People v. Pallister

• Decision Date: 25 October 1968
• Docket Number: Docket No. 629,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin PALLISTER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 319

165 N.W.2d 319

14 Mich.App. 139

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin PALLISTER, Defendant-Appellant.

Docket No. 629.

Court of Appeals of Michigan, Division No. 2.

Oct. 25, 1968.

Released for Publication March 11, 1969.

Roman S. Gribbs, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, S. Jerome Bronson, Pros. Atty., Oakland County, Pontiac, for plaintiff-appellee.

Before KAVANAGH, P.J., and LEVIN and VANDER WAL, ^* JJ.

VANDER WAL, Judge.

Defendant Pallister and two co-defendants, Dorothy Krugman and Gerard Flieger, were jointly charged with armed robbery ¹ perpetrated on December 1, 1962. The three defendants were tried jointly before a jury. Defendants Pallister and Krugman were found guilty. Defendant Flieger pleaded guilty to a lesser offense during the trial. Defendant Pallister was sentenced to imprisonment for a period of eight to 25 years.

Defendant Pallister requests that the judgment of the trial court be reversed and that he be discharged or, in the alternative, a new trial be granted.

Defendant raises three issues, but because of our holding on the second issue, we need not consider the other two.

Did the trial court commit reversible error in admitting into evidence the confession of the defendant made on the sixth ² day of incarceration after arrest and as a result of alleged promises and inducements by law enforcement officials?

The United States Supreme Court has declared that where the voluntariness of a confession is put in issue the Court must 'examine the entire record and make an independent determination of the ultimate issue of voluntariness'. Davis v. North Carolina (1966), 384 U.S. 737, 741, 742, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895, 898. See, also, Greenwald v. Wisconsin (1968), 390 U.S. 519, 521, 88 S.Ct. 1152, 1153, 20 L.Ed.2d 77, 79. On the authority of earlier such statements by the United States Supreme Court, the Michigan Supreme Court has ruled:

'No longer, our alternative task being that of determination whether Hamilton's confession was admissibly voluntary as a matter of federally guaranteed due process, may we escape the duty of independent examination of the record; apart from fact-findings below.' People v. Hamilton (1960), 359 Mich. 410, 418, 102 N.W.2d 738, 743.

Accordingly, we have made our own independent examination of the record. We are left with the 'definite and firm conviction' ³ the trial judge erred in holding that the defendant's confession was voluntary and, accordingly, have concluded that the trial judge's finding of voluntariness was clearly erroneous. GCR 1963, 517. We have considered but see no need to decide whether the trial judge should have applied the preponderance of the evidence or reasonable doubt standard in evaluating the evidence concerning voluntariness, ⁴ because in our view applying either standard the trial judge should have concluded the confession was involuntary.

Pallister testified he was induced to make the statement because of intimations that if he would do so he would be given the opportunity to plead to a lesser charge, his bond of $10,000 which he could not make would be reduced to a figure he could make, and 'holds' which would justify detaining him even if he raised the $10,000 bond would be overlooked. He testified he had been in jail for 12 days after his arrest on the charge of which he was ultimately convicted, during which period he did not give a confessional statement although frequently questioned. His testimony is supported by the testimony of an attorney with whom he conversed on the telephone before giving the confession and is also corroborated to some extent by other circumstances. We also think it significant that the people did not contradict his assertions by questioning the officers alleged to have made the promise, even though two of them were on the stand and could have been questioned by the people in that regard.

The transcript shows:

'Q. And during that 12 days, were there any promises or threats made to you by any law enforcement officials, whatsoever, if you would voluntarily make a statement?

'A. Yes.

'Q. What were they?

'A. To a lesser charge.

'Q. They insinuated to you that if you came forward and made a statement, that you would be permitted to plead to a lesser offense?

'A. Would you repeat that, please?

'Q. They indicated to you that if you would make a statement, that you would be permitted to plead to a lesser offense than armed robbery?

'A. Yes, also with other stipulations.

'Q. What were the other stipulations, please?

'A. $10,000 bond, that I couldn't make.

'Q. Your bond was set at what?

'A. $10,000.

'Q. And what did they tell you about your bond?

'A. If I didn't make it, they would throw a holder on me for something else.

'Q. If you didn't make it?

'A. If I didn't--I misunderstood--

'The Court: Proceed.

'Q. What did they tell you regarding your bond of $10,000?

'A. They knew I couldn't make it.

'Q. So did they make any promises to you if you made a statement regarding the bond?

'A. They would reduce it.

'Q. Did they say how low they would reduce it?

'A. To around where I could make it.

'Q. So your testimony is that prior to the time that you made your statement, you were held approximately 12 days, and you were informed that if you made a statement, that you would be permitted to plead to a lesser included offense or a lesser offense than armed robbery, is that correct?

'A. Yes.

'Q. And that your bond will be reduced so that you could go home to your parents?

'A. Yes.

'Q. Was the bond, in fact, reduced, after you made your statement?

'A. The very next day, or two days, I'm not sure.

'Q. What was the amount of the new bond which was set?

'A. $2,000, cash or surety.

On cross-examination: * * *

'Q. What did Mr. Lang (the prosecutor) promise you?

'A. Nothing.

'Q. Oh, what did Detective George Dreachslin promise you?

'A. He said, 'I wouldn't be surprised if you got probation.'

'Q. What did he promise you?

'A. Nothing.

'Q. What did Trooper George Plummer promise you, Marvin?

'A. Reduce my bond.

'Q. Trooper Plummer promised that he would reduce your bond?

'A. He would talk to the people to reduce my bond.

'Q. And Detective Dreachslin didn't promise you anything?

'A. He also said--which I said no before, he also would help with the bond.

'Q. $10,000, that was your bond?

'A. At the time.

'Q. How would they do that, go to the judge?

'A. Well, they would put in a good word.

'Q. With the judge?

'A. Uh-huh.

'Mr. Wilson: So it's your testimony that when you were asked the question (by the judge), 'Has anybody promised you anything to get you to talk to me relative to this affair?' That you answered 'yes' then the officer stood up and you said, 'no, I'm sorry.'?

'A. Correct.'

The testimony of the lawyer, William Hull, with whom Mr. Pallister spoke on the telephone before giving the statement, which lawyer, after talking to the officers told Mr. Pallister, according to the latter's testimony, 'Make a statement', corroborates the substance of Mr. Pallister's testimony:

'Q. Bill, did you talk to any of the officers or prosecutors handling this case, prior to the time that Mr. Pallister made a statement?

'A. Yes.

'Q. Was the question of Mr. Pallister's bond discussed at this time?

'A. Yes.

'Q. Did they insinuate to you that if he made a voluntary statement to them that his bond would be reduced?

'A. They stated that they would have no objections to a reduction of the bond, and that they would relate this to the judge that would determine the amount of the bond.

'Q. Did they state anything to you about any other holds that they might have on him, on Mr. Pallister?

'A. They mentioned that there were other matters under which they felt that they could hold Mr. Pallister.

'Q. Did they mention to you the possibility of a reduction in sentence, if he voluntarily cooperated?

'A. They said that they would have no objection to any reduction in sentence, And that they would do what they could to facilitate anything, if it could be arranged.

'Q. And based upon these discussions with the law enforcement officials engaged in this matter, you advised Mr. Pallister that it would be in his best interest to make a statement, is that correct?

'A. These and other factors.

'Q. Were there any other factors that might be relevant to us here, important to us here today?

'A. No, I don't believe so.' (Emphasis added.)

On cross-examination the attorney was questioned:

'Q. What is reduction in sentence, as you use the term here, Mr. Hull?

'A. I don't recall that I used the terminology. I think Mr. Wilson used it.

'Q. You said, in your answer, if I may have the answer read back, that they said something to you about reduction of sentence. And I didn't understand.

'A. Obviously, it was a mis-statement, A reduction in the charge.

'Q. Oh, and it's your testimony that you had discussion with these police officers and there was some possessibility of reducing the bond in this case on Mr. Pallister?

'A. I testified that the police officers indicated to me that they would have no objection to a reduction in the bond. And that they would do whatever they were able to as far as discussing the matter with the judge and relating to the judge that they had no objection to a reduction in the bond.

'Q. And that they would talk to the prosecutor about some reduction in the charge?

'A. They would have no objection to the reduction in the charge.

'Q. They would have no objection. And which officers were these, Mr. Hull?

'A. Well, I talked with George Dreachslin, Mr. Olepa, and Mr. Plummer.' (Emphasis added).

Miss Nancy Ballow, the court reporter, was asked how long an interval elapsed between the 'yes' and the 'no, I'm sorry', to which she replied 'seconds'.

Mr. George Dreachslin, one of the officers, was called and he was asked on direct examination only with regard to the 'yes', 'no, I'm sorry' answer. He testified that only a second...