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Miranda – Impeachment – Harmless Error

State v. Marlon M. Anderson, 2010AP742-CR, District 1/4, 12/9/10

court of appeals decision (3-judge, not recommended for publication); for Anderson: Angela Conrad Kachelski; Anderson BiC; State Resp.

A defendant’s statement made voluntarily but in violation of Miranda isn’t admissible in the State’s case-in-chief, but is admissible if the defendant testifies and the statement is inconsistent with his testimony. The question raised here relates to how such inconsistency is measured: whether outright contradictions are necessary, or “material omissions” suffice.

¶13      The State, citing cases from other jurisdictions, argues that a prior statement is inconsistent with trial testimony if it omits a material fact, see People v. Sholl, 556 N.W.2d 851, 854 (Mich. 1996), or, using different phrasing for the same concept, a fact that would naturally have been asserted in the circumstances.  See Commonwealth v. Rivera, 682 N.E.2d 636, 642 (Mass. 1997).  The State also argues that an inconsistency for impeachment purposes does not require a directly contradictory statement but includes a statement that “tends” to disprove or contradict trial testimony and any inference from it.  People v. Boyd, 222 Cal. App. 3d 541, 566 (Cal. Ct. App. 1990).

¶14      Because Anderson does not make an argument on the meaning of “inconsistent statement” in his main brief and does not file a reply brief, we have no argument that counters the State’s position.  We also observe that the description of a prior inconsistent statement in State v. Richards, 21 Wis. 2d 622, 633-34, 124 N.W.2d 684 (1963), supports the State’s position that an omission may create an inconsistency.  In Richards, in the context of deciding when a criminal defendant may inspect statements made to authorities by witnesses who testify for the State at trial, the court stated that such a statement could be used at trial to impeach the witness if the court “determines that there are such inconsistencies between the testimony and the statements, or such variance between them (including omissions) as would tend to substantially impeach the witness’ testimony.”  Id. In the absence of an argument to the contrary from Anderson, we accept the State’s position that an “inconsistent statement” for impeachment purposes includes statements that contain material omissions and statements that tend to disprove or contradict trial testimony and any inference from it.

The court concludes that 4 statements satisfy this test, thus were properly admitted as prior inconsistent statements notwithstanding the Miranda violation. This includes, for example, the omission from his pretrial statement that the victim swung first and he reacted in self-defense, ¶17. Another statement contained an outright contradiction with Anderson’s trial testimony (denial that he stabbed the victim, versus concession that he did), ¶18.

Other statements are deemed consistent with Anderson’s testimony, therefore erroneously admitted. However, the error was harmless.

¶22      The salient—and unusual—fact about the erroneously admitted evidence here is that it is consistent with Anderson’s trial testimony.  This consistency would bolster Anderson’s credibility and he would benefit by the jury hearing his trial version of events being repeated in a statement made before trial.

This result seems to clear the ground pretty well; if the defendant testifies, odds are that a Miranda-violated statement is going to come in if that’s what the State wants – unless the defendant’s testimony manages to parrot the statement line-for-line.

Not raised by this case, but of possible tangential interest: in contrast to treatment of the defendant, the State may impeach neither its own nor other defense witnesses with illegally obtained evidence, James v. Illinois, 493 U.S. 307, 110 (1990), Kuntz v. McCaughtry, 806 F. Supp. 1373 (E.D. Wis. 1992).

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