People v. Carigon

341 N.W.2d 803, 128 Mich. App. 802

• Court: Michigan Court of Appeals
• Decided: September 26, 1983
• Docket: Docket 57753
• Status: Published

Opinions

L. C. Root, J.

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 Walker¹ hearing held on February 2, 1981, the trial judge held defendant’s confession to have been voluntarily made, and denied his motion to suppress. This Court reviews such a determination of voluntariness by looking at the totality of the circumstances and will not reverse the lower court’s finding unless it is clearly erroneous. People v Dean, 110 Mich App 751, 754; 313 NW2d 100 (1981). The prosecution must have proven voluntariness, People v White, 401 Mich 482, 494; 257 NW2d 912 (1977), proof by preponderance of evidence being necessary to discharge this burden, People v Sears, 124 Mich App 735; 336 NW2d 210 (1983).

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.

Quoting the operative language from the Brean opinion Justice Kavanagh found that promises of leniency existed per the plea agreement and that "[t]here is no question but that Jones’s confession was 'obtained by’ the prosecutor’s promise”. People v Jones, supra, p 362. Absent was any discussion concerning the circumstances attending the confession; the opinion was thus suggestive of an absolutist or "per se” application of the Bram rule.

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:

"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 (1972). This analysis, grounded in federal law, includes consideration of the following factors: 1) the duration and conditions of detention; 2) the manifest attitude of the police toward the accused; 3) the physical and mental state of the accused; and 4) diverse pressures which sap or sustain the accused’s powers of resistance or self-control. People v Allen, 8 Mich App 408, 412; 154 NW2d 570 (1967), citing Culombe v Connecticut, supra.

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 for questioning at his father’s place of business by Detectives Dwain Dennis and Kenneth Voet. He was not placed under arrest. Upon arriving at the sheriff’s department, defendant was taken directly to Dennis’s office where the interview began immediately. Both detectives were present during questioning. There was no dispute that prior to any interrogation Dennis read defendant his Miranda² rights from a printed card, nor is it disputed that defendant signed a waiver of rights form. The interview lasted approximately one hour.

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._

"(?• 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 constitute improper promises of leniency. See, e.g., People v Andersen, 101 Cal App 3d 563; 161 Cal Rptr 707 (1980); Paramore v State, 229 So 2d 855 (Fla, 1969, vacated on other grounds 408 US 935; 92 S Ct 2857; 33 L Ed 2d 751 (1972). Dennis’s other statement that he would advise presentence investigators that defendant had been cooperative and honest, if Dennis found that to be the case, constitutes a promise but not a promise of leniency. When the prosecutor inquired of Dennis what impact his recommendation would have, Dennis responded: "I have to believe it carries a certain amount of weight towards the sentencing”. Dennis did not testify that he shared his opinion with defendant. According to Officer Voet, Dennis told defendant only that the presentence investigator would "have a look at it” and that it "would be weighed as to his sincerity and truthfulness”. The entire discussion was very brief and the subject was not raised again during the course of the interrogation.

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 that opinion as embracing the Bram test was described as follows:

"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 ; 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 arrest. The trial judge determined'that defendant was given his Miranda rights and understood them. All other factors being favorable, we are unwilling to hold that defendant’s youth, criminal inexperience, and understandable fear at the prospect of questioning concerning his involvement in a criminal offense served to magnify Dennis’s relatively benign statements into conduct such as would overbear defendant’s will.

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.

Affirmed.

R. B. Burns, P.J., concurred.

1 People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

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