People of Michigan v. Manuel Francisco Gamez ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 2, 2016
Plaintiff-Appellee,
v No. 324199
St. Clair Circuit Court
MANUEL FRANCISCO GAMEZ, LC No. 14-000185-FC
Defendant-Appellant.
Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of two counts of premeditated first-
degree 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 750.85. Defendant was sentenced
as a habitual offender, third offense, MCL 769.11, to two sentences 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 convictions. For the reasons set forth in this
opinion, we affirm.
A. FACTS
Defendant’s convictions arise out of 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. On July 30, 2013, neighbors discovered the victims’ bodies in the
bathtub of Ichenberg’s home after Ichenberg’s six-year old daughter 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 home showed signs that
someone attempted to clean up the scene. The linoleum tile floor 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 blood stain that they discovered
inside a kitchen drawer. Subsequent testing showed that the blood in the drawer matched
defendant’s DNA profile and a print expert testified that a footprint on the kitchen floor matched
defendant’s footprint.
Detective Karen Brisby conducted a forensic interview of six-year-old AI shortly after
the murders. AI explained to Brisby that on the night of the murders, her mother’s “weird
-1-
friend” came over. The friend was “weird” because AI did not know him, but at one point AI
referred to the friend as “Manuel.” The “weird friend” was sitting 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 subsequent interview, AI stated that she
“never heard mommy scream like that before.”
Dr. Daniel Spitz, St. Clair County Chief Medical Examiner, performed 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 to her neck that were indicative of
manual strangulation and of ligature strangulation and he listed strangulation as the cause of
death. Melissa’s various injuries were indicative of a struggle and she had numerous injuries to
her face, chin, neck, torso, upper chest, and extremities. Melissa 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 and she suffered injuries to her
scalp, which indicated that she suffered blows to the head. Melissa 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 went through McRoberts’ neck.
Dr. Spitz reviewed photographs that police took of defendant a couple days after the
murders. Dr. Spitz testified that defendant had sharp force injuries to the palm of his hand and
had some “incised wounds.” The injuries were consistent with losing control of a knife and the
hand having come into contact with the knife blade. The wounds were not defensive in nature.
A prosecution witness testified that sometime before the murders, 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 cause “family drama.”
During the days immediately after the murder, defendant made statements to several
friends and family members that showed that he had information about the murders. Aimee
Feiler testified that she knew members of defendant’s family because she previously dated
defendant’s brother Jose. Feiler explained that during the summer of 2013, Jose and Melissa
were involved in a dating relationship. Jose lived in Port Huron 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 approximately 3 or 4 p.m. Minerba
planned to spend the night at Feiler’s house and defendant, who did not own a car, asked Feiler if
he could ride along because he was going to do a tattoo for someone “on the north side.” Feiler
agreed, and defendant put his bicycle in the back of Feiler’s pickup 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
-2-
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 July 29, 2013, to do a tattoo, but
Melissa did not have any money for the tattoo. Defendant stated that he and Melissa eventually
had consensual sex, but stated that he used a condom and then flushed it down the toilet.
Defendant stated that Melissa was fine when he left her house late in the evening, but he recalled
seeing two men standing outside near the home. According to Feiler, defendant was “paranoid”
that police would find his fingerprints 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. Defendant told Jose that he saw
men outside Melissa’s townhome, and Jose told defendant that he needed to go to the police.
On August 1, 2013, at about 11:30 a.m., Jose drove defendant to 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 interview 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 department, Deputy Martin Stoyan brought defendant to a large
conference room that had large windows overlooking a river where Stoyan and Detective Robert
Kerrigan proceeded to interview defendant. Stoyan and Kerrigan were in plain clothes and
interviewed defendant from 11:50 a.m. until about 3:30 p.m. (hereinafter referred to as
“Conference Room Interview 1”). Neither Stoyan nor Kerrigan apprised defendant of his
Miranda2 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 parole detainer. According to the
officers, prior to 3:30 p.m., defendant was free to leave. Defendant 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, defendant appeared fine, he answered
questions voluntarily, and he appeared alert and did not appear to be under the influence of drugs
or alcohol. When defendant repeatedly stated that he was hungry, Kerrigan offered defendant a
Power Bar, water, and an apple, but defendant declined. Defendant did not admit to committing
the crimes during this initial interview and the trial court held 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 based on testimony at trial and at a Walker hearing.
2
Miranda v Arizona, 384 U.S. 436, 458; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966).
-3-
At about 3:30 p.m., on Kerrigan’s request, Officer Jeremy Young entered the conference
room to photograph cuts and injuries that defendant had on his body. Young informed defendant
that he was not going anywhere because of a parole issue. Young asked defendant if he was
hungry and stated that some of the cadets were going to McDonald’s and would get something
for defendant. Defendant did not respond, but Young eventually provided defendant with a
cheeseburger meal from McDonald’s.
At a Walker3 hearing, Young agreed that as of 3:30 p.m., defendant was in custody 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 defendant of his rights.
From 3:30 p.m. until about 6:18 p.m., Young and Stoyan continued 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 either of the victims and he denied
having sex with Melissa. At one point, defendant stated, “either way it goes, I am f------,” and
stated that he was in “the wrong place at the wrong time.” Defendant 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. Defendant reentered the home and, upon
hearing noises, hid underneath some laundry while an unidentified 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 the living room and his face,
hands, and mouth became covered in blood. Defendant also stated that he saw that someone
dragged McRoberts’ body upstairs to the bathtub and he saw McRoberts 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 then 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 agreed 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 stipulated that Conference Room Interview 2 was
inadmissible because defendant was in custody and police interrogated 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 reasoned 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 interrogation 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 fails to comprehend that, despite the prosecutor’s stipulation, the
-4-
his telephone call to Jose were admissible, reasoning that these statements were not the result of
custodial interrogation because they were not responses to questions from a police officer.
Following the court’s ruling, apart from references to a polygraph, at trial, the prosecution
introduced the entire recording and transcript of Conference Room Interview 2.
POLYGRAPH EXAMINATION (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 immediately advised defendant of his Miranda rights and defendant
acknowledged he understood his rights 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 marijuana joint in the past 24 hours. Defendant previously had
seen a psychiatrist as part of an exit interview when he was released from prison a couple years
earlier on a different conviction, but otherwise did not have any psychological issues.
Dykstra took about an hour to do a pre-test interview with defendant where defendant
waived his Miranda rights. Dykstra then allowed defendant to take about a 30-minute break
while he prepared the testing equipment. Defendant went to the restroom and refilled his water
bottle. After that, Dykstra conducted the polygraph examination, which took about an hour.
The trial court barred any reference to the polygraph test at trial,5 but allowed Dykstra to
testify about the statements defendant 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 witnessed an intruder stab McRoberts.
POST-MIRANDA INTERVIEW (9:30 p.m. to 12:00 a.m.):
After Dykstra completed the polygraph examination, defendant was 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 Stoyan continued questioning defendant in a “booking room.”
At the outset, after a few questions, Stoyan reminded defendant that 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 defendant replied “no,” and the
interrogation continued.
After repeating his original narrative, defendant eventually admitted 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 that he killed her.
trial court nevertheless held that all of defendant’s statements were admissible and the prosecutor
introduced the statements at trial.
5
Evidence of the polygraph was not introduced at trial and none of the officers referenced the
polygraph during their trial testimonies.
-5-
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-heaving and “spitting” into a
wastebasket. Young stated that it did not appear that defendant shed “real tears” and defendant
did not vomit “authentic vomit.” Young stated that defendant had just eaten pizza and did not
appear to vomit from the pizza. Young did not believe that defendant needed medical attention.
Young testified that the interview ended at about 12:00 a.m. when defendant demanded to be
taken home or taken to jail. Before that, Young testified that defendant did not tell police to stop
questioning him.
The trial court held that statements made during the booking room interview were
voluntary and admissible. The court found that defendant was reminded of his Miranda rights,
the questioning was not inherently coercive or intimidating, and there was no undue pressure.
The court reasoned that defendant had prior experience with police 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 interview during the pre-
arraignment process. Specifically, Marian Pike, who worked in pre-trial services for the Port
Huron County Sheriff’s Department, testified that she filled out 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 second-degree home invasion. Kristine Seppo testified that in
September 2005 she was age 23 and living in her parent’s home in Port Huron. Shortly after
defendant moved two houses down from her home, she rejected defendant’s advances and
informed him that she was not interested in being in a dating relationship with him. Seppo
explained that, sometime thereafter, defendant broke into her parents’ home and entered her
bedroom during the early morning hours of September 14, 2005, when her dad was out of town.
Defendant placed his hand over her mouth and began strangling her. Eventually, she and
defendant fell onto the floor fighting. Defendant got up and ran out the door when he heard the
family’s pet pit bull barking down the hallway. Defendant ultimately pleaded guilty to second-
degree home invasion for the incident and admitted breaking into Kristen’s bedroom.
The prosecution argued that the prior assault showed that defendant acted according to a
common plan or scheme when he assaulted Melissa and that defendant had motive and intent to
kill Melissa and McRoberts because, unlike the prior assault, this time defendant did not want to
leave any witnesses.
EVIDENCE OF JAILHOUSE TELEPHONE CALLS
The prosecution introduced evidence of two telephone calls that defendant placed to a
female friend from jail while he was awaiting trial. During the first phone call, defendant stated
that a voice in his head committed the crimes as follows:
Female Voice. Did you do this?
-6-
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, what 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 bruises, 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 do my things
hurt? Why, why do I have cuts? And 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 that . . . Every time I
close my eyes I see these two people laying in front of me.
Defendant was convicted and sentenced as set forth above. This appeal ensued.
B. ANALYSIS
I. FIFTH AMENDMENT
Defendant contends that the trial court erred in denying his motion to suppress the
statements he made to police during the interview. Defendant contends 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 all of the statements he made after
that point forward.
We review de novo a trial court’s ruling on a motion to suppress 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 underlying constitutional issues are reviewed
de novo. Id. To the extent we find that a constitutional 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 harmless if [it is] clear beyond a reasonable 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 coercive nature
of custodial interrogations implicated a defendant’s Fifth Amendment 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 Mich. 642 (2012), citing Miranda v
Arizona, 384 U.S. 436, 458; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966). To safeguard against coercion,
the Miranda court held that “the prosecution may not use statements, whether exculpatory or
inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-incrimination.”
Miranda, 384 U.S. at 444. “Accordingly, before conducting a custodial interrogation, the
interrogating officer must advise the suspect of [his or her constitutional] rights.” Vaughn, 291
-7-
Mich App at 189. “[U]nless and until 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 U.S. at 479. “However, the [Miranda] Court limited the requirement to custodial
interrogations—that is, interrogations that have a heightened risk of improper coercion.”
Vaughn, 291 Mich. App. at 189, citing Miranda, 384 U.S. 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 U.S. 318, 322; 114 S. Ct. 1526; 128 L. Ed. 2d 293 (1994).
An issue in this case is determining when defendant was in custody 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 questioned would gauge the breadth of
his or her freedom of action.” Yarborough v Alvarado, 541 U.S. 652, 663; 124 S. Ct. 2140; 158 L
Ed 2d 938 (2004) (quotation marks and citations omitted). “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.” 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. (Conference 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 this 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 handcuffed. The officers
interviewing defendant wore plain clothes and defendant had access 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 circumstances, it does not appear that
there was “a restraint on freedom of movement of the degree associated with formal arrest.”
Vaughn, 291 Mich. at 189; Yarborough, 541 U.S. at 663. Accordingly, police were not required to
advise defendant of his Fifth Amendment rights and the statements 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 product 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 response to interrogation); Arizona v Mauro, 481 U.S. 520, 527-530; 107 S. Ct.
1931; 95 L. Ed. 2d 458 (1987) (holding that statements the defendant 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 custodial 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 the prosecution’s stipulation that
it would not use any of defendant’s statements during this timeframe, the trial court egregiously
erred as a matter of law when it held that defendant was not entitled to his Miranda rights absent
-8-
coercive tactics employed by the police. The law governing when Miranda is triggered is well-
settled and is a fundamental component of any basic criminal procedure course: irrespective of
tactics employed, “before conducting a custodial interrogation, the interrogating officer must
advise the suspect of [his or her constitutional] rights.” Vaughn, 291 Mich. App. at 189; Miranda,
384 U.S. at 444. This is because “[f]ailure to administer [Miranda] warnings creates a
presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary . .
. must nevertheless be excluded from evidence under [Miranda].” Oregon v Elstad, 470 U.S. 298,
307; 84 L. Ed. 2d 222; 105 S. Ct. 1285 (1985).
In this case, the state does not contest that defendant was in custody starting at 3:30 p.m.
Thus, at that point, police were constitutionally required to advise defendant of his Fifth
Amendment rights before engaging in any further questioning. Miranda, 384 U.S. at 444.
Because Young failed to do so before continuing the interrogation, 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. until defendant waived his
Miranda rights at about 6:30 p.m. when he was in Dykstra’s office. The 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 guilty absent the error.” Dendel, 289
Mich. App. at 475.
The pre-Miranda custodial statements that defendant made were harmful to the defense.
Although defendant did not admit to killing either of the victims, defendant made statements that
were somewhat incriminating. Defendant told a fantastical narrative that he hid in the laundry
room while some unidentified men killed Melissa and McRoberts before he slipped in blood and
cleaned up the crime scene. Defendant’s narrative contrasted with 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 murders.
Although defendant’s statements were prejudicial, the prosecution introduced a
substantial amount of other evidence 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 testified that they saw a bike parked in
front of Melissa’s house that matched the description of defendant’s bike. There was testimony
that, shortly before the murders, Melissa informed a friend that defendant was stalking her and
there was evidence that defendant attempted to contact Melissa on July 4, 2013. Melissa’s six-
year-old daughter stated during a forensic interview that a man named “Manuel” was in her
mother’s bedroom immediately before she went to bed on the night of the murders and the child
then heard her mother screaming during the same night. In addition, during the days following
the murders, defendant told Feiler and Jose that he was at Melissa’s house on the night of the
murders. Feiler testified that defendant 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 home at the time of the murders and
-9-
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 there were bare or sock-clad footprints
over the top of the cleaned floor. A print expert testified that one of the footprints near the
kitchen sink matched defendant’s footprint, which supported the inference that defendant 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 evidence 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 scene is indicative of
consciousness of guilt).
Moreover, a DNA expert testified that defendant’s DNA matched the DNA of a blood
droplet discovered inside a kitchen drawer. Finally, Dr. Spitz testified that the victims had
multiple injuries that showed signs of a struggle. Police photographed injuries on defendant’s
body within days of the murders that supported the inference that defendant was the man that the
victims struggled against.
In addition, the prosecution introduced other-acts evidence that supported that defendant
had motive and intent to commit the crimes and that strangulation was his modus operandi.
MRE 404(b). Evidence of the prior attack on Seppo supported the inference that, after Melissa
rejected defendant’s advances, defendant assaulted Melissa in the same manner as he assaulted
Seppo. Defendant’s prior conviction supported the inference that he had motive and intent to kill
any potential witnesses after he sexually assaulted Melissa because, 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 always relevant”).
Finally, the prosecution introduced incriminating statements that defendant voluntarily
made that were not the products of custodial interrogation. Defendant called Jose at some point
while he was at the police department and stated that he witnessed someone kill the victims.
This narrative conflicted with what defendant previously told Jose and was indicative of
defendant’s consciousness of guilt. See id. at 225-226 (“[C]onflicting statements tend to show a
consciousness of guilt”) (quotation marks omitted)). Additionally, during the pre-arraignment
phase, defendant made an unsolicited statement that he “only killed one” of the victims.
Furthermore, defendant made two telephone calls from jail wherein he admitted that his “body”
strangled Melissa and stabbed McRoberts.
In sum, apart from the inadmissible statements, there was substantial evidence of
defendant’s guilt such that a rational jury would have found defendant guilty beyond a
reasonable doubt even absent the court’s constitutional error. Dendel, 289 Mich. App. at 475.
Accordingly, defendant is not entitled to a new trial on this basis. Id.
POST-MIRANDA STATEMENTS:
The trial court did not err in holding that the statements defendant made from 6:30 p.m.
until about 12:00 a.m. were admissible. Dykstra advised defendant of his Miranda rights before
he conducted the polygraph examination. Defendant did not dispute 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 stated he did not have questions
-10-
about the form. On appeal, defendant does not dispute that Dykstra 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 U.S. 600, 624; 124 S. Ct. 2601; 159 L. Ed.
2d 643 (2004). In contrast, the state argues that all of defendant’s post-Miranda statements are
admissible pursuant to Elstad, 470 U.S. 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 advised of his
Miranda rights, one of the officers sat with the defendant in the living 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 department 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 improper “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 or other
circumstances calculated to undermine the suspect’s ability to exercise his free
will, so taints the investigatory process that a subsequent voluntary and informed
waiver is ineffective for some indeterminate period. Though Miranda requires
that the unwarned admission must be suppressed, the admissibility of any
subsequent statement should turn in these circumstances solely on whether it is
knowingly and voluntarily made. [Elstad, 470 U.S. at 309.]
***
We must conclude that, absent deliberately coercive or improper tactics in
obtaining the initial statement, the mere fact that a suspect has made an unwarned
admission does not warrant a presumption of compulsion. A subsequent
administration of Miranda warnings to a suspect who has given a voluntary but
unwarned statement ordinarily should suffice to remove the conditions that
precluded admission of the earlier statement. In such circumstances, the finder of
fact may reasonably conclude that the suspect made a rational and intelligent
choice whether to waive or invoke his rights. [Id. at 314.]
In Seibert, 542 U.S. 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 defendant of her Miranda rights. Id.
After the defendant confessed and took a smoke break, police provided 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 interrogators question first and warn later is thus
whether it would be reasonable to find that in these circumstances the warnings
could function ‘effectively’ as Miranda requires. Could the warnings effectively
-11-
advise the suspect that he had a real choice about giving an admissible statement
at that juncture? Could they reasonably convey that he could choose to stop
talking even if he had talked earlier? For unless the warnings could place a
suspect who has just been interrogated in a position to make such an informed
choice, there is no practical justification for accepting the formal warnings as
compliance with Miranda, or for treating the second stage of interrogation as
distinct from the first, unwarned and inadmissible segment. [Id. at 611-612.]
The Seibert Court held that, under the circumstances of that case, the subsequent
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 U.S. 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 questioning in that particular case, but posing no threat to warn-first
practice generally.” Seibert, 542 U.S. at 615. “At the opposite extreme,” the Seibert Court
explained,
are the facts here, which by any objective measure reveal a police 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 finished 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 overlapping content of the two
statements, the timing and setting of the first and the second, the continuity of
police personnel, and the degree to which the interrogator’s questions treated the
second round as continuous with the first. [Seibert, 542 U.S. at 615 (footnote
omitted).]
In this case, the Miranda warnings provided by Dykstra were effective given the facts
and circumstances. Seibert, 542 U.S. at 611-612. Unlike in Seibert, in this case the evidence does
not support that police employed a strategy “adapted to undermine” the Miranda warnings. Id.
at 616. Here, defendant voluntarily appeared at the police department. Police interviewed
defendant for over three hours when defendant was not in custody. When Young informed
defendant that he was not free to leave, Young continued the interrogation 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.
-12-
Moreover, unlike in Seibert, in this case, defendant did not confess prior to being advised
of his rights. Instead, defendant made incomplete and vague statements about how he witnessed
other men commit the crimes. Thus, there was low overlap between the unwarned and warned
statements. Id. at 615. In addition, the setting 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 conference room, but rather was
moved to a more formal interrogation room after being provided several breaks. Given all of the
circumstances, it is reasonable to conclude that the warnings effectively 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 U.S. 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 statements were involuntary, this argument fails.
“The test of voluntariness should 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 overborne and his capacity for self-
determination critically impaired.” People v Cipriano, 431 Mich. 315, 333-334; 429 NW2d 781
(1988) (quotation marks and citations omitted).
In determining whether a statement 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 questioning; 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 drugged, or in ill
health when he gave the statement; whether the accused was deprived 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 nearly 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 charges and a felony home invasion.
Defendant was familiar with the Miranda process and had previously spent 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 the interrogation, including a
McDonald’s meal and pizza. Defendant had a 30-minute break before the polygraph test.
Defendant was not detained for the entire time he was at the police department. Instead,
defendant voluntarily appeared at the police department for the interview and he was not in
custody for the first 3-½ hours of the process.
-13-
Defendant was not physically abused or threatened with physical abuse and Dykstra
testified that defendant did not appear deprived of sleep or food and was not under the influence
of intoxicants. Dykstra testified that defendant did not appear to have any psychological 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 ready to go home during the final
hours of the interrogation, defendant did not unequivocally assert his right to silence or request
an attorney. And, although defendant appeared to be under stress as the questioning wore on,
Young testified that defendant did not actually vomit and stated that defendant was not actually
crying. In short, given the totality of the circumstances, defendant’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 interrogation 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 constitutional error was harmless beyond a reasonable doubt where the
court properly admitted the other statements that defendant made and where there was a
substantial amount of other evidence 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 confessions. 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 show a connection between the
facts and the need for an expert witness. On appeal, defendant contends that the trial court erred
in denying his motion.
We review a trial court’s decision on a motion to appoint expert witnesses for an abuse of
discretion. People v Tanner, 469 Mich. 437, 442; 671 NW2d 728 (2003). “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.”
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 principled 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 rights.” People v Leonard, 224 Mich
App 569, 580; 569 NW2d 663 (1997), citing Ake v Oklahoma, 470 U.S. 68; 105 S. Ct. 1087; 84 L
Ed 2d 53 (1985). Fundamental fairness precludes a state from denying 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 compelled 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 between 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 benefit the defense, a trial court does not abuse its
-14-
discretion in denying a defendant’s motion for appointment of an expert witness.” Id. (quotation
marks omitted).
In this case, the trial court did not abuse its discretion in denying defendant’s motion for
appointment of an expert in false confessions because defendant failed to show more than a
“mere possibility” that the expert’s testimony would be beneficial to the defense. Tanner, 469
Mich. at 443. Here, defendant made statements to police that were 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 murders, defendant made statements to acquaintances that
showed he was at the scene on the night of the murders and he had numerous injuries on his
body that supported the inference he was involved in the violent 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 and intent to kill the victims and
that strangulation of female victims was his modus operandi. In short, on this record the trial
court did not abuse its discretion in denying defendant’s motion where defendant failed to show
how an expert in false confessions “would likely benefit the defense.” 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 evidence. People v Cline, 276
Mich. App. 634, 642; 741 NW2d 563 (2007). “In reviewing the sufficiency of the evidence in a
criminal case, we must view the evidence in a light most favorable 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 the jury on three alternative
theories of CSC-I: (1) sexual penetration occurred under circumstances involving the
commission of torture or first-degree murder; (2) sexual penetration occurred when the actor was
armed with a weapon or any article used or fashioned in a manner to lead the victim to
reasonably believe it to be a weapon; and (3) sexual penetration 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 was guilty of CSC-I under any of 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 acquaintances and to police that he
had sex with Melissa. While defendant claimed that he had consensual sex, the jury was free to
conclude that defendant was not credible and that he accomplished 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 fact and will not be resolved anew by this
Court.”). Moreover, it was plainly apparent that violence was perpetrated upon Melissa given
-15-
the numerous injuries that she had on her body and given that she was murdered. The evidence
of the wounds and the manner of death, coupled with the evidence of penetration would have
allowed a rational juror to conclude beyond a reasonable doubt that defendant engaged in an act
of sexual penetration under any of the three theories set forth above. Hoffman, 225 Mich. App. at
111.
Defendant appears to contend that his statements should not have 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 independent of the confession
establishing (1) the occurrence of the specific injury . . . and (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 evidence establishing the CSC-I
because Dr. Spitz agreed that the tears in the anal mucosa could 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. Spitz agreed on cross-examination that the tears could have
occurred during consensual sex, he also explained that, in context of all of the other injuries, “it
fits with the overall being an altercation and . . . an assault.” This testimony, coupled with
evidence of all of the injuries that were inflicted upon Melissa, amounted to evidence of CSC-I
independent of defendant’s statements 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 great 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, sadistic, 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 threatened infliction of great bodily injury.
***
(iii) The threat of imminent death.
(iv) The threat that another person will imminently be subjected to death, great
bodily injury, or the administration or application of mind-altering substances or
other procedures calculated to disrupt the senses or personality. [MCL
750.85(2)(d).]
The trial court instructed the jury consistent with the statutory 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
-16-
suffering. Defendant cites Dr. Spitz’s testimony that once compression on Melissa’s neck was
sufficient, death could have occurred very quickly. Dr. Spitz explained that death could have
occurred within 45 seconds to a minute, or within 10 to 15 seconds. With respect to McRoberts,
the evidence supported that there was a violent struggle. Defendant contends that the facts and
duration of the crimes does not support a finding that he intended to inflict cruel or extreme
physical or mental pain and suffering.
With respect to evidence of defendant’s intent, “because it can be difficult to prove a
defendant’s state of mind on issues such as knowledge and intent, minimal circumstantial
evidence will suffice to establish the defendant’s state of mind, 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 prosecution, a rational juror could
have concluded beyond a reasonable doubt that defendant intended 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 extreme physical or mental pain and suffering. See e.g. People v
Howard, 226 Mich. App. 528, 550; 575 NW2d 16 (1997) (noting that “evidence of injury is
admissible to show intent”). Evidence showed that Melissa sustained 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 strangle 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 object, or that someone hit her in
the head with a hard object. Melissa sustained deep-tissue injuries to her neck, chest, and back
all the way to her buttocks, she sustained significant hemorrhaging, and she had injuries to her
mouth. Melissa’s six-year old daughter stated that she never heard 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 supported that defendant sexually
assaulted Melissa.
With respect to McRoberts, Dr. Spitz testified that there was an extended struggle and his
death would have occurred within minutes, not seconds. McRoberts not only sustained deep stab
wounds to his vital organs, but he also sustained multiple small 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 doubt that the assaults were not quick, but rather, defendant
perpetrated them in a manner that evinced intent to inflict cruel or extreme physical or mental
pain and suffering. MCL 750.85; Kanaan, 278 Mich. App. at 622.
IV. MOTION TO QUASH
-17-
In an alternative to his sufficiency challenge, defendant contends that the trial court erred
when it denied his motion to quash the information with respect to the CSC-I and torture counts.
We review a trial court’s decision on a motion to quash the information for an abuse of
discretion. People v Miller, 288 Mich. App. 207, 209; 795 NW2d 156 (2010). A court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.
Babcock, 469 Mich. at 269.
“The purpose of a preliminary examination is to determine whether there is probable
cause to believe that a crime was committed and whether there is 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 prosecution must present ‘enough
evidence on each element of the charged offense to lead a person of ordinary prudence and
caution to conscientiously entertain a reasonable belief of [the 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 defendant’s motion to quash.
Miller, 288 Mich. App. at 209. The prosecutor was not required to prove the charges beyond a
reasonable doubt at the preliminary examination stage and instead presented enough evidence to
create a reasonable belief 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 report was entered into evidence. In
addition, Kerrigan and Young testified regarding statements defendant made during their
interview. The nature of the victims’ injuries coupled with the admissible portion of defendant’s
statements was sufficient to allow a person of ordinary prudence to form a conscientious and
reasonable belief that defendant was guilty of CSC-I and torture as charged. Id.
Affirmed.
/s/ Douglas B. Shapiro
/s/ Peter D. O’Connell
/s/ Stephen L. Borrello
-18-