|
NOTICE This opinion is
subject to further editing and modification.
The final version will appear in the bound volume of the official
reports. |
|
|
No. 93-0730-CR
STATE OF WISCONSIN
: IN SUPREME COURT
|
|
STATE OF WISCONSIN, Plaintiff-Respondent, v. DIRK E. HARRIS, Defendant-Appellant-Petitioner. |
FILED FEB 29, 1996 Marilyn L. Graves Clerk of Supreme Court Madison, WI |
REVIEW
of a decision of the Court of Appeals. Affirmed.
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 leaving the area.
The next day, Harris was seen driving Owens' car. He also used Owens' credit card to purchase
a bracelet. Harris's mother, Barbara
Harris, told a co-worker that she was afraid that her son was involved in the
murder because he had showed her identification belonging to the dead man. The police interviewed Barbara Harris and
recovered the victim's identification and license plates from her trash. She told police that after her son called
her at work and told her he needed money to leave town, she took him $180. The police arrested James Malone, who told
them that Harris committed the murder.
Harris was arrested in Amarillo, Texas, on December 6, 1988.
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 detective
Sucik who was working on the case and told him the same thing.
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
hour. No Miranda warnings were
given.[2] During the conversation, Blazer mentioned
that he had spoken with Harris's mother.
When Harris responded by asking what his mother had said, Sucik
cautioned him about "getting into the offense itself," because of his
request for an attorney. However, Sucik
later left the room and Blazer testified that he continued the conversation by
informing Harris that certain property of the deceased had been obtained from
his mother's home and that people were in custody in Milwaukee in relation to
the crime. Blazer stated that he had
possibly even told Harris that his fingerprints had been found on the victim's
license plates. When he was told that
Malone had been arrested and charged with the murder, Harris responded that
Malone "had nothing to do with it" and, at that point, indicated that
he wanted to tell the detectives about the offense. Then Blazer recited the Miranda warnings and Harris said
he was willing to waive his right to an attorney. Harris made a confession in which he admitted killing Owens and
told the detectives how and where he had disposed of the gun he used.
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 under the Sixth
Amendment).[3] However, the circuit court went on to find
that the statement Harris made after he was read his Miranda rights was
based on a voluntary and knowing waiver which had not been coerced. It therefore concluded that although the
statement must be suppressed in the State's case-in-chief, it could be used for
impeachment purposes if Harris chose to testify.
The circuit court denied
Harris's later motion to suppress the gun and other physical evidence recovered
as a result of his statement. Relying
primarily on a federal case from the Sixth Circuit,[4]
the court concluded that nontestimonial physical evidence is admissible in the
State's case-in-chief if the statement from which it was derived was
voluntary.
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 to admit, in
the State's case-in-chief, physical evidence discovered solely through a
statement taken in violation of the Edwards proscription against
police-initiated interrogation following a suspect's invocation of the right to
counsel under the Fifth Amendment? (2)
If so, is such error subject to harmless error analysis? Resolution of these questions requires
constitutional interpretation and application of constitutional principles to
facts as established by the circuit court.
Both are tasks which this court undertakes without deference to the
courts below. State v. Jones,
192 Wis. 2d 78, 92‑3, 532 N.W.2d 79 (1995).
APPLICABILITY
OF THE EXCLUSIONARY RULE
In Miranda v. Arizona,
384 U.S. 436, 467 (1966), the Supreme Court fashioned a set of procedural
guidelines designed to protect a suspect's rights under the Fifth Amendment
from the "inherently compelling pressures" of custodial
interrogation. The Court held that the
prosecution was barred from using any statements obtained through custodial
interrogation unless it could "demonstrate[] the use of procedural
safeguards effective to secure the privilege against
self-incrimination." Miranda,
384 U.S. at 444. The Court recommended
that the following, now familiar, procedure be employed:
[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 talk to anyone, he was told that he "had to." He was taken to the officers who read him
his Miranda rights again and Edwards then gave an inculpatory
statement. Edwards, 451 U.S. at
478-79.
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 said could be used against him. When asked if he wanted an attorney, he responded in the
negative. Id. at 444-45. The
police failed to inform Tucker that if he was indigent, counsel would be
provided for him.
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 being
"in direct contrast to the situation here."[7] Tucker, 417 U.S. at 447 n.22.
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 violation is inadmissible as
'fruit of the poisonous tree.'" United
States v. Sangineto-Miranda, 859 F.2d 1501, 1516 (6th Cir. 1988). In response to a question posed prior to
administration of Miranda warnings, the suspect told police where his
truck was located. Drugs were found in
the truck. Relying heavily on Elstad,
the federal appellate court concluded that the evidence was admissible because
the location of the truck had been revealed in a voluntary statement and there
were no indications of coercion. Id.
at 1518. Again, as in Elstad and
Tucker, the violation was limited to a defect in the administration of
required warnings. In Sangineto-Miranda,
the drugs were discovered pursuant to a consensual search of the truck
conducted after the suspect had been informed of, and voluntarily waived his Miranda
rights. Id. at 1519.
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, Cherry was twice
informed of his Miranda rights and signed waivers thereof. He also consented to a search of his cubicle
area in the barracks. Agents found the
victim's billfold and had begun to search space in the ceiling panels above
Cherry's cubicle but suspended their efforts when it grew dark. Cherry, 794 F.2d at 203.
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.
We find that there are
critical distinctions, both factual and legal, between Cherry and the
case at hand.[10] It is notable that Cherry was decided
in 1986, before the Supreme Court's ruling that a request for counsel must be
unambiguous in order to preclude further questioning. Davis v. United States, 114 S.Ct. 2350, 2355 (1994).[11] Prior to his equivocal comment about
counsel, Cherry had twice waived his Miranda rights and had consented to
search of the area where the weapon was eventually found.[12] In contrast, Harris unequivocally and
unambiguously expressed his desire to face custodial questioning only in the
presence of his attorney. Further,
although Sucik cautioned Harris to stay away from the topic of the murder
because he had requested counsel, the detectives did not read Harris his Miranda
rights and Harris did not purport to waive any rights until after more than 45
minutes of "conversation" about the crime.
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 Edwards which is triggered upon
assertion of the right to have counsel present during interrogation. Cherry states that, "Elstad
makes clear that failure to give or carry out the obligation of Miranda
warnings in and of itself is not a constitutional infringement." Cherry, 794 F.2d at 207 (emphasis
added).
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 Fifth Amendment and therefore should not trigger the fruit of the poisonous
tree doctrine in the absence of actual coercion by the police.
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 Fifth Amendment.
We find that there is a
critical difference between a mere defect in the administration of Miranda
warnings "without more" and police-initiated interrogation conducted
after a suspect unambiguously invokes the right to have counsel present during
questioning. The latter is a violation
of a constitutional right.[14] As such, an Edwards violation triggers
the fruit of the poisonous tree doctrine requiring the suppression of the
fruits of that constitutional violation.
In arriving at this conclusion, we have not sailed alone into uncharted
waters. Several courts have followed
similar reasoning and reached the same result--that physical evidence derived
from statements taken in violation of a suspect's asserted right to counsel
must be suppressed.[15] We agree with the Court in Elstad
that the analysis employed therein is "inapposite" once the right to
silence or counsel has been asserted, and we decline to extend Elstad to
cover evidence obtained in violation of Edwards. Therefore, we conclude that the circuit
court erred by allowing the prosecution to use the items retrieved from the
sewer (the gun, bullets, and keys) in its case-in-chief.
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.
Following invocation, the key
issue becomes whether the right to counsel was effectively waived. A suspect may, of course, choose to waive
his right to counsel, but even suspect-initiated conversation does not
constitute a priori proof of waiver.[17] A valid waiver of an asserted right
"cannot be established by showing only that [the suspect] responded to
further police-initiated custodial interrogation even if he has been advised of
his rights." Id. Further, if the authorities reinitiate
contact, "it is presumed that any subsequent waiver that has come at the
authorities' behest, and not at the suspect's own instigation, is itself the
product of the 'inherently compelling pressures' and not the purely voluntary
choice of the suspect." Roberson,
486 U.S. at 681. The Court has
consistently held that, following assertion of the right to counsel,
police-initiated interrogation renders purported waivers ineffective and thus
statements so obtained are inadmissible as substantial evidence in the
prosecution's case-in-chief even if preceded by a purported waiver.[18] See McNeil, 501 U.S. at 177.
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
questioning constituted a substantive violation of Harris's rights under the
Fifth and Fourteenth Amendments. The
fact that 45 minutes to one hour after initiating the "conversation"
Blazer recited the rights that Miranda was crafted to protect and that
Harris then "waived" those rights, does not alter our
conclusion. That waiver is presumed to
be the product of the inherently compelling atmosphere of custodial
interrogation and is, therefore, invalid.
Today we follow the teaching of the Court in Edwards when it
concluded that "the fruits of the interrogation initiated by the police .
. . could not be used against Edwards."[19] Edwards, 451 U.S. at 485. Both the statement and its fruits were
inadmissible in the State's prosecution of Harris.
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 Fifth and Fourteenth Amendments.[20] The Court held that for a federal
constitutional error to be held harmless, "the court must be able to
declare a belief that [the error] was harmless beyond a reasonable doubt." Chapman, 386 U.S. at 24. In Chapman, the Court indicated that
"there are some constitutional rights so basic to a fair trial that their
infraction can never be treated as harmless error," and cited as examples
the use of a coerced confession, right to an impartial judge and right to
counsel.[21] Id. at 23 and n.8.
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 Sixth Amendment right to counsel. See Satterwhite v. Texas, 486
U.S. 249, 256-57 (1988) (involving the erroneous admission of a doctor's
testimony which was based on a psychiatric examination conducted outside the
presence of and without the advice of counsel). The Satterwhite Court distinguished the case at hand from
those involving Sixth Amendment violations that pervade the entire proceeding
and thereby cast so much doubt on the trial's fairness that they should never
be deemed harmless, pointing out that:
[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 Fulminante Court
pointed to numerous other instances, since Chapman, in which
constitutional error has been treated as harmless. Those particularly relevant to our decision today include: Crane
v. Kentucky, 476 U.S. 683 (1986) (exclusion of defendant's testimony
concerning circumstances surrounding his confession); United States v.
Hasting, 461 U.S. 499 (1983) (improper comment on defendant's silence at
trial in violation of the Fifth Amendment privilege against
self-incrimination); Moore v. Illinois, 434 U.S. 220 (1977)
(introduction of testimony identifying the accused from uncounseled line-up
conducted in violation of the Sixth Amendment).[22]
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.
We agree with the principles
expressed above, and like the Supreme Court, remain:
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-chief that were
obtained after the defendant had invoked his right to counsel under the Fifth
Amendment. State v. Billings,
110 Wis. 2d 661, 329 N.W.2d 192 (1983).[23] Because we found the error was not harmless
beyond a reasonable doubt (applying the Chapman standard), we did not
find it necessary to reach the larger question of whether such error could ever
be deemed harmless.[24] Billings, 110 Wis. 2d at 666. Today we take the opportunity to clarify
that the Dyess harmless error test is applicable to the erroneous
admission of evidence obtained in violation of Edwards.
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 heading slowly down the
street which made two U-turns, then stopped in front of his building. The car was only about 15 feet away and
Hungelmann saw only one person in the car, the driver. Although he could not make a positive
identification, he testified that the man was white. The car was a bluish gray, 1984 or 1985 model. He wrote down the license plate number which
was traced to the victim, Dennis Owens. Hungelmann testified that when he
stepped outside the building he saw something in the street and, as he walked
over to see what it was, the car took off.
He found that the object in the street was an African-American man lying
on his side who looked dead.
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 into Harris's car again and Harris said,
"let's go down to the fag bars and roll a queer."
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 him using the man's
credit cards. Malone declined and
Harris left stating he'd be in touch.
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 credit card
slip. Later that afternoon, Harris
drove to his girlfriend's house in the victim's 1985 Pontiac. The two drove to a movie together and
afterwards Harris gave his girlfriend the bracelet he had purchased with Owens'
credit card. He told her he was in
trouble and was going to leave town.
The next day, Harris was arrested in Amarillo, Texas.
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. Harris said that he'd stolen the gun used in
the murder in an earlier burglary in Cudahy and that, after the murder, he'd
gotten rid of it in a sewer near his home.
He also told Loney he had abandoned the car after getting rid of the
license plates.
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.
The following additional
evidence was presented by the State in support of Harris's culpability in the
murder. Police discovered that the car
Harris had been using prior to the murder was itself stolen. After police returned the vehicle to its
owner, she found a spent casing on the floor under the front seat. The casing matched those found at the murder
scene and corroborates Malone's testimony that Harris test-fired the gun while
in that car.
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 evidence admitted in error played a very minor part in
the State's case and was largely cumulative in nature. When the evidence of the gun, bullets and
keys is quantitatively assessed in the context of the whole, its admission does
not undermine our confidence in the outcome of this trial.
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 Edwards[28]
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 11-23, but the factual differences the majority observes cannot obscure
the simple result of this line of cases, culminating in Cherry: the
fruits of a voluntary statement made after an Edwards violation are
admissible, just as, under Tucker and Elstad, the fruits of a Miranda
violation are admissible when there is only a violation of the Miranda
prophylactic rule, and not of the suspect's constitutional rights. See Cherry, 794 F.2d at 208
n.6 ("[D]ifferent interests prevail when we evaluate derivative evidence
obtained through the exploitation of statements obtained in violation of
Miranda and Edwards but which, nevertheless, were voluntary."); see
also Wilson v. Zant, 290 S.E.2d 442, 448 (Ga. 1982), cert. denied,
459 U.S. 1092 (1982) ("[T]he exclusionary rule does not apply to evidence
derived from a voluntary statement obtained in violation of Edwards v.
Arizona . . . ."); State v. May, 434 S.E.2d. 180, 182 (N.C.
1993), cert. denied, 114 S. Ct. 1310 (1994). The reasoning of the majority, that the violation here was of
Harris's constitutional rights and not merely of the prohibition against
interrogation from Edwards, see majority op. at 19-20, was
rightly rejected by the courts that have reached a contrary result. See, e.g., May, 434 S.E.2d at
182 (noting that violation at issue was of "the prophylactic rule of Miranda
as extended by Edwards," but not of a constitutional right). Edwards presented a prophylactic rule
plainly violated in this case, but just as plainly Harris's statement was
voluntary. The statement is rightly
suppressed, but to suppress the evidence derived from a voluntary statement
unnecessarily extends Edwards' "second layer of prophylaxis," McNeil
v. Wisconsin, 501 U.S. 171, 176 (1991), to a much broader protection than
it need be, or should be. Cherry,
Wilson, and May, in my opinion, are better reasoned, and result
in a rule more in keeping with sound public policy while protecting defendants
from having inculpatory statements or admissions used against them. As the North Carolina Supreme Court stated
in May:
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.
May, 434 S.E.2d at 613.
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.
SHIRLEY S. ABRAHAMSON,
J. (concurring). The
court's opinion correctly states the applicable federal constitutional law and
I therefore join it. I write separately
to emphasize my concern that we have embraced the United States Supreme Court's
recent departure from its longstanding harmless error test without having had
an adequate opportunity to consider whether Wisconsin should follow suit or,
alternatively, retain our adherence to the standard enunciated by the Court in Chapman
v. California, 386 U.S. 18, 23 (1967) and adopted by this court in State
v. Dyess, 124 Wis. 2d 525, 370 N.W.2d 222 (1985).
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, Wis. Stat. § 805.18 (1993-94).
Dyess, 124 Wis. 2d at 547.
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 standard which we had adopted in Dyess and the new
federal standard articulated in Fulminante.
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 Wisconsin Constitution, Dyess, and
Wis. Stat. § 805.18 might afford defendants more protection than does the
federal constitution. Had counsel done
so, the court would have been in a position to assess more fully whether it
should adopt the new harmless error standard announced in Fulminante in
lieu of this court's Dyess
standard. Because the state law issues
were not briefed, however, I do not comment on their merits. See State v. Pitsch, 124
Wis. 2d 628, 646, 369 N.W.2d 711 (1985).
For the reasons set forth, I
join the opinion.
SUPREME
COURT OF WISCONSIN
Case No.: 93-0730-CR
Complete Title
of Case: State of Wisconsin,
Plaintiff-Respondent,
v.
Dirk E. Harris,
Defendant-Appellant-Petitioner.
____________________________________
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 189 Wis. 2d
162, 525 N.W.2d 334
(Ct. App. 1994)
PUBLISHED
Opinion Filed: February
29, l996
Submitted on Briefs:
Oral Argument: October
31, 1995
Source of APPEAL
COURT: Circuit
COUNTY: Milwaukee
JUDGE: WILLIAM D. GARDNER
JUSTICES:
Concurred: DAY, C.J., ABRAHAMSON, J. concur
Dissented:
Not Participating:
ATTORNEYS: For the defendant-appellant-petitioner
there were briefs and oral argument by William O. Marquis, Milwaukee.
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.
[3] Although
the circuit court found there had been a violation of the right to counsel
under both the Sixth and Fifth Amendments, the parties' appellate briefs and
the court of appeals' decision are limited to analysis under the Fifth
Amendment. The Sixth Amendment right to
counsel attaches upon formal commencement of prosecution, here in Wisconsin,
upon filing of the criminal complaint or issuance of a warrant. Jones v. State, 63 Wis. 2d 97, 105,
216 N.W.2d 224 (1974). Both the
criminal complaint and arrest warrant were issued for Harris on December 7,
1988, before Sucik and Blazer left for Texas.
Once asserted, the Sixth Amendment right to counsel bars further
uncounseled interrogation by police concerning the charged crime, and any
subsequent waivers are presumed ineffective.
See Michigan v. Jackson, 475 U.S. 625 (1986).
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.
[5] Not only
is this a case of first impression in Wisconsin, but the United States Supreme
Court has yet to rule directly on point.
The Court has not addressed the question of admissibility of physical
evidence derived from an Edwards violation. The admissibility of such evidence derived from a Miranda
violation has been broached but not reached.
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).
[6] We note that the critical facts in this case are readily distinguishable from those we encountered in our recent decision, State v. Coerper, No. 94-2791-CR (S. Ct. Feb. 20, 1996), in which the right to counsel under the Fifth Amendment was not implicated because the defendant never personally asserted this right.
[7] The Court's language implies that the outcome might have been different if Tucker had asserted his right to have counsel present. The broader implication is that a violation of an asserted right is substantively different than a simple defect in warning a suspect of the existence of that right.
[8] In its opinion, the court of appeals drew heavily upon Cherry, which it characterized as involving "virtually identical circumstances." Harris, 189 Wis. 2d at 177.
[9] The arrest was later held to be illegal. United States v. Cherry, 794 F.2d 201, 203 (5th Cir. 1986). Cherry's cause was twice remanded to the district court on various claims. See Cherry, 794 F.2d at 204. We are concerned in the present analysis only with the opinions rendered by the Fifth Circuit in its third review of the matter.
[10] Further, we point out that, although they may at times be informative, we are in no way bound by decisions of the federal circuit courts even if they are on all fours with the case before us. See Thompson v. Village of Hales Corners, 115 Wis. 2d 289, 307, 340 N.W.2d 704 (1983).
[12] In fact, on the second remand, the court determined that the gun was admissible under the inevitable discovery rule. Cherry, 794 F.2d at 204.
[13] The State correctly points out that the bright-line rule established in Edwards has alternatively been referred to as a "prophylactic rule" (Michigan v. Harvey, 494 U.S. 344, 349 (1990)) and a "second layer of prophylaxis" (McNeil v. Wisconsin, 501 U.S. 171, 176 (1991)). It has also been referred to as a "corollary to Miranda" (Arizona v. Roberson, 486 U.S. 675, 680 (1988)), and "reinforce[ment of] the [Miranda] protections" (Minnick v. Mississippi,498 U.S. 146, 147 (1990)). It is not the nomenclature that concerns us so much as the substance of the protections crafted by the Court in Miranda, Edwards and their progeny and the impact of violations thereof on constitutionally-protected rights.
[14] "'[T]he right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege,'" Fare v. Michael C., 442 U.S. 707, 719 (1979), (quoting Miranda, 384 U.S. 436, 469 (1966)); "an accused has a Fifth and Fourteenth Amendment right to have counsel present during custodial interrogation," Edwards v. Arizona, 451 U.S. 477, 482 (1981); after invocation, "subsequent incriminating statements made without his attorney present violated the rights secured to the defendant by the Fifth and Fourteenth Amendments," Oregon v. Bradshaw, 462 U.S. 1039, 1043 (1983) (describing the Edwards holding).
[15] See,
e.g., Boles v. Foltz, 816 F.2d 1132 (6th Cir. 1987), cert. denied,
484 U.S. 857 (1987) (finding as harmless error improper admission of confession
and its derivative evidence obtained through interrogation following invocation
of rights under Edwards); United States v. Downing, 665 F.2d 404
(1st Cir. 1981) (holding any evidence obtained as a result of violation of
suspect's Fifth Amendment right to have counsel present during interrogation is
inadmissible); United States ex rel. Hudson v. Cannon, 529 F.2d 890 (7th
Cir. 1976) (holding denial of suspect's requests to call attorney entitled him
to establish that his right to counsel had been violated and that testimony of
accomplices was "tainted fruit" of these violations); United
States v. Massey, 437 F. Supp. 843 (M.D. Fla. 1977) (concluding fruit of
poisonous tree doctrine applicable to all indirect evidence, testimonial and
tangible, acquired through suspect's admissions made in violation of asserted
right to counsel under the Fifth Amendment); Commonwealth v. White, 371
N.E.2d 777, 780-81 (Mass. 1977), aff'd by an equally divided court, 439
U.S. 280 (1978) (finding that evidence obtained after suspect had
"affirmatively demonstrated a desire for the assistance of counsel"
could not be used).
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.
[16]
Throughout the course of this case Harris has argued that the gun and
other physical evidence should be excluded because his statements to Sucik and
Blazer were coerced under the traditional due process voluntariness
standard. We will not address these
arguments further as voluntariness is not the critical factor in determining
whether evidence gathered in violation of Edwards is admissible in the
State's case-in-chief.
Alternatively, Harris asks this court to base its decision on an affirmation of what he characterizes as the primary principle of Wentela v. State, 95 Wis. 2d 283, 299-300, 290 N.W.2d 312 (1980),-- that the tainted fruit of illegal confessions must be suppressed. In 1980, this court found Wentela's statement, "I think I need an attorney," sufficient as an assertion of the right to counsel and yet we declined to apply a blanket bar on further questioning or a per se exclusionary rule to evidence obtained after assertion of the right to counsel. Id. at 292. Instead, we applied the "scrupulously honored" standard from Michigan v. Mosley, 423 U.S. 96 (1975), (which involved violation of the asserted right to silence) in finding that because the defendant's rights had not been respected his subsequent statements must be suppressed. Id. at 299. While we do not overrule Wentela, neither do we rely on it as controlling. Too much critical law has since been made (Wentela was decided before Edwards, Elstad and Davis). We find that Wentela gives us very little guidance today.
[17] See Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983) (even if the suspect initiates contact after invocation, "the burden remains upon the prosecution to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation").
[18] Although the circuit court used the word "waiver" in ruling that Harris' statement was available for impeachment purposes, there was no mention of the presumption against the validity of that waiver nor does the record reflect the inquiry required to determine that a suspect has knowingly and intelligently waived a known right. The court's analysis appears to have been limited to the question of voluntariness under due process standards.
[19] The "fruits of interrogation" at issue in Edwards are discussed only in terms of the defendant's confession and involuntary statements, not physical evidence.
[20] The defendants had been tried under a California constitutional provision that allowed the prosecution to comment on a defendant's failure to testify in his defense and to urge the jury to draw inferences of guilt therefrom. While Chapman and co-defendant Teals' appeal was pending, this provision was struck down in Griffin v. California, 380 U.S. 609 (1965), on the grounds that it punished a defendant for exercising the right against compelled self-incrimination. Chapman v. California, 386 U.S. 18, 19 (1967).
[21] The case Chapman cites regarding the right to counsel is Gideon v. Wainwright, 372 U.S. 335 (1963), which involved a total deprivation of counsel throughout proceedings.
[22] As is logically implied by the dearth of Supreme Court cases that directly address the issue at hand, the Court has yet to apply harmless error to a fully analogous case. Milton v. Wainwright, 407 U.S. 371 (1972), a habeas corpus review, provides the closest authority. There, the Court did not find a need to reach the merits of the petitioner's "arguable" claims of Miranda and Sixth Amendment right to counsel violations because it found that admission of the challenged evidence was harmless beyond a reasonable doubt. The Seventh Circuit has applied harmless error to evidence admitted in violation of Miranda (See United States v. Jackson, 429 F.2d 1368, 1372-73 (7th Cir. 1970)), and to "arguable" violations of Edwards (United States v. D'Antoni, 856 F.2d 975, 982 (7th Cir. 1988)).
[23] The inquiry in Billings is framed in terms of the applicability of harmless error analysis to a violation of the right to counsel under Miranda. State v. Billings, 110 Wis. 2d 661, 329 N.W.2d 192, 665-66 (1983). No mention is made of Edwards.
[24] The court of appeals, in State v. Goetsch, 186 Wis. 2d 1, 11, 519 N.W.2d 634 (Ct. App. 1994), found that statements made after the defendant had invoked his right to silence were erroneously admitted. Applying the Dyess analysis, the court concluded that the error was harmless in that it "could not reasonably have contributed to [Goetsch's] conviction." Id.
[25] The court informed the jury that Malone, being tried separately, was charged with the same crimes as Harris--first degree homicide and armed robbery as a party to the crime.