
    PEOPLE v WELLS
    Docket No. 202891.
    Submitted October 5, 1999, at Detroit.
    Decided November 2, 1999, at 9:05 A.M.
    Leave to appeal sought.
    Davan E. Wells was convicted by a jury in the Recorder’s Court of Detroit of felonious assault and possession of a firearm during the commission of a felony and was thereafter sentenced as an habitual offender, second offense. Before trial, the defendant moved for suppression of evidence concerning a statement he made while hospitalized following his arrest on the bases that the statement had not been voluntarily made because it was a product of the alleged beating that he had suffered at the time of his arrest and that he had not voluntarily waived his constitutionally protected rights before he made the statement. Following an evidentiary hearing, the court, Geraldine Bledsoe Ford, X, denied the motion to suppress, and testimony concerning the defendant’s statement to the police was admitted at trial. The defendant appealed.
    The Court of Appeals held:
    
    1. In reviewing a trial court’s determination of the voluntariness of a statement made by a criminal defendant, the Court of Appeals is required to examine the entire record and make an independent determination of the issue as a question of law. The use of an involuntary statement coerced by police conduct offends due process under the Fourteenth Amendment. The voluntariness of a statement depends on the totality of the circumstances surrounding the making of the statement.
    2. The defendant claimed that he was beaten by the police at the time of his arrest and that the beating induced him to make his subsequent statement to the police while he was at the hospital being treated for the injuries sustained during his arrest. The arresting officers testified that the injuries occurred as a result of the necessary force needed to effect the arrest when the defendant attempted to retrieve an assault rifle and resist arrest. Although the trial court did not make findings of fact on the record concerning the divergent recitations of the facts concerning the arrest, the record sufficiently demonstrates that there was no causal link between the defendant’s giving of his statement and the events surrounding his arrest. Because there was no causal relationship between the alleged coercive acts by the police and the giving of the statement at the hospital, the statement having been given more than two hours after the arrest to a police officer who was not involved with the arrest, the statement cannot be said to have been involuntarily given under the Due Process Clause of the Fourteenth Amendment.
    3. The record also fails to show that the events surrounding the arrest rendered involuntary the defendant’s waiver of his Fifth Amendment rights against self-incrimination.
    4. Because defense counsel failed to object to the prosecutor’s closing arguments, appellate relief with respect to a claim of prosecutorial misconduct during the presentation of those arguments is precluded unless an instruction to the jury could not have cured the prejudicial effect of the claimed misconduct or the failure to consider the issue would result in a miscarriage of justice. When the challenged statements are viewed in context, it is clear that the defendant was not deprived of a fair and impartial trial and that the defendant has not shown that the prosecutor’s statements, either individually or cumulatively, warranted a mistrial.
    5. The trial judge did not err in refusing to disqualify herself after she called defense counsel a liar in an incident that occurred toward the end of the trial when she concluded that counsel had altered one of the court’s orders and then lied about how the change came about. The judge’s comments were directed at defense counsel, not at the defense in general, and the judge specifically indicated that she was not prejudiced against the defendant. The judge’s comments do not indicate bias or prejudice; therefore, the motion for disqualification was properly denied.
    6. Although the trial court imposed sentence on the defendant without first granting the defendant his right of allocution, the court, before the conclusion of the sentencing hearing, recognized and acknowledged the oversight, allowed the defendant to speak, and then indicated that the defendant’s allocution did not change its sentencing decision. Under these circumstances, resentencing is not required.
    Affirmed.
    1. Criminal Law — Evidence — Statements by Defendant — Voluntariness — Due Process — Self-Incrimination.
    The admissibility of a criminal defendant’s pretrial statements when challenged under the Due Process Clause of the Fourteenth Amendment focuses on the voluntariness of the defendant’s statement, while the admissibility when challenged on the basis of a failure to comply with the mandates of Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966), focuses on the voluntariness of the defendant’s waiver of the defendant’s Fifth Amendment rights against self-incrimination.
    2. Criminal Law — Evidence — Statements by Defendant — Police Coercion — Voluntariness — Due Process.
    The admissibility of a criminal defendant’s pretrial statement that has been challenged on the basis that police coercion at the time of arrest resulted in a denial of the defendant’s due process rights protected under the Fourteenth Amendment even though the statement was given to the police sometime after the arrest depends on whether a causal relationship can be established between the police coercion and the subsequent giving of the statement.
    3. Sentencing — Allocution — Resentencing.
    Resentencing is not required where a sentencing court imposes sentence without affording the defendant the right of allocution, but then recognizes and acknowledges the oversight before the completion of the sentencing hearing, affords the defendant the right to speak, and informs the defendant that, despite the allocution, the sentencing decision remains unchanged.
    
      Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O’Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Gary J. Bresnehan, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender (by Desiree M. Ferguson and Marla R. McCowan), for the defendant on appeal.
    Before: Neff, P.J., and Murphy and J. B. Sullivan, JJ.
    
      
       Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
    
   Murphy, J.

Defendant was convicted by a jury of felonious assault, MCL 750.82; MSA 28.277, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced as an habitual offender, second offense, MCL 769.10; MSA 28.1082, to a term of four to six years’ imprisonment for the assault conviction and to a consecutive two-year term for the felony-firearm conviction. He appeals as of right. We affirm.

Defendant first argues that the trial court erred in denying his motion to suppress his statement to police, which was given while he was hospitalized. Defendant contends that the statement was not voluntarily made because it was the product of an alleged beating, or injuries, that he suffered at the hands of the police at the time of his arrest. He further claims that because of the police officers’ conduct at the time of his arrest, his waiver of Miranda rights was also involuntary.

When reviewing a trial court’s determination of voluntariness, this Court is required to examine the entire record and make an independent determination of the issue as a question of law. People v Howard, 226 Mich App 528, 543; 575 NW2d 16 (1997); People v Jobson, 205 Mich App 708, 710; 518 NW2d 526 (1994).

The use of an involuntary statement coerced by police conduct offends due process under the Fourteenth Amendment. Culombe v Connecticut, 367 US 568, 601-602; 81 S Ct 1860; 6 L Ed 2d 1037 (1961).

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 . . . .” Culombe, supra, 367 US 602. The line of demarcation “is that at which governing self-direction is lost and compulsion, of whatever nature or however infused, propels or helps to propel the confession.” Id. [People v Cipriano, 431 Mich 315, 333-334; 429 NW2d 781 (1988).]

As explained in Cipriano, the ultimate test for determining whether a statement was voluntarily made depends on the totality of the circumstances surrounding the statement. A comprehensive list of factors for the court to consider in deciding the question is set forth in Cipriano, although the presence or absence of any one of these factors is not necessarily conclusive on the question of voluntariness.

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. at 334.]

While the admissibility question under the Due Process Clause of the Fourteenth Amendment focuses on the voluntariness of the defendant’s statement, a claim that Miranda was violated focuses on the voluntariness of the defendant’s waiver of his right against self-incrimination. People v Sexton (On Remand), 236 Mich App 525, 538; 601 NW2d 399 (1999). The voluntariness of a waiver is determined by examining the police conduct involved. People v Garwood, 205 Mich App 553, 555-557; 517 NW2d 843 (1994).

Defendant claims that he was beaten at the time of his arrest and that the beating induced his later waiver of Miranda rights and statement to a police officer, which occurred while defendant was at a hospital receiving treatment for his injuries. The police officers involved testified that defendant was injured during the course of his arrest when he attempted to retrieve an assault rifle and resisted arrest, thus necessitating an application of force to subdue defendant and effectuate the arrest. Because the trial court did not make findings of fact on the record, it is not clear if the court rejected defendant’s version of the facts in favor of the officers’ versions with regard to the circumstances surrounding the arrest. Nonetheless, we are satisfied that the record sufficiently demonstrates that there was no causal link between defendant’s statement and the events surrounding defendant’s arrest.

In Colorado v Connelly, 479 US 157, 164; 107 S Ct 515; 93 L Ed 2d 473 (1986), when analyzing the admissibility of confessions obtained through coercive police conduct, the Supreme Court commented that, “[a]bsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Thus, as a threshold, there must be “a substantial element of coercive police conduct.” Id. The Court held that “coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause of the Fourteenth Amendment." Id. at 167.

The decisions of other courts demonstrate the application of this standard. If there is no causal connection between the events at the time of arrest and the giving of a subsequent statement, then a confession will be found to be voluntary if the other circumstances show that the defendant gave his confession freely and voluntarily. See Burch v State, 346 Md 253, 265-268; 696 A2d 443 (1997); United States v Stewart, 770 F Supp 872, 877-878 (SD NY, 1991); State v Montegut, 471 So 2d 286, 289-290 (La App, 1985); Berry v State, 582 SW2d 463, 465 (Tex Crim App, 1979). However, if an earlier beating is particularly severe, if the abuse continues until the time a confession is given, if the same officers are involved in both the beating and the procuring of the statement, or if there is no change in the setting, then courts may find that a confession was involuntarily given. See People v McElheny, 137 Cal App 3d 396, 400-403; 187 Cal Rptr 39 (1982); State v Tom, 126 Ariz 178, 180; 613 P2d 842 (1980); United States v Brown, 557 F2d 541, 548-554 (CA 6, 1977).

In the case at bar, the circumstances surrounding defendant’s arrest and the giving of his subsequent statement at the hospital were sufficiently disconnected to safely conclude that the events at the time of arrest did not render that subsequent statement involuntary. The statement at the hospital was made more than two hours after defendant was arrested. The statement was given in a neutral setting, where other nonpolice individuals were present. Moreover, defendant was interviewed by a police officer who was not involved in his arrest and who worked for an entirely different unit. Finally, none of the other circumstances surrounding the giving of the statement suggest that it was anything other than voluntary. Thus, even if we were to accept defendant’s claim that excessive force was used to effectuate his arrest, the facts fail to show a causal connection between the circumstances of his arrest and his subsequent statement at the hospital sufficient to render the conclusion that his statement was involuntarily made. The facts also fail to show that defendant’s waiver of his Miranda rights was involuntary. Accordingly, the trial court did not err in denying defendant’s motion to suppress his statement.

Defendant next argues that the prosecutor engaged in misconduct during the course of closing arguments. Instead of objecting during the prosecutor’s closing arguments, defendant elected to move for a mistrial after the jury began its deliberations. Because counsel failed to object in a timely manner to the alleged misconduct, appellate relief is precluded unless an instruction could not have cured the prejudicial effect or the failure to consider the issue would result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). The grant or denial of a motion for a mistrial is within the sound discretion of the trial court, and absent a showing of prejudice, reversal is not warranted. People v McAlister, 203 Mich App 495, 503; 513 NW2d 431 (1994). The trial court’s ruling must be so grossly in error as to deprive the defendant of a fair trial or amount to a miscarriage of justice. Id. In this case, when the challenged comments are viewed in context, it is apparent that defendant was not deprived of a fair and impartial trial. Defendant has not shown that the prosecutor’s individual comments, or the cumulative effect of those comments, warranted a mistrial.

Defendant next argues that the trial judge should have been disqualified after she accused defense counsel of being a liar. When this Court reviews a decision on a motion to disqualify a judge, the trial court’s findings of fact are reviewed for an abuse of discretion, while the application of the facts to the relevant law is reviewed de novo. FMB-First Michigan Bank v Bailey, 232 Mich App 711, 728; 591 NW2d 676 (1998).

Absent actual personal bias or prejudice against either a party or the party’s attorney, a judge will not be disqualified. MCR 2.003(B)(1); Cain v Dep’t of Corrections, 451 Mich 470, 495; 548 NW2d 210 (1996). A party that challenges a judge for bias must overcome a heavy presumption of judicial impartiality. Id. at 497. Where a judge forms opinions during the course of the trial process on the basis of facts introduced or events that occur during the proceedings, such opinions do not constitute bias or partiality unless there is a deep-seated favoritism or antagonism such that the exercise of fair judgment is impossible. Id. at 496, citing Liteky v United States, 510 US 540, 555; 114 S Ct 1147; 127 L Ed 2d 474 (1994). Comments critical of or hostile to counsel or the parties are ordinarily not supportive of finding bias or partiality. Cain, supra at 497, n 30.

After reviewing the record, we find that defendant failed to demonstrate grounds for disqualification. The judge’s characterization of defense counsel as a liar was based on an incident that occurred toward the end of trial, when the trial judge concluded that defense counsel had altered one of the court’s orders and then lied about how the change came about. The judge’s comments were directed at defense counsel, not the defense in general, and the judge specifically indicated that she was not prejudiced against defendant. Furthermore, the judge directed her punishment and ire at defense counsel, not the defense or this trial, for reasons that understandably would cause concern. The judge’s comments do not indicate bias or prejudice against defendant and, therefore, the motion for disqualification was properly denied.

Finally, defendant argues that he is entitled to resentencing because he was not afforded his right of allocution before the trial court announced its sentencing decision. MCR 6.425(D)(2)(c) provides that the trial court must, before imposing sentence, give the defendant a reasonable opportunity to advise the court of any circumstances the defendant believes the court should consider when imposing sentence. The Michigan Supreme Court has mandated strict compliance with this rule, and the trial court must separately ask the defendant whether the defendant wishes to address the court before sentencing. Where the trial court fails to comply with this rule, resentencing is required. People v Berry, 409 Mich 774, 781; 298 NW2d 434 (1980); People v Jones (On Rehearing), 201 Mich App 449, 453; 506 NW2d 542 (1993).

Here, the trial court acknowledged that it had failed to grant defendant his right of allocution and, therefore, corrected this oversight before the sentencing hearing was concluded. The court commented that it did not believe that the result in this matter would change, and after hearing defendant’s statement, the court did not change its sentencing decision. On this record, we hold that defendant was afforded his right of allocution. Resentencing is not required.

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