Order Michigan Supreme Court
Lansing, Michigan
November 9, 2012 Robert P. Young, Jr.,
Chief Justice
144239 & (93) Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
PEOPLE OF THE STATE OF MICHIGAN, Mary Beth Kelly
Plaintiff-Appellant, Brian K. Zahra,
Justices
v SC: 144239
COA: 293284
Wayne CC: 08-013700-FC
VAUGHN MITCHELL,
Defendant-Appellee.
_________________________________________/
On October 11, 2012, the Court heard oral argument on the application for leave to
appeal the October 25, 2011 judgment of the Court of Appeals. On order of the Court,
the motion to expand the record is GRANTED. The application for leave to appeal the
October 25, 2011 judgment of the Court of Appeals is again considered. MCR
7.302(H)(1). In lieu of granting leave to appeal, we REVERSE Part II and Part III B of
the Court of Appeals opinion. The trial court did not err in denying defendant’s motion
to suppress his confession. “[U]nlike in [Missouri v Seibert, 542 US 600 (2004)], there is
no concern here that police gave [defendant] Miranda warnings and then led him to
repeat an earlier murder confession, because there was no earlier confession to repeat.”
Bobby v Dixon, 132 S Ct 26, 31 (2011). In addition, “Miranda does not require that
attorneys be producible on call, but only that the suspect be informed, as here, that he has
the right to an attorney before and during questioning, and that an attorney would be
appointed for him if he could not afford one.” Duckworth v Eagan, 492 US 195, 198
(1989). Finally, an evidentiary hearing regarding Sergeant Firchau’s testimony is
unnecessary because: (a) as the Court of Appeals recognized, breaks in the chain of
custody go to the weight of the evidence, not to its admissibility; (b) the documentary
evidence sufficiently establishes that Sergeant Firchau did retrieve the bullets from the
medical examiner; and (c) admission of Sergeant Firchau’s testimony at defendant’s
father’s second trial that he was not at the autopsy would not make a different result
probable on retrial. Given the eyewitness testimony and defendant’s confession, there is
no doubt that a second jury would find defendant guilty. The Court of Appeals having
retained jurisdiction, we REMAND this case to that court for further proceedings not
inconsistent with this order.
CAVANAGH, MARILYN KELLY, and HATHAWAY, JJ., would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
November 9, 2012 _________________________________________
t1106 Clerk