STATE of Wisconsin, Plaintiff-Respondent, v. Dirk E. HARRIS, Defendant-Appellant-Petitioner.
No. 93-0730-CR
Supreme Court of Wisconsin
Oral argument October 31, 1995. — Decided February 29, 1996.
199 Wis. 2d 227 | 544 N.W.2d 545
For the plaintiff-respondent the cause was argued by Gregory Posner-Weber, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
JANINE P. GESKE, J. This is a review of a published decision of the court of appeals, affirming the conviction of Dirk Harris for first-degree murder and armed robbery.1 The court of appeals held that physical evidence recovered as a result of a statement taken after Harris had invoked his right to have counsel present during interrogation could be used in the prosecution‘s case-in-chief. We conclude that the circuit court committed error by not excluding physical evidence proximately derived from a violation of the bright-line rule articulated by the United States Supreme Court in Edwards v. Arizona, 451 U.S. 477 (1981), which bars all uncounseled police-initiated interrogation after invocation of the right to counsel. However, we hold that the error in this case was harmless, and we therefore affirm the judgment of conviction.
FACTS
The body of Dennis Owens was discovered at approximately 4:15 a.m. on December 4, 1988. He died from multiple gunshot wounds to the head and chest, fired at close-range from a .22 caliber gun. A witness saw a gray Pontiac identified as belonging to the victim
Public Defender Kathy Stilling, who had represented Harris on a previous matter, recognized his description in news reports of the incident and called the police station in Amarillo where Harris was being held. Harris returned her call and, after he indicated that he wanted her to represent him, attorney Stilling advised him that it would not be in his best interests to initiate conversation with law enforcement personnel or anyone else except his lawyer. Harris indicated that he understood and would not talk to anyone. Attorney Stilling then asked Harris to put the accompanying officer on the phone and told the officer that she represented Harris and that he had indicated his desire not to make any statements to Amarillo or Milwaukee authorities outside the presence of counsel. Harris then got back on the phone and Stilling heard him repeat that instruction to the officer. Stilling then called Assistant District Attorney Jackson in Milwaukee and informed him that she represented Harris and that he didn‘t wish to make any statements in the absence of counsel. She also called Milwaukee police
A criminal complaint and felony warrant were issued in Wisconsin on December 7, 1988, charging Harris with first-degree murder and armed robbery. Following his arraignment that same day in Amarillo, Harris again informed the Amarillo police that he had made contact with his lawyer in Milwaukee and that he would make no statements to anyone without his lawyer being present. This information was recorded in the police incident report.
Milwaukee police detectives Sucik and Blazer were assigned to fly to Amarillo to accompany Harris back to Milwaukee. Before leaving Wisconsin, Sucik informed Blazer of the content of his conversation with attorney Stilling. On the morning of December 8, 1988, the two detectives arrived at the Amarillo police station where they reviewed police reports including the one containing the information that Harris had stated that “he would make no statements to anyone without his lawyer being present.” After reviewing these reports, the detectives asked that Harris be brought to them.
At the suppression hearing, the detectives testified that they merely wanted to see Harris to advise him of the charges and to assess his demeanor for security reasons because they were responsible for escorting him back to Milwaukee on public carriers. Blazer testified that “armed with the knowledge that an attorney was representing him . . . I did not think that we would be able to talk to [Harris].” Despite that belief, Blazer admitted that he initiated the ensuing “conversation” that lasted somewhere between 45 minutes and an
After hearing Harris‘s motion to suppress, the circuit court ruled that the “conversation” amounted to interrogation which had been initiated by the police. Further, it found that the “detectives clearly overreached in their zeal.” The court acknowledged that state-initiated communication after Harris had asserted his right to counsel triggered the per se exclusion of his subsequent statement according to Edwards and Michigan v. Jackson, 475 U.S. 625 (1986) (extending the Fifth Amendment-based Edwards proscription of further interrogation to the right to counsel
The circuit court denied Harris‘s later motion to suppress the gun and other physical evidence recov-
Harris did not testify at his trial and his statement was not introduced. The prosecution did present evidence that the murder weapon, .22 caliber ammunition and the victim‘s keys had been recovered from a sewer located approximately two blocks from Harris‘s home. They also presented ballistic evidence that matched the gun to spent cartridges found at the crime scene. No identifiable prints were found on the gun, box of cartridges or keys. The jury returned a verdict of guilty on both counts. Harris appealed.
The court of appeals concluded that the circuit court had not erred in admitting the challenged evidence and affirmed Harris‘s conviction. Harris, 189 Wis. 2d at 165. It found that the circuit court had correctly concluded that Harris‘s confession was voluntary and held that “derivative, non-testimonial evidence is admissible when its discovery results from a suppressed, voluntary confession.” Harris, 189 Wis. 2d at 177. This court subsequently granted Harris‘s petition for review.
ISSUES
The issues presented by this case are of first impression in Wisconsin.5 (1) Is it constitutional error
APPLICABILITY OF THE EXCLUSIONARY RULE
In Miranda v. Arizona, 384 U.S. 436, 467 (1966), the Supreme Court fashioned a set of procedural guide-
[A suspect] must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.
Id. at 479 (emphasis added). The Court went on to stress that the “[o]pportunity to exercise these rights must be afforded to [a suspect] throughout the interrogation.” And, although a suspect may waive these rights after being given warnings, “unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.” Id.
This per se exclusionary rule was extended in Edwards v. Arizona, 451 U.S. 477 (1981). The suspect in Edwards was informed of his rights under Miranda and initially stated he was willing to submit to questioning. When Edwards later stated that he wanted an attorney, the questioning ceased. However, the next morning, before he had been allowed contact with an attorney, two detectives came to see him in the jail. Although Edwards told the guard he did not want to
The Court reversed Edwards’ conviction on the basis that use of his statement violated his rights under the Fifth and Fourteenth Amendments. The Court held that, an accused, “having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication.” Id. at 484-85. According to the Court, the Edwards bright-line proscription “serves the purpose of providing ‘clear and unequivocal’ guidelines to the law enforcement profession. Surely there is nothing ambiguous about the requirement that after a person in custody has expressed his desire to deal with the police only through counsel, he ‘is not subject to further interrogation by authorities until counsel has been made available to him, . . .‘” Arizona v. Roberson, 486 U.S. 675, 682 (1988) (quoting Edwards, 451 U.S. at 484-85). The Edwards rule is “designed to protect an accused in police custody from being badgered by police officers in the manner in which the defendant in Edwards was.” Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).
In reaching our decision today, we find it significant that the Court has commented that the per se aspects of both the Miranda and Edwards rules are,
based on this Court‘s perception that the lawyer occupies a critical position in our legal system because of his [or her] unique ability to protect the Fifth Amendment rights of a client undergoing custodial interrogation. . . . “The right to have counsel present at the interrogation is indispensable to the
protection of the Fifth Amendment privilege under the system” established by the Court.
Roberson, 486 U.S. at 682 n.4 (quoting Fare v. Michael C., 442 U.S. 707, 719 (1979)).
The State concedes that the police conduct here violated the proscription against initiating questioning of a suspect who has asserted his right to counsel and that any statements thus obtained must be excluded.6 However, the State argues that physical evidence derived from a statement taken in violation of Edwards is admissible so long as the statement itself was constitutionally voluntary, i.e. non-coerced. The State bases its argument on the same cases relied upon by the court of appeals — Michigan v. Tucker, 417 U.S. 433, 435 (1974); Oregon v. Elstad, 470 U.S. 298 (1985); United States v. Sangineto-Miranda, 859 F.2d 1501, 1516 (6th Cir. 1988); and United States v. Cherry, 794 F.2d 201 (5th Cir. 1986), cert. denied, 479 U.S. 1056 (1987). To assess the State‘s argument, it is necessary to analyze the applicability of each of the cases cited.
In Michigan v. Tucker, 417 U.S. 433, 435 (1974), the Supreme Court addressed the issue of whether the testimony of a witness “must be excluded simply because police had learned the identity of the witness by questioning [Tucker] at a time when he was in custody as a suspect, but had not been advised that counsel would be appointed for him if he was indigent.” Prior to questioning, the police warned Tucker that he had the right to remain silent and that anything he
The Tucker Court characterized the problem it faced as one of defining the proper scope of consequences to be judicially imposed as a result of an inadvertent disregard of Miranda‘s procedural rules. Tucker, 417 U.S. at 445. The Court held that Tucker‘s statement must be suppressed pursuant to Miranda. However, it concluded that Wong Sun v. United States, 371 U.S. 471 (1963), which requires suppression of the “fruits” of police conduct that actually infringes on a suspect‘s Fourth Amendment rights, was not controlling as to the testimony of the witness. The Court found that the police conduct at issue “did not abridge [Tucker‘s] constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by the Court in Miranda to safeguard that privilege.” Tucker, 417 U.S. at 446.
Tucker‘s interrogation took place before the release of the Miranda decision, but the trial occurred afterwards. The Court found it significant that Tucker was adequately informed of his rights under the principles of the controlling law at the time, Escobedo v. Illinois, 378 U.S. 478 (1964). Tucker, 417 U.S. at 447. The deterrent purpose underlying the exclusionary rule, which “necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right,” lost much of its force when, as in the case at bar, the police had acted in good faith. Id. The Tucker Court distinguished Escobedo, in which the suspect‘s express and repeated requests to see his lawyer were denied, as
In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court framed the issue before it as:
whether an initial failure of law enforcement officers to administer the warnings required by Miranda v. Arizona, without more, “taints” subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights.
Elstad, 470 U.S. at 300 (citation omitted, emphasis added). While police were serving a warrant for his arrest on suspicion of burglary, Elstad made an incriminating statement before he had been given Miranda warnings. Elstad was subsequently taken to police headquarters where, after he was fully advised of his Miranda rights, he indicated he understood his rights but wished to speak with the police. He then gave a written statement describing his involvement in the burglary. The Court found that the initial statement must be suppressed as violative of Miranda but concluded that, in the absence of coercion or improper police tactics, subsequent voluntary statements taken after proper administration of warnings and valid waiver of rights need not be suppressed. See Elstad, 470 U.S. at 308-09.
In Sangineto-Miranda, the Sixth Circuit addressed the issue of “whether nontestimonial physical evidence proximately derived from a Miranda
Of the cases relied upon by the court of appeals, only United States v. Cherry, 794 F.2d 201 (5th Cir. 1986), involves the admissibility of physical evidence discovered as a result of a statement taken in violation of Edwards. Unlike the court of appeals, however, we do not find the facts in Cherry “virtually identical”8 to those we face. After his identification was found in the backseat of a murdered cab driver‘s taxi, Cherry was taken into custody by FBI and CID agents at Fort Bliss, Texas, on suspicion of murder.9 During questioning,
At some point during interrogation the next day, Cherry said, “maybe I should talk to an attorney before I make a further statement.” Cherry, 794 F.2d at 203. The FBI agents told Cherry that an attorney would probably advise him to remain silent but they did not try to secure counsel for him. They did, however, ask if he wanted to be alone to consider whether to make further statements. At this point, Cherry asked to see one of his sergeants. While waiting for the sergeant to arrive, the FBI agents mentioned that fellow soldiers had seen him with a .32 caliber pistol and yet Cherry had told them he did not own one. Cherry responded, “haven‘t you found the gun yet?” Id. He then told agents the murder weapon was hidden in the ceiling compartment above his cubicle, confessed to the murder and signed written consent for a second search. Id. at 203-04.
The court found that although Cherry‘s request for counsel had been equivocal, it constituted assertion of his right to counsel and his confession must be suppressed as violative of Miranda and Edwards. Cherry, 794 F.2d at 204. On review of the propriety of suppression of the gun, the court concluded that there had been no violation of Cherry‘s Fifth Amendment rights because his statements and consent to search had been voluntarily given. The court relied on Elstad and Tucker in holding that the murder weapon was, therefore, properly admitted. Id. at 208.
Of greater importance to our analysis, the cases on which the Cherry decision rests (Tucker and Elstad) involved only defects in the administration of Miranda warnings. As does the court of appeals, Cherry blurs any distinction between mere failure to administer Miranda warnings “without more” (Elstad, 470 U.S. at 300) and violations of the bright-line rule of
On the contrary, nowhere in Elstad does the Court equate failure to administer warnings with failure to “carry out the obligations” of Miranda. Elstad limits its discussion of the inapplicability of the Wong Sun doctrine to instances of error in administering Miranda‘s prophylactic warnings. Elstad, 470 U.S. at 309. The Elstad Court expressly distinguished the case at bar from those involving statements elicited after invocation of the rights enumerated in Miranda:
Most of the 50 cases cited by JUSTICE BRENNAN [dissent] in his discussion of consecutive confessions concern an initial unwarned statement obtained through overtly or inherently coercive methods which raise serious Fifth Amendment and due process concerns. . . . JUSTICE BRENNAN cannot seriously mean to equate such situations with the case at bar. Likewise inapposite are the cases the dissent cites concerning suspects whose invocation of their rights to remain silent and to have counsel present were flatly ignored while police subjected them to continued interrogation.
Elstad, 470 U.S. at 312-13, n.3 (emphasis added).
In line with the reasoning employed in Cherry, the State contends that a violation of Edwards does not constitute violation of a substantive constitutional right, but merely of the prophylactic rules designed to
protect that right.13 The State argues that a violation of Edwards is no more egregious and, if anything, is less serious than a defect in the “core requirement” of administering the Miranda warnings. The State asserts that, like Miranda, an Edwards violation does not automatically constitute a violation of the
The primary flaw in the State‘s argument is the failure to distinguish between violation of a procedure (informing an accused of his rights) and violation of a right (the right to have counsel present during interrogation). The procedure required under Miranda is that warnings must be given prior to custodial interrogation, while the procedure required by Edwards is that once a suspect invokes the right to counsel, all police-initiated questioning must cease until counsel is present. With the former, it is possible to act in a manner that is violative of the safeguard but not of the rights it seeks to protect; this is not possible with conduct that violates Edwards. A violation of Edwards is a violation of the right to counsel under the
Further, once a criminal suspect invokes his or her right to counsel, judicial inquiry into voluntariness, i.e. whether subsequent statements were actually coerced, is “beside the point.”16 Smith v. Illinois, 469 U.S. 91, 99 n.8 (1984). “[T]he voluntariness of a consent or an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries.” Edwards, 451 U.S. at 484.
See also Mark S. Bransdorfer, Miranda Right-to-Counsel Violations and the Fruit of the Poisonous Tree Doctrine, 62 Indiana L.J. 1061, 1099-1100 (1987).
The bright-line rules Miranda v. Arizona announced, the so-called prophylactic safeguards, should not be allowed to block the effective assertion of other rights, constitutional in nature, which Miranda reaffirmed. . . . The right to counsel, once invoked by a suspect in a custodial interrogation setting whatever its source, is more than a mere procedural device. Wong Sun‘s fruit of the poisonous tree doctrine should apply with its full and reasonable vigor to second generation derivative evidence after an Edwards violation.
The circuit court found that detectives Sucik and Blazer initiated interrogation after Harris had unequivocally invoked his right to have counsel present during questioning. We conclude that this
HARMLESS ERROR
We conclude that although the circuit court erroneously admitted the physical evidence derived from the Edwards violation, such error was harmless and, therefore, Harris‘s conviction should stand.
The Supreme Court fashioned a “harmless-constitutional-error rule” in Chapman v. California, 386 U.S. 18, 22 (1967), a case that involved denial of the defendants’ rights under the
And yet, in Arizona v. Fulminante, 499 U.S. 279, 285 (1991), a plurality of the Court determined that it was appropriate to apply harmless error analysis to the admission of a coerced confession. The Court also utilized the harmless error test in review of a violation of the
[w]e have permitted harmless error analysis in both capital and noncapital cases where the evil caused by a
Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial.
Satterwhite, 486 U.S. at 257.
The Court found that the critical “common thread” in these cases was that they all involved ” ‘trial error‘—error which occurred during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 307-08.
faithful to the belief that the harmless-error doctrine is essential to preserve the “principle that the central purpose of a criminal trial is to decide the factual question of the defendant‘s guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.”
Fulminante, 499 U.S. at 308 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)).
In State v. Dyess, 124 Wis. 2d 525, 543, 370 N.W.2d 222 (1985), this court attempted to clarify the standard to be applied in Wisconsin to appellate review of harmless error; “whether of omission or commission, whether of constitutional proportions or not, the test should be whether there is a reasonable possibility that the error contributed to the conviction.” Alternatively stated, we held that where there is error, “a court should be sure that the error did not affect the result or had only a slight effect.” Id. at 540. We discussed the similarities between the Dyess test and that utilized in Strickland v. Washington, 466 U.S. 668 (1984), to assess prejudice in cases of ineffective assistance of counsel, and favorably noted the flexibility of such analyses that focus on whether or not the error undermines confidence in the outcome of the proceeding. Dyess, 124 Wis. 2d at 544-45.
In a case decided two years before the Dyess standard was adopted, this court was faced with the task of reviewing statements admitted into the State‘s case-in
We must now apply the harmless error standard to the evidence before us. Our task is to examine the erroneously admitted evidence and the remainder of the untainted evidence in context to determine whether the error was harmless. Billings, 110 Wis. 2d at 673; see also Fulminante, 499 U.S. at 310. In the case before us, the following untainted evidence was presented to the jury.
The body of Dennis Owens was discovered by Mr. Hungelmann, a security guard who worked in a building in the 300 East block of Florida Street in the City of Milwaukee. At approximately 4:00 or 4:15 a.m. on the morning of December 4, 1988, Hungelmann saw a car
There was very little blood at the site where the body was found. However, there was a smear or skid mark leading away from the body which ran approximately 300 feet across a set of railroad tracks into a field. Just east of the railroad tracks, where the skid mark ended, the police found tire tracks, blood on the gravel, three live bullets and two spent casings. There, they also found a man‘s jacket with tire marks running across it.
Harris‘s co-defendant, James Malone, testified that he and Harris had been out drinking on the night of December 3, 1988.25 At approximately 10 p.m. that night they left a bar in Harris‘s station wagon, which Malone noticed had a Diamond Jim “license applied for” placard in place of the rear license plate. Harris drove to his home at 29th and Scott, went in alone and came back out with a gun and a box of shells which he put under the seat when he got back in the car. After having a few more beers in another bar, the two got
Malone stated that he told Harris he‘d been in jail briefly and didn‘t want to get into any more trouble, so at about 11 p.m. when Harris parked the car in an area near some gay bars, Malone stayed in the car and fell asleep. Malone testified that he was awakened about 2:30 a.m. when Harris knocked on the window saying he‘d be back in about 10 minutes. Malone looked out the window and saw a car idling across the street with its lights on and someone sitting in the front seat. He fell asleep again until Harris woke him and said, “I just shot a nigger.”
Malone testified that he was told to drive Harris‘s car and follow Harris, who was driving the car that Malone had previously seen idling across the street. After parking the victim‘s car near his house, Harris got back into the station wagon and told Malone he wanted to go back to where the body was. On the way, Harris said the gun had jammed earlier but then tested it and was able to successfully fire it from inside the car. Harris told Malone he would also have to shoot the man to “finish the job.” Malone testified that Harris held a gun to his head and said, “if you don‘t, I‘ll kill you.” Harris directed Malone to drive to a field and when they stopped, Malone saw the body of an African-American man and blood all over the ground. Malone refused to shoot the man, who looked like he was already dead. Harris went through the man‘s coat and pants pockets and, after searching the body, shot the man twice in the back of the head.
Harris then drove Malone home, dropping him off about 3 a.m. Harris woke Malone up later that day and said that the man he had killed was a TV-6 cameraman. He asked if Malone wanted to go shopping with
The State presented the following testimony which corroborates Malone‘s version of the events. Although Harris‘s mother, Barbara, took the position on the stand that she didn‘t remember anything, detective Kraus, of the Milwaukee Police Department, testified as to his interview with Mrs. Harris at her home the day after the murder. At that time, she told the police that earlier that day Harris had called her at work and said he was leaving town and needed money. She left work, got $180 out of her credit union and took it to a tavern where she met her son and gave him the money. While being interviewed, Mrs. Harris indicated that items belonging to the victim were located in her garbage. The police retrieved the victim‘s driver‘s license, credit cards, work and other identification cards. They also recovered the license plates of the vehicle belonging to the victim.
A co-worker of Mrs. Harris testified that on the morning of December 5, 1988, Barbara Harris had asked her if she‘d heard about the murder of a Channel 12 news reporter.26 Mrs. Harris was upset and crying and told the witness that she‘d seen the reporter‘s credit cards in her son‘s possession and that he had dumped them in the trash.
An employee of a jewelry store positively identified Harris as the man who came into her store on the afternoon of December 5, 1988, and purchased a 14-carat gold filigree bracelet. The total cost was $158.13, which Harris paid using a credit card in the name of Dennis Owens. Harris signed Owens’ name to the
The State also presented testimony of two inmate witnesses whom the jury was told had been given consideration for their testimony. In December of 1988, while Michael Peterson and Harris were cellmates in Milwaukee County Jail, Harris told Peterson that he and Malone had been together on the night of the murder but that Malone had gotten drunk and fallen asleep in the car. Harris said that he had gotten into the car of an African-American male who drove to a dead end street and shut off the car‘s ignition. Harris said that after the man grabbed him in the groin, he shot him and pushed him out of the car. Harris also told Peterson that he had driven back and forth over the body, and although the body had originally been on gravel, it got stuck under the car and he had to drive a distance until he got to a hard surface and could shake the body from the undercarriage. Harris said he‘d later gone to the victim‘s apartment and ripped him off.
Harris and Ricky Loney met as inmates at the Dodge Correctional Institute. Loney testified that Harris approached him in June of 1989 and, over the next few days, told Loney a version of the events surrounding the murder that very closely matched Malone‘s testimony. Additionally, Harris said that he‘d used the victim‘s keys to enter his apartment and steal a VCR and microwave and had left the door open. Loney testified that Harris also told him that he‘d used the victim‘s credit card to buy jewelry for his girlfriend.
The defense countered the above evidence with its theory that Harris‘s involvement was limited to accepting and using stolen property. In closing arguments, defense counsel depicted Harris as a “dummy” who had “gotten in over his head.” It was not contested that Harris had used the victim‘s credit cards to buy jewelry nor that he had driven Owens’ car. But the defense asserted that it was not until Harris saw the news about the murder that he decided he‘d better get out of town.
According to the defense, Malone was involved in the murder with a second man who was not Harris. The defense raised the possibility that the real killer was one of two other men, Glen Conroy or Arthur Fromke. A witness testified that at about 3:30 or 4:00 a.m. on December 4, 1988, he had seen an African-American man driving a dark blue or gray car stop, open the passenger door and begin talking to a young white man walking by. The witness identified the two men as the victim and Conroy. A second security guard at the building where Owens’ body was found picked Arthur Fromke‘s photo out of a photo array as the driver of the car that left the murder scene at 4:08 a.m. However, the State presented witnesses who testified that Conroy and Fromke were at their homes on the night of the murder. The defense generally characterized the testimony of Malone and the two inmate witnesses as self-serving lies and urged the jury to discount their testimony.
At approximately 6 a.m. on December 4, 1988, the police went to the victim‘s apartment where they found the door open and lights on. There were no signs of forced entry. A neighbor testified that when he arrived home at 1 a.m., the lights were out and the door closed. The neighbor also told investigating officers that Owens’ microwave and VCR were missing from the apartment.
The autopsy revealed that Owens had been shot five times—twice in the chest, once in the stomach, and twice in the back of his head. His body showed abrasions consistent with having been dragged for a distance across gravel and/or pavement. The victim‘s car was discovered parked on West Scott Street, approximately two blocks from Harris‘s residence. There were no metal license plates on the vehicle, only temporary “license applied for” placards from Diamond Jim‘s. Hair and blood stains found on the underside of the car were consistent with samples of the victim‘s hair and blood.
In contrast to the situation we faced in Dyess, in which an erroneous jury instruction so permeated the trial that we concluded there was not “any unpolluted or untainted evidence,”27 here we find that the physical
After reviewing the overwhelming amount and force of the State‘s evidence, we are convinced that there is no reasonable possibility that the error in admission of those three items contributed to Harris‘s conviction. Therefore, we affirm the entry of the judgment of guilt.
By the Court.—The decision of the court of appeals is affirmed.
ROLAND B. DAY, C.J. (concurring). I concur in the mandate of the majority opinion, and agree that if the “fruits” of the Edwards1 violation were erroneously admitted into evidence, such admission was harmless. However, I write separately because I disagree with the majority‘s conclusion that any fruits of an Edwards violation are inadmissible. I recognize that other courts in some jurisdictions noted by the majority opinion disagree. The court of appeals and the circuit court in this case, like some of the courts from other jurisdictions discussed below, have held that evidence derived from a suspect‘s voluntary statement, given after police questioning in violation of Edwards, is admissible. I agree.
The majority attempts to distinguish Michigan v. Tucker, 417 U.S. 433, 435 (1974), Oregon v. Elstad, 470 U.S. 298 (1985), United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir. 1988), and United States v. Cherry, 794 F.2d 201 (5th Cir. 1986), cert. denied, 479 U.S. 1056 (1987), see majority op. at 240-51, but the factual differences the majority observes cannot obscure the simple result of this line of cases, culminat
In Tucker and Elstad, the United States Supreme Court emphasized that determining whether evidence discovered as the result of a Miranda violation should be admitted depends on whether its exclusion would serve to deter improper police conduct. . . . It is important that all relevant evidence be submitted to the jury in order for it to make the proper findings. This outweighs the need to exclude evidence which was gathered as the result of a non-coercive statement made in violation of the prophylactic rule of Miranda as extended by Edwards. The deterrent value of the rule is satisfied by the exclusion of the statement made as a result of the Miranda or Edwards violations.
The United States Supreme Court has not ruled on the issue before us as to the effect of Edwards on the fruits of voluntary statements made following a request for counsel. Until such time as the Supreme Court rules otherwise, I believe we should follow the reasoning of Cherry, Wilson, and May. I would hold that the weapon and other physical evidence were properly admitted in this case.
For the reasons here stated, I concur.
I am authorized to state that Justice DONALD W. STEINMETZ and Justice JON P. WILCOX join this opinion.
As the opinion correctly observes, Chapman had warned that some constitutional rights are “so basic to a fair trial that their infraction can never be treated as harmless error,” citing as examples the use of a coerced confession, the right to an impartial judge and the right to counsel. Chapman, 386 U.S. at 23. In clarifying the application of harmless error analysis in Wisconsin, the Dyess court referred to this caveat in Chapman and cautioned that the violation of constitutional rights comparable to the three rights enumerated in Chapman renders a harmless error analysis inapplicable and “automatically results in reversal.” Dyess, 124 Wis. 2d at 543 n.10. Dyess also drew support for its adoption of the Chapman standard from Wisconsin‘s harmless error statute,
As the opinion explains, in the subsequent United States Supreme Court decision of Arizona v. Fulminante, 499 U.S. 279 (1991), a narrowly divided (5-4) Court effectively overruled this language in Chapman. This change of direction in federal constitutional jurisprudence created a tension between the Chapman
At least one and arguably two of the rights enumerated in Chapman and Dyess—the right to counsel and the right to a voluntary confession—are implicated in this case. The defendant‘s counsel did not address the tension between Dyess and Fulminante or the prospect that an application of harmless error analysis under the
For the reasons set forth, I join the opinion.
Notes
The Supreme Court, in Nix v. Williams, 467 U.S. 431 (1984), held that evidence concerning the discovery of the victim‘s body, whose location had been revealed during questioning violative of the Sixth Amendment right to counsel, was admissible through the inevitable discovery exception to the exclusionary rule. This holding clearly indicates that the Court‘s analysis began with the assumption that the exclusionary rule is applicable to physical evidence discovered through exploitation of a violation of the right to counsel under the Sixth Amendment. Although we find Nix informative, we do not rely on it because the parties neither briefed the Sixth Amendment issue, nor argued inevitable discovery and we conclude that this case can be fully resolved under the Fifth Amendment.
In New York v. Quarles, 467 U.S. 649 (1984), the Court delineated a “public safety” exception to the requirement of pre-interrogation administration of Miranda warnings. Because it ruled there had been no Miranda violation in the instant case, the Court found no occasion to reach the question whether the gun discovered via the unwarned statement should be admitted either as nontestimonial evidence or through the inevitable discovery exception to the exclusionary rule. Quarles, 467 U.S. at 660 n.9.
Justices White and Brennan dissented to a denial of certiorari in a case involving the admissibility of physical evidence obtained through an unwarned statement on the basis that the Court should answer the question presented which had been expressly left open in Michigan v. Tucker, 417 U.S. 433, 447 (1974) and was not squarely addressed in Oregon v. Elstad, 470 U.S. 298 (1985). Patterson v. United States, 485 U.S. 922 (1988) (White, J., with whom Brennan, J., joins, dissenting from the denial of certiorari).