People v. Bell

131 Mich. App. 586 (1983) 345 N.W.2d 652

PEOPLE
v.
BELL

Docket No. 65299.

Michigan Court of Appeals.

Decided December 14, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Jeffry R. Jurmu, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.

State Appellate Defender (by R. Steven Whalen), for defendant on appeal.

Before: M.J. KELLY, P.J., and HOOD and SHEPHERD, JJ.

PER CURIAM.

On January 22, 1982, defendant was convicted of second-degree murder, MCL 750.317; MSA 28.549, and was subsequently sentenced to from 8 to 30 years imprisonment. She appeals as of right.

Right after being arrested, defendant was advised of her rights pursuant to Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966). Later, while being booked at the county jail, she asked to telephone her parents in Texas. Even though she was not advised of her Miranda rights again, at least three officers stayed during the telephone conversation and overheard what she said. Her conversation, admitting the killing to her mother, was later testified to at trial.

Defendant now argues that the admission of this evidence violated her Fourth, Fifth, and Sixth Amendment rights. We disagree on all three counts. First, to establish a Fourth Amendment violation, a defendant must have had a reasonable expectation of privacy. Katz v United States, 389 U.S. 347; 88 S. Ct. 507; 19 L. Ed. 2d 576 (1967); Jenson v Pontiac, 113 Mich. App. 341, 346; 317 NW2d 619 (1982). Under the circumstances, defendant had no reasonable expectation of privacy. Second, because there was no interrogation, Miranda was not violated. Rhode Island v Innis, 446 U.S. 291; 100 S. Ct. 1682; 64 L. Ed. 2d 297 (1980). Moreover, volunteered statements (such as these) do not violate Miranda. People v Hartford, 117 Mich. App. 413; 324 NW2d 31 (1982). Third, because defendant did not assert her right to counsel, that right was not violated. Edwards v Arizona, 451 U.S. 477; 101 S. Ct. 1880; 68 L. Ed. 2d 378 (1981); People v Paintman, 412 Mich. 518; 315 NW2d 418 (1982), cert den 456 U.S. 995; 102 S. Ct. 2280; 73 L. Ed. 2d 1292 (1982).

Defendant also argues that the trial court erred in failing to instruct the jury on intoxication as a possible defense. However, this issue has been settled by People v Langworthy, 416 Mich. 630; 331 NW2d 171 (1982). This Court has no power to overrule our Supreme Court.

Affirmed.