UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: January 2, 1969.
UNITED STATES OF AMERICA EX REL. MICHAEL O'CONNOR, APPELLANT,
THE STATE OF NEW JERSEY AND HOWARD YEAGER
Hastie, Chief Judge, and Seitz and Aldisert, Circuit Judges.
Opinion OF THE COURT
ALDISERT, Circuit Judge.
Three months after appellant was indicted for murder by a state grand jury in New Jersey, he was arrested in New York as a fugitive felon and returned to New Jersey for prosecution.*fn1 He was then interrogated by police officers who did not advise him of his right to remain silent; at this time he was not represented by counsel. Certain incriminating statements made by him at this interrogation were introduced at trial.*fn2 He was convicted on May 8, 1963, and sentenced to life imprisonment.
The New Jersey Supreme Court affirmed the conviction on June 22, 1964;*fn3 the United States Supreme Court denied certiorari on November 16, 1964.*fn4 He availed himself of the appropriate state post-conviction procedures,*fn5 and then sought habeas corpus relief in the District Court.*fn6 He now appeals from the order of the court below denying relief.
We must decide whether the introduction at his state trial of post-indictment incriminating statements made without counsel violated constitutional principles enunciated in Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246, decided on May 18, 1964, while appellant's case was on direct appeal.*fn7
The District Court concluded that although O'Connor was interrogated after indictment while he was without counsel and not advised of his right to remain silent, the rule of Massiah was nonetheless subject to the same retroactive limitation as Escobedo and Miranda.*fn8
Before we reach the question of whether the Massiah ruling enunciated in 1964 may be applied to the 1963 trial of this appellant, it is necessary to decide if the present appeal falls within the substantive rule of that case. If it does not, then the chronology of the cases becomes an immaterial point.
The defendant in Massiah was accused of a federal narcotics offense. Following his arrest, he retained counsel, was indicted, pleaded not guilty, and was released on bail. While he was free on bail, a federal agent, with the cooperation of a co-defendant, surreptitiously monitored a conversation between Massiah and the co-defendant. The substance of the conversation containing incriminatory statements was introduced at trial, and he was convicted. The Supreme Court held that the introduction of the extrajudicial statements violated the accused's Sixth Amendment right to the aid of counsel, stating:
"This view no more than reflects a constitutional principle established as long ago as Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158, where the court noted that '* * * during perhaps the most critical period of the proceedings * * * that is to say, from the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation [are] vitally important, the defendants * * * [are] as much entitled to such aid [of counsel] during that period as at the trial itself.'" 377 U.S. at 205, 84 S. Ct. at 1202.
Citing Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), inter alia, the Court continued: "The same basic constitutional principle has been broadly reaffirmed by this Court." But the Court then added: "Here we deal not with a state court conviction, but with a federal case, where the specific guarantee of the Sixth Amendment directly applies." This was an obvious implication that the rule of Massiah was to apply only to federal prosecutions,*fn9 although the reasoning in the opinion was expressed in terms of "basic constitutional principles". The opinion concluded:
"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 prosecution as evidence against him at trial." 377 U.S. at 207, 84 S. Ct. at 1203.
Massiah left three important questions unanswered: (1) Was it applicable only to federal prosecutions? (2) Was it restricted to special "circumstances" or did it confer an absolute right to counsel in all cases following indictment? (3) Was it to be applied retroactively?
The first of these questions was answered in Lyles v. Beto, 379 U.S. 648, 85 S. Ct. 613, 13 L. Ed. 2d 552 (1965). The defendant in Lyles had been convicted of burglary in a state prosecution. His extrajudicial confession given after indictment while not represented by counsel was introduced at trial. Relying on Spano v. New York, 360 U.S. 315, 79 S. Ct. 1202, 3 L. Ed. 2d 1265 (1959),*fn10 Crooker v. California, 357 U.S. 433, 78 S. Ct. 1287, 2 L. Ed. 2d 1448 (1958) and Cicenia v. LaGay, 357 U.S. 504, 507, 78 S. Ct. 1297, 2 L. Ed. 2d 1523 (1958), the Fifth Circuit held that there was no absolute right to counsel after indictment which, absent a showing of special circumstances, vitiated the validity of voluntarily-given statements by the accused.
Without opinion, the Supreme Court remanded the case "for reconsideration in light of Massiah v. United States". The clear implication of this action was that Massiah applied to both federal and state prosecutions.*fn11
Whether Massiah would be applied selectively to special "circumstances" was a question that remained,*fn12 but one which was to find an answer in McLeod v. Ohio, 381 U.S. 356, 85 S. Ct. 1556, 14 L. Ed. 2d 682 (1965). Convicted in an Ohio prosecution, McLeod challenged the admission of his extrajudicial statements made voluntarily after indictment without counsel. The incriminatory remarks were unsolicited by the police without any element of trickery, deception or subterfuge.
The Ohio Supreme Court dismissed the appeal as presenting "no debatable constitutional question".*fn13 The United States Supreme Court granted certiorari and, as it had done in Lyles, remanded the case for "consideration in light of Massiah v. United States".*fn14
On remand, the Ohio court, with two justices dissenting, determined that because McLeod's statements were volunteered without police solicitation, there being no circumstances of trickery or subterfuge present, the rule of Massiah was not controlling. The Supreme Court again granted certiorari and reversed the conviction without opinion "on the authority of Massiah v. United States". 381 U.S. 356, 85 S. Ct. 1556, 14 L. Ed. 2d 682.
By its disposition of McLeod the Court has said, in effect, that Massiah commands an absolute right to counsel after indictment, thereby vitiating the validity of all oral communications between the defendant and the police made in the absence of counsel.*fn15 The "investigatory v. accusatory" test of Escobedo and the "in custody" test of Miranda, employed to determine when the right to counsel attaches, have no application once the indictment has formally stamped the suspect as the defendant; only a clear, explicit, and intelligent waiver may legitimate interrogation without counsel following indictment.
Four days prior to the Supreme Court's final decision in McLeod, this Court had occasion to review the impact of Massiah in United States ex rel. Russo v. New Jersey, 351 F.2d 429 (3 Cir. 1965).*fn16 Although Russo involved a pre-indictment interrogation, we noted that under the authority of Escobedo and Massiah :
"Where the right [to counsel] attaches any confession obtained in the absence of counsel must be suppressed independent of any issue of the voluntariness of the confession." 351 F.2d at 436.
The final decision in McLeod four days later confirmed this interpretation.*fn17
The import of McLeod to the case at bar, however, goes beyond a determination that Massiah has recognized an absolute right to counsel after indictment. By returning the case to the Ohio tribunals for retrial and reconsideration, the Court has indicated that Massiah is applicable, at a minimum, to all cases pending direct appeal on May 18, 1964, the date of the Massiah decision.*fn18 On that date the appellant's case was still before the New Jersey Supreme Court. We therefore hold that the District Court below erred when it concluded that the appellant could not avail himself of the Massiah doctrine even though his case qualified as one being on direct appeal.*fn19
Having decided that the incriminating statements of the defendant were not properly admissible, we must now determine whether their use amounted to "harmless error". Under the rule of Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967), certain constitutional defects may not be grounds for reversal of a conviction if the court finds them to have been "harmless beyond a reasonable doubt".
During O'Connor's trial, the state seized upon his statements made at interrogation that while in New York before his arrest he knew the New Jersey police were looking for him. These statements were introduced, commented upon in the prosecution's closing argument, and included in the trial court's charge as indicative of wilful flight to avoid prosecution and hence evidence of guilt. The appellee now seeks to characterize the statements as "not inculpatory admissions concerning the central fact of guilt".*fn20 To argue that such statements were not inculpatory admissions raises the question: If they were not, for what purpose were they introduced?
In his classic treatise on evidence, Professor Wigmore notes that:
"It is today universally conceded that the fact of an accused's flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself." 2 Wigmore § 276.
In Embree v. United States, 320 F.2d 666 (9 Cir. 1963), the court observed that: "The conduct of an accused person in seeking to flee following the commission of an alleged crime may be circumstantially relevant to prove both the commission of the act and the intent and purpose with which it was committed." 320 F.2d at 668.
The jury that convicted O'Connor was entrusted not only with deciding his guilt, but also with determining the degree of felonious homicide, i.e., first or second degree murder or manslaughter. Admission of defendant's statement, inferring flight and guilt may have been a critical factor in the jury's finding of malice and premeditation necessary for his conviction of first degree murder.*fn21 Where such possibility, if not probability, exists, the introduction of constitutional error cannot be characterized as harmless beyond a reasonable doubt.*fn22 A defendant in a criminal case is as entitled to a proper determination of the degree of guilt as he is to a determination of the question of guilt itself.
Accordingly, we will vacate the order of the court below and remand the case with the direction that the District Court issue a writ of habeas corpus to O'Connor without prejudice to the right of the State of New Jersey to undertake appropriate action in the further prosecution of this matter.