LEVIN, J.
In 1941, Fred Marsh was convicted of first degree murder following his plea of guilty. In 1966, the circuit judge granted Marsh a new trial because of deficiencies in his 1941 conviction. Prior to the new trial, on the authority of Miranda v. Arizona (1966), 384 U.S. 436 ( 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974), the judge suppressed a written statement given by Marsh in 1941 to the prosecuting attorney.
At the new trial Marsh testified. He did not deny killing Herman Berger. The question for jury decision was whether the defendant was guilty of first or second degree murder, manslaughter or not guilty. The jury's verdict was first degree murder.
Marsh claims that the circuit judge erred in allowing, for the purpose of impeachment, questions to be put to him and testimony concerning the suppressed 1941 written statement given the prosecutor and oral statements allegedly made by Marsh to police officers shortly after he was apprehended.
At the time of the crime Marsh was 22 years old, a 5th-grade drop-out, a well-known waif with no settled residence, living in a relatively small town. He slept wherever a bed might be offered him. For a living he did "odd jobs" about town and was employed by, among others, Chaloner's store, of which Berger was manager.
Marsh testified at trial that on the night of the crime he went to Berger's apartment to request a place to sleep for the night, that after a few moments conversation and refusal of the request Berger "started calling me [Marsh] thieves. Jumped up from the chair and pushed me, got in a struggle." Defendant remembered struggling with Berger and tying Berger's tie around his neck. Evidence showed Berger's death was caused by severance of a nerve, which in turn resulted from a ruler being pushed down his throat. A bottle of ink was poured into Berger's mouth, but that was not the cause of death.
Marsh claims that after the struggle Berger became quiet, ceased calling him "names," he became frightened, saw Berger's wallet and key chain on a nearby desk [from which the ruler and ink were taken] and ran with these.
On the key chain was the Chaloner's store key, which defendant used to enter the store. There he took from the unlocked store safe some $200 and American Express receipts. The receipts were thrown away. Three cash registers containing money were untouched. Later that night Marsh left town by taxi for Toledo, Ohio. He was apprehended by police on a bus in Pennsylvania and brought back to Lenawee county for trial.
On the trip from Pennsylvania to Michigan statements concerning the killing were allegedly made by Marsh to the accompanying officers. When Marsh reached Michigan he gave the written statement, suppressed in 1966, to the assistant prosecuting attorney, was arraigned, pleaded guilty, was examined by a sanity commission and convicted of first degree murder and sentenced to life imprisonment.
At the 1966 trial Marsh testified on direct examination:
"Q. Now, have you ever stated, admitted anything of the sort that you intended to rob Chaloner's store or to rob Mr. Berger?
"A. No, sir, I never made such a statement.
"Q. Did you intend to do so?
"A. No, sir.
"Q. Did you intend to kill Herman?
"A. No, sir.
"Q. Did you intend to kill Herman, even during the struggle?
"A. No, sir."
Over objection the circuit judge allowed the prosecutor to question Marsh on cross-examination concerning the 1941 written and oral statements for the purpose of impeaching Marsh's testimony that he did not intend to kill or rob Berger and had never admitted to anyone he did. Also over objection, the prosecutor was allowed to question one of the officers who escorted Marsh from Pennsylvania concerning oral statements allegedly made during that journey. The circuit judge gave three reasons for his rulings: (1) the statements were "proper, legal rebuttal" to defendant's direct testimony that he did not go to Berger's apartment to rob and that he told no one he did, (2) the statements, though inadmissible in chief, were "voluntary" because not "coerced" in the traditional sense, and (3) by questioning defendant on direct examination about the statements, defense counsel "lifted the lid * * * and opened the door" to their use as means of impeachment.
I.
In Johnson v. New Jersey (1966), 384 U.S. 719 ( 86 S Ct 1772, 16 L Ed 2d 882), the United States Supreme Court held Miranda applicable only to trials beginning after the Miranda decision date, June 13, 1966. Marsh was originally convicted 25 years prior to Miranda. The trial which resulted in the conviction from which he appeals followed Miranda.
Neither at trial nor on this appeal have the people contended that Miranda is inapplicable in a case such as this where the defendant was originally convicted prior to Miranda and newly tried after Miranda. Accordingly, that question is not before us and is not decided. We intimate no opinion thereon. We defer consideration of that question to a case where it has been properly raised and briefed. Resolution of that question would require thorough exploration of the policies involved in retrospectivity-prospectivity, and the problem of possible decisional conflict between State and Federal courts within the State.
Following Marsh's 1941 plea of guilty, the court, pursuant to CL 1929, § 16710 (presently CL 1948, § 750.318 [Stat Ann 1954 Rev § 28.550]), examined witnesses "to determine the degree of the crime." Proceedings to determine the degree of guilt are not necessarily to be regarded as a "trial." See People v. Roberts (1920), 211 Mich. 187, 193.
Of the 16 cases we find touching the problem, 11 decide Miranda should apply at retrials: Gibson v. United States (CA 5, 1966), 363 F.2d 146; State v. Brock (1966), 101 Ariz. 168 ( 416 P.2d 601); State v. Shoffner (1966), 31 Wis.2d 412 ( 143 N.W.2d 458); People v. Doherty (1967), 67 Cal.2d 9 ( 59 Cal.Rptr. 857, 429 P.2d 177); State v. Bradshaw (1966), ___ RI ___ ( 221 A.2d 815); United States, ex rel. Pierce, v. Pinto (D NJ, 1966), 259 F. Supp. 729, aff'd (CA 3, 1967), 374 F.2d 472, reversed per curiam on other grounds sub nom Pinto v. Pierce (1967), 389 U.S. 31 ( 88 S Ct 192, 19 L Ed 2d 31); State v. Ruiz (1966), 49 Haw. 504 ( 421 P.2d 305); Creech v. Commonwealth (Ky, 1967) ( 412 S.W.2d 245); People v. Sayers (1967), 28 App. Div. 2d 227 ( 284 N.Y.S.2d 481); State v. McCarther (1966), 197 Kan. 279 ( 416 P.2d 290); State v. Jackson (1967), 270 N.C. 773 ( 155 S.E.2d 236). Five decide Miranda should not apply: People v. LaBelle (1967), 53 Misc.2d 111 ( 277 N.Y.S.2d 847); State v. Vigliano (1967), 50 N.J. 51 ( 232 A.2d 129); People v. Worley (1967), 37 Ill.2d 439 ( 227 N.E.2d 746); Jenkins v. State (1967), ___ Del ___ ( 230 A.2d 262); Boone v. State of Maryland (1968), 3 Md. App. 11 ( 237 A.2d 787). See, also, the dissenting opinion in People v. Sayers, supra, 28 App. Div. 2d 227, 230-232 ( 284 N.Y.S.2d 481, 482, 484).
The United States Supreme Court has granted certiorari to review Jenkins v. State, supra, 37 L W 3184, November 19, 1968.
See People v. Doherty and State v. Vigliano, supra footnote 2, for divergent holdings but good discussions of the policies underlying prospectivity in Miranda. See, also, People v. Fordyce (1966), 378 Mich. 208, 211, where the Court noted the disruption of judicial administration which would result if new trials could be granted on the ground of Miranda. Marsh's new trial was not granted on that ground.
Compare the holding in Commonwealth v. Little (1967), 210 Pa. Super. 418, ( 232 A.2d 637), with United States, ex rel. Smith v. Brierly (ED Pa, 1967), 267 F. Supp. 274, and United States, ex rel. Staino, v. Brierly (ED Pa, 1967), 269 F. Supp. 753.
We note that this Court has held the prospective decision of People v. Hamilton (1960), 359 Mich. 410, applicable to a retrial where the original trial occurred before Hamilton but a new trial was granted on grounds other than Hamilton. People v. Besonen (1966), 4 Mich. App. 131, 139.
The failure of the people to challenge Miranda's applicability on this appeal precludes the issue from being raised at the time of the new trial herein ordered and makes it unnecessary on this appeal to consider the significance of failure to give the Miranda required warnings where the question is one of voluntariness in the traditional sense in a case governed by pre- Miranda law.
As a general rule, parties will not be permitted to present their claims piecemeal. State v. Loveless (1944), 62 Nev. 312 ( 150 P.2d 1015, 1017); 5B CJS, Appeal and Error § 1825, p 197. In view of the length of this litigation that rule is here invoked.
In this connection see the United States Supreme Court's observations in Davis v. North Carolina (1966), 384 U.S. 737, 740, 741 ( 86 S Ct 1761, 16 L Ed 2d 895). See, also, Clewis v. Texas (1967) 386 U.S. 707, 709, 710 ( 87 S Ct 1338, 18 L Ed 2d 423); Coyote v. United States (CA 10, 1967) 380 F.2d 305, 309, 310; Townsend v. Sain (1963), 372 U.S. 293, 308, n 4 ( 83 S Ct 745, 9 L Ed 2d 770); see, also, People v. Hamilton, supra; People v. Besonen, supra.
Nor do the people assert that the accused's oral statements are governed by a rule different from that applicable to the written statement.
People v. Underwood (1964), 61 Cal.2d 113, 120, 121 ( 37 Cal.Rptr. 313, 317, 389 P.2d 937, 941). The Miranda rule applies without distinction to both "confessions" and "admissions." Miranda v. Arizona, supra, p 476. Likewise, this Court in People v. Besonen, supra, pp 137, 138, construed People v. Hamilton, supra, as forbidding a distinction between "confessions, admissions and statements, whether inculpatory or exculpatory."
For the purposes of this opinion we proceed on the assumption that the 1941 confession, as the trial judge found, is inadmissible.
II.
Prior to Miranda the majority rule was that an "involuntary or not properly qualified confession may not be used to impeach an accused person who takes the witness stand in his own behalf." For decisions supporting and opposing that view, see Annotation, Impeachment of accused as witness by use of involuntary or not properly qualified confession, 89 ALR2d 478, 479. The decisions discussed in that annotation were decided prior to Malloy v. Hogan (1964), 378 U.S. 1 ( 84 S Ct 1489, 12 L Ed 2d 653), which held the Fifth Amendment applies to the States via the Fourteenth Amendment, and Federal standards govern its application. See In re Colacasides (1967), 379 Mich. 69, 84.
Cf. Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 392 ( 40 S Ct 182, 64 L Ed 319), where the Court observed: "The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the court, but that it shall not be used at all."
In 1925, the United States Supreme Court held that use of illegally seized, and therefore inadmissible, evidence [cocaine] to impeach the defendant was a violation of his Fifth Amendment right not to be compelled to incriminate himself. On cross-examination the defendant had denied he ever had seen the seized narcotics. The court ruled that the defendant "did nothing to waive his constitutional protection or to justify cross-examination in respect of the evidence claimed to have been obtained by the search." Agnello v. United States (1925), 269 U.S. 20, 35 ( 46 S Ct 4, 70 L Ed 145).
An exception to the exclusionary rule was recognized in Walder v. United States (1954), 347 U.S. 62 ( 74 S Ct 354, 98 L Ed 503). Defendant was on trial for illicit transactions in narcotics under a 1952 indictment. He testified on direct examination, "I have never sold any narcotics to anyone in my life," and that he had never possessed narcotics. The court held the introduction of evidence illegally seized in 1950 for impeachment permissible because "the defendant went beyond a mere denial of complicity in the crimes * * * and made the sweeping claim that he had never dealt in or possessed any narcotics." (p 65)
The court emphasized that the 1950 illegal evidence did not relate to proof of defendant's guilt under the 1952 indictment and that it was in answer to a "sweeping claim" by defendant over and beyond the denial of the criminal elements:
"Of course, the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all the elements of the case against him without thereby giving leave to the government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." (p 65) (Emphasis supplied.)
The Walder exception has been consistently limited to impeachment concerning matters which do not bear on defendant's innocence or guilt, matters unrelated to the criminal elements under the indictment.
See Kent, Miranda v. Arizona — The Use of Inadmissible Evidence for Impeachment Purposes, 18 Western Res L R 1177 (1967), for a review of cases following Walder. See, also, People v. Davis (1966), 241 Cal.App.2d 51, 54 ( 50 Cal.Rptr. 215, 218), and Commonwealth v. Wright (1964), 415 Pa. 55, 60 ( 202 A.2d 79, 81). The people's brief directs us to United States v. Curry (CA 2, 1966), 358 F.2d 904, but that case is not in point. The court there, following Walder, approved questioning defendant about prior statements collateral to the issue of guilt.
The United States Court of Appeals for the District of Columbia recently summarized the post- Walder law:
"Since then [Walder], we have held that an inadmissible statement can be used only when the defendant makes `sweeping claims that go far beyond the crime charged,' [ White v. United States (1965), 121 App DC 287, 290 ( 349 F.2d 965, 968)] is impeached on a statement relating to `lawful proper acts' [ Tate v. United States (1960), 109 App DC 13, 16 ( 283 F.2d 377, 380)] `collateral' to the issues before the jury [ Tate v. United States, supra, p 17 (283 F.2d, p 381)], or is questioned about `minor points.' [ Bailey v. United States (1964), 117 App DC 241, 242 ( 328 F.2d 542, 543), cert. denied 377 U.S. 972 ( 84 S Ct 1655; 12 L Ed 2d 741).] In such situations, impeachment of the defendant affects only his credibility, since the truth of the impeaching statement does not itself tend to establish guilt. [ Johnson v. United States (1964), 120 App DC 69, 72 ( 344 F.2d 163, 166).]" Inge v. United States (1966), 123 App DC 6 ( 356 F.2d 345, 349).
The court in Inge disallowed the government's use of defendant's prior statements to contradict his trial testimony that deceased attacked him with a knife, that he did not remember cutting the deceased, and that he was injured in the fatal altercation. That testimony bore directly on defendant's guilt.
Walder allows the defendant to deny all the elements of the crime and testify concerning any matter affecting his guilt without exposing himself to the introduction of otherwise inadmissible statements.
The impeachment question was noted in Miranda, and that case may be read as a full ban on use of inadmissible statements, in whole or in part, for any purpose whatever, including impeachment. Miranda v. Arizona, supra, p 477.
That Miranda forbids use of any part of an illegal statement for impeachment is the interpretation adopted by the majorities in State v. Brewton (1967), 247 Or. 241 ( 422 P.2d 581), cert. den. 387 U.S. 943 ( 87 S Ct 2074, 18 L Ed 2d 1328) (1967); Groshart v. United States (CA 9, 1968), 392 F.2d 172, and Proctor v. United States (CA DC, 1968), 404 F.2d 819, and unanimous courts in Commonwealth v. Padgett (1968), 428 Pa. 229 ( 237 A.2d 209), and Wheeler v. United States (CA 10, 1967), 382 F.2d 998, a concurring judge in Commonwealth v. Burkett (1967), 211 Pa. Super. 299, 304 ( 235 A.2d 161, 163), and two dissenters in People v. Kulis (1966), 18 N.Y.2d 318, 324 ( 274 N.Y.S.2d 873, 876, 221 N.E.2d 541, 542). The Burkett and Kulis majorities followed the Walder rule.
In State v. Brewton, supra, the facts were identical to those in the instant case. The trial court had found statements given in 1957 "voluntary," in the sense that they were not coerced, but inadmissible because of failure to give the Miranda warnings. The Oregon Supreme Court ruled that the statements should not have been admitted for the purpose of impeaching the defendant's testimony at the time of his retrial subsequent to Miranda.
"While an argument can be made that `voluntary' unconstitutional confessions can be distinguished from `involuntary' unconstitutional confessions, solely for the purposes of impeachment, this dichotomy does not appeal to us as constitutionally meaningful. * * * we are satisfied that any attempt in the future to restrict the exclusionary rule to the state's case in chief would be inconsistent with the constitutional principles which are inherent in the Miranda Case." State v. Brewton, supra, p 582.
The Brewton court observed that a rule of law which would allow use of illegally obtained evidence for impeachment might encourage some charged with warning the defendant of his constitutional rights before interrogating him to take a "calculated risk":
"By giving up the possibility of using the suspect's statements in the state's case, they could obtain by unconstitutional means and store away evidence to use if the defendant should elect upon trial to take the stand. As commendable as it may be to prevent perjury, the price of such prevention could be to keep defendants off the stand entirely. In some cases, the temptation to silence a suspect of dubious probity might very well outweigh the desire to conduct a constitutionally valid interrogation." State v. Brewton, supra, p 583. Similarly, see Groshart v. United States, supra, p 180.
We note the practical difficulties likely to be encountered in attempting to differentiate between defendant's "denial of the elements" and "sweeping claims." When a defendant takes the stand, completely responsive answers to all questions put to him on direct and cross-examination are likely to open up collateral matters. Commonwealth v. Burkett, supra, p 309; State v. Brewton, supra, p 583; Groshart v. United States, supra, p 179.
Here the trial court argued the necessity of using the inadmissible statements for impeachment to prevent defendant's perjury and test his credibility. The defendant is no freer to perjure himself than any other witness; if he does, he subjects himself to prosecution for perjury. The defendant, like any witness, may be impeached. "The State should be free to impeach, but it ought to come by its impeachment as legally as it accumulates its other evidence." State v. Brewton, supra, p 583.
The general rule is that a witness may not be impeached concerning collateral matters, but only as to matters relevant to the issue at trial. 58 Am Jur, Witnesses, § 783; 98 CJS, Witnesses, § 580, p 551; Gilchrist v. Gilchrist (1952), 333 Mich. 275; People v. McLean (1888), 71 Mich. 309. Denial by a witness is generally regarded as conclusive where the alleged statement relates to a collateral matter. 98 CJS, Witnesses, § 611, p 613; McCormick on Evidence, § 36, p-66; People v. McLean, supra.
To refer to a statement as "inadmissible" but "voluntary" is contrary to the core of Miranda. The greater part of the majority opinion concerned itself with the atmosphere of compulsion found to be inherent in custodial interrogation. Miranda v. Arizona, supra, pp 445-469.
The question whether a defendant's inadmissible statements can be used to impeach his trial testimony has not before arisen in Michigan. Adoption of either the Brewton rule of complete exclusion of inadmissible statements for any purpose or the Agnello rule of exclusion with its limited exception approved in Walder would forbid the use of Marsh's statements, since they bore directly on the issue facing the jury.
Marsh testified at the 1966 trial that he did not intend to kill the deceased and did not go to deceased's apartment intending to rob him, that robbery was an afterthought. The prosecution countered by asking defendant about his alleged statement to the policemen transporting him to Michigan that he went to deceased's apartment to "get even" with him and that he intended to rob Chaloner's store and the deceased. It also called and questioned former trooper Seymour about the statements. This and the question concerning the inadmissible written statement to the prosecutor were error. The intention to rob or premeditated intention to kill, once established, would support a conviction of first degree murder.
Without unnecessarily deciding which theory of exclusion, the Walder or Brewton approach, should be adopted, we decide that under either Brewton or Walder the statements, and any reference thereto, were inadmissible.
We add that on principle the people should not be allowed to have admitted against a defendant who takes the stand evidence that would be inadmissible if he exercised his constitutional right to refrain from taking the stand. A contrary rule would unconstitutionally chill exercise of either the constitutional right to have improper evidence suppressed or the constitutional right to take the stand. Groshart v. United States, supra, p 180. Cf. Simmons v. United States (1968), 390 U.S. 377 ( 88 S Ct 967, 19 L Ed 2d 1247); People v. Luna (1967), 37 Ill.2d 299 ( 226 N.E.2d 586); Safarik v. United States (CA 8, 1933), 62 F.2d 892, 897; Johnson v. United States, supra; Garrity v. New Jersey (1967), 385 U.S. 493 ( 87 S Ct 616, 17 L Ed 2d 562); and Spevack v. Klein (1967), 385 U.S. 511 ( 87 S Ct 625, 17 L Ed 2d 574).
"We find it intolerable that one constitutional right should have to be surrendered in order to assert another." Simmons v. United States, supra, p 394.
III.
In final argument to the jury the prosecutor referred to Marsh's former statements:
"Ladies and gentlemen, he told a story in Pennsylvania. He told a story to the police officers on the way back from Pennsylvania.
"He told a story to the assistant prosecutor, Mr. Michener. He told a story to Judge Rathbun twenty-five years ago.
"He's had his chance to tell his story before."
The circuit judge found this argument proper rebuttal of defense counsel's and defendant's assertions that defendant "never had a chance to tell his story." The final argument's reference to inadmissible statements for the purpose of rebutting the assertion that Marsh never before had a chance to tell his story was, of itself, improper.
In a similar situation, White v. United States (1965), 121 App DC 287 ( 349 F.2d 965, 967), the court held it error to introduce an inadmissible statement for impeaching defendant's assertion that implied to the jury he would have told the police of his claim of self-defense when first arrested if allowed to speak. Walder, said the White court, "does not authorize the use of inadmissible evidence to contradict such remote inferences."
Marsh's case well illustrates that "mere mention" of a confession's existence may not only be as harmful as admission of the confession itself, but also that it may be more harmful than admission of the statement and its attendant circumstances in toto. Cf. People v. Frechette (1968), 380 Mich. 64, 71. On the whole, Marsh's written statement to the prosecutor supports his theory rather than the people's. Nowhere in that statement did Marsh say he planned either to kill or rob the victim.
The following is from the 1941 written statement:
"Q. [by the prosecuting attorney] Did you have an argument with him [Berger] while you were there [in his apartment]?
"A. [by Marsh] Yes, sir.
"Q. What was the nature of the argument?
"A. He had been telling around that I was stealing from the store and I wasn't. * * *
"Q. What did you go to the apartment of Herman Berger for?
"A. To argue it out with him. I didn't go up to kill him or anything like that."
[The confession contains no contrary concession on the part of the defendant.]
The term "confession" implies to the jurors' ears that the defendant has admitted guilt of every element charged by the people. In fact, Marsh's "confession" admits no more than he himself admitted at trial, that he caused Berger's death.
In Gaertner v. State (1967), 35 Wis.2d 159, 174 ( 150 N.W.2d 370, 378), the statement's contents were not disclosed, but only the fact of its existence. The court saw "no distinction between telling the jury the fact of the existence of a confession and disclosing its details."
IV.
The people argue that Marsh "opened the door" to the receipt of the inadmissible statements when he took the stand and denied his guilt. For reasons already stated, that argument is constitutionally untenable. Its adoption would force a defendant to choose between exercising his constitutional right to take the stand and defend himself and his constitutional right to have illegal evidence suppressed, making exercise of one right the destroyer of another.
See authorities cited in concluding paragraph of part II.
"There are rights of constitutional stature whose exercise a State may not condition by the exaction of a price." Garrity v. New Jersey, supra, p 500.
The people also claim that questions put by Marsh's counsel to him "opened the door" to the introduction of the inadmissible statements. The claim that a federally guaranteed constitutional right has been waived presents a question controlled by Federal law. Brookhart v. Janis (1966), 384 U.S. 1, 4 ( 86 S Ct 1245, 16 L Ed 2d 314).
There are some mistakes which no man can make for another. He confuses standards governing fundamental constitutional rights for statutory or common law rules who makes much of the argument that defense counsel "opened the door."
Cf Gouled v. United States (1921), 255 U.S. 298, 313 ( 41 S Ct 261, 266, 65 L Ed 647, 654), where the court observed: "A rule of practice must not be allowed for any technical reason to prevail over a constitutional right."
In a number of cases the United States Supreme Court has declared that a constitutionally-protected right is not a superficiality which may be waived by silence or inadvertence; the high standards of waiver set out in Johnson v. Zerbst (1938), 304 U.S. 458, 464 ( 58 S Ct 1019, 1023, 82 L Ed 1461, 1466), have never been abandoned.
Miranda v. Arisona, supra, p 475; Smith v. United States (1948), 337 U.S. 137, 150 ( 69 S Ct 1000, 93 L Ed 1264, 1274); Fay v. Noia (1963), 372 U.S. 391, 439 ( 83 S Ct 822, 849, 9 L Ed 2d 837, 869); Escobedo v. Illinois (1964), 378 U.S. 478, 490 ( 84 S Ct 1758, 1765, 12 L Ed 2d 977, 986); Brookhart v. Janis, supra; In re Gault (1967), 387 U.S. 1, 42 ( 87 S Ct 1428, 18 L Ed 2d 527, 554).
"But a valid waiver will not be presumed simply from the silence of the accused." Miranda v. Arizona, supra, p 475. "Presuming waiver from a silent record is impermissible." Carnley v. Cochran (1962), 369 U.S. 506, 516 ( 82 S Ct 884, 8 L Ed 2d 70, 77).
"It has been pointed out that `courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and that we `do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege."
Particularly apposite is Poe v. United States (D DC, 1964), 233 F. Supp. 173, affirmed United States v. Poe (1965), 122 App DC 163 ( 352 F.2d 639), where the court held a defendant was entitled to a new trial where he elected not to take the stand on the basis of erroneous legal advice from his lawyer. His lawyer had, in apparent ignorance of the Walder line of cases, advised the defendant that the prosecution could use an otherwise inadmissible confession should the defendant testify. The court observed (p 176):
"The right to testify is personal to the accused. He must make the ultimate decision on whether or not to take the stand. In this regard it is unlike other decisions, which are often called `trial decisions,' where it is counsel who decides whether to cross-examine a particular witness or introduce a particular document. Here it is the accused who must decide and it is the duty of counsel to present to him the relevant information on which he may make an intelligent decision."
It was of great importance to Marsh to exclude, if possible, any reference to the 1941 written and oral statements. With that in mind we do not think Marsh relinquished or abandoned his right to exclude those statements as inadmissible when he answered his lawyer's question: "Now, have you ever stated * * *?" Marsh was not required to object to his own lawyer's question in order to preserve his constitutional right to exclusion of the confession.
"It is elementary that the constitutional right of an accused person to a fair and impartial trial according to the law and evidence should not be frittered away or destroyed because of the neglect of counsel." State v. Moore (1952), 194 Or. 232, 238 ( 241 P.2d 455, 458). Cf. Brown v. Mississippi (1936), 297 U.S. 278, 287 ( 56 S Ct 461, 465, 80 L Ed 682, 687). See, also, United States v. Stoehr (MD Pa, 1951), 100 F. Supp. 143, 152. See the Court's observations concerning the inattentiveness of counsel in Prudential Insurance Company v. Cusick (1963), 369 Mich. 269, 289.
If, as we have held, an inadmissible confession may not be used to impeach a defendant's denial of guilt, it would be anomalous to allow the confession to be used to impeach the defendant's denial that he gave a confessional statement. To put it differently, if the defendant does not by denying guilt "open the door" to use of a confessional statement, then he does not open the door to its use by denying that he gave such a statement. Since proof that the defendant had given a statement would tend to prove his guilt of the crime charged ( People v. Frechette, supra, and Gaertner v. State, 35 Wis.2d 159 [ 150 N.W.2d 370, 378]), such proof was inadmissible under the Walder exception even if such proof did not include, as was here allowed, proof of the contents of the statement.
The defendant's denial that he had given a statement admitting guilt would have been of importance only if the statement was admissible. Where, as here, the statement was itself inadmissible, the defendant's denial that he had given a statement negatived nothing and carried little probative or persuasive value. The defendant's denial had minimal impact and did not justify or require out of fairness to the people that the confessional statement otherwise inadmissible be then admitted.
We find no need to comment on the other claims of error.
Reversed and remanded for a new trial.
T.G. KAVANAGH, P.J., concurred with LEVIN, J.