# Petition for Writ of Certiorari — Michigan v. Payne

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1973
- **Citation:** 412 U.S. 47

## Text

INDEX

Petition for Writ of Certiorari

Citation of Opinions Below

Jurisdiction

Constitutional Provisions Involved

Statement of the Case oii cccccceccececeeeeeeeccece 2-

1. The higher sentence by Judge Byrns did not
deny this Defendant due process ............. 5-6

2. Allowing a higher sentence in this type of sit-
uation will not improperly ‘chill’? the exercise

of a Defendant’s right to appeal 6-7

3. North Carolina vs. Pearce allows this second
SO 7

4. To construe Pearce so as to prohibit the imposi-

tion of a higher sentence in eases similar to
Payne would be bad precedent ........ 8

5. North Carolina vs. Pearce should not apply
retroactively o.oo ecccccteeeeeeceseeeeeseeseseeseece 8

6. Conflict exists in the state and federal courts as

to the meaning of Pearce and the Michigan Su-
preme Court is specifically asking for guidance . 9
Conclusion and Relief Requested 10

APPENDIX A — Opinion of the Michigan Supreme
MP OUUI oe poten casas easterqrernrcnisfhasermienecesanciesspuceiseieccee cac.ccsc 11-41

APPENDIX B — Opinion of the Court of Appeals .... 41-55

ii

INDEX (CONT’D)

APPENDIX C — Arraignment Transcript ................ 55-59

APPENDIX D — Sentence Transcript (Filed
Dlawalh. 1G, TRGB) cscciinerssisersenesiovenisrsccinicasadsstvoteonseesnsins 59-62

APPENDIX E — Transcript of Sentence (Filed
Beptember &, 1967) -...2-2-2-.22--0-cscscovecesereresnensesoeeessienees 62-67

APPENDIX F — Affidavit of Judge Byrns ................ 68-71

ili
CITATIONS
Page
Barnes vs. US, (DC Circuit 1969) 419 F 2d 753 (dis-
SENtING OPINION) 22.2... eee cece seeeececeeececeeecseseeeecsesseveeen 9 .
Harris vs. New York, ...... US ....., 28 L Ed 2d 1, 92 S.
CG, renee (IQTD) ccccccctnasesiveninsnsssiscvestasesanesivevosisiddssenealecereee
Johnson vs. New Jersey, 384 US 719 (1966) ................ } 8
Miranda vs. Arizona, 384 US 436 (1966) 0000.0... &

Moon vs. Maryland, Cert granted (1969), 395 US
975, 89 S. Ct. 2135, 23 L Ed 2d 764; Writ Dismissed
(1970), 398 US 319, 90S. Ct. 1730, 26 L Ed 2d 262 ..

North Carolina vs. Pearce, and Simpson vs. Rice, both
reported at 395 US 711, 89 S. Ct. 2072, 23 L Ed
OG oie rescncssancpsndicncurunsanninierenssessichierenveusioiuviannses 3, 4, 5, 7, 8,9

Pinkard vs. Neil, (US DC MD Tenn, 1970) 311 F
ST 8S ce 9

Torrance vs. Henry, (US DC Edne, 1969) 304 F
ST 9) ON 01s cs

United States vs. Barash, (CA 2, 1970) 428 F 2d 328 .
United States vs. Gross, (CA 8, 1969) 416 F 2d 1205 ..

United States vs. Kienlen, (CA 10, 1969) 415 F 2d
SOE cosusnosicasnonsunstacaterntetédinensindssiiinnassiseciallin’bgseenvutueveedivicoainds 9

Walsch vs. Commonwealth, (Mass, 1970) 260 NE 2d
911 (dictum at 916) ol lceeeeecceceece eee ceeecece 9

ba |

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ene

1

IN THE SUPREME COURT OF THE
UNITED STATES

OCTOBER TERM, 1971

PEOPLE OF THE STATE OF
MICHIGAN,
Petitioner,
Vs.

Leroy Payne,
Respondent.

PETITION FOR WRIT OF CERTIORARI

The People of the State of Michigan, Petitioner, pray
that a Writ of Certiorari issue to review the judgment of
the Supreme Court of the State of Mich‘gan entered in
the above-entitled cause on November 9, 1971.

CITATION OF OPINIONS BELOW

The original Opinion of the Michigan Supreme Court
dated November 9, 1971 is reported as 191 N.W. 2d 375,
and attached as Appendix A hereto. The Opinion of the
Michigan Court of Appeals affirming the judgment of the
trial Court is reported at 170 N.W. 2d 523, and attached

‘hereto as Appendix B.

JURISDICTION

The judgment of the Supreme Court of Michigan was
entered on November 9, 1971.

Jurisdiction is invoked under United States Supreme
Court Rule 19, 28 USCA.

QUESTIONS PRESENTED FOR REVIEW

1. Under the facts of this case, is the second sentence
of Defendant fair and in accordance with Due Process?

2. Is this sentence in accord with North Carolina vs.
Pearce?

3. Should North Carolina vs. Pearce be applied retro-
actively?

CONSTITUTIONAL PROVISIONS INVOLVED

The applicable Constitutional provision involved, in ma-
terial part, is as follows:

AMENDMENT XIV See 1... nor shall any state de-
prive any person of life, liberty, or property without
due process of law....

STATEMENT OF THE CASE

On the night of November 5, 1962, two police officers,
Berrien County Sheriff’s Deputies Vie Yost and Charles
Plummer, were shot and critically wounded on a street in
the City of Benton Harbor, Michigan by two assailants.
The assailants were, the driver, Leroy Payne, and the
passenger, Lionel Bradford, of a vehicle which the depu-
ties had just stopped for a traffic violation. As the officers
exited their vehicle and began walking toward the as-
sailants’ car, the two men jumped from that car and be-
gan shooting at the deputies. Both officers were hit and
immediately downed. Leroy Payne then walked back and,
while standing next to Deputy Plummer, fired again at
him at point-blank range. The assailants then left the
scene.

Payne was apprehended at his home later that evening.
After improper treatment by some police officers, Payne
confessed to having participated in the double shooting.

On December 14, 1962, Payne was arraigned in Berrien
County Cireuit Court before the Honorable Philip Hadsell,

a—

j Cireuit Judge, and pleaded guilty to Assault on Officer
} Vic Yost with Intent to Commit Murder. At that arraign-
ment, an indication of the coerced nature of Payne’s con-
fession first appeared in the record. Defendant acknowl-
edged that he had been threatened and abused, but that
\ he was not pleading guilty because of those threats and
, that abuse, but rather because he was guilty. (See Appen-
dix C)
On March 8, 1963, Judge Hadsell sentenced Payne, not-
| ing explicitly in the record the latter’s sincere compune-
tion for having committed the offense and his forgiving
} the officers who abused him as the reasons for his sen-
tence being lighter than it otherwise might have been. He
then sentenced Payne to 19-40 years in the penitentiary,
suggesting that, should Defendant’s contrite attitude con-
tinue, he could be released in ten years. (See Appendix D)
Michigan Court of Appeals on May 12, 1967, remanded
the Payne case to the Berrien County Cireuit Court for
an Evidentiary Hearing on the voluntariness of Defend-
ant’s statement to the police and his plea of guilty.
Berrien County Circuit Judge Chester J. Byrns held
that hearing and subsequently filed an Order on June 4
1967, finding Payne’s confessions and his plea to have
been involuntarily given and ordered a trial to be held on
the matter. Judge Byrns later ordered a change of venue
for that trial to Kent County (Grand Rapids), Michigan,
to avoid any possible prejudice to Defendant at trial.
On August 24, 1967, after a three-day jury trial be-
fore Judge Byrns, in which the involuntary confessions
were not admitted, and in which Defendant took the stand
to deny any involvement in the shooting and to establish
an alibi defense, Leroy Payne was found guilty again of
Assault on Officer Vie Yost with Intent to Commit Murder.
At the sentencing hearing on August 30, 1967, Judge
Byrns imposed a sentence of 25-50 years upon the De-
fendant, reasons for which he gave during that hearing.
(See Appendix E)
Two years later, on June 23, 1969, the United States
j Supreme Court decided the cases of North Carolina vs.
Pearce, and Simpson vs. Rice. both reported at 395 U.S.
711, 89 S. Ct. 2072, 23 L Ed 2d 656, dealing with the propriety

a

3

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4

of higher sentences after retrial following reversal of the
original conviction.

The Michigan Court of Appeals affirmed the Payne case,
including the increased sentence on June 25, 1969. (See
Appendix B) On appeal to the Michigan Supreme Court,
that Court affirmed Defendant’s conviction but did, in a
four to three Opinion, remand for resentencing in ac-
cordance with the majority’s retroactive interpretation of
North Carolina vs. Pearce, supra. (See Appendix A)

During the course of the Michigan Supreme Court’s de-
liberations, that Court made a formal request of Judge
Byrns for an affidavit stating his reasons for imposing the
second and higher sentence. Judge Byrns complied. (See
Appendix F)

REASONS FOR GRANTING THE WRIT

The imposition of the sentence in a criminal matter is
the final, and, for the Defendant personally and for so-
ciety as a whole, the most critical phase of the criminal
prosecution. Confusion on the question of limitations im-
posed by the Constitution, statutes and higher Court rul-
ings on the sentencing judge is intolerable and must be
dispelled.

But confusion exists throughout the Country on the
propriety of the higher sentence after a second conviction
of a Defendant for the same offense, where the first has
been reversed or vacated. North Carolina vs. Pearce,
supra, laid down a standard which desperately needs clari-
fication.

The Michigan Supreme Court, noting the conflicting in-
terpretations of the Pearce case by other state and federal
courts has interpreted it in its own unique manner. The
Michigan Supreme Court decision was arrived at only
after an unusually turbulent period of deliberations, chron-
icled by Mr. Justice Black in his dissent (joined by Mr.
Justice Adams). The four to three split and the sharp
cleavage in the supporting rationales indicates the depth
of confusion.

—_

5

In fact, throughout the opinions of the majority and
Justice Brennan’s and Justice Black’s dissent, runs a plea
for guidance in clarification in this case and in future ones
on similar problems from the United States Supreme Court,
which plea this petition, among other reasons stated, seeks
to satisfy.

Specifically, the Court below seeks a definitive explana-
tion of how Pearce is to be interpreted where, as in the
Payne case, it is clear that each judge in a sentencing was
confronted with a different situation.

The Leroy Payne that Judge Hadsell sentenced was a
contrite man, expressly admitting his crime and forgiving
his abusers as he hoped to be forgiven by his victim.
Judge Hadsell further-had only the vaguest sketch of the de-
tails of the crime. In fact, it was limited at the time of plea
to the answer ‘‘Yes’’ to the Court’s question ‘‘Did you,
on the fifth day of November, 1962, at the City of Benton
Harbor, in Berrien County, Michigan, feloniously assault
Victor Yost with a gun, as I understand it — although it
is not so alleged — and that you then and there intended
to kill and murder?”’ (See Appendix C)

However, the Leroy Payne facing Judge Byrns, was a
man who had been observed by the Judge during three
days of trial, had testified, not only showing no compune-
tion, but specifically creating an alibi which the Kent
County Jury as well as the trial Judge must have found
to be a lie. Furthermore, Judge Byrns heard more de-
tails of the crime than had been made known to Judge
Hadsell, at least at the plea taking arraignment before
Judge Hadsell.

This Court should issue the Writ for six reasons, con-
sidered separately below.

1. The higher sentence by Judge Byrns did not deny
this Defendant due process.

It was conceded below that the Byrns sentence was with-
in the statutory limits for this crime in Michigan. Thus
th's Defendant was informed and knew that he could he

—

6

guilty before Juige Hadsell he accepted the sentence with
apparent sincere penitence, and must have known when
he appealed his conviction that, should he later lie at the
trial he was demanding, if it was discovered he would
stand naked befcre the second sentencing judge as not only
a violent felon, »ut an unrepentant and lying one as well.
In addition, he must have known that at such trial there
would be the fulest airing of all the details of the shooting.

None of the lover courts found Judge Byrns to be guilty
of any vindictire or retaliatory motivation towards this
Defendant, and n fact found to the contrary. Judge Byrns
himself had vaated Payne’s plea, granted the new trial,
and granted a cange of venue, in addition to suppressing
the confession Payne made.

2. Allowinga higher sentence in this type of situation
will not improyerly “chill” the exercise of a Defendant’s
right to appeal.

It is a fact conmon to all human experience that a person
called by an autority to answer for his errors, when he ad-
mits them in a plea of guilty, will generally try to minimize
their importane to the one in authority to hopefully mini-
mize the punislment for them. This is the common experi-
ence of trial bvel judges as well.

Likewise, it s common human experience that a person
who, when corfronted by clear evidence of guilt, lies to
avoid convictin of guilt, evidences a poorer character
than one who ells the truth and lets the chips fall where
they may. Suh common human truths are or should be
as well knownto those accused with crime. Furthermore,
while no one nay penalize him for appealing, he himself
can be reassesed prior to a second sentencing. That re-
assessment shald reasonably include a review of the crime
as proven, andthe direct, personal and more extensive con-
tact the new jidge would have.

These are mt difficult legal concepts that only the legal
profession is ible to comprehend. They are simple facts
of life that mankind as a whole should, and does, under-
stand and liveby.

eo, ae rae ee SS eS ee

—
7

Holding a Defendant to the obligation to tell the truth. if
he chooses freely to take the stand in his own defense, is not
constitutionally, legally or morally repugnant. The prin-
ciple has been reaffirmed recently in another context by
this Honorable Court in Harris vs. New York, ...... US ......
28 L Ed 2d 1, 92 S. Ct. ...... (1971). It is only right, legally
and morally, ‘that the old backroom maxim that a Defend-
ant should be allowed a few lies to protect himself should
be forever scotched.

3. North Carolina vs. Pearce allows this second sentence.

The Pearce case, relied upon so heavily by the Michi-
gan Supreme Court, when properly understood and_ in-
terpreted, approves of the sentencing procedure followed
by Judge Byrns. His reasons, expressed both at sentenc-
ing and later in his affidavit, (Appendix F) are those en-
visioned in Pearce:

A. New information about the nature and details of
the crime was presented to Judge Byrns (but not
available to Judge Hadsell).

B. Identifiable conduct occurring after the first con-
viction, consisting in Defendant’s change of heart from
contrition to denial, his lies under oath, and his be-
havior for three days at trial and his lack of any
contrition prior to the second sentence.

And in addition, the procedural requirements of Pearce,
and the approved procedure in the Moon vs. Maryland,
Cert granted (1969), 395 US 975, 89 S. Ct. 2135, 23 L Fd
2d 764; Writ Dismissed (1970), 398 US 319, 90 S. Ct. 1730,
26 L Ed 2d 262, were met. Judge Byrns put on the record
at the hearing his reasons for the higher sentence. He
later submitted an affidavit amplifying on the pre-Pearce
sentencing record he made in far more detail than was
done in Moon.

—

8

4. To construe Pearce so as to prohibit the imposition ;
of a higher sentence in cases similar to Payne would be bad
precedent.

To disallow a judge from sentencing a convicted defend-
ant more severely than the same defendant was sentenced
in such a situation as Payne presents would be to favor ,
the lying Defendant over the truthful one.

Where a defendant pleads guilty, perhaps as a result
of a plea bargain, or for whatever reason, and convinces
a judge of his sincere purpose to amend his life, then,
upon a retrial granted for whatever reason, he is free
to do whatever he wishes without fear of that conduct }
being held against him at sentencing. He has set a ceiling
on his sentence no matter how heinous the crime or how
depraved a liar hé may subsequently be proved to be.

Such a precedent could produce disastrous and unjust
results.

5. North Carolina vs. Pearce should not apply retro-
actively. —

As in Miranda vs. Arizona, 384 US 436 (1966), where
the Court laid down procedural requirements which law
enforcement officers must comply with before a statement
which is the product of custodial interrogation is admissible, )
so in North Carolina vs. Pearce, supra, the Court laid
down guidelines for the imposition of increased sentences.

The Miranda requirements were not made retroactive.
Johnson vs. New Jersey, 384 US 719 (1966). Nor should
Pearce be made retroactive. At the time Judge Byrns
imposed the sentence under review, Pearce had not been de-
cided. A trial judge should not, among the many char-
acteristics he is required to exhibit, be held accountable
for not having prescience of a new procedural rule typo
years later. “

6. Conflict exists in the state and federal courts as to
the meaning of Pearce and the Michigan Supreme Court is
specifically asking for guidance.

As noted in the Opinion of the Michigan Supreme Court,
a substantial conflict exists among the jurisdictions, state
and federal, as to the meaning of Pearce.

Specifically referring to the language ‘‘identifiable con-
duct occurring after ... the original sentencing’’ appear-
ing in Pearce, a conflict exists as to whether only conduct
which happens after the original sentencing can be con-
sidered in aggravation. See Barnes vs. US, (DC Circuit
1969) 419 F 2d 753 (dissenting opinion); Torrance vs.
Henry, (US DC Edne, 1969) 304 F Supp 725; Pinkard rs.
Neil, (US DC MD Tenn, 1970), 311 F Supp 711; Walsch
vs. Commonwealth, (Mass, 1970), 260 NE 2d 911 (dictum
at 916). Others hold or indicate that regardless of when
the defendant’s ‘‘identifiable conduct’’ occurred, if it first
comes to a sentencing judge’s attention after the time
of the first sentencing it may be relied upon in support of
a harsher penalty. See, e.g. United States vs. Kienlen,
(CA 10, 1969) 415 F 2d 557; United States vs. Gross, (CA
8, 1969) 416 F 2d 1205; United States vs. Barash, (CA
2, 1970) 428 F 2d 328.

Furthermore, the Michigan Supreme Court continually
refers in its opinion to hoped-for guidanee from this
Court. Specifically it seeks a ruling on Pearce’s retro-
activity (See footnote 2 of the Opinion of the Michigan
Supreme Court, Appendix A). It also requests an au-
thoritative interpretation of the same section when it says
after noting the above-cited conflicts in decisions:

‘‘Pending clarification of Pearce’s requirements by

the United States Supreme Court, we are persuaded
that...”

Justice Brennan in his dissent for reasons stated therein
seeks a complete overturning of Pearce on the grounds
that it should be impermissible to use any conduct of a
defendant’s occurring after the conviction as grounds for
a second sentence.

10

‘CONCLUSION AND RELIEF REQUESTED

For these six reasons and others which the record,
briefs and argument may disclose, the decision of this
Court should be to grant the Pétition of the People of
the State of Michigan and to issue a Writ of Certiorari to
review these most important questions.

Respectfully submitted,

Ronatp J. Taylor a
Prosecuting Attorney /

By: John A. Smietanka
Assistant Prosecuting Attorney
Berrien County, Michigan

Business Address:
Court House
St. Joseph, Michigan 49085

a

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11

APPENDIX A — OPINION OF THE MICHIGAN
SUPREME COURT

(Filed November 9, 1971 — 35/April 1971)

In the Supreme Court of the State of Michigan

The People of the State of Michigan, Plaintiff-Appellee,
vs.
Leroy Payne, Defendant-Appellant.

BEFORE THE ENTIRE BENCH.
T. M. KAVANAGH, C.J.

Defendant-appellant Leroy Payne was convicted in the
Berrien county circuit court, by his guilty plea, of as-
sault with intent to murder.! On March 8, 1963, he was
sentenced by the Honorable Philip A. Hadsell to a min-
imum of 19 years and a maximum of 40 years in prison.
At the conclusion of a hearing subsequently ordered by
the Court of Appeals, Payne’s guilty plea and a prior
confession were determined to have been. involuntary and
his conviction and sentence were vacated. Motion for a
change of venue was granted to Kent county. Payne was
reconvicted of assault with intent to murder by a jury
in Kent county cireuit court. Upon remand to Berrien
county, the Honorable Chester J. Byrns, Berrien county
circuit judge, who had presided over Payne’s Kent county
trial, sentenced him to prison for a term of 25 to 50 years
with credit for time served and ‘‘good time’’ earned.

The following excerpt from the transcript of appellant
Payne’s second sentencing is pertinent to his claim, here-
inafter discussed, that the sentence imposed was exces-
sive:

“THE COURT: * * * Mr. Payne, in presiding
over your three day trial, I want to tell you that

1 MCLA § 750.83 (Stat Ann 1962 Rev § 28.278). The
crime is punishable by imprisonment for life or any number
of years.

——

12

without any reservation, I agreed with the jury’s ver-
dict of guilty. I heard your own testimony and I
heard your cross-examination, and of course I had
an ample opportunity of hearing about your crime
which was one of extreme violence. It was senseless ;
it was cruel, and frankly, I think it reflected a de-
pravity of heart and but not for the grace of God, and
the good physical condition of Victor Yost, he survived.
He was shot not once, not twice, but three times. Mr.
Yost has suffered and is still suffering from the near
fatal wounds that you inflicted. You were there when
the doctor’s testimony reflected that it took some
three to four hours spent in surgery trying to save
this man’s life. Mr. Yost is a brave and able officer
and is to be complimented for the excellent and fair
manner in which he testified at your trial. And a
police officer, whether he may be popular with some-
one or not is nevertheless a symbol of authority and
whoever shoots a police officer in line of duty assaults
not only the officer; not only the man, but he assaults
all of society because law and order cannot exist
unless our officers have the respect and the protection
to which they are entitled to. These are precious
rights of citizenship which you and I recognize and
which would not exist if it were not for officers like
Victor Yost who are willing not only to work, but
even to die to preserve these rights.

‘‘ Assault with intent to murder, especially when a
gun is used, is a most serious crime when the victim
is a police officer in line of duty. I have felt since I
have been judge that crimes of violence are the worst,
and I have felt that the use of weapons shows a will-
fullness and a hatred of which we have too much
of in our society today.

‘‘When you appeal, and win a new trial, you wipe
clean the previous conviction and sentence. You have
then a presumption of innocence which I think the
record will bear out and of which I maintain I pro-
tected throughout your trial and which your attorney
was most zealous in insuring. This Court is no longer
bound by the earlier sentence. I cite an authority. Mr.

13

Reporter, People versus Poole, P-O-O-L-E, 7 Michigan,
Appellate 291 [sic].

‘“‘In your trial, you might have been acquitted and
set free and you also risked a larger sentence with
a different judge and this is a different judge between
your sentence of five and one half years ago and to-
day; a judge who had a more detailed account of
what you did during this new trial than the judge who
sentenced you on-a plea of guilty and did not have
the same opportunity to form impressions nor did
my distinguished colleague hear all of the details as
it came out im.this particular trial.

“Tam not setting a larger sentence than what I will
set in a few minutes because you appealed or because
of any added work or expense of a new trial. This
I assure you, and every American citizen has an ab-
solute right to an appeal and to redress. As citizens,
they are.entitled to use the protection and rights that
the law gives them and I would like to think that no
judge will be more careful than I to insure this which
we reward no man because he pleads guilty and we
punish no man because he pleads innocent. The larger
sentence which I impose here is based on the nature
of the crime and on the impressions which I formed of
you and of the crime for the three days of the trial
and what I honestly believe your crime showed of your
character and attitude. Now, I had considered a man-
datory life sentence because the maximum term of im-
prisonment here could be any term of years up to life
imprisonment. The only reason that I am not doing
this is that I am looking into your past history and
I have given this searching thought right up to the
very last moment. You have a very poor family back-
ground for which you are not to blame, Mr. Payne.
Your school reports were good and you served ap-
proximately three years in the Army and you earned
an honorable discharge while in service although T
believe there was a court-martial — wasn’t there,
Mr. Payne?

“THE RESPONDENT: It was just a minor matter.
It wasn’t what you would call a court-martial —

7

14

“THE COURT: Administrative — company pun-
ishment?

“THE RESPONDENT: Yes, sir.

“THE COURT: But you did receive an honorable
discharge? |

“THE RESPONDENT: Yes, sir.

“THE COURT: And by your own efforts, you com-
pleted high school and the employers you had all said
that you were a good employee. J have also checked
at the prison where you have been and your conduct
there is reported as good during the past four years
and some odd months that you have been there and that
you have been using the educational and rehabilita-
tion facilities that are available.

“hese are the factors which I have considered on
the good side of the ledger which have frankly saved
you from a sentence of life imprisonment.’’ (Tran-
script of sentence, pp 4-9) (Emphasis added.)

The Court of Appeals affirmed (Quinn, P.J. and Hol-
brook, J.; T. M. Burns, J., dissenting). 18 Mich App 42.
Appellant is here on leave granted. 383 Mich 760.

The questions of the propriety and constitutionality of
imposing a harsher sentence after a defendant has over-
turned his conviction on appeal and been reconvicted have
long divided American courts. Annotation, 12 ALR3d
978; Van Alstyne, ‘‘In Gideon’s Wake: Harsher Penalties
and the ‘Successful’ Criminal Appellant,’’ (1965), 74 Yale
L J 606; Comment (1968), 28 Md L Rev 64. This Court
recently considered the problem in People v. Olary (1969),
382 Mich 559. In upholding a harsher penalty upon re-
conviction, the Olary majority distinguished the case of
North Carolina v. Pearce? [Stimpson v. Rice] (1969), 395
US 711 (89 S Ct 2072, 23 LL Ed 2d 656), hereinafter dis-
cussed, on the grounds that defendant Olary’s

2 The United States Supreme Court has not yet decided
whether Pearce is to be applied retroactively. Although
the Court twice granted certiorari to consider the question,
in each case the writ was subsequently dismissed as im-
providently granted. Moon v. Maryland, cert granted

15

‘‘original sentence was imposed by a justice of the
peace, not required to be legally trained, and the second
sentence was by a circuit judge, a duly licensed lawyer,
after report to him, as provided by statute, by the
probation officer as to defendant’s background, record
and attitude, to enable the circuit judge to fit the pun-
ishment to the offender.’’ (Olary, supra, at 567.)

Further distinguishing Pearce, supra, the Court noted
that Mr. Olary’s second conviction and resentencing were
not occasioned by his having demonstrated to a superior
tribunal that his original conviction was tainted with con-
| stitutional error but by his decision to assert his right
to a trial de novo in the cireuit court.
Assuming Pearce, supra, was properly distinguished in
Olary, supra, we do not think the present case is dis-
tinguishable because unlike Olary this case involves a

(Footnote 2 continued)

(1969), 395 US 975 (89 S Ct 2135, 23 L Ed 2d 764), writ
dismissed (1970), 398 US 319 (90 S Ct 1730, 26 I. Ed 2d
, 262) ; Odom v. United States, cert granted (1970), 399 US
904 (90 S Ct 2203, 26 L Ed 2d 559), writ dismissed (1970),
.... US .... (91 S Ct 112, 27 L Ed 2d 122). We decline to pre-
dict the high Court’s answer to the question of Pearce’s
retroactive or prospective application, but we will apply
* Pearce in the present case in order to instruct our trial
courts as to the Michigan interpretation of an ambiguous
portion of Pearce, discussed infra, pending clarification
by the United States Supreme Court.

3 It is noteworthy that Olary, supra, involved a misde-
meanor. While all criminal defendants are entitled to due
process of law, our Constitutions require stricter stand-
ards and procedures in many respects when the offense
charged is serious and threatens the defendant with more
severe punishment. See, e:g., Duncan v. Louisiana (1968),
391 US 145 (88 S Ct 1444, 20 L Ed 2d 491), rehearing den
392 US 947 (88 S Ct 2270, 20 L Ed 2d 1412). But see Wood
v. Ross (CA 4, 1970), 434 F2d 297, involving harsher sen-
tence on appeal and de novo trial in circuit court, than that
imposed in justice court.

ee Ris a a ee here Ake ol kh cc ee oe

|

16

felony conviction, a reversal by way of appeal because
of constitutional error, and disparate sentences, imposed
by judges of the same level and court, both of whom were
provided with the statutory presentencing reports.‘ We,
therefore, proceed to consider appellant Payne’s contention
that the imposition of a harsher sentence following his
successful appeal and reconviction was violative of the
14th Amendment due process standards and procedures
laid down in North Carolina v. Pearce, supras

4 Nor is the present case distinguishable from Pearce,
supra, because Mr. Payne’s original conviction was by
gu'lty plea, that is, because only the second sentencing
judge had the opportunity to gain impressions of Mr.
Payne and his crime throughout a trial. In Pearce’s com-
panion case, Simpson v. Rice, Mr. Simpson’s original con-
victions were by guilty plea; he was subsequently recon-
vieted by a jury, whereupon he received a stiffer sentence.
Whatever our own views are, we cannot ignore the fact that
the United States Supreme Court did not find this differ-
ence between Simpson (one trial) and Pearce (two trials)
worthy of distinguishing note. The holding of the Court
as regards harsher sentence upon reconviction applied
fully to both cases.

5 My Brother Black asserts, infra, p. ------ , that Pearce is
‘‘doubtful fard,”’ that is, lacking in precedential force, be-
cause Mr. Justice Stewart’s opinion for the Court failed
to gain the unreserved endorsement of at least five Jus-
tices. The following quotations from two of Pearce’s con-
curring opinions demonstrate that the signers thereof de-
clined to give Mr. Justice Stewart’s opinion their unre-
served endorsement primarily because they would go fur-
ther to declare that the United States Constitution abso-
lutely forbids the imposition of a harsher sentence upon
reconviction :

‘‘ Although I agree with the Court as to the reach of due
process, I would go further. It is my view that if for any
reason a new trial is granted and there is a conviction a
second time, the second penalt imposed cannot exceed the
first penalty, if respect is had for the guarantee against
double jeopardy.’’ (Opinion of Mr. Justice Douglas, joined
by Mr. Justice Marshall, at pp 726, 727. Emphasis added.)

17

In Pearce the United States Supreme Court held, inter
alia, that neither the equal protection clause of the 14th
Amendment nor the double jeopardy clause of the 5th
Amendment imposes an absolute bar to a more severe
sentence upon reconviction. But the Court further held
that the due process clause of the 14th Amendment re-
quires that vindictiveness against a defendant for having
successfully attacked his first conviction must play no part

(Footnote 5 continued)

‘‘Were these cases to be judged entirely within the tra-
ditional confines of the Due Process Clause of the Four-
teenth Amendment, I should, but not without some difft-
culty, find myself in substantial agreement with the re-
sult reached by the Court. However, the Court today, in
Benton v. Maryland [(1969), 395 US 784 (89 S Ct 2056, 23
L Ed 2d 707)] * * * has held, over my dissent, that the
Double Jeopardy Clause of the Fifth Amendment is made
applicable to the States by the Fourteenth Amendment Due
Process Clause. * * *

‘“‘Given Benton, it is my view that the decision of this
Court in Green v. United States, 355 US 184 (1957) [78 S
Ct 224, 2 L Ed 2d 199], from which I dissented at the time,
points strongly to the conclusion, also reached by mv
Brother Douglas * * * that the Double Jeopardy Clause of
the Fifth Amendment governs both issues presently de-
cided by the Court. * * *

‘‘T therefore conclude that, cons‘stent with the Fifth

Amendment, a defendant who has once been convicted and
sentenced to a particular punishment may not on retrial be
placed again in jeopardy of receiving a greater punish-
ment than was first imposed.’’ (Opinion of Mr. Justice
Harlan, beginning at p 744. Emphasis partly in original,
partly supplied by the present wr'ter.)
Thus the holdings of six of the eight Justices who sat in
Pearce firmly support the position we take in the present
ease. Since three of the Justices who declined to sign Mr.
Justice Stewart’s Pearce opinion think the United States
Constitution absolutely forbids imposition of a harsher
sentence upon reconviction, the present opinion can hard-
ly be said to ‘‘outrun’’ the United States Supreme Court.
See Justice Black’s opinion, infra, p. .........

EE EE NE Ey OE TERE BEATE OY ON EN SNE PETER

a ae Be Aap > ENR)

——

18

in the second sentence he receives; and the defendant must
be freed of the apprehension of such retaliatory motivation
on the part of the sentencing judge. Resolution of the
Federal constitutional question raised by appellant Payne
requires interpretation and application of the following
language from Pearce, supra:

‘‘A trial judge is not constitutionally precluded
* * * from imposing a new sentence, whether greater
or less than the original sentence, in the light of events
subsequent to the first trial that may have thrown new
light upon the defendant’s ‘life, health, habits, con-
duct, and mental and moral propensities.’ Walliams
v. New York, 337 US 241, 245. Such information may
come to the judge’s attention from evidence adduced
at the second trial itself, from a new presentence in-
vestigation, from the defendant’s prison record, or
possibly from other sources. The freedom of a sentenc-
ing judge to consider the defendant’s conduct sub-
sequent to the first conviction in imposing a new sen-
tence is no more than consonant with the principle,
fully approved in Williams v. New York, supra, that
a State may adopt the ‘prevalent modern philosophy
of penology that the punishment should fit the offender
and not merely the crime.’ Id., at 247.’’ (at p 723)

‘‘In order to assure the absence of such a motivation
[i.e., vindictiveness], we have concluded that when-
ever a judge imposes a more severe sentence upon a
defendant after a new trial, the reasons for his doing
so must affirmatively appear. Those reasons must be
based upon objective information concerning identi-
fiable conduct on the part of the defendant occurring
after the time of the original sentencing proceeding.
And the factual data upon which the increased sen-
tence is based must be made part of the record, so
that the constitutional legitimacy of the increased
sentence may be fully reviewed on appeal.’’ (at p 726)

The above language raises the following question: May
the judge who imposes a harsher sentence upon reconvic-

——

19

tion rely on information not possessed by the first judge
regarding defendant’s conduct prior to the time of his
first sentencing? If not, the sentence imposed by Judge
Byrns was excessive because it appears his only knowledge
of Payne’s conduct after the first sentencing was that he
had earned ‘‘good time’’ while in prison and had been
taking advantage of prison educational and rehabilitation
facilities. Judge Byrns stated, supra, that he based his
decision to impose a stiffer sentence on impressions of
Payne and his crime formed during the trial.

The question arises primarily because of ambiguous
language in the following sentence from Pearce, supra,
quoted earlier:

‘‘Those reasons [for imposing a harsher penalty]
must be based upon objective information concerning
identifiable conduct on the part of the defendant
occurring after the time of the original sentencing pro-
ceeding.’’ (at p 726).

Does ‘‘occurring after * * * the original sentencing’’
refer to defendant’s ‘‘identifiable conduct”’ or to acquisition
of ‘‘objective information’’ regarding his conduct before
or after original sentencing? Since Pearce was decided,
lower courts have split over interpretation of the above
language. Some opinions hold that only conduct of the
defendant occurring after his original sentencing may he
relied upon by the sentencing judge who imposes a harsher
penalty. See, e.g., Barnes v. United States (DC Cir, 1969),

| 419 F2d 753 (dissenting opinion); Torrance v. TTenry
(USDC EDNC, 1969), 304 F Supp 725; Pinkard v. Neil
(USDC MD Tenn, 1970), 311 F Sapp 711; Walsh «. Com-
monwealth (Mass, 1970), 260 NE2d 911 (dictum at 916).
Others hold or indicate that regardless of when the defend-
ant’s ‘‘identifiable conduct’’ occurred, if it first comes to
a sentencing judge’s attention after the time of the first
sentencing it may be relied upon in support of a harsher
penalty. See, e.g., United States v. Kienlen (CA 10,
1969), 415 F2d 557; United States v. Gross (CA 8, 1969),
416 F2d 1205; United States v. Barash (CA 2, 1970), 428
F2d 328.

PEED OEY STS ST Aaa Cw ea GA ENE 2) BR EGE Se So ee teins

20

The conflictng interpretations of the Pearce require-
ments were no‘resolved by the opinion of the United States
Supreme Cout accompanying its dismissal of a writ of
certiorari in Mon v. Maryland, supra. Certiorari had been
granted to coisider whether Pearce, supra, should be ap-
plied retroactively. In dismissing the writ as improvident-
ly granted th: Court said: ,

‘As ai appendix to its brief, the respondent has
filed an iffidavit of the judge who presided at the
second tral, setting out in detail the reasons he im-
posed th 20-year prison sentence. Those reasons
clearly nelude ‘objective information concerning
identifiake conduct on the part of the defendant oc-
curring ¢ter the time of the original sentencing pro-
ceeding.’’’ (at p 320)

We have obtiined a copy of the referenced trial judge’s
affidavit. Uzfortunately, for our purposes, the Marvland
judge who reentenced Mr. Moon considered conduct which
occurred afte the first sentencing. Therefore, Moon does-
n’t tell us wlether Pearce allows a harsher sentence even
though thereis no (known) conduct of the defendant oc-
curring after the first sentencing which would support a
stiffer sentere.®

Pending carification of Pearce’s requirements by the
United State Supreme Court, we are persuaded that those
courts are corect which have interpreted Pearce to require
that the ‘‘idatifiable conduct”’ of the defendant upon which

6 Similarly the per curiam_opinion accompanying dis-
missal of thewrit in Odom v. United States, supra, does not
answer our juestion. The opinion gives as the reason for
dismissing te writ as improvidently granted that the or-
der of the dstrict court denying Mr. Odom’s motion to set
aside his seond sentence ‘‘makes it clear that the greater
severity of te second sentence was based on conduct on the
part of the ietitioner occurring after the time of the origi-
nal sentencag proceeding, and that the new information
was specificlly referred to at resentencing.”’ (Odom, supra,
at p 112.)

tee

21

a resentencing judge relies in imposing a stiffer sentence
must have occurred after the first sentencing.’ That the
Pearce Court intended this result is evidenced by Mr.
Justice White’s one sentence opinion advocating the op-
posite result:

“‘T join the Court’s opinion except that in my view
Part II-C [standards and procedures governing harsh-
er sentence upon reconviction] should authorize an in-
creased sentence on retrial based on any objective,
identifiable factual data not known to the trial judge
at the time of the original sentencing proceeding.’’
(Pearce, supra, at p 751.)

Furthermore, our interpretation is in accord with the gram-
mar of the ambiguous Pearce language. ‘‘Information’’ does
not ‘‘oceur,’’ it is obtained. ‘‘Conduct’’ ‘‘occurs.”’

We conclude, and hold, that the imposition of a harsher
sentence upon reconviction following appellant Payne’s suc-
cessful appeal was constitutionally impermissible because
the record of the second sentencing does not disclose ‘‘ob-
jective information concerning identifiable conduct on the
part of the defendant occurring after the time of the origi-
nal sentencing proceeding.’’ (Pearce, supra, at p 726.)

Our disposition of the above discussed issue renders un-
necessary consideration of appellant Payne’s contention .
that the possibility of a harsher sentence upon reconvic-
tion unduly chills the exercise of the right to appeal one’s
conviction granted by the Michigan Constitution of 1963,
art 1, § 20.8 We have carefully examined appellant Payne’s

7 Justice Black’s assertion, infra, p. ...... , that no Justice
dissented from Justice Dethmers’ conttary handling of
Pearce in Olary is misleading for two reasons. First, the
two Olary d‘ssenters did not reach the Pearce i issue. See-
ond, since Justice Dethmers first took great pains to dis-
tinguish Pearce in Olary, his subsequent interpretation of
“bone s requirements was clearly dicta and not controlling
ere

8 See Judge T. M. Burns’ dissenting opinion, below.
Mich App 42, 46.

LE EPI IE PEI OP TPR TPR LIE BLOOMING PTE

CAE ARH 2 SS eT

Pen EP RS HE _
other allegations of error and find them to be without
merit,

Since this opinion was written, the case has been re- |
heard and the records supplemented by additional state- \
ments by the trial judge. Nothing new, disposition-wise, (
has been added. The result remains the same.

The case is reversed and remanded to the Berrien county :
circuit court for resentencing in accordance with this opin- |
ion.

(s) Thomas M. Kavanagh )
(s) Thomas Giles Kavanagh |
(s) John B. Swainson
(s) G. Mennen Williams |

35/April/1971

BEFORE THE ENTIRE BENCH
BRENNAN, J.

I agree with the Chief Justice’s analysis of the Pearce
decision.

I believe, however, that the United States Supreme
Court was very, very wrong — dangerously, and illiberally
wrong — in concluding that a harsher penalty could be
imposed upon a defendant for ‘‘* * * conduct * * * oc-
curring after * * * the original sentencing * * *.’’

Courts are empowered to mete out sentences for the
conduct of which the defendant stands convicted. That
conduct, and only that conduct, has been established fac-
tually in the manner required by constitutional due process.

Any other, subsequent, conduct with which the defend-
ant has not been duly charged, and of which he had not
been duly convicted according to the Constitution and laws
of the State and the Nation simply cannot be made the
basis for depriving a person of his liberty.

The Thirteenth Amendment makes the point perfectly
and abundantly clear.

—_—

23

‘Section 1. Neither slavery nor involuntary servi-
tude, except as a punishment for crime whereof the
party shall have been duly convicted, shall exist with-
in the United States, or any place subject to their
jurisdiction.’’ US Const, Am 13, §1. ZY

To the extent that the Pearce case stands for the proposi-
tion that a harsher sentence, imposed on re-trial as a punish-
ment for, or a deterrent to, the exercise of the right of
appeal, it is good, sound constitutional law.

To the extent that Pearce ignores the plain command
of the Thirteenth Amendment, it is a horrible mistake,
and one which every state and Federal judge, endowed
with the gift of conscience ought to call forceably to the
attention of our constitutional superiors on the United
States Supreme Court.

As to this case of Payne, I am satisfied that the candid
statement of the circuit judge, made on the record at the
time of re-sentencing is free of any taint of vindictiveness,
and that the sentence should be upheld.

(s) Thomas E. Brennan

35/April, 1971
No. 52618-14

BEFORE THE ENTIRE BENCH
BLACK, J. (for affirmance)

ON REHEARING

Mr. Payne’s appeal, granted January 21, 1970 (383 Mich
760), was assigned to then Associate Justice T. M.
Kavanagh and duly submitted last year. December 16,
1970 the assignee Justice submitted to this then manned
Court of six an opinion calling for reversal and resentenc-
ing in accordance with its tenor. That opinion, since with-
drawn, will not appear in our reports.

In effort to attain a prompt decision, by the Court be-
fore whom the appeal had been submitted, the writer

24

dropped other work and drafted an opinion standing for
affirmance. That opinion was delivered to the other Justices
December 22, 1970. It will appear in our reports, infra
beginning at -....... It communicates adequately my then
and present view of Circuit Judge Byrns’ eminently per-
missible and perfectly constitutional action when, upon
full-fledged trial of Mr. Payne before a jury of another
county than the county of indictment (ordered upon Mr.
Payne’s motion for venue change), Mr. Payne was con-
victed again of assault with intent to murder and sentenced
(August 30, 1967) to 25 to 50 years imprisonment with
credit allowed for time served and ‘‘earned’’; distinguished
from his original sentence by Judge Hadsell, in 1963, to
19 to 20 years imprisonment.

There is more to report. December 30, 1970 Justice T.
M. Kavanagh ‘‘held’’ decision of the appeal, thus auto-
matically eliminating Justice Dethmers from participation,
the latter’s term then being due for end in less than 48
hours. Next came a memorandum from newly elected
Chief Justice Kavanagh dated January 22. With it he
submitted to us a substituted opinion, likewise standing
for reversal for resentencing. The memorandum concluded:

‘‘Since we are apparently split 3-to-2 on this case,
we should consider resubmission to the entire present
Bench in hopes of obtaining a sounder precedent. I
would anticipate little inconvenience to the litigants
in the event of resubmission, since the case was origi-
nally submitted on briefs.’’

The next internal event was that of submission by the
present writer, to the other Justices, of a memorandum
dated March 1. It reads:

‘‘What is introduced below repeats the resolution
offered orally on December 30. This one is in writing,
for reference in a forthcoming supplemental opinion.
Counting procedurally on Moon v. Maryland [398 US
319; 26 L ed 2d 262] and Odom v. United States ey a
SP es ; 27 L ed 2d 122] I wish to have the Court
resolve:

ae

‘‘That we request through the clerk submission by
Judge Byrns of an affidavit supplying, ‘in detail’ as
‘ Judge Pugh did in Moon v. Maryland (June 8, 1970),
his reasons for imposition of the August 30, 1967 sen-
tence of Mr. Payne, so that this Court may determine
whether, within Justice Stewart’s allegedly ‘ambig-
uous’ opinion of North Carolina v. Pearce, 395 US
711, 23 L ed 2d 656, ‘there was a retaliatory motiva-
tion on the part of the sentencing judge.’

25

‘*The new members of the Court will note that Pearce
was decided June 23, 1969, nearly two years after Mr.
Payne was sentenced the second time, and that USSC
has twice since, over objection of Justice Douglas, re-
fused to say that Pearce is retroactive in effect.’’

That resolution came to adoption by the Court March
2. On the same date the Court ordered — sua sponte —
a rehearing of Mr. Payne’s appeal. The order for rehear-
ing concluded with provision that ‘‘the cause [be] sub-
mitted forthwith, without additional briefs or argument.”’

Pursuant to direction and on April 19 our clerk wrote
Judge Byrns as follows: ;

‘‘The Court has asked me to refer you to North ©
Carolina v. Pearce, decided June 23, 1969 (23 L ed
2d 656) ; Moon v. Maryland, decided June 8, 1970 (26
L ed 2d 262) and Odom v. United States, decided No-
vember 9, 1970 (27 L ed 2d 122), and to the fact that
you presided at Mr. Payne’s Kent county trial in
August of 1967 and were the second sentencing judge.

‘*The question in this Court for review on rehear-
ing ordered March 2 is whether considering Mr.
Payne’s sentence by Judge Hadsell in 1962 and the
somewhat greater sentence imposed by you August
30, 1967 following the Kent county trial, the second
sentence was ‘harsh’ within the rule of Pearce. You
will perceive how and why this question has arisen
upon examination of Pearce, Moon and Odom.

LP A ae ae sn wr Te ON CUA Be eee cree en

iin

26
‘‘Your reasons given (prior to handing down of the
3 cited cases) for the sentence imposed August 30,
1967, appear in the transcript of sentence filed in your |
court on September 8, 1967. The Court wishes now
that you prepare and submit an affidavit, procedurally |
as was submitted to the Supreme Court by Judge
Pugh in the Moon Case, in order that the Court may }
determine whether there was or was not the vindic-
tiveness to which the Supreme Court addressed itself
in Pearce. ’

‘‘In order that you may ascertain precisely how
this was handled in Moon you are furnished herewith
a copy of Judge Pugh’s affidavit, sworn to by him
October 1, 1969.”’

May 10 Judge Byrns responded by letter to the clerk, ;
eT attested by him. The affidavit is much
the same aS-that_which the United States Supreme Court
accepted and acted upon, after grant of certiorari for re-
view of Moon v. Maryland, June 8, 1970, 398 US 319, 90 S
Ct. 1730, 26 L ed 2d 262. It reads:

‘‘In accordance with the direction of the Supreme
Court of Michigan in the above cause, I, Chester J. ,
Byrns, being first duly sworn, say that:

‘‘1, Tam and have been since January, 1, 1967, one
of the judges of the Second Judicial Circuit of Mich-
igan (Berrien County).

‘“‘9. Leroy Payne, defendant-appellant in the above
cause, pled guilty on December 14, 1962, before the
Honorable Philip A. Hadsell, Circuit Judge, now re-
tired, to the crime of assault with intent to murder,
and was sentenced to 19-40 years.

‘<3. “On June 15, 1967, I suppressed a confession of
Mr. Payne, set aside his guilty plea and granted him a
new trial based on his claim that improper means were
used by the police to secure his confession which he
claimed was involuntary.

“4. On August 4, 1967, I granted Mr. Payne’s mo-
tion for a change of venue and transferred and heard
the jury trial in Grand Rapids (Kent County), Mich-

a
27

igan, which resulted in a verdict of guilty of assault
with intent to commit murder.

‘5. During said trial I had the opportunity, which
Judge Hadsell did not, to observe defendant for three
days and, far more important, to hear many more of
the details of the crime and Mr. Payne’s participation
in it than Judge Hadsell who, as the arraignment tran-
script shows, had only inquired of defendant whether
the defendant committed the assault against Officer
Yost with a gun with intent to kill and murder, to which
Mr. Payne answered only ‘yes.’

**6. Unlike Judge Hadsell who had Mr. Payne be-
fore him for only a few minutes at the time of plea
and again at sentence, I had the opportunity to observe
and hear Mr. Payne who took the witness stand and
who was examined and cross-examined extensively.
Mr. Payne’s story and claim in trial of not being at all
involved in the crime was in direct conflict with what
he told Judge Hadsell both at arraignment and at the
plea of guilty where he not only admitted his crime but
expressed sorrow and regret for it and showed there-
by a remorse for his crime. At time of sentence Judge
Hadsell said he believed Mr. Payne’s claim of regret.
At the time of sentencing by me on August 30, 1967,
when given the opportunity to state anything he
wished me to consider, Mr. Payne replied, ‘Nothing.’

: “7, At the jury trial before me Mr. Payne repeat-
edly denied under oath not only shooting Officer Vic-
tor Yost, but claimed under oath he was home with his
wife and had while waiting earlier at church for his
children at Sunday School gotten the gun used in the
Yost shooting. as security for a $3.00-loan to an un-
known stranger and this gun and Payne’s ear were al-
legedly stolen the night of the shooting. This court be-
lieves this was a tissue of lies and so did the jury.

**8. Frankly, I was then and am now of the opinion
that Mr. Payne repeatedly lied under oath at the trial
before me. While a sentencing judge receiving a guilty
plea and an expression of regret from a defendant
might find remorse and a resolution to rehabilitate
from such a defendant, which might limit the sentence,

a ee en em ae ee, Se Eee) oe ee ee oe aoe ~

: = oe 98
I could not so find this in Mr. Payne. I was ¢harged-
with the judgment of determining how long an indi-
vidual should be confined, which in turn depends on
my judgment of his character and his real desire for
rehabilitation according to the facts and impression I
receive.

‘*9. At the trial of People v. Lionel Bradford (Ber-
rien circuit No. X-768, Michigan Supreme Court No.
52072), a co-defendant with Payne, who was found
guilty by jury of assault with intent to murder Charles
Plummer (who was shot along with Officer Yost but
who was out of the country at the trial of Mr. Payne)
Plummer testified (Bradford trial transcript pp 49, 50,
and 180) that while he (Plummer) was s wounded and ly-
ing on the ground, Mr. Payne came back and stood by
the left fender of the car and deliberately fired right
at him.

‘$10. Payne testified at Bradford’s trial (February
4, 1963) that Lionel Bradford and Payne were driving
a 1955 blue and white 2-door Pontiac on November 5,
1962 in the early morning hours. After having broken
into a restaurant in South Bend, Indiana, and a cloth-
ing store near Benton Harbor, Michigan, Payne tes-
tified that he and Bradford were stopped by a police ~
vehicle on M-139. Bradford had told Payne he ‘would
not be taken.’ As they stopped, Bradford and Payne
jumped from their vehicle and began firing at the
two officers, hitting both of them.

‘Payne remembered going back to one of the officers
but couldn’t recall exactly what then happened. Both -
men subsequently jumped into their car and filed,
Payne giving his gun to Bradford in a ravine and re-
turning home where he (Bradford transcript pp 45-60)
was subsequently arrested.

‘‘On September 2, 1965, nearly three years after his
sentence by Judge "Hadsell and about two years be-
fore I granted him a new trial, Leroy Payne signed an
affidavit supporting an appeal of Bradford claiming
he gave ‘false testimony’ at the Bradford trial. He
said that the only reason the testified at that trial was
due to fear of the police, that Bradford never ad-

——_—

29

mitted committing crimes, and that Bradford had de-
nied being present when the officers were shot. Fur-
ther, Payne swore in his affidavit he had hardly known
Bradford prior to being arrested, and that he had not
been with Bradford on either the date of the shoot-
ing or the day before.

‘11. At the Payne trial before me, in far greater
detail than would have been present in a plea of
guilty, it was established before me beyond a reasen-
able doubt that Mr. Payne had participated in the de-
liberate, cold-blooded attack upon and wounding three
times of Officer Yost under conditions that Mr. Yost
could not properly defend himself, which I felt then
and do now showed a depravity of mind.

‘12. TI had the deta‘ls of the nature of the wounds
and the medical fight to save Officer Yost’s life from
Mr. Yost and from his surgeon, Dr. Robert Reagan,
as well as the residual and continuing damage to Mr.
Yost, which Judge Hadsell on a plea of guilty would
not have had.

**13.. I had as a result of the trial aad many facts
brought out therein the conclusion that only by divine
providence and not because of Mr. Payne was the life
of Officer Yost saved.

**14. As stated at the time of sentencing, my in-
crease in sentence to 25-50 years was not because the
fendant asked for and got a new trial (which I grant-
ed) or a change of venue (which I granted), but be-
cause of the conditions and facts stated by me to Mr.
Payne at the time of sentencing as well as the above
matters which I do not believe were all known to
Judge Hadsell.

‘*15. Further deponent says not.

(Subscribed, sworn, ete.]”’

The next event of the appellate series was delivery to
the other Justices, by the Chief Justice, of his third opinion
for reversal. That was. done under date of September
21.
due to be the opinion of the Court, I respond with the fore-
going plus the ensuing presents this 14th day of October.

=

Presuming at this writing that this third review is

30

Between appropriate separating lines my 1970 opinion
for affirmance, mentioned at the outset, is inserted here.

[Title of Court and Cause, October
1970 Term No. 33]

BEFORE THE ENTIRE BENCH (except Kelly, J.)
BLACK, J. |

Defendant Payne demands on appeal that we compare
his 1962 sentence upon plea of guilty in Berrien county,
with his second sentence upon conviction by a jury in
Kent county after change of venue, and that we find by
the doubtful faird of 4-2-1-1 North Carolina v. Pearce
(1969), 395 US 711 that the second sentence was uncon-
stitutionally more ‘‘harsh’’ than the first.*

In corresponding vein we considered Pearce in People
v. Olary (October 6, 1969), 382 Mich 559, 565-568, wherein
no member of the Court dissented from Justice Dethmers’
handling for us of the issue posed by Pearce. In Olary
our rather unenthusiastic view of Pearce. was summed
up (p 566):

‘Then. the rather amazing requirement seems to be
expressed that, if a greater sentence is imposed after
the second conviction, the sentencing judge must cause
to be placed in the record his reasons for so doing,
based on conduct of the defendant occurring after the

* By plea of guilt to the charge of assault with intent to
murder, and later by jury verdict, Mr. Payne’s crime con-
sisted of the cold-blooded shooting of police officer Yost
as the latter approached Payne’s automobile; the officer
in a scout car having previously signaled the Payne car
to a stop. Not one of Payne's 3 shots missed. One bullet
crippled Yost’s gun arm; hence he was unable to draw
his gun and get into action. Payne and his companion drov¢
away but were apprehended later. Yost was critically
wounded and subjected to major surgery to save him. He
managed to survive and testify years later.

:

RG I LO

31

first sentencing or, at least, on subsequent informa-.
tion coming to the judge after the first sentence.’’
\

Proceeding from Olary to today’s question: I am un-
able to find that a majority of the Court, seated for deter-
mination of Pearce, committed the Court (if indeed there
was any commitment beyond affirmance) to anything con-
stituting a dependable precedent except that which, in full
paragraphic context, was written by Mr. Justice Stewart
(p 726):

‘*In order to assure the absence of such a motiva-
tion, we have concluded that whenever a judge im-
poses a more severe sentence upon a defendant after
a new trial, the reasons for his doing so must affirm-
atively appear. Those reasons must be based upon
objective information concerning identifiable conduct
on the part of the defendant occurring after the time
of the original sentencing proceeding. And the factual
data upon which the increased sentence is based must
be made part of the record, so that the constitutional
legitimacy of the increased sentence may be fully
reviewed on appeal.’’

Justice T. M. Kavanagh, writing to reverse for resen-
tencing, has plucked from the middle of Pearce’s foregoing
paragraph the second sentence thereof. Then, upon al-
legation and judgment that the sentence is grammatically
‘‘ambiguous,’’ our Brother finds that the defendant’s
‘*identifiable conduct’? must be ‘‘bad,’’ and recorded that
way, in order to satisfy the constitutional requirements of
Pearce’s quoted paragraph.

Now I cannot object legally to following the decisions
of our superior, the United States Supreme Court, what-
ever we may think of such of its decisions as may dictate
the criminal processes of the States. But I do of right
protest the gratuitous insertion, in a short-of-majority
opinion released by the Supreme Court, of an additional
qualifyi ing word or words which the exdorsers of that opin-
ion chose not to wedge in. And when that is attemptedly
done by a subordinate Court bent on a this way or fhat
way “interpretation”’ of an opinion of the Supreme Court, I.
not only object but except. Let us interpret and apply all

LTT IAL PRE OE ORS Gs

32

of Justice Stewart’s words as they are, not as we might wish
he had written them.

I shall presently return to this ‘‘identifiable (bad) con-
duct’’ view of Justice Stewart’s opinion. For the merits
of the constitutional question, however, the opinion of
Division 3 (18 Mich App 42) expresses best the view I
take of Judge Byrns’ assiduous care of Mr. Payne’s right
as claimed by him under Pearce, and of the Judge’s ful-
fillment of judicial duty in such regard. The following is
adopted (pp 45, 46):

‘A trial affords more opportunity to hear all de-
tails, to observe and judge a defendant than does a
summary plea proceeding, a fact noted by Judge
Byrns. The trial judge noted the right of every citizen
to seek appellate relief and the fact that obtaining such
relief should in no way affect a subsequent sentence.
The trial judge then stated that the sentence he was
about to impose was not because defendant had ap-
pealed but by reason of the nature of the crime and
impressions formed of defendant during 3 days of
trial. The trial judge noted that the statute under
which defendant was convicted authorized a life sen-
tence or any term of years, and except for defendant’s
past history (poor family background, good school,
service and prison records), a life sentence would
have been imposed.’’*

Judge Byrns’ ‘‘reasons,’’ for the sentence ordered after
the jury trial (25 to 50 years with allowed credit for time
served and earned ‘“good time’’), compared with the sen-
tence meted out years before on Mr. Payne’s plea of guilt
(19 to 40 years), need no expatiation. Read in continuant
context, the Judge’s discourse portrays something more
than due care in effort to conform with the rule of Williams
v. New York (1949), 337 US 241, 245 which, later, was
expounded in Pearce at 723-726.

* The complete text of that which is necessary to de-
termine whether Judge Byrns did or did not supply the
record, required by Justice Stewart’s opinion as quoted,
appears in Justice T. M. Kavanagh’s opinion, ante at .......

| ‘

From that conclusion I turn to the 3 federal appellate
decisions (not District Court opinions or conceded dicta)
which Justice T. M. Kavanagh admits are opposed to the
application he, per the above, would make of the quoted
‘tambiguous’’ sentence. The 3 are United States v. Kienlen
(CCA 10, 1969), 415 Fed 2d 557; United States v. Gross
(CCA 8, 1969), 416 Fed 2d 1205 and United States v. Barash
(CCA 2, 1970), 428 Fed 2d 328.

Pick up the first, Kienlen. The unanimous opinion
there provides plain reason why the 11 federal circuits are
thus far loath to speed ahead of Pearce. Read first the
sentencing judge’s reasons for stepping up Kienlen’s sen-
tence (pp 559-560) from 12 years to 18 years, in array
with those which Judge Byrns declared upon sentence of
Mr. Payne. Doing so, note the striking emphasis upon
judicial consideration of information gained by and upon
actual trial of the facts, compared with that which in each
instance was provided by the earlier plea. Finally, con-
sider Chief Judge Murrah’s conclusion of Kienlen — for
the Court (p 560) :

‘‘After a brief colloquy, he [the sentencing judge]
further noted, ‘I want it clearly understood that what
I have said with respect to increasing the sentence or,
rather, imposing a more severe sentence than I had
before, is not to be taken by anyone as punishment for
the exercise of constitutional rights by this defend-
ant.’

‘‘In our judgment, this meets the Pearce standard.
Naturally, the statement that the trial judge was not
penalizing the defendant for exercising his constitu-
tional right to appeal is not conclusive. But it is
indicative of the sentencing climate. The decision was
clear and rational. Finding this sentence altogether
compatible with Pearce, we need not consider the
possible retroactivity of Pearce. See Moon v. Mary-
land, cert. granted 395 US 975, 89 S Ct 2135, 23 L Ed
2d 764 (1969) on the issue of Pearce’s retroactivity.”’

The foregoing brings to the fore that which the courts
of the States must ever bear in mind; that since there is
no compulsion, they of right and good sense should never

34

undertake to gallop ahead of the United States Supreme
Court, as legal skirmishers, into the uncertain and danger-
ous brambles of federal criminal justice. Subordinates
never know whether that top Court of’a State or of the
Nation will provide support later; a fact learned anew
when our opinion of People v. Charlie Lee Woods (cited
post), was held up from February 14 to August 4, 1969,
awaiting Jenkins v. Delaware (1969), 395 US 213.

Here our constitutional position, vis-a-vis a decision
of the United States Supreme Court we are warned to
follow, should not be forgotten as all view the occasional
error of proceeding ahead of our superior as federal
questions arise, say as chronicled anent California in the
separate opinion of People v. Taylor (1970), 383 Mich
338, 367-372. ‘‘Made in Washington,’’ as cynics currently
describe the products of Congress, applies as truly but
more respectfully to the decisions of the United States
Supreme Court. We need not buy them nor employ them,
unless they bear that warranty of fitness which under
Article VI is made negotiable by the unreserved endorse-
ments of 5 or more of the Justices. Pearce is not so
endorsed.

Ranking surely with Chief Justice Marshall’s mighty
phrase, admonishing that ‘‘We must never forget, that it
is a constitution we are expounding.’’ (McCulloch v. State
of Maryland (1819), 17 US at 407), Justice Adams has
written for us an equally enduring deterrent warning. Ap-
pearing in In Re Apportionment of Legislature (1964),
372 Mich 418, 473, it is that he did not ‘‘conceive it to be
the proper duty or function of this Court to attempt to out-
run the Supreme Court of the United States.’’ Having
admired crescently the penetrating omniscience of my
Brother’s thought in such regard, due respect has since
been paid thereto. See Muskegon Prosecuting Attorney
v. Klevering (1966), 377 Mich 666, 672; People v. Mallory
(1967), 378 Mich 538, 584,° and Peaple v. Charlie Lee

* My footnote in Mallory concluded:

‘“‘Tt is better, say I, that a subordinate court risk direct
reversal than risk indictment and conviction for having
predicted by a soothsayer’s judgment what ultimately does
not come to pass.’’

~ oe -——~

35

Woods (1969), 382 Mich 128, 129. On the last cited occa-
sion the entire Court, Justices T. M. Kavanagh and Adams
included, joined in the deserving accolade.

The issue arising from Mr. Payne’s 1967 sentence may
be summarized best by calling attention to the Supreme
Court’s most recent duel over these allegedly ‘‘harsh”’
second sentences to imprisonment. That duel appears in
5-1-1-1 Moon v. State of Maryland (June 8, 1970), ........ US
eal ) ---.+-) Where the writ theretofore granted Moon was
dismissed ‘‘as improvidently granted.’’ Five members of
the Court declared that ‘‘the dispositive development is
that counsel for the petitioner has now made clear that
there is no claim in this case that the due process standard
of Pearce was violated.’’ That conclusion was reached
upon: strength of Moon-counsel’s statement renouncing
any claim ‘‘that Judge Pugh was vindictive.’’

If such is to be the ‘‘dispositive development”’ of cases
as at present bar, then let it be noted that nowhere in the
brief of Mr. Payne does there appear the slightest sug-
gestion or hint that Judge Byrns was ‘‘vindictive’’; also
that this case was received on briefs with oral argument
waived. Again, is it not in order that this Court of a
State should not attempt to manufacture more rights from
the Bill of Rights, and that it should attend in that re-
gard the leadership of the United States Supreme Court?

No other question posed for review requires discussion.
I vote to affirm.

On rehearing there is no more that needs saying than
this:

First: The Supreme Court, having granted Mr. Moon’s
petition for certiorari, accepted and acted affirmatively
upon sentencing Judge Pugh’s October 1, 1969 affidavit.
That affidavit, a copy of which I have attached as an ap-
pendix so that concerned outstate as well as instate counsel
may compare it conveniently both with Judge Byrns’ sen-

_tencing statement (ante at ........ ) and Court-requested affi-

davit, persuaded the Supreme Court that Judge Pugh
therein had set forth ‘‘objective information concerning
identifiable conduct on the part of the defendant occurring

_ a

j
36

after the time of the original sentencing proceeding.’’, and
that the writ of certiorari granted Mr. Moon therefore
should be dismissed as improvident (Moon at 320, 321).

Second: In Odom v. United States, November 9, 1970
US oe , 27 Led 2d 122, the Supreme
Court determined to employ sentencing Judge McRae’s
order of July 1, 1970, the order having made ‘‘it clear
that the greater severity of the second sentence was based
on conduct on the part of the petitioner occurring after
the time of the original sentencing proceeding, and that
the new information was specifically referred to at resen-
tencing.’’ (Odom at ........ ). Again, the writ was dismissed
as improvidently granted.

My question is: Why is this professedly USSC-devoted
Court of a State unwilling to accept sentencing Judge
Byrns’ even more convincing statement at sentence (ante
OE seca ), and his equally convincing affidavit (which last
the Court itself requested), as equally or more persuasive
that something quite aside from ‘‘retaliatory motivation”’
led to Payne’s somewhat more severe sentence of August
30, 19677

Is it not true that here, as pointed out by the writer
in his 1970 Pr (ante at ........ ), that there is not ‘‘the
slightest suggestion or hint in the brief of Mr. Payne,
that Judge Byrns was ‘vindictive’.’’? Clear it is that
Michigan trial court judges are in for ‘‘vindictive’’ dis-
cipline if they do not go easy on vicious professionals like
Leroy Payne and Liontle Bradford Both deliberately
stopped to shoot at the o , one of whom was grievously
wounded, wholly helpless, and prone on the pavement.
And all these facts could not possibly have been known
to sentencing Judge Byrns until Bradford and Payne had
been separately tried. (For appellate review of Brad-
ford’s conviction, see People v. Bradford, 10 Mich App
696; leave to appeal denied September 30, 1968; 381 Mich
778).

To conclude:

The projected issue of retroactivity of Pearce is no
more present now, in this case of Payne, than it was in
Moon and Odom when each was decided. Without thought

ata
37

of attempted usurpation of the Supreme Court’s exclusive
prerogative, I suggest that we may accept provisionally
the ultra-liberal hope that the quoted portion (ante at
eine ) of Pearce will some day be held retroactive, and yet
properly find under Moon and Odom that Judge Byrn’s
sentencing statement and subsequent affidavit, like that
of Judge Pugh in Moon, has left Mr. Payne’s appeal both
bootless and improvident. I conclude as the Supreme
Court did in Odom:

‘*Since it is now apparent that this case does not
present the issue of the retroactivity of North Carolina
v. Pearce, supra, the writ is dismissed as improvident-
ly granted.’’

Believing that this Court has no honorable right to
usurp the statutorily confided exclusive discretion of trial
court judges in the sentencing of convicted felons, I ad-
here to the first premise of Pearce’s immediate father
(Williams v. New York [1949], 337 US 241, 245; 69 S Ct
1079; 93 L ed 1337), distilled as it was by North Carolina
v. Pearce at 723:

‘‘A trial judge is not constitutionally precluded,
in other words, from imposing a new sentence, whether
greater or less than the original sentence, in the light
of events subsequent to the first trial that may have
thrown new light upon the defendant’s ‘life, health,
habits, conduct, and mental and_moral propensities.’ ’’

As before, I vote to affirm.

(s) Eugene F. Black

eS ee ae

38

APPENDIX

(Copy of Judge Pugh’s affidavit, mentioned
by the Supreme Court in Moon v. Maryland,
June 8, 1970, 26 L ed 2d 262, 264)

RESPONDENT’S EXHIBIT ‘‘A’”’
In The Cireuit Court for Montgomery County, Md.
Nos. 7639 and 7640

State of Maryland
vs.
Dennis Mullene Moon

At the request of the Attorney General of Maryland,
made to me on the 30th day of September, 1969, I do hereby
make the following statement:

On June 6th and 7th, 1966, I presided over the jury trial
of Dennis Mullene Moon who was convicted under two
indictments, (No. 7639 and No. 7640) with the crimes of
assault with intent to kill and murder (No. 7639 Criminals)
and robbery with a deadly weapon and grand larceny (No.
7640 Criminals). At the request of the defendant’s attor-
ney, sentence was imposed after the return of the verdict,
no request for a presentence investigation was made be-
cause such was not desired by defendant’s attorney. At
the sentencing I was informed that another Judge of this
Court had sentenced the defendant to twelve years in the
penal institution-after his conviction of the crime of
robbery with a deadly weapon. There was no trial under
Criminals No. 7639 charging assault with intent to kill and
murder, at the first trial. I was also aware of the fact that
the defendant was given a retrial as a result of the deci-
sion of the Maryland Court of Appeals in the case of
Schowgurow vs. State, 240 Md. 121. I sentenced the defend-

nus atti OGs
sere ee ee Why

eo

39

ant for his conviction of robbery with a deadly weapon,
under Count One of the Indictment in Criminals No. 7640
to a period of twenty years, and for a period of ten years
under Count Number Six of this indictment the ten year
sentence to be suspended on condition that when the defend-
ant is released from his sentence under the First Count
that he will remain on good behavior and not get in any

trouble any more. I sentenced the defendant to ten years

under Count No. One in Criminals No. 7639, charging
assault with intent to kill and murder, this latter sentence
to be suspended on condition that he remain on good be-
havior when he is released from his sentence under the
First Count in Criminal No. 7640. Credit was also given
for the time previously served by the defendant awaiting
retrial from June 2, 1964, to June 7, 1966, (2 years and 5
days). At the time of sentencing, I took into consideration
the following facts:

1. The defendant bludgeoned the victim with a pipe
rendering her unconscious for a long period of time, caus-
ing her to be hospitalized for four days. She had a com-
plete loss of memory of the events of the crime. The at-
tending physician testified that she had head and eye in-
juries, that she was rather confused, disoriented, suffering
from headaches, that she had deep lacerations over her
left eyebrow with marked hemorrhage around the eye, con-
tusions behind the right ear, abrasions of the left knee, a
concussion, cerebral concussion, that she was under a
doctor’s care until July 6, 1964, a period of forty-nine days
that she was still suffering from the affects of her injuries
on the date of trial when she broke down in tears on the
witness stand.

2. The defendant stole the sum of $400.00 from the vic-
tim, whom he knew, by means of his attempt to kill her, to
prevent his identification by her.

3. The defendant was tried and convicted of another
offense at his trial, the crime of assault with intent to kill
and murder, which sentence of ten years I suspended on
condition that he remain on good behavior when he is re-
leased under the sentence of twenty years.

4. The defendant had previous convictions of house-
breaking and larceny for which he was sentenced to one

40

year in Ft. Leavenworth, Kansas, in 1959, a conviction
under the Dyer Act in Carson City, Nevada, in 1961 for
which he was sentenced to three years; a conviction on
April 13, 1961 under Title 18, Sec. 2312 in Las Vagas,
Nevada, for which he was given three (3) years.

5. The defendant took the stand and under oath denied
that he had struck the defendant. When his lawyer called
to the defendant’s attention that he took the stand in the
previous trial and admitted hitting the victim, the defend-
ant said he did not remember testifying that he hit the
victim at the first trial, which I did not believe, and I was
convinced that he had perjured himself at this sentencing
which I considered as identifiable misconduct on his part
occurring after the time of the original sentence,

6. That on June 8, 1966, I refused to sign an order to
have the defendant transferred from the Maryland Peni-
tentiary to the Patuxent Institution for his evaluation as
to whether or not he was a defective delinquent under
Article 31B, Section 5 of the Code of Laws of Maryland
stating that ‘‘The defendant has been sentenced to twenty
years in the Penitentiary plus two ten year sentences which
were suspended and the Court is of the opinion that the
sentence of twenty years plus the two ten year suspended
sentences is adequate and therefore no proceedings should
be filed under the defective delinquency statute.’’

7. Ihad not read the transcript of the first trial and did
not preside at the first trial, therefore did not know what
facts and circumstances the first Trial Judge took into
consideration in sentencing the defendant to twelve years.

Respectfully submitted,

James H. Pugh,
Judge of the Circuit Court for
‘Montgomery County, Maryland

Subscribed and sworn to before me this 1st day of
October, A.D., 1969.

Betty Ruth Belcher,
Notary Public, Maryland
(Seal)

a

_—— >

41
35/April 1971
[No. 5261814]
BEFORE THE ENTIRE BENCH
ADAMS, J.
ON REHEARING

I concur with that portion of Justice Black’s opinion
which he designates as his 1970 opinion.

(s) Paul L. Adams

35/April 1971
BEFORE THE ENTIRE BENCH
WILLIAMS, J. (concurring)

I concur with the Chief Justice’s analysis of Pearce and
the fact it is controlling. Personally, however, I think
Justice White’s opinion makes better sense.

(s) G. Mennen Williams

APPENDIX B — OPINION OF THE COURT OF APPEALS
(Filed June 25, 1969)

BEFORE: Quinn, P.J., T. M. Burns and Holbrook, J.J.
QUINN, P.J.

December 14, 1962, defendant, represented by counsel,
pleaded guilty to a charge of assault with intent to commit
murder; CL 1948, § 750.83 (Stat Ann 1962 Rev § 28.278).
Thereafter, defendant was sentenced to prison for a term
of 19 to 40 years. Judge Hadsell presided at the plea and
sentence. Judge Hadsell’s term of office expired January
1, 1967 and he was replaced by Judge Byrns. 378 Mich

(v). ’

—— CALE OE ONO RELEGATED ea

— SCNRNNNNCNOLIE NEN” gucci i

42

a

Following a remand from the Court of Appeals for that
purpose, a hearing w ld June 15, 1967 to determine the
voluntariness of obifstions, admissions and statements
against interest mad@ by defendant prior to his plea. As
a result of the hearing, the trial court suppressed all con-
fessions, admissions and statements against interest, set
aside the plea, vacated sentence and remanded the case
for preliminary examination. .

At the conclusion of the examination, defendant was
bound over for trial. His motion for change of venue was
granted, and he was tried before Judge Byrns and a jury
in Kent county. August 24, 1967, the jury returned a ver-
dict of guilty as charged. Thereafter defendant was sen-
tenced to prison for a term of 25 to 50 years, with credit
for time already served. His appeal raises 5 issues, 4 of
which do not merit discussion.

Defendant contends it was reversible error for Judge
Byrns to impose a more severe sentence than did Judge
Hadsell. In People v. Poole (1967), 7 Mich App 237, this
Court held such action was not error. In People v. Mulier
(1968), 12 Mich App 28, this Court held such action was
reversible error. The cases are not in conflict, however;
factual differences permit each pronouncement to stand
without encroachment on the other. In Poole, a different
judge imposed the harsher sentence and reason for such
action appeared in the record. In Mulier, the same judge
imposed the harsher sentence for no. reason apparent on
the record. The distinction is noted in Mulier at page 33:

‘“‘To allow the imposition of a harsher sentence
after a rehearing, where the offense, the plea, and
the sentencing judge‘are the same as in the prior pro-
ceeding and the record is barren of any grounds tend-
ing to support the harsher sentence, unduly infringes
upon the constitutional right of appeal.’’

This case of Payne is stronger than Poole, supra. In
Poole, both convictions were by plea. In Payne, the first
conviction was by plea and the second was by jury verdict.
A trial affords more opportunity to hear all details, to
observe and judge a defendant than does a summary plea

antes
——eoo

“

43

proceeding, a fact noted by Judge Byrns. The trial judge
noted the right of every citizen to seek appellate relief
and the fact that obtaining such relief should in no way
affect a subsequent sentence. The trial judge then stated
that the sentence he was about to impose was not because
defendant had appealed but by reason of the nature of the
crime and impressions formed of defendant during 3 days
of trial. The trial judge noted that the statute under which
defendant was convicted authorized a life sentence or any
term of years, and except for defendant’s past history
(poor family background, good school, service and prison
records), a life sentence would have been imposed.

On this record, we conclude that we do not have super-
visory control over punishment within the provisions of
the statute, Poole, supra and that Mulier, supra, is inap-
plicable.

Affirmed.

ORDER AFFIRMING JUDGMENT OF BERRIEN
COUNTY CIRCUIT COURT
(Filed July 28, 1969)

AT A SESSION OF THE COURT OF APPEALS OF
THE STATE OF MICHIGAN, Held at the Court of Ap-
peals in the City of Grand Rapids, on the 25th day of June
in the year of our Lord one thousand nine hundred and
sixty-nine.
Present the Honorable
Timothy C. Quinn
Presiding Judge

Donald KE. Holbrook
Thomas M. Burns
Judges

This cause having been brought to this Court by appeal
from Berrien County Circuit Court, and having been ar-

eo eee eee

44

gued by counsel, and due deliberation had thereon, it is now
ordered by the Court, that the judgment of the Berrien
County Circuit Court be and the same is hereby affirmed.

Judge Thomas M. Burns, dissents.

STATE OF MICHIGAN—ss.

I, Ronald L. Dzierbicki, Clerk of thé Court of Appeals
of the State of Michigan, do héreby certify that the fore-
going is a true and correct copy of an order entered in said
court in said cause; that I have compared the same with
the original, and that it is a true transcript therefrom,
and the whole of said original order.

IN TESTIMONY WHEREOF, I have hereunto
set my havid and affixed the seal of said Court
of Appeals at Lansing, this 17th day of July in
the year of our Lord one thousand nine hun-
dred and sixty-nine.

(s) Ronald L. Dzierbicki
Clerk

DISSENTING OPINION

BEFORE: Quinn, P.J., T. M. Burns and Holbrook, J.J.
T. M. Burns, Dissenting

I coneur with my brothers’ disposition of all issues
raised in this appeal save the question of whether the im-
position of a more severe sentence upon retrial after the
defendant gained reversal of his prior conviction on consti-
tutional grounds is permissible. Upon this question of
more severe sentence on retrial, I must respectfully dis-
sent.

The majority here relies on an extremely tenuous dis-
tinction between the cases of People v. Poole, (1967), 7
Mich App 237, and People v. Mulier (1968), 12 Mich App

45

98, tased on the fact that here in Poole, supra, the judge
on trial was different than the judge in the original trial
whik in Multer, supra, the same judge presided over both
triak. Although this seeming distinction has been noted
receitly in People v. Parm (1968), 15 Mich App 303, it is a
distnetion without real meaning or substance.

Firther in Poole, supra the question of infringing upon
the constitutional right of appeal was not present. In
Pooe the defendant pled guilty then made a motion for
new trial on the ground that he had not been informed of
his ight to counsel at the arraignment.’ Even though the
defeadant had been represented by counsel at the arraign-
men, the trial judge granted motion for new trial and the
defadant pled guilty again. The question of imposing a
hardier sentence for exercising the right of appeal as
graited by the Constitution of this state was not raised.
{ Cont. 1963 art 1, § 20.

Tie majority mentions justification in the record for
incrasing the sentence upon retrial present in Poole and
here which was not present in Mulier and I suppose in
Parn, supra. After a careful review of the record in this
cease I fail to find anything that might legitimately be taken
into consideration in sentencing which was not known to
the udge at the first sentencing hearing in March of 1963.
The self-serving declaration of the sentencing judge that
he vas not imposing a harsher sentence because defendant
app'aled and that he was giving the defendant credit for
tim« served does not change the practical realities of the
situition.

) me effect of raising the sentence from 19 to 40, to 25 to

50 vith credit for time served when the defendant has al-

reay served almost 5 years is, at least, to deny him credit

for time served which is impermissible under Moore v.

Parle Board (1967), 379 Mich 624, which reversed 4 Mich

| . Apy 261. CLS 1961, § 769.11a (Stat Ann 1965 Cum Supp
§ 2%1083(1)).

jhe increased sentence which was imposed upon the de-
fenant here is clearly impermissible under the recent
Unied States Supreme Court case of North Carolina v.
Peace (No. 413), Simpson v. Rice (No. 418) (1969) 37 LW
460, even though the opinion of the court in that case

3 Se eee oe oo ee noc 2 ween
aed ; '

: |
46
which was signed by only three justices would permit a
harsher sentence under certain conditions.

Justice Stewart speaking for himself, Justice Brennan ;
and Chief Justice Warren said at p 4605:

“‘Due process of law, then, requires that vindictive-
ness against a defendant for having successfully at-
tacked his first conviction must play no part in the
sentence he receives after a new trial. And since the
fear of such vindictiveness may unconstitutionally
deter a defendant’s exercise of the right to appeal or
collaterally attack his first conviction, due process
also requires that a defendant be freed of apprehen-
sion of such a retaliatory motivation on the part of the

sentencing judge. |
‘*In order to assure the absence of such a motiva-
tion, we have concluded that whenever a judge im-

poses a more severe sentence upon a defendant after
a new trial, the reasons for his doing so must affirma-
tively appear. Those reasons must be based upon ob-
jective information concerning identifiable conduct
on the part of the defendant occurring after the time
of the original sentencing proceeding. And the fac-
tual data upon which the increased sentence is based
must be made part of the record, so that the constitu-
tional legitimacy of the increased sentence may be ful-
ly reviewed on appeal’’. (Emphasis added).

There is no such, ‘‘. . . objective information concerning
identifiable conduct on the part of the defendant after the
time of the original sentence (,)’’ in the record on appeal.
| Lacking this affirmative showing, a more severe sentence
cannot be allowed on retrial. North Carolina v. Pearce

(No. 413), Simpson v. Rice (No. 418), supra, p 4605.

Yet, I would join Justices Douglas and Marshall, and
Justice Harlan, who in separate opinions go beyond the
holding of the Court, and say that since the Court has
made the double jeopardy clause of the Fifth amendment
applicable to the states in Benton v. Maryland (No. 201)
(1969) 37 LW 4623, a harsher sentence may not be imposed

a . ‘iii

a

47

upon retrial after a successful appeal. North Carolina v.

Pearce (No. 413), Simpson v. Rice (No. 418), supra.*
The majority here, as in North Carolina v. Pearce, supra,

express the view as stated in Poole, supra, at 242 said:

‘‘Defendant knowingly took a risk in seeking a new
trial and should not be heard to complain because a
new minimum sentence may increase the time he might
serve.’’

The effect of the majority’s opinion here is to say to a
defendant whose constitutional rights have been violated
at trial that you may vindicate your rights, but if the ap-
peals court reverses the conviction, you may be given a
higher sentence which will cover the time you were illegal-
ly in prison even though you are ‘‘given credit for time
served’’, The majority opinion in this respect, is declar-
ing their adherence to the ‘‘total waiver’’ theory of double
jeopardy expressed in Stroud v. United States (1919), 251
US 15, 18 (40 S Ct 50, 64 L ed 130), which has been sub-
stantially undercut, if not totally placed in disrepute, by
Green v. United States (1962), 355 US 184 (78 S Ct 221, 2
L ed 199). North Carolina v. Pearce, supra, (concurring
Justices Douglas and Marshall, also Justice Harlan con-
curring and dissenting).

In Green v. United States (1962), 355 US 184 (78 S Ct
221, 2 L ed 199), the Court enunciated the “limited
waiver’’ doctrine for interpreting the double jeopardy
provisions of the Fifth Amendment. Under this doctrine
a defendant only waived the bar against double jeopardy
by appealing his conviction to the extent necessary for
his purposes. The effect of this doctrine is to forbid the
retrial of defendant for a defendant for a greater offense
than he was originally convicted of as an unconscionable
premium upon a successful appeal.

*This court held in People v. Bower ( 1966) 3 Mich App
585, 589 that the 5th Amendment double jeopardy clause
was applicable through the 14th Amendment.

a EEE IS

oo

48 f

Justice Douglas speaking of the effect of Green on the
practice of allowing a harsher sentence on retrial after an

appeal says: ,

‘‘The theory of double jeopardy is that a person i
need run the gauntlet only once. The gauntlet is the
risk of the range of punishment which the State or
Federal Government imposes for that particular con-
duct. It may be a year to 25 years, or 20 years to life,
or death. He risks the maximum permissible punish-
ment when first tried. That risk having been faced
once need not be faced again. And the fact that he
takes an appeal does not waive his constitutional de-
fense of former jeopardy to a second prosecution.
Green v. United States, 355 U.S. 184, 191-193.

In the Green case, the defendant was charged with
arson on one count and on a second count was charged
either with first degree murder carrying a manda-
tory death sentence, or second degree murder carry-
ing a maximum sentence of life imprisonment. The
jury found him guilty of arson and second degree
murder but the verdict was silent as to first degree
murder. He appealed the conviction and obtained a
reversal. On a remand he was tried again. This time
he was convicted of first degree murder and sentenced
to death — hence his complaint of former jeopardy.
We held that the guarantee of double jeopardy ap-
plied and that the defendant, having been ‘‘in direct ‘
peril of being convicted and punished for first degree
murder at his first trial’’ could not be ‘‘forced to run
the gauntlet’’ twice. 355 U.S. at p. 180.

It is argued that the case is different because there
were two different crimes with different punishments
provided by statute for each one. That, however, |
is a matter of semantics. ‘‘It is immaterial to the |
basic purpose of the constitutional provision against

—~ =e

>

-

double jeopardy whether the Legislature divides a
crime into different degrees carrying different punish-
ments, or allows the court or jury to fix different pun-
ishments for the same crime.’’ California v. Hender-

. gress te
iui 8

49

son, 60 Cal. 2d 482, 497, 35 Cal. Rptr. 77 (1963)
(Traynor, J.).

? From the point of view of the individual and his

' liberty, the risk here of getting from one to 15 years
for specified conduct is different only in degree from
the risk in Green of getting a life imprisonment or
capital punishment for specified conduct. North
Carolina v. Pearce, supra, at p. 4606.

~~?

Justice Harlan in a very scholarly opinion supports Jus-
tice Douglas’ reliance on Green. Justice Harlan says —
pp 4611-4613:

‘‘Given Benton, it is my view that the decision of this
; Court in Green v. United States, 355 U.S. 184 (1958),
from which I dissented at the time, points strongly to
the conclusion, also teached by my Brother Douglas,
aah, & , that the Double Jeopardy Clause of
the Fifth Amendment governs both issues presently
decided by the Court. Accordingly, I join in Part I
of the Court’s opinion, and concur in the result reached
in Part II, except in one minor respect.

Green v. United States, supra, held in effect that a
defendant who is convicted of a lesser offense included
in that charged in the original indictment, and who
thereafter secures reversal, may be retried only for
the lesser included offense. Mr. Justice Frankfurter
? observed, in a dissent which I joined, that:

‘As a practical matter, and on any basis of hu-
man values, it is scareely possible to distinguish a
case in which the defendant is convicted of a greater
offense from one in which he is convicted of an of-
fense that has the same name as that of which he was
previously. convicted but carries a significantly [in-
creased] ... punishment... .’’ Id., at 213.

Further reflection a decade later has not changed my
view that the two situations cannot be meaningfully
distinguished.

2
: 4
SELES II LT MEELIS IP GEM ID BOL BOT IBS TO A Oy

Ce RPTL TE

50

‘*Every consideration enunciated by the Court in

support of the decision in Green applies with equal

force to the situation at bar. In each instance, the 5
defendant was once subjected to the risk of receiy- !
ing a maximum punishment, but it was determined
by legal process that he should receive only a speci-
fied punishment less than the maximum. See id.. at

190. And the concept or fiction of an ‘implied ac-
quittal’ of the greater offense, ibid., applies equally {
to the greater sentence: in each case it was determined
at the former trial that the defendant or his offense
was of a certain limited degree of ‘badness’ or gravity
only, and therefore merited only a certain limited
punishment. Most significantly, perhaps, in each case

a contrary rule would place the defendant considering ,
whether to appeal his conviction in the same ‘in-
credible dilemma’ and confront him with the same

‘desperate choice.’ Id., at 193. His decision whether
or not to appeal would be burdened by the considera-
tion that success, followed by retrial and conviction,
might place him in a far worse position than if he re-
mained silent and suffered what seemed to him an un-
just punishment. In terms of Green, that the im-
position of a more severe sentence on retrial is a mat-
ter of pure chance, rather than the result of pur-
poseful retaliation for having taken an appeal, ren-
ders the choice no less ‘desperate.’

“‘Tf, as a matter of policy and practicality, the im- 7
position of an increased sentence on retrial has the
same consequences whether effected in the guise of
an increase in the degree of offense or an augmenta-
tion of punishment, what other factors render one
route forbidden and the other permissible under the
Double Jeopardy Clause? It cannot be that the pro-
vision does not comprehend ‘sentences’ — as dis-
tinguished from ‘offenses’ — for it has long been
established that once a prisoner commences service
of sentence, the Clause prevents a court from vacat-
ing the sentence and then imposing a greater one. See
United States v. Benz, 282 U.S. 304, 306-307 (1931);
Ex parte Lange, 18 Wall. 163, 168, 173 (1873).

a ————

51

‘*The Court does not suggest Otherwise, but in its
view, apparently, when the conviction itself and not
merely the consequent sentence has been set aside, or
when either has been set aside at the defendant’s be-
hest, the ‘slate has been wiped clean,’ ante, at 9, and*
the Double Jeopardy Clause presents no bar to the
imposition of a sentence greater than that originally
imposed. In support of this proposition, the Court |
relies chiefly on two cases, Stroud v. United States,
251 U.S. 15 (1919), and United States v. Ball, 163
U.S. 662 (1896). I do not believe that either of these
cases provides an adequate basis for the Court’s
seemingly incongruous conclusion.

‘*Stroud v. United States, supra, held that a de-
fendant who received a life sentence for first degree
murder could, upon securing a reversal of the con-
viction, be retried for first degree murder and scn-
tenced to death. However, the opinion does not ex-
plicitly advert to the question whether the Double
Jeopardy Clause bars the imposition of an increased
punishment, and an examination of the briefs in that
case confirms the doubt expressed by the Court of
Appeals in Patton v. North Carolina, 381 F. 2d 636,
644 (1967), whether this question was squarely pre-
sented to the Court. Assuming that Stroud stood for
the proposition which the majority attributes to it,
that decision simply cannot be squared with the sub-
sequent decision in Green v. United States, 355 U.S.
184 (1958), See, id., at 213; People v. Henderson. 60
Cal. 2d 482, 386 P. 2d 677 (1963).

‘‘The Court does not rest solely on this ambigu-
ous and doubtful precedent, however. Its main point
seems to be that to limit the punishment on retrial
to that imposed at the former trial ‘would be to cast
doubt upon the whole validity of the basic principle
enunciated in United States v. Ball,’ 163 U.S. 662
(1896), and its progeny. Ante, at 9-10.

“‘Ball held, simply, that a defendant who succeeds
in getting his first conviction set aside may there-

See fe

;
52

after be retried for the same offense of which he
was formerly convicted. This is indeed, a funda-
mental doctrine in our criminal jurisprudence, and
I would be the last to undermine it. But Ball does
not speak to the question of what punishment may
be imposed on retrial. I entirely fail to understand
the Court’s suggestion, unless it assumes that Ball
must stand or fall on the question-begging notion
that, to quote the majority today, ‘the original con-
viction has, at the defendant’s behest, been wholly
nullified and the slate wiped clean’, Ante, at 9.

“In relying on this conceptual fiction, the major-
ity forgets that Green v. United States, supra, pro-
hibits the imposition of an increased punishment on
retrial precisely because convictions are usually set
aside only at the defendant’s behest, and not in spite
of that fact. 355 U.S., at 193-194; supra, at 3: the
defendant’s choice to appeal an erroneous convic-
tion is protected by the rule that he may not again
be placed in jeopardy of suffering the greater pun-
ishment not imposed at the;first trial. Moreover, in
its exaltation of form over substance and policy, the
Court misconceives, I think, the essential principle |
of Ball itself: |

‘**While different theories have been advanced to
support the permissibility of retrial, of greater im-
portance than the conceptual abstractions employed
to explain the Ball principle are the implications of
that principle for the sound administration of jus-
tice. Corresponding to the right of an accused to be
given a fair trial is the societal interest in punish-
ing one whose guilt is clear after he has obtained such
a trial. It would be a high price indeed for socicty
to pay were every accused granted immunity from
punishment because of any defect sufficient to chnsti-
tute reversible error in the proceedings leading to
conviction.’ United States v. Tateo, 377 U.S. 436, 466
(1964).

«age

‘“‘To be sure, this societal interest is compromised
to a degree if the second judge is forbidden to impose
a greater punishment on retrial than was meted out
at the first trial. For example, new facts may develop
between the first and second trial which would, as
an initial matter, be considered in aggravation of sen-
tence. By the same token, however, the prosecutor
ble to prove only second degree murder
at the formdr trial might improve his case in the in-
terim and aqquire sufficient evidence to prove murder
in the first fegree. In either instance, if one views
the second tkial in a vacuum, the defendant has re-
ceived less punishment than is his due. But in both
cases, the compromise is designed to protect other so-
cietal interests, and it is, after Green, a compromise
compelled by the Double Jeopardy Clause.

53

‘*T therefore conclude that, consistent with the Fifth
Amendment, a defendant, who has once been convicted
and sentenced to a particular punishment may not on
retrial be placed again in ‘Jeopardy of receiving a
greater punishment than was first imposed. Because
the Double Jeopardy Clause has now been held appli-
i. cable to the States, Benton v. Maryland, supra, I would
affirm the judgment of the Court of Appeals in No.
418, and vacate and remand in No. 413, so that respond-
ent Pearce may finish serving his first, valid sentence.”

It is not necessary to premise this case, however, upon
the double jeopardy provision of the Fifth Amendment for.
that is at best only a minimum protection or bar. This
Court said in People v. Mulier, supra, p 33, that a more
cogent ground for decision would be on the basis of pro-
tecting the right of appeal which is granted by the Mich-
igan Constitution, Chief Judge Lesinski, speaking for the
Court in People ». Mulier, supra, said at 32-33:

“‘An enlightened concept of the protections which
the law affords the accused at each step of the judicial
process has caused the Courts to re-examine the in-
herent fairness of the distinctions previously drawn to
justify the imposition of harsher sentences under
almost any set of circumstances,”

é 54 |

I*believe that the imposition of a greater sentence or the

same sentence without credit for time served, upon retrial —

of a defendant who has vindicated his constitutional rights ;
by exercising his right of appeal, unduly chills the right
of appeal.

In People v. Henderson, supra, p. 492 the Court went |
on to hold that California’s constitutional provision against |
double jeopardy prevented the imposition of the death |
penalty upon defendant after reversal of a judgment sen- |
tencing him to life imprisonment.

‘¢A defendant’s right to an appeal from an erroneous
judgment is unreasonably impaired when he is re-
quired to risk his life to invoke that right. Since
the state has no interest in preserving erroneous judg-
ments, it has no interest in foreclosing appeals there- |
from by imposing unreasonable conditions on the right }
to appeal.’’

See People v. Ali (1967), 57 Cal Rptr 348 (424 P 2d 932),
where the same court applied the Henderson rationale to
a situation where defendant has been sentenced to concur-
rent terms at the original trial and to consecutive terms
after a successful appeal and subsequent reconviction for
the same offense.

In State v. Wolf (1966), 46 NJ 301 (216 A 2d 586), 12
ALR 3d 970, where the Supreme Court of New Jersey
held that the prosecution was barred from seeking the
death penalty at the new trial; the defendant received a

life sentence upon his conviction for murder in the first
degree and the death sentence on retrial after an appeal.
The Court reasoned that since the state granted a con-
victed murderer the unqualified right of appeal, standards
of procedural fairness forbid limiting the right by requir-
ing the defendant to barter with his life for the privilege
of exercising it.

In State v. Turner (1967), 247 or 301 (429 P 2d 565, 570,
571), the Supreme Court of Oregon, following the lead
taken in State v. Wolf, supra, and People v. Henderson,
supra, promulgated the following procedural rule to be ap-
plied in all cases to assure the criminal defendant the
unfettered exercise of his statutory right of appeal:

cre a
55

‘‘After an appeal of post-conviction proceeding has
resulted in the ordering of a retrial for errors Other
than an erroneous sentence, * * * and the deféndant
has again been convicted, no harsher sentence can be
given than that originally imposed. If the initial
sentence was incarceration, the defendant subsequently
cannot be sentenced to any longer term than the time
still to be served upon his initial sentence.’’

This is the rule which I would have this Court adopt in
this case. The majority here would force a defendant
whose constitutional rights had been violated in a way
which résulted in an invalid conviction to suffer this vio-
lation for the fear that on retrial he would be given an
even greater penalty. I do not believe that such a price
can be exacted for invocation of a right. I would reverse
and remand for resentencing with the sentence imposed at
the first trial as a maximum and with credit for time
served. :

APPENDIX C — ARRAIGNMENT TRANSCRIPT
(Filed January 3, 1963)

*
People of the State of Michigan
vs.
LeRoy Payne, Respondent
Case No, X-751 Dated December 14, 1962
Action: Arraignment

Appearances :

Hon. Philip A. Hadsell, Circuit Judge
Atty. Frederick Lake, Assistant Pros. Atty.
Atty. Philip A. Brown, Atty. for Respondent

a

56

MR. LAKE: May it please the court, this is the matter
of the People of the State of Michigan versus LeRoy Payne,
here on an information charging the crime of assault with
intent to commit murder. This is the Court’s Docket X-751.

Mr. Payne is represented in court by his attorney, Mr.
Brown, of St. Joseph, and the record will show that a jre-
liminary examination was had on this charge, and in the
Municipal Court for the City of Benton Harbor, and that
the respondent was bound over to this court to answer to
this information.

(2)

Mr. Brown, will you waive further reading of this in-
formation at this time?

MR. BROWN: Respondent waives further reading of
the information at this time, your Honor.

‘ T have gone over the elements of this offense with the
respondent quite extensively. I have explained to hinr his
various rights; his right to a jury trial; his right to plead
guilty to the offense; his right to plead not guilty. I have
also explained to him the maximum penalty, upon a con-
viction, of this crime.

We have had a preliminary examination on this charge,
and the People have shown probable cause here, and he
was bound over.

T have also explained to him that regardless of any prom-
ises of any kind, of leniency, as to entering a plea of guilty,
this was in no one’s control but the court, and that the,
maximum penalty was life, or any term of years, for a
conviction under this charge, and I have explained, as I
said, the various rights to the respondent, under the con-
stitution and the statutes, and the respondent has advised
me that he wishes to tender a plea of guilty to this offense
at this time.

THE COURT: Mr. Payne, you have heard what your
counsel has said? Is that a correct statement (3) of the
facts?

THE RESPONDENT: Yes, sir.

THE COURT: In this case, due to the publicity that
I have read, which may or may not be true, I want to
be very careful that you understand exactly what you are

GOL LTS MIT a See OE

—

,

o7

doing, and that you are not doing it because of any reason
other than that you are guilty.

I take it from the examination and from your counsel
that the People can prove you guilty of this charge beyond
a reasonable doubt, without any use of an alleged confes-
sion that was included in the case, as I understand it. SIs
that correct? e

THE RESPONDENT: Yes.

THE COURT: In other words, I am informed that
there was a positive identification by the victim, by Victor
Yost, or another officer that was with him, of your identi-
fication. Do you understand that to be the fact?

THE RESPONDENT: Yes, sir.

THE COURT: And is that the fact?

THE RESPONDENT: Yes, sir.

THE COURT: [also have been informed that you signed
a confession to this crime, but that before vou signed it
you received some physical harm at the hands (4) of some-
body, but that you have stated that vou do not wish that to
be considered in this matter, is that correct?

THE RESPONDENT: Yes, I’m pleading guilty because
I am guilty, and I’m sorry about it.

THE COURT: That comes up later. If the court is
satisfied to accept your plea of guilty, then that part about
your reformation, if any, comes at a later date, and is
taken into consideration by the court in passing sentence,
or possibly taken into consideration. There is nothing that
you can be sure of, if your plea is accepted, except that
you'll be sentenced in some manner by the court for this
crime, to which you are pleading guilty. |

I don’t know as you have stated on the record that vou
do plead guilty. Is that true?

THE RESPONDENT: I do-plead guilty, sir.

THE COURT: Did you, on the 5th day of November,
1962, at the City of Benton Harbor, in Berrien County,
Michigan, feloniously assault Victor Yost with a gun, as
I understand it — although it isn’t so alleged — and that
you then and there intended to kill and murder?

THE RESPONDENT: Yes.

THE COURT: Nobody has promised you leniency or

lm

a
58

threatened you, to get you to plead guilty? (5) And you
are pleading guilty because you did do that?

THE RESPONDENT: I have been threatened, sir,
but it’s not because of these threats that I’m pleading

guilty.

THE COURT: You had threats, but you are not plead-
ing guilty because you were threatened, is that correct?

THE RESPONDENT: Yes.

THE COURT: And nobody has promised you that you'll
get a shorter sentence because you are pleading guilty,
than if you pleaded not guilty? Is that correct? Nobody
has promised you that you’ll get a shorter sentence?

THE RESPONDENT: Well, sir, I mean I have talked
to.so many policemen and all. They said that it would
be likely that if I did cooperate that —.

THE COURT: Now, if anybody has told you, or if you
are of the opinion that you may get a shorter sentence
if you plead guilty than you’d get if you pleaded not guilty,
that’s wrong. That will have. no bearing on the sentence
of the court. At least it won’t if I do it, and I think Tl
probably be the one that does: it.

Do you understand me now?

, (6)

THE RESPONDENT: Yes, sir.

THE COURT: It doesn’t make any difference to me
whether you plead not guilty or guilty. In fact I can’t
accept a plea of guilty until I’m convinced that you are
euilty, and you are the only one that can convince me now,
because we can’t try the case here today. We simply are
trying to find out what you want to do, and your counsel
has stated — and I’m sure he wouldn’t state it if it wasn’t
true — that he has told you that you have a right to a trial,
a jury trial, and he told you all these rights, and you under-
stand that? .

THE RESPONDENT: Yes.

THE COURT: You don’t want a jury trial, and you
want to plead guilty, is that correct?

THE RESPONDENT: Yes.

THE COURT: You want to plead guilty because you
are guilty?

Lr Seek ey CG Eg NG EN ROTI LS WR REEL Ta

_

09

THE RESPONDENT: Yes.

THE COURT: Very well. The court feels the plea of
guilty is freely, voluntarily and understandingly made,
without undue influence, compulsion or duress, and without
promise of leniency, and it is therefore accepted.

You are remanded to the custody of the sheriff to (7)
await sentence.

The probation officer of this court will convey to the
court anything that you wish the court to know, before
sentence is pronounced. It will take several days, maybe
weeks, to complete the case in the probation department,
so that I may have the proper information before sentence
is pronounced.

That’s all.

APPENDIX D — SENTENCE TRANSCRIPT
(Filed March 19, 1963)

(1)

People of the State of Michigan vs. LeRoy Payne, Case No.
X-751, Dated March 8, 1963. Action: Sentence.

Appearances:

Hon. Philip A. Hadsell, Circuit Judge
Atty. Philip A. Brown, Atty. for Respondent

THE COURT: Mr. Payne, you are before the court
for sentence, having pleaded guilty to assault with intent
to murder.

I have talked with your counsel. I have a very compre-
hensive report from the probation department relative to
your case. I heard your testimony in the case of the People
versus Lionel Bradford. I have, I think, all the facts that
I need, in mind.

Do you have anything to say, or does your counsel] have
anything further to say? I have already talked with him,
of course.

60

(2)

THE RESPONDENT: I’d like to say, your Honor,
that I am sorry. I know that I was wrong.

-THE COURT: I understood that that was your posi-
tion.

MR. BROWN: I have nothing further to convey to the
court, your Honor, having already talked to you.

THE COURT: Very well.

Starting with your honorable discharge from the U.S.
Army in 1960 — from then on, according to your own ad-
missions, you have been the type of citizen, or were the
type of citizen, until the time you committed this crime,
that would, to my mind, require elimination from society
from now on.

If there is any distinction at all between superlatives,
the assault of an individual with intent to murder is very
bad; assault with intent to murder a policeman is worse,
if, as I say, if there is any distinction between superla-
tives, because that’s not only an attack upon the individual,
it’s an attack upon society; an attack upon a representative
of society as a whole.

As I say, from that side of the picture it would require,
in my opinion, your complete elimination from (3) socicty.

Now, on the other side of the question, you have volun-
tarily admitted — if I remember the number correctly —
eighteen breakings and enterings prior to this time, or
maybe including the one that you had committed just
before you committed this crime.

According to your testimony, several representatives of
society were guilty of unpardonable actions in connection
with their treatment of you. Now, at least some of those
could possibly be explained, if not excused, by the fact, that
you had shot a deputy sheriff with intent to kill him. How-
ever, you have been impo:tuned quite strongly, as I under-
stand it, by representacives of your race, and your own
mother, that they should be prosecuted for their actions in
that connection, and you have stated, according to my in-
formation, that you made a mistake, and you are asking
forgiveness for that, and that they made a mistake, and
that you are willing to forgive them their mistake.

i a a Oo a a

—_
| 61

I am also reliably informed, and have come to the con-

clusion myself, that the normal reaction we get from pris-

| oners who are awaiting sentence, that they are going to

get religion. In your case I feel it’s an honest one, which

quite frequently it’s not. At least I have (4) become con-
vineed of that.

- The sentence that I am about to impose on you will
give you hope of returning to society after a — what I
consider a reasonable length of time, providing that you
are honestly desirous of reformation and have a change
of these past actions that you have been guilty of since
you got out of the army, and that you are intelligent enough
to becomé a useful member of society after you have paid
your debt to it.

I am also informed — maybe not reliably — that the
two gentlemen against whom you gave testimony, name-
ly Charles Hawkins and Lionel Bradford, have made
threats upon your life, or if not that, upon causing you
physical injury, so I recommend to the prison authorities
that you be not incarcerated in the same place that they
are, or at least not where you will come in contact with
them, or they with you.

If I’m correctly informed, and I’m quite sure TI am,
the sentence I am about to impose on you will permit you
to be subject to parole approximately ten years from
this date, which will give you an opportunity, if you
take advantage of the time that the statute gives you,
and the extra good time that you can acquire in the peni-
tentiary, of returning to society, assuming that you do
(5) convince them, also, that you are that type of indi-
vidual that should be turned loose in society.

It is the judgment of this court that you be committed
j to the Michigan Corrections Commission at the State
Prison of Southern Michigan, Township of Blackman.
County of Jackson, under the provisions of the Michigan
Code of Criminal Procedure, and the Michigan Penal
‘Code, and the amendments thereto.

IT fix the minimum term of such imprisonment at nine-
teen (19) years from and after this date. I fix the maxi-
mum of such term at forty years (40) from and after
this date.

=
62

- You are remanded to the custody of the sheriff for
transmittal to Jackson.

APPENDIX E — TRANSCRIPT OF SENTENCE
(Filed September 8, 1967)

(1)

People of the State of Michigan vs. LeRoy Payne. Case
No. X-751. Date 30 August 1967. Action: Sentence.

Appearances: \

Hon. Chester J. Byrns, Circuit Judge
Atty. Philip Brown, Atty. for Respondent

THE COURT: This is the matter of the People of the
State of Michigan versus LeRoy Payne here on a con-
viction of guilty to the crime of assault with intent to-com-
mit murder, which verdict was rendered in Kent County, on
the request of the Defendant for a Change of Venue to get
a jury that might have and did have no connection what-
soever with any local media of communications. With Mr.
Payne is his attorney, Mr. Philip Brown, of St. Joseph,
Michigan. Mr. Brown, is there any reason why sentence can-
not be pronounced at this time?

MR. BROWN: I know of no reason, Your Honor. I
previously conferred with the Court regarding sentence.

(2)

THE COURT: Mr. Payne, is there any reason why I
should not pronounce sentence now?

THE RESPONDENT: No, sir.

THE COURT: Mr. Brown, you have spent some time
with me arguing very eloquently and ably on behalf of
your client tawards mitigation of sentence. Is there any-
thing further that you wish to say?

63

I would like to note that I have discussed this with the
officer making the pre-sentence investigation as well. Is
there anything further that I should consider before pro-
nouncing sentence — any circumstances you wish me to
consider ?

THE RESPONDENT: I have* nothing to say, Your
Honor.

THE COURT: Mr. Payne, you are living proof of the
tremendous rights given under our law to protect the inno-
cent even though at times, such rights may shield the
guilty. You have enjoyed rights and you will enjoy them
hereafter, which the average man who would have to pay
his own way could not afford.

First, you have been furnished counsel, Mr. (3) Philip
Brown of St. Joseph, who has done an outstanding job
on your behalf and you have good reason to know. not
only from his relentless efforts in getting an appeal to
win you a new trial, but, as I think the record of trial
itself ‘will show, he did an excellent job in your defense
in the three days that w® were in Grand Rapids.

Second: On an appeal brought by you, the Michigan
Court of Appeals sent this case back to Berrien County to
hear your complaint about the police handling of_y6u fol-
lowing the arrest which caused your confession and plea
of guilty to be non voluntary.

Third: Because there was some question as a result
of the handling of you by a few officers following your
arrest, which we trust will never happen again in this
County, they gave you every benefit of the doubt. Your
guilty plea was set aside and your confession was sup-
pressed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0150%3A2. Public record. Not legal advice.