State v. Chabonian

185 N.W.2d 289, 50 Wis. 2d 574, 1971 Wisc. LEXIS 1219

• Court: Wisconsin Supreme Court
• Decided: April 2, 1971
• Docket: State 72
• Status: Published

Opinions

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:

1. It was made after the defendant had been fully informed of his constitutional rights as required by Miranda. ¹

2. It was volunteered.²

3. It was made after the defendant had retained counsel, and while he was represented by said counsel.

If the defendant did not have a lawyer representing him, it is clear that the first two facts would require a finding that his volunteered admission was admissible. Not only was the mandate of Miranda as to informing the defendant of his constitutional rights thrice complied with, but the requirements of Miranda do not apply to completely volunteered statements by a defendant.³ In a recent case where the trial court had found a confession to be “completely voluntary,” this court upheld its admissibility, stating: “. . . It is not a function of police authorities to protect a perpetrator of crimes against the promptings of his own conscience. ...” ⁴ Whatever the precise nature of the motivation, unless the finding of fact of the trier of fact that the admission here was made and was volunteered is somehow set aside, it would establish admissibility if the defendant did not have a lawyer at the time he made it.

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 police when he was not present to join in hearing them. If the administration of criminal justice is to be in fact a search for the truth, no sound reason, much less constitutional provision, comes to mind for protecting client or counsel from the consequences of an entirely volunteered statement by his client to anyone.

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 surreptitious radio surveillance there involved?” ⁸ The Fifth Circuit decision cites an appeals’ court holding for the view that “all post-indictment statements obtained without counsel regardless of the circumstances” are inadmissible,⁹ but lists more numerous and persuasiye appeals’ court decisions holding to the contrary.¹⁰ For itself, the Fifth Circuit Court adopts the “more restrictive reading of Massiah,” stating:

“. . . 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 un-coerced, 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 a defendant to a police officer can be made in the absence of defendant’s counsel.

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 Tuszkie-wicz 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 by Tuszkiewicz at the time of the incidents involved in this case.

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 probability of a different result being reached, the court stated in denying the new trial motions : “. . . The Court had serious doubts following the close of the testimony that the defendant was the only person who knew or believed that the automobile was stolen. The Court indicated then and indicates now that it is not satisfied that the whole story has been laid on the table, but there is enough of the story to support the finding of guilt of the defendant irrespective of whether other persons may or may not have had like knowledge that the property was stolen or that other persons might have had dealings with the property that would constitute an offense under the Criminal Code of Wisconsin.”

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.

Where the trial was to the court, where the trial court held the newly discovered evidence to go primarily to the knowledge that the car was stolen on the part of others and not to affect the finding that the defendant had such knowledge, it is clear that the trial court held that the newly discovered evidence was not such that would make reasonably probable a different result upon retrial. The granting or denying of a motion for a new trial on the grounds of newly discovered evidence is within the sound discretion of the trial court.¹⁷ While each case is to be considered on its own facts, on the facts here, we find no abuse of discretion in denying the motions for a new trial.

By the Court. — Judgment and orders affirmed.

1 Miranda v. Arizona (1966), 384 U. S. 436, 86 Sup. Ct. 1602, 16 L. Ed. 2d 694.

2 The trial court held the “. . . incriminating statement by defendant given after counsel had been retained . . . not the result of interrogation, eavesdropping, physical or mental coercion.”

3 “The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. . . . Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” Miranda v. Arizona, supra, footnote 1, at page 478.

4 Crummel v. State (1970), 46 Wis. 2d 348, 353, 174 N. W. 2d 517.

5 Massiah v. United States (1964), 377 U. S. 201, 84 Sup. Ct. 1199, 12 L. Ed. 2d 246.

6 United States v. De Loy (5th Cir. 1970), 421 Fed. 2d 900.

7 Id. at page 901.

⁸

9 Id. at page 902.

¹⁰

11 Id. at pages 902, 903.

12 Davis v. State (1967), 33 Wis. 2d 682, 684, 148 N. W. 2d 53.

13 Miranda v. Arizona, supra, at page 478.

14 State v. Richards (1963), 21 Wis. 2d 622, 633, 124 N. W. 2d 684, holding: “We conclude that a defendant in a criminal case is entitled to inspect statements previously made to the authorities by witnesses called to testify on behalf of the state. This right goes only to statements or portions thereof concerning the subject matter of the witness’ testimony and written or signed by the witness or given orally and stenographically or mechanically transcribed. . . . [AJfter direct examination of the witness, upon request of the defendant out of the presence of the jury, the court should order the state to produce for inspection all such statements of the witness in any of the forms referred to.” (Emphasis supplied.)

15 Dunlavy v. Dairyland Mut. Ins. Co. (1963), 21 Wis. 2d 105, 118, 124 N. W. 2d 73.

16 Lock v. State (1966), 31 Wis. 2d 110, 116, 117, 142 N. W. 2d 183.

17 Greer v. State (1968), 40 Wis. 2d 72, 161 N. W. 2d 255, certiorari denied, 393 U. S. 1122, 89 Sup. Ct. 1002, 22 L. Ed. 2d 127.