Blizzard v. State

• Decision Date: 30 January 1976
• Docket Number: No. 365,365
• Citation: 30 Md.App. 156,351 A.2d 443
• Parties: Mark Edward BLIZZARD v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 156

30 Md.App. 156

351 A.2d 443

Mark Edward BLIZZARD v. STATE of Maryland.

No. 365.

Court of Special Appeals of Maryland.

Jan. 30, 1976.

Robert N. Dugan, Assigned Public Defender, Towson, for appellant.

Bruce C. Spizler, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Sandra A. O'Connor, State's Atty., for Baltimore County, and Edward Seibert, Asst. State's Atty., for Baltimore County, on the brief, for appellee.

Argued before ORTH, C. J., and GILBERT and LOWE, JJ.

GILBERT, Judge.

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, 1203, 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 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 reexamine 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 sheriff's 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 prosecution as evidence against him at his trial.' ⁴ 377 U.S. at 207, 84 S.Ct. at 1203.

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, 84 S.Ct. 1199, 12 L.Ed.2d 246.'

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 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 'Calss 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 codefendant 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. Sibert (Assistant State's Attorney):

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 Sates 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 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 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 Gascar which involved voluntary incriminatory statements spoken to various government agents during the commission of criminal acts and at the time of arrest. Gascar 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 Gascar 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...