(dissenting)—I disagree with the majority's opinion because it: (1) permits the use of the defendant's statements as substantive evidence to rebut the testimony of a person other than the defendant; and (2) approves the submission of instruction 9 to the jury.
Hubbard moved below to suppress custodial statements he made to police and to his parole officer. A hearing was held pursuant to CrR 3.5. The hearing judge, after considering the testimony of several witnesses and the argument of counsel, made findings of fact and conclusions of law. The judge made two rulings. He determined that Hubbard's statements to the police were made freely and voluntarily after being advised of his Miranda1 rights and were admissible in the State's case in chief. He also determined that Hubbard's earlier statements to his parole officer were made without being informed of his Miranda rights, and were not admissible in the State's case in chief, but were admissible in rebuttal. The majority misuses the appellate function in deciding sua sponte without cross appeal, assignment of error, argument or briefing, that the second ruling was in error.
This ruling was argued to the judge prior to his determination but this court has not been favored with those arguments. The trial proceeded on the premise that the statements were not admissible in the State's case in chief. *149Had the ruling been otherwise, the entire posture of the trial would have changed. I am well aware that where constitutional rights are at issue, a reviewing court must independently evaluate the evidence. See State v. Daugherty, 94 Wn.2d 263, 269, 616 P.2d 649, cert. denied, 450 U.S. 958 (1980). This rule, however, does not apply when the State appeals from an order suppressing evidence, State v. Tocki, 32 Wn. App. 457, 461, 648 P.2d 99 (1982), and certainly does not require reevaluation of the evidence supporting a ruling adverse to the State to which no claim of error is addressed. The court's ruling suppressing the evidence became the law of the case, not subject to review by this court any more than are allegedly erroneous instructions to which no error is assigned. See State v. Byrd, 25 Wn. App. 282, 287, 607 P.2d 321 (1980). The majority is indulging in "Monday morning refereeing"; changing the rules by which the game was played to achieve a desired result. This is the precise unfairness which the law of the case doctrine seeks to avoid.
Nevertheless, the majority concludes the court erroneously suppressed Hubbard's statements to his parole officer. I believe the court's ruling was correct. The night he was arrested, Hubbard was advised of his Miranda rights. He stated he did not want to waive his rights or make a statement but wanted to talk to his parole officer. Hubbard remained in custody. The next day, Hubbard's parole officer came to speak with him. She did not advise Hubbard of his Miranda rights or obtain a waiver before questioning him. She testified that it was her policy not to advise her clients of such matters unless they asked.
The majority does not dispute these facts, but concludes that "Hubbard's statements to his parole officer were not the result of interrogation by law enforcement officers . . .". Miranda warnings must be given before any custodial interrogation by law enforcement officers. It is undisputed that Hubbard was in custody and was questioned regarding the events which led to his arrest. Apparently, therefore, the majority decides that Miranda warnings need *150not be given when custodial interrogation is conducted by parole officers.
No case in the state of Washington, until now, has sanctioned the use of custodial statements made by a parolee while he is in custody and is being interrogated by his parole officer without first being advised of his Miranda rights.2 It distorts the purpose of the Fifth Amendment, as set out in Miranda, to suggest that the warnings are unnecessary in such a situation:
Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.
(Italics mine.) Miranda, 384 U.S. at 467. Miranda applies to any official custodial interrogation, whether the interrogation is conducted by Internal Revenue agents, Mathis v. United States, 391 U.S. 1, 20 L. Ed. 2d 381, 88 S. Ct. 1503 (1968), court appointed psychiatrists, Estelle v. Smith, 451 U.S. 454, 68 L. Ed. 2d 359, 101 S. Ct. 1866 (1981), prison guards, State v. LaRue, 19 Wn. App. 841, 845, 578 P.2d 66 (1978), or prosecuting attorneys, see United States v. Duvall, 537 F.2d 15, 24-25 (2d Cir. 1976), cert. denied, 426 U.S. 950, 49 L. Ed. 2d 1188, 96 S. Ct. 3173 (1976). The jurisdictions which have considered the question presented *151here almost uniformly hold that a parole officer is an agent of the State bound by the requirements of Miranda. See Marrs v. Maryland, 53 Md. App. 230, 452 A.2d 992, 994 (1982) and cases cited therein.3
RCW 9.95.220 grants extensive arrest powers to probation and parole officers and reflects the intention of the Legislature that they be considered law enforcement officers:
Whenever the state parole officer or other officer under whose supervision the probationer has been placed shall have reason to believe such probationer is violating the terms of his probation, or engaging in criminal practices, or is abandoned to improper associates, or living a vicious life, he shall cause the probationer to be brought before the court wherein the probation was granted. For this purpose any peace officer or state parole officer may rearrest any such person without warrant or other process.
When we consider the role of parole officers under the sentencing scheme in the State of Washington and the powers granted to them by the Legislature, it is manifest that they are "law enforcement officers," as that term is used in Miranda. See also State v. Roberts, 14 Wn. App. 727, 732, 544 P.2d 754 (1976); State v. Hall, 35 Wn. App. 302, 305-06, 666 P.2d 930 (1983).
The majority also suggests that Miranda warnings were not required because the parole officer's purpose in conducting the interview was to "get [Hubbard's] version of the incident!" This is presumably the purpose of all law enforcement interrogation of a suspect. However, the parole *152officer's purpose in questioning Hubbard is immaterial to the question of whether she was legally required to advise him of his constitutional rights. See Minnesota v. Murphy, _U.S__, 79 L. Ed. 2d 409, 104 S. Ct. 1136, 1144-46.
[S]o long as the police conduct is likely to elicit incriminating statements and thus endanger the privilege, it is police "interrogation" regardless of its primary purpose or motivation ... if it otherwise qualifies as "interrogation," it does not become something else because the interrogator's main purpose is [something other] than the procuring of incriminating statements, even though self-incrimination may be foreseen as a windfall.
Whitfield v. State, 287 Md. 124, 143, 411 A.2d 415, 426 (1980), quoting Kamisar, Brewer v. Williams, Massiah, and Miranda: What is "Interrogation''? When does it Matter?, 67 Geo. L.J. 1, 9 (1978). Asking Hubbard where he was on the night of the incident and what he saw was, assuming Hubbard's guilt, likely to elicit an incriminating response. This is interrogation within the meaning of Miranda.
The majority relies on State v. Duhaime, 29 Wn. App. 842, 631 P.2d 964 (1981) for the proposition that Miranda warnings were unnecessary. In Duhaime the defendant was advised of his rights by police and signed a written waiver form. Thirty minutes later he was again informed of his rights, and gave a detailed taped confession to the murder. Duhaime, at 845. Two hours later he was interviewed by a social worker to determine whether Duhaime was a danger to himself. She told him her report would not be confidential and that everything he said could be used against him. She did not give Duhaime the Miranda warnings. The court held that because the defendant effectively waived his right to remain silent less than 2 hours before his interrogation by the social worker, restatement of the Miranda warnings was not required. The facts of this case are markedly different. The State cannot rely on the advice of rights by the police the night of Hubbard's arrest, because Hubbard declined to waive them.
Once Hubbard exercised his right to remain silent, cus*153todial interrogation by any law enforcement officer, including his parole officer, required new Miranda warnings and a waiver. See Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975). The fact that Hubbard's statements were not coerced does not render them admissible. See Edwards v. Arizona, 451 U.S. 477, 483-84, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981). The State must first prove that he knowingly and intelligently waived his right to remain silent. Tague v. Louisiana, 444 U.S. 469, 470, 62 L. Ed. 2d 622, 100 S. Ct. 652 (1980). The State did not meet this burden. The trial court, therefore, properly ruled that the statements were inadmissible in the State's case in chief.
To preclude any misapprehension that may result from the majority's observation that the lower court ruled Hubbard's statements admissible as rebuttal, I must refer to the court's oral opinion. The hearing judge stated:
The motion to suppress those statements is granted. However, I feel they are admissible under, I think, . . . Harris, in terms of any rebuttal, that I think they clearly could come in at least as part of the case of the State in rebuttal. However, not as part of their case in chief.
The pretrial judge's ruling thus allowed the admission of the defendant's statements only as permitted by Harris v. New York, 401 U.S. 222, 28 L. Ed. 2d 1, 91 S. Ct. 643 (1971). The majority's opinion misconstrues both the evidentiary and the constitutional bases for the limited rule enunciated in that case.
I am not aware of any appellate court which holds that Harris permits impeachment of a person other than the defendant through the use of a defendant's incriminating statements which were obtained in violation of Miranda. An analysis of the Harris opinion reveals that such a conclusion is erroneous. In evidentiary terms, Harris allows impeachment by prior inconsistent statements, in which the credibility of a witness is attacked by evidence of a prior statement inconsistent with that witness' testimony. See ER 613. To be distinguished is the method of impeachment sometimes called "mere contradiction," in which the sub*154stance of a witness' in-court testimony is contradicted by the testimony of a second witness, as occurred here. 5 K. Tegland, Wash. Prac., Evidence § 254 (2d ed. 1982). Impeachment by contradiction is actually rebuttal evidence. The contradictory evidence is not limited to impeaching the witness' credibility, but is competent to prove the substantive facts encompassed therein.
Unlike impeachment by prior inconsistent statement, impeachment by mere contradiction is not within any exception to the hearsay rule. ... To be admissible, such extrinsic evidence must be independently competent and must be admissible for a purpose other than that of attacking the credibility of the witness.
(Citations omitted.) Jacqueline's Wash., Inc. v. Mercantile Stores Co., 80 Wn.2d 784, 788-89, 498 P.2d 870 (1972). The parole officer's testimony was produced in rebuttal to contradict the testimony of the alibi witness, not that of the defendant/declarant, and thus was admitted to prove the substantive facts encompassed in such evidence. Nor does it comport with reality to believe that Hubbard's incriminating statements, otherwise inadmissible though purportedly being introduced solely to affect the alibi witness' credibility, would be disregarded as substantive evidence by the jury.
The constitutional question addressed in Harris was whether the Fifth Amendment, as explicated in Miranda, requires suppression of all illegally obtained statements regardless of the purpose for which the statements are offered. Chief Justice Burger, writing for the majority, recognized that "[s]ome 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." Harris, 401 U.S. at 224. Justice Brennan, writing for the dissent, disagreed with Burger by arguing that Miranda indeed settled this issue and
[t] his language completely disposes of any distinction between statements used on direct as opposed to cross-*155examination. 'An incriminating statement is as incriminating when used to impeach credibility as it is when used as direct proof of guilt and no constitutional distinction can legitimately be drawn.'
(Footnote omitted.) Harris, 401 U.S. at 231, quoting People v. Kulis, 18 N.Y.2d 318, 324, 221 N.E.2d 541, 543, 274 N.Y.S.2d 873 (1966) (dissenting opinion). Thus, the majority's intention in Harris was to open the door but a crack to permit the utilization of the inadmissible statements in the narrow context of impeaching the credibility of a testifying defendant. This was over the vigorous objection of the dissenters. Today, the majority here seeks to remove the door entirely.
An issue similar to the one presented in the case at bench was considered in United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982), where the government sought to introduce the defendant's statements, obtained in violation of Miranda, in order to rebut testimony by expert psychiatric witnesses. The court rejected a "testimony-by-proxy" theory advanced by the government and adopted by the majority here, restricting the Harris rule to impeachment of the defendant only.
Although it is indeed true that if a defendant takes the stand and testifies in a manner contradicted by illegally obtained evidence, that evidence can be used for the limited purpose of impeachment, there is as yet no basis in law for converting this limited exception into a general license to use illegally obtained evidence for rebuttal purposes. And if there were, the government does not adequately explain why it would single out the insanity defense for application of the testimony-by-proxy theory. All defense testimony is in a sense testimony by proxy, yet the government concedes that it would not seek to apply its rebuttal theory to an alibi or other affirmative defenses. We can fund no reason for such a distinction.[4]
*156(Footnotes omitted. Italics mine.) Hinckley, at 134. The Hinckley court correctly notes that there is no apparent reason for limiting rebuttal of defense witnesses with illegally obtained evidence to a particular type of defense witness. If the majority's rationale prevails that rebuttal use of the inadmissible statements is proper, it follows that such evidence may be used to "impeach" any defense witness. Any testimony presented by the defense which is inconsistent with inadmissible statements of the defendant would permit the admission into evidence of the defendant's incriminating statements. We would thus establish a broad rule of admission for otherwise inadmissible statements, eviscerate the Miranda rule, and enhance the possibilities for circumventing constitutional protections.
Instruction 9
The majority opinion gives the impression that the note on the use of WPIC 6.41 permits its use here. The note and comment to WPIC 6.41, 11 Wash. Prac. 89 (1977) in pertinent part provide:
Note on Use
This instruction must be given upon request of a defendant when, after a CrR 3.5 hearing, the trial court has ruled an admission or confession admissible and the defendant during trial raises the issue of voluntariness in his evidence or cross-examination of witnesses, CrR 3.5(d).
Comment
See CrR 3.5(d)(4). This instruction is based upon an instruction approved in State v. Huston, 71 Wn.2d 226, 236, 428 P.2d 547 (1967). An instruction as to weight and credibility of a confession is a procedural rather than an absolute constitutional right; . . .
In my view the instruction may be used only at the request of the defendant when he challenges the voluntariness of a confession ruled admissible as substantive evidence.
Instruction 9 should not have been given. Hubbard did not argue that the alleged statement was involuntary. See WPIC 6.41, supra; CrR 3.5(d)(4). The instruction is irrelevant to the alibi witness' credibility as it addresses only the *157weight and credibility of the defendant's statements. It does not inform the jury of the limited purpose for which the evidence is purportedly admitted. The instruction is not neutral, but emphasizes the importance of the defendant's incriminating statements. Instruction 9 magnifies the error perpetrated by the trial court in permitting the statements to be introduced as evidence.
For the reasons stated, I would reverse the judgment and sentence and remand for new trial.
Review granted by Supreme Court June 8, 1984.
Miranda v. Arizona, 384 U.S. 436, 1 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A.L.R.3d 974 (1966).
State v. Johnson, 9 Wn. App. 766, 514 P.2d 1073 (1973) addresses the issue of whether custodial statements obtained by a probation officer without advising the probationer of his constitutional rights are admissible in a revocation hearing. The court declined to express an opinion as to the admissibility of such statements in a subsequent criminal prosecution. Johnson, at 773.
The United States Supreme Court recently decided that Miranda warnings need not be given during routine meetings between a probationer and a probation officer because the probationer is not " in custody." Minnesota v. Murphy,_U.S._, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984). The Court stated "We emphasize that Murphy was not under arrest and that he was free to leave at the end of the meeting. A different question would be presented if he had been interviewed by his probation officer while being held in police custody ..." Minnesota v. Murphy, 104 S. Ct. at 1143 n.5. I infer from this statement that Miranda warnings are required prior to custodial interrogation by a probation or parole officer, which is the situation presented here.
Here, of course, the State seeks to employ illegally obtained statements to rebut alibi testimony, which the prosecution in Hinckley conceded it would not attempt to do.