Blizzard v. State

Gilbert, J., delivered the opinion of the Court. Thomas Jefferson, on July 31, 1788, wrote a letter to James Madison, freshly returned from his duties as Virginia delegate to the Constitutional Convention and the Convention’s chief recorder, in which he referred to the Constitution of the United States as, “ ... a good canvas, on which some strokes only want retouching.” The Congress and the courts of this country have, from time to time, applied the strokes deemed necessary to retouch the canvas, with the Supreme Court exercising its role as the master artist. In that capacity, the Court, speaking through Mr. Justice Stewart,* 1 declared, in Massiah v. United States, 377 U. S. 201, 206 , 84 S. Ct. 1199 , 12 L.Ed.2d 246 (1964): “ ... We hold that the petitioner was denied the basic protections of that guarantee [the Sixth Amendment right to counsel] when there was used ¹⁵⁸ against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 2 Shortly afterwards the Court was presented with McLeod v. Ohio, 378 U. S. 582 , 84 S. Ct. 1922 , 12 L.Ed.2d 1037 (1964).

There a question similar to that raised in Massiah confronted the nine justices of the Supreme Court. The judgment was vacated and the cause remanded to the Ohio Supreme Court in order that they might re-examine their decision in the light of Massiah . The Ohio Court, in a per curiam opinion, State v. McLeod, 1 Ohio St. 2d 60 , 203 N.E.2d 349 (1964) endeavored to distinguish McLeod from Massiah . The Court pointed out that McLeod, eight days after indictment, voluntarily made an oral confession to an assistant prosecutor and to a deputy sheriff while McLeod was “ . . . riding around in the sheriffs automobile searching for the gun used in the holdup.” The majority of the Court observed 3 that the statements were willingly made and that no counsel had been appointed.

The majority quoted the last two sentences of the opinion authored by Mr. Justice Stewart in Massiah : “ ... We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the ¹⁵⁹ prosecution as evidence against him at his trial.” 4 377 U. S. at 207 . The majority found comfort in the fact that the “. . . ‘circumstances’ under which his [McLeod’s] incriminating statements were given were wholly different from those in Massiah.” 203 N.E.2d at 351 .

The court affirmed its prior stand. McLeod again petitioned the Supreme Court for certiorari which was granted. Whatever distinction the Ohio court made between McLeod and Massiah did not convince the Supreme Court, for they reversed in a per curiam opinion, McLeod v. Ohio, 381 U. S. 356 , 85 S. Ct. 1556 , 14 L.Ed.2d 682 (1965). The full text of the opinion read: “The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted.

The judgment is reversed. Massiah v. United States, 377 U.S. 201 .” Two years after the Massiah decision the Supreme Court handed down its opinion in Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966). Massiah was bottomed on the Sixth Amendment right to counsel. Miranda was founded upon the Fifth Amendment protection against self-incrimination.

With the announcement of the Miranda holding, the significance of Massiah was to some extent diminished, but it was by no means eradicated. Massiah-Miranda guards against surreptitiously obtaining incriminating statements from an accused absent a knowingly and intelligently made waiver of the Constitutional right to the presence of counsel. We shall now turn to a discussion of the instant case and the application, vel non, of Massiah thereto. Mark Edward Blizzard, appellant, was arrested and charged with robbery with a deadly weapon of a pharmacy in Baltimore County.

Blizzard was subsequently indicted for ¹⁶⁰ that offense and allied charges. At trial in the Circuit Court for Baltimore County, before a jury, the State used the testimony of two alleged accomplices to demonstrate Blizzard’s culpability as one of the three or four persons who robbed the pharmacy of “Class A” drugs and cash. An individual customer was also relieved, at gunpoint, of her wallet containing $56. None of the persons, save one, who were in the pharmacy at the time of the robbery could identify Blizzard as one of the robbers.

Notwithstanding the fact that the two gunmen who entered the store had their faces concealed, one with a ski mask and the other with a nylon stocking, an employee made a positive identification of appellant as the individual who held a gun on her. Blizzard’s defense was twofold. Firstly, he sought to show through three witnesses and himself that he was at home repairing a friend’s automobile at the time the pharmacy was robbed. Secondly, he produced the testimony of two inmates of the Baltimore County jail who told the jury that a co-defendant of appellant, one Markert, 5 had told them that he and one Phillips 6 had robbed the pharmacy, and that they, Markert and Phillips, were going “to frame” Blizzard.

The State, in rebuttal, called Sergeant Zero of the Baltimore County Police Department who testified over strenuous objection that he was telephoned from the county jail and told that Blizzard wanted to see him. The transcript reveals the following: “THE WITNESS: ... I went down to the Jail and I talked to the Defendant and another subject, and when I first met him I told him I didn’t even want to talk to him about the armed robbery he was involved in being the Defendant. By Mr. Seibert [Assistant State’s Attorney]: ¹⁶¹ Q Is that the first conversation?

A Yes. Q What happened then? A I told him I had him up tight in this armed robbery. MR.

DUGAN [Defense Counsel]: Objection. May we approach the Bench? THE COURT: Objection overruled. This is what you told him?

THE WITNESS: Yes, this is what I told him. THE COURT: What did he answer? MR. DUGAN: May we approach the Bench?

THE COURT: Let him finish the question. THE WITNESS: He answered, he told me he knew it but he wished to talk to me about other cases. THE COURT: That is what he said? THE WITNESS: Yes, sir.” The record reflects that the conversation between Zero and appellant occurred two months after indictment of appellant, six weeks after initial counsel had entered his appearance for appellant, a month after Mr. Dugan had entered his appearance, and sixteen days before trial.

Thus, it is clear that the Massiah stage was set at the time of Zero’s visit to the county jail. Appellant argues that the trial judge’s allowing of Sergeant Zero’s testimony violates the precepts of Massiah and, therefore, requires a reversal. The State’s polemic to that contention is that Massiah is not “ . . . applicable where the statement was voluntary and was not ‘deliberately elicited’ from a defendant.” To bolster its argument the State relies upon a series of federal cases, i.e., United States v. Gaynor, 472 F. 2d 899 (2d Cir. 1973); United States v. Garcia, 377 F. 2d 321 (2d Cir. 1967); Gascar v. United States, 356 F. 2d 101 (9th Cir. 1965), cert. denied, 385 U. S. 865 , 87 S. Ct. 125 , 17 L.Ed.2d 92 (1966); United States v. Gardner, 347 F. 2d 405 (7th Cir. 1965), cert. denied, 382 U. S. 1015 , 86 S. Ct. 626 , 15 L.Ed.2d 529 (1966); United States v. Accardi, 342 ¹⁶² F. 2d 697 (2d Cir. 1965), cert. denied, 382 U. S. 954 , 86 S. Ct. 426 , 15 L.Ed.2d 359 (1965). We are unpersuaded, however, by any of them.

Gaynor dealt with a spontaneous utterance made to a postal inspector in a courthouse elevator. It “. . . was not a part of any interrogation, [and] ... it was not elicited by the Postal Inspector.” 472 F. 2d at 900 . The trial court apparently found that the statement was voluntarily made. Gaynor , we believe to be unpersuasive because, not only did the Second Circuit neglect to distinguish McLeod secundum, but there seemingly was a factual finding by the trial court that Gaynor’s statement was voluntary.

In the case now before us, there is no such finding. The trial judge allowed the State to set the scene for the use of Zero’s rebuttal testimony by inquiring of Blizzard what he had told the sergeant. Blizzard responded, “Nothing.”. Garcia is factually inapposite.

In that case the government interrogator was unaware that Garcia had been indicted and the subject matter of his inquiry was not directed toward . . seeking information about the crime the indictment charged had been committed.” Massiah has no application to Gasear which involved voluntary incriminatory statements spoken to various government agents during the commission of criminal acts and at the time of arrest. Gasear had not been indicted at the times of these statements, nor is there any indication that counsel had been appointed. The court quoted its prior case, Grier v. United States, 345 F. 2d 523, 524 (9th Cir. 1965), wherein they noted that “. . . One is not entitled to counsel while committing his crime. . . .” The Gasear court explained that the statements were made during investigation of criminal transactions.

They were not made during a process of interrogation as was prohibited by the Massiah meaning of “investigation.” Gardner involved a conversation between two prisoners, and into which a deputy marshal injected himself. During the conversation the marshal described to the other prisoner the ironic events of Gardner’s bank robbery in which Gardner got trapped in the bank. Gardner voluntarily ¹⁶³ responded with an explanation of how he literally “broke out” of the bank. The court held that Massiah did not apply in that the .. admissions ... [were] not deliberately elicited.” McLeod secundum was decided by the Supreme Court on May 24, 1965, approximately six weeks before Gardner , but it is apparent from a reading of Gardner that the court did not consider the second McLeod disposition.

Accardi was decided prior to McLeod secundum. The issue of Massiah’s application was not raised in the trial court. Even if it had been raised, the appellate court held on the facts that Accardi was not questioned about the matter for which he stood indicted, but rather voluntarily disclosed the inculpatory information to the federal agent. Whatever eroding of Massiah’s tenets may have been indulged in by courts of some other states or some of the Federal courts, 7 Maryland adheres to the principle pellucidly ¹⁶⁴ engraved into our case law by the Court of Appeals, in Elliott v. Warden, 243 Md. 627, 222 A. 2d 55 (1966).

The Elliott Court declared that “... Under the Massiah test, absent an effective waiver of Sixth Amendment rights, no inculpatory statement which is made by an indicted declarant will be allowed into evidence against him if such a statement is elicited from the accused when he does not have counsel present.” The Court concluded that its interpretation was “.. . compelled by the language used in Massiah....” 243 Md. at 631. Elliott also makes manifest that absent effective waiver of counsel even “a voluntary” statement is inadmissible, 243 Md. at 631-32 , citing the Supreme Court’s summary disposition oí McLeod secundum.* ** 8 This Court, in Sabatini v. State, 14 Md. App. 431, 448 , 287 A. 2d 511, 520 (1972), cert. denied 265 Md. 742 (1972), interpreted Elliott’s waiver exception. We said: “.. .

We do not construe Massiah as holding that an accused may never effectively waive assistance of counsel once he has counsel representing him or that a waiver of assistance of his counsel can never be effective in the absence of waiver also by that counsel.” The State further suggests that the statement allegedly made by appellant to the police sergeant was not “deliberately elicited” and, therefore, was admissible. We do not see it that way. In our view, the police officer inferentially, at least, knew that appellant had been indicted and that counsel represented him. The sergeant’s conversation at the jail with appellant should have been preceded with the Massiah-Miranda warnings.

Moreover, we believe that the tenor of the sergeant’s opening remarks may well have been calculated to bait appellant. ¹⁶⁵ Based upon our Constitutionally mandated independent review of the record, Sabatini v. State, supra, and Herbert v. State, 10 Md. App. 279 , 269 A. 2d 430 (1970), we observe no finding therein indicating that Blizzard had waived his right to counsel. Furthermore, as we read Elliott v. State, supra, and State v. McLeod, supra, together with McLeod secundum, we are led to the belief that, while Massiah may not proscribe all post-indictment voluntary statements of an accused, as where waiver is present, Sabatini v. State, supra, it most certainly forbids the introduction into evidence of such testimony absent a finding of voluntariness grounded upon waiver of counsel’s presence. The long and the short of our holding is that once counsel has been appointed or retained, and his appearance is a matter of record, any post-indictment statement pertaining to the subject matter for which the accused has been indicted, 9 elicited by the authorities, absent an effective waiver of the right to the presence of counsel, affirmatively shown in the record, is proscribed by Massiah and Elliott. See also United States v. New Jersey, 351 F. 2d 429 (3d Cir. 1965).

Any proceeding to determine whether an accused effectively waived his right to the presence of counsel at the time he allegedly made a statement must