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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 7, 2017

v No. 330125 Presque Isle Circuit Court DAMIEN MICHAEL SMITH, LC No. 14-092892-FC

Defendant-Appellant.

Before: R ONAYNE K RAUSE , P.J., and O’C ONNELL and M ETER , JJ.

P ER C URIAM

. Following a jury trial, defendant was convicted of assault wit h intent to murder, MCL 750.83, carrying a weapon with unlawful intent, MCL 750.226, tw o counts of discharge of a firearm from a motor vehicle , MCL 750.234a, two counts of disch arge of a firearm at a dwelling, MCL 750.234b, possession of a loaded gun in a motor vehicle, MC L 750.227c, and six counts of possession of a firearm during th e commission of a felony, MCL 750.227b. The trial court sentenced defendant to the follo wing concurrent prison terms; 2 5 to 40 years for the assault with intent to murder conviction; two years for the carrying a weapo n with unlawful intent, discharge of a firearm from a motor vehicle, and discharge of a firearm a t a dwelling convictions; 16 months to 2 years for the possession of a loaded shotgun in a m otor vehicle conviction. Additionally, the trial court se ntenced defendant to a consecut ive two-year term for the felonyfirearm convictions. Defendant appeals as of right and we affi rm.

I. FACTS AND PROCEDURAL HISTORY

On the evening of June 3, 2014, and into the early morning of June 4, 2014, Defendant’s former girlfriend, Kayla Allen, was socializing with John Chasc sa at Chascsa’s residence. Defendant was upset that Allen was at Chascsa’s residence, and after calling Allen as many as 15 times, defendant left to meet Chascsa and LaRoche, a friend of Chascsa and Allen’s. LaRoche and Chascsa left with the understanding that a fight would ensu e. Defendant drove to Chascsa’s home two separate times, firing s hots into the home on both occ asions. Right before the second round of shootings occurred, defendant told Allen on the phone that he was “crazy” and to “watch this.”-2- On June 5, 2014, Alpena Police Detective Sergeant Stephen Davi s spoke with the defendant, and defendant stated that on the night of the shooti ngs, he had consumed a half-gallon of alcohol, Heroin, Suboxone, and Concerta. Defendant also tol d Davis that he had intent to kill Chascsa when he travelled to Chascsa’s home. During the course of this interaction, defendant told Davis he shot 16 rounds at the home between the two instan ces. Rogers City Police Sergeant Jamie Meyer also spoke with defendant and recorded the interview, during which, defendant again admitted of his desire to kill Chascsa. In the recording of defendant and Meyer’s interview, defendant admitted to shooting the house sev en times on his first drive-by and seven or eight more times on his second drive-by.

Defendant was convicted by a ju ry in the Presque Isle Circuit Court and appeals as of right arguing that his confession to the police was obtained in voluntarily, and thus, in violation of his constitutionally protecte d Due Process Rights. Addition ally, defendant argues that the evidence presented at trial was insufficient to identify him as the perpetrator of the crimes and that it did not demonstrate an intent to kill by clear and conv incing evidence.

II. VOLUNTARINESS OF CONFESSION

Defendant first argues that the trial court erred in denying h is motion to suppress his confessions to the police. We di sagree. This Court reviews a trial court’s decision on a motion to suppress evidence de novo. People v Henry (After Remand) , 305 Mich App 127, 137 (2014), citing People v Williams , 472 Mich 308, 313; 696 NW2d 636 (2005). However, this Court will not reverse the trial court’s fi ndings regarding the voluntarin ess of a confession unless they were clearly erroneous. People v Manning , 243 Mich App 615, 620; 624 NW2d 746 (2000). “A finding is clearly erroneous if it leaves [this Court] with a d efinite and firm conviction that the trial court made a mistake.” Id.

“No person shall be compelled in any criminal case to be a wit ness against himself, nor be deprived of life, liberty or property, without due process o f law.” Const 1963, art 1, § 17. Michigan’s constitutional provisi on against self-incrimination is applied consistently with and “no more liberally than the Fifth Amendment 1 of the United States Constitution.” People v Geno , 261 Mich App 624, 628; 683 NW2d 687 (2004). “The constitutio nal privilege against self-incrimination protects a defendant from being compelled to testify against himself or from being compelled to provide the state with evidence of a testimo nial or communicative nature.” People v Burhans , 166 Mich App 758, 761-62; 421 NW2d 285 (1988).

A statement obtained from a def endant during a custodial inter rogation is admissible only if the defendant “voluntarily, knowingly, and intelligently” wa ived his Fifth Amendment rights. Miranda v Arizona , 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966); People v Daoud
, 462 Mich 621, 632-639; 614 NW2d 152 (2000). “The requirement t hat a defendant’s statement be voluntary is based on the recognition that there are means, ranging from outright physical brutality to more refined and subtle methods, for overcoming a defendant’s will.” Manning , 243 Mich App at 625.

1 US Const, Am V.-3- This Court has found that “a c onfession is involuntary if obta ined by any sort of threat or violence, by any promises, express or implied, or by the exerti on of any improper influence.” People v Frazier , 270 Mich App 172, 182; 715 NW2d 341 (2006), quoting People v Paintman
, 139 Mich App 161, 171; 361 NW2d 755 (1984). A confession must be the product of an essentially free and unconstrai ned choice and be made “without intimidation, coercion, or deception.” People v Akins , 259 Mich App 545, 564; 675 NW2d 863 (2003). Courts must evaluate the totality of the circumstances in order to determin e whether the confession was the result of an essentially free choice or was compelled by overco ming a defendant’s capacity for self-determination in violation of this constitutional protecti on. Geno , 261 Mich App at 628.

The burden is on the plaintiff to prove voluntariness of a sta tement by a preponderance of the evidence. Daoud , 462 Mich at 634. Defendant’s knowledge of his rights before offering a confession is a factor that is a lso important to consider in de termining voluntariness. Frazier v Cupp , 394 US 731, 739; 89 S Ct 1420; 22 L Ed 2d 684 (1969).

Here, defendant testified that he was provided Miranda warnings and waived those rights. The trial court found that defendant waived his Miranda rights during each interview, and that defendant initiated the first interview. Defendant ag reed that he was not threatened. “[C]ases in which a defendant can make a colorable argument tha t a self-incriminating statement was ‘compelled’ despite the fact that the law enforcement autho rities adhered to the dictates of Miranda are rare.” Berkemer v McCarty , 468 US 420, 433 n 20; 104 S Ct 3138; 82 L Ed 2d 317 (1984).

In People v Cipriano , 431 Mich 315, 334; 429 NW2d 781 (1988), the Supreme Court set forth the following non-exhaustive list of factors that should be considered in determining the voluntariness of a statement:

[T]he age of the accused; his lack of education or his intelli gence level; the extent of his previous experience with the police; the repe ated and prolonged nature of the questioning; the length of the detention of the a ccused before he gave the statement in question; the lack of any advice to the a ccused of his constitutional rights; whether there was an unnecessary delay i n bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical att ention; whether the accused was physically abused ; and whether the suspect was threatened with abuse.

Defendant argues that his mental state was such that he was pr essured into making selfincriminating statements. Defendant stated that he was under the influence of drugs and alcohol at the time of his statement. He reported that he had consumed a half-gallon of whiskey, Heroin, Suboxone, and Concerta on the night of the shooting. However, he testified that he had told Rogers City Police Sergeant Jamie Meyer that he had consumed on ly alcohol and cannabis. Regardless, defendant had been in custody for approximately 32 hours prior to his first incriminating statement to police, and he made an additional in criminating statement the day following his first statement. Additionally, while defendant r eported that the substance abuse continued to affect his mind in some way not only during his st atements to police, but also at his-4- trial 14 months after he confes sed, citing long-term effects of his substance abuse, he acknowledged that he was not intoxicated when he spoke to the p olice. Due to the fact that there was a protracted length of time during which defendant was incarcerated before his statements, and defendant cited long-term effects, rather than intoxication , as having affected his descriptions, it was not demonstr ated that defendant provided s tatements because he was under the influence of substances. A dditionally, the interviewing of ficer did not notice any signs of intoxication, and defendant stated that he did not have access to substances in jail.

Defendant argues that he was compelled to testify because he w as concerned about the well-being of his mother, who was incarcerated on a charge rela ted to the case, and he wished to earn her release. Defendant had initially refused to speak to police and was told that his mother was incarcerated before he was returned to his cell. Defendant reported that he then heard his mother who was in a separate room in the jail, that she sounded upset, and that he changed his mind about talking to the police. T he United States Supreme Co urt has said that “coercive police activity is a necessary predicate to finding that a confession is not voluntary within the meaning of the Due Process Clause.” Colorado v Connelly , 479 US 157, 167; 107 S Ct 515; 93 L Ed 2d 473 (1986). Defendant argues th at it was police misconduct to manipulate him into making a statement by exposing him to his mother’s distress. However, t he interviewing officer respected defendant’s desire to not make a statement after informing defe ndant that his mother had been arrested, and defendant decided to consent to the interview aft er encountering his mother and considering his situation. The fact that defendant saw or hear d his mother was not coercive and was not misconduct. There was no police activity while defenda nt was in a cell considering his position and ultimately changing his mind and deciding to coope rate. There was no evidence that defendant decided to consent to the interviews based on th e behavior of the interviewing officer.

Defendant explained that he made a statement to the police bec ause he would have done anything to free his mother, and that the interviewing officer agreed that he would talk to the prosecutor about dropping charges against his mother. However, the alleged promise to speak to the prosecutor from a different county about defendant’s mother was not a promise to free her or make a deal benefiting her in exchange for defendant’s statemen t. According to defendant, he had already decided to speak with the police and offer a versio n of events that would exonerate his mother, rather than rely on the officer to strike a deal th at would free his mother. It is apparent that the circumstances, including the incarceration of defendant’s mother for crimes related to those defendant was suspected of committing, motivat ed defendant’s decision to speak with the officer. However, police misconduct did not produce t he circumstances that inspired defendant’s strategic decision to try to impact his mother’s st atus with his statement. Thus, there was no evidence that defendant w as coerced into making the stat ement by a promise to release, or a threat to prosecute, his mother.

The totality of the circumstances indicated that defendant pro vided an incriminating statement to Meyer after having been in jail for a day and a ha lf. The evidence did not indicate that defendant w as deprived of sleep or t hat he was under the i nfluence of substances. Defendant was given beverages, cigarette breaks, and access to the bathro om, and the evidence indicated that he spoke freely. Defendant was familiar with the procedur es, defendant initiated the interview, defendant waived his Miranda rights, and the interview was recorded. Defendant agreed that he was not threatened or denied liquids during the two hours in which he was-5- interviewed. The evidence did not indicate that defendant’s st atement was procured as a result of threat, promise, or coercion. To the contrary, the evidence in dicated that defendant’s statement was a self-motivated and strategic decision made in an attempt to aid his mother in circumstances that were created by their arrests. Thus, the tr ial court did not err in denying defendant’s motion to suppress his confessions because it was d emonstrated that the statements were voluntarily given.

III. INSUFFICIENCY OF EVIDENCE

Defendant argues that the evidence was insufficient to convict him of each of the crimes because of a lack of testimony identifying him as the shooter. Further, he argues that there was insufficient evidence to demonstrate that he intended to kill a nyone so as to support his assault with intent to murder convicti on. This Court reviews de novo a challenge to the sufficiency of the evidence. People v Ericksen , 288 Mich App 192, 195; 793 NW2d 120 (2010).

Due process 2 requires that evidence of every element of a crime be proved b eyond a reasonable doubt in order to sustain a criminal conviction. People v Hampton , 407 Mich 354, 366; 285 NW2d 284 (1979), citing In re Winship , 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). To determine if the prosecutor produced evidence s ufficient to support a conviction, this Court considers “the evidence in the light most favorable to the prosecutor” to ascertain “whether a rational trier of fact could find the defendant guil ty beyond a reasonable doubt.” People v Tennyson , 487 Mich 730, 7 35; 790 NW2d 354 (2010), quoting People v Hardiman , 466 Mich 417, 421; 646 NW2d 158 (2002). Direct and circumstantial evidence, as well as all reasonable inferences that may be drawn, are considered to dete rmine whether the evidence was sufficient to sustain the defendant’s conviction. Hardiman , 466 Mich at 429.

“[I]dentity is an [essential] element of every offense”. People v Yost , 278 Mich App 341, 356; 749 NW2d 753 (2008), citing People v Oliphant , 399 Mich 472, 489; 250 NW2d 443 (1976). However, defendant made statements to the police descr ibing how he had committed the crimes and there was circumstantial evidence that supported def endant’s report of his participation in the crimes. John Chascsa and Tom LaRoche test ified that defendant called Chascsa a number of times during the evening of the crime to in form him that he was coming to the area, and again called Chascsa when he arrived. Chascsa sa id that he identified defendant when he walked to an area where he was supposed to meet defenda nt. LaRoche said that he and Chascsa hid in the bushes as a vehicle matching the vehicle own ed by defendant’s mother, who said defendant had taken her car that night, stopped and shot a t Chascsa’s nearby home. After the first shooting, according to Allen, defendant told her he w as the person in the car. Moreover, defendant was overheard telling A llen to “watch this” just befo re a car returned and shot at the house a second time. A 12-gauge shot gun shell was subsequentl y retrieved from defendant’s mother’s vehicle. Moreover, defendant advised that he had used a shot gun and one was found where defendant stated that it was hidden. Also, brass shell c asings were found in a fire pit behind the home of defendant’s mother after defendant informed police that he had attempted to burn the shell casings there.

2 US Const, Am XIV.-6- Given defendant’s admissions that he shot at the house and the circumstantial evidence, i.e., defendant was upset with A llen and Chascsa, he took his m other’s Oldsmobile, and someone in a similar Oldsmobile was seen shooting at the house, there w as sufficient evidence by which the jury could conclude that defendant was the perpetrator of t he charged crimes beyond a reasonable doubt.

Regarding the intent element, assault with intent to murder is a specific intent crime that requires a finding that the defe ndant acted with the actual int ent to kill. People v Taylor , 422 Mich 554, 567-68; 375 NW2d 1 (1985); People v Cochran , 155 Mich App 191, 193-94; 399 NW2d 44 (1986). “[B]ecause it can be difficult to prove a defe ndant’s state of mind on issues such as knowledge and intent, minimal circumstantial evidence w ill suffice to establish the defendant’s state of mind, which can be inferred from all the e vidence presented.” People v Kanaan , 278 Mich App 594, 622; 751 NW2d 57 (2008).

Both Chascsa and LaRoche testified that defendant intended to fight Chascsa at a parking lot, and during the trial defendant testified consistently with these statements. However, Chascsa reported that defendant told him he was coming to kill him. Du ring his confession, defendant clearly expressed intent to kill several times. This included a statement that the target of his desire to kill was Chascsa, but that he would kill others as “c ollateral damage,” that he was hiding in bushes with a shotgun pl anning to shoot Chascsa and a nyone who got in the way, and that he “was gonna kill” Chascsabut he went down an alley and had his friends around him.

Apart from these statements, the intent to kill may be inferre d from the use of a deadly
weapon. People v Carines , 460 Mich 750, 759; 597 NW2d 130 (1999); People v Dumas , 454 Mich 390, 403; 563 NW2d 31 (1997). Here, defendant shot at an occupied dwelling a number of times on two separate occasions. During the second recorded in terview, defendant recalled shooting at a clear left window and then at the right window wh en he saw someone dive under the window. Defendant argues that he could not have had the in tent to kill because he shot from the street at a building with shot gun pellets. However, there was testimony that the buckshot pellets that were viewed in the apartment walls would have beenpotentially lethal to a human body. Thus, there was sufficient evidence from which the jury could conclude beyond a reasonable doubt that defendant f ired shots with the intent to kill others.

At trial, defendant claimed tha t he was not being truthful whe n he previously told the police that he wanted to kill. However, the jury heard all the testimony and determined that defendant’s statements to the police and the supporting evidenc e were credible. This Court will defer to the superior ability of the fact-finder to assess witn ess credibility and weigh the evidence. Kanaan , 278 Mich App at 619.

Affirmed.

/s/ Amy Ronayne Krause /s/ Peter D. O'Connell /s/ Patrick M. Meter