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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

January 9, 2018

v No. 333988

Kalamazoo Circuit Court

KEVIN DEANDRE WARE, LC No. 2015-001179-FC

Defendant-Appellant.

Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

Defendant, Kevin Deandre Ware, was convicted in a jury trial of one count of armed 

robbery, MCL 750.529, and one count of possession of a firearm during the commission of a 

felony (felony-firearm), MCL 750.227b. Defendant appeals by right, alleging ineffective 

assistance of counsel. We reverse defendant’s convictions and remand for a new trial.

I. FACTS AND PROCEDURAL HISTORY

In August 2015, two men robbed TJ’s Party Store in the city of Kalamazoo, Michigan. 

Approximately an hour and a half after the robbery, police officers conducted a traffic stop on a 

vehicle driven by defendant in Van Buren County. The passenger in defendant’s vehicle, 

Kristopher Jackson, was identified as one of the robbers because his boots matched those worn 

by one of the robbers, as seen on the party store’s video surveillance system. Once police 

officers removed Jackson from the vehicle, defendant fled the scene in an attempt to evade 

arrest. Defendant’s vehicle ultimately crashed. Defendant was ejected from the vehicle, 

suffering injuries of such severity that he was transported to the hospital by medical helicopter. 

Various items stolen from the party store were found in the crashed vehicle, along with cash and 

a firearm matching the description of that used during the robbery. Although defendant was not 

wearing clothes matching those worn by the second robber as seen on the party store’s video 

surveillance system, the clothing the second robber had worn was found in the crashed vehicle. 

Defendant claimed that he did not commit the armed robbery. He claimed he was simply driving 

a vehicle shared by multiple individuals, which accounted for the presence in the vehicle of items 

associated with the robbery. Jackson ultimately admitted that he was one of the robbers and was 

convicted for that offense. At defendant’s trial, however, Jackson denied that defendant was the 

second robber. 
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Van Buren County Deputy James Lear testified that he placed defendant under arrest at 

the crash scene but that he did not advise defendant of his Miranda1 rights. In addition, although 

other law enforcement officers interacted with defendant at the hospital, it is undisputed that 

none of those officers advised defendant of his Miranda rights. Kalamazoo Public Safety 

Department Officers Alex Wright and Caleb Leonard followed the medical helicopter to the 

hospital so they could interrogate defendant. They questioned him until he made incriminating 

statements that tied him to the party store robbery. During at least a portion of this interrogation, 

defendant was handcuffed to the hospital bed. Defendant testified that he was in and out of 

consciousness when he arrived at the hospital, that he was having difficulty breathing, that he 

was in a great deal of pain, and that he did not remember speaking with police in the hospital. 

Kalamazoo Public Safety Department Officer Luis Araujo testified that when he relieved

Officers Wright and Leonard at the hospital, he did not attempt to speak to defendant because he 

was sleeping, and a nurse informed him that defendant was heavily medicated. Officer Araujo 

stood guard outside defendant’s room until his supervisors advised him that defendant was no 

longer under arrest.

At defendant’s preliminary examination, defense counsel moved to suppress the 

incriminating statements defendant made in the hospital. The district court granted the motion 

and suppressed defendant’s statements, finding that defendant was placed in custody by law 

enforcement officers and that he was not provided with Miranda warnings before making the 

incriminating statements. Despite the success of the motion to suppress in the district court, 

defense counsel failed to timely file a pretrial motion to suppress defendant’s incriminating 

statements in the circuit court. But on the first day of trial, defense counsel orally moved to 

suppress those statements, but the trial court denied the motion as untimely and did not hear it. 

The trial court specifically declined to conduct a Walker2 hearing to determine the voluntariness 

of the incriminating statements defendant made at the hospital. Officers Wright and Leonard 

testified at trial regarding defendant’s statements, and the jury subsequently convicted defendant 

of armed robbery and felony-firearm. After his conviction, defendant moved for a new trial, 

arguing that defense counsel was ineffective in several different ways. The trial court denied the 

motion for a new trial and also declined to hold a Ginther3 hearing, ruling that there was an 

abundance of circumstantial evidence that defendant committed the armed robbery and ruling 

that the outcome of defendant’s trial would not have been different even had his incriminating 

statements been suppressed. 

Defendant appeals, alleging ineffective assistance of counsel. Defendant argues that 

defense counsel was ineffective for (1) failure to properly investigate the case, (2) failure to 

timely file a witness list and notice of alibi witnesses, and (3) failure to timely file a motion to 

suppress the incriminating statements defendant made during a custodial interrogation when he 

had not been given his Miranda warnings. Because we conclude that defense counsel’s failure to 

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

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

3 People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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file a timely motion to suppress defendant’s incriminating statements was objectively 

unreasonable in light of prevailing professional norms and because we conclude that but for 

counsel’s error it is reasonably probable that the outcome of defendant’s trial would have been 

different, we reverse defendant’s convictions and remand for a new trial.

II. STANDARD OF REVIEW

“The question whether defense counsel performed ineffectively is a mixed question of 

law and fact; this Court reviews for clear error the trial court’s findings of fact and reviews de 

novo questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 

(2012). This determination requires a court to first find the facts, and then determine whether 

those facts constitute a violation of the defendant’s constitutional right to effective assistance of 

counsel. People v Cline, 276 Mich App 634, 637; 741 NW2d 563 (2007). “Clear error exists if 

the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” 

People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011). Here, however, because the 

trial court declined to hold an evidentiary hearing regarding defendant’s ineffective assistance 

claims, this Court is limited to reviewing errors apparent on the record. People v Heft, 299 Mich 

App 69, 80; 829 NW2d 266 (2012). 

In addition, we review a trial court’s decision to deny a motion for a new trial for an 

abuse of discretion. People v Dimambro, 318 Mich App 204, 212; 897 NW2d 233 (2016). 

At its core, an abuse of discretion standard acknowledges that there will be 

circumstances in which there will be no single correct outcome; rather, there will 

be more than one reasonable and principled outcome. When the trial court selects 

one of these principled outcomes, the trial court has not abused its discretion and, 

thus, it is proper for the reviewing court to defer to the trial court’s judgment. 

[People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003) (quotation marks 

and citations omitted).] 

A trial court abuses its discretion when it chooses an outcome that falls outside the range of 

outcomes. Id. The trial court’s factual findings are reviewed for clear error, while underlying 

questions of law are reviewed de novo. Dimambro, 318 Mich App at 212.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

To establish a claim of ineffective assistance of counsel, a defendant must prove that 

defense counsel’s performance was objectively unreasonable in light of prevailing professional 

norms, and that but for counsel’s error, it is reasonably probable that the outcome would have 

been different. Strickland v Washington, 466 US 668, 688, 694; 104 S Ct 2052; 80 L Ed2d 674 

(1984); People v Pickens, 446 Mich 298, 302-303, 314; 521 NW2d 797 (1994). Effective 

assistance of counsel is presumed, Strickland, 466 US at 690, and a defendant bears a heavy 

burden of proving otherwise, Trakhtenberg, 493 Mich at 52. In doing so, a defendant must 

overcome a strong presumption that the challenged conduct might be considered sound trial 

strategy. People v Knapp, 244 Mich App 361, 385-386, 386 n 7; 624 NW2d 227 (2001). A 

defendant can only overcome the presumption by showing that counsel failed to perform an 

essential duty and that the failure was prejudicial to defendant. People v Hampton, 176 Mich 
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App 383, 385; 439 NW2d 365 (1989). Counsel’s performance must be measured against an 

objective standard of reasonableness and without benefit of hindsight. Strickland, 466 US at 

688-689; Pickens, 446 Mich at 430, 438. 

Defendant argues that defense counsel rendered ineffective assistance because she failed 

to timely file a pretrial motion to suppress defendant’s in-custody statements. We agree.

On the first day of trial, the prosecutor and defense counsel addressed preliminary matters 

with the trial court before the jury was seated. The trial court noted that earlier that morning 

defense counsel had filed a motion to suppress certain statements made by defendant. The 

prosecutor objected that the motion to suppress was untimely and that it was inappropriate for 

defense counsel to essentially request a Walker hearing on the first day of trial.4 The trial court 

denied defense counsel’s motion to suppress defendant’s statements as untimely. We conclude

that defense counsel’s failure to timely file a pretrial motion to suppress defendant’s custodial 

statements was objectively unreasonable in light of prevailing professional norms. Because 

defense counsel was successful in convincing the district court to suppress defendant’s incustody statements to police during the preliminary examination, she should have timely filed a 

motion to suppress those same statements in the circuit court. There is no sound trial strategy 

involved in failing to timely file such a pretrial motion. Indeed, the record indicates that defense 

counsel erroneously believed that a verbal motion to suppress defendant’s statements, made on 

the first day of trial, was sufficient to place the issue before the trial court for decision. 

In addition to finding that defense counsel’s failure to timely file a motion to suppress 

defendant’s in-custody statements was objectively unreasonable in light of prevailing 

professional norms, we find it reasonably probable that the outcome of defendant’s trial would 

have been different had counsel timely filed that motion. First, we conclude that a timely motion

to suppress defendant’s in-custody statements would have been successful because defendant 

made the statements after he was placed in custody and without the benefit of Miranda

warnings.

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 Statements of an accused made during a custodial interrogation are inadmissible 

unless the accused voluntarily, knowingly, and intelligently waived his Fifth Amendment rights. 

Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). A prosecutor may 

not use custodial statements as evidence unless he demonstrates that, before any questioning, the 

accused was warned that he had a right to remain silent, that his statements could be used against 

him, and that he had the right to retained or appointed counsel. Id.; People v Daoud, 462 Mich 

 4 The motion and brief was a combined document that was less than a page and a half in length. 

The motion argued that a Walker hearing was unnecessary “because the facts and circumstances 

surrounding the custodial interrogation of Defendant are of record” in the preliminary 

examination transcript, and about which the prosecution was thoroughly knowledgeable. We 

also note that the prosecution too bore responsibility and should have moved in limine pretrial to 

have the circuit court address the issue.

5 We also note that because this exact issue was raised, argued and decided in defendant’s favor 

at the preliminary examination, the trial court would have been wise to hear the motion despite it 

being the first day of trial.
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621, 633; 614 NW2d 152 (2000). Miranda warnings are not required unless the accused is 

subject to a custodial interrogation. Miranda, 384 US at 444, 478; People v Elliott, 494 Mich 

292, 302; 833 NW2d 284 (2013); Daoud, 462 Mich at 624 n 1. 

The Miranda Court explained that “custodial interrogation” to which its decision applied

“mean[s] 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.” Miranda, 384 

US at 444; see also Elliott, 494 Mich at 305. Whether an accused was in custody is a mixed 

question of law and fact that must be answered independently after a review de novo of the 

record. People v Cortez (On Remand), 299 Mich App 679, 691; 832 NW2d 1 (2013). Whether a 

suspect is in custody when questioned is determined by examining the totality of the 

circumstances. Id. “A key question is whether, under the circumstances, a reasonable person 

would have felt at liberty to terminate the interrogation and leave—that is, was there a formal 

arrest or a restraint on freedom of movement of the degree associated with formal arrest.”

People v Vaughn, 291 Mich App 183, 189; 804 NW2d 764 (2010), aff’d in part, vacated in part 

on other grounds 491 Mich 642 (2012). Courts should consider several factors, including “the 

location of the questioning, its duration, statements made during the interview, the presence or 

absence of physical restraints during the questioning, and the release of the interviewee at the 

end of the questioning.” Cortez (On Remand), 299 Mich App at 694. 

Here, Deputy Lear testified that he informed defendant he was under arrest. Officer 

Wright, however, testified that he never told defendant that he was under arrest, but he also never 

told defendant that he was not under arrest. Officer Wright also testified that he went to the 

hospital with the express intention of placing defendant under arrest on behalf of the Van Buren 

County Sheriff deputies and that he made the conscious decision to wait until after defendant 

made incriminating statements before he did so. Furthermore, Officer Leonard testified that he 

handcuffed defendant to the hospital bed.6 Finally, Officer Araujo testified that he was sent to 

the hospital to relieve Officers Wright and Leonard and that he stood guard outside defendant’s 

room until he was informed that defendant was no longer under arrest. All of these facts support 

a conclusion that defendant was in custody when he made the incriminating statements to police. 

Moreover, regardless of whether defendant was officially informed that he was under arrest, we 

conclude that a reasonable person in defendant’s position would have believed that he was not 

free to leave. Vaughn, 291 Mich App at 189. Defendant was involved in a serious vehicle crash 

and was transported to the hospital by medical helicopter. At the hospital, he was surrounded by 

numerous police officers, and a police officer stood guard outside his hospital room while he was 

handcuffed to the bed. Based on all of the above facts, we conclude that a reasonable person in 

defendant’s position would have believed that they were not at liberty to leave. Id. Because 

defendant was in custody, the police were required to advise defendant of his Miranda warnings 

and obtain a voluntarily, knowing, and intelligent waiver of his Fifth Amendment rights before 

interrogating him. Miranda, 384 US at 444, 478-479. Since defendant was not advised of and 

 6 Because he could not testify whether his interrogation occurred before or after Officer Wright’s 

interrogation of defendant, it is unclear whether defendant made the incriminating statements 

before or after he was handcuffed. 
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did not waive his Miranda rights, the statements he made at the hospital in response to police 

interrogation were inadmissible and should have been suppressed. Id.; People v Roberts, 292 

Mich App 492, 505; 808 NW2d 290 (2011). 

We also conclude that there is a reasonable probability that but for counsel’s failure to 

timely file a motion to suppress defendant’s statements, the outcome of the trial may have been 

different. Pickens, 446 Mich at 314. A reasonable probability means “a probability sufficient to 

undermine confidence in the outcome.” Strickland, 466 US at 694. Other than defendant’s 

incriminating statements to police made at the hospital, the remainder of the evidence of 

defendant’s guilt was circumstantial. The victim could not identify defendant as the robber. The 

photographic evidence plaintiff presented was inconclusive because it only showed a typical 

African American male’s nose, which could have matched numerous other individuals. The 

lapse of time between the robbery and the traffic stop made defendant’s claim that he was at a 

house party potentially plausible. In fact, some evidence from the robbery was missing at the 

time of the traffic stop and the vehicle crash, such as the landline phone stolen from the party 

store and the majority of the cash taken from the cash register, implying that the robbers stopped 

somewhere between the time of the robbery and the traffic stop. The difference between the 

$270 found in the vehicle and the $800 to $1,000 taken from the party store could also support 

defendant’s contention that he was not the masked robber; therefore, only Jackson’s share of the 

robbery proceeds were found in the vehicle. Finally, at the time of the traffic stop, defendant 

was not wearing any of the clothes seen on the masked robber at the party store. All of those 

clothes were found in the backseat of the vehicle defendant was driving. Given defendant’s 

claim that several people shared the same vehicle, it was plausible that another individual robbed 

the party store and left his clothes in the backseat of the vehicle. 

Given the circumstantial nature of the above evidence, we conclude that without

defendant’s incriminating statements to police given at the hospital, the outcome of the trial may 

have been different. Pickens, 446 Mich at 314. As defendant argues on appeal, his statements to 

the police were incredibly “damning.” The statements not only placed him at the party store on 

the night of the robbery, they also identified him as the second robber. If the jury had not heard 

defendant’s incriminating statements, it would likely have struggled with the remaining 

circumstantial evidence of defendant’s guilt, and there existed a reasonable probability that the 

jury would not have convicted him of the armed robbery. We conclude that the trial court’s 

decision to admit defendant’s incriminating statements into evidence, without holding any 

hearings—to suppress, Walker, or Ginther—undermined confidence in the outcome of the trial 

court proceedings.7

We reverse defendant’s convictions and remand for a new trial. We do not retain 

jurisdiction.

/s/ /Brock A. Swartzle

/s/ Jane E. Markey 

 7 In light of our conclusion, we need not address defendant’s remaining claims of error.