People v. Rosebush

1

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSHUA MICHAEL ROSEBUSH, Defendant-Appellant.

No. 352127

Court of Appeals of Michigan

January 20, 2022

UNPUBLISHED

Saginaw Circuit Court LC No. 19-045946-FC

Before: O'Brien, P.J., and Stephens and Letica, JJ.

PER CURIAM

Defendant appeals as of right his jury trial convictions of (1) assault with intent to murder (AWIM), MCL 750.83; (2) assault with intent to do great bodily harm less than murder (AWIGBH), MCL 750.84; (3) three counts of unlawful driving away of an automobile (UDAA), MCL 750.413; (4) assaulting, resisting, or obstructing a police officer, MCL 750.81d(1); (5) carrying a weapon with unlawful intent, MCL 750.226; (6) receiving and concealing a stolen firearm, MCL 750.535b; (7) being a felon in possession of a firearm (felon-in-possession), MCL 750.224f; and (8) nine counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He was sentenced, as a fourth-offense habitual offender, MCL 769.12, to imprisonment as follows: (1) 75 to 115 years for AWIM, (2) 152 months to 90 years for AWIGBH (3) three terms of 76 months to 90 years for UDAA, (4) 46 months to 15 years for assaulting, resisting, or obstructing a police officer, (5) 76 months to 90 years for carrying a weapon with unlawful intent, (6) 76 months to 90 years for receiving and concealing a stolen firearm, (7) 58 months to 90 years for felon-in-possession, and (8) nine terms of 2 years for felony-firearm. We affirm defendant's convictions and sentences, but remand this case for the ministerial task of correcting an error in the amended judgment of sentence.

I. BASIC FACTS AND PROCEDURAL HISTORY

The prosecutor presented evidence that defendant was on parole, absconded, and stole a vehicle with a handgun in it. The 18 convictions on appeal arose from subsequent events, which occurred between January 21, and January 22, 2019. Initially, defendant stole a white Dodge Ram, forgot to turn on the headlights, and was pulled over by Saginaw Police Officer Jeff Koenig. The vehicle had not been reported as stolen, and Officer Koenig only intended on advising defendant to turn his headlights on. However, when Koenig reached the driver's side door, defendant said, "nighty night," and shot him in the face with the stolen handgun. As Koenig retreated to the back of the vehicle, defendant shot him again in the shoulder. Officer Koenig incurred very serious injuries, but managed to fire two rounds at defendant's stolen vehicle.

In Saginaw, defendant abandoned the Dodge Ram and stole a white Ford truck with a business decal on the side. He dropped the white Ford truck off at a Home Depot in Genesee County and walked to a gas station parking lot, where he stole a large white van. He drove this van west into Shiawassee County. Shiawassee County Detective Lieutenant Steven Shenk was patrolling I-69, looking for the suspect, when he located defendant driving the van on the expressway and followed him in an unmarked car. Defendant suddenly exited the expressway at Woodbury Road and eventually ended up in a ditch. Detective Lieutenant Shenk attempted to arrest defendant and later shot defendant in self-defense. Defendant was shot in the jaw and the shoulder and was taken into custody with the aid of police backup.

Defendant was transported to Sparrow Hospital where he was in stable condition before undergoing surgery. There, defendant declined pain medication, but gave a statement admitting to the police officer shooting and subsequent actions taken to avoid being taken into custody. In addition to the police statement, defendant left DNA (deoxyribonucleic acid) and fingerprint evidence in the vehicles and items found therein. Further, defendant made various statements regarding the shooting of a police officer to treating medical personnel. Defendant was charged with the various vehicle thefts, assaults, and related offenses that took place in Saginaw, Genesee, and Shiawassee Counties.

II. MOTION TO SUPPRESS

Defendant alleges that the trial court should have granted his motion to suppress the incriminating statements he made at Sparrow Hospital to Michigan State Police Detective Sergeant David Rivard. We disagree.

At the hospital, defendant first exercised his right to an attorney, but later initiated a new conversation with the police and waived his Miranda^[1] rights. The appellate court reviews "a trial court's factual findings in a ruling on a motion to suppress for clear error. 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 Attebury, 463 Mich. 662, 668; 624 N.W.2d 912 (2001).

A person has the constitutional right to counsel during a custodial interrogation. People v Tanner, 496 Mich. 199, 207; 853 N.W.2d 653 (2014). "Once a suspect invokes his right to remain silent or requests counsel, police questioning must cease unless the suspect affirmatively reinitiates contact." Id. at 208. The Tanner Court noted that once a suspect requests an attorney, he or she is not subject to further police questioning unless the suspect initiates a further conversation with the police. Id. at 208-209. The initiation of a further conversation must indicate the accused's desire to discuss, in general terms, the circumstances of the crime or crimes at issue. People v McRae, 469 Mich. 704, 716; 678 N.W.2d 425 (2004). Incriminating statements made afterward can then be used against an accused at trial if the totality of the circumstances show that the defendant has chosen to waive his Miranda rights. See Tanner, 496 Mich. at 209; People v Clark, 330 Mich.App. 392, 419-420; 948 N.W.2d 604 (2019); People v Kowalski, 230 Mich.App. 464, 473-474; 584 N.W.2d 613 (1998).

In the present case, evidence was presented that defendant was given Miranda warnings; invoked his right to counsel; subsequently initiated further conversations with the police; was again given Miranda warnings; and then chose to waive the Miranda rights and speak with the police about the criminal incidents. Michigan State Police Trooper Christopher Kane denied that he initiated any conversation with defendant before defendant requested to speak with Detective Sergeant Rivard after he left the room. Michigan State Police Detective Sergeant Brian Russell also testified that defendant told Detective Sergeant Rivard that he wanted to speak "about the incident" and that, thereafter, Detective Sergeant Rivard turned on his recording device and read the Miranda rights. The recording reflects the recitation of the rights.

The trial court's factual finding that it was defendant who initiated the subsequent conversation with the police, after the initial invocation of the right to counsel, was not clearly erroneous in light of the evidence presented. Attebury, 463 Mich. at 668. In addition, Tanner, McRae, Clark, and Kowalski make clear that if the suspect, after first invoking Miranda, initiates a general conversation about the criminal incident with the police, chooses to waive his or her rights, and makes an incriminating statement, such a statement is admissible.

Nonetheless, citing People v Daoud, 462 Mich. 621; 614 N.W.2d 152 (2000), and People v Cipriano, 431 Mich. 315; 429 N.W.2d 781 (1988), defendant contends that his waiver of rights and his confession were involuntary on the basis of the short period between invocation of the right to counsel and the waiver, his medical condition, and the presence of police officers in his hospital room. The Daoud Court addressed waiver:

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. [Daoud, 462 Mich. at 633 (quotation marks and citation omitted).]

In Cipriano, 431 Mich. at 334, the Court stated:

In determining whether a statement is voluntary, the trial court should consider, among other things, the following factors: the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse.

The Cipriano Court added, "The absence or presence of any one of these factors is not necessarily conclusive on the issue of voluntariness. The ultimate test of admissibility is whether the totality of the circumstances surrounding the making of the confession indicates that it was freely and voluntarily made." Id.

There is no basis from which to conclude that the waiver or the confession was involuntary. A physician's assistant and treating nurse assessed defendant and "gave him a numeric score which helps . . . [provide] an objective way to describe [a patient's] neurologic status." Defendant received...