-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED February 2, 2016

v No. 324199 St. Clair Circuit Court MANUEL FRANCISCO GAMEZ, LC No. 14-000185-FC

Defendant-Appellant.

Before: S HAPIRO , P.J., and O’C ONNELL and B ORRELLO , JJ.

P ER C URIAM

. Defendant appeals by right his jury-trial convictions of two c ounts of premeditated firstdegree murder, MCL 750.316, one count of first-degree criminal sexual conduct (CSC-I), MCL 750.520b (multiple variables), and two counts of torture, MCL 7 50.85. Defendant was sentenced as a habitual offender, third offense, MCL 769.11, to two sente nces of life imprisonment for the first-degree murder convictions, 30 to 50 years’ for the CSC-I conviction, and two sentences of 30 to 50 years’ imprisonment for each of the torture conviction s. For the reasons set forth in this opinion, we affirm.

A. FACTS

Defendant’s convictions arise outof the strangulation murder and sexual assault of Melissa Ichenberg and the stabbing murder of her roommate Danny McRoberts on the night of July 29, 2013, in Port Huron. O n July 30, 2013, neighbors disc overed the victims’ bodies in the bathtub of Ichenberg’s home afte r Ichenberg’s six-year old daug hter AI informed neighbors that her mother and “Manny” were asleep and would not awaken.

When police arrived at the crime scene, the interior of the ho me showed signs that someone attempted to clean up the scene. The linoleum tile flo or in the kitchen area was wiped clean and there were bare or sock-clad footprints over the top of the wiped areas. There were multiple bloodstains throughout the home. Police preserved a b lood stain that they discovered inside a kitchen drawer. Subseq uent testing showed that the bl ood in the drawer matched defendant’s DNA profile and a print expert testified that a foo tprint on the kitchen floor matched defendant’s footprint.

Detective Karen Brisby conducted a forensic interview of six-y ear-old AI shortly after the murders. AI explained to Brisby that on the night of the m urders, her mother’s “weird-2- friend” came over. The friend was “weird” because AI did not k now him, but at one point AI referred to the friend as “Manuel.” The “weird friend” was sit ting on her mother’s bed. AI’s mother told her it was time for bed and she went to bed. The “ weird friend” was still there when she went to bed. The next morning, AI awakened and went to use the bathroom where she saw “a man and mommy sleeping in the bathtub.” During a subsequentinterview, AI stated that she “never heard mommy scream like that before.”

Dr. Daniel Spitz, St. Clair County Chief Medical Examiner, per formed the autopsies on the two victims. Dr. Spitz testified that Melissa had various abrasions and scrapes on her skin and bruises to her lower face and neck. Melissa had injuries t o her neck that were indicative of manual strangulation and of ligat ure strangulation and he liste d strangulation as the cause of death. Melissa’s various injur ies were indicative of a struggl e and she had numerous injuries to her face, chin, neck, torso, upper chest, and extremities. Mel issa suffered injuries to her mouth and lips that were consistent with a hand being placed over her mouth. Melissa’s back showed signs of extensive trauma from her neck down to her buttocks an d she suffered injuries to her scalp, which indicated that she suffered blows to the head. Me lissa suffered small tears to the mucosa or lining of the anal cavity.

McRoberts suffered multiple stab and incise wounds to the face , neck and torso and had defensive wounds to the upper extremities. In total, McRoberts had 42 knife wounds to his body and Dr. Spitz testified that one of the wounds penetrated clear through McRoberts neck, indicating that the knife used in the assault had to have been at least five-inches in length. Dr. Spitz agreed that knife tip marks on linoleum tile at the crime scene could have been caused by the stabbings that wen t through McRoberts’ neck.

Dr. Spitz reviewed photographs that police took of defendant acouple days after the murders. Dr. Spitz testified that defendant had sharp force in juries to the palm of his hand and had some “incised wounds.” The injuries were consistent with l osing control of a knife and the hand having come into contact w ith the knife blade. The wounds were not defensive in nature.

A prosecution witness testified that sometime before the murde rs, Melissa expressed her concern that defendant was stalking her. Melissa did not want to go to the police because she was dating defendant’s brother Jose Gamez and did not want to c ause “family drama.”

During the days immediately aft er the murder, defendant made s tatements to several friends and family members that showed that he had information about the murders. Aimee Feiler testified that she knew me mbers of defendant’s family be cause she previously dated defendant’s brother Jose. Feiler explained that during the sum mer of 2013, Jose and Melissa were involved in a dating relationship. Jose lived in Port Hur on with two of his children and with defendant and Minerba Gamez, who were both his siblings. Feiler was friends with Minerba and she would stop by Jose’s house on occasion. During the early evening hours of July 29, 2013, Feiler picked up Minerba at Jose’s home at appro ximately 3 or 4 p.m. Minerba planned to spend the night at Feiler’s hous e and defendant, who did not own a car, asked Feiler if he could ride along because he was going to do a tattoo for som eone “on the north side.” Feiler agreed, and defendant put his bicycle in the back of Feiler’s p ickup truck and the three drove to Feiler’s residence. Defendant stayed at Feiler’s residence for about 30 or 45 minutes and then took his bag of tattoo equipment and rode away on his bicycle. Several of Melissa’s neighbor’s-3- testified at trial that they noticed an unfamiliar bike parked outside Melissa’s home on the night of the murders.

Feiler testified that on July 31, 2013, defendant spoke of the murders to both her and Minerba. Defendant stated that he went to Melissa’s house on J uly 29, 2013, to do a tattoo, but Melissa did not have any money for the tattoo. Defendant state d that he and Melissa eventually had consensual sex, but stated that he used a condom and then f lushed it down the toilet. Defendant stated that Melissa was fine when he left her house l ate in the evening, but he recalled seeing two men standing outside near the home. According to Fe iler, defendant was “paranoid” that police would find his fingerp rints inside Melissa’s home.

Jose Gamez testified that he spoke with defendant after the murders and defendant stated that he had been with Melissa on the night she was murdered. D efendant told Jose that he saw men outside Melissa’s townhome, an d Jose told defendant that he needed to go to the police.

On August 1, 2013, at about 11:30 a.m., Jose drove defendant t o the Port Huron Police Department for an interview. The interview can be broken into four distinct timeframes: (1) a conference room interview from 11:50 a.m. to about 3:30 p.m.; ( 2) a conference room interview from about 3:30 p.m. to about 6:20 p.m.; (3) a polygraph interv iew in the office of Lt. Robert Dykstra from about 6:22 p.m. until about 9:30 p.m.; (4) a post- booking interview from about 10:00 p.m. until about 12:00 a.m. The following is an overview of each portion of the interview:

PRE- MIRANDA INTERVIEW (11:50 a.m. to 3:30 p.m. 1 ):

Upon arrival at the police depa rtment, Deputy Martin Stoyan br ought defendant to a large conference room that had large windows overlooking a river wher e Stoyan and Detective Robert Kerrigan proceeded to interview defendant. Stoyan and Kerriganwere in plain clothes and interviewed defendant from 11:50 a.m. until about 3:30 p.m. (he reinafter referred to as “Conference Room Interview 1”). Neither Stoyan nor Kerrigan ap prised defendant of his Miranda 2 rights. Both Stoyan and Kerrigan testified that defendant was not in custody until about 3:30 p.m. when defendant’s parole officer entered a parol e detainer. According to the officers, prior to 3:30 p.m., defendant was free to leave. Def endant was not physically restrained and he was provided access to a restroom. From 11:50 a.m. to 3 :30 p.m., defendant did not admit to committing any crimes. According to Kerrigan, defenda nt appeared fine, he answered questions voluntarily, and he appe ared alert and did not appear to be under the influence of drugs or alcohol. When defendant repea tedly stated that he was hungr y, Kerrigan offered defendant a Power Bar, water, and an apple, but defendant declined. Defend ant did not admit to committing the crimes during this initial interview and the trial court he ld that the interview was admissible because defendant was not in custody.

PRE- MIRANDA INTERVIEW (3:30 p.m. to 6:20 p.m.):

1 The timing is approximate base d on testimony at trial and at a Walker hearing.

2 Miranda v Arizona , 384 US 436, 458; 86 S Ct 1602; 16 L Ed 2d 694 (1966).-4- At about 3:30 p.m., on Kerrigan’s request, Officer Jeremy Youn g entered the conference room to photograph cuts and injuri es that defendant had on his body. Young informed defendant that he was not going anywhere because of a parole issue. Youn g asked defendant if he was hungry and stated that some of the cadets were going to McDonal d’s and would get something for defendant. Defendant did not respond, but Young eventuallyprovided defendant with a cheeseburger meal from McDonald’s.

At a Walker 3 hearing, Young agreed that as of 3:30 p.m., defendant was in c ustody and not free to leave. However, Young did not advise defendant of his Miranda rights because he was unaware if any of the other officers had already advised de fendant of his rights.

From 3:30 p.m. until about 6:1 8 p.m., Young and Stoyan continu ed to question defendant despite having failed to advise defendant of his Miranda rights (hereinafter referred to as “Conference Room Interview 2”). During this phase of the interview, defendant’s statements became more incriminating, but he did not admit to killing eith er of the victims and he denied having sex with Melissa. At one point, defendant stated, “eith er way it goes, I am f------,” and stated that he was in “the wrong place at the wrong time.” Def endant proceeded to tell a fantastical narrative of how, at one point during the evening, he stepped outside Melissa’s house to smoke when he heard a loud “thud” inside the home. Defendan t reentered the home and, upon hearing noises, hid underneath some laundry while an unidentifi ed man stabbed McRoberts. Later, when defendant reemerged from hiding, he saw McRoberts’ dead body lying in the living room. Defendant vomited when he saw the blood and slipped in t he living room and his face, hands, and mouth became covered in blood. Defendant also state d that he saw that someone dragged McRoberts’ body upstairs to the bathtub and he saw McRo berts and Melissa in the tub at some point. Defendant turned the water off in the tub. Fearing that he would be blamed for the murder, defendant proceeded to clean the crime scene and th en left the home at 6:00 a.m.

At about 6:00 p.m., defendant accepted Young’s offer to take a polygraph test on condition that he be allowed to call his brother Jose. Young a greed and provided defendant with a telephone. Defendant made statements during the phone call that mirrored the version of events that he had just relayed to Stoyan and Young.

At a Walker hearing, the prosecution stipulat ed that Conference Room Inter view 2 was inadmissible because defendant was in custody and police interr ogated him without advising him of his Miranda rights. However, the trial court held that Miranda was not triggered even after Young told defendant he was not free to leave. The court reaso ned that even though defendant was not free to leave, there was nothing about the environment that changed to make it coercive. The court found that defendant was not subject to custodial int errogation because he was not in a “coercive, intimidating environment.” 4 The court also found that defendant’s statements during

3 People v Walker (On Rehearing) , 374 Mich 331, 338; 132 NW2d 87 (1965).

4 On appeal, the state contends that the prosecution “stipulated that it would not introduce statements from the portion of the interview between 3:30 p.m. up to and until the point where the Appellant was read his Miranda rights . . . due to the fact that the Appellant was in custody during that time.” The state f ails to comprehend that, despite the prosecutor’s stipulation, the-5- his telephone call to Jose were admissible, reasoning that thes e statements were not the result of custodial interrogation because they were not responses to ques tions from a police officer. Following the court’s ruling, apart from references to a polygr aph, at trial, the prosecution introduced the entire recordi ng and transcript of Conference Ro om Interview 2.

POLYGRAPH EXAMINATI ON (6:18 p.m. to 9:30 p.m.):

At about 6:18 p.m., Stoyan and Young transferred defendant to Lt. Robert Dykstra’s office for a polygraph examination after allowing defendant to use the restroom and refill his water bottle. Dykstra immediat ely advised defendant of his Miranda rights and defendant acknowledged he understood his righ ts and signed a waiver form. Dykstra testified at the Walker hearing that defendant did not appear deprived of food or sleep , was not taking medication, but stated that he had smoked one mar ijuana joint in the past 24 ho urs. Defendant previously had seen a psychiatrist as part of an exit interview when he was re leased from prison a couple years earlier on a different convict ion, but otherwise did not have a ny psychological issues.

Dykstra took about an hour to do a pre-test interview with def endant where defendant waived his Miranda rights. Dykstra then allowed defendant to take about a 30-min ute break while he prepared the testing equipment. Defendant went to the restroom and refilled his water bottle. After that, Dykstra conducted the polygraph examinatio n, which took about an hour.

The trial court barred any refe rence to the polygraph test at trial, 5 but allowed Dykstra to testify about the statements de fendant made during the pre and post-test interview. The court found that defendant waived his Miranda rights and voluntarily made statements to Dykstra. At trial, Dykstra testified that defendant told him that he witnes sed an intruder stab McRoberts.

POST- MIRANDA INTERVIEW (9:30 p.m. to 12:00 a.m.):

After Dykstra completed the polygraph examination, defendant w as booked. The booking process took about 30 minutes and Stoyan gave defendant a piece of pizza. Thereafter, at about 10:00 p.m., Young and St oyan continued questioning def endant in a “booking room.” At the outset, after a few que stions, Stoyan reminded defendantthat Dykstra had advised him of his Miranda rights and that defendant had signed the Miranda form. Stoyan then asked defendant “[d]o you have any more questions on that,” and defen dant replied “no,” and the interrogation continued.

After repeating his original n arrative, defendant eventually a dmitted to stabbing McRoberts, but claimed he acted in self-defense after McRoberts killed Melissa. Defendant also admitted that he had consensual sex with Melissa, but denied th at he killed her.

trial court nevertheless held th at all of defendant’s statement s were admissible and the prosecutor introduced the state ments at trial.

5 Evidence of the polygraph was not introduced at trial and none of the officers referenced the polygraph during their t rial testimonies.-6- Young testified at a Walker hearing that at about 10:30 or 10:45 p.m., defendant fell to his knees crying and admitted to stabbing McRoberts while dry-h eaving and “spitting” into a wastebasket. Young stated that it did not appear that defendan t shed “real tears” and defendant did not vomit “authentic vomit.” Young stated that defendant h ad just eaten pizza and did not appear to vomit from the pizza. Young did not believe that def endant needed medical attention. Young testified that the intervi ew ended at about 12:00 a.m. wh en defendant demanded to be taken home or taken to jail. Before that, Young testified thatdefendant did not tell police to stop questioning him.

The trial court held that stat ements made during the booking r oom interview were voluntary and admissible. The court found that defendant was r eminded of his Miranda rights, the questioning was not inherently coercive or intimidating, an d there was no undue pressure. The court reasoned that defendant had prior experience with pol ice and there was an ongoing effort by police to provide him with food and water.

Finally, defendant made a statement on the morning after the i nterview during the prearraignment process. Specifically, Marian Pike, who worked in pre-trial services for the Port Huron County Sheriff’s Department , testified that she filled ou t a pre-arraignment form with defendant’s name, address, and employment status. When she was asking defendant for this information, defendant stated, “I only killed one.” Defendant did not raise a constitutional challenge with respect to Pike’s testimony.

OTHER-ACTS EVIDENCE

At trial, the prosecution introduced evidence of the circumstances surrounding defendant’s prior conviction of s econd-degree home invasion. K ristine Seppo testified that in September 2005 she was age 23 and living in her parent’s home i n Port Huron. Shortly after defendant moved two houses down from her home, she rejected def endant’s advances and informed him that she was not interested in being in a dating r elationship with him. Seppo explained that, sometime thereafte r, defendant broke into her p arents’ home and entered her bedroom during the early morning hours of September 14, 2005, w hen her dad was out of town. Defendant placed his hand over her mouth and began strangling h er. Eventually, she and defendant fell onto the floor fighting. Defendant got up and r an out the door when he heard the family’s pet pit bull barking down the hallway. Defendant ulti mately pleaded guilty to seconddegree home invasion for the incident and admitted breaking int o Kristen’s bedroom.

The prosecution argued that the prior assault showed that defe ndant acted according to a common plan or scheme when he assaulted Melissa and that defend ant had motive and intent to kill Melissa and McRoberts because, unlike the prior assault, t his time defendant did not want to leave any witnesses.

EVIDENCE OF JAILHOUSE TELEPHONE CALLS

The prosecution introduced evide nce of two telephone calls tha t defendant placed to a female friend from jail while he was awaiting trial. During th e first phone call, defendant stated that a voice in his head committed the crimes as follows:

Female Voice . Did you do this?-7- Defendant . Me, myself? No. But the voice that I hear in my head did. So my mind, no. From my body, yes. But I don’t remember none of it. I found out the next day when I woke up that my body was sore and I had cuts on my hand, and I asked myself, the voice that I hear in my head, wha t happened, and he told me what happened. And I cried and I cried.

During the second telephone call, defendant stated:

I told you earlier, when I got home, I seen these cuts and bru ises, I knew something was wrong and I sat there and I asked him, I said to myself, like: Herman, what happened? Why am I like this? Why am I - - why d o my things hurt? Why, why do I have cuts? A nd he told me what happened. He told me that he strangled her. He told me that he stabbed him. And he told me how he cleaned the whole house. I don’t, I don’t remember none of tha t . . . Every time I close my eyes I see these tw o people laying in front of me.

Defendant was convicted and sen tenced as set forth above. Thi s appeal ensued.

B. ANALYSIS

I. FIFTH AMENDMENT

Defendant contends that the trial court erred in denying his m otion to suppress the statements he made to police dur ing the interview. Defendant c ontends that once he was informed that he was not free to leave, police were required to advise him of his Miranda rights and that failure to do so should have precluded admission of al l of the statements he made after that point forward.

We review de novo a trial court’s ruling on a motion to suppre ss evidence. People v Henry (After Remand) , 305 Mich App 127, 137; 854 NW2d 114 (2014). The trial court’ s factual findings, if any, are reviewed for clear error, while underlyin g constitutional issues are reviewed de novo. Id . To the extent we find that aconstitutional error occurred, “[w]e review preserved issues of constitutional error to determine whether they are harmless beyond a reasonable doubt.” People v Dendel (On Second Remand) , 289 Mich App 445, 475; 797 NW2d 645 (2010). “A constitutional error is harmle ss if [it is] clear beyond a reas onable doubt that a rational jury would have found the defendant guilty absent the error.” Id. (quotation marks and citations omitted).

“In Miranda , the Supreme Court of the United States determined that the co ercive nature of custodial interrogations implic ated a defendant’s Fifth Amen dment right to be free from compelled self-incrimination.” People v Vaughn , 291 Mich App 183, 188-189; 804 NW2d 764 (2010) aff’d in part, vacated in part on other grounds, 491 Mic h 642 (2012), citing Miranda v Arizona , 384 US 436, 458; 86 S Ct 1602; 16 L Ed 2d 694 (1966). To saf eguard against coercion, the Miranda court held that “the prosecution may not use statements, wheth er exculpatory or inculpatory, stemming from cust odial interrogation of the defen dant unless it demonstrates the use of procedural safeguards eff ective to secure the privilege against self-incrimination.” Miranda , 384 US at 444. “Accordingly, before conducting a custodial i nterrogation, the interrogating officer must advise the suspect of [his or her co nstitutional] rights.” Vaughn , 291-8- Mich App at 189. “[U]nless and unt il such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Miranda , 384 US at 479. “However, the [ Miranda ] Court limited the requirement to custodial interrogations—that is, interroga tions that have a heightened r isk of improper coercion.” Vaughn , 291 Mich App at 189, citing Miranda , 384 US at 444. “Thus, a police officer is only required to give the warnings when a suspect is in custody.” Id ., citing Stansbury v California
, 511 US 318, 322; 114 S Ct 1526; 128 L Ed 2d 293 (1994).

An issue in this case is determining when defendant was in cus tody for purposes of Miranda . To determine whether a defendant was in custody at the time he was interrogated, a court must examine “all of the circumstances surrounding the interrogation and determine how a reasonable person in the position of the individual being quest ioned would gauge the breadth of his or her freedom of action.” Yarborough v Alvarado , 541 US 652, 663; 124 S Ct 2140; 158 L Ed 2d 938 (2004) (quotation marks and citations omitted). “A k ey question is whether, under the circumstances, a reasonable person would have felt at liberty t o terminate the interrogation and leave—that is, was there a formal arrest or a restraint on free dom of movement of the degree associated with formal arrest.” Vaughn , 291 Mich App at 189 (citations omitted).

PRE-MIRANDA STATEMENTS:

In this case, the trial court did not err in determining that the statements defendant made at the outset of the interview from 11:50 a.m. to 3:30 p.m. (Co nference Room Interview 1) were admissible. Although defendant was not advised of his Miranda rights, the totality of the circumstances shows that defendant was not in custody during th is initial portion of the interrogation. Defendant arrived at the police department voluntarily. Defendant was in a large, open conference room and he was not physically restrained or ha ndcuffed. The officers interviewing defendant wore plain clothes and defendant had acc ess to a restroom. Police did not inform defendant that he had to stay in the conference room and defendant did not indicate that he wanted to terminate the interview. Under these circums tances, it does not appear that there was “a restraint on freedom of movement of the degree ass ociated with formal arrest.” Vaughn , 291 Mich at 189; Yarborough , 541 US at 663. Accordingly, police were not required to advise defendant of his Fifth Amendment rights and the statemen ts defendant made during this initial interview were admissible. Id

. Similarly, the trial court did not err in admitting statements that defendant made during the telephone call to Jose. These statements were not the prod uct of interrogation or other state action and therefore Miranda was not implicated. See e.g. People v Armendarez , 188 Mich App 61, 73; 468 NW2d 839 (1991) (holding that Miranda is not implicated where statements are made that are not in resp onse to interrogation); Arizona v Mauro , 481 US 520, 527-530; 107 S Ct 1931; 95 L Ed 2d 458 (1987) (holding that statements the defend ant made during a telephone call to his wife in the presence of an officer were not barred under the Fifth Amendment because they were not made during a cust odial interrogation).

With respect to the police interrogation from 3:30 p.m. to the time defendant made the telephone call to Jose (Conference Room Interview 2), despite t he prosecution’s stipulation that it would not use any of defendant’s statements during this time frame, the trial court egregiously erred as a matter of law when it held that defendant was not en titled to his Miranda rights absent-9- coercive tactics employed by the police. The law governing whe n Miranda is triggered is wellsettled and is a fundamental component of any basic criminal pr ocedure course: irrespective of tactics employed, “before conduc ting a custodial interrogation, the interrogating officer must advise the suspect of [his or her constitutional] rights.” Vaughn , 291 Mich App at 189; Miranda
, 384 US at 444. This is because “[f]ailure to administer [ Miranda ] warnings creates a presumption of compulsion. Consequently, unwarned statements t hat are otherwise voluntary . . . must nevertheless be exc luded from evidence under [ Miranda ].” Oregon v Elstad , 470 US 298, 307; 84 L Ed 2d 222; 105 S Ct 1285 (1985).

In this case, the state does not contest that defendant was incustody starting at 3:30 p.m. Thus, at that point, police were constitutionally required to a dvise defendant of his Fifth Amendment rights before engaging in any further questioning. Miranda , 384 US at 444. Because Young failed to do so before continuing the interrogati on, Young violated defendant’s Fifth Amendment rights. Id . Accordingly, apart from the telephone call, the trial court should have suppressed all of defendant’s statements from 3:30 p.m. un til defendant waived his Miranda rights at about 6:30 p.m. when he was in Dykstra’s office. Th e failure to do so amounted to constitutional error and we must determine whether it is “clear beyond a reasonable doubt that a rational jury would have found [] defendant guiltyabsent the error.” Dendel , 289 Mich App at 475.

The pre- Miranda custodial statements that defendant made were harmful to the d efense. Although defendant did not admit to killing either of the victi ms, defendant made statements that were somewhat incriminating. Defendant told a fantastical narr ative that he hid in the laundry room while some unidentified men killed Melissa and McRoberts b efore he slipped in blood and cleaned up the crime scene. Defendant’s narrative contrasted w ith what he first told police and it was not believable and suggested that he was the one who killed both the victims and then cleaned the crime scene to cover up his involvement in the murd ers.
Although defendant’s statements we re prejudicial, the prosecut ion introduced a substantial amount of other evid ence of defendant’s guilt such that, even absent the constitutional error, a rational jury would have found defendant guilty beyond a reasonable doubt. Dendel , 289 Mich App at 475. Specifically, there was overwhelming evidence that defendant was at Melissa’s house at the time of the murders. Witnesses testifie d that they saw a bike parked in front of Melissa’s house that mat ched the description of defend ant’s bike. There was testimony that, shortly before the murders , Melissa informed a friend tha t defendant was stalking her and there was evidence that defendant attempted to contact Melissa on July 4, 2013. Melissa’s sixyear-old daughter stated during a forensic interview that a mannamed “Manuel” was in her mother’s bedroom immediately before she went to bed on the nigh t of the murders and the child then heard her mother screaming during the same night. In addi tion, during the days following the murders, defendant told Feiler and Jose that he was at Meli ssa’s house on the night of the murders. Feiler testified that d efendant told her that he had sex with Melissa and he was “paranoid” that police would find his prints at the crime scene , which was indicative of defendant’s consciousness of guilt. See e.g. People v Unger , 278 Mich App 210, 225-226; 749 NW2d 272 (2008).

Evidence not only showed that defendant was at Melissa’s house on the night of the murders, but scientific evidence also placed defendant in the h ome at the time of the murders and-10- after the murders during the cleanup. Crime scene technicians testified that there was evidence that someone wiped the tile floor in the kitchen clean and ther e were bare or sock-clad footprints over the top of the cleaned floor . A print expert testified th at one of the footprints near the kitchen sink matched defendant ’s footprint, whi ch supported the inference that de fendant was the person who attempted to clean the crime scene to conceal his involvement in the murders. See People v Nowack , 462 Mich 392, 400; 614 NW2d 78 (2000) (circumstantial evidenc e and reasonable inferences arising therefrom can constitute proof of the elements of a crime); Unger
, 278 Mich App at 226 (attempts to conceal evidence at a crime sc ene is indicative of consciousness of guilt).

Moreover, a DNA expert testifie d that defendant’s DNA matched the DNA of a blood droplet discovered inside a kitc hen drawer. Finally, Dr. Spitz testified that the victims had multiple injuries that showed signs of a struggle. Police phot ographed injuries on defendant’s body within days of the murders that supported the inference th at defendant was the man that the victims struggled against.

In addition, the prosecution introduced other-acts evidence th at supported that defendant had motive and intent to commit the crimes and that strangulati on was his modus operandi. MRE 404(b). Evidence of the prior attack on Seppo supported th e inference that, after Melissa rejected defendant’s advances, defendant assaulted Melissa in the same manner as he assaulted Seppo. Defendant’s prior convic tion supported the inference th at he had motive and intent to kill any potential witnesses after he sexually assaulted Melissa bec ause, this time, he did not want to go to prison for the assault. See e.g. Unger , 278 Mich App at 223 (while not an element of the crime, “evidence of motive in a prosecution for murder is alway s relevant”).

Finally, the prosecution introduced incriminating statements t hat defendant voluntarily made that were not the products of custodial interrogation. De fendant called Jose at some point while he was at the police department and stated that he witnes sed someone kill the victims. This narrative conflicted with w hat defendant previously told J ose and was indicative of defendant’s consciousness of guilt. See id . at 225-226 (“[C]onflicting statements tend to show a consciousness of guilt”) (quota tion marks omitted)). Additiona lly, during the pre-arraignment phase, defendant made an unsolicited statement that he “only ki lled one” of the victims. Furthermore, defendant made two telephone calls from jail where in he admitted that his “body” strangled Melissa and s tabbed McRoberts.

In sum, apart from the inadmissible statements, there was subs tantial evidence of defendant’s guilt such that a rational jury would have found de fendant guilty beyond a reasonable doubt even absent the c ourt’s constitutional error. Dendel , 289 Mich App at 475. Accordingly, defendant is not e ntitled to a new trial on this b asis. Id

.

POST-MIRANDA STATEMENTS:

The trial court did not err in holding that the statements def endant made from 6:30 p.m. until about 12:00 a.m. were admissible. Dykstra advised defend ant of his Miranda rights before he conducted the polygraph examination. Defendant did not disp ute that he signed a form acknowledging and waiving his rights. After the polygraph and booking process an officer reminded defendant of the form he had signed and defendant stat ed he did not have questions-11- about the form. On appeal, defendant does not dispute that Dyk stra advised him of his Miranda rights or that he waived his rights. Instead, defendant argues that his post- Miranda statements should be suppressed pursuant to Missouri v Seibert , 542 US 600, 624; 124 S Ct 2601; 159 L Ed 2d 643 (2004). In contrast, the state argues that all of defen dant’s post- Miranda statements are admissible pursuant to Elstad , 470 US at 298.

In Elstad , two police officers went to arrest the young defendant at his parent’s home on a burglary charge. Id . at 301. Before the arrest and before the defendant was advis ed of his Miranda rights, one of the officers sat with the defendant in the livi ng room and stated that he thought that the defendant was involved in the burglary. Id . The defendant agreed that he had been at the scene. Id . The defendant was arrested and taken to the police departmen t where, after being advised of his Miranda rights, provided a full confession. Id

.
The Elstad Court held that the subsequent confession was not barred as im proper “fruit” of the prior Miranda violation, explaining:

It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion o r other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent vol untary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibili ty of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made. [ Elstad , 470 US at 309.]

* * *

We must conclude that, absent deliberately coercive or imprope r tactics in obtaining the initial statement, the mere fact that a suspect h as made an unwarned admission does not warrant a presumption of compulsion. A subs equent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the cond itions that precluded admission of the earlier statement. In such circumst ances, the finder of fact may reasonably conclude tha t the suspect made a rational and intelligent choice whether to waive or invoke his rights. [ Id . at 314.]

In Seibert , 542 US at 609, the Court addressed the constitutionality of “ interrogating in successive, unwarned and warned phases.” In that case, police arrested the defendant on murder charges and took her to the police department for questioning. Id . at 605-606. Once at the department, police deliberately refrained from advising the def endant of her Miranda rights. Id

. After the defendant confessed and took a smoke break, police pr ovided the Miranda warnings and had the defendant repeat her prior confession. Id . In addressing whether the mid-stream warnings complied with the mandates of Miranda , the Seibert Court explained:

The threshold issue when interro gators question first and warn later is thus whether it would be reasonable to find that in these circumstan ces the warnings could function ‘effectively’ as Miranda requires. Could the warnings effectively-12- advise the suspect that he had a real choice about giving an ad missible statement at that juncture? Could they rea sonably convey that he could c hoose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been inte rrogated in a position to make su ch an informed choice, there is no practical justification for accepting the f ormal warnings as compliance with Miranda , or for treating the second stage of interrogation as distinct from the fi rst, unwarned and inadmissible segment. [ Id . at 611-612.]

The Seibert Court held that, under the circumstances of that case, the sub sequent confession violated the Fifth Amendment because it was obtained using police tactics “dedicated to draining the substance out of Miranda ” such that the mid-stream warnings did not effectuate the requirements of Miranda

. Seibert , 542 US at 617-618. In reaching this conclusion, the Seibert Court distinguished Elstad , explaining, “it is fair to read Elstad as treating the living room conversation as a good-faith Miranda mistake, not only open to correction by careful warnings before systematic ques tioning in that particular case, but posing no threat to warn-first practice generally.” Seibert , 542 US at 615. “At the opposite extreme,” the Seibert Court explained,

are the facts here, which by any objective measure reveal a po lice strategy adapted to undermine the Miranda warnings. The unwarned interrogation was conducted in the station house, and the questioning was systematic, exhaustive, and managed with psychological skill. When the police were fin ished there was little, if anything, of incriminating potential left unsaid. [ Id . at 616 (footnote omitted).]

The Court concluded that:

The contrast between Elstad and this case reveals a series of relevant facts that bear on whether Miranda warnings delivered midstream could be effective enough to accomplish their object: the completeness and detail of the questions and answers in the first round of interrogation, the overlappin g content of the two statements, the timing and set ting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s qu estions treated the second round as continuous with the first. [ Seibert , 542 US at 615 (footnote omitted).]

In this case, the Miranda warnings provided by Dykstra were effective given the facts and circumstances. Seibert , 542 US at 611-612. Unlike in Seibert , in this case the evidence does not support that police employed a strategy “adapted to undermi ne” the Miranda warnings. Id

. at 616. Here, defendant voluntarily appeared at the police dep artment. Police interviewed defendant for over three hours when defendant was not in custod y. When Young informed defendant that he was not free to leave, Young continued the in terrogation without advising defendant of his Miranda rights. However, unlike the officer in Seibert , Young did not testify that he deliberately failed to provide the Miranda warnings in an attempt to compel defendant to confess. Rather, Young stated that he was unsure if any of the other officers had already advised defendant of his rights.-13- Moreover, unlike in Seibert , in this case, defendant did not confess prior to being advise d of his rights. Instead, defenda nt made incomplete and vague st atements about how he witnessed other men commit the crimes. Thus, there was low overlap betwe en the unwarned and warned
statements. Id . at 615. In addition, the settin g changed after defendant was advised of his Miranda rights in that defendant underwent a polygraph examination and went to booking and a formal interrogation room. Defendant was no longer in the conf erence room, but rather was moved to a more formal interr ogation room after being provided several breaks. Given all of the circumstances, it is reasonable to conclude that the warnings e ffectively advised defendant that he had a “real choice about giving an admissible statement at that juncture,” and that he could “choose to stop talking” even though he talked earlier. Id . at 611-612. In short, this case is governed by Elstad , 470 US at 298, such that the Miranda violation did not taint the subsequent confession after defendant waived his rights.

To the extent that defendant contends that his post- Miranda statements were inadmissible because his waiver or statement s were involuntary, this argumen t fails.

“The test of voluntariness shou ld be whether, considering the totality of all the surrounding circumstances, the confession is the product of an essentially free and unconstrained choice by its maker, or whether the accused’s will has been ove rborne and his capacity for selfdetermination critically impaired.” People v Cipriano , 431 Mich 315, 333-334; 429 NW2d 781 (1988) (quotation marks and citations omitted).

In determining whether a statem ent 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 quest ioning; 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 dru gged, or in ill health when he gave the statement; whether the accused was depr ived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse. [ Id .]

In this case, although the entire interrogation process took n early 12 hours, the totality of the circumstances does not support that defendant’s statements or his waiver were involuntary. Id . At the time of the interrogation, defendant was over the age of 30 and had previous experience with the police arising from misdemeanor drug charge s and a felony home invasion. Defendant was familiar with the Miranda process and had previouslyspent time in prison. Police provided defendant ongoing access to a restroom, he was not physically restrained at any point during the interrogation, and he was afforded the opportunity to call his brother. In addition, police offered defendant food and water throughout th e interrogation, including a McDonald’s meal and pizza. Defendant had a 30-minute break bef ore the polygraph test. Defendant was not detained for the entire time he was at the po lice department. Instead, defendant voluntarily appeared at the police department for the interview and he was not in custody for the first 3-1⁄2 hours of the process.-14- Defendant was not physically abu sed or threatened with physica l abuse and Dykstra testified that defendant did not appear deprived of sleep or fo od and was not under the influence of intoxicants. Dykstra testified that defendant did not appear to have any psyc hological issues. Defendant was advised of his Miranda rights at about 6:30 p.m. and was reminded of the waiver form and asked if he had any questions about the form when the interrogation resumed at about 10:00 p.m. While defendant indicated that he was tired and rea dy to go home during the final hours of the interrogation, defe ndant did not unequivocally ass ert his right to silence or request an attorney. And, although defe ndant appeared to be under stre ss as the questioning wore on, Young testified that defendant did not actually vomit and state d that defendant was not actually crying. In short, given the total ity of the circumstances, def endant’s waiver and statements to police were not involuntary. Cipriano , 431 Mich at 333-334.

In sum, the trial court erred in part when it denied defendant ’s motion to suppress his statements where defendant was subjected to custodial interroga tion from about 3:30 p.m. to about 6:20 p.m. and where police failed to advise defendant of his Miranda rights during this timeframe. However, the consti tutional error was harmless beyo nd a reasonable doubt where the court properly admitted the other statements that defendant mad e and where there was a substantial amount of other ev idence of defendant’s guilt.

II. APPOINTMENT OF EXPERT WITNESS

Before trial, defendant moved for appointment of an expert in “police interrogating methods and false confessions.” Defendant argued that he made incriminating statements after a lengthy interrogation such that he needed an expert to review the interrogation and offer testimony on the indicia that commonly produces false confessio ns. Furthermore, defendant argued, the relative lack of physical evidence, supported that his confession was false. The court denied defendant’s motion, reasoning that defendant failed to s how a connection between the facts and the need for an expert witness. On appeal, defendantcontends that the trial court erred in denying his motion.

We review a trial court’s deci sion on a motion to appoint expe rt witnesses for an abuse of discretion. People v Tanner , 469 Mich 437, 442; 671 NW2d 728 (2003). “At its core, an abu se of discretion standard acknowle dges that there will be circumst ances in which there will be no single correct outcome; rather, there will be more than one rea sonable and principled outcome.” People v Babcock , 469 Mich 247, 269; 666 NW2d 231 (2003). A trial court abuses its discretion when its decision falls outside the range of reasonable and pri ncipled outcomes. Id

. Pursuant to the Due Process Clause, “states may not condition the exercise of basic trial and appeal rights on a defendant’s ability to pay for such righ ts.” People v Leonard , 224 Mich App 569, 580; 569 NW2d 663 (1997), citing Ake v Oklahoma , 470 US 68; 105 S Ct 1087; 84 L Ed 2d 53 (1985). Fundamental fairness precludes a state from d enying indigent defendants “an adequate opportunity to present their claims fairly within the adversary system.” Id. (quotation marks and citations omitted). However, “a trial court is not c ompelled to provide funds for the appointment of an expert on demand.” Tanner , 469 Mich at 442. Rather, “to obtain appointment of an expert, an indigent defendant must demonstrate a nexus be tween the facts of the case and the need for an expert.” Id . at 443 (quotation marks and citations omitted). “Without an indication that expert testimony would likely ben efit the defen se, a trial court does not abuse its-15- discretion in denying a defendant ’s motion for appointment of a n expert witness.” Id. (quotation marks omitted).

In this case, the trial court d id not abuse its discretion in denying defendant’s motion for appointment of an expert in false confessions because defendantfailed to show more than a “mere possibility” that the expe rt’s testimony would be benefic ial to the defense. Tanner , 469 Mich at 443. Here, defendant made statements to police that we re corroborated by evidence at the crime scene and showed that he was in the home at the time of and after the murders. In addition, immediately after the mu rders, defendant made stateme nts to acquaintances that showed he was at the scene on the night of the murders and he h ad numerous injuries on his body that supported the inference he was involved in the violen t murders. Defendant also confessed to Pike that he “only killed one of them” during the pre-arraignment process and admitted to his girlfriend during two jailhouse telephone calls that he committed the crimes. Finally, other-acts evidence showed that defendant had motive a nd intent to kill the victims and that strangulation of female vict ims was his modus operandi. I n short, on this record the trial court did not abuse its discre tion in denying defendant’s motio n where defendant failed to show how an expert in false confessions “would likely benefit the de fense.” Tanner , 469 Mich at 443.

III. SUFFICIENCY OF THE EVIDENCE

Next, defendant contends that there was insufficient evidence to support his CSC-I and torture convictions.

We review de novo a challenge to the sufficiency of the eviden ce. People v Cline , 276 Mich App 634, 642; 741 NW2d 563 (2007). “In reviewing the suff iciency of the evidence in a criminal case, we must view the evidence in a light most favora ble to the prosecution and determine whether a rational trier of fact could find that the essential elements of the crime were proved beyond a reasonable doubt.” People v Hoffman , 225 Mich App 103, 111; 570 NW2d 146 (1997).

With respect to the CSC-I charge, the trial court instructed t he jury on three alternative theories of CSC-I: (1) sexual penetration occurred under circum stances involving the commission of torture or first- degree murder; (2) sexual penetr ation occurred when the actor was armed with a weapon or any article used or fashioned in a manne r to lead the victim to reasonably believe it to be a weapon; and (3) sexual penetratio n occurred and the actor caused personal injury to the victim and force or coercion was used to accomplish sexual penetration. See MCL 750.520b(1)(c) (e) (f).

In this case there was sufficient evidence to allow a rational juror to conclude beyond a reasonable doubt that defendant w as guilty of CSC-I under any o f the three alternative theories. Here, evidence showed that there was forcible penetration. Dr. Spitz testified that there were small tears to the anal mucosa. Defendant admitted both to acq uaintances and to police that he had sex with Melissa. While defendant claimed that he had cons ensual sex, the jury was free to conclude that defendant was not credible and that he accomplish ed the penetration through force and without Melissa’s consent. See People v Avant , 235 Mich App 499, 506; 597 NW2d 864 (1999) (“Questions of credibility are left to the trier of factand will not be resolved anew by this Court.”). Moreover, it was plai nly apparent that violence was perpetrated upon Melissa given-16- the numerous injuries that she had on her body and given that s he was murdered. The evidence of the wounds and the manner of death, coupled with the evidenc e of penetration would have allowed a rational juror to conc lude beyond a reasonable doubt that defendant engaged in an act of sexual penetration under any of the three theories set forthabove. Hoffman , 225 Mich App at 111.

Defendant appears to contend that his statements should not ha ve been admitted to prove CSC-I because the corpus delicti rule provides that “a defendant’s confession may not be admitted unless there is direct or circumstantial evidence inde pendent of the confession establishing (1) the occurrence of the specific injury . . . an d (2) some criminal agency as the source of the injury.” People v Konrad , 449 Mich 263, 269-270; 536 NW2d 517 (1995). Defendant appears to contend that there was no independent evid ence establishing the CSC-I because Dr. Spitz agreed that the tears in the anal mucosa coul d have occurred during consensual sex. This argument lacks merit.

In this case, independent of defendant’s statements, there was evidence to support the CSC-I conviction. While Dr. Spi tz agreed on cross-examination that the tears could have occurred during consensual sex, he also explained that, in cont ext of all of the other injuries, “it fits with the overall being an a ltercation and . . . an assault .” This testimony, coupled with evidence of all of the injuries that were inflicted upon Meliss a, amounted to evidence of CSC-I independent of defendant’s state ments and defendant’s argument concerning the corpus delicti rule fails as a matter of law. Konrad , 449 Mich at 269-270.

With respect to torture, torture occurs when “[a] person ..., with the intent to cause cruel or extreme physical or mental pain and suffering, inflicts grea t bodily injury or severe mental pain or suffering upon another person within his or her custody or physical control . . . .” MCL 750.85(1). The term “cruel” is defined as “brutal, inhuman, sa distic, or that which torments.” MCL 750.85(2)(a). “Severe mental pain or suffering” is defined in relevant part to include:

[A] mental injury that results in a substantial alteration of mental functioning that is manifested in a visibly demonstrable manner caused by or resulting from any of the following:

( i ) The intentional infliction or threate ned infliction of great bodily injury.

* * *

( iii ) The threat of imminent death.

( iv ) The threat that another person will imminently be subjected t o death, great bodily injury, or the administration or application of mind-alt ering substances or other procedures calculated to d isrupt the senses or personalit y. [MCL 750.85(2)(d).]

The trial court instructed the jury consistent with the statuto ry language.

On appeal, defendant focuses on the intent element of torture, arguing that there was no evidence to support that he intended to cause cruel or extreme physical or mental pain and-17- suffering. Defendant cites Dr. Sp itz’s testimony that once com pression on Melissa’s neck was sufficient, death could have occurred very quickly. Dr. Spitz explained that d eath could have occurred within 45 seconds to a m inute, or within 10 to 15 seco nds. With respect to McRoberts, the evidence supported that there was a violent struggle. Defe ndant contends that the facts and duration of the crimes does not support a finding that he inten ded to inflict cruel or extreme physical or mental pain and suffering.

With respect to evidence of defendant’s intent, “because it ca n be difficult to prove a defendant’s state of mind on issues such as knowledge and inten t, minimal circumstantial evidence will suffice to establish the defendant’s state of min d, which can be inferred from all the evidence presented.” People v Kanaan , 278 Mich App 594, 622; 751 NW2d 57 (2008).

In this case, viewed in a light most favorable to the prosecut ion, a rational juror could have concluded beyond a reasonable doubt that defendant intende d to inflict cruel or extreme physical or mental pain and suffering. MCL 750.85. Here, the severe nature and extent of the victims’ injuries and the manner in which there were inflicted supported that defendant had intent to inflict cruel or extre me physical or mental pain and suffering. See e.g. People v Howard , 226 Mich App 528, 550; 575 NW2d 16 (1997) (noting that “evide nce of injury is admissible to show intent”). Evidence showed that Melissa sust ained several ligature marks, indicating that the ligature was moved at least once. Melissa also sustained numerous injuries to her body, which supported that defendant did not quickly strang le Melissa, but rather perpetrated a violent assault upon her. Melissa suffered a number of blunt -force trauma injuries to the head, which supported that someone slammed her head against a hard ob ject, or that someone hit her in the head with a hard object. Melissa sustained deep-tissue inj uries to her neck, chest, and back all the way to her buttocks, she sustained significant hemorrha ging, and she had injuries to her mouth. Melissa’s six-year old daughter stated that she never h eard her mother scream like that before, which showed mental anguish and suffering. Despite the screams, defendant did not stop his assault when he knew that Melissa was in anguish. Instead, he intended to inflict more suffering upon her when he continued the attack. Evidence supp orted that defendant sexually assaulted Melissa.

With respect to McRoberts, Dr. Spitz testified that there was an extended struggle and his death would have occurred withinminutes, not seconds. McRoberts not only sustained deep stab wounds to his vital organs, but he also sustained multiple smal l wounds caused by the tip of a knife. McRoberts also suffered cutting or incise wounds on his body and he had stab wounds to the face, torso, neck, arms, and one through the lungs and heart. Defendant stated to police that at one point he smothered McRoberts’ face with a couch cushion to prevent him from screaming. This would have served to increase the mental anguish and pain that McRoberts suffered as defendant killed him with a knife.

In short, viewed in a light most favorable to the prosecution, a rational jury could have concluded beyond a reasonable doubtthat the assaults were not quick, but rather, defendant perpetrated them in a manner that evinced intent to inflict cru el or extreme physical or mental pain and suffering. MCL 750.85; Kanaan , 278 Mich App at 622.

IV. MOTION TO QUASH-18- In an alternative to his sufficiency challenge, defendant cont ends that the trial court erred when it denied his motion to quas h the information with respect to the CSC-I and t orture counts.

We review a trial court’s decision on a motion to quash the in formation for an abuse of discretion. People v Miller , 288 Mich App 207, 209; 795 NW2d 156 (2010). A court abuses i ts discretion when its decision fa lls outside the range of reasonable and principled outcomes. Babcock , 469 Mich at 269.

“The purpose of a preliminary examination is to determine whet her there is probable cause to believe that a crime was committed and whether there i s probable cause to believe that the defendant committed it.” People v Perkins , 468 Mich 448, 452; 662 NW2d 727 (2003). “To meet its burden of proof at the preliminary examination, the pr osecution must present ‘enough evidence on each element of the charged offense to lead a perso n of ordinary prudence and caution to conscientiously enterta in a reasonable belief of [th e defendant’s] guilt.” People v Cohen , 294 Mich App 70, 74; 816 NW2d 474 (2011), quoting Perkins , 468 Mich at 452.

The trial court did not abuse its discretion in denying defend ant’s motion to quash. Miller , 288 Mich App at 209. The prosecutor was not required to prov e the charges beyond a reasonable doubt at the preliminar y examination stage and inste ad presented enough evidence to create a reasonable be lief of defendant’s guilt. Cohen , 294 Mich App 74. Specifically, similar to his trial testimony, Dr. Spitz testified at the preliminary examination regarding all of the injuries that both Melissa and McRoberts suffered and his autopsy reportwas entered into evidence. In addition, Kerrigan and Young testified regarding statements def endant made during their interview. The nature of the victims’ injuries coupled with th e admissible portion of defendant’s statements was sufficient to allow a person of ordinary prudenc e to form a conscientious and reasonable belief that defendant was guilty of CSC-I and tortur e as charged. Id

.
Affirmed.

/s/ Douglas B. Shapiro /s/ Peter D. O’Connell /s/ Stephen L. Borrello