405 F.2d 632 (3rd Cir. 1969), 16708, United States ex rel. O'Connor v. State of New Jersey

Docket Nº:16708.
Citation:405 F.2d 632
Party Name:UNITED STATES of America ex rel. Michael O'CONNOR, Appellant, v. The STATE OF NEW JERSEY and Howard Yeager.
Case Date:January 02, 1969
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 632

405 F.2d 632 (3rd Cir. 1969)

UNITED STATES of America ex rel. Michael O'CONNOR, Appellant,


The STATE OF NEW JERSEY and Howard Yeager.

No. 16708.

United States Court of Appeals, Third Circuit.

January 2, 1969

Submitted on Briefs Oct. 24, 1968.

Page 633

Michael O'Connor pro se.

Abel Goldstein, Asst. Prosecutor, James A. Tumulty, Jr., Prosecutor of Hudson County, Jersey City, N.J., for appellees.

Before HASTIE, Chief Judge, and SEITZ and ALDISERT, Circuit Judges.


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. 1 He was then interrogated by police officers

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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. 2 He was convicted on May 8, 1963, and sentenced to life imprisonment.

The New Jersey Supreme Court affirmed the conviction on June 22, 1964; 3 the United States Supreme Court denied certiorari on November 16, 1964. 4 He availed himself of the appropriate state post-conviction procedures, 5 and then sought habeas corpus relief in the District Court. 6 He now appeals from the order of the court below denying relief.

We must decide whether the introduction at his state trial of postindictment 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. 7

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. 8

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,

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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. Wainright, 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, 9 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), 10 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.

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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. 11

Whether Massiah would be applied selectively to special 'circumstances' was a question that remained, 12 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 sa presenting 'no debatable constitutional question'. 13 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'. 14

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.

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. 15 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...

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