PER CURIAM.
Plaintiff appeals as of right from the order of the circuit court dismissing without prejudice the criminal case against defendant for solicitation of murder, MCL 750.157b(2), which the circuit court entered after it ordered that the district court's bindover be quashed and that statements made by defendant to the Michigan State Police and to his employer, the Michigan Department of Corrections, be suppressed. We reverse.
Defendant was a corrections officer at the Newberry Correctional Facility in Luce County Michigan. During the preliminary examination before the district court, an inmate at the correctional facility ("the inmate") testified that one night he and defendant began "chitchatting" about defendant's ex-wife, who also worked at the prison. The inmate claimed that defendant said, "I wish I could find a way to set her up or just get her disposed of," that he asked defendant what he meant and that if he meant "killed," and that defendant replied "yeah." When the inmate asked defendant if he would be able to live with himself if that happened, defendant allegedly said, "You don't know me very well then, do you?" According to the inmate, defendant asked him if he "knew of anybody" and that he told defendant that he did and that he would get back to him on it. The inmate told the prison's inspector, Andy Hubble, of this conversation. Hubble contacted Michigan State Police Detective Michael Schroeder and the two of them convinced the inmate to wear a recording device and discuss the matter with defendant again. The inmate testified that about a week later he told defendant that he knew some people who could kill his ex-wife, describing how the murder would take place and how the body would be disposed of, and that the price would be $800 to $1,000. Defendant allegedly responded, "If you can get that done . . . I'll pay that," and the inmate told defendant that he would "get the ball rolling." However, the recording device malfunctioned and this conversation was not recorded.
The inmate tried again. He testified that the next time he spoke to defendant he told defendant that he had made contact with people who would be up within the month to kill defendant's ex-wife. However, defendant "started backpedaling a little bit," started to question what his daughter would think if her mom was just gone, and worried that in a small town people would suspect him. Defendant said, "I'm not putting a hit out on anybody" and that he "wouldn't do it" because his heart would break for his daughter. The inmate's account is fairly consistent with the recorded conversation during which the inmate repeatedly tells defendant that he is serious about being able to get defendant's ex-wife murdered and defendant, while acknowledging that he believes the inmate is serious, makes repeated statements about his daughter and statements about the small size of the town.
Schroeder testified that after obtaining this recording, he interviewed defendant at the Michigan State Police Department in Newberry, Michigan. Schroeder maintained that defendant was not in custody. Schroeder presented his investigation to defendant and asked defendant if the allegations were true. Defense counsel objected, arguing that any statement Schroeder might relay would be a statement in violation of defendant's Miranda
In binding defendant over to circuit court for trial, the district court stated in part:
The district also stated that it did not believe it could consider "affirmative defenses."
In circuit court, defendant moved to quash the bindover and to suppress the statement he made to Detective Schroeder, as well as statements made to Hubble during a Department of Corrections interview. Concerning this latter interview, Hubble testified that he had interviewed defendant regarding this matter to look for work rule violations such as "over familiarization" with a prisoner. Hubble stated that he told defendant that he was entitled to union representation at the interview but that defendant declined such representation. Hubble explained that the interview was an opportunity for defendant to tell his side of the story. Hubble acknowledged that had defendant not answered his questions or cooperated with his investigation he could have been disciplined. Regarding the United States Supreme Court's holding in Garrity v New Jersey, 385 U.S. 493, 500; 87 S.Ct. 616; 17 L Ed 2d 562 (1967), that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office," Hubble stated that it never came up but that if it had his understanding was that he was to cease the interview and contact Internal Affairs.
On August 6, 2015, the circuit court entered an order granting defendant's motion to quash the bindover. It concluded that the district court had erred in determining that it did not need to consider defendant's affirmative defense. The circuit court determined that the statement to Schroeder was made in violation of Miranda because defendant "was a suspect and was being interviewed regarding a serious crime on the second floor of the state police post by an armed trooper." Regarding the interview with Hubble, the circuit court concluded that Hubble had failed to properly advise defendant of his rights under Garrity. The circuit court then dismissed the case without prejudice. Plaintiff now brings this appeal, arguing that the bindover should not have been quashed, that defendant's statements should not have been suppressed, and that the charges should be reinstated.
We review a district court's bindover decision for an abuse of discretion regarding the sufficiency of the evidence but review its "rulings concerning question of law de novo." People v Flick, 487 Mich. 1, 9; 790 N.W.2d 295 (2010). "[T]his Court reviews the circuit court's decision regarding the motion to quash a bindover only to the extent that it is consistent with the district court's exercise of discretion." People v Hudson, 241 Mich.App. 268, 276; 615 N.W.2d 784 (2000). "The circuit court may only affirm a proper exercise of discretion and reverse an abuse of that discretion." Id.
"Whether a person is in custody for purposes of the Miranda warnings requirement is a mixed question of law and fact that must be answered independently after a review of the record de novo." People v Cortez, 299 Mich.App. 679, 691; 832 N.W.2d 1 (2013). The trial court's "factual findings regarding the circumstances surrounding the giving of the statement" are reviewed for clear error, and the trial court's ultimate conclusion regarding a motion to suppress is reviewed de novo. Id. "This Court reviews a trial court's findings of fact at a suppression hearing for clear error and reviews de novo its ultimate decision on a motion to suppress the evidence." People v Tavernier, 295 Mich.App. 582, 584; 815 N.W.2d 154 (2012). "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." People v Johnson, 466 Mich. 491, 497-498; 647 N.W.2d 480 (2002).
The district court has the responsibility to bind over a defendant if at the conclusion of a preliminary examination it appears to the court that a felony has been committed "and there is probable cause for charging the defendant therewith." Hudson, 241 Mich App at 277. It is not the function of the magistrate to weigh the evidence carefully and discharge the accused when the evidence conflicts or raises a reasonable doubt as to guilt . . ." People v Coons, 158 Mich.App. 735, 738; 405 N.W.2d 153 (1987). These questions of fact are to be resolved by the trier of fact. See Hudson, 241 Mich App at 278. However, "[a]n examining magistrate may weigh the credibility of witnesses." People v Moore, 180 Mich.App. 301, 309; 446 N.W.2d 834 (1989). "Probable cause to believe that the defendant committed the crime is established by a reasonable ground of suspicion, supported by circumstances sufficiently strong to warrant a cautious person in the belief that the accused is guilty of the offense charged." People v Woods, 200 Mich.App. 283, 288; 504 N.W.2d 24 (1993).
The circuit court did not overrule the district court's decision to bindover defendant due to any failure of the district court to properly determine that the elements of the crime were met or that there was probable cause to believe that defendant committed the crime under MCL 750.157b(1) & (2). Rather, the circuit court quashed the bindover because it determined that the district court had failed to adequately consider defendant's affirmative defense under MCL 750.157b(4). That statutory provision states:
In concluding that the district court erred in binding over defendant, the circuit court relied on People v King, 412 Mich. 145, 154; 312 N.W.2d 629 (1981), which held that the district court or magistrate "is required to make his determination after an examination of the whole matter." In King, the magistrate bound the defendant over on a charge of manslaughter after finding, based on a review of the whole record, that there was insufficient evidence to believe that first- or second-degree murder had been committed due to a lack of malice and pre-mediation. Id. at 154-155. This Court reversed, concluding that the magistrate erred in analyzing conflicting evidence, and reinstated the first-degree murder charge. See id. at 151-152. The Supreme Court then reversed this Court and affirmed the decision of the magistrate, concluding that the magistrate had a duty to make "an examination of the whole matter" and could bind the defendant over on a lesser charge if there was probable cause to believe that the defendant committed the lesser charge but not probable cause to believe that the defendant committed the greater charge. Id. at 153-155.
In the present case, the district court correctly indicated that it could not consider defendant's affirmative defense. The holding of King establishes that a district court may consider evidence of affirmative defenses. Id. at 153-154.
The Michigan Supreme Court has adopted a "custody test" for determining when Miranda warnings are to be given. People v Hill, 429 Mich. 382, 397-398; 415 N.W.2d 193 (1987). The two inquiries essential to the determination of whether an individual is "in custody" for purposes of Miranda, are "the circumstances surrounding the interrogation; and . . . would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." Howes v Fields, ___ US ___; 132 S.Ct. 1181, 1189; 182 L Ed 2d 17 (2012). The United States Supreme Court has emphasized "that the ultimate inquiry is simply whether there is a formal arrest or restraint on movement of the degree associated with formal arrest." Yarborough v Alvarado, 541 U.S. 652, 662; 124 S.Ct. 2140; 158 L Ed 2d 938 (2004) (internal quotations and citation omitted). Factors that are relevant to the determination of how a suspect would evaluate his freedom to leave include the duration of the questioning, the location of the questioning, any statements made during the questioning, whether the suspect was restrained, and whether the suspect was released at the end of the questioning. Howes, 132 S Ct at 1189.
Under similar facts, we have held that a defendant was not in custody when he "drove himself to the police station, was left alone and unrestrained for periods of time in an interview room, and, after giving written answers to some questions . . . was allowed to leave." People v Mendez, 225 Mich.App. 381, 383; 571 N.W.2d 528 (1997). Here, Schroeder testified that the door to the interview room was left open at least a crack, that defendant left on his own, and that defendant was not restrained during any portion of the interview. While the recording of the interview include remarks to defendant that he was free to leave, Schroeder maintained that he did in fact inform defendant that he was free to leave. Schroeder also stated that defendant drove himself to the interview, that it lasted about an hour, and that it was at 4:00 p.m. Nothing about this situation suggests that defendant's movement was restrained to a degree associated with formal arrest. If the mere presence of an armed police officer and the location of the interview at a police station were sufficient to establish custodial interrogation, then this Court would have reached a different conclusion in Mendez. We conclude that the circuit court erred in suppressing statements that defendant made to Schroeder because defendant was not in custody and because Schroeder did not need to read defendant his Miranda rights at that interview.
In Garrity, 385 US at 500, the United States Supreme Court held that "the protection of the individual under the Fourteenth Amendment against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office." In Garrity, several New Jersey Police officers were questioned regarding an investigation into the illegal "fixing of traffic tickets." Each officer was told "(1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office." Id. at 494. The Supreme Court found that under these facts "[t]he choice imposed on [the police officers] was one between self-incrimination or job forfeiture." Id. at 496. The Supreme Court held that this choice amounted to coercion in violation of the Fourteenth Amendment and that statements given under a threat of job loss could not be used in the subsequent criminal proceeding. Id. at 499-500.
However, in People v Coutu, 235 Mich.App. 695, 704; 599 N.W.2d 556 (1999), we held that "because there was no overt threat of employment termination in the event that [the] defendants chose to remain silent instead of answering questions as part of the investigation, [Garrity] does not apply." In that case, when several of the defendants requested an attorney or union representation they were not asked any further questions. Id. at 703. This Court found it relevant that, although one of the defendants knew he was being interviewed under orders from a superior, there were no "department regulations or rules that provided for automatic termination for failing to answer questions during an interview." Id. at 703-704. This Court found that under these facts "[t]ermination [was] not an imminent consequence of failing to answer questions during an investigation." Id. at 704.
In the present case, while Hubble testified that defendant could have been disciplined if he had not answered his questions, there was no testimony or other evidence that defendant was given a definitive choice of either answering questions or facing termination. The facts of this case are similar to those in Coutu. Hubble testified that had Garrity come up during the interview he would have stopped asking questions and contacted internal affairs. Defendant was offered union representation but declined. Similar to Coutu, there is no evidence that termination would have been an imminent consequence if defendant failed to answer Hubble's questions. Accordingly, the circuit court erred in suppressing the statements defendant made to Hubble because those statements were not coerced and not made in violation of Garrity as interpreted by this Court in Coutu.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
