People v. Marsh

Arp tDcc v. MARSH PEOPLE op the Court Applicability Challenge Law—Retrial—Failure 1. Criminal op Requirement—Appeal and Error. Miranda prior to the effective date was convicted Where defendant (June 13, 1966), warning requirement and retried Miranda judge held his statement retrial the trial thereafter, on the and warning, give the Miranda of failure to because inadmissible retrial or on challenge, either at the People failed and retrial, applicability after appeal from the conviction significance of the failure to retrial, requirement at appeal on and warning will not be decided required give the deemed inadmissible will be defendant the statements judge held. the trial Process—Evidence—Confession—Impeachment. Same—Due 2. inquire, allowing both on cross-exam- prosecution Trial court’s witnesses, into by calling other cer- and of defendant ination by defendant in statements made tain admissions evidence, impeach- in inadmissible themselves which were on examination had said direct purposes after defendant ment held, question revers- the murder had never admitted that he if does not take error; inadmissible defendant for evidence ible if he does take the stand. equally inadmissible the stand is op Process—Trial—Argument Samp,—Due Counsel. 3. made de- to statements reference summation Prosecutor’s evidence, to rebut defend- were inadmissible fendant that story to tell his had never had a chance that he ant’s assertion held, improper. ^[1] [2, [3] [4] 29 Am Jur 5-7] 5 Am Am Am Jur Am Jur, Jur, References 2d, 2d, Appeal Jur, United Trial Evidence § Witnesses § States Courts 469 et for Points Error § seq. 773. et seq. § § in Headnotes 744 et seq. Bights—Federal Question. Law—Waiver 4. Constitutional right federally guaranteed constitutional has The claim question Federal law. presents controlled been waived Bights—Evidence—Presumption. Law—Waiver of Criminal open the use an inadmissible con- not of does door Defendant attorney’s in by denying response to his fessional statement made questioning he had it. ever Dissenting Opinion

Sullivan, J. — — (cid:127)— — Due Evidence Confession Law Process S. Criminal Impeachment. — Witnesses defendant, during by prosecution cross-examination of Reference witness, voluntary but inad- means a rebuttal to a of impeach solely denial missible defendant’s of confession permissible. guilt on his direct examination is Process—Privilege Against 7. Same—Due Self-Incrimination— Defendant—Impeachment. of Cross-Examination stand; cannot be to talce the in a criminal case forced Defendant does, prior opens his but once he the door the use vol- impeach untarily contradictory him. made statements to B.), Appeal (Rex from Martin J. Sub- Lenawee, (Dock- Lansing. August mitted 2,1967, Division at 2,844.) No. 1968. Leave et December Decided appeal granted February 381 Mich 804. 20,1969. degree of first Fred was convicted Charles Marsh granted 1966. De- murder in trial 1941. New again degree murder. De- fendant of first convicted appeals. for new and remanded fendant trial. Reversed Kelley, Attorney Frank Robert A. General, J. Derengoski, Harvey A. Kosel- General, Solicitor people. Prosecuting Attorney, ka, for the Beardsley, for J. C. defendant. Apr Mici-i In Fred Marsh was convicted Levin, degree following plea guilty. his

first murder judge granted the circuit Marsh new trial because deficiencies conviction. authority trial, Prior to new on the of Miranda (1966), 384 v. Arizona L Ed US 436 Ct 1602, judge suppressed 10 ALR3d 2d given by a written statement 1941 to the attorney. prosecuting deny

At the new trial Marsh testified. He not did killing Berger. question jury Herman The deci- sion or guilty was whether the defendant of first was degree manslaughter guil- second murder, ty. jury’s degree' verdict was first murder. judge

Marsh claims that the circuit al- erred in lowing, purpose impeachment, questions for the put testimony sup- concerning to pressed to him and given prosecutor

1941written statement allegedly by and oral statements made Marsh to police shortly apprehended. officers after he was years

At the time of the Marsh crime was 5th-grade drop-out, old, a a well-known waif with living relatively no settled in a residence, small town. slept might He wherever a bed be offered him. For living jobs” a he did “odd about town and was em- by, ployed among others, Chaloner’s which store, Berger manager. was night

Marsh testified at on trial that Berger’s apartment request crime he went to place sleep night, for the that after a few moments request Berger conversation and refusal of the up calling Jumped [Marsh] “started me thieves. pushed got struggle.” from the chair me, and in a Berger struggling Defendant remembered with and tying Berger’s tie around neck. Evidence showed Berger’s by nerve, death was caused of a severance being pushed in turn from a ruler which resulted v. Marsh op tee Court ponred into ink was A bottle of his throat. down Berger’s of death. not the cause that was month, bnt struggle Berger be- after the claims that

Marsh calling quiet, he became “names,” him ceased came key frightened, Berger’s chain on ink were wallet and saw nearby [from the ruler and which desk a taken] ran these.

and with key, key store chain was the Chaloner’s On the he the store. There used to enter which defendant safe some $200 store from the unlocked took receipts. receipts Express were American containing registers away. mon- cash thrown Three night ey Marsh left Later that were untouched. apprehended by He Toledo, Ohio. was taxi town by police brought Pennsylvania back on a bus county for trial. to Lenawee Pennsylvania Michigan trip state- from

On the allegedly killing concerning were made ments accompanying "When officers. Marsh Michigan gave the state- written Marsh reached ment, prosecut- suppressed to the assistant attorney, arraigned, pleaded guilty, ing was was sanity convicted of commission and examined imprison- degree to life and sentenced first murder ment. exami- on direct 1966trial testified

At the : nation anything you stated, ever admitted “Q. Now, have you store intended to rob Ohaloner’s of the sort Berger Mr. ?

or to rob I such a statement. No, sir, never made “A. “Q. you Did intend do so? No, sir. “A. you ? “Q. kill Herman Did intend to No, sir. “A. you during “Q. Did to kill even Herman, intend struggle ? sir.” No, “A. [Deo 14 Opinion op the Court objection judge prose-

Over tbe circuit allowed the question on cutor to Marsh cross-examination con- cerning the 1941 oral written and purpose impeaching testimony Marsh’s that he Berger did not intend to kill rob and had never anyone objection, to admitted he did. Also over prosecutor question the officerswho escorted was allowed one of the Pennsylvania from con- cerning allegedly during oral statements made that journey. judge gave The circuit three reasons for rulings: (1) “proper, legal the statements were testimony rebuttal” direct that defendant’s he go Berger’s apartment did not to rob and that (2) though he told one did, no he the statements, in- “voluntary” in chief, admissible “coerced” were because not by ques- (3) the traditional sense, and tioning defendant on direct about examination * * * statements, defense counsel “lifted the lid opened the door” their use as means of im- peachment.

I. Jersey (1966), Johnson New 384 US 719 16 L Ed 2d the United States Su- preme applicable only held Court Miranda to trials beginning after the date, Miranda decision June originally years prior 1966. Marsh was convicted 25 to Miranda. The which trial resulted the con- appeals viction which from followed Miranda. appeal people Neither at trial nor on this have the inapplicable contended Miranda in a ease originally such as this where the defendant was con- prior newly victed to Miranda and tried1 after Proceedings 187, 193. § 28.550]), examined 1 Following regarded § to determine aas Marsh’s 1941 (presently “trial.” witnesses “to determine the CL See plea degree guilty, § 750.318 v. Roberts guilt are not court, pursuant [Stat degree Ann 1954 Rev necessarily 211 Mich crime.” CL to 523 People v. op the Court Miranda. not before Accordingly, question us and is no opinion not decided.2 We intimate question thereon. We defer consideration of that to a case where it has been raised and properly of that question require briefed. Resolution would exploration involved thorough policies problem retrospectivity-prospectivity,3 possible decisional conflict between and Fed- State eral courts within the State.4 note that this prospective

We Court has held the 359 People (1960), decision v. Hamilton Mich 410, retrial where the trial applicable original occurred before Hamilton but new trial was grant- 2 touching problem, 16 Of the eases we find 11 decide Miranda apply (CA 5, 1966), Gibson should F2d State v. State at retrials: United States 363 v. 146; (1966), (416 601); State v. Brook 101 Ariz 168 P2d People (1966), (143 458); 31 412 NW2d v. Wis 2d Shoffner Doherty 857, (1967), (59 Rptr 177); 67 2d 9 Cal 429 P2d Cal — — States, (1966), (221 815); Bradshaw RI A2d United v. Pierce, (D NJ, 1966), Supp 729, (CA ex rel. F v. Pinto 259 aff’d per 3, 472, 1967), grounds 374 curiam F2d reversed on other sub (1967), (88 nom Pinto v. Pierce 192, 389 US 31 19 L Ed 2d 31); (1966), (421 305); State v. Ruiz 49 Hawaii 504 P2d Creech Sayers (Ky, 1967) (412 People 245); v. Commonwealth SW2d v. (1967), App (284 28 481) ; Div 227 State 2d NYS2d v. McCarther (1966) , (416 290); Kan (1967), 279 P2d State v. Jackson (155 NC 773 SE2d Miranda apply: Five decide should not People (277 v. LaBelle 847); 53 Misc. 2d 111 NYS2d State Vigliano (1967), People v. (232 129); Worley 50 NJ 51 A2d v. ),- (1967) , (227 746); 37 Ill 2d 439 NE2d Jenkins v. State (1967 — (230 Maryland 262); Del App Boone A2d v. State 3 Md 787). See, also, People dissenting opinion A2d Sayers, supra, App 227, v. Div 2d 481, 230-232 NYS2d 482, 484). Supreme The United granted States Court has certiorari to review State, supra, Jenkins v. 37 L W November 1968. People Doherty See Vigliano, supra v. and State v. footnote divergent holdings good but policies discussions of underlying prospectivity Mich People See, also, Fordyce Miranda. (1966), 378 211, where disruption the Court noted the judicial ad- ministration which would result if new granted trials could be on ground of Miranda. new granted Marsh’s trial was not on that ground. 4 Compare the holding in Commonwealth v. Little (1967), 210 Pa Super 418, (232 A2d States, United with ex rel. Smith v. Brierly (ED Pa, 1967), F Supp 274, States, and United ex rel. Staino, Brierly (ED Pa, 1967), 269 Supp F 753. [Deo 14 App Opinion op the Court grounds on other than

ed Hamilton. v. Be sonen 4 Mich people challenge The failure of the Miranda’s s5

applicability appeal preclude on this the issue being at from raised the time of the new trial herein unnecessary appeal makes it on this ordered and give significance consider the of failure to to required question warnings Miranda where the one of in a voluntariness the traditional sense governed by pre-Miranda case law.6 people Nor do the that oral assert the accused’s governed by are different from a rule applicable that to the statement.7 written opinion proceed purposes For on of this we assumption trial confession, 1941 as the that the judge is inadmissible. found,

II. majority rule was that an Prior Miranda the qualified “involuntary properly confession or not impeach person may who accused used to an not be For in his behalf.” witness stand own takes the opposing supporting see view, decisions and tions claims 1015, S distinction also, States Rptr 313, 317, 389 P2d supra, inculpatory Arizona, supra, a distinction between ^[5] Ct ^[6] As a People In this connection see the United States length of this 707, 709, 710 People 1761, in Davis v. 1017); pp piecemeal. (CA 10, 372 US general v. Underwood ^[16] to both “confessions” or exculpatory.” v. 5B L Hamilton, p Ed 2d 293, 1967) rule, parties CJS, Appeal North Carolina (87 litigation that rule is here invoked. 476. construed State v. “confessions, 308, n 4 S Ct 937, 941). 895). See, Likewise, supra; People (1964), 61 Cal 2d 1338, Loveless F2d People will 305, (1966), admissions and not be this Error also, L (1944), Hamilton, supra, Ed 2d 309, 310; Miranda rule Court v. Clewis v. Texas “admissions.” Miranda 745, 9 § permitted 384 US Besonen, supra. 1825, p 197. Supreme Court’s observa 423) ; ^[62] L Nev 312 statements, People Townsend 737, Ed 2d Coyote without applies present 740, v. (1967) 386 In view of forbidding 770); (150 P2d v. Besonen, ^[741] whether (37 Cal v. Sain United their see, (86 v. v. op tiie Court Impeachment Annotation, of accused as witness involuntary properly use of qualified or not con fession, 89 ALR2d 478, 479.8 The decisions dis prior cussed that annotation were decided Malloy Hogan (1964), 1US Ct 1489, 12 L Ed 2d which held the Fifth Amendment applies to the States via the Fourteenth Amend govern ment, application. and Federal standards its In See re Colacasides Mich 69, Supreme the United States Court held illegally that use of seized, and therefore inadmis- [cocaine] impeach sible, evidence the defendant was a right violation of his Fifth Amendment compelled to be to incriminate himself. On cross- examination the defendant had denied he ever had seen the seized narcotics. The court ruled that the nothing defendant “did waive constitutional protection justify respect or to cross-examination in evidence claimed to have been obtained Agnello the search.” v. United States (46 145). 20, US 35 4, S Ct 70 L Ed exception exclusionary An recog- to the rule was (1954), nized v. United Walder 62 States 347 US (74 503). L S Ct 354, 98 Defendant was on Ed trial for illicit in narcotics transactions under 1952 indictment. He on testified direct “I examination, anyone any my have never sold narcotics life,” possessed and that he had never narcotics. The illegally the court held introduction of evidence impeachment permissible in 1950for because seized beyond a mere denial of com- “the defendant went * * * plicity sweep- and made the in the crimes essence certain ^[392] before ^[8] Cf. (40 the Silverthorne Lumber Co. v. way of a court, is that provision but not 64 L merely forbidding Ed it shall evidence so not be used United States where the the acquisition of evidence in a acquired shall not be Court at all.” (1920), observed: ^[251] “The used 385, App of Court possessed

ing in or he had never dealt claim that 65) (p any narcotics.” emphasized illegal evi- that the 1950 The court proof guilt relate to of defendant’s dence did not answer indictment and that it was in the 1952 under beyond “sweeping claim” defendant over criminal elements: the denial guarantees a defend- course, “Of the Constitution opportunity to meet the accusation ant the fullest deny against ments the ele- all him. He must be free giving against thereby him to introduce case without government by way re- leave to illegally by it, and secured there- buttal evidence (p 65) not available its case chief.” fore for supplied.) (Emphasis consistently exception lim- has been The Walder concerning impeachment matters which do ited to guilt, matters innocence or bear on defendant’s indict- criminal under the to the elements unrelated ment.9 Appeals for the Dis-

The United States Court post- recently summarized trict Columbia Walder law: inad- an we have held that [Walder], “Since then only de- can be used when

missible statement fendant makes beyond go ‘sweeping far claims that (1965), charged,’ [White v. United States the crime (349 968)] App is im- F2d DC proper relating peached to ‘lawful on a statement (1960), App [Tate DC acts’ United States dence for a review monwealth v. people’s F2d Walder, collateral See 904, but Kent, Miranda v. Arizona brief directs 241 Cal approved to the issue of Impeachment Purposes, 18 Western Ees of eases Wright that case is not questioning us to United States 2d following Walder. guilt. 51, 415 Pa in defendant point. — Cal 55, 60 The Use v. Rptr 215, 218), The court See, Curry (CA about also, of Inadmissible A2d L E 1177 prior there, 2, 1966), 358 following v. Davis Com Evi 527 v. op the Court (283 380)] 16 ‘collateral’ the issues be 377, F2d supra, p jury [Tate States, v. fore the United 17 p questioned (283 381)], F2d, or is about ‘minor points.’ (1964), [Bailey 242 App v. United States 117 (328 543), 241, 542, F2d cert. denied DC (84 741).] L 1655; Ct 12 Ed 2d In such US S impeachment of situations, the defendant affects only credibility, impeach his since the truth of the ing guilt. statement does not itself tend to establish App [Johnson (344 (1964), v. United States DC 163, 166).]” Inge F2d v. United States (356 6DC F2d Inge government’s The court in disallowed the use prior of defendant’s statements to contradict his testimony trial knife, that deceased him attacked with a cutting did not remember deceased, injured and that he in was the fatal altercation. testimony directly guilt. That bore on defendant’s deny Walder allows defendant to all the ele- testify concerning any ments of the crime and mat- affecting guilt exposing ter without himself to the introduction of otherwise inadmissible state- ments. impeachment question Miranda, was noted in may

and that ease be read as a full in- ban on use of part, any admissible statements, whole or purpose impeachment. including whatever, Miran- supra, p Arizona, da v. any part illegal

That Miranda forbids use of an impeachment interpretation statement for is the adopted by majorities in State v. Brewton (422 581), 247 Or 241 P2d cert. den. 1328) (1967); Ct 18 L Ed 2d (CA 9, 1968), v. United States Groshart 392 F2d (CA 1968), Proctor v. United States F DC, 2d 819, and unanimous courts Commonwealth Padgett 428 Pa 229 A2d 1967), (CA Wheeler United 382 F2d States An? 518 14 Mien op the Court judge Bur concurring in Commonwealth 998, a Super A2d 211 Pa kett People v. Kulis dissenters in two NE2d 876, 221 NYS2d NY2d majorities fol and Kulis The Burkett rule. the Walder lowed supra, the facts were iden- Brewton, In State trial court case. The those in the instant tical to “voluntary,” given in 1957 found statements had the they inadmis- coerced, hut were sense that give the Miranda warn- to of failure sible because Supreme Oregon ings. that the ruled Court the admitted for not have been statements should testimony impeaching purpose defendant’s of subsequent Miranda. of retrial at the time ‘voluntary’ argument that can made an “While distinguished can be confessions unconstitutional ‘involuntary’ confessions, unconstitutional from impeachment, solely omy purposes of this dichot- constitutionally appeal mean- to us does not *** attempt any ingful. in the future are that we satisfied exclusionary rule to restrict inconsistent with case in chief would be the state’s the constitutional principles are inherent in which supra, p Brewton, 582. State v. the Miranda Case." law rule of The Brewton court observed illegally obtained evidence which would allow use impeachment might encourage charged for with some

warning his constitutional defendant rights interrogating a “calculated before him take risk”: “By up using possibility giving the sus-

pect’s they could ob- case, statements in the state’s away evi- tain unconstitutional means and store upon may elect trial dence to use if the defendant should tobe take the As commendable as it stand. perjury, prevention prevent price could such v. Marsh Opinion op the Court keep entirely. tobe off tbe defendants stand temptation suspect some cases, tbe silence probity might very outweigh dubious sire to well the de- constitutionally interroga- conduct a valid supra, p Similarly, tion.” v. Brewton, State 583. see supra, p Groshart v. United States, practical likely We note the difficulties to be en attempting countered in to differentiate between de “sweeping fendant’s “denial of the elements” and claims.” When a defendant stand, takes the com pletely responsive questions put answers to all to to likely him on direct and cross-examination are open up collateral matters. Commonwealth v. supra, p supra, p Burkett, Brewton, State v. 309; supra, p 583; v. States, Groshart United 179. argued necessity using

Here the trial court impeachment the inadmissible statements for to prevent ity. perjury defendant’s and test his credibil- perjure

The defendant no freer is to himself any subjects than witness; other if he does, he him- prosecution perjury. self to for The defendant, like any may impeached.10 be witness, “The State should impeach, ought be free to it but to come its im- peachment legally as State v. it accumulates its other supra, p evidence.” Brewton, To refer to a statement as “inadmissible” but “voluntary” contrary to the core Miranda. The greater part majority opinion concerned it- atmosphere compulsion with self found to be interrogation. inherent v. custodial Miranda supra, pp Arizona, 445-469.

McLean cerning garded lateral matter. Evidence, issue at § 580, p The as conclusive where the collateral 551; trial. general § 36, p Gilchrist 58 Am 71 Mich 309. Denial 66; rule is that a witness matters, CJS, Witnesses, Jur, Gilchrist but Witnesses, McLean, supra. only as alleged statement § may not to § a witness is 783; 333 Mich matters p 613; relates OJS, relevant impeached McCormick 275; generally Witnesses, People to a col- to the con- re- on v. op the Court question a defendant’s inadmissible whether

The impeach testimony his trial statements can be used Adoption Michigan. arisen in has not before complete rule of exclusion either the Brewton any purpose inadmissible exception Agnello with its limited rule of exclusion approved of Marsh’s forbid the use in Walder would directly they on the issue since bore statements, jury. facing’ the testified at the trial that did go kill de-

intend to the deceased and did not apartment intending that rob- him, ceased’s to rob bery afterthought. prosecution coun- was an alleged by asking tered defendant about policemen transporting statement Michigan to the him apartment that he went to deceased’s “get even” with him and that he intended to rob It called Chaloner’s store and the deceased. also trooper questioned Seymour former about question concerning the statements. This and the prosecutor written statement The intention to rob inadmissible premeditated were error. support a established, intention to would once kill, degree conviction of first murder. theory unnecessarily deciding which

Without approach, should Walder or Brewton exclusion, adopted, Brewton or that under either be we decide any thereto, reference statements, Walder the were inadmissible. people principle on should add that

We against a defendant to have admitted be allowed be inad- that would takes the stand evidence who right exercised his constitutional missible if he contrary taking rule A the stand. from refrain unconstitutionally of either the chill exercise would sup- improper right evidence to have constitutional pressed right stand. take constitutional or the 531 v. the Court supra, p States, 180. Cf. v. United Groshart (88 (1968), 390 377 States United v. Simmons (1967), 1247); People v. Luna L 2d 19 Ed S Ct 586); (226 United v. NE2d Ill 2d Safarik (CA 892, 897; F2d Johnson States Jersey Garrity supra; New v. States, United v. 562); (87 L Ed 2d 616, 17 385 US Spevack Ct 385 US 511 S. Klein and 625, L Ed 2d constitutional that one find it intolerable “We right in order to surrendered should have supra, States, United another.” Simmons assert p

III. jury prosecutor argument re- to the In final statements: to Marsh’s former ferred Pennsyl- story gentlemen, a he told “Ladies and police story on the a to the officers He told vania. Pennsylvania. way from back prosecutor, story Mr. “He a to the assistant told story Judge He a Rathbun Michener. told years ago. twenty-five story his before.” had his chance to tell “He’s proper argument judge re- The found this circuit counsel’s and defendant’s asser- buttal defense had a chance to tell tions that defendant “never argument’s story.” to inad- final reference his purpose rebutting for the missible Marsh never before had chance the assertion that improper.11 story was, itself, to tell implied inadmissible DC self-defense contradict sueh remote White court, to the similar when first arrested “does statement F2d jury situation, 965, 967), not authorize the use of inadmissible inferences.” would have told the White impeaching the court if allowed v. United States held it error to introduce defendant’s speak. police of his claim of Walder, assertion that evidence to said the an 14 Opinion op the Court “mere mention” illustrates that

Marsh’s case well only may be as harm of a confession’s existence itself, but also ful that’ it of the confession as admission may the than admission of be more harmful in toto. circumstances statement and its attendant 380 Mich v. Frechette Cf. statement to the than the whole, the Marsh’s written On theory prosecutor supports his rather say people’s. statement did Marsh Nowhere planned either to kill or rob the victim. following from The the 1941written statement: attorney] you prosecuting [by “Q. Did have the [Berger] you argument an with him while were apartment] [in his ? there [by Marsh] sir. Yes, “A. argument? the nature of “Q. What'was the telling He I “A. had been around that was steal- * * * ing from the I store and wasn’t. you go apartment “Q. did to the What Herman Berger for? argue up go “A. it I To out with him. didn’t anything himkill like that.” contrary [The confession contains no concession on part defendant.] implies jurors’ The term “confession” to the ears guilt every that the defendant has admitted ele- charged by people.12 ment In fact, Marsh’s “confession” admits more no than he himself ad- Berger’s trial, mitted at that he caused death. IV. people argue “opened that Marsh the door” receipt

to the of the inadmissible statements when fact of its existence. The court saw “no details.” 370, 378), jury In Gaertnerv. State tlie statement’s contents were not fact of the existence of a confession and 35 Wis 2d distinction between disclosed, disclosing but only NW 2d telling its 583 Marsi-i v. op the Court guilt. denied his For lie reasons took the stand already argument constitutionally is stated, adoption force Its would a untenable. defendant exercising right his constitutional to choose between and defend himself and the stand Ms con take illegal suppressed, right to have evidence stitutional right destroyer making of of exercise one another.13 rights of constitutional stature “There are whose by may condition a the exaction

exercise State Garrity Jersey, supra, p price.” New of a questions put by people claim that also “opened him the door” to the Marsh’s counsel to inadmissible statements. The introduction federally guaranteed constitutional claim that a presents question right has waived controlled been (1966), Brookhart v. 384 Federal law. Janis US (86 L 2d 16 Ed 1, 1245, 4 S Ct mistakes which no man can make are some There governing He confuses standards fun- for another. statutory rights for or com- constitutional damental argument who makes much mon law rules “opened door.”14 that defense counsel Supreme the United States number cases constitutionally-protected has that a Court right declared may superficiality which waived is not a high inadvertence; or standards waiver silence (1938), 458, 304 v. Zerbst US set in Johnson out 1466), (58 1461, L have 1023, 82 Ed 1019, 464 S Ct been abandoned.15 never

.a constitutional 261, 266, practice 337 US 13 14 15Miranda v. See authorities Cf Gouled v. United States must not be allowed L Ed right.” Arizona, supra, 647, 654), cited in 1000, 93 L Ed concluding where the court observed: p Ct 475; any technical reason Smith v. United States 849, 9 paragraph US L 1274); 298, Ed 2d part Fay prevail “A rule of (41 IX. 869); Noia S Ct over 14 Mich Opinion op the Court pointed indulge every “It has been out that ‘courts presumption against

reasonable waiver’ of funda- rights mental constitutional and that we ‘do not presume acquiescence in the loss of fundamental rights.’ ordinarily A waiver is an intentional re- linquishment privilege.” right or abandonment of a known

Particularly apposite (D Poe v. United States Supp DC, F233 173, affirmed United States (352 v. Poe 122 163 F2d DC where the court held a defendant was new trial where he elected not entitled to take

to the stand on legal lawyer. basis erroneous advice from his lawyer apparent ignorance His had, of the Walder line of cases, advised the defendant that prosecution could use an otherwise inadmissible testify. confession should the defendant The court (p 176): observed right personal testify

“The to to the accused. He must make the ultimate decision on whether or regard not to take the stand. In this it is unlike other decisions, which are often called ‘trial de- cisions,’ it where is counsel who decides whether particular to cross-examine a witness introduce particular document. Here it is the accused who duty must present decide and it is the of counsel to to him may the relevant information on which he intelligent make an decision.” great importance It was of exclude, Marsh to possible, any if reference to the 1941 written and oral statements. With that in mind we do not think waiver from Escobedo v. Illinois of the accused.” Miranda v. (1967), 387 “But L Ed 2d a valid waiver US a silent record is 977, 986); 1, will not be Brookhart S Ct Arizona, impermissible.” US presumed 478, 18 L 8 L Ed 2d supra, Janis, simply Ed 2d (84 p supra; Carnley S Ct 70, 77). from the silence “Presuming 1758, v. Cochran re Gault 1765, v. Marsh op the Court right relinquished his to ex- or abandoned inadmissible when he those statements clude you lawyer’s question: “Now, have answered his * * * required to ?” Marsh was not ever stated lawyer’s question object order his own right preserve of the constitutional to exclusion his confession.16 an confession held, we inadmissible

If, as have impeach may a defendant’s denial not be used to guilt, the confes it anomalous to allow would be impeach the defendant’s denial sion to be used put gave it a confessional statement. To that he denying differently, does not if the defendant “open guilt of a confessional state the door” use open door to its use then he does ment, gave by denying such a statement. Since that given proof had a statement the defendant charged prove guilt crime tend to would supra, (People Frechette, and Gaertner v. State 378]), [150 such 2d 159 [1967], Wis NW2d exception proof the Walder was inadmissible under proof include, even if such did not as was here proof of the statement. allowed, the contents given denial that he had a state- The defendant’s importance admitting guilt would ment have been only as Where, if the statement was admissible. inadmissible, was itself the de- here, the statement given he had a statement fendant’s denial that probative nothing negatived carried little or and persuasive value. The defendant’s denial had mini- person should counsel.” Pa, 1951), 461, cerning pany “It 465, v. Cusick to not be frittered Cf. Brown v. the L80 Ed a fair and State v. Moore 100 F elementary that inattentiveness 682, 687). See, Supp impartial Mississippi 369 Mich away or of counsel the constitutional 152. See the Court’s observations con trial destroyed also, according 289. in United States v. Stoehr Or 297 US Prudential because of the 232, to right the law 278, 287 Insurance of an and evidence neglect P2d accused Com (MD 455, Ct op the Court impact justify require

mal did and out people to fairness that the confessional state- ment otherwise inadmissible be then admitted.

We find no need to comment on the other claims of error.

Reversed remanded for a new trial.

T. J., Gr. P. concurred with Levin, J. Kavanagh, (dissenting). In 1941 the defend- Sullivan, Berger. ant, Marsh, Fred killed Herman apartment decedent was slain in his own after the finally strangle, attempted defendant beat, by jamming killed him a ruler down his throat. killing, Berger 69-year-old At time was a slight (5'7", pounds). man of stature years was 22 old. appre-

The defendant fled after crime, was Pennsylvania in Michigan hended and returned to pleaded guilty for trial. He and the found, court taking proofs, degree after that the crime was first prison. murder and sentenced defendant life serving years prison After the defendant was paroled May parole on still While on he gross indecency (May was arrested and convicted of 1965) prison 12, years. and sentenced to 5 4-1/2 prison He was returned serve sen- parole Subsequently tence and also as violator. on April sought and obtained a new trial alleged on conviction, the murder and it is for errors (held August, 1966) in the new trial that he brings appeal. this grounds urged

There are several basis trial, for a but I new the court, believe, sees no any except alleged substance to of them im- proper given by of defendant’s use defendant to law enforcement authorities after his v. Marsh Sullivan, Opinion by Dissenting suppressed been had These statements arrest. on motion of defend- before the trial evidence ant. prosecutor’s questions per- put

In order to the briefly important spective to review what de- it is theory and what case is defendant fendant’s said at the trial. and his counsel opening jury, statement to the defendant’s In his any theory attorney, though disclaiming of self-de- killed the decedent that defendant fense admitted “passing struggle” by “during his a ruler across (decedent’s) to shut the mouth” order decedent (The proofs up. that 11 inches of a 12-inch showed jammed throat had down decedent’s sev- ruler been causing death.) ering a nerve in his own the defendant testified However, when “honestly that he did behalf he said believed” decedent; kill the that on a number occasions having decedent; that he had denied killed but he had “a him. noted in the with As above fracas” opinion, was on examination that court’s it direct or ad- first asked about statements defendant was : missions you anything ever admitted “Q. Now, stated, have you to rob Chaloner’s store

of the sort that or intended Berger? to rob Mr. I made such a statement.” No, sir, never “A. in the trial state- This was first reference Evidently ments or admissions the defendant. (cf. opened” feeling Walder, had that “door been prosecutor asked on cross-examination infra), defendant: Pennsylvania police you that “Q. Didn’t tell up you

you going, went were that reason get apartment night Mr. even with that Berger? was to No, sir. “A. Dissenting Opinion J. Sullivan, Square up “Q. him? with police you Pennsylvania

“Q. tell Didn’t that? subject saying “A. I I Yes, did. was that at the time. They beating anything you

“Q. weren’t or like that?

“A. No, sir. They you good “Q. treated down didn’t there, they? “A. Yes, sir. police Pennsylvania “Q. You told the then that Berger you Mr. told several not to times come into you stealing the store and he accused from the you apartment up get store and that went to his right? even with him. Is that making “A. I do not recall such statement. up, piecemeal. “Q. break Well, let’s it you telling police Pennsyl- Do remember Berger you vania that Herman told not to come into you stealing? the store and accused making “A. I do recall such statement. you telling police you “Q. Do recall went to get his store to with even him? “A. sir. No, telling Pennsyl-

“Q. recall You don’t them that in vania ? “A. No, sir. you “Q. Do recall when Commissioner Arch Trooper George Seymour and

Wilson came down to you, pick you up bring you see back? Yes,

“A. sir. they pick you up they “Q. Now, when came to good you, they? were weren’t Yes, “A. sir. They you anything “Q. didn’t beat like that? “A. No, sir. you telling way “Q. Do remember them on the you money you

back that wanted some and that de- v. Mars it Sullivan, Dissenting Opinion by go Berger’s apartment to Herman cided to and rob get keys get him to out? “A. well, sir, It we had so was, much conversation just

I don’t remember all of it.”

There claim is no that the statements alluded to promises. were obtained force or The claimed error arises from the mere use of such statements attempt impeachment of the defendant, not, course, to use such as affirmative evi- dence to establish the crime. orally arresting

The statements, made to officers prosecutor, by writing given to the were de- warning” fendant in 1941. Since the “Miranda (enunciated 1966)1 given, in June, was not the state- suppressed though retrial, ments were on the open they at whether question. should have least been Admittedly precedent for there is no this court reports. major- to ity follow our own state court The upon of the court cites and relies two “rules”: Walder2 rule. The The Brewton2 3rule and the by majority finds both violated the state rules through this of for im- case use the statements peachment. permits majority no

Brewton, the use notes, as contradictory suppressed prior state- whatsoever of ments. binding on is not this Case, course,

The Brewton of why it should court. There are sound reasons they precedent are best become a in this state L Ed 2d L Ed ^[1] Miranda Walder State 694). Brewton v. United States Arizona (1967), 247 (1966), Or 384 US 436 347 US (422 P2d (86 581). (74 S Ct ct ^[16] Am? 518 14

MO Dissenting fey Sullivan, in the dissent of three of the seven summarized justices in that case:

“Perry, (dissenting). Justice opinion “I am of the that neither Miranda v. 1602; Arizona 16 L 436, opinions Ed 694), any 2d nor court, this com- pel reasoning approved by major- or result ity in this case. supra, Neely “Miranda v. Arizona, and State v. P 557; Or 2d P 2d purpose deal with the use of confessions for the providing probative necessary required to facts establish of the crime elements with which de- charged. grounded fendant is These are thus cases upon proposition set forth in Fifth Amend- ment of the Constitution of the United States—that compelled give incriminating no man shall be evi- against dence himself.

“Incriminating evidence is evidence which tends to show that the defendant did certain acts from which trier of fact could conclude that the a. defend- charged. purpose ant committed the crime prophylactic prevent the introduction rule of exclusion is to statements made a defendant guilty tend which to establish his acts matters fact. “The introduction of statements made a de- by way impeachment credibility fendant of to test the story of purpose. his of his innocence serves no such “A defendant’s statements and his confession thus probative prove used have no value to the crime charged, and the trial court will so instruct the jnry. judge, “The hearing, trial an after extensive held that voluntary, the confession of this defendant was probative but that it could not be used as evidence because it procedure violated the absolutism of rules by majority Supreme laid down of of the Court the they United States to curb what believed were police practices. unwarranted v. by Sullivan, Dissenting Opinion (408 942), per- P Smith, Or 2d “State v. impeachment of for mits the introduction voluntary. purposes if found (1954), “In Walder v. United States 347 US (74 503), dealing 65 exclusionary Ct 98 L Ed in an with prevented rule that the introduction proof charged, evidence as the the crime Su- preme stated: Court “ thing say ‘It is one that the Government can- unlawfully not an make affirmative use of evidence quite say It is obtained. ant can turn the another that the defend- illegal method which evidence possession in the Government’s was obtained advantage, provide own himself with a shield * *’* against contradiction his untruths. why go “I know of no reason this court should beyond requirements Supreme the Court announcing the United States rule that would enlarge exclusionary Supreme rules of the Court point compatible purposes sought to a to be served with the the Fifth Amendment. upon “Based the rationale of Walder v. United supra, States, followed in v. Tate United States 377), (283 F2d DC and State McClung (404 66 Wash 2d P2d judgment. I would affirm (dissenting). “Holman, Justice prophylactic purposes “The issue is whether Neely5 negated of Escobedo4 and will if admis by non-compliance sions and confessions obtained permitted with those cases are to be used for im peachment opinion I defendants. am of the inability prosecution of to use such admis sions and confessions its case chief for in criminating purposes will be sufficientto com obtain pliance requirements by Neely with Escobedo police. If this is so there valid is no reason 2d 4Escobedo 5State v. 977). Neely (1965), Illinois 239 Or 487 US 478 P2d 557; 1758; 398 P2d L Ed App 14 Mich 518 Dissenting Opinion by Sullivan, impeachment permitting purposes the nse for everyone of evidence that and truthful.” concedes is both relevant gleaned The Walder rule seems to be not so much from what Frankfurter, Justice author of post-W alder,W but said, from the alder cases which interpret what he said.6

This court still free to read in Walder and terpret may it for itself, and it well be that the misinterpretation Agnello7 gave which rise to Walder has now attached Walder.

Set out below is Iwhat consider the essence the Walder Case: question “The which divided the and the court, sole here, issue is whether the defendant’s assertion possessed on direct examination that he had never any of opened solely purpose narcotics the door, for the attacking credibility, the defendant’s to evidence unlawfully of the heroin seized in connection with proceeding. question pre-

the earlier Because this aspect scope sents a novel of the doctrine [34 Weeks v. States, United 383, US S Ct granted 341, 58 L 652], Ed we certiorari. 345 US [73 1399]. Ct S 97 L Ed government

“The cannot violate the Fourth only way Amendment—in the in which the Govern- anything, namely through agents— ment can do its and use the fruits such unlawful conduct to secure supra. a conviction. States, Weeks United Nor can the Government make indirect use of such evi- dence for case, its Silverthorne Lumber Co. v. United [40 States, L US 64 Ed 319], or support through a conviction on evidence obtained unlawfully from leads obtained evidence, cf. L Ed United States v. 7 Agnello 6 E.g. Inge v. United States v. United States Curry (CA 2, 1966), 358 F2d 904. DC 6 F2d Ct 345) ; v. Marsh Dissenting by Sullivan, J. [60 United States, Nardone v. S Ct 266, 307]. L Ed All these methods are outlawed, and by obtained of the convictions means them are invali- they encourage society dated, because of kind that is obnoxious to free men. thing say

“It is one that the Government cannot unlawfully make an affirmative use of evidence ob- quite say tained. It is another to that the defendant illegal by can turn the method which in evidence possession the Government’s was obtained to his advantage, provide own and himself with a shield against contradiction his untruths. Such an ex- perversion tension of the doctrine Weeks would abe pp of the Fourth Amendment.” language I believe the above enunciates the rule Following of law found in the language Walder. this “sweeping- court uttered the “mere denial” and Inge claim” dictum—not as a rule law, merely others would have us believe—but as an aggravated illustration of the circumstances of the case. The court said: present “Take the situation. Of his own accord, beyond the defendant went a mere denial of com- plicity charged in the crimes which he was sweeping- made claim that he had never dealt possessed any in or stitution narcotics. Of Con- course, the guarantees oppor- a defendant the fullest tunity against to meet the accusation him. He must deny against

be free all the elements the case thereby giving him without to introduce leave the Government by way illegally rebuttal evidence by secured it, and for its therefore not available Beyond hardly case in chief. however, there that, justification letting affirmatively the defendant perjurious testimony resort in reliance on disability challenge credibility. Government’s sharply “The situation con- here is to involved Agnello presented by trasted with that v. United L Ed There States, Ct 269 US 14 Dissenting Opinion by Sullivan, having the Government, after failed its efforts to introduce the tainted evidence in its case in chief, smuggle tried to ing init on cross-examination ask- question you the accused the broad ever “Did eliciting expected see narcotics before?” After sought it denial, to introduce evidence of narcotics located the defendant’s home means of an unlawful search and in order to seizure, discredit holding the defendant. the Government could no more work in this evidence on cross-ex- amination than it could its case in chief, the perhaps unwittingly, Court foreshadowed, the result today: we reach “ 'And the contention that the evidence of the search and seizure was admissible in rebuttal Agnello without merit. In Ms direct examination, testify concerning was not ashed and did not the can a cocaine. In cross-examination, in answer to of question permitted objection, over his he said nothing he never seen it. had He did to waive his protection justify constitutional tion or to cross-examina- respect in of evidence the claimed to have been * *’ by the search. obtained judgment pp (Emphasis “The is affirmed.” 65, 66. supplied.) my view, even the strictest of construction way precludes alluding

Walder in no to particularly made in defendant this case, in testimony given view of his on direct examination. “sweeping If claim” norm, the test is the in- then comprehensible, sofar as such a norm is the defend- ant here it. meets testimony Trooper Seymour,

As to the rebuttal of simply he testified that the defendant had made returning Pennsyl- statements to him while from vania, viz: that decedent would not allow defend- store; in ant the that decedent called defendant gone apartment a thief; and that he had to decedent’s get get keys the to store so he could Ohaloner’s v. Marsh Sullivan, Dissenting Opinion testimony money. inadmissible of was None this testimony Walder, such establish nor did because pointed As the trial court of the crime. elements proofs jury received, before such were to the out you weigh- testimony “simply in to assist was the credibility ing as a witness.” of the defendant the adopt- option the case, facts this the Given ing rejecting the Brewton, and like cases certainty case no “federal standard” that there is compul- Walder), point (including squarely what setting aside this conviction for sion is there adopting Certainly is not it of law? such rule justice. thirst today Notwithstanding court above, facts conviction and for defendant’s has undone the the defend- him a trial because third time afforded (not yet prosecutor by the cross-examined ant was rights of invasion considered an itself freely accused) he and vol- from statements prosecutor untarily arresting gave officersand the years Miranda. before some gives nothing fifth amendment There is in the right lie case the a criminal the defendant impunity.8 forced cannot, course, with He ought to be he does he stand, once take but any subject witness. other cross-examination contradictory prior statements, If has uttered evaluating jury why know this in shouldn’t credibility—unless have course such statements of promise for or and threat been obtained (e.g. lacking very in trustworthiness? reason [56 Mississippi [1936], Brown 682]). L80 Ed Ct euro, prosecution perjury, somehow suggested for This Court’s mandatory life facing man for a like a deterrent doesn’t sound

sentence. by Sulmvan, Dissenting Opinion charged country with been this have

Courts showing lengths going concern to unbelievable indifference a concomitant for the the victim. At times and accused that conviction it must seem prima in the trial. of “error” itself is evidence facie fascinating game up caught in a Courts have been guilt played or law where the the criminal with irrelevant. the accused is almost innocence of yesteryear is famous dictum Justice Cardozo’s today’s flay legal heresy, judges continue blundering question by freeing felon.9 constable Without a certain thera-

recent decisions have had practices police prosecution peutic and and value inequities law. But some in the criminal eliminated country picture in the meantime the crime across the society will ever darkens, and wonders if balance rights struck between the accused aiid the community. rights something There is almost headlong suicidal in the drive to use the courtroom primarily as a forum to train law of- enforcement year’s procedure ficers next rules of criminal incidentally only guilt to ascertain or innocence society of the accused. Ordered as we have known may reap it not be around to the fruits of the ex- periment. equated law cannot be with an

Criminal athletic it not who or contest where matters wins loses but you play game.” “how The function of criminal proceedings historically court has been a search justice—an for truth and honest endeavor to find guilty if accused Law out innocent. en- today have a forcement officers most difficultburden trying keep Supreme abreast of the TJ. S. top Court’s actual decisions. On these there piled “interpretations” artfully are erudite 585, 587). 9Cf., Cardozo, v. DeFore 242 NY NE v. Marsh Sullivan, Opinion by Dissenting “logical in of these decisions most extensions” drawn journals many self-respecting and “forward law looking” appellate heretofore Professors, courts. aspects occupied have, law, the more esoteric with experts remarkably become in the time, in field short leaving the ever of criminal law without campus. appellate one courts vie with Trial (on block) get the first their where another to be going. they Supreme is feel the Court populace angry bewildered, the meantime the rising against crime, tide itself braces utter judiciary for what denounces the frustration experimenting for fascination considers fatal it with law. Editorial writers bemoan the criminal why frightening and wonder crime statistics insensitive to it all. The trial courts courts are our cases to devote all ing largest city announce a on civil moratorium power burgeon-

their man to the (made up part no of' small criminal docket time). being or third second tried cases Humanitarianism something only the is not ought may a limit, invoke. There accused example, of times an assault to the number for rape appear required in court and re- victim , her trauma. details of count the justice see for the life me I cannot partial subjecting to a cross-examina- defendant compelling aof' state, in the interest or trial”, tion, asking em- the accused to refrain from “fair questions barrassing are crime. Until we about the precedent compelled unmistakable clear and prior contradictory use of hold such I would so, do permissible. affirm the I would convic- tion.

Case Details

Case Name: People v. Marsh

Court Name: Michigan Court of Appeals

Date Published: Feb 20, 1969

Citation: 165 N.W.2d 853

Docket Number: Docket 2,844

Court Abbreviation: Mich. Ct. App.