People v. Kusowski

• Citation: 403 Mich. 653,272 N.W.2d 503
• Decision Date: 22 December 1978
• Docket Number: Docket No. 59083,No. 14,14
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John KUSOWSKI, Defendant-Appellee. Calendar
• Court: Supreme Court of Michigan

Page 503

272 N.W.2d 503

403 Mich. 653

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John KUSOWSKI, Defendant-Appellee.

Docket No. 59083.

Calendar No. 14.

Supreme Court of Michigan.

Argued Dec. 7, 1977.

Decided Dec. 22, 1978.

Robert L. Kaczmarek, Saginaw County Pros. by Peter C. Jensen, Asst. Pros. Atty., Saginaw, for plaintiff-appellant.

H. William Martin, Saginaw, for defendant-appellee.

KAVANAGH, Chief Justice.

Defendant, John Kusowski, was convicted by a jury of second-degree murder on March 26, 1975. The conviction largely rested upon the testimony of two witnesses whose identities were discovered through statements illegally elicited from the defendant. We granted appeal limited to the issue of whether the Court of Appeals erred in concluding that the testimonial fruits of the illegally obtained statements should have been excluded at trial. Finding error, we reverse.

I

At approximately noon on July 31, 1974, John Kusowski was arrested by Saginaw County authorities for the murder of August Tvardos. On that day, the defendant was questioned twice by the police, once before and once after his arrest. The first interrogation session, which took place in the police patrol car parked in the defendant's driveway, resulted in his arrest. The second interrogation was conducted at the police station approximately three hours after the arrest. During both interrogations, defendant told the police that he had visited his friends, Richard Ban and Robert Sovine, at the Fordney Hotel after he hit the victim over the head with a shotgun on the night of July 28, 1974.

It was admitted at trial by Detective Sergeant Daniel Huff, one of the arresting officers, that at the time he interrogated the defendant in the patrol car he did not know of the identity of either Ban or Sovine. Therefore, at least initially, knowledge of the identities of these witnesses was obtained solely through the statements elicited from the defendant.

Neither Ban nor Sovine initiated contact with the police concerning their July 28, 1974, visit with the defendant. Richard Ban was approached by Officer Huff on July 31, 1974, the day defendant was arrested, and the police contacted Robert Sovine on August 8, 1974. Ban therefore did not divulge what he knew about the death of August Tvardos until three days after the defendant is said to have fatally injured him, and it was approximately eleven days before Sovine gave the police the information he had.

On March 3, 1975, after receiving testimony concerning the circumstances under which the defendant was interrogated, the trial court excluded defendant's statements from use as evidence at trial. The reason assigned was that the prosecution had failed to carry the burden of showing that the defendant had waived his rights to silence and to appointed counsel before being questioned. On the first day of trial, the court denied the defendant's motion to exclude the testimony of Ban and Sovine.

Both Ban and Sovine testified against the defendant and stated that Kusowski had come to their hotel room on July 28, 1974, blurting out that he thought he had killed Tvardos. Each witness testified that Kusowski had blood on his clothing and appeared to be extremely agitated.

On appeal, the Court of Appeals reversed the trial court's denial of the defendant's motion to suppress the testimony of Ban and Sovine.

II

Even though the trial court based the suppression order in part on the failure to show waiver of the right to appointed counsel, the defendant does not specifically argue that his Sixth Amendment right to counsel was violated. In any event, we are convinced that the United States Supreme Court would not find such an argument persuasive. See Michigan v. Tucker, 417 U.S. 433, 438, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969). ¹

Neither are we presented with a violation of Kusowski's Fifth Amendment privilege against self-incrimination. It is uncontroverted that prior to each interrogation session the defendant was fully advised of his privilege and reminded that anything he said could be used against him. The defendant does not allege that he was threatened or forced into speaking at either interrogation. The interrogating officer testified that no such coercive tactics were employed. The first interrogation lasted from ten to thirteen minutes. There thus was "no compulsion sufficient to breach the right against compulsory self-incrimination". Tucker, supra, 417 U.S. 445, 94 S.Ct. 2364.

III

Although we are convinced that no error of constitutional dimension was committed by the police in this case, the trial court did hold that the prosecutor failed to demonstrate that the defendant had waived his right against self-incrimination and his right to appointed counsel. Hence, the trial court found a violation of the requirement of Miranda, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed 694, that a defendant must "voluntarily, knowingly and intelligently" waive his rights before being questioned. Finding such violation, the trial court suppressed the defendant's statements as required under Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). Whether these trial court determinations were proper is not before us because there was no application for review. The only issue properly appealed is whether the Court of Appeals erred in deciding that the testimony of Ban and Sovine was inadmissible.

In Tucker, supra, the United States Supreme Court held that third-party testimonial evidence derived from a Miranda violation is not to be excluded where the interrogation occurred before the decision in Miranda. The Court has not decided whether the same result obtains in a case such as this, where the questioning occurred after the Miranda decision. Our reading of Tucker convinces us that it does.

Prior to Tucker the Court appeared to equate a Miranda violation with an infringement of a constitutional right. ² But Tucker makes it clear that a majority of the Court does not now consider a violation of Miranda as necessarily involving a violation of the constitution. Thus, Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), which held "that the 'fruits' of police conduct which actually infringed a defendant's Fourth Amendment rights must be suppressed", is not controlling precedent where a Miranda violation is involved. Tucker, supra, 417 U.S. 445-446, 94 S.Ct. 2357.

Tucker therefore indicates that the applicability of the exclusionary rule under circumstances involving testimony obtained as a result of a Miranda violation is not a foregone conclusion, but would in essence involve an extension of the suppression rule. In recent cases the Supreme Court has refused to extend application of the exclusionary rule beyond those circumstances in which it already operates. ³

For example, in United States v. Janis, 428 U.S. 433, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976), the Court considered whether the exclusionary rule operates in a Federal civil action to prevent the use of evidence seized by state authorities pursuant to an invalid search warrant. After balancing the interests involved, the Court held that suppression of the evidence in a civil proceeding was not justified.

Furthermore, the Court in United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978), recently stated the Tucker holding in broad terms, not limiting it to interrogations occurring prior to Miranda. Writing for the majority, Justice Rehnquist said:

"(T)he Court has also held admissible at trial testimony of a witness whose identity was disclosed by the defendant's statement given after inadequate Miranda warnings. Michigan v. Tucker, 417 U.S. 433, 450-451, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974)." Ceccolini, supra, 278, 98 S.Ct. 1061.

This statement of the Tucker holding prompted no response from the dissenting members of the Court.

We have found no case decided since Tucker, and none is pointed out, holding that third-party testimony discovered as a result of a Miranda violation is to be suppressed. Those courts which have addressed the question have concluded that the interest in preventing future police conduct which violates Miranda does not justify depriving the government of use of the evidence. ⁴

The Court of Appeals erred in deciding that the testimony of Ban and Sovine should have been suppressed.

Reversed.

KAVANAGH, C. J., and LEVIN, COLEMAN, FITZGERALD and RYAN, JJ., concur.

WILLIAMS, Justice.

This case concerns the "inevitable discovery" exception to the "fruit-of-the-poisonous-tree" exclusionary rule. At issue is the admissibility of the testimony of witnesses whose identity was discovered through statements made by the defendant.

The defendant's actual statements were suppressed by the trial court for failure to show a valid waiver. The testimony of the so-discovered witnesses was allowed over objection by defense counsel that the fruit-of-the-poisonous-tree exclusionary rule should be applied to any evidence derived from the defendant's suppressed statements. The Court of Appeals found the fruit-of-the-poisonous-tree doctrine applicable to the testimony of the witnesses, reversed the defendant's conviction and remanded for a new trial.

We find that the instant case falls into the "inevitable discovery" exception to the exclusionary rule. ¹ We reverse the Court of Appeals. Defendant's conviction is reinstated.

I. FACTS

On July 31, 1974, the body of August Tvardos was discovered in his house. While investigating the homicide the police were informed by a relative of the deceased that John Kusowski, the defendant, had some contact with the deceased concerning money. The same day the police went to defendant's home and escorted him to the squad car for questioning. At this time defendant admitted that he (1) knew Tvardos, (2) had been in his home and (3) had struck Tvardos over...