People v. Disbrow ( 1976 )

Opinion

MOSK, J.

Defendant was charged in count I with the murder of Kathleen Pairis, and in count II with the murder of his wife Harriet. (Pen. Code, § 187.) It was further alleged that a firearm was used in the commission of both offenses. (Pen. Code, § 12022.5.) Following a jury trial defendant was found guilty on count II of murder in the second degree involving the use of a firearm. The jury was unable to reach a verdict on count I, and a mistrial was declared as to that charge. Thereafter defendant waived trial by jury on count I and the matter was submitted to the court on the transcript of the prior trial. The court adjudged defendant guilty of voluntary manslaughter, a lesser included offense, and found the allegation of use of a firearm to be true. Defendant’s motion for new trial was denied and he was sentenced on each count to state prison for the term prescribed by law, the sentences to run concurrently, He appeals from the judgment (Pen. Code, § 1237), predicating error on the use of certain evidence to impeach his testimony at trial.

Defendant was separated from Harriet on March 21, 1973, after a marriage of only four months. On the afternoon of April 15, 1973, he drove to the home of Kathleen Pairis, one of Harriet’s friends. He there confronted Kathleen, her mother Pemilla Blankenship, and other members of the family, and demanded to be told the whereabouts of his estranged wife and two stepchildren. Mrs. Blankenship testified that defendant threatened to kill his wife and “anybody else that got in his way.” He then left, but returned four or five times that day and repeated the threats.

The next evening defendant once more went to the Pairis home. In the living room at this time were Mrs. Blankenship, Harriet, Kathleen, two Pairis children and two Disbrow children. Mrs. Blankenship testified she heard a loud knock at the door and when she went to answer she saw defendant through a peephole. She advised Harriet not to open the door and began collecting the children and removing them to an adjoining bedroom.

While in the other room Mrs. Blankenship heard what she described as a “loud blam” and then the voice of Kathleen demanding that defendant leave.¹ She returned to the living room and saw defendant dragging Harriet by the hair with a pistol at her temple. Kathleen was also armed with a pistol. Mrs. Blankenship tried to intercede but defendant responded by pointing the gun at her. She pushed him away and defendant then directed his attention to Kathleen who was trying to call the police. There was a brief struggle over the telephone during which Mrs. Blankenship seized it and ran to the kitchen to make the call. She was unable to raise the operator and began searching for a knife. She then heard a single shot, a groan, followed by a flurry of gunshots, and ran to the bedroom to protect the children. She remained there until she heard a car drive away, then returned to the living room and discovered the bodies of Kathleen and Harriet.

On April 21, 1973, five days after the shooting, Deputy Sheriff Brown observed defendant sleeping in a bloodstained sleeping bag in his car. He inquired about the stains and defendant replied, “I’m shot in the legs. My name is Disbrow. I’ve been thinking about surrendering to you. I’m wanted for murder in Van Nuys.” Defendant also said, “She shot me first.” He had been shot five times.

Defendant was taken to a hospital for treatment. While being wheeled on a gurney from the emergency room he was interviewed by Detective Yost, who was surreptitiously taping the conversation on a concealéd recorder. After being informed of his rights under the rule of Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694, 86 S.Ct. 1602, 10 A.L.R.3d 974], defendant stated he wished to remain silent and consult an attorney. Yost, however, continued the interrogation, representing to defendant that any statements he made could not be used against him in court. Eventually, persuaded by these false assurances, defendant made certain inculpatory statements.

At trial defendant interposed a defense of self-defense, contradicting the. testimony of Mrs. Blankenship and claiming he did not fire until after he had been shot by Kathleen.² Over defendant’s objection portions of the inculpatory statements elicited at the hospital were admitted to impeach his testimony.³ Defendant contends that the use of the illegally obtained statements as impeachment evidence constitutes reversible error.⁴

The People make no claim that defendant’s statements to Detective Yost at the hospital were other than the product of an illegal police interrogation. Miranda made explicit the rule that a suspect’s declaration of intention to remain silent and stand on his constitutional rights cannot thereafter be followed by additional questioning: “Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked.” (Fn. omitted; italics added.) (Miranda v. Arizona (1966) supra, 384 U.S. 436, 473-474 [16 L.Ed.2d 694, 723].) Given the tainted nature of defendant’s statements to Detective Yost, it is clear they are inadmissible as part of the prosecution’s case in chief. (Id, at p. 479 [16 L.Ed.2d at pp. 726-727]; People v. Fioritto (1968) 68 Cal.2d 714 [68 Cal.Rptr. 817, 441 P.2d 625].) The question is whether the statements may be used to impeach defendant’s testimony.

In Harris v. New York (1971) 401 U.S. 222 [28 L.Ed.2d 1, 91 S.Ct. 643], the Supreme Court held that statements which were inadmissible as affirmative evidence because of a failure to comply with Miranda could nevertheless be used for impeachment purposes to attack the credibility of a defendant’s trial testimony, as long as the statements were not “coerced” or “involuntary.” The court dismissed language to the contrary in Miranda as dictum (id., at p. 224 [28 L.Ed.2d at pp. 3-4])⁵ and concluded, “The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.” (Id., at p. 226 [28 L.Ed.2d at p. 5].)

In People v. Nudd (1974) 12 Cal.3d 204, 208 [115 Cal.Rptr. 372, 524 P.2d 844], a bare majority of this court “adopted” the Harris rationale as the law in California. The defendant in Nudd was an inmate at a state correctional facility who was charged with possession of narcotics. A guard had surprised the defendant while the latter was holding narcotics, and after a brief scuffle some material was flushed down the cell toilet. Informed of his Miranda rights the defendant chose to remain silent. He was then invited to speak “oflf the record” and finally admitted that while he liked the officer a struggle was necessary in order to dispose of the contraband. At trial the defendant denied every allegation in the People’s case, and the “off the record” admission was introduced to impeach his credibility. No limiting instruction was requested or given, and hence the jury were presumably free to consider the illegally obtained confession as substantive evidence.⁶

In the present case we reexamine Nudd and its uncritical acceptance of the Harris rationale. A useful starting point in this inquiry is the authority relied on in Harris, itself, i.e., the general availability of an “impeachment exception” to exclusionary rules.

An exclusionary rule analogous to Miranda is predicated on the Fourth Amendment’s proscription of unreasonable searches. (Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341].) The first case in which an impeachment exception to the Weeks exclusionary rule was claimed was Agnello v. United States (1925) 269 U.S. 20 [70 L.Ed. 145, 46 S.Ct. 4, 51 A.L.R. 409], and there the argument was unavailing. The defendants in Agnello were charged with conspiracy to sell cocaine in violation of the Harrison Act. Following their arrest narcotics officers had conducted a warrantless search of defendant Agnello’s home and there found a can of cocaine. At trial this evidence was excluded under Weeks but the prosecution proceeded on the strength of other, legally seized evidence. ,On cross-examination Agnello stated he had never seen narcotics. He was then asked if he had ever seen the can of cocaine, to which he responded in the negative. In rebuttal, over defense objection, the government was permitted to introduce the can illegally seized from Agnello’s bedroom.

The Supreme Court reversed, holding the can to be the product of an illegal search, admissible neither as part of the case in chief nor as rebuttal evidence: “[T]he contention that the evidence of the search and seizure was admissible in rebuttal is without merit. In his direct examination, Agnello was not asked and did not testify concerning the can of cocaine. In cross-examination, in answer to a question permitted over his objection, he said he had never seen it. He 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. As said in Silverthorne Lumber Co. v. United States ... [251 U.S. 385 (64 L.Ed. 319, 40 S.Ct. 182, 24 A.L.R. 1426)], 392, ‘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.’ ” (269 U.S. at p. 35 [70 L.Ed. at p. 150].)

In Walder v. United States (1954) 347 U.S. 62 [98 L.Ed. 503, 74 S.Ct. 354], a decision relied on in Harris, a limited exception to the Agnello rule was devised. Walder was charged in 1952 with sale of narcotics. Two years earlier a separate, unrelated narcotics indictment against him had been dismissed on the ground that the evidence forming the basis of the prosecution—a capsule of heroin—was the product of an illegal search. In the 1952 trial Walder made the broad assertion on direct examination that “I have never sold narcotics to anyone in my life” and further had never possessed narcotics. After he reiterated these claims on cross-examination, the government was permitted to question him concerning the seizure of the heroin capsule in his home in 1950.

The Supreme Court affirmed, declaring in a now well-worn passage, “It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government’s possession was obtained to his own advantage, and provide himself with a shield against contradiction of h'is untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.” (347 U.S. at p. 65 [98 L.Ed. at p. 507].)

The court was careful, however, to reaffirm the integrity of Agnello, stating, “There the Government, after having failed in its efforts to introduce the tainted evidence in its case in chief, tried to smuggle it in on cross-examination by asking the accused the broad question, ‘Did you ever see narcotics before?’ ... In holding that the Government could no more work in this evidence on cross-examination than it could in its case in chief, the Court foreshadowed, perhaps unwittingly, the result we reach today ....” {Id., at p. 66 [98 L.Ed. at p. 507].)⁷

As noted, Harris was based on the Walder holding, but Agnello was not cited therein. In Harris the defendant was charged with two counts of heroin sale to an undercover officer. At trial the defendant testified that no sale took place on one of the dates specified in the indictment and that on the other date he sold only baking powder under a scheme to defraud the purchaser. On cross-examination the defendant was questioned about certain statements made to police, after defective Miranda warnings, which “partially contradicted [his] direct testimony at trial.” (401 U.S. at p. 223 [28 L.Ed.2d at p. 3].) Both counsel then referred to the substance of the statements during closing argument and the defendant was convicted on the second count.⁸

The Supreme Court affirmed, noting that “In Walder. . . the Court permitted physical evidence, inadmissible in the case in chief, to be used for impeachment purposes.” (Id., at p. 224 [28 L.Ed.2d at p. 4].) With regard to the contention that Walder was inapposite since it represented only a narrow exception—not present in Harris—to the general rule of Agnello, the court said, “It is true that Walder was impeached as to collateral matters included in his direct examination, whereas petitioner here was impeached as to testimony bearing more directly on the crimes charged. We are not persuaded that there is a difference in principle that warrants a result different from that reached by the Court in Walder. Petitioner’s testimony in his own behalf concerning the events of January 7 contrasted sharply with what he told the police shortly after his arrest. The impeachment process here undoubtedly provided valuable aid to the jury in assessing petitioner’s credibility, and the benefits of this process should not be lost, in our view, because of the speculative possibility that impermissible police conduct will be encouraged thereby. Assuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief.” (Id., at p. 225 [28 L.Ed.2d at p. 4].)

The final case in this series is People v. Taylor (1972) 8 Cal.3d 174 [104 Cal.Rptr. 350, 501 P.2d 918]. There this court considered the net effect of the Agnello-Walder-Harris line of decisions in the context of impeachment by use of the fruits of a prior, unrelated, illegal search. After a detailed analysis we concluded that evidence of the prior possession of narcotics may. be- used only if the defendant, on direct examination, makes the sweeping claim that he has never dealt in or possessed any narcotics. We thus read Agnello-Walder in a considerably more restrictive fashion than did the court in Harris. {Taylor, at p. 182 of 8 Cal.3d; see Comment, The Impeachment Exception to the Constitutional Exclusionary Rules (1973) 73 Colum.L.Rev. 1476, 1483-1491.)

Similarly, in the instant case we are not convinced that Walder supports the proposition that statements elicited in violation of Miranda may generally be used to impeach. Rather we read Walder as reiterating the primary rule of exclusion enunciated in Agnello, absent the peculiar and limited circumstances shown in Walder and discussed in Taylor. Accordingly, we must look elsewhere than to an analogy to search and seizure law if support is to be found for the Harris-Nudd rule.⁹

Miranda itself will not provide this support. Even aside from the strong dictum in that opinion demonstrating that illegally obtained confessions should not be used for any purpose (see fn. 5, ante), there are compelling reasons to disregard Nudd contained in the ratio decidendi of Miranda.

Prior to Miranda state courts were barred by the Fifth and Fourteenth Amendments from admitting into evidence confessions that were “involuntary.” {Brown v. Mississippi (1936) 297 U.S. 278 [80 L.Ed. 682, 56 S.Ct. 461].) “Under this test, the constitutional inquiry is not whether, the conduct of state officers in obtaining the confession was shocking, but whether the confession was ‘free and voluntaiy: that is, [it] must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence----’ ” {Malloy v. Hogan (1964) 378 U.S. 1, 7 [12 L.Ed.2d 653, 659, 84 S.Ct. 1489], quoting Bram v. United States (1897) 168 U.S. 532 [42 L.Ed. 568, 18 S.Ct. 183].) This test, as it developed, spawned multiple categories identifying impermissible interrogatoiy practices, many being more subtle than traditional notions of coercion. For example, in Haynes v. Washington (1963) 373 U.S. 503. [10 L.Ed.2d 513, 83 S.Ct. 1336], a determination of involuntariness was predicated on the refusal to allow a suspect to call his wife until he confessed, and in Spano v. New York (1959) 360 U.S. 315, 323 [3 L.Ed.2d 1265, 1271-1272, 79 S.Ct. 1202], “sympathy falsely aroused” rendered inadmissible the resultant statements. We do not reflect adversely on those decisions but merely recognize the increased sophistication of the concept as it progressed from its roots in the brutal torture practiced in Brown.

In People v. Fioritto (1968) supra, 68 Cal.2d 714, 717, we said, “A principal objective of [Miranda] was to establish safeguards that would liberate courts insofar as possible from the difficult and troublesome necessity of adjudicating in each case whether coercive influences, psychological or physical, had been employed to secure admissions or confessions.” The precision with which the Miranda court established not simply broad procedural guidelines but a precise manual for the conducting of custodial interrogations can be interpreted only as expressing an intention to create a single, uncomplicated, universally applicable test for determining whether a particular confession was coerced. If proper warnings are given voluntariness is assured, at least in the absence of evidence of “traditional” coercion.¹⁰ Conversely, if an accused is inadequately informed of his rights involuntariness is assumed, and the statements are inadmissible at trial.

The Harris-Nudd rule would resurrect the remains of the earlier voluntariness test. Neither case by its terms would allow impeachment by use of statements which are “coerced or involuntary.” (Harris, at p. 224 of 401 U.S. [at pp. 3-4 of 28 L.Ed.2d]; Nudd, at p. 209 of 12 Cal.3d.) Thus under Harris-Nudd the following scenario can be anticipated: a defendant will testify in a manner the prosecution considers, contrary to his extrajudicial statement. The defendant will contend that the statement is involuntary under one of the myriad pre-Miranda definitions of that term. It will then be necessary to interrupt the proceedings, not only at mid-trial but at mid-examination, for an evidentiary hearing, the outcome of which will be subject to later review on appeal. Only if the statement is ruled voluntary will it be admissible to impeach. In time there will arise an impressive body of law on the voluntariness issue, rivaling that which presently exists in the area of search and seizure, as various appellate courts grapple on a case-by-case basis with the question of what is an involuntary statement.¹¹ This, we feel, is precisely the evidentiary thicket Miranda was designed to avoid.¹²

However, our principal objection to the Harris-Nudd rule lies in the considerable potential that a jury, even with the benefit of a limiting instruction, will view prior inculpatory statements as substantive evidence of guilt rather than as merely reflecting on the declarant’s veracity. The theory of a limiting instruction loses meaning in this context. It is to be recalled that we are here dealing with extrajudicial inculpatory admissions. To instruct a jury that they are not to consider expressions of complicity in the charged crime as evidence that the speaker in fact committed the charged crime, but only for the purpose of demonstrating that he was probably lying when he denied committing the charged crime, would be to require, in the words of Learned Hand, “a mental gymnastic which is beyond, not only [the jury’s] power, but anybody else’s.” (Nash v. United States (2d Cir. 1932) 54 F.2d 1006, 1007.) It is thus clear that a defendant faced with the prospect of the juiy hearing his admittedly illegally obtained confession if he testifies in his own behalf will be under considerable pressure to forego this most basic right of an accused. Such a result is certainly not what Miranda envisaged.

Furthermore, to permit admissibility leaves little or no incentive for police to comply with Miranda’s requirements. If an officer may falsify the warning concerning the admissibility of statements, as in the case at bar, other warnings may be similarly inverted or retracted. The police, for example, may inform an accused that he has no right to remain silent and no right to counsel. In a case of notoriety with little independent evidence there may be irresistible pressures on law enforcement personnel to secure a confession. If it is known that statements elicited in violation of Miranda may nevertheless be introduced at some point in the trial there would exist no sanction whatever against the use of overbearing interrogatory techniques, at least until the practices approached traditional levels of coercion.

In addition to the likelihood that police misconduct may be encouraged by Harris, we are further convinced of the impropriety of receipt of this evidence by a significant rationale of the exclusionary rule itself. In People v. Cahan (1955) 44 Cal.2d 434, 445 [282 P.2d 905, 50 A.L.R.2d 513], the landmark case in which this court adopted the rule for California two decades ago,¹³ we said, “the success of the lawless venture depends entirely on the court’s lending its aid by allowing the evidence to be introduced. . . . Out of regard for its own dignity as an agency of justice and custodian of liberty the court should not have a hand in such ‘dirty business.’ ” In the case at bar, accordingly, exclusion of the statements illegally extracted from defendant by Detective Yost would “relieve the courts from being compelled to participate in such illegal conduct.” (Kaplan v. Superior Court (1971) 6 Cal.3d 150, 156 [98 Cal.Rptr. 649, 491 P.2d 1].)

We therefore hold that the privilege against self-incrimination of article I, section 15, of the California Constitution precludes use by the prosecution of any extrajudicial statement by the defendant, whether inculpatory or exculpatory, either as affirmative evidence or for purposes of impeachment, obtained during custodial interrogation in violation of the standards declared in Miranda and its California progeny. Accordingly, we overrule Nudd and declare that Harris is not persuasive authority in any state prosecution in California.¹⁴

We are not the first court to reject Harris on state constitutional grounds. In State v. Santiago (1971) 53 Hawaii 254 [492 P.2d 657], the Supreme Court of Hawaii, relying exclusively on the self-incrimination clause of that state’s Constitution, declared that statements of the defendant elicited without compliance with Miranda or “equally effective protections” cannot be used as impeachment evidence. The court recognized the competing policy considerations but concluded, “We, like the writers of the Harris majority opinion and the opinions following Harris, are reluctant to allow a defendant to take the stand and testify in contradiction to statements made during custodial interrogation .... Our system of government, however, maintains a countervailing value of protecting the accused’s privilege to freely choose whether or not to incriminate himself... To convict a person on the basis of statements procured in violation of his constitutional rights is intolerable. The prosecutor’s argument that he had a right to impeach the defendant with statements made in the absence of Miranda warnings cannot, under the [state] constitution, be sustained.” (Fn. omitted.) (Id., at pp. 664-665.)

Other courts, while not specifically resting on separate constitutional grounds, have continued to adhere to pre-Harris authority. In United States v. Jordan (1971) 20 U.S.C.M.A. 614 [44 C.M.R. 44], the United States Court of Military Appeals held that Harris did not operate to dispense with the requirement in the Manual for Courts-Martial that Miranda-type warnings be given as a prerequisite to the use of statements for any purpose: “Because Manual warning standards were not met, use of Jordan’s incriminating pretrial statements for impeachment [purposes] was prejudicially improper.” (Id., at p. 47.) Similarly, in Butler v. State (Tex.Crim. 1973) 493 S.W.2d 190, the Texas Court of Criminal Appeals concluded that Harris did not override a Texas statutory scheme which provided that oral confessions elicited from a suspect while in custody were unreliable and inadmissible except in narrowly defined circumstances: “ Harris, of course, in no way obligates [state courts] to overturn prior decisions as a matter of state criminal procedure.’... Therefore we cannot agree with the State’s contention despite the natural temptation to rush to accept the Harris rationale. The beauty is only skin deep.” (Id., at p. 198, quoting from Note (1971) 49 Texas L.Rev. 1119, 1125.)¹⁵

We pause finally to reaffirm the independent nature of the California Constitution and our responsibility to separately define and protect the rights of California citizens despite conflicting decisions of the United States Supreme Court interpreting the federal Constitution. Indeed, the United States Supreme Court has recently characterized this proposition as “good law” in reviewing a sister state court’s application of Harris. (Oregon v. Hass (1975) 420 U.S. 714, 719, fn. 4 [43 L.Ed.2d 570, 576, 95 S.Ct. 1215].) Justice Brennan added in his dissent in Michigan v. Mosley (1975) 423 U.S. 96, 120 [46 L.Ed.2d 313, 331-332, 96 S.Ct. 321], that in light of recent “erosion of Miranda standards as a matter of federal constitutional law, it is appropriate to observe that no State is precluded by the decision from adhering to higher standards under state law. Each State has power to impose higher standards governing police practices under state law than is required by the Federal Constitution. See Oregon v. Hass, 420 U.S. 714, 719 (1975); Lego v. Twomey, 404 U.S. 477, 489 (1972); Cooper v. California, 386 U.S. 58, 62 (1967). A decision particularly bearing upon the question of the adoption of Miranda as state law is Pennsylvania v. Ware, 446 Pa. 52, 284 A.2d 700 (1971). . . . Understandably, state courts and legislatures are, as matters of state law, increasingly according protections once provided as federal rights but now increasingly depreciated by decisions of this Court. See, e.g., State v. Santiago, 53 Haw. 254, 492 P.2d 657 (1971) (rejecting Harris v. New York, supra); People v. Beavers, 393 Mich. 554, 227 N.W.2d 511, cert, denied, 44 U.S.L.W. 3206 (1975) (rejecting United States v. White, 401 U.S. 745 (1971)); State v. Johnson, 44 U.S.L.W. 2196 (N.J., Nov. 4, 1975) (rejecting Schneckloth v. Bustamonte, supra); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854, cert, denied, 417 U.S. 969 (1974) (adopting ‘same transaction or occurrence’ view of Double Jeopardy Clause).” (Fn. omitted.)

In People v. Brisendine (1975) 13 Cal.3d 528, 548-552 [119 Cal.Rptr. 315, 531 P.2d 1099], we conducted an extended analysis of the question and concluded that “the California Constitution is, and always has been, a document of independent force.” We do not propose to repeat that discussion here except to note that we continue to adhere to the views expressed therein, and apply them in the case at bar.

Because the illegally obtained statements tended to establish that defendant went to the Pairis home in order to use the gun to obtain money, and also that defendant actually shot the victims, they amount to a virtual confession of the charged crime and negation of his trial claim of self-defense. (People v. Powell (1967) 67 Cal.2d 32, 51-52 [59 Cal.Rptr. 817, 429 P.2d 137].) “It is settled that the introduction of a confession obtained from a defendant in violation of constitutional guarantees is prejudicial per se and requires reversal regardless of other evidence of guilt.” (People v. Fioritto (1968) supra, 68 Cal.2d 714, 720.)

The judgment is reversed.

Tobriner, J., and Sullivan, J., concurred.

1 Apparently Kathleen voluntarily opened the door, as the police found no signs of forcible entry.

2 Specifically, defendant denied threatening anyone on the afternoon of April 15, and said he went to the Pairis home only to tell his wife he was leaving town. He testified that he met Kathleen on the afternoon of the 16th and she told him to come to the house that evening to see his wife. He possessed the loaded gun in order to give it to one Ray Ward in return for a favor. He stated he was admitted to the Pairis home voluntarily and that the occupants appeared to be under the influence of something. Kathleen then allegedly pointed a gun at him and said, “Are you ready for this?” There followed a struggle over the gun and defendant was shot. He testified he then ran for the door, firing as he went, and did not know he had hit anyone until he heard it on the car radio.

3 On cross-examination defendant was questioned concerning three statements made to Detective Yost which conflicted with his trial testimony. The first was that he went to the Pairis home to get money to leave town, and that the only way he could get the money was with a gun. The second statement concerned the location of the principals at the time defendant was shot. The third statement concerned defendant’s specific recollection of shooting his wife. These statements were then reintroduced when Detective Yost testified in rebuttal.

4 Because of our disposition herein we find it unnecessary to reach defendant’s remaining contentions.

5 The Miranda language was as follows: “The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory.’ If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements, are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement.’’ (Italics added.) (384 U.S. at pp. 476-477 [16 L.Ed.2d at p. 725].)

6 The lack of a limiting instruction was held not to be error: “Granted, even though not requested to do so, the trial court must instruct the jury on the general principles of law raised by the evidence. [Citations.] But absent request by a party, there is no duty to give an instruction limiting the purpose for which evidence may be considered.” (12 Cal.3d at p. 209.)

7 The Walder court also made clear that if the defendant had merely denied possession of the heroin which was the basis of the prosecution, no impeachment would have been permitted; “the Constitution guarantees a defendant the fullest opportunity to meet the accusation against him. He must be free to deny all 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.’’ (Id., at p. 65 [98 L.Ed. at p. 507].)

8 It is interesting to note that in neither Harris nor Nuclei was the traditional safeguard against improper use of impeachment evidence, the limiting instruction, of any effect. In Harris both sides argued the substance of the statements, and in Nudd no limiting instruction was given. (See fn. 6, arte.)

9 Of course, we do not presume to interpret the above-discussed federal decisions, in a manner contrary to that established by the United States Supreme Court as a matter of federal law. We discuss these cases only in order to determine whether under state law they are persuasive authority for interpreting California cases such as Fioritto and Tavlor to furnish justification for an impeachment exception to the self-incrimination clause of article I, section 15, of the California Constitution. In short, our decision herein is not based on a different reading of A gnello- Walder, .but rather a different view of the parameters of the independent state self-incrimination clause.

10 For exarriple, the giving of proper warnings would obviously not render a confession voluntary if the warnings were followed by a physical beating.

11 The immense tax on judicial resources flowing from a rule requiring questions of voluntariness to be decided on a case-by-case basis is indicated by Justice Tom Clark’s dissent in Haynes: “In light of petitioner’s age, intelligence and experience with the police, in light of the comparative absence of any coercive circumstances, and in light of the fact that petitioner never, from the time of his arrest, evidenced a will to deny his guilt, I must conclude that his written confession was not involuntary. I find no support in any of the 33 cases decided on the question by this Court for a contrary conclusion.” (Italics added.) (Haynes v. Washington (1963) supra, 373 U.S. 503, 525 [10 L.Ed.2d 513, 527-528] (Clark, J„ dissenting).)

12 Indeed, there is an unsettled question of voluntariness in the case at bar: is police deception tantamount to physical or psychological coercion? Miranda stated, “any evidence that the accused was . . . tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.” (384 U.S. at p. 476 [16 L.Ed.2d at p. 725].) But Miranda was not primarily concerned with questions of traditional coercion. It is clear that deceit coupled with overbearing practices will render a confession involuntary. (Leyra v. Denno (1954) 347 U.S. 556 [98 L.Ed. 948, 74 S.Ct. 716].) However, there ft also authority that deceit alone is not coercive. (People v.Atchley (1959) 53 Cal.2d 160 [346 P.2d 764]; but see Atchley v. Wilson (N.D.Cal. 1968) 300 F.Supp. 68.) In People v. Johnson (1969) 70 Cal.2d 469 [74 Cal.Rptr. 889, 450 P.2d 265], an assurance given the defendant that the statements taken were only for “investigatory” purposes was partly responsible for a finding of involuntariness, but in that case there was evidence of other threats and promises. Conversely, in Nudd the statements were held voluntarily made, but there was some question whether the defendant had realized that the officer was giving him the opportunity to speak “off the record.” We note these cases to illustrate the potential morass which lurks behind a seemingly straightforward question of voluntariness. Fortunately, in view of our disposition of this case we find it unnécessary to add yet another appellate consideration of the effect of deceit under the “totality of circumstances” test.

13 This was, of course, six years prior to the United States Supreme Court decision in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684, 84 A.L.R.2d 933].

14 Doubtless official reliance has heretofore been placed on both Harris and Nudd. Accordingly, except as to the defendant in the case.at bar the rule we now adopt will apply only to trials begun after this opinion becomes final.

15 Academic reaction to Harris has in general been strongly critical. (See, e.g., Dershowitz & Ely, Harris v. New York: Some Anxious Observations (1971) 80 Yale L.J. 1198; Note, Harris v. New York: the Retreat from Miranda (1972) 32 La.L.Rev. 650; Note (1971) 40 Fordham L.Rev. 394; Note (1972) 85 Harv.L.Rev. 44; Note (1971) 24 Vand.L.Rev. 843; Note (1971) 39 Geo.Wash.L.Rev. 1241; Note (1973) 73 Colum.L.Rev. 1476.)