People v. Pittman

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. EDWARD PEBLO PITTMAN, Defendant-Appellant.

No. 353004

Court of Appeals of Michigan

September 16, 2021

UNPUBLISHED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.^[1] 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 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^[2] rights during a recorded interview.^[3] 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.

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...