Carson City inmate’s conviction upheld by Court of Appeals

By Elisabeth Waldon • Last Updated 1:37 pm on Tuesday, March 19, 2013

Burton Cortez

CARSON CITY — A Carson City Regional Correctional Facility prisoner has been denied by the Michigan Court of Appeals for the second time.

Burton David Cortez, 33, was originally sent to prison for a May 14, 2000, criminal sexual conduct offense in Charlevoix County. He was sentenced to from two years and eight months to 10 years in the Carson City prison.

In the summer of 2009, multiple fights and assaults took place at the Carson City prison involving suspected gang members. Shots were fired by corrections officers from the gun tower during one such fight. As a result of the ongoing fights, corrections officers conducted a search for hidden weapons on July 21, 2009. Two shanks were discovered in Cortez’s cell — a piece of sharpened metal inserted into a white plastic handle on the bottom bunk’s framework on the underside of the bed and a piece of metal wrapped in a cloth inside the corner of the mattress on the bottom bunk. A metal shelf was missing from Cortez’s desk and pieces of metal were found in a trash can in the cell.

When questioned, Cortez hesitated to speak and initially denied everything. An officer informed him the evidence found in his cell was “pretty damaging.” Cortez then began to talk and an officer recorded the interview. Cortez said the weapons were his and gang members had forced him to make them. One weapon was for his own protection and the other was to be sold.

The interview between Cortez and the officer lasted about 15 minutes. Shortly after the interview, Cortez denied everything he had just said, claiming he had only said what he needed to say so he could get out of prison and go home.

Before his trial in Montcalm County’s 8th Judicial Circuit Court, Cortez moved to suppress the recorded interview, claiming he had not been provided with a Miranda warning from the interviewing officer. The judge ruled that since the corrections officer was not acting in the place of a police officer, he was not required to warn Cortez about his Miranda rights. The judge allowed a shortened version of the recorded interview to be played at trial.

A Montcalm County jury convicted Cortez of two counts of prisoner in possession of a weapon. Cortez also was convicted of being a habitual offender second offense. He was sentenced on April 15, 2010, to from two years to seven years and six months in prison.

Cortez appealed. In 2011, the Michigan Court of Appeals affirmed his conviction, citing the case of Cervantes vs. Walker (1978).

“We found the question to be a close call, but concluded that the circumstances of the questioning did not require Miranda warnings,” the court’s opinion stated. “We concluded that the questioning was more like general on-the-scene questioning that was essential to the administration of a prison than custodial interrogation for which Miranda warnings are required. We found no violation of the defendant’s Fifth Amendment rights.”

The Court of Appeals considered Cortez’s appeal again this month in the wake of the U.S. Supreme Court’s decision regarding the case of Howes vs. Fields (2012). The Court of Appeals again upheld Cortez’s conviction.

Cortez has since been relocated from the Carson City Regional Correctional Facility to another prison.

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