People v. Carigon

• Citation: 128 Mich.App. 802,341 N.W.2d 803
• Decision Date: 15 December 1983
• Docket Number: Docket No. 57753
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Raymond CARIGON, Defendant-Appellant. 128 Mich.App. 802, 341 N.W.2d 803
• Court: Court of Appeal of Michigan (US)

Page 803

341 N.W.2d 803

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Timothy Raymond CARIGON, Defendant-Appellant.

Docket No. 57753.

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

Court of Appeals of Michigan.

Submitted June 4, 1982.

Decided Sept. 26, 1983.

Released for Publication Dec. 15, 1983.

[128 MICHAPP 804] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Randy H. Smith, Pros. Atty., and Mary C. Smith, Asst. Atty. Gen., for the People.

Van Hattum, Hickman & Harrison, P.C. by Walter L. Harrison, Grand Rapids, for defendant-appellant on appeal.

Before R.B. BURNS, P.J., and MacKENZIE and ROOT ^*, JJ.

ROOT, Judge.

Defendant was convicted after a jury trial of arson of real property, M.C.L. Sec. 750.73; M.S.A. Sec. 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 ¹ 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.[128 MICHAPP 805] People v. Dean, 110 Mich.App. 751, 754, 313 N.W.2d 100 (1981). The prosecution must have proven voluntariness, People v. White, 401 Mich. 482, 494, 257 N.W.2d 912 (1977), proof by preponderance of evidence being necessary to discharge this burden, People v. Sears, 124 Mich.App. 735, 336 N.W.2d 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 U.S. 532, 542-543, 18 S.Ct. 183, 186-187, 42 L.Ed. 568 (1897). See also Hutto v. Ross, 429 U.S. 28, 97 S.Ct. 202, 50 L.Ed.2d 194 (1976), and Brady v. United States, 397 U.S. 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 N.W.2d 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.

[128 MICHAPP 806] Quoting the operative language from the Bram 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, at p. 362, 331 N.W.2d 406. 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, 416 Mich. at p. 373, 331 N.W.2d 406.

Justice Ryan found subsequent Supreme Court decisions to be in accord:

[128 MICHAPP 807] "Even later cases which have approved of the Bram dictum have not adopted a per se approach.

"In Malloy v Hogan, [378 U.S. 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, 416 Mich. at p. 373-374, 331 N.W.2d 406 (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 F.2d 1344 (CA 7, 1972), cert. den., 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972); United States v. Ferrara, 377 F.2d 16 (CA 2, 1967), cert. den., 389 U.S. 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 occurence when the statement is made". United States v. Grant, 622 F.2d 308, 316 (CA 8, 1980), citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Culombe v. Connecticut, 367 U.S. 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 N.W.2d 418 (1982); People v. Robinson, 386 Mich. 551, 194 [128 MICHAPP 808] N.W.2d 709 (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 N.W.2d 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 an essentially free and unconstrained choice" or the result of an overborne will. Culombe v. Connecticut, supra, 367 U.S. at 602, 81 S.Ct. at 1879.

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 [128 MICHAPP 809] 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 Miranda ² 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...