People v. Carigon

341 N.W.2d 803 | Mich. Ct. App. | 1983

128 Mich. App. 802 (1983) 341 N.W.2d 803

PEOPLE
v.
CARIGON

Docket No. 57753.

Michigan Court of Appeals.

Decided September 26, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Randy H. Smith, Prosecuting Attorney, and Mary C. Smith, Assistant Attorney General, for the people.

Van Hattum, Hickman & Harrison, P.C. (by Walter L. Harrison), for defendant on appeal.

Before: R.B. BURNS, P.J., and MacKENZIE and L.C. ROOT,^[*] JJ.

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 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. 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 U.S. 532, 542-543; 18 S. Ct. 183; 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 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 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, 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 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 U.S. 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 U.S. 873; 93 S. Ct. 205; 34 L. Ed. 2d 125 (1972); United States v Ferrara, 377 F2d 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 occurrence when the statement is made". United States v Grant, 622 F2d 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 NW2d 418 (1982); People v Robinson, 386 Mich. 551; 194 NW2d 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 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 an essentially free and unconstrained choice" or the result of an overborne will. Culombe v Connecticut, supra, 367 U.S. 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 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 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.

"Q. 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 U.S. 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 the 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 U.S. 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 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 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 the 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.

MacKENZIE, J. (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 Sheriff's 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 conveyed the thrust of what defendant was told. The detectives explained that they never told defendant that he would not be charged if he confessed. According to the detectives, they explained to defendant that they would be contacted by the presentence investigator for their recommendation, that their recommendation would be included in the presentence report and would carry some weight at sentencing, and that, if defendant told them what happened, a favorable recommendation couhd be made. If the detectives thought defendant lied to them, an unfavorable recommendation would be made.

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 U.S. 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. * * *

* * *

"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 U.S. 613, 623; 16 S. Ct. 895; 40 L. Ed. 1090 (1896); Haynes v Washington, 373 U.S. 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 U.S. 532, 542-543; 18 S. Ct. 183; 42 L. Ed. 568 (1897); Shotwell Mfg Co v United States, 371 U.S. 341, 347; 83 S. Ct. 448; 9 L. Ed. 2d 357 (1963); Malloy v Hogan, 378 U.S. 1, 7; 84 S. Ct. 1489; 12 L. Ed. 2d 653 (1964); Brady v United States, 397 U.S. 742, 753; 90 S. Ct. 1463; 25 L. Ed. 2d 747 (1970); Hutto v Ross, 429 U.S. 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 N.W. 78 (1883); People v Cleveland, 251 Mich. 542, 547; 232 N.W. 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:

"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 interrogating officer could get defendant a deal which would result in a lighter sentence); Robinson v State, 229 Ga 14; 189 SE2d 53 (1972) (defendant told that everybody asks how cooperative a suspect has been); People v Tanser, 75 Ill App 3d 482; 31 Ill Dec 414; 394 NE2d 616 (1979) (officers told defendant that they could only help him with his problem if he told them about it); State v Tardiff, 374 A2d 598 (Me, 1977) (defendant told that if he confessed he would be charged with one offense rather than three); Hargis v Warden, Maryland Penitentiary, 3 Md App 76; 237 A2d 807 (1968) (defendant told that a confession would help him in the eyes of the judge); Commonwealth v Meehan, 377 Mass 552; 387 NE2d 527 (1979) (defendant told that a confession would help his defense); People v DeJesus, 63 App Div 2d 148; 407 NYS2d 5 (1978) (defendant told of potential life sentence and that the only way to help himself was to disclose the identity of his accomplice); State v Williams, 33 NC App 624; 235 SE2d 869 (1977) (officer promised to testify that defendant talked to him and was cooperative); Walker v State, 626 S.W.2d 777 (Tex Crim App, 1982) (officers and district attorneys promised defendant that if he confessed he would not receive a sentence greater than ten years and charges against his mother would be dropped); State v Persinger, 386 SE2d 261 (W Va, 1982) (officers promised to give a favorable recommendation to the presentence investigator). See also 29 Am Jur 2d, Evidence, §§ 558-565, pp 617-624, and the cases discussed therein.

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 presented here. Confessions have been held to have been voluntary where the interrogating officers merely told defendant that authorities would be informed of his cooperation, but where the officers did not tell defendant that this would lead to lenient treatment. United States v Frazier, 434 F2d 994 (CA 5, 1970); United States v Springer, 460 F2d 1344 (CA 7, 1972); United States v Curtis, 562 F2d 1153 (CA 9, 1977); United States v Ballard, 586 F2d 1060 (CA 5, 1978); Wallace v State, 290 Ala 201; 275 So 2d 634 (1973); State v Mullin, 286 So 2d 36 (Fla App, 1973); State v Williams, 358 So 2d 1094 (Fla App, 1978); Bova v State, 392 So 2d 950 (Fla App, 1980); Clayton v State, 156 Ga App 285; 274 SE2d 682 (1980); State v Forrester, 21 Wash App 855; 587 P2d 179 (1978). Often these cases have involved an express statement by the officers that no promises could be made. Wallace v State, supra; State v Mullin, supra; State v Williams, supra; Clayton v State, supra. Confessions have also been held to have been voluntary where the officers merely told defendant that it would be better to tell the truth, Harvey v State, 272 Ark 19; 611 S.W.2d 762 (1981); State v Tillery, 227 Kan 342; 606 P2d 1031 (1980); State v Theriault, 425 A2d 986 (Me, 1981), or where the officers merely gave defendant accurate information about potential charges and penalties, Turner v State, 407 NE2d 235 (Ind, 1980).

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. However, when the detectives told defendant that the truth would lead to a favorable sentencing recommendation but that the detectives would make an unfavorable recommendation if they thought defendant lied, it was obvious that the detectives would only accept a confession as of the truth. Moreover, the information which, according to the detectives, they gave to defendant concerning the potential impact on sentencing of a confession was erroneous as a matter of law.

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 U.S. 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 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694 (1966). The prosecution claims that in North Carolina v Butler, 441 U.S. 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 question than whether defendant's waiver of his Miranda rights was voluntary. See Mincey v Arizona, 437 U.S. 385, 397-398; 98 S. Ct. 2408; 57 L. Ed. 2d 290 (1978).

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.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

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

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