(concurring) :
I have no problem in this case as to the sufficiency of the evidence, the appropriateness of the joint trial with Clarence Watts, Jr.,1 or as to any other matter except the one to be mentioned.
There is the question whether defendant’s statements to the police were erroneously admitted in evidence in the absence of compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This problem arises here in the context of statements by one who posed as the victim of the person he was charged with aiding and abetting, but came under suspicion while the police were investigating the case. It was during their following up of this suspicion that the statements were made.
The statements were not objected to when the officer testified about them. Moreover, at the close of all the evidence when the objection was made, the statements sought then to be suppressed were not clearly specified. The motion to suppress was directed to
any testimony or evidence or any inferences from the record concerning any aiding and abetting on behalf of defendant Thompson, because I don’t believe that at any time the record demonstrates that at any point of the investigation, whenever it was he became a suspect, he was ever advised by anyone of his constitutional rights. As a matter of fact the evidence is to the contrary. He apparently cooperated with the police at each juncture of the proceedings, always with the impression that he was a witness to an offense, and then suddenly after there has been total cooperation with no comment or no statement at any time by any investigating officers that in fact he was a suspect — and according to [the victim] he was a suspect from the very first instant of his talking to the policemen on the night of the particular offense.
The court overruled the motion on the theory that the statements were not a “confession,” but “were simply statements that turned out to be, it is alleged by the Government, contradictory statements, self-contradicted ones.” Such statements, used by the prosecution in aid of its case, are subject to the Miranda rule. As pointed out by counsel for appellant Miranda holds:
[N]o 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.
384 U.S. at 477, 86 S.Ct. at 1629. See also Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897).
I concur in affirmance, however, because it does not appear that the statements objected to were made at a point in the investigation which brought Mr. Thompson within the protection of Miranda.
. In No. 71-1284 in this court.