equipment and other equipment in exchange for cleaning out a house. Moreover, defendant repeated that he had been "trying to get rid of it." Defendant was further aware that the gun did not contain a clip.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).
Again, this videotape was admitted as an exhibit during trial and the parties are unable to provide it for our review. See footnote 1. Again, portions of the videotape were summarized on the record without objection and, to the extent those summaries are relevant to the issues presented, we have included them.
At trial, the defense presented testimony from Johnson-Byrd and defendant. Johnson-Byrd testified that she had driven up to Detroit from Ohio in order to visit defendant that evening and had only informed him about the presence of the weapon just as the police pulled them over. Johnson-Byrd was impeached by her on-the-scene statement that she did not know that defendant had the gun. Johnson-Byrd testified that she had lied to the police because she was scared. Johnson-Byrd further admitted that she and defendant were smoking marijuana in the car about two hours before they were stopped; however, at the scene, Johnson-Byrd told the police that she did not know anything about the marijuana.
Defendant also testified that he learned of the weapon just as he and Johnson-Byrd were being pulled over. Defendant lied to the police about the weapon being his in order to protect Johnson-Byrd. During trial, defense counsel cross-examined Officer Dorflinger and moved to suppress defendant's incriminating statements regarding the gun before he had been given Miranda warnings. The trial court denied the motion because defendant was not subjected to a custodial interrogation, and, instead, had voluntarily made the incriminating statements despite Officer Dorflinger's warning that "[i]t's not the time to talk."
After hearing the testimony and reviewing the evidence, the trial court rejected the trial testimony offered by defendant and Johnson-Byrd because it was contrary to the body-cam video as well as the interview video. This appeal followed.
II. MIRANDA VIOLATION
Defendant argues the trial court erred by denying his motion to suppress incriminating statement he made at the scene of his arrest. We disagree.
While "[t]his Court reviews for clear error a trial court's factual findings in a ruling on a motion to suppress evidence," People v Clark, 330 Mich.App. 392, 415; 948 N.W.2d 604 (2019), the trial court's ultimate decision is reviewed de novo, People v Cortez (On Remand), 299 Mich.App. 679, 691; 832 N.W.2d 1 (2013). A trial court's findings are clearly erroneous if this Court is "left with a definite and firm conviction that a mistake was made." People v Brown, 279 Mich.App. 116, 127; 755 N.W.2d 664 (2008). "To the extent that a trial court's ruling on a motion to suppress involves an interpretation of the law or the application of a constitutional standard to uncontested facts, our review is de novo." People v Mathews, 324 Mich.App. 416, 424; 922 N.W.2d 371 (2018) (quotation marks and citation omitted). "Whether a person is in custody for purposes of the Miranda warnings requirement is a mixed question of law and fact that must be answered independently after a review of the record de novo." Cortez, 299 Mich.App. at 691.
"Both the state and federal constitutions guarantee that no person shall be compelled to be a witness against himself or herself." Mathews, 324 Mich.App. at 424-425 (quotation marks and citation omitted). To protect an individual's right against self-incrimination, "before any custodial interrogation, the police must give a suspect . . . Miranda warnings." Id. at 425. "If the custodial interrogation is not preceded by an adequate warning, statements made during the custodial interrogation may not be introduced into evidence at the accused's criminal trial." People v Elliott, 494 Mich. 292, 301; 833 N.W.2d 284 (2013). Significantly, "Miranda warnings are not required unless an individual is subjected to custodial interrogation." People v Roberts, 292 Mich.App. 492, 504; 808 N.W.2d 290 (2011).
"Custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody." People v Anderson, 209 Mich.App. 527, 532; 531 N.W.2d 780 (1995). Our Supreme Court explained when a defendant has been subjected to "interrogation":
[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term "interrogation" under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect . . . . A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. [People v White, 493 Mich. 187, 195; 828 N.W.2d 329 (2013) (alteration in original), quoting Rhode Island v Innis, 446 U.S. 291, 300-302; 100 S.Ct. 1682; 64 L.Ed.2d 297 (1980).]
"Interrogation, as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." Anderson, 209 Mich.App. at 532 (quotation marks and citation omitted). "Volunteered statements as well as evidence voluntarily given are admissible." Roberts, 292 Mich.App. at 505. See also Anderson, 209 Mich.App. at 532 ("As the Supreme Court has explained, however, volunteered statements of any kind are not barred by the Fifth Amendment and are admissible.").
Defendant argues the trial court erred by denying his motion to suppress because even though Officer Dorflinger did not question defendant, defendant might not have made incriminating statements had he been given the Miranda warnings. Defendant asserts that his statements made while in custody, namely admitting to knowing that the handgun was in the vehicle, should have been suppressed. This argument is unpersuasive. Officer Dorflinger admitted that he did not give defendant Miranda warnings, despite considering defendant to be in custody.The record indicates that Officer Dorflinger asked defendant at least two questions regarding whether defendant had certain items-marijuana or gloves-on his person while he searched defendant. When Officer Dorflinger escorted defendant to the back of the police car, defendant "was trying to explain that he knew that the handgun was there, and he found it, and several other things, like, I know I'm going for this and I'm going for that."
The parties do not appear to dispute that the initial traffic stop was valid, that the smell of fresh marijuana and defendant's "dipping" constituted new circumstances justifying further detention of defendant, and that the discovery of the handgun justified defendant's arrest. See People v Kavanaugh, 320 Mich.App. 293, 299-302; 907 N.W.2d 845 (2017).
Officer Dorflinger's questions do not rise to the level of "interrogation" for purposes of Miranda. Although Officer Dorflinger asked defendant whether he had an incriminating substance, marijuana, on his person, he asked the question as part of his search of defendant's person to ensure defendant did not have any contraband on him before putting him in the back of the police vehicle. This question is consistent with those "normally attendant to arrest and custody," rather than being "reasonably likely to elicit an incriminating response." White, 493 Mich. at 195. Thus, Officer Dorflinger's questions do not qualify as interrogation and suppression of defendant's subsequent statements was not warranted.
Further, defendant voluntarily admitted to knowing that the handgun was in the vehicle despite Officer Dorflinger's repeated attempts to get defendant to stop talking. The trial court, defense counsel, and the prosecution all stated that, based on Officer Dorflinger's body camera footage, Officer Dorflinger asked defendant not to say anything after he found the firearm. Nevertheless, defendant made the incriminating statements voluntarily, not as a result of custodial interrogation. Therefore, defendant's statements were admissible. Roberts, 292 Mich.App. at 505; Anderson, 209 Mich.App. at 532. On this record, the trial court did not clearly err by denying defendant's motion to suppress statements related to the gun.
See footnote 1.
III. SUFFICIENCY OF THE EVIDENCE
Defendant argues that the prosecution failed to present evidence to prove beyond a reasonable doubt that he possessed a weapon for purposes of his felony-firearm and felon-in-possession convictions or that he carried a concealed weapon for purposes of his CCW conviction. We disagree.
"Challenges to the sufficiency of the evidence are reviewed de novo." People v Wang, 505 Mich. 239, 251; 952 N.W.2d 334 (2020). When reviewing a claim of insufficient evidence, the evidence is viewed "in a light most favorable to the prosecution to determine whether a rational trier of fact could find that the prosecution proved the crime's elements beyond a reasonable doubt." People v Miller, 326 Mich.App. 719, 735; 929 N.W.2d 821 (2019). This standard applies whether the conviction arises from a jury trial or a bench trial. People v Petrella, 424 Mich. 221, 269-270; 380 N.W.2d 11 (1985). "Circumstantial evidence, and reasonable inferences arising from the evidence, may constitute satisfactory proof of the elements of the offense." People v Muhammad, 326 Mich.App. 40, 60; 931 N.W.2d 20 (2018) (quotation marks and citation omitted). And "a reviewing court is required to draw all reasonable inferences and make credibility choices in support of the [factfinder's] verdict." People v Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000).
Defendant's claim that the prosecution presented insufficient evidence to prove beyond a reasonable doubt that he possessed a firearm is without merit. "The elements of felony-firearm are that the defendant possessed a firearm during the commission of, or the attempt to commit, a felony." Id. at 61 (quotation marks and citation omitted). "Felon-in-possession [of a firearm] is a statutory offense that is set forth by MCL 750.224f . . . ." People v Bass, 317 Mich.App. 241, 267; 893 N.W.2d 140 (2016). To prove a charge of felon-in-possession, the prosecution must prove two elements: (1) defendant knowingly possessed a firearm and (2) "at that time, the defendant had previously been convicted of" a specified felony. M Crim JI 11.38a.
The parties stipulated that defendant was a felon who had not regained his right to possess a firearm. Defendant was convicted of a specified felony (armed robbery) and five years had not passed from his 2018 release date for that conviction. MCL 750.224f(2) and (10)(a).
"Possession of a firearm can be actual or constructive, joint or exclusive." People v Johnson, 293 Mich.App. 79, 83; 808 N.W.2d 815 (2011). "[A] person has constructive possession if there is proximity to the article together with indicia of control. Put another way, a defendant has constructive possession of a firearm if the location of the weapon is known and it is reasonably accessible to the defendant." Id. (quotation marks and citation omitted; alteration in original). "Possession can be proved by circumstantial or direct evidence and is a factual question for the trier of fact." Id.
Here, the evidence shows that defendant had proximity and reasonable access to the handgun. Officer Dorflinger testified that defendant was driving the vehicle in which the handgun was found. He witnessed defendant "dip[] his left hand underneath the seat, kind of leaning down like he was attempting to conceal something . . . ." Officer Dorflinger subsequently found the handgun underneath the driver's seat. According to Officer Dorflinger, defendant "openly admitted to having" the handgun in the vehicle. Johnson-Byrd testified that the handgun was underneath the driver's seat when the police pulled the vehicle over. Defendant affirmed that, at the scene, he told the police officers that whatever they found inside the vehicle belonged to him. Defendant specifically testified that he had admitted the handgun belonged to him, though he subsequently claimed that this admission had been a lie. Defendant further affirmed that he told Detective Christie that he had acquired the handgun after cleaning a house and had been attempting to sell it.
Viewing this evidence in a light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable doubt that defendant possessed the handgun. Miller, 326 Mich.App. at 735. Although defendant challenges the veracity of his and Johnson-Byrd's statements at the scene of the crime as compared to their testimony at trial, the trial court explicitly found that defendant's and Johnson-Byrd's trial testimony was without merit. This Court "must defer to the fact-finder's role in determining the weight of the evidence and the credibility of the witnesses . . . ." People v Savage, 327 Mich.App. 604, 614; 935 N.W.2d 69 (2019) (quotation marks and citation omitted).
Defendant's claim that the prosecution presented insufficient evidence for the trial court to find him guilty of CCW beyond a reasonable doubt is likewise without merit. The elements of CCW are: "(1) the presence of a weapon in a vehicle operated or occupied by the defendant, (2) that the defendant knew or was aware of its presence, and (3) that he was carrying it." People v Nimeth, 236 Mich.App. 616, 622; 601 N.W.2d 393 (1999) (quotation marks and citation omitted). We may consider the following factors relevant to determining whether a defendant "carried" a weapon:
(1) the accessibility or proximity of the weapon to the person of the defendant,
(2) [the] defendant's awareness that the weapon was in the motor vehicle, (3) [the] defendant's possession of items that connect him to the weapon, such as ammunition, (4) [the] defendant's ownership or operation of the vehicle, and (5) the length of time during which defendant drove or occupied the vehicle. [People v Butler, 413 Mich. 377, 390 n 11; 319 N.W.2d 540 (1982).]
Here, the evidence demonstrates the handgun was inside the vehicle that defendant operated and occupied. Officer Dorflinger testified that he found a handgun inside the vehicle defendant had been driving. Johnson-Byrd and defendant testified that there was a handgun inside the vehicle when the police officers conducted the traffic stop. The evidence also demonstrates that defendant knew about the presence of the handgun. Defendant and Johnson-Byrd testified that, at the very least, Johnson-Byrd told defendant that there was a handgun in the vehicle as the police pulled the vehicle over. Officer Dorflinger testified that, when he approached the vehicle, he witnessed defendant "dip[] his left hand underneath the seat, kind of leaning down like he was attempting to conceal something." Officer Dorflinger subsequently found the handgun underneath the driver's seat. Officer Dorflinger further testified that defendant admitted to knowing about the handgun and having it inside the vehicle. Defendant made like admissions to Detective Christie the next day. At the scene, Johnson-Byrd told police that she had not known the handgun was inside the vehicle. Defendant testified that he told the police officers at the scene that anything they found in the vehicle belonged to him and admitted the handgun belonged to him. Defendant affirmed that Officer Dorflinger's body camera footage depicted Johnson-Byrd stating that she did not know defendant had a handgun.
Finally, the evidence demonstrates that defendant met several of the factors relevant to "carrying" a weapon. Defendant was in close proximity to the handgun because Officer Dorflinger found it underneath the driver's seat of the vehicle, where defendant had been sitting and had been seen reaching in an effort to conceal it. As already discussed, testimony indicated that defendant was aware the weapon was in the vehicle. Although Johnson-Byrd owned the vehicle, defendant was operating the vehicle at the time of the traffic stop. Additionally, defendant testified that he "always" drove Johnson-Byrd's vehicle when she visited him in Detroit. Viewing this evidence in a light most favorable to the prosecution, a rational trier of fact could find defendant guilty of CCW beyond a reasonable doubt. Miller, 326 Mich.App. at 735. Again, although defendant challenges the veracity of his and Johnson-Byrd's statements at the scene of the crime regarding his knowledge of the handgun, this Court "must defer to the fact-finder's role in determining the weight of the evidence and the credibility of the witnesses . . . ." Savage, 327 Mich.App. at 614 (quotation marks and citation omitted). The trial court had the opportunity to watch both defendant and Johnson-Bird testify and explicitly found that their trial testimony lacked credibility as it directly contradicted their recorded on-scene statements as well as defendant's recorded interview.
IV. SUFFICIENCY OF FACTUAL FINDINGS AND LEGAL CONCLUSIONS
Defendant claims the trial court's findings of fact and legal conclusions were deficient because the trial court did not elaborate as to why it found defendant's and Johnson-Byrd's out-of-court statements more credible than their trial testimony. We disagree.
"In a bench trial . . . the trial court is obligated to 'find the facts specifically, state separately its conclusions of law, and direct entry of the appropriate judgment. The court must state its findings and conclusions on the record or in a written opinion made a part of the record.'" Wang, 505 Mich. at 250, quoting MCR 6.403. "Brief, definite, and pertinent findings and conclusions on the contested matters are sufficient, without overelaboration of detail or particularization of facts." MCR 2.517(A)(2). "Factual findings are sufficient as long as it appears that the trial court was aware of the issues in the case and correctly applied the law." People v Legg, 197 Mich.App. 131, 134; 494 N.W.2d 797 (1992).
Here, the trial court explicitly stated its findings of fact and legal conclusions on the record on the second day of trial. The court stated that it believed the statements defendant made on the day of the arrest and the following day, during which he repeatedly admitted to being aware the handgun was in the vehicle. The court noted that Officer Dorflinger's body camera footage depicted Johnson-Byrd telling officers that she did not know defendant had the handgun. The court explicitly found that defendant's and Johnson-Byrd's trial testimony was "without merit." Immediately after making this finding, the court referenced Officer Dorflinger's body camera footage and the interrogation footage. The court noted that the handgun was found under defendant's seat, and defendant admitted to both Officer Dorflinger and Detective Christie that he possessed the handgun.
The court stated that it "believes the testimony and his words in his statements made by [defendant] on October 17[], 2018, and October 18[], 2018, and his repeated admission to the fact that he was aware of the gun in the car." Because the court shortly thereafter stated that it found defendant's and Johnson-Byrd's testimony "without merit," it is unclear whether the testimony to which the court referred was Officer Dorflinger's, or Detective Christie's, or both. The lack of clarity is ultimately irrelevant because the analysis focuses on the sufficiency of the factual findings "without overelaboration of detail or particularization of facts." MCR 2.517(A)(2).
The trial court's statement of its findings and conclusions was sufficient. MCR 2.517(A)(2) specifies that a trial court need not provide "overelaboration of detail or particularization of facts." The trial court specifically stated that it found defendant and Johnson-Byrd's testimony meritless, i.e., not credible. Throughout its factual findings, the trial court referenced the video evidence. According to the trial court, the video evidence directly contradicted defendant's and Johnson-Byrd's testimony. Although the trial court did not detail exactly why it found defendant's and Johnson-Byrd's trial testimony less credible than their on-scene statements, the trial court plainly made that credibility determination. This Court "must defer to the fact-finder's role in determining the weight of the evidence and the credibility of the witnesses . . . ." Savage, 327 Mich.App. at 614 (quotation marks and citation omitted).
Moreover, the trial court was clearly aware of the issues in the case, especially the contradictions between defendant's and Johnson-Byrd's testimony and the video evidence as it related to defendant's knowledge and possession of the handgun. See Legg, 197 Mich.App. at 134. The trial court's findings of fact and conclusions of law were therefore sufficient.
Affirmed.
Michelle M. Rick, Amy Ronayne Krause, Anica Letica, Judges