Kidd v. State

Moylan, J., delivered the opinion of the Court. The root problem giving rise to the present appeal is the failure to appreciate that in 1966 the warning and waiver requirements mandated by Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 , did not supersede preexisting constitutional law on the admissibility of confessions; the requirements of Miranda simply superimposed additional criteria for admissibility upon that preexisting law. Distracted by the glitter of this new surface layer of quasi-constitutionality, our case law has tended to ignore the substratum of pre-Miranda law which lies undisturbed in bedrock immutability beneath the more volatile overlay of Miranda . The Factual Setting The appellant, Bruce D. Kidd, was convicted by a Baltimore City jury of possessing heroin with intent to distribute it.

Although the evidence against the appellant was legally sufficient to sustain the conviction, it was by no means overwhelming. At approximately 11 p.m. on May 9, 1975, plainclothes narcotics officers approached a large crowd in the 1700 block of Baker Street. That block was known as a “high-density narcotics area.” The appellant, upon whom investigation had not theretofore focused, quickly left the scene. The appellant testified that he was walking toward his car quickly because his daughter had ⁴⁴⁷ hurt her knee and he was going to take her to the hospital.

One of the arriving officers suspected that the appellant was “dirty” because he was observed running from the scene.' The officer testified, “If he wasn’t dirty, he wouldn’t have ran.” Another of the officers observed the appellant drop something. He searched the area and discovered 18 glassine bags of heroin. The appellant denied having discarded the glassine bags of heroin. Into this two-on-one credibility battle there intruded the damaging admission now in issue, made by the appellant to the police, that he was currently a narcotics addict.

The error, if such be found, cannot be deemed harmless. The incriminating statement was made by the appellant to Officer Winkler after the appellant had been arrested and was being booked. There was no testimony that any Miranda warnings had ever been given or that any rights had been waived. Such testimony would, indeed, have been superfluous since the State never offered the statement made to Officer Winkler during the course of its case in chief.

The issue first arose during the prosecutor’s cross-examination of the appellant, while he was testifying in the course of his defense upon the merits. The triggering question was, “Did you ever tell Officer Winkler that you were a one bag habit man?” A timely objection was interposed. The objection was overruled. A bench conference ensued, at the end of which the trial judge ruled: “If there is a confession or an admission or some statement by the defendant that does not comply with Miranda rules, you cannot introduce it on direct, but you can if the defendant takes the stand and denied it, then you can rebut his denial by putting on the statement that would not have been admissible had he not taken the stand.” In response to the question, the appellant denied any such conversation with Officer Winkler.

In rebuttal, the State called Officer Winkler. He testified, over objection, that the ⁴⁴⁸ appellant admitted to him that he was an addict and that he had approximately “a one-bag-a-day habit.” There was never a hearing, out of the presence of the jury or otherwise, on the voluntariness of this statement made to Officer Winkler. It is clear that the trial court, in making its ruling, was relying upon the case of Harris v. New York, 401 U. S. 222, 224 , 91 S. Ct. 643 , 28 L.Ed.2d 1, 4 (1971), which limited the impact of Miranda and held that a statement which might be excluded from the State’s case in chief because of a Miranda violation might nonetheless be received in rebuttal for purposes of impeaching the credibility of a defendant who takes the stand and testifies in a fashion contradicted by the Miranda-viol&tive statement: “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.” In 1975, Oregon v. Hass, 420 U. S. 714, 722 , 95 S. Ct. 1215 , 43 L.Ed.2d 570, 577 , reiterated this now undisputed limitation on the application of Miranda for purposes of total exclusion: “As in Harris , it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of the evidence satisfies legal standards.’ ” The Questions Before Us We are called upon to decide whether the latitude countenanced by Harris v. New York with respect to a Miranda violation extends also to a violation of deeper import. What is meant by the qualifying phrase in Harris v. New York: “provided of course that the trustworthiness of the evidence satisfies legal standards”?

If there is a deeper problem lurking beneath Miranda’s surface, how shall it be ⁴⁴⁹ raised and litigated? Are a hearing and ruling required? What is the relevant test? What is the burden of proof?

Who has the burden? Earlier Intimations On three earlier occasions, similar storm warnings were raised but the crisis passed over with no more than threatening skies. In Cooper v. State, 14 Md. App. 106, 110-116 , 286 A. 2d 579 , the issue first loomed (albeit in the context of the possible retroactivity of Harris v. New York) but it became unnecessary for us to resolve it because, notwithstanding having laid a foundation, the State never offered the arguably infirm prior inconsistent statement. In Layman v. State, 14 Md. App. 215, 224-231 , 286 A. 2d 559 , a question arose about using for impeachment purposes a prior inconsistent statement which allegedly ran afoul of traditional voluntariness requirements.

The issue there arose, however, in the context of whether the judge was required to give a defendant an anticipatory ruling. We held that he was not so required. The present question was never faced. Finally, in Sabatini v. State, 14 Md. App. 431 , 287 A. 2d 511 , we did not have to face squarely the issue of whether a hearing is required when the challenged statement is offered for impeachment purposes.

Although in that case a preliminary hearing was not held out of the presence of the jury, the evidence bearing on the question of traditional voluntariness was offered before the court and jury alike. We held that in ruling the statement admissible, the judge “at least implicitly” found traditional voluntariness. We further held, upon our independent, constitutional review, that the challenged statement was indeed voluntary. The risk that inheres when the matter is not explored preliminarily out of the presence of the jury did not, therefore, materialize under the circumstances of that case.

The Doctrinal Analysis of Harris v. New York The issue now, however, is squarely before us. Indispensable to a principled resolution of the issue, and of the various sub-questions involved therewith, is an ⁴⁵⁰ understanding of Harris v. New York not in terms of its surface operation but in terms of its doctrinal legitimacy. If we were dealing with Miranda in a vacuum, the trial judge would be correct and we should affirm. As we pointed out in Bartram v. State, 33 Md. App. 115 , 364 A. 2d 1119 (1976), “Miranda v. Arizona is in definite disfavor with the strong majority of the present membership of the institution charged with interpreting the law of the land,” and has been significantly eroded in a variety of ways by Harris v. New York, supra; by Oregon v. Hass, supra; by Michigan v. Tucker, 417 U. S. 433 , 94 S. Ct. 2357 , 41 L.Ed.2d 182 (1974); by Michigan v. Mosley, 423 U. S. 96 , 96 S. Ct. 321 , 46 L.Ed.2d 313 (1975), and by United States v. Mandujano, 425 U. S. 564 , 96 S. Ct. 1768 , 48 L.Ed.2d 212 (1976).

Miranda , however, is not coextensive with the fundamental constitutional right under the Fifth and Fourteenth Amendments against compelled self-incrimination. The erosion or demeaning of Miranda by no means implies the erosion or demeaning of the fundamental constitutional right itself. That right stands as it stood before Miranda was ever promulgated. Neither Harris v. New York nor Oregon v. Hass has eroded it in any sense.

As limiting agents upon the exclusionary power of Miranda, Harris v. New York and Oregon v. Hass themselves have limitations. A Miranda-violative statement may, indeed, be used for impeachment purposes — “provided of course that the trustworthiness of the evidence satisfies legal standards. ’’The limitation has a limitation. What is required conceptually is the appreciation of the difference between a “mere Miranda” violation and a more fundamental constitutional violation. See Bartram v. State, supra (Part 2A).

To understand fully not only 1)' the correctness of the Harris v. New York limitation upon Miranda but also 2) the limited scope of that limitation, one must turn to the deeper doctrinal analysis of Michigan v. Tucker, supra. In Michigan v. Tucker, a statement had been taken from a defendant in clear violation of Miranda . That statement led the police to a witness ultimately used by the prosecution in ⁴⁵¹ proving its case. The Supreme Court had to come to grips with the problem of whether a Miranda violation could serve as the “primary illegality” which would trigger the “fruit of the poisonous tree” doctrine.

In holding that a “mere Miranda” violation would not trigger the operation of that doctrine, it was necessary for the Supreme Court to hold that Miranda itself was not of constitutional dimensions. It denigrated the Miranda rules from the constitutional status of being part and parcel of the right against self-incrimination, treating them rather as “only the prophylactic rules developed to protect that right,” 417 U. S. at 439 ; as a “series of recommended ‘procedural safeguards,’ ” 417 U. S. at 443 ; as “suggested safeguards,” 417 U. S. at 444 ; as “only ... the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege,” 417 U. S. at 446 . The Supreme Court held, as was necessary to its decision, that the fundamental privilege against compulsory self-incrimination as such had not been violated: “The Court recognized that these procedural safeguards were not themselves rights protected by the Constitution but were instead measures to insure that the right against compulsory self-incrimination was protected. [T]he police conduct here did not deprive respondent of his privilege against compulsory self-incrimination as such, but rather failed to make available to him the full measure of procedural safeguards associated with that right since Miranda” 417 U. S. at 444 . It then raised the question of whether a “mere Miranda” violation would trigger the “fruit of the poisonous tree” doctrine, while suggesting strongly that a violation of the right against compulsory self-incrimination would most certainly trigger that doctrine: “Our determination that the interrogation in this case involved no compulsion sufficient to breach the ⁴⁵² right against compulsory self-incrimination does not mean there was not a disregard, albeit an inadvertent disregard, of the procedural rules later established in Miranda .

The question for decision is how sweeping the judicially imposed consequences of this disregard shall be.” 417 U. S. at 445 . Although its holding dealt with the obverse side of the present coin, the holding necessarily implied that a violation of the basic constitutional privilege itself will bar not only the direct use but any indirect use — “the fruits” — of such unconstitutionality: “This Court has also said, in Wong Sun v. United States, 371 U.S. 471 , 9 L.Ed.2d 441 , 83 S.Ct. 407 (1963), that the ‘fruits’ of police conduct which actually infringed a defendant’s Fourth Amendment rights must be suppressed. But we have already concluded that the police conduct at issue here did not abridge respondent’s constitutional privilege against compulsory self-incrimination, but departed only from the prophylactic standards later laid down by this Court in Miranda to safeguard that privilege.” 417 U. S. at 445-446 . In Bartram v. State, supra, we pointed out that “[t]he distinction between a ‘mere Miranda’ violation, the product of which may be used in rebuttal or for collateral purposes, and a ‘primary illegality’ of constitutional dimensions under the ‘fruit of the poisonous tree’ doctrine is very clear.” See also Ryon v. State, 29 Md. App. 62 , 349 A. 2d 393 .

In In Re Appeal No. 245, Term 1975, 29 Md. App. 131 , 349 A. 2d 434 , Chief Judge Orth wrote for this Court, at 29 Md. App. 149 , 150: “In both Harris and Tucker , the misconduct of the police violated only the prophylactic rules developed by Miranda to protect the right against self-incrimination.... In the instant case, we do not have official action pursued in complete good faith, with the confession rendered inadmissible by ⁴⁵³ the mere inadvertent omission of one of the prophylactic Miranda warnings.... The rationale of the holdings in Harris and Tucker does not apply to make admissible the tangible evidence obtained here, any more than it would apply to make admissible evidence derived from a confession not voluntary in the traditional sense.” In Re Appeal No. 245, supra, is a beacon light of precedential guidance in this regard because of the clear contrast contained within it. A contested statement was taken from a juvenile.

That statement was found to be infirm by both the trial court and by this Court for two distinct reasons. In the first place, there was not an adequate waiver under Miranda . At an even more fundamental level, it was held to be involuntary in the constitutional sense because it was the direct and proximate effect of an illegal detention. Quite properly, the confession was suppressed.

The confession, however, gave the police a lead to a pair of binoculars, which binoculars were ultimately recovered by them and offered in evidence. 1 We held that, under the teaching of Harris v. New York and Michigan v. Tucker, the “mere Miranda” violation would not prohibit the use of the Mmwda-violative statement to furnish informational leads to the police and that the binoculars would not be suppressed because of the Miranda violation. Moving on to matters of more constitutional magnitude, however, we held that when the raw nerve of the right against compulsory self-incrimination was improperly touched by unlawful police action, the gears of the “fruit of the poisonous tree” doctrine were fully engaged and that the binoculars must be suppressed for the basic constitutional violation, 2 even where suppression was not called for for the “mere Miranda” violation. ⁴⁵⁴ It is now undisputed that a violation of the Fifth Amendment right against compelled self-incrimination can trigger the “fruit of the poisonous tree” doctrine. Michigan v. Tucker, supra; In Re Appeal No. 245, supra; Ryon v. State, supra; Bartram v. State, supra. Cf.

Garrison v. State, 28 Md. App. 257 , 345 A. 2d 86 ; Everhart v. State, 274 Md. 459 , 337 A. 2d 100 ; Carter v. State, 274 Md. 411 , 337 A. 2d 415 . It is also undisputed that once the “fruit of the poisonous tree” doctrine comes into play, the use of a tainted “fruit” would be barred for all purposes, for impeachment purposes in rebuttal just as surely as for more directly inculpatory purposes in the case in chief. The heart of the doctrine was expressed by Justice Holmes in the case that gave birth to the doctrine, Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392 , 40 S. Ct. 182 , 64 L. Ed. 319 (1920): “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.” See also Nardone v. United States, 308 U. S. 338 , 60 S. Ct. 266 , 84 L. Ed. 307 (1939), and Wong Sun v. United States, 371 U. S. 471 , 83 S. Ct. 407 , 9 L.Ed.2d 441 (1963). The Court of Appeals spoke very clearly to this point in Everhart v. State, supra, at 274 Md. 481 -482: “The doctrine of the ‘fruit of the poisonous tree’ extends the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search; in its broadest sense it prohibits the prosecution from using in any manner, prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of law enforcement agents.” (Emphasis supplied) ⁴⁵⁵ It follows ineluctably that if an involuntary statement cannot be used for even so remote a purpose as supplying a lead to further investigation, it may not be used more directly to impeach credibility.

Harris v. New York and Oregon v. Hass do not, therefore, authorize such use of a questioned statement, even for the limited purpose of impeachment in rebuttal, when the initial infirmity is constitutional involuntariness itself and not mere non-compliance with the suggested prophylactic rules of Miranda . The analysis has been pursued perhaps to the point of tedium. A conceptual grasp of the crucial distinction between the natures of the violations, however, is indispensable to a principled resolution of the attendant procedural questions. With the distinction now firmly fixed in mind, we are equipped to consider the procedural sequelae.

The Procedural Questions Since Harris v. New York cannot immunize even for limited purposes a statement made to the police where the contagion is of constitutional virulence, attention must be focused upon the procedural requirements for diagnosing such constitutional contagion. When the State seeks to use a statement against a defendant, even for the more limited purpose of impeachment, must the State show anything absent an objection? Is more required of a defendant by way of challenge than a bare objection? Is a judicial determination required?

Once the issue is raised, what is the test? What is the burden of proof? To whom is the burden allocated? The clue to the solution is that we are not addressing a new problem but rather an old problem which we have tended to neglect in the rush of more topical recent events.

We must look beneath the transient sod into the abiding subsoil. The answers are what they have always been since Maryland began litigating the subject of voluntariness in 1873 with Nicholson v. State, 38 Md. 140 , and since the Supreme Court began litigating the subject of voluntariness ⁴⁵⁶ in 1936 with Brown v. Mississippi, 297 U. S. 278 , 56 S. Ct. 461 , 80 L. Ed. 682 . Upon this massive body of case law, Miranda was superimposed by the Supreme Court in 1966 as an additional set of “procedural safeguards.” Miranda was not a substitute for the earlier and more fundamental safeguards and did not work any change with respect to them. It simply superimposed a veneer of additional prophylaxis.

The effect of Harris v. New York is simply upon that prophylactic layer and does not alter the constitutional substratum which remains, procedurally as well as substantively, what it has always been. 1. Must the Defendant Interpose an Objection? — Yes. With respect to that substratum, it is and always has been clear that no issue arising out of the admissibility of a confession, for any purpose, will be preserved for appellate review absent an objection by the defendant at the time the confession is offered. Maryland Rule 1085; Tucker v. State, 237 Md. 422, 425 , 206 A. 2d 691 ; Gaudio and Bucci v. State, 1 Md. App. 455, 462-463 , 230 A. 2d 700 ; Kleinbart v. State, 2 Md. App. 183, 209 , 234 A. 2d 288 ; Bitzer v. State, 4 Md. App. 415, 419 , 243 A. 2d 33 ; Hall v. State, 6 Md. App. 356, 360-361 , 251 A. 2d 219 .

Neither Miranda nor the Harris v. New York limitation upon Miranda had any effect upon this basic procedural rule. 2. Is a Bare Objection Enough? — Yes. With further respect to that substratum, it is and always has been clear “that general objection ... to the admission of the confession, is sufficient . . . and that grounds for the objection need not be stated unless requested by the court, Maryland Rule 522 d 1, made applicable to criminal causes by Rule 725 f.” 3 Bates v. State, 32 Md. App. 108, 112-113 , 359 A. 2d 106 . See also Robert v. State, 220 Md. 159, 167-168 , 151 A. 2d 737, 741 ; Giles v. State, 10 Md. App. 593, 598 , 271 A. 2d 766, 769 .

Neither Miranda nor the Harris v. ⁴⁵⁷ New York limitation upon Miranda had any effect upon this basic procedural rule. 3. Area Hearing and a Judicial Ruling Required? — Yes. With further respect to that substratum, it is and always has been clear that when a defendant makes timely objection to the admission of a statement taken from him by the police, the trial judge must conduct a hearing and must determine as a matter of law whether the challenged statement will or will not be admitted into evidence. As we said in Mulligan v. State, 10 Md. App. 429, 432 , 271 A. 2d 385 : “The trial judge’s conclusion that the confession was voluntary must appear from the record with unmistakable clarity.” We spoke to a similar effect in Barnhart v. State, 5 Md. App. 222, 226 , 246 A. 2d 280 : “A defendant’s constitutional rights are violated when his challenged confession is introduced without the preliminary decision by the trial judge of its voluntariness after an adequate hearing.

Jackson v. Denno, 378 U. S. 368 .” As Chief Judge Murphy very forcefully said for this Court in the appropriately named case of Murphy v. State, 8 Md. App. 430, 436-437 , 260 A. 2d 357 : “But, as heretofore indicated, the appellant later entered a timely general objection to the admissibility of the confession which had the effect of challenging the confession on the broader constitutional ground that it was not freely and voluntarily made. See Maryland Rules 522 and 725f. Under Jackson v. Denno, supra, it was incumbent upon the trial judge to make a preliminary finding of voluntariness before admitting the confession in evidence, and that finding must, under Sims v. Georgia, supra, ‘appear from the record with unmistakable clarity.’ The ra ⁴⁵⁸ tionale of these cases is plainly such that the trial judge must do more than, as here, .simply overrule the objection — his conclusion that the confession was voluntary must, we repeat, appear from the record ‘with unmistakable clarity.’ And this is so even where, as here, the only evidence in the case pertaining to the voluntariness of the statement showed that it was freely and voluntarily made; the trial judge still must indicate ‘with unmistakable clarity,’ that he believes such evidence and therefore finds the confession to be a voluntary one.” See also Lynch v. State, 9 Md. App. 441, 443 , 265 A. 2d 283 . Jackson v. Denno, 378 U. S. 368 , 84 S. Ct. 1774 , 12 L.Ed.2d 908 (1964), is the constitutional wellspring for the procedural requirements surrounding the issue of voluntariness.

That a hearing is required is clear: “Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession.” 378 U. S. at 376-377 . In Sims v. Georgia, 385 U. S. 538 , 87 S. Ct. 639 , 17 L.Ed.2d 593 (1967), the trial judge there, as the trial judge here, overruled a defense objection and admitted a confession into evidence. There, as here, there was no determination of the question of voluntariness. In reversing, the Supreme Court said, at 385 U. S. 544 : “Although the judge need not make formal findings of fact or write an opinion, his conclusion that the confession is voluntary must appear from the record with unmistakable clarity.

Here there has been absolutely no ruling on that issue . . .” See also Boles v. Stevenson, 379 U. S. 43 , 85 S. Ct. 174 , 13 ⁴⁵⁹ L.Ed.2d 109 (1964). And see Mulligan v. State, 10 Md. App. 429, 432 , 271 A. 2d 385 . In Jackson v. Denno, the Supreme Court pointed out that a fair hearing and a judicial ruling are required both to insure that the jury never hears the substance of or knows of the existence of an involuntary confession and to put upon the record the necessary material for later judicial review: “In jurisdictions following the orthodox rule, under which the judge himself solely and finally determines the voluntariness of the confession, or those following the Massachusetts procedure, under 1 which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused, the judge’s conclusions are clearly evident from the record since he either admits the confession into evidence if it'is voluntary or rejects it if involuntary. Moreover, his findings upon disputed issues of fact are expressly stated or may be ascertainable from the record.” 378 U. S. at 378-379 .

Neither Miranda nor the Harris v. New York limitation upon Miranda had any effect upon this basic procedural requirement. 4. What is the Constitutional Test1 — Voluntarmess. With further respect to that substratum, it is and always has been clear that, above and beyond any lattef-day catechism of explicit warnings, a statement made by a defendant to the authorities must be voluntary, to wit, not “compelled” within the contemplation of the Fifth Amendment to the United States Constitution or Article 22 of the Maryland Declaration of Rights. The Maryland test for voluntariness was well stated by the Court of Appeals in Smith v. State, 189 Md. 596, 603-604 , 56 A. 2d 818 : “The law regarding the admissibility of a concession has been stated by this court many times.

We will restate the rule. Before a confession ⁴⁶⁰ can be admitted in evidence, the State must show, to the satisfaction of the court, [4] that it was the free and voluntary act of an accused; that no force or coercion was exercised by the officers obtaining the confession, tp cause the accused to confess; that no hope or promise was held out to an accused for the purpose of inducing him to confess.” See also Linkins v. State, 202 Md. 212, 222 , 96 A. 2d 246 ; Hall v. State, 223 Md. 158, 169 , 162 A. 2d 751 ; Ralph v. State, 226 Md. 480, 487 , 174 A. 2d 163 . The same test was well articulated for this Court by then Chief Judge Murphy in Robinson v. State, 3 Md. App. 666, 670-671 , 240 A. 2d 638 : “It is well settled that in order for a confession to be admissible into evidence against an accused, the State must prove that it was voluntary and not the product of force, threats, promises or inducements. Abbott v. State, 231 Md. 462 ; Cooper v. State, 1 Md. App. 190 .

Otherwise stated, to be voluntary, a statement cannot 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, 378 U. S. 1, 7 ; Lyter v. State, 2 Md. App. 654 .” See also Wiggins v. State, 4 Md. App. 95, 105-106 , 241 A. 2d 424 ; Barnhart v. State, supra, at 5 Md. App. 224 -225; Bates v. State, supra, at 32 Md. App. 113 -114. Federal constitutional law, as interpreted by the Supreme Court, points unmistakably in the same direction. A voluntary statement (subject only to the additional requirements of Miranda when offered in chief) is always admissible for all purposes. The pivotal criterion of voluntariness was always rooted in the Fifth Amendment proscription against compulsory self-incrimination in cases arising in the federal courts.

In state cases, there has been ⁴⁶¹ an evolution in the constitutional predicate for applying the test but no fundamental change in the test itself. Beginning with Brown v. Mississippi, 297 U. S. 278 , 56 S. Ct. 461 , 80 L. Ed. 682 , in 1936, and continuing over the course of some 28 years involving the consideration of some 35 cases, constitutional review of the admissibility of confessions in state cases was grounded in the due process clause of the Fourteenth Amendment. The decision of the Supreme Court in Gideon v. Wainwright, 372 U. S. 335 , 83 S. Ct. 792 , 9 L.Ed.2d 799 (1963), that the right to counsel provision of the Sixth Amendment was applicable to the states through the due process clause presented the Supreme Court with the opportunity to shift its review of confession cases in state courts to a more specific launching pad. For a brief period in 1964, it experimented with the right to counsel provision of the Sixth Amendment as the appropriate constitutional lever in Massiah v. United States, 377 U. S. 201 , 84 S. Ct, 1199 , 12 L.Ed.2d 246 (1964), and Escobedo v. Illinois, 378 U. S. 478 , 84 S. Ct. 1758 , 12 L.Ed.2d 977 (1964).

That experiment was short-lived. Malloy v. Hogan, 378 U. S. 1 , 84 S. Ct. 1489 , 12 L.Ed.2d 653 , also decided in 1964, held for the first time that the privilege against compelled self-incrimination under the Fifth Amendment was also binding upon the states through the due process clause of the Fourteenth Amendment. With that far more appropriate point of departure then available, coupled with the opportunity to base the federal and the state confession cases upon the same constitutional footing, the Supreme Court by 1966 began grounding its