STATE, Respondent, v. CHABONIAN, Appellant.
No. State 72
Supreme Court of Wisconsin
April 2, 1971
Argued March 3, 1971. (Also reported in 185 N. W. 2d 289.)
A pretrial hearing to determine questions arising from alleged illegal lineups was noted and commented on in Wright v. State (1970), 46 Wis. 2d 75, 80, 175 N. W. 2d 646. See also State v. Cole, ante, p. 449, 184 N. W. 2d 75, Mr. Justice WILKIE‘S concurring opinion. We now adopt the procedure.
By the Court. ----Judgment affirmed.
For the respondent the cause was argued by Michael Ash, assistant district attorney of Milwaukee county, with whom on the brief were Robert W. Warren, attorney general, and E. Michael McCann, district attorney.
ROBERT W. HANSEN, J. On the issue of admissibility of the admission made by the defendant to the police officer that he knew the automobile was stolen when he purchased it, three facts must be accepted as established:
- It was made after the defendant had been fully informed of his constitutional rights as required by Miranda.1
- It was volunteered.2
- It was made after the defendant had retained counsel, and while he was represented by said counsel.
So the question asked on this appeal is whether a volunteered statement by a defendant becomes inadmissible if and only when the defendant is represented by legal counsel when he volunteers it. Unless the purpose is to protect against the impulse to volunteer of defendants who have a lawyer and not similarly protect those who are lawyerless, the defense attorney, rather than the defendant, would appear to be the one sought to be protected by holding a volunteered statement of his client in his absence inadmissible. He would be protected against his client volunteering any statements to the
Some courts, as we see it, have gone wrong in finding that, once a defendant has an attorney to represent him, statements volunteered by the defendant in the absence of such counsel are inadmissible. Such finding derives from a misreading and misapplication of the decision of the United States Supreme Court in the pre-Miranda case of Massiah v. United States.5 In Massiah, as the Circuit Court of Appeals for the Fifth Circuit pointed out in a recent case:6
“. . . the Court was concerned with the admissibility of incriminating statements made by a defendant to a confederate and overheard by police officers via a radio transmitter hidden on the confederate without the defendant‘s knowledge. The Court held that the admission of this evidence violated Massiah‘s Sixth Amendment right to counsel:
“. . . We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. . . .”7
The Fifth Circuit Court of Appeals sees Massiah as not answering “. . . a basic question: Are all post-indictment statements made without the presence of counsel inadmissible or are such statements tainted only when there exists some ‘special circumstances’ such as the
“. . . We do not comprehend Massiah as a sweeping mandate tainting all post-indictment statements made by a defendant without the presence of his counsel. Police officers are not made constitutionally deaf to the uncoerced, insistent, and untricked statement of a properly warned defendant. . . .”11
This court has clearly adopted a more restrictive reading of Massiah, interpreting Massiah to be applicable only to situations where the accused was “. . . tricked or misled into confessing. . . .”12
It follows that in this state, in the absence of coercion or trickery, which would by themselves negative complete voluntariness, a volunteered statement, given in the absence of defendant‘s counsel, nonetheless is admissible. We would add only, while the mandate of Miranda is not here involved, the stated limits and purpose of the Miranda holding are. Where, post-Massiah, the United States Supreme Court in Miranda stated: “. . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today,”13 that statement further supports our holding that a completely volunteered statement by
Defendant additionally claims he was denied the right to inspect statements previously made by a state witness to the police, the reference being to a statement assertedly made by witness Tuszkiewicz to the authorities. There was no showing made at the trial that any such statement had been made. Entitlement to inspection depends upon a request being made by the defendant,14 and the record discloses no such request. A trial court ruling on a question asked during cross-examination did not block the making of the request required. The corollary claim that the ruling blocked impeachment of the Tuszkiewicz testimony is without impact where the trial court made it amply clear that he did not believe nor rely upon the Tuszkiewicz testimony or any aspect of it.
Defendant‘s motions for a new trial on the ground of newly discovered evidence and in the interest of justice were supported (1) by the introduction of statements of three witnesses that Tuszkiewicz was seen in possession of the car in September and October of 1967; in fact, seen driving it to and from his filling station; and (2) testimony by Detective Daniels that, after the trial, he had located the missing hood ornament, the original license plates of the car and personal property of the car owner behind a wall in the service station operated
The five-fold test for the granting of a new trial on the grounds of newly discovered evidence is: “. . . (1) The new evidence was not discovered until after trial; (2) the party moving for a new trial must not have been negligent in seeking to discover such new evidence; (3) the new evidence must be material to the issue; (4) the new evidence must not be merely cumulative to testimony introduced at the trial; and (5) the new evidence must be such that it will be reasonably probable that a different result would be reached on a new trial. . . .”15 The fifth requirement is a requirement for the granting of a new trial in the interest of justice.16
The newly discovered evidence clearly further damaged the credibility of the state witness Tuszkiewicz. That credibility had been weakened at the time of trial by his own contradictory statements with regard to his knowing about the car before it was in defendant‘s possession. The trial court held that the newly offered evidence “casts serious question concerning the credibility of Tuszkiewicz,” but “does not go to the basic problem of whether the defendant had knowledge or belief that the car was stolen when he obtained it.” It is knowledge on the part of the defendant that the car was stolen when it came into his possession that is crucial, not the part played by others in the theft of the car or earlier possession of it. As to the testimony of Tuszkiewicz, the trial court, as earlier noted, said: “. . . The court did not at the time of making the finding of guilt nor now base its determination of guilt upon the testimony or credibility of Tuszkiewicz. . . .”
As to the post-trial statements of witnesses that they observed Tuszkiewicz driving the stolen automobile, such newly discovered evidence relates to the Tuszkiewicz role in the chain of events, not to whether the defendant had knowledge that the car was stolen when he acquired it, helped repaint it and put illegal license plates on it. As to the testimony of Detective Daniels that he found the hood ornament, the original license plates, and papers of the owner behind the wall of Tuszkiewicz’ filling station, the question is closer. While this also relates to the Tuszkiewicz role in what went on, it does directly relate to the state‘s contention that the defendant removed the hood ornament, thus further changing or altering or disguising the appearance of the stolen car. Detective Buxbaum testified that defendant told him he (the defendant) removed the hood ornament himself in keeping with his plan to use the car for racing, and that he had thrown the ornament away. The discovery by Detective Daniels of the missing hood ornament behind the wall of the Tuszkiewicz filling station does, or could support a reasonable inference, that defendant was telling the truth when he stated that he never saw the missing ornament, had not removed the ornament and did not admit doing so. That is not the only reasonable inference, but it is one such.
By the Court.----Judgment and orders affirmed.
WILKIE, J. (dissenting). I respectfully disagree. I would reverse for the reason that the incriminating statement made by the defendant to Officer Daniels (in the absence of retained counsel), as testified to by Officer Daniels, was erroneously received in evidence.
This statement occurred during the mix-up, or confusion, as Daniels testified, that prevailed when the defendant was traveling between the office of the district attorney and the magistrate (both in the Milwaukee County Safety Building).
While the group of seven described in the majority opinion was making one of these trips, Officer Daniels engaged the defendant in conversation. Defendant‘s counsel was not within earshot.
“Well, the conversation was about this Spinella, how he----the talk was about this Spinella, how he involved Chabonian and I told his [defendant‘s] dad he should talk to his son because his son was on probation now and if he didn‘t tell the truth, he was going to be hurt by it and all [the defendant] would say was that he----at the
Officer Daniels further testified he did not have occasion to ask the defendant how he knew the car was stolen when he bought it and that the defendant at no time elaborated on the subject. No one else heard the alleged admission and defendant stoutly denied ever making it. The only evidence in the record relating to the “conversation” is the above-quoted testimony of Detective Daniels.
In its decision, on motions after verdict, the trial court stated:
“. . . The admission was not the result of interrogation, not the result of eavesdropping, not the result of deceit or artifice but was volunteered. The defendant denied making the admission and only he and Officer Daniels testified concerning it. Because of the voluntary nature of the admission made after the Miranda warnings were given, and actually in the immediate vicinity of counsel, I find that the defendant‘s right to counsel as defined by the Sixth Amendment of the Federal Constitution has not been violated and that the admission was properly received.”
The majority agrees with the trial court: the admission was volunteered, Miranda does not affect volunteered statements; hence this statement was admissible.
As I see it, this reasoning is faulty for three reasons:
1. There is no evidence to support the conclusion that the statement was volunteered.
2. There is no evidence that the defendant waived his right to have his retained counsel present.
3. Massiah1 and subsequent cases applying the rule of Massiah clearly show that defendant‘s sixth amendment right to counsel under the United States Constitution was violated.
Miranda is crystal clear that once a defendant requests counsel all “in-custody interrogation” is to cease. Admittedly, Miranda is limited to in-custody interrogation but this does not mean that it was concerned only with formal question-and-answer interrogation of a suspect. In Miranda the court was well aware of the many techniques used by police to elicit information from a defendant,2 and it noted that it was its desire to assure counsel, or at the least, the opportunity for counsel, to every accused. Miranda notes that the presence of counsel will benefit not only the accused but the police as well. Such presence will not only inhibit police coercion or at least permit it to be exposed at trial, but will also “mitigate the dangers of untrustworthiness” both in the statement itself and in the reporting of it at trial by the prosecution.3 Admittedly “volunteered statements of any kind are not barred by the Fifth Amendment.” However, not only the absence of physical or mental coercion constitutes a statement “volunteered.” The dictionary defines “volunteered” as “to offer . . . voluntarily or without solicitation or compulsion.”4 Miranda, in discussing what is necessary to establish a waiver, expressly states: “[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive” his rights.5 This is further evidence that the court, aware of the many and various police techniques for eliciting information from an accused, did not look only to the absence of
Here, the only evidence presented as to the circumstances surrounding the disputed “conversation” was that of Officer Daniels himself that the “conversation” was about how defendant became implicated and Detective Daniels’ own admission that he urged defendant‘s father to tell his son to talk since defendant was on probation and it would go hard on him if he didn‘t. This testimony not only does not support a finding that the admission was “volunteered” within the meaning of Miranda, but compels the opposite conclusion----that Detective Daniels actively and deliberately sought the admission.
No waiver.
There is no evidence in this record which supports a waiver theory of defendant‘s right to have his retained counsel present when he made the statement to Officer Daniels. Where admissions are made by a defendant, Miranda requires that the state have the burden of establishing that the accused “knowingly and intelligently” waived his fifth and sixth amendment rights, and this is a “heavy burden.”
The trial court and the majority state that this admission would not be excluded if defendant were not represented by counsel and therefore express concern that representation by counsel should make it inadmissible.
Miranda states:
“. . . But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.” (Emphasis added.)7
“. . . No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense.”8
Massiah and subsequent cases.
The precise issue presented on this appeal and on which there is disagreement, is whether defendant‘s sixth amendment right to counsel as construed by Massiah v. United States9 and subsequent United States Supreme Court decisions applying that case, has been violated. The conclusion is inescapable that under any permissible reading of these cases, the alleged incriminating statement here involved was improperly admitted against defendant.
The majority dismisses the sixth amendment challenge by citing this court‘s decision in Davis v. State,10 which erroneously interprets Massiah as applicable only to situations involving police trickery and deception, and a
In Massiah, the defendant was indicted with another person for a violation of federal narcotics laws; Massiah retained an attorney, entered a plea of not guilty, and was released on bail. While free on bail, defendant had a conversation with a codefendant in an automobile, unaware that government agents, with the codefendant‘s cooperation, were monitoring the conversation by means of an electronic eavesdropping device. The agent testified to incriminating statements made by the defendant during the conversation.
The United States Supreme Court reversed, finding that defendant‘s sixth amendment right to counsel had been violated. The holding of the court was clearly stated:
“. . . We hold that the petitioner was denied the basic protections of that guarantee when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. It is true that in the Spano case [Spano v. New York, 360 U. S. 315] the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, ‘if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. . . .’ (Emphasis supplied.)”12
Some courts thereafter pointed to the concluding sentence of the Massiah opinion to reach the conclusion reached by this court in Davis v. State:
“. . . All that we hold is that the defendant‘s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him [original emphasis] at his trial.” (Emphasis added.)13
In light of the express language of the holding, supra, however, it is clear that “the circumstances here disclosed” was not to be limited to deception only. And apparently the majority of courts did not so limit it.14
Any doubt as to the invalidity of such an interpretation was dispelled in McLeod v. Ohio.15 In McLeod the defendant, under indictment for murder, made certain oral incriminating statements to police while helping them look for a gun used in a robbery. Testimony of the police regarding these statements was admitted against defendant at trial. The Ohio Supreme Court affirmed, finding no constitutional question involved.16 The United States Supreme Court granted certiorari and reversed without opinion, remanding for further consideration in light of Massiah.17 The Ohio court distinguished Massiah, holding that McLeod had made the incriminating statements voluntarily, before he was represented by counsel or had even requested any, and that there was no deception involved since defendant was knowingly and willingly cooperating with police officers.18 This position, which is the same as that adopted by the majority here, was summarily rejected by the
The majority apparently ignores McLeod. However, it seems to imply that because Massiah was decided before Miranda, it has little vitality today. If there was any doubt about such a view, it was removed by the United States Supreme Court‘s post-Miranda decision in Beatty v. United States.20
In Beatty the defendant, under indictment for selling firearms in violation of the National Firearms Act, was represented by counsel and free on bail. The defendant notified one Sirles, the person to whom he had sold the guns, and requested a meeting with the purpose of persuading Sirles not to testify for the prosecution. Sirles notified federal agents who told him to go ahead with the meeting. In addition a federal agent was secreted in the trunk of the car where the conversation was held. At trial, both the informer Sirles and the federal agent testified as to the incriminating statements voluntarily made by the defendant.
On appeal, defendant contended the testimony of both Sirles and the agent should have been excluded under Massiah. The Fifth Circuit Court of Appeals rejected the argument, and affirmed. In doing so it noted that Massiah would exclude incriminating statements where “deliberately elicited” by police in the absence of retained or appointed counsel. It then cited the last sentence of the Massiah majority opinion and stated:
“. . . We interpret this language as meaning that the exclusionary rule does not apply to all incriminating statements made under any circumstances by an accused after his indictment, but such rule only applies to those statements induced or deliberately elicited by officers or their agents from the accused after his indictment while he is without assistance of counsel. . . .”21
The United States Supreme Court reversed without opinion, citing Massiah.
In addition to McLeod and Beatty, a 1968 dissenting opinion of four members of the United States Supreme Court, in Miller v. California,22 sheds considerable light on this area. In Miller a police informant was placed in defendant‘s cell to give oral reports of anything she might say with regard to the murder of her husband with which she was charged. At trial the informant testified as to certain unsolicited statements made by defendant. The California Court of Appeals recognized the validity of defendant‘s constitutional argument under Massiah, but also noted defendant‘s failure to object to the testimony in the trial court. The controlling factor, however, was that the court concluded the statements were not incriminating.23
The United States Supreme Court granted certiorari, but subsequently withdrew it as improvidently granted.24 Four members of the court dissented. They viewed an objection made at trial as adequate to preserve the question on appeal, and further disagreed that the statements were not incriminating. As pertinent here, they stated:
“Respondent also contends that petitioner‘s constitutional rights were not violated, because [the informant]
engaged in no ‘process of interrogations,’ Escobedo v. Illinois . . . designed to obtain a confession from petitioner, or that statements from her had not been ‘deliberately elicited,’ Massiah v. United States . . . . In the state‘s view, so long as [the informant] acted simply as a listening post, she could testify as to any statements made to her by petitioner. That view was, however, rejected in Massiah itself. The government in that case pointed to the fact that the record did not reveal that its agent had induced the defendant by persuasion (there based on friendship) to discuss his activities, and urged that ‘providing a defendant an opportunity to talk’ [citing the government‘s brief in Massiah] did not violate his right to counsel. See also Beatty v. United States . . . .”25
Under these United States Supreme Court cases the majority‘s view regarding the interpretation to be given Massiah is erroneous.
In addition, the majority of federal courts which have addressed themselves to the question have held that once counsel has been retained or appointed, any deliberate attempts on the part of the police or their agents to elicit information from a defendant in the absence of his counsel or a “clear and explicit” waiver of the right to have him present, are prohibited, and that any incriminating statements so obtained may not be used against him at trial.26 The vast majority of state courts have so held also.27 This is the “restrictive” view noted by the Fifth Circuit in De Loy, supra.
In addition, those courts considering the question who have considered McLeod and/or Beatty, have gone further and held that Massiah commands that all oral communications between defendant and the police made after
I have no doubt that the present case comes clearly within the purview of even the “restrictive” reading of Massiah as stated by the Fifth Circuit itself,29 and by other courts that apparently adopt the restrictive view.30 While there may not have been any “interrogation” in the sense of formal question-and-answer sessions, there is little doubt that the testimony of Detective Daniels himself indicates his “conversation” with defendant was aimed at getting incriminating information from defendant. Under any of the readings of Massiah discussed above, the admission should have been excluded.
I agree with the majority that “the administration of criminal justice is to be in fact a search for the truth . . . .” However, I cannot agree with the implication that the mere presence of a defendant‘s counsel will somehow prevent the truth from being determined. This argument was expressly considered and rejected in Miranda. The essential problem in all these cases is not so much a question of right to counsel as a waiver of that right. The entire line of supreme court cases in this area,
I am authorized to state that Mr. Chief Justice HALLOWS and Mr. Justice HEFFERNAN join in this dissenting opinion.