State v. Chabonian, S

CourtUnited States State Supreme Court of Wisconsin
Citation50 Wis.2d 574,185 N.W.2d 289
Docket NumberNo. S,S
PartiesSTATE of Wisconsin, Respondent, v. Samuel CHABONIAN, Appellant. tate 72.
Decision Date02 April 1971

On October 17, 1967, the appellant, Samuel Chabonian, hereinafter referred to as the defendant, was charged with receiving and having in his possession stolen property, contrary to sec. 943.34, Stats.

On September 23, 1967, a 1967 Mercury Cougar automobile was stolen in Milwaukee. On October 14, 1967, the defendant was stopped by a police officer when he was driving the stolen automobile in Hartford, Wisconsin. The officer requested the defendant to accompany him to the Hartford police station. There the officer phoned the Milwaukee detective bureau. On the same day, Milwaukee Detective Buxbaum came to Hartford, verified that the car was the stolen automobile, and informed the defendant of his constitutional rights. Defendant made certain statements to the detective, largely exculpatory, which are not in issue on this appeal. Buxbaum took the defendant back to Milwaukee 'to write him up,' and there again informed defendant of his constitutional rights. After being advised of his constitutional rights a third time, defendant indicated that he wanted to call his attorney, and did contact him. Subsequently, the defendant stated, as he had earlier, that he had bought the car from one Richard Tuszkiewicz, had a bill of sale to it, and denied knowing that the car was stolen. Detective Buxbaum testified that defendant told him that the defendant had painted the car red, put different, racing-type tires on the rear wheels and removed a hood ornament which was the figure of a horse. Subsequently, Milwaukee Detective Daniels again informed defendant of his constitutional rights. Defendant told Daniels substantially what he had earlier told Buxbaum. The admissibility of these statements is not at issue.

The statement of the defendant around which dispute centers was found by the trial court to have been voluntarily made to Detective Daniels while two detectives, the defendant, defendant's father, defendant's attorney, state's witness Tuszkiewicz and his attorney--seven persons in all-were proceeding on the fourth floor of the Safety Building between the district attorney's office and the office of the issuing magistrate. Several trips between the two offices were made, and it appears that the group straggled back and forth so that all in the group of seven were not within earshot of each other. Detective Daniels, it appears, remarked to the father of the defendant one such trip that '* * * he shoudl talk to his son because his son was on probation now and if he didn't tell the truth, he was going to be hurt by it. * * * ' On one of the back-and-forth walks in the fourth floor corridor, the trial court found that the defendant admitted to Detective Daniels '* * * that he knew the automobile was stolen when he bought it from Tuszkiewicz.'

Taking the stand in his own defense, the defendant denied knowledge that the car was stolen when he purchased it from Tuszkiewicz, and denied admitting that he knew the car was stolen when it was purchased by him. Defendant testified that Tuszkiewicz assisted him in painting the car another color. He testified that he never saw the horse-shaped ornament on the car. He testified that he had put improper, illegal plates on the car. As a state witness, Tuszkiewicz testified he did not sell the car to the defendant, but he did help paint the car a different color.

The court found the defendant guilty and on March 14, 1968, sentenced him to an indeterminate term of not more than three years in the Wisconsin state prisons.

On postconviction motions, defendant introduced statements indicating that the stolen car was seen in Richard Tuszkiewicz' possession in September and October of 1967, and that Tuszkiewicz was seen driving this car during this period. Additionally, defendant introduced testimony by Detective Daniels that he had gone to the filling station formerly owned by Tuszkiewicz, pulled down a wall and found the horse-shaped hood ornament, the license plates of the stolen car, and some personal property of the man from whom the car had been stolen. The trial court denied motions for a new trial on the grounds of newly discovered evidence and in the interest of justice.

Shellow & Shellow, Milwaukee, for appellant.

Robert W. Warren, Atty. Gen., Madison, E. Michael McCann, Dist. Atty., Michael Ash, Asst. Dist. Atty., Milwaukee Co., Milwaukee, for respondent.


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 ad-Miranda as to informing the defendant of missible. Not only was the mandate 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 fo 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 circumtances' 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 persuasive 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 uncoerced, 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, none-theless 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...

To continue reading

Request your trial
17 cases
  • State v. Blizzard
    • United States
    • Court of Appeals of Maryland
    • November 29, 1976
    ...who would later be a witness against him,' and State v. Young, 65 Wash.2d 938, 400 P.2d 374 (1965)); and State v. Chabonian, 50 Wis.2d 574, 579-83, 185 N.W.2d 289, 291 (1971) ('So the question asked on this appeal is whether a volunteered statement by a defendant becomes inadmissible if and......
  • State v. Hatton
    • United States
    • United States State Supreme Court of Idaho
    • April 9, 1974
    ...Coughlan v. United States, 391 F.2d 371 (9th Cir. 1968); Massie v. Commonwealth, 348 F.Supp. 160 (W.D.Va.1972); State v. Chabonian, 50 Wis.2d 574, 185 N.W.2d 289 (1971); State v. Lopez, 80 N.M. 130, 452 P.2d 199 (1969); State v. Beaver, 248 Or. 101, 432 P.2d 509 (1967). See also State v. Or......
  • United States ex rel. Chabonian v. Liek
    • United States
    • U.S. District Court — Eastern District of Wisconsin
    • November 16, 1973 the Wisconsin Supreme Court, which affirmed the decision of the trial court, in handing down the decision of State v. Chabonian, 50 Wis.2d 574, 185 N.W.2d 289 (1971). The grounds raised in this petition are the same as those raised before both the trial court and the Wisconsin Supreme Th......
  • State v. Plude
    • United States
    • United States State Supreme Court of Wisconsin
    • June 10, 2008
    ...that the jury would have accorded more weight to janitor's testimony than that of the other eye witnesses); State v. Chabonian, 50 Wis.2d 574, 584-85, 185 N.W.2d 289 (1971) (newly discovered evidence of the presence of an ornament in defendant's store, which would disprove his testimony tha......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT