Hillsdale Circuit Court LC No. 17-414055-FC
Before: Swartzle, P.J., and Gleicher and M. J. Kelly, JJ.
take a person into custody for questioning related to a
murder. Police explain to the person his rights under
Miranda v Arizona. The person exercises his right to
remain silent, but while being escorted to a cell, he
reinitiates a discussion, and police immediately return him
to the interview room. He is reminded that his
Miranda rights had been read to him earlier, and he
agrees to talk. Under this fact pattern, must the
person's incriminating statements made during the
reinitiated interview be suppressed?
asks us to hold so, but he does so without support. Instead,
we hold that there is no bright-line rule that, in the
absence of rereading the person his Miranda rights a
second time when discussions are reinitiated, the
person's subsequent statements must be suppressed.
Rather, the test is whether, under the totality of the
circumstances, the person voluntarily, knowingly, and
intelligently waived his right to counsel and to remain
silent. Under the circumstances here, there is no basis to
suppress defendant's incriminating statements made to
police. Further concluding that there is no other ground for
reversal, we affirm defendant's convictions for
first-degree murder and felony-firearm.
April 2, 2017, the victim's body was found in a wooded
area in Hillsdale County. The medical examiner determined
that the victim died because he was shot five times; four
bullets entered his left side and one bullet entered his
right side. The medical examiner opined that the shots had
been fired contemporaneously and that the single gunshot
wound to the victim's right side appeared to be from a
smaller bullet. Police recovered two .45 caliber bullets from
the victim's jacket and sweatshirt, and concluded that
both of those bullets had been fired from the same weapon. In
addition, the medical examiner recovered a .45 caliber bullet
from the victim's body during the autopsy.
DEFENDANT CONFESSES BUT LATER MOVES TO SUPPRESS
officers interviewed Ashley Hoath,  a woman who dated the victim
at various times. Ashley ultimately pleaded guilty to
second-degree murder arising from the victim's death, and
the trial court sentenced her to serve 25 to 40 years in
prison. This Court denied her delayed application for leave
to appeal, People v Hoath, unpublished order of the
Court of Appeals, entered June 29, 2018 (Docket No. 343918),
and our Supreme Court also denied her application for leave
to appeal, People v Hoath, 503 Mich. 889 (2018).
Based on information that Ashley provided, police arrested
defendant in connection with the victim's death. Police
did not immediately interview defendant at the time of his
arrest because he was intoxicated.
Wesley Ludeker and Sergeant Kevin Bradley of the Hillsdale
County Sheriff's Department interviewed defendant on the
morning after his arrest. Defendant subsequently moved to
suppress the statements he gave to police that day.
Bradley testified at the pretrial hearing on defendant's
motion to suppress that when they questioned him, defendant
was cogent, alert, and communicating well. Police recorded
defendant's first interview, and during this interview,
Deputy Ludeker read defendant his Miranda rights
from a prepared card. Defendant asked, "So I can stop
answering questions any time I want?" According to
Sergeant Bradley, Deputy Ludeker agreed that defendant could
do so, and defendant said "Okay, then." Deputy
Ludeker told defendant that he had spoken with Ashley and she
was "selling him down the river" because she blamed
him entirely and denied any involvement in the victim's
death. At that point, defendant asserted his right to counsel
and police ceased the interrogation. The recording of this
first interview indicates that it lasted only four minutes.
Jeffrey Miller testified that he retrieved defendant from the
interview room and began escorting him to the jail. Deputy
Miller did not recall saying anything to defendant as he
escorted defendant back to his cell. When they were just a
few feet away from the interview room, defendant said,
"Hey, could you tell those guys however Ashley said it
happened, I'm willing to sign whatever." Deputy
Miller agreed to convey that message, and he secured
defendant in his jail cell. Deputy Miller then told Deputy
Ludeker what defendant said, and another police officer
escorted defendant back to the interview room. Importantly,
only a few minutes passed between the initial reading of
defendant's Miranda rights, his invocation of
his right to counsel, and his subsequent decision to submit a
Bradley testified that, after defendant's first
interview, he went to the undersheriff's office. Deputy
Ludeker then informed the sergeant that defendant reinitiated
a discussion, and the two police officers returned to the
interview room. Although they did not restart the recording
device, they instructed another police officer to do so.
Sergeant Bradley admitted that neither he nor Deputy Ludeker
reread defendant his Miranda rights verbatim from
the prepared card after defendant reinitiated the discussion
to Sergeant Bradley, Deputy Ludeker reminded defendant that
he had invoked his right to counsel and asked him if he had
changed his mind and wanted to talk to them. Defendant told
them that he had changed his mind, he wanted to speak with
them, and he immediately informed the officers,
"Whatever Ashley said happened, is what happened."
Sergeant Bradley testified that, after they had been speaking
with defendant for some time, an officer knocked on the door
of the interview room and asked him to step outside. Sergeant
Bradley learned that the recording of this second discussion
had missed the initial 30 to 45 seconds. Sergeant Bradley
then reentered the interview room and told defendant that he
respected him for speaking with police about the victim's
death, waiving his rights, and telling police what happened.
Sergeant Bradley said defendant responded "Yeah"
Ludeker testified that defendant left the interview room
after his first interview, but then asked to return and
agreed to waive his rights to counsel and to remain silent.
According to Deputy Ludeker, he reminded defendant that he
had been read his Miranda warnings, then asked
defendant if he understood his rights, and defendant said,
"Yes." Defendant then explained that he remembered
being read his rights, understood them, waived them, and was
prepared to give a statement. Deputy Ludeker testified that
defendant's first statement after waiving his rights was,
"Whatever Ashley said happened is how it happened."
also testified during the hearing on his pretrial motion to
suppress. He acknowledged that Deputy Ludeker read him his
Miranda rights during the first interview. Although
he asserted that he had just been on a nine-day alcohol and
drug binge, defendant nevertheless admitted that he
understood his rights when they were first read to him.
Defendant also admitted that he was brought back to the
interview room after stating that he wanted to speak with the
two investigating officers. The police officers did not
threaten him and treated him "great."
defendant conceded that he initiated the second interview
with police and that he voluntarily spoke with the police
officers during the second interview, he stated that he was
"spurred" to do so by Deputy Miller, who said
something to get his mind going about Ashley, and he feared
that Ashley might be in jail. Yet, defendant did not
elaborate on what specifically "spurred" him, and
there is nothing in the record to suggest that Deputy Miller
badgered defendant to reinitiate discussions. Defendant
testified that the police officers did not reread his
Miranda rights to him before the second interview,
but he admitted that Deputy Ludeker reminded him that he had
invoked his right to counsel and asked if he wanted to speak
to police again.
the close of proofs at the suppression hearing, defense
counsel argued that it was not enough that defendant
voluntarily spoke to the officers during the second
interview. Instead, defense counsel argued that there was a
bright-line rule that the officers had to reread
defendant's Miranda rights to him verbatim
before they could speak to him again. The trial court
disagreed with defense counsel that this was the law. The
trial court then found that defendant understood his rights
and waived them, and concluded that defendant's
statements made during the second interview were admissible:
would appear clearly to this Court based on the facts that I
have before me that the five minute hiatus, Mr. Clark waived
his rights. He invoked them. He knew them. He understood
them. He initiated conduct [sic]. He was reminded of the fact
that those rights were read to him. He [was] asked if
essentially he understood them. And that he wished to talk.
He admitted yes in all that regard.
not believe that the case law that had been cited referring
to Michigan and federal cases require a specific second
reading verbatim of Miranda rights. And that's
what I base my ruling on. If I am mistaken, obviously the
rights weren't read and if that's what the appellate
courts are standing on the proposition they must be read
verbatim, obviously it did not take place here.
don't believe that's what the case law interprets. I
don't think that's what the case law requires. So, I
deny the motion to suppress. Statements are admissible.
Second Interview. Defendant's second interview was
played at trial for the jury. It lasted approximately 30
minutes, including several breaks. As noted earlier, the
recording does not capture the beginning of the interview.
Instead, the recording begins abruptly with defendant and a
police officer already speaking. On the recording, the
officers told defendant that they could not simply take
Ashley's word for what transpired and that they needed to
hear defendant's version of events. The officers also
told defendant that they wanted the truth and that they did
not want someone to confess if that person was not
responsible for the shooting.
the second interview, defendant told police that he shot the
victim with a .45 caliber revolver, that the victim was dead,
and that he definitely "pulled the trigger."
Defendant admitted that he shot the victim several times,
estimating that he had fired "three or four" shots
while the victim was seated in defendant's Chevrolet
Tahoe. Although defendant stated that he drove 20 to 30
minutes outside of town before he shot the victim, he
explained that he could not remember exactly where the
shooting occurred because he was intoxicated from the
consumption of alcohol and methamphetamine.
first insisted that Ashley was not with him when he shot the
victim. When police told him that Ashley had admitted being
there, defendant responded that Ashley did not lie, and if
she said that she was there, then she was there. Although
defendant never stated to police that he planned to kill the
victim, he nevertheless complained that no one was helping
Ashley, and stated that her father could not "do
it." He also told the officers that he had never met the
victim prior to the shooting and that he needed Ashley to
identify the victim for him.
asked defendant about the firearm used to shoot the victim.
Defendant stated that the officers would never find the
firearm because he had melted it down at his stepfather's
house. Police also asked defendant about his Chevrolet Tahoe,
and defendant explained that he cleaned the vehicle with a
mix of chlorine and peroxide and traded it for the Ford
Mustang that he was driving on the day of his arrest. When
police asked why the Tahoe's back seat had been burned,
defendant asked, "How did you know that I burned the
seat?" Defendant then stated that after he burned the
back seat, he disposed of it and some bicycles in a scrap
the second interview, a police officer also told defendant
that he had heard-and not just from Ashley-that defendant
might have done something like this before. Defendant
explained that he told Ashley all kinds of "stuff"
to make her feel that he was okay with the victim's
death. The police officer responded that Ashley made it sound
like defendant used to do "this for a living,"
implying that defendant was a killer-for-hire. Defendant
responded that the victim was the only person he had ever
of Vehicle and Ohio Property. When police arrested him,
defendant was driving a Ford Mustang with an Ohio license
plate. Jason Eisenmann, who lived in Ohio, testified that he
advertised a Ford Mustang for sale online, that defendant
offered to trade the Tahoe for the Mustang, and that he
accepted the offer. When defendant delivered the Tahoe,
Eisenmann saw that it did not have a back seat, but it
appeared to be otherwise clean. Eisenmann did not clean the
Tahoe; he only drove it for about a week before the fuel pump
failed, and police seized the vehicle about two weeks later.
Lance Benzing testified that he seized the Tahoe from
Eisenmann's property. He stated that the Tahoe was
missing a back seat and a large section of carpet. Based on
information from an informant, Detective-Lieutenant Benzing
also searched a property in Ohio owned by members of
defendant's family. The property included a
"garage-type barn" with a camper. The garage had
vehicles, mechanic's tools, welding equipment, and
motorcycles; it appeared to be used for both storage and as a
place to work on vehicles. The detective saw a burn spot
behind the barn and found items within the burn spot-metal
bracketing, a piece of vinyl, and a seatbelt buckle-that were
consistent with the interior of a Tahoe. He seized a burned
vehicle seat on which bicycles had been piled. He transported
the vehicle seat back to Michigan, and it fit into the Tahoe.
The detective also searched the Ohio home of defendant's
brother. He seized a .22 caliber handgun from the
brother's residence and found property that belonged to
forensic scientists employed by the Michigan State Police
testified that they were unable to recover evidence from the
Tahoe. One stated that she tested the Tahoe and did not find
any indication of blood around the area where the back seat
would have been. She did recover some blood drops, but they
did not match the victim. She stated that, although the
chemical used for testing is very sensitive, bleach and other
detergents will degrade samples. Another forensic scientist
testified that he tested the Tahoe for fingerprints and did
not find any that matched the victim, defendant, or Ashley.
Finally, a third forensic scientist testified that he was
unable to identify any fibers from the Tahoe on the
victim's clothing and did not find any fibers from the
victim's clothing in the Tahoe.
of Temples and Jolene. Michael Temples testified that he
was a resident of the county jail. For several days, he
shared a cell with defendant. Temples testified that
defendant was often upset, crying, and distraught. According
to Temples, defendant told him that he had already talked to
police and that he was in jail because he shot and killed the
victim. Defendant told Temples that he turned around in his
Tahoe and shot the victim because the victim had called
Ashley an unflattering name. Defendant also claimed that the
victim was abusing Ashley. Defendant explained that he told
the police officers that he cut up the gun he used, but in
reality, he put the gun in the sewage tank of a camper.
Defendant also told Temples that he washed the Tahoe with
bleach and peroxide, removed the Tahoe's back seat, and
burned it near the camper. Temples testified that he related
defendant's statements to police because "it was the
right thing to do."
counsel called Jolene Hoath, Ashley's sister, to testify
on defendant's behalf. Counsel asked whether Ashley spoke
to her about the victim's death, and Jolene answered that
she had. Jolene testified that Ashley stated that she knew
that the body that was recently found was the victim's
body; Jolene asked Ashley how she knew that the body was the
victim's, and Ashley told her that she "did
counsel then asked Jolene whether they had other
conversations about the victim's death, and Jolene said
that they spoke about the matter again the next day. She
related that Ashley was distraught, and Ashley stated that
she was scared of "the guy" and that the "guy
did it." Jolene further testified that Ashley
"never said a name." Defense counsel asked Jolene
whether Ashley was a habitual liar, but the prosecutor
objected and the trial court sustained the objection. Defense
counsel then elicited testimony from Jolene that Ashley did
not have a reputation for telling the truth.
cross-examination, the prosecutor asked Jolene about the day
when Ashley was crying. The prosecutor asked her if Ashley
ever told her the name of the man of whom she was afraid.
Jolene stated that Ashley said that she was afraid of
defendant. Jolene indicated that Ashley did not say why, just
that she was afraid defendant would hurt her. The prosecutor
then asked whether Ashley told her that defendant was the
person who shot the victim. Defense counsel objected and the
trial court overruled the objection. The prosecutor asked the
question in a different way: "She told you that this
other guy was the one who shot" the victim. Jolene
stated, "Yes, she did." On redirect, Jolene
explained that Ashley finally told her that defendant was the
one who shot the victim after information regarding the
victim's death came out in the news.
Refused to Testify. The prosecutor also called Ashley as
a witness at defendant's trial, but she refused to
testify. Although both parties appear to have believed that
Ashley would testify, she refused to do so after she was
called to the witness stand. Ashley agreed to testify against
defendant as part of a plea deal that allowed her to plead
guilty to second-degree murder, and police made defendant
aware of the substance of her statements implicating him in
the shooting. The prosecutor gave defendant notice that he
intended to call Ashley as a witness at his trial, and
provided defense counsel with a summary of her criminal
convictions, which suggests that the prosecutor expected that
Ashley would testify and be subject to cross-examination.
prosecutor's opening statement, he stated that Ashley
would be testifying. He informed the jury that she had
initially denied any role in the shooting, but that she
subsequently admitted participating in the shooting and
pleaded guilty to second-degree murder. He stated that Ashley
told police that defendant shot the victim, but did not
otherwise elaborate about her proposed testimony. Similarly,
in her opening statement, defense counsel informed the jury
that Ashley would testify. She predicted that when Ashley did
so, the jury would see that her statements blaming defendant
were not credible, that she was not an innocent victim, and
that she was a liar. Defense counsel told the jury that she
would also be asking Ashley about an incident during which
she beat her sister into unconsciousness, and stated that
there would be evidence that Ashley once paid the
victim's bond to get him out of jail. Finally, defense
counsel argued that the police officers did not conduct a
thorough investigation regarding the victim's death, but
only chose to investigate those details that fit Ashley's
version of events.
afternoon of the first day of trial, the prosecutor informed
the trial court that his next witness was Ashley, but that
she had not yet arrived. The trial court ordered a brief
recess. After the trial court resumed proceedings and the
jury was seated in the courtroom, the prosecutor called
Ashley to the witness stand. The trial court then placed her
under oath and asked her to spell her name, which she did.
After the trial court told the prosecutor that he could begin
his examination, the following exchange occurred in the
presence of the jury:
The Witness: Your Honor, I want to file a verbal
motion to withdraw my plea.
The Court: Ma'am-ma'am-ma'am.
The Witness: It was not willful-
The Court: Ma'am, you're out of order. This
is not the place nor the-the time for that ...