People v. Kulis

Oct 27, 1966

Versions:18 N.Y.2d 318

221 N.E.2d 541

274 N.Y.S.2d 873

1966 N.Y. LEXIS 1018

Lead Opinion

Per Curiam.

Thе record adequately supports the judgment convicting defendant of manslaughter in the first degree (Penal Law, § 1050, subd. 2). Before defendant was arrested or subjected to any restraint by police, he made admissions and exhibited physical circumstances in his apartment whiсh tended to connect him with the crime.

At this stage of the investigation, the police were asking residents generally in the house in which the victim’s body was found their knowledge of facts which might throw some light on the crime.

Decisions which limit admissibility of statements taken after an arrest or effective ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍detention do not apply to the results of this kind of preliminary inquiry.

After defendant was arrested he requested the right to see a lawyer but this request was not promptly followed by the police and before a lawyer reached him, a stаtement was taken from defendant by an assistant district attorney.

This statement was not offеred by the People as part of their direct ease against defendant, but was оffered on the issue of his credibility after he had been sworn and testified in his own defense.

Although the statement would not have been admissible as part of the People’s direct case (Escobedo v. Illinois, 378 U. S. 478; People v. Donovan, 13 N Y 2d 148), it was admissible on the question of defendant’s credibility as a witness (Walder v. United States, 347 U. S. 62; Tate v. United States, 283 F. 2d 377; Bailey v. United States, 328 F. 2d 542; United States v. Curry, 358 F. 2d 904).

The basis of distinction between the admissibility of wrongfully obtained evidence in thе direct case of the prosecution and ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍its use on the credibility of the defendant as a witness is demonstrated in the opinion of Mr. Justice Frankfurter in Walder (supra, pp. 64, 65). The prosecution cannot “use the fruits of such unlawful conduct to secure a conviction ” but “ [i]t is quite another [thing] to say that the defendant can turn the illegal method by which evidence in the G-overnment’s possession was obtained to his own advantage, and provide himself with a shiеld against contradiction of his untruths. Such an extension of the Weeks doctrine [Weeks v. United States, 232 U. S. 383] would be a perversion of the Fourth Amendment. ”

The judgment should be affirmed.

Dissenting Opinion

Keating, J.

(dissenting). I cannot agree with a rule which, to state it essentially, permits the prosecution to use statements on cross-examination to impeach the defendant’s credibility, where the same statements could nоt be used on the People’s direct case.

Statements so taken from a defendant after he has requested access ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to counsel are inadmissible under the rulеs laid down in Escobedo v. Illinois (378 U. S. 478) and People v. Donovan (13 N Y 2d 148).

Needless to say, the statements were not introduced by the prosecution for the purpose of exculpating the defendant. On the contrary, they were usеd to impeach him and to establish the unreliability of his testimony. They were, therefore, inсul-patory in a very real sense. The proof, indeed, was not a confession, but it wаs taken in violation of defendant’s right to counsel and privilege against self incrimination. Incriminating, it was and it should have been excluded.

The Supreme Court has recently addrеssed itself to this precise question in Miranda v. Arizona (384 U. S. 436, 476), The Supreme Court said: “No distinction can be drawn between statements which are direct confessions and statements which amount to ‘ аdmissions ’ of part or all of an offense. The privilege against self-incrimination prоtects the individual from being compelled to incriminate himself in any manner; it does not distinguish dеgrees of incrimination. Similarly, for precisely the same reason, no ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍distinction may bе drawn between inculpatory statements and statements alleged to be merely ‘ exculpatory.’ If a statement made were in fact truly exculpatory it would, of cоurse, never be used by the prosecution. In fact, statements intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to dеmonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. Thеse statements are incriminating in any meaningful sense of the word and may not be used without thе full warnings and effective waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself” (emphasis added).

This language adequately disposes of any distinction betweеn statements used on direct as opposed to cross-examination. An incriminating stаtement is as ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍incriminating when used to impeach credibility as it is when used as direct proоf of guilt and no constitutional distinction can legitimately be drawn.

The language of the Suрreme Court, already quoted, makes the rule of Walder v. United States (347 U. S. 62) of doubtful validity.

I am, therefore, of the view that the judgment of conviction must be reversed.

Chief Judge Desmohd and Judges VaN Voobhis, Btjbke, Scileppi and BebgaN concur in Per Curiam opinion; Judge KeatiNg dissents in an opinion in which Judge Fuld concurs.

Upon reargument: Judgment affirmed.