Thomas NOWLIN, Jr., Petitioner, v. STATE of Florida, Respondent, 346 So. 2d 1020

BOYD, Justice. In the Circuit Court of Orange County petitioner was convicted of robbery, use of a firearm in the commission of a felony and aggravated assault and sentenced to life imprisonment, fifteen years and five years respectively. The District Court of Appeal, Fourth District, decided to vacate the convictions of use of a firearm in commission of a felony and aggravated assault because they were included in the greater offense of robbery. By writ of certiorari we are reviewing the District Court opinion because it conflicts with the decision in Crawford v. State, 70 Fla. 323, 70 So. 374 (1915).

In the case under review petitioner had been shot by a policeman in the course of the robbery for which he was convicted. Without being advised of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the petitioner was interviewed by police officers while he was in the hospital and made incriminating statements under circumstances which appear to us to raise some questions of whether the statements were voluntarily given. At trial he elected to take the stand in his own defense.

On cross-examination he denied under oath that he had made any incriminating statements. The trial court permitted the State on rebuttal to introduce his prior incriminating statements to impeach his testimony and despite petitioner’s objection that no showing of voluntariness had been made would not allow an inquiry into the volun-tariness of the statements. Being not persuaded there was error, the District Court of Appeal affirmed holding that, in the event there was error, it was harmless.

We are required to grant to all accused persons the constitutional rights provided by the United States Constitution as construed by the United States Supreme Court and such rights as may be required by the Florida Constitution, statutes and rules of court. Over the last few decades special attention of all state courts has been focused on United States Supreme Court decisions which have evinced an increased concern for human rights.

In Crawford, supra, this Court held that incriminating statements made after arrest in the presence of a magistrate or investigating coroner who failed to advise the accused of his constitutional rights could not be admitted into evidence to impeach his trial testimony, just as the statements were not admissible in the prosecution’s case-in-chief because of failure to advise the accused of his constitutional rights. This Court additionally stated that involuntary confessions are not admissible for impeachment of the defendant’s trial testimony. Id., 70 So. at 377, 378.

Petitioner asks that we reaffirm Crawford, adopt it as the controlling law of this State and reverse the decision of the District Court of Appeal, Fourth District. For solution of the problem and to conform to the United States Constitution as construed by the United States Supreme Court we turn to Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) and Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). In the Walder case the Court permitted evidence inadmissible in the case in chief to be used for impeachment purposes.

The Court said, “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 his untruths . . . there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.” Id., at 65, 74 S.Ct., at 356.

Walder, on trial for sale of narcotics, testified on direct examination that he had never sold or possessed narcotics. On cross-examination he reiterated this assertion. The government then introduced evidence that, in connection with an earlier proceeding, a heroin capsule had been found in his possession. The trial judge admitted this evidence over defendant’s objection that the heroin capsule had been obtained through an unlawful search and seizure.

In permitting the testimony of prior possession of heroin under conditions which constituted unlawful search and seizure the judge instructed the jury to consider the tainted testimony only for impeachment of the defendant’s credibility and not as to his guilt. The U.S. Supreme Court agreed, establishing the principle that evidence illegally obtained may be admitted into evidence against a defendant who denies under oath at trial the existence of such evidence, so long as the use of the evidence is not permitted to be used to establish guilt but limited to impeachment.

Harris, supra, is almost directly on point with the case before us. The Court relied upon Walder, supra, and held that a statement which was inadmissible against a defendant in prosecution’s case in chief because the defendant had not been advised of his rights to counsel and to remain silent prior to making the statement but which otherwise satisfied legal standards of trustworthiness was properly usable for impeachment purposes to attack the credibility of the defendant’s trial testimony. At his trial Harris denied he had made a sale of narcotics to an undercover officer.

On cross-examination he was asked whether he had made statements which the prosecution specified in its questioning immediately after his arrest. The statements referred to by the prosecutor contradicted, in part, his trial testimony. Upon saying he could not remember the incriminating statements the defendant’s attorney requested the written material used by the State in the impeachment questions to be included in the record on appeal.

The Court approved, but instructed the jury to consider use of the statements attributed to the defendant by the State only for impeachment of the defendant’s credibility and not for determination of guilt. In the opinion authored by Chief Justice Burger the Court said in part: “At trial the prosecution made no effort in its case in chief to use the statements allegedly made by petitioner, conceding that they were inadmissible under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The transcript of the interrogation used in the impeachment, but not given to the jury, shows that no warning of a right to appointed counsel was given before questions were put to petitioner when he was taken into custody. Petitioner makes no claim that the statements made to the police were coerced or involuntary. “Some comments in the Miranda opinion can indeed be read as indicating a bar to use of an uncounseled statement for any purpose, but discussion of that issue was not at all necessary to the Court’s holding and cannot be regarded as controlling.

Miranda barred the prosecution from making its case with statements of an accused made while in custody prior to having or effectively waiving counsel. It does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards. Id., 401 U.S. at 224, 91 S.Ct. at 645. “Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. See United States v.

Knox, 396 U.S. 77, 90 S.Ct. 363, 24 L.Ed.2d 275 (1969); cf. Dennis v. United States, 384 U.S. 855, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966). Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process.

Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. “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. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” Id., at 225, 226, 91 S.Ct. at 645.

We are unsure of precisely what the Court means by statements the “trustworthiness” of which “satisfies legal standards.” Harris at 224, 91 S.Ct. 643. Surely, at the very least the Court means that the statements must be voluntarily given.

Therefore, whenever the state, in order to impeach a defendant’s credibility, chooses to present evidence of a defendant’s incriminating statements which are inconsistent with trial testimony of the defendant and which are inadmissible in the case-in-chief because of the failure of custodial officers to give Miranda warnings, the statements must be shown to be voluntary before they may be admitted. In Jackson v.

Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964) it was held that the Fourteenth Amendment requires that an initial determination of vol-untariness be made, outside the hearing of the jury, before a confession may be allowed to be considered by the jury. Though Jackson did not involve incriminating statements offered for the purposes of impeachment we believe its principle applies to this case. It was error for the trial judge not to make a determination of vol-untariness outside the presence of the jury once petitioner objected to introduction of the statements for failure of a showing of voluntariness.

As in other situations, the State has the burden of proof to show by a preponderance of the evidence that the confession was voluntarily obtained. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Johnson v. State, 294 So.2d 69 (Fla.1974). We cannot agree with the District Court of Appeal that, at the most, harmless error was committed by the trial court. Reviewing courts may not regard constitutional error as harmless if there is a reasonable possibility that the error may have contributed to the accused’s conviction or if the error may not be found harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The admission of the incriminating statements, by undermining the credibility of Nowlin, destroyed a great part of his defense. Unless the jury was fairly sophisticated the statements were probably considered on the issue of guilt. Asking a jury to use incriminating statements to determine credibility but not guilt is a distinction the Crawford court thought a jury should not be forced to make. The United States Supreme Court in Harris did not agree.

To conform to federal standards we recede from Crawford to the degree that it forbids introduction of incriminating statements made by an accused, uninformed of his constitutional rights, for purposes of impeachment. We reaffirm Crawford to the extent that it requires that incriminating statements be voluntarily made before they may be used for impeaching the credibility of a defendant who testifies at trial. Accordingly the cause is remanded to the District Court of Appeal, Fourth District, to be remanded for a new trial consistent with this opinion. It is so ordered. OVERTON, C.

J., and ENGLAND, SUNDBERG and HATCHETT, JJ., concur. OVERTON, C. J., concurs with an opinion with which ENGLAND, SUNDBERG and HATCHETT, JJ., concur. ENGLAND, J., concurs with an opinion. ADKINS, J., dissents with an opinion. . 320 So.2d 468 (Fla. 4th DCA 1975). . Cone v. State, 285 So.2d 12 (Fla.1973). . The conflict gives us jurisdiction. Art. V, § 3(b)(3), Fla.Const.