People v. Jones , 416 Mich. 354 ( 1982 )

416 Mich. 354 (1982) 331 N.W.2d 406

PEOPLE
v.
JONES

Docket No. 66011, (Calendar No. 12).

Supreme Court of Michigan.

Argued December 2, 1981. Decided December 23, 1982. Certiorari denied April 18, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

Earl R. Spuhler for defendant.

Certiorari denied by the Supreme Court of the United States on April 18, 1983.

KAVANAGH, J. (for reversal).

Jesse James Jones was convicted of first-degree murder by a jury and was sentenced to life imprisonment. MCL 750.316; MSA 28.548. The conviction was based in part on his confessional statement, admitted into evidence over his objection.

On appeal, the Court of Appeals affirmed in an unpublished opinion, finding under the "totality of circumstances" that the defendant's confession was admissible. Defendant asserts that the statement made by him pursuant to a plea agreement that he later refused to carry out was improperly admitted into evidence.

We reverse the decision of the Court of Appeals and hold that the statement made by the defendant required by the plea agreement is inadmissible per se. We remand for a new trial.

On December 28, 1977, Thomas Chiavares was murdered at the Hockstad Pharmacy in Flint, Michigan, during the course of an armed robbery. On April 27, 1978, defendant Jones was arrested for unlawfully carrying a sawed-off shotgun. Sergeant Darby of the Flint Police Department met with Jones on April 28, 1978, while Jones was in custody for federal and state weapons offenses. Jones was advised of his rights under Miranda,^[1] and, upon a waiver of his rights, he discussed the weapons charges.

During that interview, Jones was told that he was a suspect in the Hockstad murder case. Sergeant Darby asked Jones if he wanted to discuss that crime and reminded him of his Miranda rights. Jones denied knowing anything about the murder, and the discussion returned to the weapons charges. Jones asked about the possible penalty for the federal and state weapons offenses. Darby told Jones that the federal firearms charge had a ten-year maximum sentence and that the state charge had a possible sentence of five years. Jones was also told that he could possibly be sentenced to prison for violating parole. Jones inquired as to what consideration he would be given if he were to discuss the Hockstad murder. He said he knew a great deal and could clear up the case.

Sergeant Darby contacted the prosecutor and a federal agent and advised Jones that if he would give a statement implicating himself in the Hockstad murder and would testify against the others involved, the federal and state gun charges would be dropped and Jones could plead guilty to manslaughter. Jones was again advised of his Miranda rights, and he voluntarily waived his right to counsel and agreed to tell all he knew about the Hockstad case. He then made the confessional statement now at issue to the police. His statement detailed the planning and carrying out of the robbery attempt and killing, fully implicating himself and two others.

Later Jones refused to carry out the plea agreement. He was charged with murder in the perpetration of an armed robbery. A pretrial motion to suppress the confession was filed by defendant's trial attorney, and an evidentiary hearing was conducted. At the conclusion of the hearing, the trial court determined that the confession was voluntary and thus was admissible as evidence.

On the morning of the trial, the prosecutor acknowledged a willingness to fulfill the plea agreement, but Jones again refused. At trial, defendant's confession was admitted into evidence and presented to the jury over the objection of defendant's attorney. Jones was convicted of first-degree murder and received a mandatory sentence of life imprisonment.

The Court of Appeals affirmed defendant's conviction and found under the "totality of the circumstances" that the trial court's decision that defendant's confession was properly admissible as evidence was not erroneous.^[2]

The use of involuntary admissions in a criminal prosecution is prohibited by the Fifth Amendment right against self-incrimination:

"In criminal trials, in courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment to the Constitution of the United States, commanding that no person ``shall be compelled in any criminal case to be a witness against himself.'" Bram v United States, 168 US 532, 542; 18 S Ct 183; 42 L Ed 568 (1897).

The Fifth Amendment's right against compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the states. Malloy v Hogan, 378 US 1, 6; 84 S Ct 1489; 12 L Ed 2d 653 (1964).

The reason that involuntary confessions are not admissible evidence was set forth by the Court in Rogers v Richmond, 365 US 534, 540-541; 81 S Ct 735; 5 L Ed 2d 760 (1961):

"Our decisions under [the Fourteenth] Amendment have made clear that convictions following the admission into evidence of confessions which are involuntary, i.e., the product of coercion, either physical or psychological, cannot stand. This is so not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law: that ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured and may not by coercion prove its charge against an accused out of his own mouth. See Chambers v Florida, 309 US 227; 60 S Ct 472; 84 L Ed 716 (1940); Lisenba v California, 314 US 219, 236; 62 S Ct 280; 86 L Ed 166 (1941); Rochin v California, 342 US 165, 172-174; 72 S Ct 205; 96 L Ed 183 (1952); Spano v New York, 360 US 315, 320-321; 79 S Ct 1202; 3 L Ed 2d 1265 (1959); Blackburn v Alabama, 361 US 199, 206-207; 80 S Ct 274; 4 L Ed 2d 242 (1960). And see Watts v Indiana, 338 US 49, 54-55; 69 S Ct 1347; 69 S Ct 1357; 93 L Ed 1801 (1949)."

In determining whether a confession is voluntary, the test is whether the confession was "``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, supra, pp 542-543. (Emphasis supplied.)

This test has been applied by several recent federal and state courts, which have found that confessions induced by promises of leniency are inadmissible.^[3] The decision of the court in Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946; 100 S Ct 307; 62 L Ed 2d 315 (1979), is particularly noteworthy because of the similarity of its factual situation to the case at bar. In Gunsby, in exchange for a maximum sentence of 7-1/2 years and no objection from the state to probation, the defendant agreed to plead guilty and testify against two codefendants. Additionally, pursuant to the plea bargain, the defendant gave a statement incriminating himself and a codefendant. However, the plea bargain was set aside after the defendant testified because his testimony tended to exculpate rather than incriminate his codefendant. The confession was admitted into evidence at trial over objection, and the defendant was convicted and sentenced to 20 years in prison.

In granting the defendant's petition for habeas corpus, the Fifth Circuit held that because the statement was given as a result of promises made by the state in the plea bargain, "[t]he district court's conclusion that the statement was legally involuntary and inadmissible at Gunsby's state trial was thus compelled under Hutto v Ross, 429 US 28; 97 S Ct 202; 50 L Ed 2d 194 (1976)." "The [Hutto] Court held that the confession was not the result of any direct or implied promise and was voluntarily given. Conversely, a confession given as the result of a direct or implied promise would be legally involuntary." Gunsby, supra, p 656.

In the instant case, the confession was made as part of an agreement. In return for a statement implicating himself in the Hockstad murder and testimony against the others included, Jones would be permitted to plead guilty to manslaughter for the Hockstad murder, and the unrelated federal and state gun charges would be dropped. There is no question but that Jones's confession was "obtained by" the prosecutor's promise.

The people contend that where an accused initiates the bargaining session with the police and prosecuting authorities, he should not be heard to complain that his statement was involuntary. Several state courts,^[4] along with the Michigan Court of Appeals,^[5] have held that a confession is not "induced" when a defendant initiates the bargaining. However, the distinction is irrelevant.^[6] The confession is a product of the plea agreement whether the defendant, the prosecutor, or a police officer initiates the bargaining.

The fact that the defendant initiates the bargaining does not mean that the defendant is not influenced by the state's promises. The confession is no more reliable simply because the defendant begins the negotiating. In People v Wolcott, 51 Mich 612, 615; 17 NW 78 (1883), Justice COOLEY agreed with the reasoning of many other courts and found that no reliance can be placed on admissions of guilt obtained by assurances of leniency "for the very obvious reason that they are not made because they are true, but because, whether true or false, the accused is led to believe it is for his interest to make them." (Citations omitted.) However, it is no less in the defendant's interest to accept a plea bargain when he initiates the bargaining than when bargaining is initiated by the state. Therefore, because the defendant is still influenced by the state's promises of leniency and there is no reason to conclude that a confession pursuant to a plea bargain initiated by the state is any more reliable than the same confession when bargaining is initiated by the defendant, we find no reason to conclude that a confession is voluntary merely because the defendant initiates the bargaining.

Similarly, while Miranda warnings and advice of counsel (defendant Jones voluntarily waived his right to counsel) tend to support a conclusion that a plea was a well-advised, intelligent exercise of choice, they do not negate the pressure or inducements of the plea bargain.^[7]

The Court of Appeals held that the issue of the applicability of MRE 410 was not properly subject to review because the defendant did not raise the issue at trial. MRE 410 is not the basis of our decision today, but the rule and its rationale support our decision.

Under MRE 410, defendant's confessional statement could not be used against him:

"Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement." (Emphasis supplied.)

MRE 410 is similar to Rule 410 of the Federal Rules of Evidence and Rule 11(e)(6) of the Federal Rules of Criminal Procedure.^[8] The purpose of these rules is to promote the disposition of criminal cases by compromise^[9] and to permit the unrestrained candor which produces effective plea discussions.^[10]

The plea-bargaining process is an asserted component of the administration of criminal justice. It has become an accepted fact of life. Chief Justice Burger expressed the need and desirability of the plea-bargaining process in Santobello v New York, 404 US 257, 260-261; 92 S Ct 495; 30 L Ed 2d 427 (1971):

"The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ``plea bargaining,' is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

"Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. See Brady v United States, 397 US 742, 751-752 [90 S Ct 1463; 25 L Ed 2d 747] (1970)."

For plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him. In excluding a defendant's plea-related statements, Judge Coleman of the Fifth Circuit Court of Appeals wrote:

"If, as the Supreme Court said in Santobello, plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt. Moreover, it is inherently unfair for the government to engage in such an activity, only to use it as a weapon against the defendant when negotiations fail." United States v Ross, 493 F2d 771, 775 (CA 5, 1974). See United States v Herman, 544 F2d 791 (CA 5, 1977).

This decision is consistent with prior Michigan law holding inadmissible at a subsequent trial a plea of guilty which was later withdrawn. People v Street, 288 Mich 406; 284 NW 926 (1939); People v Trombley, 67 Mich App 88; 240 NW2d 279 (1976). In People v George, 69 Mich App 403; 245 NW2d 65 (1976), the Court held that statements made in connection with withdrawn guilty pleas are likewise inadmissible at the defendant's subsequent trial. It follows that when the defendant merely offers or agrees to plead guilty, the offer and statements made in connection therewith should also be inadmissible at the defendant's subsequent trial. To hold otherwise would put the defendant who merely offers or agrees to plead guilty in a worse position than the defendant who actually pleads guilty and later withdraws his plea.

The people are not prejudiced by our decision today. In the words of Circuit Judge Goldberg:

"the government's inability to introduce the statements made in a bargaining session does not place it in a worse position than it would occupy if an accused chose not to engage in plea bargaining at all." Herman, supra, p 797.

The government must fulfill its obligation of independently assembling and proving its case against the defendant.

WILLIAMS and LEVIN, JJ., concurred with KAVANAGH, J.

RYAN, J. (concurring in the result).

Defendant Jesse James Jones was convicted of first-degree murder and sentenced to life imprisonment. MCL 750.316; MSA 28.548. His conviction depended heavily on a statement made by him pursuant to a plea-bargaining agreement in which he implicated himself and his accomplices in an armed robbery during which the murder occurred. The plea bargaining was initiated by the defendant, and his statement was used against him at trial when he refused to abide by the agreement. He asserts that the statement was improperly admitted into evidence because it was involuntary.

My colleague has found the statement involuntary and inadmissible per se because it was the product of a plea-bargaining agreement, even though that agreement was initiated by the defendant. It is said that the statement is a product of the agreement and induced by the prosecutor's promise to allow the defendant to plead guilty to manslaughter, and agreement to drop certain weapons charges. Thus, the confession was coerced.

I disagree with my colleague's reasoning, but not with the result reached. The creation of a per se rule under the United States Constitution is an unprecedented and unwarranted step. The United States Supreme Court has consistently applied a totality of the circumstances approach — a test applied by both the trial and appellate courts below. Despite dicta indicating the possibility of a per se test, the cases on point continue to apply the totality test, and the United States Supreme Court has rejected a per se approach in a somewhat analogous case. Brady v United States, 397 US 742; 90 S Ct 1463; 25 L Ed 2d 747 (1970). A per se approach is unjustified, particularly in the circumstances of this case. It will only serve to confuse the application of the totality of the circumstances test in the courts below in future cases.

I

The defendant was arrested on April 27, 1978, for unlawfully carrying a sawed-off shotgun. He was questioned by Sergeant Darby of the Flint Police Department after being advised of his Miranda^[1] rights. After being told that he was a suspect in a December 28, 1977, murder and asked if he wished to discuss it, and reminded of his Miranda rights, Jones denied knowing anything. Later, however, after being informed of the possible sentences for the state and federal weapons violations and for violation of parole, he inquired as to the consideration he might receive if he told what he knew of the murder.

Darby then contacted the assistant prosecutor and a federal agent. An assistant prosecuting attorney advised that Jones would be permitted to plead guilty to manslaughter if he would give a statement implicating himself in the murder and testify against anyone else involved. The federal agent indicated that all federal weapons charges would be dropped if Jones cooperated.

Jones agreed to give a statement. He was informed of his Miranda rights again and voluntarily waived his right to counsel. He then gave a detailed statement concerning the murder and the robbery attempt during which the murder occurred.

Subsequently, Jones refused to carry out his plea bargain. As a result, the prosecutor charged him with murder in the perpetration of an armed robbery and, at trial, sought to have the defendant's confession introduced. A pretrial motion to suppress was filed on June 14, 1978, by the defendant's trial attorney. The trial judge conducted an evidentiary hearing and found the confession to be voluntary. The trial judge also found that Jones was street-wise and experienced in criminal proceedings, and that it was he who refused to abide by the agreement.

On the first day of trial, the prosecutor indicated his continuing willingness to abide by the agreement; the defendant, however, continued in his refusal to carry out the bargain. Consequently, Jones's confession was admitted into evidence and read to the jury over the objection of his attorney that the statement was "involuntary". Jones was convicted of first-degree murder on June 29, 1978, and later sentenced to life imprisonment.

On appeal, the appellate court applied the People v McGillen # 1, 392 Mich 251; 220 NW2d 677 (1974), standard to the trial court's determination whether the defendant's statement was voluntary. It independently reviewed the facts and, like the trial court, applied a "totality of the circumstances" test to determine voluntariness. The Court of Appeals was not left with the firm and definite conviction that the trial court had erred. Thus, it affirmed.

II

My colleague has found that the defendant's statement, made pursuant to the plea-bargaining agreement, is "inadmissible per se". There is no indication what standard of review is employed in reviewing the voluntariness determination of the lower courts, but my brother's reasoning clearly suggests that he believes any incriminating statement made pursuant to a plea-bargaining agreement is one induced by the prosecutor's promise and, therefore, involuntary under the Fifth Amendment of the United States Constitution as applied to the states through the Fourteenth Amendment.

I agree that the defendant's conviction must be reversed. However, I strenuously disagree with my colleague's reasoning which I think will have a devastating impact upon the jurisprudence of this state. A per se approach to this problem is unjustifiably broad, particularly under the circumstances of this case.

Neither precedent nor policy require a per se rule. It is well established that a defendant's involuntary confession is inadmissible to prove his guilt of the crime confessed, Rogers v Richmond, 365 US 534; 81 S Ct 735; 5 L Ed 2d 760 (1961), and this prohibition applies to the states as well, Malloy v Hogan, 378 US 1; 84 S Ct 1489; 12 L Ed 2d 653 (1964). The Supreme Court has indicated that an involuntary confession is one in which the subject's will has been overborne by either physical or psychological coercion. See Schneckloth v Bustamonte, 412 US 218; 93 S Ct 2041; 36 L Ed 2d 854 (1973); Blackburn v Alabama, 361 US 199; 80 S Ct 274; 4 L Ed 2d 242 (1960). A convenient criterion for determining involuntariness is: "Is the confession the product of an essentially free and unconstrained choice by its maker?" Schneckloth, supra, p 225.

Despite the ease in stating this test, it is not so easy to apply. The United States Supreme Court has indicated that one must look at the facts of each situation — at the "totality of the circumstances" — to see whether a confession is voluntary. See, e.g., Mincey v Arizona, 437 US 385; 98 S Ct 2408; 57 L Ed 2d 290 (1978); Clewis v Texas, 386 US 707; 87 S Ct 1338; 18 L Ed 2d 423 (1967).

"In determining whether a defendant's will was overborne in a particular case, the Court has assessed the totality of all the surrounding circumstances — both the characteristics of the accused and the details of the interrogations. Some of the factors taken into account have included the youth of the accused, e.g., Haley v Ohio, 332 US 596; 68 S Ct 302; 92 L Ed 224 (1948), his lack of education, e.g., Payne v Arkansas, 356 US 560; 78 S Ct 844; 2 L Ed 2d 975 (1958), or his low intelligence, e.g., Fikes v Alabama, 352 US 191; 77 S Ct 281; 1 L Ed 2d 246 (1957), the lack of any advice to the accused of his constitutional rights, e.g., Davis v North Carolina, 384 US 737; 86 S Ct 1761; 16 L Ed 2d 895 (1966), the length of detention, e.g., Chambers v Florida, supra, the repeated and prolonged nature of the questioning, e.g., Ashcraft v Tennessee, 322 US 143; 64 S Ct 921; 88 L Ed 1192 (1944), and the use of physical punishment such as the deprivation of food or sleep, e.g., Reck v Pate, 367 US 433; 81 S Ct 1541; 6 L Ed 2d 948 (1961). In all of these cases, the Court determined the factual circumstances surrounding the confession, assessed the psychological impact on the accused, and evaluated the legal significance of how the accused reacted. Culombe v Connecticut, 367 US 568, 603; 81 S Ct 1860; 6 L Ed 2d 1037 (1961).

"The significant fact about all of these decisions is that none of them turned on the presence or absence of a single controlling criterion; each reflected a careful scrutiny of all the surrounding circumstances. See Miranda v Arizona, 384 US 436, 508; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966) (Harlan, J., dissenting); id., pp 534-535 (White, J., dissenting)." Schneckloth, supra, p 226. (Emphasis added.)

Since People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965), which required the trial judge to hold an evidentiary hearing and make an initial determination of voluntariness, Michigan courts have applied a totality of the circumstances test. This has been the analysis employed by this Court when reviewing a lower court's decision. See People v Paintman, 412 Mich 518; 315 NW2d 418 (1982); People v Brannan, 406 Mich 104; 276 NW2d 14 (1979); People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). Consequently, the establishment of a per se rule of involuntariness is a break with both federal precedent and Michigan precedent, which has basically followed federal law in this area. Although resting his decision on the federal constitution, my colleague fails to apply the totality test used by the United States Supreme Court. That Court has not based its decisions on the "presence or absence of a single controlling criterion". Schneckloth, supra, p 226.

The cornerstone of my colleague's argument is dictum from Bram v United States, 168 US 532; 18 S Ct 183; 42 L Ed 568 (1897). That Court, approvingly quoting a rule of law, said:

"In 3 Russell on Crimes (6th ed), p 478, it is stated as follows:

"``But a confession, in order to be admissible, must be free and voluntary: that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.'" Bram, supra, pp 542-543.

Admittedly, this language standing alone would lend itself to a per se approach; however, despite approval of this statement of the rule, the Court applied a totality of the circumstances approach. It said:

"In approaching the adjudicated cases for the purpose of endeavoring to deduce from them what quantum of proof, in a case presented, is adequate to create, by the operation of hope or fear, an involuntary condition of the mind, the difficulty encountered is, that all the decided cases necessarily rest upon the state of facts which existed in the particular case, and, therefore, furnish no certain criterion, since the conclusion that a given state of fact was adequate to have produced an involuntary confession does not establish that the same result has been created by a different although somewhat similar condition of fact. * * *

"The first of these statements but expresses the thought that whether a confession was voluntary was primarily one of fact, and therefore every case must depend upon its own proof." Bram, pp 548-549. (Emphasis added.)

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.

Even later cases which have approved of the Bram dictum have not adopted a per se approach. In Malloy v Hogan, supra, 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. More recently, Hutto v Ross, 429 US 28; 97 S Ct 202; 50 L Ed 2d 194 (1976), the Court rejected the idea that a statement made in connection with a plea agreement, but not required by the agreement, was per se involuntary.^[2] In doing so, it overruled the Eighth Circuit's determination of involuntariness because the statement "was made in connection with an offer to plead guilty and after a [plea] bargain had been agreed upon. Mobley v Meek, 531 F2d 924, 926 (1976)". 429 US 29. It then cited the Bram test. A per se approach is not supported by precedent. See also United States v Grant, 622 F2d 308 (CA 8, 1980).

Second, a per se approach is not justified in the plea bargaining situation, particularly in this case. My colleague extends Bram's rule to the plea bargaining situation, finding that because consideration in the form of a lesser charge, a recommended lighter sentence, and related benefits flow from the prosecutor to the defendant in a plea bargain, this consideration constitutes "direct or implied promises, however slight" thereby making the defendant's statement involuntary. This reasoning conflicts, however, with United States Supreme Court plea-bargain decisions and is inconsistent with the concept that a judicially accepted guilty plea itself is voluntary, even when made pursuant to promises of leniency.

In Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), the Court discussed the importance and legitimacy of plea bargaining in the course of determining that a defendant's conviction in a state court cannot be upheld when he complies with a plea bargain but the prosecutor does not. Cf. People v Reagan, 395 Mich 306; 235 NW2d 581 (1975).^[3] Fundamental fairness in securing an agreement and a sense of fair play were the basis for the Santobello Court's decision requiring the state court's judgment to be vacated, not the involuntariness of the plea.

"However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. Moore v Michigan, 355 US 155; 78 S Ct 191; 2 L Ed 2d 167 (1957).

* * *

"This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled." Santobello, supra, pp 261-262.

Justice Douglas, in his concurring opinion, recognized that a prosecutor's promise in a plea bargain situation could make a defendant's act involuntary, but only under certain circumstances, not in every case. He said:

"The decisions of this Court have not spelled out what sorts of promises by prosecutors tend to be coercive, but in order to assist appellate review in weighing promises in light of all the circumstances, all trial courts are now required to interrogate the defendants who enter guilty pleas so that the waiver of these fundamental rights will affirmatively appear in the record. McCarthy v United States, 394 US 459; 89 S Ct 1166; 22 L Ed 2d 418 (1969), Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969)." Santobello, supra, p 266. (Emphasis added.)

In Brady v United States, supra, 397 US 751, the Supreme Court rejected the idea that a guilty plea was involuntary because it was entered under the fear that the possibility of death could only be avoided that way. It found that the totality of the circumstances had to be examined to make a determination whether the plea was voluntary, and it specifically said that insofar as the voluntariness of the defendant's plea was concerned, there was little to differentiate the defendant in that case from a defendant who is permitted by the prosecutor and judge to plead guilty to a lesser included offense, or a defendant who pleads guilty to certain counts under the understanding that other counts will be dropped. In other words, there is no substantive difference between a defendant who pleads guilty to avoid the possibility of death and one who plea bargains as far as the voluntariness of the plea is concerned. If that is true, certainly that reasoning applies equally to statements made pursuant to a plea bargain.^[4]

The Brady Court, in its analysis, also rejected the idea that a "but for" connection between a guilty plea and its inducement — the apprehension of death by electing a jury trial — was sufficient to make the plea involuntary. This test is really the one used in a per se rule and is the test implicit in the Bram dictum; however, as noted before, Brady did not literally apply that dictum.^[5] Supreme Court case law subsequent to Brady and involving plea bargaining has clearly rejected the idea that merely because a defendant chooses to plea bargain — to receive some consideration from the state in order to bestow a benefit on the state — the plea is involuntary.^[6]

Furthermore, under the facts of this case, a per se rule is particularly inappropriate. The defendant here initiated the negotiations for the plea of guilty. He is the one who refused to go through with the agreement. There were no allegations that the agreement itself was unfair, and the trial court specifically found the defendant's story that Sergeant Darby forced him to make the statement totally incredible. Jones was not unfamiliar with police practices or the legal system; as the trial judge found, he was street-wise. Three times he was informed of his Miranda rights, and he voluntarily waived his rights to counsel and to remain silent. Case law has indicated that, under facts such as these, the appropriate test is the "totality of the circumstances" test and not a per se rule that any statements given under a plea bargain agreement are involuntary.^[7]

There is absolutely no justification for the creation of a per se rule in this case modifying the traditional "totality of the circumstances" test. Precedent does not support the imposition of such a rule, and indicates instead that such a rule is improper. My colleague disavows basing his decision on MRE 410, but the effect of his reasoning is to constitutionalize MRE 410. Such a step is unwarranted.

III

We find that reversal is still mandated, however. MRE 410 states:

"Except as otherwise provided in this rule, evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime, or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, a plea of nolo contendere, or an offer to plead guilty or nolo contendere to the crime charged or any other crime, is admissible in a criminal proceeding for perjury or false statement."

We agree with Justice KAVANAGH that, under this rule, the defendant's statement could not have been used against him, even though defense counsel did not rely upon MRE 410 in registering his objection at trial.

At the time of the trial, MRE 410 had been in effect for less than four months — since March 1, 1978. MRE 410 also changed the common-law rule in excluding statements made in connection with guilty pleas and offers of guilty pleas.^[8] Having failed to cite the newly adopted rule of evidence, defense counsel registered the best objection available to him: that the statement was involuntary. He was correct in his belief that the defendant's statement was inadmissible. He merely cited the wrong basis. MRE 410 is based on the idea that plea negotiations should be encouraged, not unduly hampered by the fear that any statement as well as any plea could subsequently be used against a defendant. It is also based on a sense of fairness. To affirm the conviction in this case would violate that sense of fair play and would exalt procedural niceties over the substantive policy of plea bargaining. The particular facts of this case require a reversal, but not because the defendant's statement was per se involuntary. Given the newness of MRE 410, the change it effected in the common law, and the fact that defense counsel registered a timely, if inaccurate, objection, I would reverse Jones's conviction and remand to the trial court for a new trial.

FITZGERALD, C.J., and COLEMAN, J., concurred with RYAN, J.

RILEY, J., took no part in the decision of this case.

NOTES

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

[2] People v Jones, unpublished opinion per curiam of the Court of Appeals decided April 25, 1980 (Docket No. 78-3255).

[3] Gunsby v Wainwright, 596 F2d 654 (CA 5, 1979), cert den 444 US 946; 100 S Ct 307; 62 L Ed 2d 315 (1979); McLallen v Wyrick, 498 F Supp 137, 139 (WD Mo, 1980) ("A confession can never be received in evidence where the prisoner has been influenced by any threat or promise."); United States v Harris, 301 F Supp 996, 999 (ED Wis, 1969) ("Having found that the defendant confessed in return for what he believed to be the promise of the law enforcement officials to secure certain reciprocal treatment, I hold that his confession * * * was not voluntary and hence is inadmissible."); People v Quinn, 61 Cal 2d 551, 554; 393 P2d 705, 707; 39 Cal Rptr 393, 395 (1964) (Traynor, J.) ("A confession or admission induced by promises of leniency or by threats is involuntary and therefore inadmissible."); Bradley v State, 356 So 2d 849, 850 (Fla App, 1978) ("[A]n accused may not be improperly urged by direct or implied promises to make a statement, in violation of the basic tenet of law that a confessing defendant should be entirely free from the influence of hope or fear."); People v Overturf, 67 Ill App 3d 741; 385 NE2d 166 (1979); State v Tardiff, 374 A2d 598, 600 (Me, 1977) ("That a confession which has been extracted from a defendant as the result of assurances or promises of leniency is inadmissible, is well established."); Commonwealth v Meehan, 377 Mass 552, ___; 387 NE2d 527, 534 (1979), cert dis as improvidently granted 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.)

[4] State v Harwick, 220 Kan 572; 552 P2d 987 (1976), State v Jordan, 114 Ariz 452; 561 P2d 1224 (1976), Taylor v Commonwealth, 461 SW2d 920 (Ky App, 1970), and State v Hutson, 537 SW2d 809 (Mo App, 1976).

[5] People v Jones, fn 2 supra, and People v Langford, 76 Mich App 197, 199; 256 NW2d 578 (1977).

[6] The fact that the defendant initiated the bargaining was apparently of no significance to the court in United States v Harris, supra, fn 3. In Harris, the defendant indicated that he would be willing to provide information if he would receive certain considerations, and then proceeded to name three conditions. The court found that the defendant's confession was involuntary without discussion of the fact that the defendant defined the terms of the bargain.

[7] See, e.g., People v Overturf, 67 Ill App 3d 741, 744; 385 NE2d 166, 168 (1979) ("It is a well settled rule that even where constitutional rights have been waived, promises of leniency which induce defendant to make a statement or confession may well render such statement or confession involuntary.") State v Tardiff, 374 A2d 598, 601 (Me, 1977) ("The fact that the defendant was informed of his Miranda rights prior to making his confession does not cure the improper inducement which led to it.")

[8] Rule 11(e)(6) of the Federal Rules of Criminal Procedure which supplanted Rule 410 of the Federal Rules of Evidence was amended April 30, 1979, to read:

"(6) Inadmissibility of Pleas, Plea Discussions, and Related Statements. Except as otherwise provided in this paragraph, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

"(A) a plea of guilty which was later withdrawn;

"(B) a plea of nolo contendere;

"(C) any statement made in the course of any proceedings under this rule regarding either of the foregoing pleas; or

"(D) any statement made in the course of plea discussions with an attorney for the government which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

"However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel."

[9] FRE 410, Advisory Committee's Notes.

[10] F R Crim P 11, Notes of Advisory Committee on Rules.

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

[2] The Court in Hutto noted:

"This case does not involve the admissibility at trial of a guilty plea subsequently withdrawn by leave of court. That issue was settled in Kercheval v United States, 274 US 220; 47 S Ct 582; 71 L Ed 1009 (1927), which held that such pleas could not be used as evidence of guilt at a subsequent trial. Nor does this case involve the admissibility in criminal trials of statements made during the plea negotiation process. See F R Crim P 11(e)(6); Moulder v State, 154 Ind App 248; 289 NE2d 522 (1972); ABA Project on Standards for Criminal Justice, Pleas of Guilty, § 3.4 (Approved Draft, 1968)." 429 US 30, fn 3. (Emphasis added.)

It is interesting to note that both of the cases cited in the above quotation based their decisions on policy grounds, not constitutional grounds. The second proposition is of consequence to the immediate case. In Moulder v State, 154 Ind App 248, 258-259; 289 NE2d 522 (1972), the Indiana appellate court made a blanket rule that:

"Any communication relating to the plea bargaining process is privileged and inadmissible in evidence unless the defendant has subsequently entered a plea of guilty which has not been withdrawn."

The factual situation in that case differed from the immediate case, but the important point is that the court there first acknowledged the great importance of plea bargaining and then gave several policy considerations for not allowing evidence of such negotiations. The stated reasons are similar to the basis for our own MRE 410 and for FRE 410. Another important point in that case is that defense counsel made an objection to the presentation of a statement made in furtherance of a plea bargain on the grounds, basically, that it was unfair. See discussion below, section III.

[3] My colleague also mentioned the importance of plea bargaining and the policy considerations of MRE 410 in promoting plea bargaining as well as candor in the process. Arguably, however, they are less forceful in a situation such as the immediate one where the defendant initiated the negotiations, voluntarily entered into a fair agreement, and then reneged on his bargain. McCormick, Evidence (2d ed), § 274, p 666 (1972) states:

"Effect of acceptance of offer of compromise. If an offer of compromise is accepted and a contract is thus created, the party aggrieved may sue on the contract and obviously may prove the offer and acceptance. Moreover, if after such contract is made and the offering party repudiates it, the other may elect to sue on the original cause of action and here again it seems the repudiating party may not claim privilege against proof of the compromise. The shield of the privilege does not extend to the protection of those who repudiate the agreements the making of which the privilege is designed to encourage." (Citations omitted.)

We are not required to apply general contract principles to plea agreements. People v Reagan, 395 Mich 306, 314; 235 NW2d 581 (1975). However, if there is any weakness at all in applying those policy considerations to the immediate case, that weakness is magnified many times when one attempts to justify a per se rule.

I agree with Justice KAVANAGH that plea bargaining has become a "component of the administration of criminal justice" in this state. Yet, it is inconsistent to determine that all statements made pursuant to plea bargains are involuntary and still support a system which, on that reasoning, produces only coerced statements. Given the apparent importance of plea bargaining and its approval by the United States Supreme Court and my brother himself, it is difficult to understand how this Court can today subscribe to the belief that a statement made pursuant to a plea bargain is per se involuntary.

[4] To say that a statement made during the course of a plea bargain, no matter who initiates the negotiations, is involuntary merely because such statements are induced by a promise of leniency seems contrary to the very idea of a voluntary guilty plea. There is no logical distinction between a guilty plea before a judge and a statement made pursuant to a plea bargain. Cf. People v George, 69 Mich App 403; 245 NW2d 65 (1976). Under GCR 1963, 785.7(2), a court accepting a guilty plea must determine that it is indeed voluntary. If the mere fact that a promise induced a plea bargain makes statements pursuant to it involuntary, then, logically, a guilty plea made with the understanding that a prosecutor's promise of leniency will be followed is also involuntary. Both statements are made because of the promise. But, we have seen that a guilty plea entered pursuant to a plea agreement is not necessarily involuntary. See, e.g., Hutto, supra.

[5] It is possible that this later case law refusing to follow Bram literally may be a response to the legitimacy of plea bargaining today since the Court has recognized that it is not constitutionally impermissible, Santobello, supra, while at the time Bram was decided it was not widely accepted as legitimate. As my colleague has noted, plea bargaining is, at the present time, "an asserted component of the administration of justice". Given its importance, the United States Supreme Court obviously realized the devastating effect a finding that a guilty plea was involuntary would have simply because it was influenced by a "promise of leniency" or "by the fear of a possibly higher penalty for the crime charged if a conviction is obtained after the state is put to its proof". Brady, supra, pp 750-754. See also Hunter v Swenson, 372 F Supp 287 (WD Mo, 1974), aff'd on other grounds 504 F2d 1104 (CA 8, 1974), cert den 420 US 980; 95 S Ct 1410; 43 L Ed 2d 662 (1975).

[6] Hutto v Ross, 429 US 28, 30; 97 S Ct 202; 50 L Ed 2d 194 (1976).

The Court stated:

"The Court of Appeals reasoned that respondent's confession was involuntary because it was made ``as a result of the plea bargain' and would not have been made ``but for the plea bargain.' Id., pp 927, 926. But causation in that sense has never been the test of voluntariness. See Brady v United States, 397 US 742, 749-750; 90 S Ct 1463; 25 L Ed 2d 747 (1970). The test is whether the confession was ``"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 578 (1897); see Brady v United States, supra, p 753; 90 S Ct 1463; 25 L Ed 2d 747."

[7] Hunter v Swenson, 372 F Supp 287 (WD Mo, 1974), aff'd on other grounds 504 F2d 1104 (CA 8, 1974), cert den 420 US 980; 95 S Ct 1410; 43 L Ed 2d 662 (1975); State v Jordan, 114 Ariz 452; 561 P2d 1224 (1976), vacated on other grounds 438 US 911; 98 S Ct 3138; 57 L Ed 2d 1157 (1978); State v Harwick, 220 Kan 572; 552 P2d 987 (1976); Taylor v Commonwealth, 461 SW2d 920 (Ky App, 1970), cert den sub nom Brown v Kentucky, 404 US 837; 92 S Ct 126; 30 L Ed 2d 70 (1971); People v Langford, 76 Mich App 197; 256 NW2d 578 (1977), cert den 440 US 964; 99 S Ct 1512; 59 L Ed 2d 779 (1979); State v Hutson, 537 SW2d 809 (Mo App, 1976).

[8] The common-law view was that "an offer of compromise of a criminal charge * * * may be received in evidence", 22A CJS, Criminal Law, § 736, p 1086, clearly implying that statements made in connection with the offer were also admissible. This is different from the civil case where statements made in connection with an offer to compromise, as well as the offer itself, were not admissible unless they were not made for settlement purposes or were independent facts admitted by the party during negotiations. Sanderson v Barkman, 272 Mich 179; 261 NW 291 (1935). 11 Michigan Law & Practice, Evidence, § 133, p 291.

It is true that in Michigan, before the Michigan Rules of Evidence became effective, a previously withdrawn guilty plea could not be commented upon or introduced by the prosecutor. People v Street, 288 Mich 406; 284 NW 926 (1939). However, research does not reveal any cases determining whether statements made in connection with a guilty plea or an offer to plead guilty were admissible, except for People v George, 69 Mich App 403; 245 NW2d 65 (1976). In George, the Court of Appeals reversed the defendant's conviction, which was based upon a judicial statement providing a basis for the defendant's later-invalidated guilty plea. The Court could see little difference between a guilty plea and an incriminating statement made pursuant to a guilty plea, and this rule was adopted on policy grounds, not constitutional grounds. George cited no Michigan precedent on point. It was new law which looked to Federal Rule of Evidence 410 for support.

The federal evidentiary rule is similar to MRE 410. In the Report of the Senate Committee on the Judiciary for FRE 410, the committee objected to the House committee's proposal to exclude all statements made in connection with guilty pleas or offers to plead. Rather, it believed certain voluntary statements should be admissible. A compromise was reached allowing the admission of statements in subsequent criminal proceedings for perjury or false statement. Federal Rules of Evidence for United States Courts and Magistrates, pp 39-40 (1979).