State v. Blizzard

• Citation: 366 A.2d 1026,278 Md. 556
• Decision Date: 29 November 1976
• Docket Number: No. 22,22
• Parties: STATE of Maryland v. Mark Edward BLIZZARD.
• Court: Court of Appeals of Maryland

Page 556

278 Md. 556

366 A.2d 1026

STATE of Maryland v. Mark Edward BLIZZARD.

No. 22.

Court of Appeals of Maryland.

Nov. 29, 1976.

Bruce C. Spizler, Asst. Atty. Gen. (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Robert N. Dugan, Cockeysville, Md., for appellee.

Argued before MURPHY, C. J. and SINGLEY, SMITH, DIGGES, LEVINE and ELDRIDGE, JJ.

SMITH, Judge.

We shall here reverse the decision of the Court of Special Appeals in Blizzard v. State, 30 Md.App. 156, 351 A.2d 443 (1976), which was based upon its reading of the decisions of the Supreme Court in McLeod v. Ohio, 381 U.S. 356, 85 S.Ct. 1556, 14 L.Ed.2d 682 (1965), and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).

Appellee, Mark Edward Blizzard (Blizzard), was convicted by a Baltimore County jury of unlawfully using a handgun in the commission of a felony or a crime of violence and on three separate charges of robbery with a dangerous and deadly weapon, all of which grew out of the same incident. We granted the State's petition for the writ of certiorari in order that we might give consideration to the propriety of the admission into evidence of the statement made by Blizzard to a police officer after indictment and while in custody, said by Blizzard and the Court of Special Appeals to have been contrary to the holdings in McLeod and Massiah. We also directed counsel to brief and argue the question of '(w)hether the alleged violation also constituted a violation of (Blizzard's) rights under the Maryland Declaration of Rights.' The applicable provisions of the Maryland Declaration of Rights are Art. 21, stating '(t)hat in all criminal prosecutions, every man hath a right . . . to be allowed counsel . . .,' and Art. 22, to the effect '(t)hat no man ought to be compelled to give evidence against himself in a criminal case.'

As Judge Gilbert put it for the Court of Special Appeals:

'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, had told them that he and one Phillips had robbed the pharmacy, and that they, Markert and Phillips, were going 'to frame' Blizzard.' Id., 30 Md.App. at 160, 351 A.2d at 446.

On cross-examination Blizzard was asked whether he 'recall(ed) ever having a conversation with Police Officer Detective Zero about a week or so (prior to trial) about th(e) case (for which he was then) on trial . . ..' An objection to the question was overruled. Defense counsel then asked to approach the bench. (Prior to that time no reason for the objection had been specified. Under Maryland Rule 522 b, made applicable to criminal proceedings by Rule 725 f, 'unless requested by the court it (was) not . . . necessary to state the grounds therefor.') At the bench he said he 'would object to any inquiry by the Assistant State's Attorney as to any conversation one week (previously) between Sergeant Zero and (his) client as an obvious violation of the Supreme Court's decision of Massiah v. United States (1964) where the Court said it was improper for any police official, prosecutor, to talk to a Defendant after the indictment had been returned out of the presence of the attorney.' He opined that 'in this case any conversation between Sergeant Zero and (his) client violated this right,' and added that '(w)hen (he) found out . . . that Sergeant Zero had talked to (his client) without (his) permission (he) complained to (the Assistant State's Attorney) about it at the time.' He observed that he learned of this about a week previously and that there had been no repetition. The State explained that it was its 'position . . . that since this conversation with the police officer was initiated by the Defendant himself under circumstances where the Defendant, with or without the knowledge of his counsel, directly contacted the Police Department requesting that a member of the Department come down to talk with him about certain matters and in response to this a representative of that Department did go and talk with him, under those circumstances the State urges that the Massiah rule does not apply.' Inquiry was then made of Blizzard as to whether he recalled the conversation. He did. He replied in the negative to the question of whether or not it was 'true that this was at (his) insistence.' He was then asked whether he 'contact(ed) the Police Department and ask(ed) a representative to come down and talk with (him) about this matter.' He named another individual who, he said, made the request. He again replied in the negative to the further question of whether he himself made the contact. Questions were then propounded as to the circumstances of the call, the name of the officer who allegedly was requested to make the call, etc. The question of whether he 'recall(ed) what (he) told Police Officer Zero when he came down' was refined by an indication that the inquiry was confined to what he told Sgt. Zero relative to this particular case. An objection was overruled. No reason for the objection was stated. However, at the bench immediately thereafter defense counsel said that '(i)n addition to the other objection which (he) made (he) th(ought) there (was) an objection to the possible violation of Miranda rights,' although he was 'not waiving the first point. . . .' The trial judge explained that he was 'going to allow this testimony . . . because the State ha(d) stated the police officer (was) going to testify it was at (Blizzard's) request, and (the judge) assume(d) (the State was) going to put him on to testify (Blizzard) asked him to come down and (Blizzard) voluntarily talked to him,' saying that '(u)nder those circumstances it (was) allowable testimony.' Then, in response to a question as to what he told Sgt. Zero relative to this particular case, Blizzard replied, 'Nothing.'

The State called Sgt. Zero as a rebuttal witness. He testified that he received a telephone call from the jail to the effect that Blizzard and another prisoner wished to talk to Corp. Purnell. Zero said he inquired as to whether he would do. The trial judge, who had sustained an objection to one question by the State, asked Sgt. Zero directly whether he went down to the jail. Zero replied:

'Yes, 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.'

The record then is:

'By Mr. Seibert ((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 COURT: Now, you may approach the Bench.

'(The following proceedings occurred at the Bench out of the hearing of the members of the Jury:)

'MR. DUGAN: The defense would move for a mistrial at this point on the basis of the testimony of Sergeant Zero, based on other motions we raised previously. We don't think a proper foundation was laid for this testimony at all. The testimony is a violation of the Defendant's constitutional right, and we therefore move for a mistrial.

'THE COURT: The mistrial is denied. He has testified that he received information which he can testify to, that this Defendant wanted to see him. When he first went in he told the Defendant he didn't even want to talk to him about it whatsoever, and the Defendant continued a conversation with him. He is not violating his constitutional rights. The motion for a mistrial is denied and we will proceed.

'(The proceedings at the Bench were then concluded.)

'THE COURT: The motion is denied.

'By Mr. Seibert:

'Q Sergeant, was there a further statement made by the Defendant to you other than what you testified to?

'MR. DUGAN: Objection.

'THE COURT: Overruled.

'A This was pretty much the gist of the conversation, sir.

'MR. SEIBERT: Your witness.

'MR. DUGAN: No questions.

'THE COURT: Thank you, sir. You may step down.

'(The witness was excused.)'

The Court of Special Appeals held that the '(a)dmission of Sergeant Zero's testimony concerning (Blizzard's) statement, under the circumstances of the case sub judice, constitute(d) reversible error.'

A review of the facts and holdings in Massiah and McLeod will be helpful. Massiah, a merchant seaman, was arrested and subsequently indicted for possession of narcotics aboard a United States vessel. He retained counsel and pleaded not guilty. He was released on bail along with a codefendant. Without Massiah's knowledge, the codefendant decided to cooperate with the government agents in their continuing investigation of the narcotics activities in which the codefendant and others had been engaged. The codefendant permitted an agent to install a radio transmitter under the front seat of his automobile by which the narcotics agent could overhear from some distance away conversation carried on in the car. Massiah made several incriminating statements during the course of a conversation with his codefendant. At trial these statements were brought before the jury through the testimony of the narcotics agents. The Court gave consideration to the contention of Massiah that his 'Fifth and Sixth Amendment rights were violated by the use in evidence against him of incriminating statements which government...