Petition for Writ of Certiorari — Renee King, Petitioner v. Anthony Stewart, Warden

Supreme Court briefNov 13, 2017

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APPENDIX A

King v Stewart, No. 17-1486 (6th Cir. 2017) Order Denying COA.

FILED

Oct 02, 2017

DEBORAH S. HUNT, Clerk

No. 17-1486

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RENEE KING,

Petitioner-Appellant,

ANTHONY STEWART,

Respondent-Appellee.

)

ORDER

Renee King, a Michigan prisoner proceeding pro se, appeals the order of the district court

denying her petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. We

construe King's notice of appeal as an application for a certificate of appealability ("COA"). See

Fed. R. App. P. 22(b)(2). She has filed a motion to proceed in forma pauperis on appeal. See

Fed. R. App. P. 24(a)(5).

King was convicted in a Michigan state court of first-degree felony murder, first-degree

criminal sexual conduct, and first-degree child abuse. She was sentenced to life imprisonment

for the murder conviction and concurrent prison terms of 30 to 50 years for the criminal sexual

conduct conviction and 86 to 180 months for the child-abuse conviction. The Michigan Court of

Appeals affirmed her conviction on direct appeal, and the Michigan Supreme Court denied her

leave to appeal. People v. King, No. 309974, 2014 WL 1320155 (Mich. Ct. App. Apr. 1, 2014)

(per curiam),perm. app. denied, 856 N.W.2d 45 (Mich. 2014).

King then filed this § 2254 petition, arguing that: (1) the trial court violated her dueprocess rights by allowing the prosecutor to introduce prior-bad-acts evidence; (2) the police

violated her due-process rights by failing to provide her warnings in accordance with Miranda v.

No. 17-1486

-2Arizona, 384 U.S. 436 (1966), before conducting a custodial interrogation and by failing to honor

her request for a lawyer or, alternatively, counsel was ineffective for failing to adequately

challenge the custodial nature of her interrogation; and (3) the trial court improperly scored the

Michigan state sentencing guidelines. The district court denied the petition, rejecting the merits

of each of King's claims, and declined to issue a COA.

The district court must deny a writ of habeas corpus unless the petitioner can show that

the state-court adjudication either "resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the Supreme

Court of the United States" or "resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding." 28

U.S.C. § 2254(d). Concluding that King did not show either, the district court denied her

petition and declined to issue a COA.

To obtain a COA in this court, an applicant must demonstrate "that jurists of reason could

disagree with the district court's resolution of [her] constitutional claims or that jurists could

conclude the issues presented are adequate to deserve encouragement to proceed further."

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). King is unable to meet this standard and, for

the reasons that follow, her motions are denied.

King first argues that her due-process rights were violated by the introduction during trial

of other-bad-acts evidence. Specifically, she objects to evidence that, in an unrelated incident,

she struck her one-year-old stepdaughter, the victim in this case. But "[t]here is no clearly

established Supreme Court precedent.

hold[ing] that a state violates due process by permitting

other bad acts evidence." Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). And,

contrary to King's claims, this court has already determined that the mere admission of bad-acts

evidence is not a due-process violation and does not warrant habeas relief. See Bey v. Bagley,

500 F.3d 514, 522-23 (6th Cir. 2007). Reasonable jurists thus would not debate the district

court's denial of King's claim that admission of the other-bad-acts evidence violates her dueprocess rights.

No. 17-1486

-3King next argues that her due-process rights were violated by the conduct of police

during her interrogation. She alleges that Officer Derrick Reed questioned her while she was in

a hospital emergency room without properly advising her of her Miranda rights or complying

with her request for counsel. According to King, Detective Sergeant Renee Yax also interviewed

her at the hospital despite knowing that she had requested counsel.

Prosecutors "may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of [a] defendant unless [they] demonstrate[] the use of procedural

safeguards effective to secure the [defendant's] privilege against self-incrimination." Miranda,

384 U.S. at 444. Custodial interrogation refers to "questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise deprived of his freedom of action

in any significant way." Id. To determine whether a criminal suspect is in custody for Miranda

purposes, courts address two distinct questions: "first, what were the circumstances surrounding

the interrogation; and second, given those circumstances, would a reasonable person have felt he

or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516

U.S. 99, 112 (1995) (footnote omitted). In regard to the second inquiry, we consider several

factors, including: "(1) the location of the interview; (2) the length and manner of the

questioning; (3) whether there was any restraint on the individual's freedom of movement; and

(4) whether the individual was told that he or she did not need to answer the questions." United

States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010).

Applying that standard, reasonable jurists would not debate the district court's denial of

King's claim. Officer Reed interviewed King at the hospital for around five to ten minutes,

during which time he informed her that she was not under arrest. When an officer tells a suspect

that he or she is not under arrest, we have tended to find that the suspect was not in custody. See

United States v. Salvo, 133 F.3d 943, 951 (6th Cir. 1998). Additionally, there is no evidence in

the record that King was otherwise restrained, and she, in fact, later left the hospital with her

family. Although King claims that Reed threatened her, the trial court determined that this claim

lacked credibility in light of King's conflicting testimony on the subject. Hospital security

No. 17-1486

-4personnel were present outside King's room, but were there to address tensions among King's

family members. King has failed to show that a reasonable person in her situation would have

felt unable to terminate Officer Reed's interrogation. King was therefore not in custody for

Miranda purposes. See Thompson, 516 U.S. at 112. As such, Officer Reed was not obligated to

advise King of her Miranda rights. See Miranda, 384 U.S. at 444.

Officer Reed and Detective Sergeant Yax were also not under any obligation to comply

with King's request for counsel. When, during an interrogation, a criminal suspect invokes her

right to counsel, the suspect "is not subject to further interrogation by the authorities until

counsel has been made available to [her], unless the accused [herself] initiates further

communication, exchanges, or conversations with the police." Edwards v. Arizona, 451 U.S.

477, 484-85 (1981). But, "[a]n individual who is not in Miranda custody has no constitutional

right to counsel." Schreane v. Ebbert, 864 F.3d 446, 453 (6th Cir. 2017) (citation and internal

quotation marks omitted). For the reasons previously indicated, King was not in custody for

Miranda purposes and therefore had no right to counsel.

King claims alternatively that counsel was ineffective for failing to adequately challenge

the custodial nature of her police interviews. Specifically, she contends that counsel was

ineffective for failing to call Dr. Julie Lata to testify during a suppression hearing regarding the

statements King made to the police. King alleges that Dr. Lata would have testified regarding a

medical record that she prepared indicating that King was effectively in custody when police

interviewed her.

To prevail on an ineffective-assistance-of-counsel claim, a litigant must establish that

counsel was deficient and that the deficient performance prejudiced the litigant's defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Counsel's performance is considered

deficient when "counsel made errors so serious that counsel was not functioning as the 'counsel'

guaranteed the defendant by the Sixth Amendment." Id. To establish prejudice, a petitioner

must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694.

No. 17-1486

-5Reasonable jurists would not debate the district court's conclusion that King failed to

meet the standard for her ineffective-assistance claim. Dr. Lata's report indicated that, while

King was in the emergency room, she attempted to leave the hospital but that police told her that

"she needed to be detained." However, this excerpt from Dr. Lata's report does not necessarily

indicate that King was being detained for police purposes. As the Michigan Court of Appeals

observed, the police "might have explained that [King] was being detained because she had not

been medically cleared." King, 2014 WL 1320155, at *5• Given the speculative value of Dr.

Lata's testimony, King has not shown that she was prejudiced by counsel's actions.

See

Strickland, 466 U.S. at 694. Moreover, other evidence in the record contradicts the notion that

police detained King in the emergency room, including the fact that King later left the hospital

after being medically cleared. Reasonable jurists would not debate the district court's conclusion

that the state court's decision on this issue was neither an unreasonable application of clearly

established law nor an unreasonable determination of the facts in light of the evidence presented.

See 28 U.S.C. § 2254(d).

Finally, King argues that the trial court improperly applied the Michigan state sentencing

guidelines. She contends that the trial court erred by failing to score her convictions for criminal

sexual conduct and child abuse. Claims concerning improper sentencing under state law are

generally not cognizable in habeas corpus proceedings. See Howard v. White, 76 F. App'x 52,

53 (6th Cir. 2003). A petitioner may prevail on a state law sentencing-error claim where she

shows that her sentence was based on "misinformation of [a] constitutional magnitude." Roberts

v. United States, 445 U.S. 552, 556 (1980) (citation and quotation marks omitted). King has

made no such assertion here. Accordingly, reasonable jurists would not debate the district

court's conclusion that the state court decision on this matter was neither an unreasonable

application of clearly established law nor an unreasonable determination of the facts in light of

the evidence presented. See 28 U.S.C. § 2254(d).

No. 17-1486

-6For these reasons, King's application for a COA is DENIED. Her motion to proceed in forma

pauperis on appeal is DENIED as moot.

ENTERED BY ORDER OF THE COURT

ZU5;o~uw

Deborah S. Hunt, Clerk

APPENDIX B

King v Stewart, No. 15-cv-13876 (2000) United States District Court Eastern District of

Michigan Order Denying Certificate Of Appealability and IFP.

2017 U.S. Dist. LEXIS 39365, *

RENEE KING, Petitioner, v. ANTHONY STEWART, Respondent.

Case No. 15-cv-13876

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN, SOUTHERN DIVISION

2017 U.S. Dist. LEXIS 39365

March 20, 2017, Decided

March 20, 2017, Filed

PRIOR HISTORY: People v. King, 2014 Mich. App. LEXIS 580 (Mich. Ct. App., Apr. 1, 2014)

CORE TERMS: custody, custodial interrogation, interrogation, right to counsel, arrest, warnings,

sentencing guidelines, federal habeas, questioning, habeas corpus, free to leave, emergency, probative,

process rights, appealability, accidentally, certificate, prejudicial, detained, child abuse, ineffective

assistance of counsel, state trial, prosecutor, questioned, interview, jurists, invoke, police interviews,

deliberately, ineffective

COUNSEL: [*1] Renee King, Petitioner, Pro se, YPSILANTI, MI.

For Anthony Stewart, Respondent: Andrea M. Christensen-Brown, Michigan Department of Attorney

General, Lansing, MI; Laura Moody, Michigan Department of Attorney General, Appellate Division, Lansing,

MI.

JUDGES: HON. GERSHWIN A. DRAIN, UNITED STATES DISTRICT JUDGE. UNITED STATES MAGISTRATE

JUDGE MONA K. MAJZOUB.

OPINION BY: GERSHWIN A. DRAIN

OPINION

OPINION AND ORDER DENYING THE PETITION FOR A WRIT OF HABEAS CORPUS AND DECLINING To ISSUE A CERTIFICATE

OF APPEALABILITY OR LEAVE To APPEAL IN FORMA PAUPERIS

Renee Marie King ("Petitioner"), filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In her

application, filed pro Se, Petitioner challenges her conviction for first-degree felony murder, Mich. Comp.

Laws § 750.316(1)(b), first degree criminal sexual conduct (CSC), Mich. Comp. Laws § 750.520b(1)(a),

and first-degree child abuse, Mich. Comp. Laws § 750.136b(2). The trial court sentenced Petitioner to

mandatory life imprisonment for the murder conviction and to concurrent prison terms of 30 to 50 years

for the first-degree CSC conviction and 86 to 180 months for the first-degree child abuse conviction. For

the reasons stated below, the petition for a writ of habeas corpus is DENIED.

I. BACKGROUND

Petitioner was convicted following a jury trial in the Macomb County Circuit [*2] Court. This Court recites

verbatim the relevant facts relied upon by the Michigan Court of Appeals, which are presumed correct on

habeas review pursuant to 28 U.S.C. § 2254(e)(1). See Wagner v. Smith, 581 F.3d 410, 413 (6th Cir.

2009):

The jury found that defendant killed her two-year-old stepdaughter, LFW. Defendant was home alone with

LFW. A few hours later, after a 911 call, emergency personnel arrived at defendant's house and

discovered that the child was dead. Medical evidence indicated that the child had multiple contusions

about her body, including at least 20 different areas of bruising to the head. She also had a serious injury

to her vagina and perineum. The medical examiner determined that the child died from cardiorespiratory

arrest as a result of the head injuries and classified the death as a homicide. Defendant claimed that the

child's injuries were inflicted accidentally when defendant was holding her and dropped her, or when

defendant fell while holding her, or both.

People v. King, No. 309974, 2014 Mich. App. LEXIS 580, 2014 WL 1320155, *1 (Mich. Ct. App. Apr. 1,

2014). Petitioner's conviction was affirmed on appeal. Id., Iv. den. 497 Mich. 903, 856 N.W.2d 45 (2014).

Petitioner seeks a writ of habeas corpus on the following grounds:

The trial court violated appellant's due process rights by allowing the prosecutor to introduce unfairly

prejudicial evidence of an alleged incident [*3] involving the decedent, not tending to show motive,

intent, or absence of accident.

The police violated appellant's due process rights by failing to scrupulously honor appellant's demand

for a lawyer and to stop the custodial interrogation at the hospital; alternatively, defense trial counsel was

constitutionally ineffective in failing to call one of appellant's treating doctors to establish that appellant

was in custody and not free to leave the hospital at the time of questioning.

The trial court was required to score and consider the sentencing guidelines for first-degree criminal

sexual conduct and first-degree child abuse, which were the highest crime class felony convictions

because there is no crime class for first-degree felony murder.

Dkt. No. 1, pp. 14-19 (Pg. ID 14-19).

II. STANDARD OF REVIEW

28 U.S.C. § 2254(d), as amended by The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

imposes the following standard of review for habeas cases:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication [*4] of the claim—

resulted in a decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States; or

resulted in a decision that was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

A decision of a state court is "contrary to" clearly established federal law if the state court arrives at a

conclusion opposite to that reached by the Supreme Court on a question of law or if the state court

decides a case differently than the Supreme Court has on a set of materially indistinguishable facts.

Williams v. Taylor, 529 U.S. 362, 405-06, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). An "unreasonable

application" occurs when "a state court decision unreasonably applies the law of [the Supreme Court] to

the facts of a prisoner's case." Id. at 409. A federal habeas court may not "issue the writ simply because

that court concludes in its independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly." Id. at 410-11. "[A] state court's determination that a

claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the

correctness of [*5] the state court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770,

178 L. Ed. 2d 624 (2011) (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140, 158 L. Ed.

2d 938 (2004)).

Therefore, in order to obtain habeas relief in federal court, a state prisoner is required to show that the

state court's rejection of her claim "was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded disagreement." Id. at 103. A

habeas petitioner should be denied relief as long as it is within the "realm of possibility" that fairminded

jurists could find the state court decision to be reasonable. See Woods v. Etherton, 136 S. Ct. 1149, 1152,

194 L. Ed. 2d 333 (2016).

III. DISCUSSION

A. Claim # 1: The other acts evidence claim.

Petitioner alleges that her due process rights were violated when the trial court allowed the prosecutor to

introduce prejudicial evidence of an alleged incident involving the victim that did not tend to show motive,

intent, or the absence of accident. Dkt. No. 1, pp. 14-15 (Pg. ID 14-15).

It is "not the province of a federal habeas court to reexamine state-court determinations on state-court

questions." Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S. Ct. 475, 116 L. Ed. 2d 385 (1991). A federal

court is limited in federal habeas review to deciding whether a state court conviction violates the

Constitution, laws, or treaties of the United States. Id. Errors in the application of state law,

especially [*6] rulings regarding the admissibility of evidence, are usually not questioned by a federal

habeas court. Seymour v. Walker, 224 F.3d 542, 552 (6th Cir. 2000); see also Regan v. Hoffner, 209 F.

Supp. 2d 703, 714 (E.D. Mich. 2002).

Petitioner's claim that the state court violated Michigan Rule of Evidence 404(b) or any other provision of

state law by admitting evidence of her prior acts of child abuse against the victim is non-cognizable on

habeas review. See Bey v. Bagley, 500 F.3d 514, 519 (6th Cir. 2007); Estelle, 502 U.S. at 72 ("Nor do our

habeas powers allow us to reverse [Petitioner's] conviction based on a belief that the trial judge

incorrectly interpreted the [State] Evidence Code in ruling that the prior injury evidence was admissible as

bad acts evidence in this case.").

The admission of this 'prior bad acts" or "other acts" evidence against Petitioner at her state trial does not

entitle her to habeas relief, because there is no clearly established Supreme Court precedent holding that

a state violates a habeas petitioner's due process rights by admitting propensity evidence in the form of

"prior bad acts" evidence. See Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003); see also Adams v.

Smith, 280 F. Supp. 2d 704, 716 (E.D. Mich. 2003).

Given the lack of holdings by the Supreme Court on the issue of whether a state court violates a habeas

petitioner's due process rights by the admission of evidence to establish the petitioner's propensity to

commit criminal acts, the Michigan Court of Appeals' [*7] rejection of Petitioner's claim was not an

unreasonable application of clearly established federal law. See Wright v. Van Patten, 552 U.S. 120, 126,

128 S. Ct. 743, 169 L. Ed. 2d 583 (2008); Carey v. Musladin, 549 U.S. 70, 77, 127 S. Ct. 649, 166 L. Ed.

2d 482 ( 2006).

To the extent that Petitioner contends that evidence of the prior assault should have been excluded under

Michigan Rule of Evidence 403 for being more prejudicial than probative, she would not be entitled to

habeas relief. Appraisals of the probative and prejudicial value of evidence are entrusted to the sound

discretion of a state trial court judge, and a federal court considering a habeas petition must not disturb

that appraisal absent an error of constitutional dimensions. See Dell v. Straub, 194 F. Supp. 2d 629, 64445 (E.D. Mich. 2002) ("[A] federal habeas court will not disturb a state court's admission of evidence of

prior crimes, wrongs, or acts unless the probative value of such evidence is so greatly outweighed by the

prejudice flowing from its admission that admitting the evidence denies the petitioner the due process of

law."). So long as a state court's determination that evidence is more probative than prejudicial is

reasonable, a federal court on habeas review will not overturn a state court conviction. See Clark v.

O'Dea, 257 F.3d 498, 503 (6th Cir. 2001).

The Michigan Court of Appeals found that the prior act of striking the victim in the head was probative as

to whether the trauma to the victim's [*8] head was inflicted deliberately or whether the victim's injuries

were caused accidently, as follows:

LFW died from blunt force trauma to the head. A principal issue at trial was whether that trauma was

inflicted deliberately or whether the victim's injuries were accidentally caused. Defendant gave conflicting

accounts of the falls and said both that she accidentally dropped the child and that she had accidentally

fallen while holding the child. The prosecutor was allowed to introduce evidence that defendant had

previously struck the child in the face deliberately. Evidence that defendant previously injured the child by

deliberately striking her in the head made it somewhat less likely that she accidentally injured the child in

the head by dropping her. Therefore, the evidence was relevant for a proper purpose other than

ç propensity. Given the horrific nature of the injuries the child sustained while in defendant's custody, it is

highly unlikely that the jury would have been distracted by, or given undue weight to, evidence that

defendant once bloodied the child's nose by slapping her. Therefore, the probative value of the evidence

was not substantially outweighed by the danger of unfair [*9] prejudice. Consequently, the trial court did

not abuse its discretion in admitting the evidence.

King, No. 309974, 2014 Mich. App. LEXIS 580, 2014 WL 1320155, *2 (Mich. Ct. App. Apr. 1, 2014).

The state court reasonably determined that the prior child abuse evidence was more probative than

prejudicial. Petitioner is not entitled to habeas relief on her first claim. Clark, 257 F. 3d at 503.

B. Claim # 2: The admission of oral statements to investigators.

In her second claim, Petitioner alleges that her oral statements made to investigators were improperly

admitted in violation of Miranda v. Arizona,, because she was "in custody" and reasonably felt that she

was unable to leave the hospital where the interviews took place. Dkt. No. 1, pp. 16-18 (Pg. ID 16-18).

Petitioner further claims that her statement should have been suppressed because she had invoked her

right to counsel. Id.

FOOTNOTES

1 Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

In rejecting Petitioner's claim, the Michigan Court of Appeals found that Petitioner was not in custody

when she spoke with Officer Derrick Reed and Detective sergeant Renee Yax; therefore, Petitioner's

Miranda rights had not been triggered:

Defendant was interviewed at the hospital by Officer Reed and then by Officer Yax. Reed did not advise

defendant of her rights before questioning her. Nevertheless, defendant claims that she [* 10] asked for

counsel while speaking with Officer Reed. Defendant must be in custody in order to invoke her right to

counsel, and defendant claims that she was in custody at the time that she spoke to Officer Reed. A

defendant who is questioned at a hospital generally is not in custody if she is not under arrest and is not

otherwise restrained or prevented from leaving by the police.

At the suppression hearing, the evidence showed that defendant was at the hospital emergency room, and

not interviewed at the police station. This finding is supported by the testimony of Officer Reed and

defendant, who both stated that they spoke while defendant was in the hospital. The trial court found that

defendant was at the hospital for medical treatment. This finding is supported by defendant's mother's

testimony that she had to leave defendant's bedside because defendant "was going through tests and

different things." The trial court found that defendant "was free to leave and in fact did leave the

hospital," and this finding is supported by Officer Reed's testimony that he did not place defendant under

arrest and that she was free to leave and by defendant's testimony that she left after Officer Reed [*11]

told her she was not under arrest. While defendant initially testified that Officer Reed threatened to harm

her if she tried to leave, the trial court rejected that testimony, finding that defendant's credibility on that

point was "suspect," in part because that testimony was contradicted by defendant's later testimony that

she left after Officer Reed told her she was not under arrest. The trial court found that "[a]ny security that

was present was due primarily to the family altercations in the hospital, not to restrain the defendant and

there was no evidence that the police were in any way acting as security." This finding is supported by

Officer Reed's testimony that he did not know why hospital security personnel were involved and by

defendant's mother's testimony that hospital security personnel had locked the doors to the emergency

treatment area, apparently as part of the response to a family altercation in which some people had

threatened to kill defendant. No one testified that hospital security personnel were acting at the behest of

police. Given these findings, the trial court did not clearly err in finding that defendant was not in custody

when Officer Reed interviewed her at [*12] the hospital.

King, 2014 Mich, App. LEXIS 580, 2014 WL 1320155, * 3-4 (Mich. Ct. App. Apr. 1, 2014) (internal

citations omitted).

A prosecutor may not use a defendant's statements that stem from custodial interrogation unless the

prosecutor can demonstrate the use of procedural safeguards that are effective to secure a defendant's

privilege against self-incrimination. Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 16 L. Ed. 2d

694 (1966). Unless other means are devised to inform a suspect of his right to silence and a "continuous

opportunity to exercise it," the following warnings are required to be given to a suspect:

the person must be warned that he has a right to remain silent;

that any statement he does make may be used against him;

and that he has a right to the presence of an attorney, either appointed or retained.

Miranda, 384 U.S. at 444.

Police officers, however, are not required to administer Miranda warnings to every person whom they

question nor are they required to administer Miranda warnings simply because the questioning takes place

in a police station or because the questioned person is one whom the police suspect. Oregon v. Mathiason,

429 U.S. 492, 495, 97 S. Ct. 711, 50 L. Ed. 2d 714 (1977). Instead, Miranda warnings are required "only

where there has been such a restriction on a person's freedom as to render him 'in custody." Mathiason,

429 U.S. at 495. "Custody," for purposes of Miranda, requires a "significant deprivation of

freedom." [*13] See Mason v. Mitchell, 320 F.3d 604, 632 (6th Cir. 2003).

Two discrete inquiries are essential to determining whether a criminal suspect was in custody at time of

the interrogation, and therefore entitled to Miranda warnings. Thompson v. Keohane, 516 U.S. 99, 112,

116 S. Ct. 457, 133 L. Ed. 2d 383 (1995). First, the Court must examine circumstances surrounding the

interrogation. Id. Second, given those circumstances, the Court must ask whether a reasonable person

would have felt that he or she was not at liberty to terminate the interrogation and leave. Id. The initial

determination of whether a suspect is in custody, for purposes of Miranda, depends on the objective

circumstances of the interrogation, not on the subjective views harbored by the interrogating officer. See

Stansbury v. California, 511 U.S. 318, 323, 114 S. Ct. 1526, 128 L. Ed. 2d 293 (1994). A policeman's

unarticulated plan has no bearing upon whether a suspect is "in custody," so as to require Miranda

warnings. Instead, the relevant inquiry is "how a reasonable man in the suspect's position would have

understood his situation." See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S. Ct. 3138, 82 L. Ed. 2d 317

(1984).

The Michigan Court of Appeals' determination that Petitioner was not in custody so as to trigger the need

for Miranda warnings was a reasonable determination of the facts and law in this case. See Peerenboom v.

Yukins, 75 F. Supp. 2d 691, 694-95 (E.D. Mich. 1999) (finding habeas claim was barred, under AEDPA,

when state court of appeals did not unreasonably apply [*14] Supreme Court precedent in holding that a

petitioner was not in custody when interviewed by police while in hospital recovering from injuries

sustained when bomb built to kill intended victim accidentally exploded, and that her statements were not

required to be excluded for failure to give Miranda warnings).

Petitioner was at the hospital for medical treatment when questioned by Officer Derrick Reed and

Detective Sergeant Renee Yax. Reed informed Petitioner that she "was free to leave and [she] in fact did

leave the hospital," following the questioning .2 Id. at 4. There is no indication that the questioning took

place in a context where Petitioner's freedom to depart was so restricted that she did not feel free to

terminate the conversation and leave. Because Petitioner was not in custody when she was at the

hospital, there was no duty for the police to advise Petitioner of her Miranda warnings, thus, the state

court did not err in refusing to exclude her statement on this basis. The admission of Petitioner's

subsequent incriminating statements did not violate her Fifth Amendment rights.

FOOTNOTES

2 Petitioner claims that a reasonable person would not have felt free to leave the hospital at the time of

interrogation. Dkt. No. 1, p. 18 (Pg. ID 18). However, the record reflects that Petitioner felt free enough to

terminate the interview when Reed told her she was not under arrest. The record reflects that petitioner

freely left the interview, but remained for a period of time at the hospital as a matter of hospital protocol.

Petitioner further claims that her statement should have been suppressed because she invoked her right

to counsel.

When an [*15] accused invokes his or her right to counsel during custodial interrogation, that

interrogation must cease until counsel is made available, unless the accused initiates further conversation

with the police. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981). The

(,rule in Edwards is considered "a corollary to Miranda's admonition that '[i]f the individual states that he

wants an attorney, the interrogation must cease until an attorney is present." Arizona v. Roberson, 486

U.S. 675, 680, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988) (quoting Miranda, 384 U.S. at 474). The

rationale behind Edwards is that once the accused informs law enforcement officials "he is not capable of

undergoing [custodial] questioning without advice of counsel," "any subsequent waiver that has come at

the authorities' behest, and not at the suspect's own instigation, is itself the product of the 'inherently

compelling pressures' and not the purely voluntary choice of the suspect." Maryland v. Shatzer, 559 U.S.

98, 130 S. Ct. 1213, 1219, 175 L. Ed. 2d 1045 (2010) (quoting Roberson, 486 U.S. at 681).

A number of courts have held that the rule established in Edwards is applicable only if a person is

subjected to an interrogation while in police custody. See Burket v. Angelone, 208 F.3d 172, 197 (4th Cir.

2000) (petitioner "could not invoke the protections provided by Miranda," including the right to counsel,

"because he was not 'in custody' at the time he stated 'I think I need a lawyer"); United States v. Wyatt,

179 F.3d 532, 538 (7th Cir. 1999) ("The Fifth Amendment right to counsel safeguarded by [*16]

Miranda cannot be invoked when a suspect is not in custody, even if in anticipation of future custodial

interrogation."); United States v. Bautista, 145 F.3d 1140, 1147 (10th Cir. 1998) ("[I]n order to implicate

the Miranda-Edwards right to counsel prophylaxis, both a custodial situation and official interrogation are

required."); Alston v. Redman, 34 F.3d 1237, 1244 (3th Cir. 1994) ("Miranda is not implicated" absent

!both a custodial setting and official interrogation"); Tukes v. Dugger, 911 F.2d 508, 515 (11th Cir. 1990)

("Where the prisoner is not in custody, the Edwards and Roberson concerns are not triggered because the

non-custodial defendant is free to refuse to answer police questions, free to leave the police station and

go home, and free to seek out and consult a lawyer"); U.S. v. Assi, 512 F. Supp. 2d 1047, 1055 (E.D.

Mich. 2007) (Rosen, J.) (finding where suspect was admittedly not under arrest during questioning by

federal agents, and agents had informed suspect that he was free to conclude questioning at any time,

interview was non-custodial, and suspect had no right to counsel during it); United States v. Ridley, 199

F. Supp. 2d 704, 713 (S.D. Ohio 2001) (defendant's alleged question to FBI agent before being

questioned at the F81 offices, in which he asked agent whether he needed a lawyer, was insufficient to

invoke defendant's right to counsel under Miranda; defendant was not in custody); Trapani v. Stovall, No.

04-CV-72821-DT, 2006 U.S. Dist. LEXIS 2801, 2006 WL 123784, *9 (E.D. Mich. January 17, [*17]

2006) (Tarnow, J.) ("Because petitioner was not subjected to custodial interrogation in this case, the

dictates of Edwards do not apply"); see also United States v. Martin, 95 F.App'x. 169, 178, n.8 (6th Cir.

2004) ("Martin's claim may also fail for the additional independent reason that since Martin was not in

custody for purposes of Miranda when he made his initial phone call to his attorney, Edwards does not

apply.").

The holdings in these cases appear to be consistent with Supreme Court jurisprudence. In Montejo v.

Louisiana, 556 U.S. 778, 129 S. Ct. 2079, 173 L. Ed. 2d 955 (2009), the Supreme Court overruled their

previous decision in Michigan v. Jackson, 475 U.S. 625, 106 S. Ct. 1404, 89 L. Ed. 2d 631 (1986), which

had forbid the police from initiating an interrogation of a criminal defendant once he has invoked his Sixth

Amendment right to counsel at an arraignment or similar proceeding. In Montejo, the Supreme Court

noted that:

The Miranda-Edwards regime is narrower than Jackson in one respect: The former applies only in the

context of custodial interrogation. If the defendant is not in custody then those decisions do not apply; nor

do they govern other, noninterrogative types of interactions between the defendant and the State (like

pretrial lineups). However, those uncovered situations are the least likely to pose a risk of coerced

waivers. When a defendant is not in custody, he is in control, and need [*18] only shut his door or walk

away to avoid police badgering.

Id. at 795.

The Supreme Court further observed that they had "never held that a person can invoke his Miranda

rights anticipatorily, in a context other than 'custodial interrogation' . . . ." Montejo, 556 U.S. at 797

(quoting McNeil, 501 U.S. at 182, n.3). Language in other Supreme Court cases also suggests that the

rule in Edwards applies only in the context of custodial interrogation. See McNeil, 501 U.S. at 178 (The

purpose of the Miranda-Edwards guarantee is narrower than the one protected by the Sixth Amendment

right to counsel because it relates only to custodial interrogation); Minnick v. Mississippi, 498 U.S. 146,

154, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990) ("Edwards purpose [is] to protect the suspect's right to

have counsel present at custodial interrogation").

In light of the rationale behind Edwards, the fact that the Supreme Court has suggested that Edwards

ç does not apply to non-custodial interrogations, and the fact that numerous courts, including the Sixth

Circuit and two judges within this district, have concluded that Edwards applies only if a person is

subjected to a custodial interrogation, Petitioner is unable to show that the Michigan Court of Appeals'

rejection of her Edwards claim "was so lacking in justification that there was an error well understood and

comprehended in existing [*19] law beyond any possibility for fairminded disagreement." Harrington v.

Richter, 562 U.S. at 103. The extension of Miranda and Edwards "outside of the context of custodial

interrogation, would diminish the 'bright-line' nature of the Supreme Court's Miranda jurisprudence, often

cited by the Court as one of the qualities of that body of law." Alston, 34 F.3d at 1249, n.h.

As part of her second claim, Petitioner alleges that trial counsel was ineffective for failing to call Dr. Julie

Lata to testify at the Walkers hearing in support of her claim that she was in custody at the time of the

police interviews. Petitioner contends that Dr. Lata would have testified that she dictated a medical report

on Petitioner the day of LFW's injuries demonstrating that Petitioner was in custody on the day of the

police interviews.

FOOTNOTES

3 People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965).

To show that he or she was denied the effective assistance of counsel under federal constitutional

standards, a defendant must satisfy a two prong test. First, the defendant must demonstrate that,

considering all of the circumstances, counsel's performance was so deficient that the attorney was not

functioning as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S.

668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). In so doing, the defendant must overcome a strong

presumption that counsel's behavior lies within [*20] the wide range of reasonable professional

assistance. Id. First, Petitioner must overcome the presumption that, under the circumstances, the

challenged action might be sound trial strategy. Strickland, 466 U.S. at 689. Second, Petitioner must show

that such performance prejudiced his or her defense. Id. To demonstrate prejudice, Petitioner must show

that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the

proceeding would have been different." Strickland, 466 U.S. at 694. The Supreme Court's holding in

Strickland places the burden on the petitioner who raises a claim of ineffective assistance of counsel, and

not the state, to show a reasonable probability that the result of the proceeding would have been

different, but for counsel's allegedly deficient performance. See Wong V. Belmontes, 558 U.S. 15, 27, 130

S. Ct. 383, 175 L. Ed. 2d 328 (2009).

On habeas review, "the question 'is not whether a federal court believes the state court's determination'

under the Strickland standard 'was incorrect but whether that determination was unreasonable—a

substantially higher threshold." Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S. Ct. 1411, 173 L. Ed. 2d

251 (2009) (quoting Schriro v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933, 167 L. Ed. 2d 836 (2007)).

"The pivotal question is whether the state court's application of the Strickland standard was unreasonable.

This is different from asking whether defense counsel's performance fell [*21] below Strickland's

standard." Harrington v. Richter, 562 U.S. at 101. Indeed, "because the Strickland standard is a general

standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied

that standard." Knowles, 556 U.S. at 123 (citing Yarborough v. Alvarado, 541 U.S. at 664).

Pursuant to the § 2254(d)(1) standard, a "doubly deferential judicial review" applies to a Strickland claim

brought by a habeas petitioner. Id. This means that on habeas review of a state court conviction, "a state

court must be granted a deference and latitude that are not in operation when the case involves review

under the Strickland standard itself." Harrington, 562 U.S. at 101. "Surmounting Strickland's high bar is

never an easy task." Id. at 105 (quoting Padilla v. Kentucky, 559 U.S. 356, 371, 130 S. Ct. 1473, 176 L.

Ed. 2d 284 (2010)).

In addition, a reviewing court must not merely give defense counsel the benefit of the doubt, but must

also affirmatively entertain the range of possible reasons that counsel may have had for proceeding as he

or she did. Cullen v. Pinholster, 563 U.S. 170, 196, 131 S. Ct. 1388, 179 L. Ed. 2d 557 (2011).

Petitioner contends that trial counsel was ineffective by not calling Dr. Julie Lata to testify in connection

with a medical report that she dictated around the time of the police interviews. Dkt. No. 1, p. 17 (Pg. ID

r 17). The Michigan Court of Appeals rejected Petitioner's claim finding that such testimony would have

been more damaging than [*22] helpful to Petitioner's case as follows:

Defendant's claim is premised on an excerpt from a report prepared by Dr. Lata during defendant's

hospitalization. Dr. Lata's report states in part:

While the patient was in the emergency department, she had multiple question and answer periods which

occurred with the medical examiner as well as the police department regarding her stepdaughter. The

patient was becoming somewhat agitated as she was awaiting being medically cleared and receiving these

interviews; however, per the police department, the patient could not get [sic] leave the emergency

department until she was medically clear, and they needed to be notified prior to her official discharge.

While the patient was waiting, she did become agitated, and she attempted to leave and remove her IV.

The police were in the emergency department and told her that she needed to be detained.

Dr. Lata's report does indicate that the police told defendant that she was being detained. However, it is

not clear that was all the police said—they might have explained that she was being detained because she

had not been medically cleared. Accordingly, the report does not establish that defendant was

being [*23] held by the police rather than by hospital authorities. Further, Dr. Lata's report indicates

that the police told defendant that she was being detained when defendant was removing her IVs.

Evidence at the suppression hearing indicated that this incident occurred after defendant had spoken to

both officers and just before defendant was released from the hospital—not when defendant was talkng to

Officer Reed and before she spoke to Officer Yax. Moreover, despite Dr. Lata's indication that the police

told defendant that she was being detained, the trial court found that defendant "told Police Officer Reed

she was going to leave because she was not under arrest" and defendant did in fact leave. This finding is

supported by defendant's own testimony and thus is not clearly erroneous. Therefore, it is not reasonably

probable that had Dr. Lata testified at the suppression hearing, the trial court would have found that

defendant was in custody. Accordingly, we reject defendant's ineffective assistance of counsel claim.

King, 2014 Mich. App. LEXIS 580, 2014 WL 1320155, *5 (Mich. Ct. App. Apr. 1, 2014)

Petitioner has not submitted an affidavit from Dr. Julie Lata, to indicate what this witness's testimony

would be, nor did Petitioner submit any affidavit from Dr. Lata to the [*24] state courts. Dr. Lata's

medical report is hearsay and does not establish that Dr. Lata would have actually testified to any facts to

establish Petitioner was in custody and not free to leave the police interviews. This contention also

contradicts Petitioner's statement that "she was going to leave because she was not under arrest" and the

fact that Petitioner did in fact leave. Id.

Conclusory allegations of ineffective assistance of counsel, without any evidentiary support, do not provide

a basis for habeas relief. See Workman v. Bell, 178 F.3d 759, 771 (6th Cir. 1998). By failing to present

any evidence to the state courts in support of her ineffective assistance claim, Petitioner is not entitled to

an evidentiary hearing on her ineffective assistance of counsel claim with this Court. See Cooey v. Coyle,

289 F.3d 882, 893 (6th Cir. 2002) (citing 28 U.S.C. § 2254(e)(2)(A)(ii)). Petitioner has not offered, either

to the Michigan courts or to this Court, any evidence beyond her own assertions as to whether Dr. Lata

would have been able to testify and what the content of this witness's testimony would have been. In the

absence of such proof, Petitioner is unable to establish that she was prejudiced by counsel's failure to call

Dr. Lata to testify at trial, so as to support the second prong of an ineffective assistance [*25] of counsel

claim. See Clark v. Wailer, 490 F.3d 551, 557 (6th Cir. 2007).

Petitioner admitted at the Walket-4 hearing that the officers told her that she was not under arrest, and she

ultimately left. Jr. 2/22/2012, pp. 19, 24). Dr. Lata's report states that Petitioner was somewhat agitated

while she awaited medical clearance to leave the emergency room. King, No. 309974, 2014 Mich. App.

LEXIS 580, 2014 WL 1320155, *5 If called to testify, Dr. Lata's testimony may have supported the

prosecution's contention that Petitioner had been "detained" because she had not been given a medical

clearance by the medical staff. Petitioner has failed to show that trial counsel's failure to subpoena Dr.

Lata was anything other than sound trial strategy. Petitioner is not entitled to relief on her second claim.

FOOTNOTES

4 People v. Walker, 374 Mich. 331, 132 N.W.2d 87 (1965).

C. Claim # 3: The sentencing guideline claim.

Petitioner alleges that she should be resentenced because the trial court failed to score sentencing

guidelines for her CSC I and child-abuse convictions. Dkt. No. 1, P. 18 (Pg. ID 18).

State courts are the final arbiters of state law. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S. Ct. 602,

163 L. Ed. 2d 407 (2005); Sanford v. Yukins, 288 F.3d 855, 860 (6th Cir. 2002). Therefore, claims which

arise out of a state trial court's sentencing decision are not normally cognizable on federal habeas review,

unless the habeas petitioner can show that the sentence imposed exceeded the statutory limits [*26] or

is wholly unauthorized by law. See V/let v. Renico, 193 F. Supp. 2d 1010, 1014 (E.D. Mich. 2002). A

sentence imposed within the statutory limits is not generally subject to habeas review. Townsend v.

Burke, 334 U.S. 736, 741, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948); Cook v. Stegall, 56 F. Supp. 2d 788,

797 (E.D. Mich. 1999). Petitioner's claim that the state trial court incorrectly scored or calculated her

sentencing guidelines range under the Michigan Sentencing Guidelines is not a cognizable claim for federal

habeas review, because it is a state law claim. See Tironi v. Birkett, 252 F. App'x. 724, 725 (6th Cir.

2007) (unpublished); Howard v. White, 76 F. App'x. 52, 53 (6th Cir. 2003) (unpublished); McPhail v.

Renico, 412 F. Supp. 2d 647, 656 (E.D. Mich. 2006). Errors in the application of state sentencing

guidelines cannot independently support habeas relief. See Kissner v. Palmer, 826 F.3d 898, 904 (6th Cir.

2016). Petitioner had "no state-created interest in having the Michigan Sentencing Guidelines applied

rigidly in determining sentence." See Mitchell v. Vasbinder, 644 F. Supp. 2d 846, 867 (E.D. Mich. 2009).

"[I]n short, petitioner had no federal constitutional right to be sentenced within Michigan's guideline

minimum sentence recommendations." Doyle v. Scutt, 347 F. Supp. 2d 474, 485 (E.D. Mich. 2004). Any

error by the trial court in calculating Petitioner's guideline score would not merit habeas relief. Id.

Petitioner's claim that the state trial court improperly departed above the correct sentencing guidelines

range would thus not entitle her to habeas relief, because such a departure does not violate any of the

Petitioner's federal due process rights. Austin v. Jackson, 213 F.3d 298, 301 (6th Cir. 2000). Petitioner is

not entitled to habeas relief on her [*27] sentencing claim.

CONCLUSION

The Court will deny the petition for a writ of habeas corpus. The Court will also deny a certificate of

appealability. In order to obtain a certificate of appealability, a prisoner must make a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To demonstrate this denial, the applicant is

required to show that reasonable jurists could debate whether, or agree that, the petition should have

been resolved in a different manner, or that the issues presented were adequate to deserve

encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S. Ct. 1595, 146 L. Ed.

2d 542 (2000). When a district court rejects a habeas petitioner's constitutional claims on the merits, the

petitioner must demonstrate that reasonable jurists would find the district court's assessment of the

constitutional claims to be debatable or wrong. Id. at 484. "The district court must issue or deny a

certificate of appealability when it enters a final order adverse to the applicant." Rules Governing § 2254

Cases, Rule 11(a), 28 U.S.C. foil. § 2254.

For the reasons stated in this opinion, the Court will deny Petitioner a certificate of appealability because

reasonable jurists would not find this Court's assessment of Petitioner's claims to be debatable or wrong.

Johnson v. Smith, 219 F. Supp. 2d 871, 885 (E.D. Mich. 2002).

The Court will also deny Petitioner [*28] leave to appeal in forma pauperis, because the appeal would be

frivolous. Allen v. Stovall, 156 F. Supp. 2d 791, 798 (E.D. Mich. 2001).

ORDER

Based upon the foregoing, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED

WITH PREJUDICE.

IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

IT IS FURTHER ORDERED that leave to appeal in forma pauperis is DENIED.

Dated: March 20, 2017

/sf Gershwin A Drain

HON. GERSHWIN A. DRAIN

UNITED STATES DISTRICT JUDGE

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APPENDIX C

People v King, No. 149345 (2014) Michigan Supreme Court.

497 Mich. 903; 856 N. W.2d 45;

2014 Mich. LEXIS 2230, *

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RENEE MARIE KING, Defendant-Appellant.

SC: 149345

SUPREME COURT OF MICHIGAN

497 Mich. 903; 856 N.W.2d 45; 2014 Mich. LEXIS 2230

November 25, 2014, Decided

PRIOR HISTORY: [*1] COA: 309974. Macomb CC: 2011-001495-FC.

People v. King, 2014 Mich. App. LEXIS 580 (Mich. Ct. App., Apr. 1, 2014)

JUDGES: Robert P. Young, Jr., Chief Justice. Michael F. Cavanagh, Stephen J. Markman, Mary Beth Kelly,

Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Justices.

[I] l 4

(s] I

Order

On order of the Court, the application for leave to appeal the April 1, 2014 judgment of the Court of

Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented

should be reviewed by this Court.

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APPENDIX D

People v Kina, No. 309974 (2014) Michigan Court of Appeals

2014 Mich. App. LEXIS 580, *

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RENEE MARIE KING, Defendant-Appellant.

COURT OF APPEALS OF MICHIGAN

2014 Mich. App. LEXIS 580

April 1, 2014, Decided

NOTICE: THIS IS AN UNPUBLISHED OPINION. IN ACCORDANCE WITH MICHIGAN COURT OF APPEALS

RULES, UNPUBLISHED OPINIONS ARE NOT PRECEDENTIALLY BINDING UNDER THE RULES OF STARE

DECISIS.

SUBSEQUENT HISTORY: Leave to appeal denied by People v. King, 2014 Mich. LEXIS 2230 (Mich., Nov.

25, 2014)

PRIOR HISTORY: [*1]

Macomb Circuit Court. LC No. 2011-001495-FC.

CORE TERMS: custody, arrest, emergency, ineffective assistance of counsel, interrogation, admissible,

suppress, accidentally, detained, child abuse, sentence, patient, sentence imposed, free to leave,

prejudicial, interviewed, probative, custodial, guidelines, departure, unfairly, spoke, police told, security

personnel, deliberately, suppression, medically, murder conviction, sexual conduct, abuse of discretion

JUDGES: Before: GLEICHER, P.)., and SAAD and FORT HOOD, J). GLEICHER, J., (concurring in part and

dissenting in part.).

OPINION

PER CURIAM.

A jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), first degree criminal sexual

conduct (CSC), MCL 750.520b(1)(a), and first-degree child abuse, MCL 750.136b(2). The trial court

sentenced defendant to mandatory life imprisonment for the murder conviction and to concurrent prison

terms of 30 to 50 years for the first-degree CSC conviction and 86 to 180 months for the first-degree child

abuse conviction. Defendant appeals her sentence and claims: (1) that the trial court violated her due

process rights; (2) that the trial court erred when it failed to suppress a statement she gave to a police

officer; and (3) ineffective assistance of counsel. For the reasons stated below, we affirm.

I. FACTS

The jury found that defendant killed her two-year-old stepdaughter, LFW. Defendant was home alone with

LFW. A few hours later, after a 911 call, emergency personnel arrived at defendant's house and

discovered that the child was dead. Medical evidence indicated that the child had multiple contusions

about her [*2] body, including at least 20 different areas of bruising to the head. She also had a serious

injury to her vagina and perineum. The medical examiner determined that the child died from

cardiorespiratory arrest as a result of the head injuries and classified the death as a homicide. Defendant

claimed that the child's injuries were inflicted accidentally when defendant was holding her and dropped

her, or when defendant fell while holding her, or both.

I II. ANALYSIS

MRE 404(B)

Defendant argues that the trial court violated her due process rights by admitting other acts evidence

under MRE 404(b)(1). A defendant has a constitutional right to a fair trial. People v Conley, 270 Mich App

301, 307; 715 NW2d 377 (2006). While this right can be violated by the admission of unfairly prejudicial

evidence, People v Starr, 217 Mich App 646, 648; 553 NW2d 25 (1996), rev'd on other grounds 457 Mich

490 (1998), evidentiary errors are generally considered nonconstitutional. People v Blackmon, 280 Mich

App 253, 260; 761 NW2d 172 (2008). A preserved issue regarding the admission of evidence is reviewed

for an abuse of discretion. People v Hine, 467 Mich 242, 250; 650 NW2d 659 (2002). An abuse of

discretion [*3] occurs when the trial court selects an outcome that is outside the range of reasonable and

principled outcomes. People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007).

Under MRE 404(b)(1), evidence of other crimes, wrongs or acts is not admissible to prove the character of

a person to show action in conformity therewith. Thus, if the sole purpose in offering the evidence is to

show the defendant's propensity for particular conduct based on his or her character as inferred from

other wrongful conduct, it is not admissible. People v Gimotty, 216 Mich App 254, 259; 549 NW2d 39

(1996). It is admissible, however, for another purpose, "such as proof of motive, opportunity, intent,

preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or

accident" if that purpose is material. MRE 404(b)(1).

To be admissible pursuant to MRE 404(b)(1), other-acts evidence must meet three requirements: (1) it

must be offered for a proper purpose; (2) it must be relevant; and (3) its probative value must not be

substantially outweighed by the danger of unfair prejudice. People v Knox, 469 Mich 502, 509; 674 NW2d

366 (2004). The fact that evidence is damaging does [*4] not mean it is unfairly prejudicial because

"[a]y relevant testimony will be damaging to some extent." Sc/a fani v Peter S Cusimano, Inc, 130 Mich

App 728, 735-736; 344 NW2d 347 (1983). Evidence is unfairly prejudicial if there is a danger that

marginally probative evidence will be given undue weight by the jury, People v Ortiz, 249 Mich App 297,

306; 642 NW2d 417 (2001), when it would lead the jury to decide the case on an improper basis such as

emotion, People v Meadows, 175 Mich App 355, 361; 437 NW2d 405 (1989), or when it would be

inequitable to allow the use of the evidence, People v Blackston, 481 Mich 451, 462; 751 NW2d 408

(2008). If the evidence is admissible, the trial court may provide a limiting instruction upon request. Knox,

469 Mich at 509. "Such a limiting instruction protects a defendant's right to a fair trial." People v Kahley,

277 Mich App 182, 185; 744 NW2d 194 (2007).

LFW died from blunt force trauma to the head. A principal issue at trial was whether that trauma was

inflicted deliberately or whether the victim's injuries were accidentally caused. Defendant gave conflicting

accounts of the falls and said both that she accidentally dropped the child and that she [*5] had

accidentally fallen while holding the child. The prosecutor was allowed to introduce evidence that

defendant had previously struck the child in the face deliberately. Evidence that defendant previously

injured the child by deliberately striking her in the head made it somewhat less likely that she accidentally

injured the child in the head by dropping her. Therefore, the evidence was relevant for a proper purpose

other than propensity. Given the horrific nature of the injuries the child sustained while in defendant's

custody, it is highly unlikely that the jury would have been distracted by, or given undue weight to,

evidence that defendant once bloodied the child's nose by slapping her. Therefore, the probative value of

the evidence was not substantially outweighed by the danger of unfair prejudice. Consequently, the trial

court did not abuse its discretion in admitting the evidence.

MOTION TO SUPPRESS

Defendant also says that the trial court erred in failing to suppress the statement she gave to Officer Yax

while she was in the hospital. In reviewing a trial court's determination on a motion to suppress a

confession, this Court reviews the record de novo but will defer to the [*6] trial court's factual findings

unless they are clearly erroneous. People v Harris, 261 Mich App 44, 53; 680 NW2d 17 (2004). A finding is

clearly erroneous when, although there is evidence to support it, this Court is left with a definite and firm

conviction that a mistake has been made. People v Lanzo Constr Co, 272 Mich App 470, 473; 726 NW2d

746 (2006). However, if resolution of a disputed fact depends on the credibility of the witnesses or the

weight of the evidence, this Court will defer to the trial court's determination. Id.; People v Sexton (After

Remand), 461 Mich 746, 752; 609 NW2d 822 (2000).

"Both the state and federal constitutions guarantee that no person shall be compelled to be a witness

against himself or herself." People v Cortez (On Remand), 299 Mich App 679, 691; 832 NW2d 1 (2013).

"Miranda' warnings are not required unless an individual is subjected to custodial interrogation." People v

Roberts, 292 Mich App 492, 504; 808 NW2d 290 (2011). "Custodial interrogation means questioning

initiated by law enforcement officers after a person has been taken into custody," which the police should

know is reasonably likely to elicit an incriminating response from the defendant. [*7] People v Anderson,

209 Mich App 527, 532-533; 531 NW2d 780 (1995). A person is in custody where the "person has been

formally arrested or subjected to a restraint on freedom of movement of the degree associated with a

formal arrest." People v Peerenboom, 224 Mich App 195, 197; 568 NW2d 153 (1997). Whether the

defendant was in custody depends on the totality of the circumstances. People v Zahn, 234 Mich App 438,

449; 594 NW2d 120 (1999). "The determination of custody depends on the objective circumstances of the

interrogation rather than the subjective views harbored by either the interrogating officers or the person

being questioned." Id. The key question is whether the defendant "reasonably could have believed that he

was not free to leave." Id.

FOOTNOTES

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

"The Fifth Amendment protection against compelled self-incrimination provides the right to counsel at

custodial interrogations." Michigan v Jackson, 475 U.S. 625, 629; 106 S Ct 1404; 89 L Ed 2d 631 (1986),

overruled in part on other grounds by Montejo v Louisiana, 556 U.S. 778, 796; 129 S Ct 2079; 173 L Ed

2d 955 (2009). A defendant who is in custody and who has "expressed [*8] his desire to deal with the

police only through counsel, is not subject to further interrogation by the authorities until counsel has

been made available to him, unless the [defendant] himself initiates further communication, exchanges,

or conversations with the police." Edwards v Arizona, 451 U.S. 477, 484-485; 101 S Ct 1880; 68 L Ed 2d

378 (1981).

Defendant was interviewed at the hospital by Officer Reed and then by Officer Yax. Reed did not advise

defendant of her rights before questioning her. Nevertheless, defendant claims that she asked for counsel

while speaking with Officer Reed. Defendant must be in custody in order to invoke her right to counsel,

see, e.g., 8urket v Angelone, 208 F3d 172, 197 (CA 4, 2000); United States v Wyatt, 179 F3d 532, 537

(CA 7, 1999), and defendant claims that she was in custody at the time that she spoke to Officer Reed. A

defendant who is questioned at a hospital generally is not in custody if she is not under arrest and is not

otherwise restrained or prevented from leaving by the police. See, e.g., People v Kulpinski, 243 Mich App

8, 25; 620 NW2d 537 (2000), Peerenboom, 224 Mich App at 197-198, and People v Gilbert, 8 Mich App

393, 397-398; 154 NW2d 800 (1967).

At [*9] the suppression hearing, the evidence showed that defendant was at the hospital emergency

room, and not interviewed at the police station. This finding is supported by the testimony of Officer Reed

and defendant, who both stated that they spoke while defendant was in the hospital. The trial court found

that defendant was at the hospital for medical treatment. This finding is supported by defendant's

mother's testimony that she had to leave defendant's bedside because defendant "was going through tests

and different things." The trial court found that defendant "was free to leave and in fact did leave the

hospital," and this finding is supported by Officer Reed's testimony that he did not place defendant under

arrest and that she was free to leave and by defendant's testimony that she left after Officer Reed told her

she was not under arrest. While defendant initially testified that Officer Reed threatened to harm her if she

tried to leave, the trial court rejected that testimony, finding that defendant's credibility on that point was

"suspect," in part because that testimony was contradicted by defendant's later testimony that she left

after Officer Reed told her she was not under [*10] arrest. The trial court found that "[a]ny security that

was present was due primarily to the family altercations in the hospital, not to restrain the defendant and

there was no evidence that the police were in any way acting as security." This finding is supported by

Officer Reed's testimony that he did not know why hospital security personnel were involved and by

defendant's mother's testimony that hospital security personnel had locked the doors to the emergency

treatment area, apparently as part of the response to a family altercation in which some people had

threatened to kill defendant. No one testified that hospital security personnel were acting at the behest of

police. Given these findings, the trial court did not clearly err in finding that defendant was not in custody

when Officer Reed interviewed her at the hospital.

C. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant claims that her trial counsel was ineffective for failing to call Dr. Julie Lata, whose testimony

defendant contends would have mandated a contrary result regarding her motion to suppress. Because

defendant did not raise the issue of ineffective assistance of counsel in a motion for a new trial or request

for an evidentiary [*11] hearing in the trial court, our review of this issue is limited to errors apparent

from the record. People v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002); People v Snider, 239

Mich App 393, 423; 608 NW2d 502 (2000).

To establish a claim of ineffective assistance of counsel, the defendant must "show both that counsel's

performance fell below objective standards of reasonableness, and that it is reasonably probable that the

results of the proceeding would have been different had it not been for counsel's error." People v Frazier,

478 Mich 231, 243; 733 NW2d 713 (2007). The general rule is that effective assistance of counsel is

presumed and the defendant bears a heavy burden of proving otherwise. People v Eloby (After Remand),

215 Mich App 472, 476; 547 NW2d 48 (1996). "Decisions regarding what evidence to present and whether

to call or question witnesses are presumed to be matters of trial strategy. This Court will not substitute its

judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel's competence

with the benefit of hindsight." People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999) (citations

omitted). "Ineffective assistance of counsel [*12] may be established by the failure to call witnesses only

if the failure deprives defendant of a substantial defense." People v Julian, 171 Mich App 153, 159; 429

NW2d 615 (1988). "A substantial defense is one that might have made a difference in the outcome of the

trial." People v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990).

Defendant's claim is premised on an excerpt from a report prepared by Dr. Lata during defendant's

hospitalization. Dr. Lata's report states in part:

While the patient was in the emergency department, she had multiple question and answer periods which

occurred with the medical examiner as well as the police department regarding her stepdaughter. The

patient was becoming somewhat agitated as she was awaiting being medically cleared and receiving these

interviews; however, per the police department, the patient could not get [sic] leave the emergency

department until she was medically clear, and they needed to be notified prior to her official discharge.

While the patient was waiting, she did become agitated, and she attempted to leave and remove her IV.

The police were in the emergency department and told her that she needed to be detained.

Dr. Lata's report does [*13] indicate that the police told defendant that she was being detained.

However, it is not clear that was all the police said—they might have explained that she was being

detained because she had not been medically cleared. Accordingly, the report does not establish that

defendant was being held by the police rather than by hospital authorities. Further, Dr. Lata's report

indicates that the police told defendant that she was being detained when defendant was removing her

IVs. Evidence at the suppression hearing indicated that this incident occurred after defendant had spoken

to both officers and just before defendant was released from the hospital—not when defendant was talking

to Officer Reed and before she spoke to Officer Yax. Moreover, despite Dr. Lata's indication that the police

told defendant that she was being detained, the trial court found that defendant "told Police Officer Reed

she was going to leave because she was not under arrest" and defendant did in fact leave. This finding is

supported by defendant's own testimony and thus is not clearly erroneous. Therefore, it is not reasonably

probable that had Dr. Lata testified at the suppression hearing, the trial court would have [*14] found

that defendant was in custody. Accordingly, we reject defendant's ineffective assistance of counsel claim.2

FOOTNOTES

2 Defendant says that the trial court erred in failing to score the sentencing guidelines for the CSC and

child abuse convictions. It is unclear if defendant also challenges the sentence imposed for the CSC

conviction as being a departure from the appropriate guidelines range. Regardless, both issues are moot

because defendant is serving a mandatory life sentence for her first-degree murder conviction and any

lesser sentence, within the guidelines range or not, is necessarily subsumed within the life sentence,

which "effectively nullifies the significance of any sentences" imposed on the lesser offenses. People v

Watkins, 209 Mich App 1, 5; 530 NW2d 111 (1995). Therefore, defendant is not entitled to any relief.

People v Poole, 218 Mich App 702, 719; 555 NW2d 485 (1996).

Affirmed.

Is! Henry William Saad

is! Karen M. Fort Hood

CONCUR BY: GLEICHER (In Part)

DISSENT BY: GLEICHER (In Part)

DISSENT

GLEICHER, 3., (concurring in part and dissenting in part.)

I concur with the majority's resolution of defendant's challenges to her convictions. I write separately to

express my belief that the trial court erred by failing [*15] to score defendant's convictions for firstdegree criminal sexual conduct (CSC), MCL 750.520b(1)(a), and first-degree child abuse, MCL

750.136b(2). See People vJohnigan, 265 Mich App 463, 467; 696 NW2d 724 (2005) (Sawyer, 3.), and

People v Getscher, 478 Mich 887; 731 NW2d 768 (2007) (Markman, 3., dissenting).

Additionally, because the sentence imposed for the CSC conviction qualified as an upward departure, the

trial court was obligated to articulate substantial and compelling reason for the departure sufficient to

permit appellate review. People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). I would remand for

the accomplishment of that task.

is! Elizabeth L. Gleicher

•

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.