People v. Trilck

• Decision Date: 01 October 1964
• Docket Number: Nos. 2,s. 2
• Citation: 374 Mich. 118,132 N.W.2d 134
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Russell TRILCK, Victor Folks, Deceased, Willie Folks, Walter J. Wood and LeRoy Stone, Defendants and Appellants. ,
• Court: Michigan Supreme Court

Page 134

132 N.W.2d 134

374 Mich. 118

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Russell TRILCK, Victor Folks, Deceased, Willie Folks, Walter

J. Wood and LeRoy Stone, Defendants and Appellants.

Nos. 2, Oct. Term, 1964, 3, Oct. Term, 1964, 4, Oct. Term, 1964.

Supreme Court of Michigan.

Jan. 4, 1965.

Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for the People.

Joseph W. Louisell, Detroit, Ivan E. Barris, Detroit, of counsel, for Russell Trilck.

Harry Robert Bockoff, Detroit, for Victor Folks, Decd., and Willie Folks.

Kenneth J. Logan, River Rouge, for Walter J. Wood and LeRoy Stone.

Before the Entire Bench, except KAVANAGH, C. J., and ADAMS, J.

KELLY, Justice.

A 4-count conspiracy information charged defendants Ralph Phillips, Walter John Wood, Victor Folks, LeRoy Stone, Ira Bargon, Daniel McGhee, Russell Trilck and Willie Folks, with conspiring during the period between February 13, 1953, and February 13, 1959, to bribe River Rouge police officers to refrain from enforcing the gambling laws of the State of Michigan, thus obstructing justice. All of the above defendants except Russell Trilck and Willie Folks were police officers of the city of River Rouge.

A jury found defendants Trilck, Wood, Phillips, Stone, Victor and Willie Folks guilty, and defendants Bargon and McGhee not guilty.

The trial court sentenced defendants Russell Trilck and Willie Folks to a term of imprisonment of 2 to 5 years upon each of the two counts of which they were found guilty, said sentences to run concurrently and with recommendation that minimum terms be served. The remaining defendants found guilty were placed on probation, with the added condition in the case of Victor Folks that he serve the first six months of the probationary period of the Detroit House of Correction.

In pursuance of leave granted by order of this Court, defendants Victor Folks, Willie Folks and Russell Trilck filed their claims of appeal, and, subsequently, there was filed a suggestion of death of Victor Folks. The main question in this appeal is presented by appellant Trilck as follows:

'Did the lower court commit reversible error in allowing, over the objection of counsel for Trilck, the admission into evidence, as being binding not only upon the declarant, but also upon Trilck and the other co-defendants, of four extra-judicial statements made by various of the other defendants to various members of the staff of the prosecuting attorney's office for the county of Wayne during the period of the alleged conspiracies (February 13, 1953 to February 13, 1959), but not in pursuance or furtherance of the conspiracies, but rather in derogation of same, and did the lower court commit reversible error in allowing, over the objection of counsel for Trilck, the admission into evidence, as being binding not only upon the declarant, but also upon Trilck and the other co-defendants, of a certain statement made on May 7, 1954 (Exhibit 15) to an assistant prosecuting attorney for the county of Wayne by the defendant, Walter Wood, which statement was nothing more than an exculpatory statement in narrative form as to Wood, but which contained inculpatory matters with respect to Trilck and some of the other defendants?'

The trial court in a written opinion denying motions for a new trial agrees with defendants that to be admissible the statements must be in furtherance of the object; states that the cases defendants call to the court's attention do not define 'furtherance' and points out that defendants' assignment of error 'stands or falls on the real meaning of 'furtherance."

The court singled out an opinion of the 7th Circuit Court of Appeals ¹ and, after stating that the case is 'most pertinent,' quoted same as follows:

'Construing the expression in 'furtherance of the conspiracy' reference is not to the admission as such, but rather to the act concerning which the admission is made; that is to say, if the act or declaration, concerning which the admission or declaration is made, be in furtherance of the conspiracy, then it may be said that the admission is in furtherance of the conspiracy.'

Evidently following the above decision, the lower court stated:

'Here then is the rule. Here is the fine point which distinguishes counsel's contention from the real intent of the law. How could it be otherwise? Were it as counsel contends, few if any statements which revealed the acts of the unlawful confederates made to a law enforcement official or to any other third person would ever be admissible, even though they were made during the life of the conspiracy. If such were the construction placed by the law upon 'furtherance,' why would there be the need at all for such rule which requires the two elements 'time' and 'furtherance'? Obviously it is not the act of declaring or the act of making the statement which must meet the test of 'furtherance,' because it is inconceivable that such act could ever be in furtherance. Rather it is the facts which make up the content of the statement which must meet the test of 'furtherance."

Pursuant to this 'rule' the court held 'that the statements objected to are properly admissible.'

The people contend that they meet this necessary test of 'furtherance' by proof which was introduced that defendants plotted and agreed among themselves as to what false statements they would make if questioned by law enforcing officials about the conspiracy, and state: 'These declarations pursuant to plan thus became acts in furtherance of the conspiracy, and as such binding upon all defendants.'

It is not unusual or strange that past court decisions have not deemed it necessary to define what was meant by the use of the word 'furtherance.' 'Furtherance' is not a technical word, obscure in meaning, but, rather a commonplace word that is understood by the ordinary person as Webster defines it, namely: 'The act of preferment: advancement, promotion.' ²

Our Court has made it clear that while hearsay is not admissible for the reason that the essential right of cross-examination is absent, yet we have recognized an exception in conspiracy cases where there is proof of a common enterprise or a mutual agency. Under those conditions the acts and declarations of one conspirator done or made while the conspiracy is pending and in furtherance of its object are admissible against all conspirators. See People v. Beller, 294 Mich. 464, 293 N.W. 720; People v. Chambers, 279 Mich. 73, 271 N.W. 556. No decision of this Court has approved the trial court's 'rule' that 'it is the facts which make up the content of the statement which must meet the test of 'furtherance", and 'it is not the act of declaring or the act of making the statement which must meet the test of 'furtherance."

In considering the use of extrajudicial statements, the United States Supreme Court has (1) commented on the long history of judicial experience showing the 'weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession. Admissions, retold at a trial, are much like hearsay, that is, statements not made at the pending trial. They had neither the compulsion of the oath nor the test of cross-examination'; ³ has (2) warned against an improper extension of 'this narrow exception to the hearsay rule'; ⁴ has (3) stated that the declaration of one conspirator will not be binding against other conspirators unless the proof discloses declarant was acting as agent of the other conspirators at the time of making the declaration and that the declaration was made in furtherance of the conspiracy; ⁵ has (4) emphasized the fact that the acts of one partner in crime is only admissible against the others were it is in furtherance of the criminal undertaking; ⁶ that (5) '[c]ontinuity of action to produce the unlawful result, or as stated in United States v. Kissel, supra, page 607, of 218 U.S., at page 126, of 31 S.Ct., 54 L.Ed. 1168, 'continuous co-operation of the conspirators to keep it up,' is necessary'; ⁷ and (6) that a conspiracy is a partnership in crime. ⁸

In the latest decision of the United States Supreme Court, Wong Sun v. United States, 371 U.S. 471, 490, 83 S.Ct. 407, 418, 9 L.Ed.2d 441, it was stated:

'The second governing principle, likewise well settled in our decisions, is that an out-of-court declaration made after arrest may not be used at trial against one of the declarant's partners in crime. While such a statement is 'admissible against the others where it is in furtherance of the criminal undertaking * * * all such responsibility is at an end when the conspiracy ends.' Fiswick v. United States, 329 U.S. 211, 217, 67 S.Ct. 224, 227, 91 L.Ed. 196. We have consistently refused to broaden that very narrow exception to the traditional hearsay rule which admits statements of a codefendant made in furtherance of a conspiracy or joint undertaking. See Krulewitch v. United States, 336 U.S. 440, 443-445, 69 S.Ct. 716, 718-719, 93 L.Ed. 790. And where post-conspiracy declarations have been admitted, we have carefully ascertained that limiting instructions kept the jury from considering the contents with respect to the guilt of anyone but the declarant. Lutwak v. United States, 344 U.S. 604, 618-619, 73 S.Ct. 481, 489-490, 97 L.Ed. 593; Delli Paoli v. United States, 352 U.S. 232, 236-237, 77 S.Ct. 294, 297, 1 L.Ed.2d 278.'

The people's contention that defenda...