People v. Carigon
People v. Carigon
Opinion of the Court
Defendant was convicted after a jury trial of arson of real property, MCL 750.73; MSA 28.268, and sentenced to one year in the Ionia County jail and five years probation. He appeals as of right.
The issue on appeal concerns the voluntariness of defendant’s confession made to police officers while being questioned about his involvement in the crime. At a Walker
The facts presented in this appeal compel us to address the question of whether the totality of circumstances test is applicable where a defendant claims that his confession was induced by a promise of leniency made by the interrogating officer.
The United States Supreme Court has held that a confession is involuntary if "extracted by any sort of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence”. Bram v United States, 168 US 532, 542-543; 18 S Ct 183; 42 L Ed 568 (1897). See also Hutto v Ross, 429 US 28; 97 S Ct 202; 50 L Ed 2d 194 (1976), and Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970).
Although the rule itself is amply established, the manner in which it is to be applied is the subject of considerable controversy, as evidenced by the split decision of our own Supreme Court in People v Jones, 416 Mich 354; 331 NW2d 406 (1982). There the defendant made an inculpatory statement during plea negotiations which he had initiated. When the defendant refused to abide by the agreement, the statement was used against him at trial and he was convicted of murder. This Court rejected the defendant’s contention that his confession was involuntary, finding that under the "totality of the circumstances” the defendant’s confession was admissible. The Supreme Court reversed in two opinions of equal numerical force.
Justice Ryan concurred in the result on the grounds that MRE 410, under which statements made in connection with a plea of guilty, later withdrawn, are not admissible in a criminal proceeding against the person who made the plea, required reversal despite the failure of defendant’s trial counsel to invoke the rule. The concurring opinion, however, insisted that the establishment of a per se rule of involuntariness was inappropriate and contrary to state and federal precedent. Finding that the Bram Court itself, notwithstanding the absolutist character of its test, applied a totality of the circumstances approach, Justice Ryan observed:
"Bram involved a defendant who gave a confession while in custody, alone and unrepresented by counsel. At no time were promises of leniency mentioned by his interrogator. Rather, the court looked at the circumstances of the interrogation, including the fact that he was forced to strip off his clothing, in finding the confession involuntary. Thus, Bram does not support the conclusion that a plea bargain in which a promise of leniency is made automatically makes the defendant’s statement involuntary.” People v Jones, supra, p 373.
Justice Ryan found subsequent Supreme Court decisions to be in accord:
*807 "Even later cases which have approved of the Bram dictum have not adopted a per se approach.
"In Malloy v Hogan [378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964)], the Court applied the Fifth Amendment to the states via the Fourteenth Amendment and stated that federal standards governed whether the self-incrimination privilege was properly invoked or not. Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970), approved of Bram’s formulation, but the Court specifically determined that a guilty plea made in order to avoid the possibility of the death penalty was not per se involuntary. Rather, voluntariness had to be determined by looking at all the circumstances.” People v Jones, supra, p 373-374 (emphasis in Jones).
The federal appellate courts have adopted a similar interpretation of the Bram rule, holding that it should not be applied on a strict, per se basis. See, e.g., United States v Springer, 460 F2d 1344 (CA 7, 1972), cert den 409 US 873; 93 S Ct 205; 34 L Ed 2d 125 (1972); United States v Ferrara, 377 F2d 16 (CA 2, 1967), cert den 389 US 908; 88 S Ct 225; 19 L Ed 2d 225 (1967). It has been observed, rather, that "determinations of voluntariness are based upon an assessment of all of the circumstances and factors surrounding the occurrence when the statement is made”. United States v Grant, 622 F2d 308, 316 (CA 8, 1980), citing Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973); Haynes v Washington, 373 US 503; 83 S Ct 1336; 10 L Ed 2d 513 (1963); Culombe v Connecticut, 367 US 568; 81 S Ct 1860; 6 L Ed 2d 1037 (1961).
Michigan courts have consistently applied a totality of the circumstances test in reviewing a lower court’s determination of voluntariness. See, e.g., People v Paintman, 412 Mich 518; 315 NW2d 418 (1982); People v Robinson, 386 Mich 551; 194
We agree with Justice Ryan’s opinion in People v Jones that to discard the totality of the circumstances test in favor of a per se application of the Bram language when a promise is arguably made to an accused would be contrary to both precedent and prudence. The flexible totality of the circumstances test "allows for judicial determinations of voluntariness in myriad situations without such decision making being hampered by rigid and potentially artificial restraints”, United States v Grant, supra, p 316. It is the more enlightened approach, recognizing that a given inducement may have little or no effect on a sober, alert, and relaxed suspect, and yet may force a confession from a suspect who is intoxicated, threatened or sleep-deprived. The use of the Bram Court, in dicta, of language borrowed from 3 Russell on Crimes (6th ed), p 478, should not obfuscate the central issue of voluntariness — whether the suspect’s statement was "the product of án essentially free and unconstrained choice” or the result of an overborne will. Culombe v Connecticut, supra, 367 US 602.
An examination of the totality of the circumstances surrounding defendant’s confession in this case convinces us that his inculpatory statements were made voluntarily. Defendant was picked up
Although defendant testified that he was not threatened in any way, he indicated that he was told he "had to sign” the waiver card, and that he did so without reading it. Defendant testified that he had consumed half a bottle of vodka prior to being taken in for questioning and that he understood nothing that transpired during the interview because he was "scared”. He did not remember being advised of his constitutional rights. Both detectives, however, stated that defendant appeared to be sober, spoke clearly and articulately, and acknowledged an understanding of his rights.
At one point during the interview, Dennis told defendant that things would go a lot easier on him if he would confess, or words to that effect. According to Dennis, he informed defendant that if he believed defendant to be truthful, he would advise the presentence investigator of the fact. Specifically, Dennis testified:
”Q. Other than indicating that things may go a little easier on him or you would make your recommendation to the presentence officer as to whether or not he was truthful, with you, did you promise him anything else?
"A. I promised him nothing._
*810 "(?• Did you inform him that you promised him nothing at any time?
”A. Yes, repeatedly.”
Defendant testified that when Dennis informed him things would go easier if he confessed, defendant interpreted the statement as indicating that he would not be charged with a crime. In defendant’s version of the events, Dennis had explained: "This is an old barn, an old building, and if you confess to it, we’ll let you go home.” When asked if Dennis had informed him that his cooperation would be made known to the presentence investigator, defendant could not recall such a statement.
The trial judge, who had an opportunity to observe the demeanor of the witnesses, resolved the testimonial conflicts in favor of the officers. When confronted with a conflict in the testimony, it is his duty to determine credibility of the witnesses and arrive at his decision of whom to believe, People v Smith, 124 Mich App 723; 335 NW2d 137 (1983), and where a determination of voluntariness depends upon such a judgment, deference will be given to the findings of the trial court, People v Prast (On Rehearing), 114 Mich App 469, 484; 319 NW2d 627 (1982). Here the trial judge found that defendant was "extremely conversant with the English language” and that he had fully understood the nature of his constitutional rights. The trial court did not find improper the statement by Dennis to defendant that his cooperation would be made known to the presentence investigator.
We begin our analysis with an assessment of the statements made by Officer Dennis to defendant. The statement to the effect that things would go easier for defendant if he confessed is innocuous; similar statements have been held not to consti
While not insensitive to the inherent tensions attending a police interrogation, we are constrained to believe that these are not such words as to cause a criminal suspect to blurt out a confession, absent extraordinary circumstances. It must be recalled that what is suspect are express or implied promises of leniency. Defendant was never assured that his cooperation would result in a more lenient sentence, and he could not have inferred such a promise in view of Dennis’s repeated warnings that nothing was being promised.
The proposition that Dennis’s statements should be considered de minimis in the balance by which we determine voluntariness finds support even in Justice Kavanagh’s opinion in People v Jones, supra. One of the extrajurisdictional cases cited in
"Commonwealth v Meehan, 377 Mass 522, —; 387 NE2d 527, 534 (1979), cert dis as improvidently gtd 445 US 39; 100 S Ct 1092; 63 L Ed 2d 185 (1980) (An officer may suggest broadly that it would be "better” for a suspect to tell the truth, may indicate that the person’s cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past. What is prohibited, if a confession is to stand, is an assurance, express or implied, that it will aid the defense or result in a lesser sentence.’) (Footnotes omitted.)” People v Jones, supra, pp 360-361, fn 3. See also State v Williams, 358 So 2d 1094 (Fla App, 1978); State v Mullin, 286 So 2d 36 (Fla App, 1973).
Somewhat similar facts were at issue in People v Ewing (On Remand), 102 Mich App 81; 300 NW2d 742 (1980):
"Defendant also argues that his incriminating statements were induced by an improper promise of leniency made to him by the investigating officer. People v Pallister, 14 Mich App 139; 165 NW2d 319 (1968). A review of the Walker hearing record discloses that the investigating officer told defendant that he would do what he could to help and that things would go easier for defendant if he would cooperate and tell the truth. He also testified that it was normal practice for the presentence investigator to ask the police about a defendant’s cooperation, and so he told defendant that an accused’s cooperation is normally taken into consideration by the trial court during sentencing. We agree with the trial court that defendant’s statements were voluntary and were not induced by improper promises. People v McGillen #1 [392 Mich 251; 220 NW2d 677 (1974)], supra; People v Crawford [89 Mich App 30; 279 NW2d 560 (1979)], supra; People v Sparks [82 Mich App*813 44; 266 NW2d 661 (1978)], supra.” People v Ewing, supra, pp 85-86.
The Michigan Supreme Court held defendant Ewing’s application for leave to appeal in abeyance pending its decision in People v Jones, supra. Ewing, 414 Mich 852 (1982). On April 26, 1983, the Supreme Court issued an order denying the application. Because the Ewing Court did not explain how it reached its conclusion, the order is of little analytical benefit. The facts of Ewing are arguably more troublesome than those of the instant case, as the officer in Ewing told the defendant he would do what he could to help, and absent are the repeated warnings extant here that nothing was being promised. Even if the officer’s conduct in Ewing constituted a promise of leniency, however, that alone would not automatically invalidate the confession. State v Riley, 19 Wash App 289; 576 P2d 1311 (1978); Pontow v State, 58 Wis 2d 135; 205 NW2d 775 (1973). The Ewing Court could fairly have found that, after a consideration of all the circumstances surrounding the confession, it was voluntarily made.
Despite the absence of improper promises to elicit defendant’s confession, the totality of circumstances approach mandates that we examine other indicia of voluntariness to determine whether the officers’ words were sufficient to overbear defendant’s free will. See Ladd v State, 568 P2d 960 (Alas, 1977).
Questioning began immediately and lasted only one hour. The officers conducted themselves with civility and did not threaten defendant. Although defendant was only 17 at the time of the interrogation and had apparently had no prior experience as a criminal suspect, he was alert and responsive during the interview. Defendant was not under
Even were the absolutist approach to the application of the Bram rule applied, the result would not vary. The per se inquiry would require a finding of an express or implied promise of leniency and that the promise induced the confessions. Because no promise of leniency was made, the first part of the test would be dispositive. Moreover, finding that Dennis’s statement induced the confession would be problematic. The dissenting opinion states: "Defendant himself testified that he confessed because he was afraid and because of the detectives’ promises of leniency.” This is somewhat misleading. The promise of leniency referred to by defendant was Dennis’s alleged representation that, if he confessed, he would not be charged and could go home. The record indicates that no one, including defendant’s own attorney, believed that Dennis had made such a statement. Defendant could not even recall that Dennis made the statement concerning the presentence investigator. Other record evidence, though conflicting, was resolved by the trial judge in favor of a finding that the confession was voluntary and not coerced.
Upon review of testimony presented both at the Walker hearing and the preliminary examination, we do not possess a definite and firm conviction that the trial court erred in finding defendant’s statement properly admissible.
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
Dissenting Opinion
(dissenting). The sole issue raised on appeal concerns the voluntariness of defendant’s confession. This issue was presented to the trial judge in the course of a pretrial evidentiary hearing held pursuant to People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965). The trial judge held that defendant’s confession was voluntary. This Court reviews such a holding by examining the whole record and making an independent determination of the ultimate issue of voluntariness. If, after such a review, we do not possess a definite and firm conviction that the trial judge erred, we will affirm. See People v McGillen #1, 392 Mich 251, 257; 220 NW2d 677 (1974).
Testimony at the Walker hearing revealed that defendant was questioned by Detective Dwain Dennis of the Ionia County Sheriffs Department and Detective Sergeant Kenneth Voet of the State Police. According to defendant, Detective Dennis told him that it would be easier for him if he confessed and that, if he would confess, he could go home. Defendant explained that he understood Detective Dennis to mean that he would not be charged with anything if he confessed.
Detective Dennis acknowledged that he had testified at the preliminary examination that he had told defendant that "things would go a lot easier on you if you’d just confess”. Both Detective Dennis and Detective Sergeant Voet testified that those were not the exact words used. Detective Sergeant Voet testified that the word "confess” was not used; however, Detective Dennis testified that his preliminary examination testimony fairly
The detectives’ testimony shows that they made representations to defendant which were inconsistent with a well-settled principle of the law of sentencing. A sentence may not be based even in part on the defendant’s refusal to admit guilt. People v Earegood, 383 Mich 82, 84-85; 173 NW2d 205 (1970); People v Yennior, 399 Mich 892 (1977), reversing 72 Mich App 35; 248 NW2d 680 (1976); People v Grable, 57 Mich App 184, 188-189; 225 NW2d 724 (1974); People v Travis, 85 Mich App 297, 303; 271 NW2d 208 (1978); People v Stubbs, 99 Mich App 643, 647; 298 NW2d 612 (1980); People v Rabb, 112 Mich App 430, 432; 316 NW2d 446 (1982); People v Pottruff, 116 Mich App 367, 378; 323 NW2d 402 (1982). Therefore, whether or not defendant confessed and whether or not the detectives thought any exculpatory statements made by defendant were truthful ought not to have carried any weight at sentencing.
In Hopt v Utah, 110 US 574, 584-585; 4 S Ct 202; 28 L Ed 262 (1884), the Court said:
"A confession, if freely and voluntarily made, is evidence of the. most satisfactory character. * * *
*817 * * *
"But the presumption, upon which weight is given to such evidence, namely, that one who is innocent will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made, either in consequence of inducements of a temporal nature, held out by one in authority, touching the charge preferred, or because of a threat or promise by or in the presence of such person, which, operating upon the fears or hopes of the accused, in reference to the charge, deprive him of that freedom of will or self-control essential to make his confession voluntary within the meaning of the law.”
The United States Supreme Court has held that the test of admissibility for confessions is whether the confession was made "freely, voluntarily, and without compulsion or inducement of any sort”. Wilson v United States, 162 US 613, 623; 16 S Ct 895; 40 L Ed 1090 (1896); Haynes v Washington, 373 US 503, 513; 83 S Ct 1336; 10 L Ed 2d 513 (1963). A confession is involuntary if "obtained by any direct or implied promises, however slight”. Bram v United States, 168 US 532, 542-543; 18 S Ct 183; 42 L Ed 568 (1897); Shotwell Mfg Co v United States, 371 US 341, 347; 83 S Ct 448; 9 L Ed 2d 357 (1963); Malloy v Hogan, 378 US 1, 7; 84 S Ct 1489; 12 L Ed 2d 653 (1964); Brady v United States, 397 US 742, 753; 90 S Ct 1463; 25 L Ed 2d 747 (1970); Hutto v Ross, 429 US 28, 30; 97 S Ct 202; 50 L Ed 2d 194 (1976). Michigan courts have long followed the same rule. Flagg v People, 40 Mich 706 (1879); People v Wolcott, 51 Mich 612; 17 NW 78 (1883); People v Cleveland, 251 Mich 542, 547; 232 NW 384 (1930); People v Pallister, 14 Mich App 139, 148; 165 NW2d 319 (1968). However, in People v Ewing (On Remand), 102 Mich App 81, 85-86; 300 NW2d 742 (1980), the Court held:
*818 "A review of the Walker hearing record discloses that the investigating officer told defendant that he would do what he could to help and that things would go easier for defendant if he would cooperate and tell the truth. He also testified that it was normal practice for the presentence investigator to ask the police about a defendant’s cooperation, and so he told defendant that an accused’s cooperation is normally taken into consideration by the trial court during sentencing. We agree with the trial court that defendant’s statements were voluntary and were not induced by improper promises.”
The Ewing decision is not very persuasive because it contains no analysis of the large body of precedent dealing with this problem. Moreover, as has already been shown, to the extent that "cooperation” is used as a euphemism for "confession”, such "cooperation” is not a proper sentencing consideration. The Ewing Court failed to take this into account when it held that the officer’s promises to defendant were not improper.
Analysis of recent cases from other jurisdictions shows that confessions obtained by promises similar to those made here have been repeatedly held to be involuntary. See McLallen v Wyrick, 498 F Supp 137 (WD Mo, 1980) (defendant told that it would be better to make a statement than not to make one); Womack v State, 281 Ala 499; 205 So 2d 579 (1967) (defendant told that authorities would go lighter on him if he made a statement); S B v State, 614 P2d 786 (Alas, 1980) (officer indicated to defendant that a confession would lead to leniency); People v Jimenez, 21 Cal 3d 595; 147 Cal Rptr 172; 580 P2d 672 (1978) (officer told defendant that he would testify that defendant had talked about the case and that such testimony would cause the jury to be lenient in deciding whether to impose the death penalty); Bradley v State, 356 So 2d 849 (Fla App, 1978) (defendant told that inter
In most of the cases involving arguably analogous facts in which the confessions have been held to have been voluntary, the statements made to the defendants are distinguishable from those pre
Here, however, according to their own testimony, the detectives told defendant that their favorable or unfavorable recommendation to the presentence investigator would make a difference at sentencing. This was a promise of leniency, not merely a promise to inform the authorities of defendant’s cooperation. According to the detectives, they told defendant to tell them the truth.
Even if the detectives’ account of what transpired is true, the detectives made improper promises to defendant. We must still examine all the circumstances surrounding the confession and determine whether defendant’s will was overborne. See Ashdown v Utah, 357 US 426; 78 S Ct 1354; 2 L Ed 2d 1443 (1958); Haynes v Washington, supra, and United States v Ferrara, 377 F2d 16 (CA 2, 1967). In Hopt v Utah, supra, the Court recognized that promises of leniency can deprive a defendant of the freedom of will necessary for a voluntary confession. The test stated in Bram v United States, supra, and subsequent cases also recognized that promises render a confession involuntary only if the confession is obtained by the promises.
The prosecution places considerable reliance on defendant’s signing of a form waiving his rights under Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966). The prosecution claims that in North Carolina v Butler, 441 US 369, 373; 99 S Ct 1755; 60 L Ed 2d 286 (1979), the Court stated that the execution of such a waiver is usually strong proof of voluntariness. Actually, the Butler Court stated merely that the execution of such a waiver is usually strong proof of a voluntary waiver of Miranda rights. Whether defendant’s confession was voluntary is a different ques
At the time of his confession, this defendant was 17 years old and had not previously been arrested or interrogated by the police. The entire interrogation session took only slightly more than an hour and defendant apparently began his statement shortly after the promises at issue here were made. The promises at issue were obviously calculated by the detectives to induce a confession. Defendant himself testified that he confessed because he was afraid and because of the detectives’ promises of leniency. My review of the record leaves me with the definite and firm conviction that defendant’s will was overborne and that the confession was obtained by the detectives’ promises. In reaching this conclusion, I have followed the trial court by resolving all credibility conflicts in favor of the detectives. Defendant’s confession was involuntary.
I would reverse and remand.
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