Opinion
Docket No. 303228.
2011-11-15
PEOPLE v. WHITE.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Assistant Prosecuting Attorney, for the people. Rappleye & Rappleye, P.C., Jackson (by Robert K. Gaecke, Jr.), for defendant.
Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Assistant Prosecuting Attorney, for the people. Rappleye & Rappleye, P.C., Jackson (by Robert K. Gaecke, Jr.), for defendant.
Before: SHAPIRO, P.J., and WILDER and MURRAY, JJ.
MURRAY, J.
Plaintiff appeals by leave granted the trial court's March 8, 2011, order granting defendant's motion to suppress his statement to police. We reverse and remand for further proceedings.
I. BACKGROUND
Defendant was charged with first-degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, and possession of a firearm during the commission of a felony, MCL 750.227b, arising from the shooting death of Benjamin Willard. The prosecutor's theory was that defendant attempted to rob Willard at gunpoint and when Willard resisted, defendant shot him. After defendant was arrested, he was provided his warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and he asserted his right to remain silent. In response, the following occurred between the interviewing detective (Detective Stiles) and defendant:
[ Detective Stiles ]: Okay. [T]his is what they call the acknowledgment and waiver paragraph I'm going to read this to you. If you wish to talk to me, I'm going to need you to sign and date the form. Even though you sign and date the form, you still have your rights to stop at any time you wish. Do you understand that?
[ Defendant ]: No. No thank you sir. I'm not going to sign it.
[ Detective Stiles ]: Okay. Okay. Sounds good.
[ Defendant ]: I don't even want to speak.
[ Detective Stiles ]: I understand. I understand Kadeem.
Okay then. The only thing I can tell you Kadeem, is good luck man.
Okay. Don't take this personal. It's not personal between me and you, I think I may have had one contact with you on the street. Okay. I've got to do my job. And I understand you've got to [do] what you've got to do to protect your best interests. Okay.
The only thing that I can tell you is this, and I'm not asking you questions, I'm just telling you. I hope that the gun is in a place where nobody can get a hold [sic] of it and nobody else can get hurt by it, okay?
All right?
[ Defendant ]: I didn't even mean for it to happen like that. It was a complete accident.
[ Detective Stiles ]: I understand. I understand.
But like I said, you, uhh, you get your attorney, man.
Hey, look dude, I don't think you're a monster, all right? I don't think that. You could have came down to me and turned yourself in and there ain't no damn way I'd beat you up.
[ Defendant ]: Yeah.
[ Detective Stiles ]: Okay, man?
You all set, you straight with me?
Who knows you're here? Who knows of your family? Because I know a lot of your family in town now.
[ Defendant ]: (unintelligible reply). I know that I didn't mean to do it. I guarantee that, I know I didn't mean to do it. [Emphasis added.]
Defendant moved to suppress his statement arguing that the detective's statement constituted the functional equivalent of interrogation under Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). The trial court agreed, focusing on the presumed purpose of the question, which was inferred from the fact that the detective made the statement directly to defendant:
Or where Innis does appear to be on point, the case concludes that Miranda safeguards are applicable whenever a person in custody is subject to either expressed questioning or its functional equivalent. Now, in this case there's no dispute that defendant was in custody and I think anybody reviewing the tape would find that the officer's statement was not expressed questioning, not in the way that it was worded. Then we come to the other portion where the Court identified the functional equivalent, any words or actions on part of the police other than those normally intended to arrest in custody, that the police should know or reasonably likely to elicit an incriminating response for the suspect.... The ultimate question is whether the officer should have known that such a response would be the result of his statement. And, in this particular case it's difficult to find another reason for making the statement, the officer made the statement while looking directly at the defendant.... Now, (Inaudible)—made distinction in Innis is that the officers were speaking to each other. Here the officer and the defendant were the only ones in the room, it may have been reasonable to make a similar statement to any other person within the defendant's hearing and not expect a response, but when the statement is made directly to the defendant while looking directly at him it suggest [sic] that the remark was designed to elicit a response as to the location of the gun. Therefore, the [c]ourt is granting the motion to suppress on self-incrimination grounds. The only reasonable interpretation of the officer's statement at that point appears to be [de]signed to elicit information about the location of the gun. The information qualifies as an incriminating statement and the statement qualifies as the functional equivalent of expressed questioning, because it occurred after the defendant invoked his right to remain silent. It must be suppressed, however it can be used for impeachment purposes should your client take the witness stand. [Emphasis added.]
Based on this ruling on the record, the trial court ordered defendant's subsequent statements suppressed. It is from that order that we granted leave to appeal.
II. ANALYSIS
This Court reviews a trial court's ruling on a motion to suppress evidence for clear error; it reviews attendant questions of law de novo. People v. Hawkins, 468 Mich. 488, 496, 668 N.W.2d 602 (2003); People v. Sobczak–Obetts, 463 Mich. 687, 694, 625 N.W.2d 764 (2001); People v. Unger, 278 Mich.App. 210, 243, 749 N.W.2d 272 (2008). What this means is that if factual findings are made by the trial court in relation to the motion to suppress, we defer to those findings by use of the clearly erroneous standard of review. People v. Kowalski, 230 Mich.App. 464, 471–472, 584 N.W.2d 613 (1998). The application of those facts to the constitutionalprovision at issue-the Fifth Amendment to the United States Constitution-is a legal determination to which we owe no deference to the trial court, and therefore we apply a de novo standard of review to the ultimate conclusion. Id.; see also People v. Stevens (After Remand), 460 Mich. 626, 631, 597 N.W.2d 53 (1999), quoting People v. Nelson, 443 Mich. 626, 631 n. 7, 505 N.W.2d 266 (1993) (“ ‘Application of constitutional standards by the trial court is not entitled to the same deference as factual findings.’ ”).
The right against compelled self-incrimination is guaranteed by both the United States and Michigan Constitutions. U.S. Const., Am. V; Const. 1963, art. 1, § 17; People v. Tierney, 266 Mich.App. 687, 707, 703 N.W.2d 204 (2005). Non-volunteered statements made during custodial interrogations are admissible only if a defendant voluntarily, knowingly, and intelligently waived his Fifth Amendment rights. People v. Akins, 259 Mich.App. 545, 564, 675 N.W.2d 863 (2003). There is no dispute that defendant was in custody at the time he made the statement, and that he had previously invoked his right to remain silent. Thus, the only question is whether the trial court erred by concluding that the detective's comments to defendant regarding the location of the gun constituted the “functional equivalent of interrogation.”
We agree with the prosecution that the United States Supreme Court's decision in Innis, 446 U.S. at 291, 100 S.Ct. 1682, mandates reversal of the trial court's order suppressing defendant's statement. In Innis, three police officers were transporting the respondent to the police station following his arrest. While en route, one of the officers commented that “there's a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves,” and that it would be “too bad” if a girl picked up the gun used in the armed robbery in which the respondent was a suspect and killed herself. Id. at 294–295, 100 S.Ct. 1682. A second officer also expressed his concern about the location of the weapon. Id. at 295, 100 S.Ct. 1682. The respondent, having previously been advised of his Miranda rights, “interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located.” He then directed the officers to the gun, which he had hidden in a field near the location of his arrest. Id. at 294–295, 100 S.Ct. 1682.
The Supreme Court concluded that the respondent was not subjected to interrogation, within the meaning of Miranda, when being subjected to the conversation between the officers. Innis, 446 U.S. at 302–303, 100 S.Ct. 1682. The Court first explained that
the 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. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police. This focus reflects the fact that the Miranda safeguards were designed to vest a suspect in custody with an added measure of protection against coercive police practices, without regard to objective proof of the underlying intent of the police. 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. [Id. at 300–302, 100 S.Ct. 1682].
It then concluded that the respondent was not “interrogated” as contemplated by Miranda:
It is undisputed that the first prong of the definition of “interrogation” was not satisfied, for the conversation between [the officers] included no express questioning of the respondent. Rather, that conversation was, at least in form, nothing more than a dialogue between the two officers to which no response from the respondent was invited. [Innis, 446 U.S. at 302, 100 S.Ct. 1682.]
With respect to whether the respondent was subject to the “functional equivalent” of questioning (which is what the trial court in our case found), the Innis Court held that given (1) there was no evidence suggesting the police were aware that respondent was peculiarly susceptible to an appeal to his conscience or that respondent was unusually disoriented or upset at the time, (2) the conversation consisted of only a few short remarks, (3) there was not a “lengthy harangue” in the presence of the respondent and (4) the comments were not particularly evocative, the officers should not have known that the respondent would move to make a self-incriminating statement:
The case thus boils down to whether, in the context of a brief conversation, the officers should have known that the respondent would suddenly be moved to make a self-incriminating response. Given the fact that the entire conversation appears to have consisted of no more than a few off hand remarks, we cannot say that the officers should have known that it was reasonably likely that Innis would so respond. This is not a case where the police carried on a lengthy harangue in the presence of the suspect. Nor does the record support the respondent's contention that, under the circumstances, the officers' comments were particularly “evocative.” It is our view, therefore, that the respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him. [Innis, 446 U.S. at 303, 100 S.Ct. 1682.]
Since Innis a number of cases have established that in general an officer's statements that provide a defendant with information about the charges against him, about inculpatory evidence located by the police, or about statements made by witnesses or codefendants, which allow a defendant to make an informed and intelligent reassessment of his decision whether to speak to the police, do not constitute interrogation. See Kowalski, 230 Mich.App. at 468, 483–484, 584 N.W.2d 613;People v. McCuaig, 126 Mich.App. 754, 759–760, 338 N.W.2d 4 (1983); United States v. Hurst, 228 F.3d 751, 760 (C.A.6, 2000).
In our order granting leave to appeal, this Court directed the parties to address “the application of New York v. Quarles, 467 U.S. 649, [104 S.Ct. 2626, 81 L.Ed.2d 550] (1984) and its progeny to the facts of this case.” Upon further review, we agree with the parties that the public safety exception set forth in Quarles and its progeny was not implicated by the facts and circumstances presented here.
Here, the trial court found that the detective did not expressly question defendant after he invoked his right to silence, a finding that is not clearly erroneous, so we are left to apply the Innis considerations in determining whether the detective engaged in “its functional equivalent.” Innis, 446 U.S. at 300–301, 100 S.Ct. 1682. Keeping in mind the type of “psychological ploys” that the Innis and Miranda courts were concerned about when addressing tactics that may be the functional equivalent of express questioning, see Innis, 446 U.S. at 299–302, 100 S.Ct. 1682,Miranda, 384 U.S. at 453–455, 86 S.Ct. 1602;United States v. Kimbrough, 477 F.3d 144, 148 (C.A.4, 2007), we hold under these facts that Detective Stiles' comment did not constitute the functional equivalent of express questioning.
Or, stated in the terms of the test articulated by the Innis court, we conclude that Detective Stiles should not have known that defendant would suddenly make a self-incriminating statement in response to his one remark. Innis, 446 U.S. at 302, 100 S.Ct. 1682. The Supreme Court tells us that our focus should primarily be on the perception of defendant, rather than the intent of Detective Stiles. Pennsylvania v. Muniz, 496 U.S. 582, 601–602, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990). For one, the detective specifically told defendant that he was not asking him any questions, but was instead “telling” him that he hoped the gun was not found by anyone who could get hurt. Hence, in reviewing what defendant would have perceived from the statement in its context, the use of “okay” and “all right” can reasonably be seen as seeking confirmation from defendant that he heard the cursory comment, and not to elicit a response. People v. Raper, 222 Mich.App. 475, 480–481, 563 N.W.2d 709 (1997). Thus, Detective Stiles did not direct any question to defendant, but merely articulated his concern to him.
Detective Stiles intent would be relevant if it revealed his awareness of any particular sensitivity defendant had to the statement made, Muniz, 496 U.S. at 601, 110 S.Ct. 2638, but there is no evidence on this issue.
Additionally, nothing in the record suggests that the detective was aware of any peculiar susceptibility of defendant (or that he even had any). So, focusing on what defendant would have perceived from the statement in its context, we can only conclude that Detective Stiles should not have reasonably expected defendant to make an incriminating statement. After all, Detective Stiles had already told defendant both that he was not asking a question, and that he understood his invocation of his right to remain silent. Amidst these other permissible comments—and absent any known sensitivities of defendant—it would not be reasonable to conclude that the one comment about the possibility of the gun being located and endangering others would result in a statement about the crime itself. Just as importantly, this “is not a case where the police carried on a lengthy harangue in the presence of” defendant, nor was Detective Stiles' comment “evocative.” Innis, 446 U.S. at 302–303, 100 S.Ct. 1682. And, these latter two points make any distinction between a direct remark made to defendant, and a defendant overhearing remarks between police as in Innis, insufficient to come to a different constitutional conclusion. See Fleming v. Metrish, 556 F.3d 520, 527 (C.A.6, 2009).
The dissent asserts that we have applied different standards of review to the two conclusions of the trial court.
We again note the well-settled principle that in an appeal of an order denying or granting a motion to suppress, our review of any findings of fact is for clear error. People v. Attebury, 463 Mich. 662, 668, 624 N.W.2d 912 (2001). But, to the extent that we must apply uncontested facts to constitutional standards, our review is de novo. Id. Here, in deciding whether the detective asked defendant an express question, we are not guided by constitutional or other legal standards. Instead, whether a question was asked involves a fact-intensive inquiry that must be made by the trial court in the first instance. Hence, we apply the clear error standard to that finding. Raper, 222 Mich.App. at 481, 563 N.W.2d 709 (clearly erroneous standard applied by this Court in reviewing factual findings that express questioning did not occur).
Because the only evidence submitted to the trial court on the motion to suppress was the audio/video disk, and that is something that we can review as easily as the trial court, the clearly erroneous standard may not even apply to the trial court's finding that defendant was not subjected to express questioning. See Harbor Park Market, Inc. v. Gronda, 277 Mich.App. 126, 130 n. 1, 743 N.W.2d 585 (2007), citing People v. Zahn, 234 Mich.App. 438, 445–446, 594 N.W.2d 120 (1999) (courts need not defer when the trial court reviewed the same record as this Court). Even under a de novo review of the evidence, however, we conclude as did the trial court that no express questioning occurred. After defendant invoked his right to remain silent, the detective informed defendant that he was not asking anymore questions, and was only going to make a statement. The brief statement was made, and though the detective stated “okay” and “alright” after the statement, the video makes clear that in context the detective was seeking affirmation that defendant heard the statement, not that he was seeking a response to the statement. And, the detective's response once defendant blurted out an incriminating statement shows he had not intended there be any sort of substantive response to the statement. Consequently, there was no express questioning of defendant.
As far as whether the detective engaged in the “functional equivalent” of questioning, this requires application of a constitutional standard articulated by the Innis court to the undisputed facts. These undisputed facts include that no express question was asked by the detective—a necessary factual finding—for if an express question was asked, there would be no need to determine if its functional equivalent occurred. In any event, since we review de novo the application of a constitutional standard to undisputed facts, our standard of review on this issue is different than that applicable to the initial question of whether an express question was asked. And, of course, as the parties themselves recognize, the ultimate decision on a motion to suppress is reviewed de novo. People v. Darwich, 226 Mich.App. 635, 637, 575 N.W.2d 44 (1997).
The dissent's disagreement with our conclusion that the detective did not engage in the functional equivalent of express questioning is based primarily upon the fact that a “word of inquisition” was added at the end of his statement, that there was a pause after the statement, and that the comments were made directly to defendant when defendant was alone with the detective. These factors are unconvincing. For one, they do not address the factors outlined in Innis, i.e., there is no suggestion by the dissent that the detective should have known that defendant “would suddenly be moved to make a self-incriminating response,” Innis, 446 U.S. at 303, 100 S.Ct. 1682, or that the detective carried on a “lengthy harangue” of defendant, id., or that the statement was “particularly ‘evocative.’ ” Id. These factors were critical to the Supreme Court's creationof the functional equivalentstandard, Kimbrough, 477 F.3d at 150–152, and the dissent simply does not address them.
Additionally, the federal courts have repeatedly held that revealing evidence or other facts directly to the defendant does not constitute the functional equivalent of questioning, absent any of the other Innis criteria. See, for example, Fleming, 556 F.3d at 527;Acosta v. Artuz, 575 F.3d 177, 191–192 (C.A.2, 2009), and cases cited therein. It is certainly commonplace for a police officer to inform a defendant—after invoking his right to remain silent—about facts surrounding the investigation, possible penalties from a conviction, etc, and nothing in the brief comment by the detective supports a conclusion that defendant was interrogated in violation of Miranda. The fact that one could glean some “subtle compulsion” from the circumstances surrounding the statement is not enough, as a matter of law, to find interrogation. Arizona v. Mauro, 481 U.S. 520, 528–529, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987); Innis, 446 U.S. at 300–303, 100 S.Ct. 1682;Kimbrough, 477 F.3d at 148–152.
The dissent's concern that the prosecution offered no explanation for why the statement was made, implying that “why else would the police do that” other than to obtain a response, is not a relevant consideration under the law. United States v. Fortes, 2008 WL 4219493 (D.R.I., 2008).
Reversed and remanded for further proceedings. We do not retain jurisdiction. WILDER, J., concurred with MURRAY, J.
SHAPIRO, P.J. (dissenting).
Because the detective's actions constituted express questioning, or at the very least, the functional equivalent thereof, I would affirm the trial court's suppression of defendant's statements. Therefore, I respectfully dissent.
After defendant was arrested he was transported to the police station and placed in an interrogation room. After several minutes, a detective entered the room. He advised defendant of his Miranda rights and defendant unequivocally asserted his right to remain silent. Defendant declined to sign the acknowledgement and waiver form, stating: “No thank you sir. I'm not going to sign it.... I don't even want to speak.” Rather than terminating the interview at that time, the interviewing detective then said:
The interrogation room was equipped with a video camera. The recording of the interaction between the investigating officer and defendant is part of the record and was reviewed by the trial court and by this Court.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Okay then. The only thing I can tell you Kadeem, is good luck man. Okay. Don't take this personal. It's not personal between me and you. I think I may have had one contact with you on the street. Okay. I've got to do my job. And I understand you've got to do what you've got to [do] to protect your best interests. Okay. The only think I can tell you is this, and I'm not asking you questions, I'm just telling you. I hope that the gun is in a place where nobody can get a hold of it and nobody can get hurt by it, okay?
These remarks were followed by a pause of several seconds during which the detective remained at the table, opposite defendant. The officer then said “all right?” and at that point, defendant made an inculpatory statement.
The parties do not dispute the facts and as noted, the events were recorded. The facts being uncontested, the matter is purely one of law, i.e., the application of a constitutional standard to uncontested facts and so our review is de novo. People v. Attebury, 463 Mich. 662, 668, 624 N.W.2d 912 (2001).
While both we and the trial court have reviewed the videotape, a transcript was also provided by defense counsel and no objection to the transcript was made by the prosecution.
The majority appears to apply differing standards of review to the trial court's conclusions whether express questioning occurred and whether the functional equivalence of questioning occurred. On the issue of express questioning the majority opines that the clear error standard of review of that conclusion is appropriate, while it reviews de novo the issue of the functional equivalence of questioning. What we are to review is the trial court's conclusion that the officer violated the defendant's explicitly asserted right to remain silent and the facts are wholly undisputed. Thus, there is no basis to apply different standards of review as to the trial court's conclusions regarding what constitutes explicit questioning as opposed to what constitutes the functional equivalence of questioning.
The dispositive case in this matter is Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). In Innis, three police officers were transporting the defendant to a police station following his arrest. While en route, one of the officers commented to another officer that “there's a lot of handicapped children running around in this area, and God forbid one of them might find a weapon with shells and they might hurt themselves,” and that it would be “too bad” if a girl picked up the gun used in the armed robbery of which the defendant was a suspect and killed herself. Id. at 294–295, 100 S.Ct. 1682. A second officer also expressed his concern about the location of the weapon. Id. at 295, 100 S.Ct. 1682. The defendant, having been previously advised of his Miranda rights on three separate occasions, “interrupted the conversation, stating that the officers should turn the car around so he could show them where the gun was located.” He then directed the officers to the gun, which he had hidden in a field near the location of his arrest. Id. at 294–295, 100 S.Ct. 1682.
The United States Supreme Court concluded that the defendant was not subjected to interrogation, within the meaning of Miranda, by virtue of the conversation between the officers. Id. at 302–303, 100 S.Ct. 1682. Such is not the case here. While the detective's comments to defendant were similar in content to comments made during the conversation between the officers in Innis, unlike in that case, here they were expressly and unequivocally directed to defendant. Further, in Innis, the Court found that “[t]he record in no way suggest[ed] that the officers' remarks were designed to elicit a response” from the defendant. Id. at 303 n. 9, 100 S.Ct. 1682. In contrast, in this case the detective expressly invited a response from defendant, by speaking directly to him, looking directly at him, by adding the question “okay?” at the end of his comment regarding the location of the gun and then pausing for several seconds as if waiting for a response. The detective's preface that he was “not asking questions” is belied by the fact that he asked defendant a question. To permit officers to ask direct questions of defendants so long as they preface it with “I'm not asking you any questions, but ...” is to make a mockery of Miranda. The detective and the defendant were the only persons present in the room at the time of the interview; the detective looked directly at, and spoke directly to, defendant; and the detective concluded his remarks regarding the location of the gun with the question “okay?” These undisputed facts all support the conclusion that the detective's remarks constituted express questioning.
The majority notes that in two cases we have held it permissible, after the right to remain silent has been asserted, for an officer to “provide a defendant with information about the charges against him, about inculpatory evidence located by the police, or about statements made by witnesses or codefendants, which allow a defendant to make an informed and intelligent reassessment of his decision whether to speak to the police....” Ante at 630. However, the officer's comments in this case did not provide defendant with information about the charges against him, about inculpatory evidence the police possessed, or about witness statements. The officer's comments did not offer any new information that could provide a basis for an intelligent reassessment of the defendant's decision to remain silent. Moreover, unlike in this case, in People v. Kowalski, 230 Mich.App. 464, 584 N.W.2d 613 (1998) (and cited by the majority to support this argument) it was only after more than an hour had passed and defendant had spoken to a friend on the phone that the police gave defendant an opportunity to “reassess” whether he wanted to speak with the officers.
Moreover, even if the detective's remarks could, somehow, be construed as not asking defendant a question, the detective's remarks certainly constituted the functional equivalent of express questioning. In Innis, the Supreme Court instructed that the intent of the police is relevant to the extent that “it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response.” Innis, 446 U.S. at 301 n. 7, 100 S.Ct. 1682. Indeed, the conclusion that the defendant had not been interrogated in Innis was based, in part, on the policy decision that “the police surely cannot be held accountable for the unforeseeable results of their words or actions....” Id. at 301–302, 100 S.Ct. 1682. Rather, “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.” Id. at 302, 100 S.Ct. 1682.
The content of the detective's comments, including the word of inquisition added at the end, followed by the pause of several seconds, together with the fact that the comments were made directly to defendant and in the presence only of defendant, demonstrate that the detective knew or should have known that his comments and actions were reasonably likely to elicit a response from defendant. Indeed, it is difficult to conceive of another reason and notably, no other reason has been proffered by the prosecution. “A party may not merely announce a position and leave it to this Court to discover and rationalize the basis for the claim.” Nat'l Waterworks, Inc. v. Int'l Fidelity & Surety, Ltd., 275 Mich.App. 256, 265, 739 N.W.2d 121 (2007).
The detective engaged in either explicit questioning or the functional equivalence of questioning and the trial court properly suppressed the defendant's statements. I would affirm.