Opinion
Argued June 8, 1966 Reargued September 21, 1966
Decided October 27, 1966
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, JOSEPH A. SARAFITE, J.
Bartholomew J. Rebore for appellant. Frank S. Hogan, District Attorney ( Frederick P. Hafetz, H. Richard Uviller and Alan F. Leibowitz of counsel), for respondent. Louis J. Lefkowitz, Attorney-General ( Samuel A. Hirshowitz and Barry Mahoney of counsel), amicus curiae. Leonard Rubenfeld, District Attorney ( Benj. J. Jacobson, James J. Duggan and Francis J. Valentino of counsel), for New York State District Attorneys Association, amicus curiae. Isidore Dollinger, District Attorney of Bronx County ( Roy Broudny and Peter R. De Filippi of counsel), amicus curiae.
The record adequately supports the judgment convicting defendant of manslaughter in the first degree (Penal Law, § 1050, subd. 2). Before defendant was arrested or subjected to any restraint by police, he made admissions and exhibited physical circumstances in his apartment which tended to connect him with the crime.
At this stage of the investigation, the police were asking residents generally in the house in which the victim's body was found their knowledge of facts which might throw some light on the crime.
Decisions which limit admissibility of statements taken after an arrest or effective detention do not apply to the results of this kind of preliminary inquiry.
After defendant was arrested he requested the right to see a lawyer but this request was not promptly followed by the police and before a lawyer reached him, a statement was taken from defendant by an assistant district attorney.
This statement was not offered by the People as part of their direct case against defendant, but was offered on the issue of his credibility after he had been sworn and testified in his own defense.
Although the statement would not have been admissible as part of the People's direct case ( Escobedo v. Illinois, 378 U.S. 478; People v. Donovan, 13 N.Y.2d 148), it was admissible on the question of defendant's credibility as a witness ( Walder v. United States, 347 U.S. 62; Tate v. United States, 283 F.2d 377; Bailey v. United States, 328 F.2d 542; United States v. Curry, 358 F.2d 904).
The basis of distinction between the admissibility of wrongfully obtained evidence in the direct case of the prosecution and its use on the credibility of the defendant as a witness is demonstrated in the opinion of Mr. Justice FRANKFURTER in Walder ( supra, pp. 64, 65). The prosecution cannot "use the fruits of such unlawful conduct to secure a conviction" but "[i]t is quite another [thing] to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine [ Weeks v. United States, 232 U.S. 383] would be a perversion of the Fourth Amendment."
The judgment should be affirmed.
I cannot agree with a rule which, to state it essentially, permits the prosecution to use statements on cross-examination to impeach the defendant's credibility, where the same statements could not be used on the People's direct case.
Statements so taken from a defendant after he has requested access to counsel are inadmissible under the rules laid down in Escobedo v. Illinois ( 378 U.S. 478) and People v. Donovan ( 13 N.Y.2d 148).
Needless to say, the statements were not introduced by the prosecution for the purpose of exculpating the defendant. On the contrary, they were used to impeach him and to establish the unreliability of his testimony. They were, therefore, inculpatory in a very real sense. The proof, indeed, was not a confession, but it was taken in violation of defendant's right to counsel and privilege against self incrimination. Incriminating it was and it should have been excluded.
The Supreme Court has recently addressed itself to this precise question in Miranda v. Arizona ( 384 U.S. 436, 476). The Supreme Court said: "No distinction can be drawn between statements which are direct confessions and statements which amount to `admissions' of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely `exculpatory.' If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself" (emphasis added).
This language adequately disposes of any distinction between statements used on direct as opposed to cross-examination. An incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn.
The language of the Supreme Court, already quoted, makes the rule of Walder v. United States ( 347 U.S. 62) of doubtful validity.
I am, therefore, of the view that the judgment of conviction must be reversed.
Chief Judge DESMOND and Judges VAN VOORHIS, BURKE, SCILEPPI and BERGAN concur in Per Curiam opinion; Judge KEATING dissents in an opinion in which Judge FULD concurs.
Upon reargument: Judgment affirmed.