On petition for writ of certiorari to the United States Court of
Appeals for the Fifth Circuit.
The petition for writ of certiorari is denied.
Justice REHNQUIST, with whom THE CHIEF JUSTICE and Justice
O'CONNOR join, dissenting.
This case offers an instructive example of a phenomenon not
uncommon in constitutional law. The Constitution is a
Page 454 U.S.
988 , 989
written document, but cases and controversies involving its
provisions necessarily result in opinions from this Court. Those
opinions themselves contain aphorisms, whose resemblance to the
actual text of the Constitution grows increasingly remote as they
are used as substitutes for the text itself, applied to wholly
different situations than that addressed in the original case, or
simply used as convenient "catchwords" to justify a given result.
In my opinion, that is what has happened here. Constitutional
building blocks have been piled on top of one another so that the
connection between the original provision in the Constitution and
the application in a particular case is all but
incomprehensible.
Massiah v. United States,
377 U.S.
201, 206, 1203 (1964), reversed the conviction of an accused on
the ground that he had been denied "the basic protections of [the
Sixth Amendment] when there was used against him at his trial
evidence of his own incriminating words, which federal agents had
deliberately elicited from him." One building block was used to
reach that result. Powell v. Alabama,
287 U.S. 45 (1932), held
that a trial court's failure to appoint counsel in a capital case
until the trial began violated the Due Process Clause of the
Fourteenth Amendment because it deprived the defendants of an
opportunity to consult with an attorney, and have him investigate
their case and prepare a defense. In Massiah, the Court implicitly
concluded that the Sixth Amendment's guarantee of the assistance of
counsel includes a promise of the companionship of counsel, at
least when an interrogation takes place following the initiation of
criminal proceedings. [
Footnote
1] But Massiah was further expanded in Brewer v. Williams,
430 U.S. 387
(1977), at least insofar as the latter case appeared to establish
an extremely heavy burden which the prosecution must carry to
demonstrate waiver
Page 454 U.S.
988 , 990
of the right to counsel, despite the existence of a voluntary
admission by one who has been informed of and understands his
rights. Nevertheless, Brewer emphasized that an accused has a right
to the presence of counsel only when the government interrogates
him. Id., at 400, 401. In Brewer, detectives "deliberately and
designedly set out to elicit information from" the defendant. Id.,
at 399. In the present case, the lower federal courts held in a
habeas corpus proceeding that the Massiah rule was violated when
the State introduced against respondent evidence of incriminating
statements which he volunteered to the prosecutor in a brief
telephone conversation. Thus, another building block is added to
support a result even further from the text of the Constitution
from which it purports to derive.
Respondent was indicted by an Alabama grand jury on one count of
forgery and one count of embezzlement. He was Mayor of Hobson City,
which issued a check to one Malone, at one time the city's Fire
Chief. The check was signed by respondent and the City Clerk and
was endorsed in the name of the respondent and of Malone. But
Malone testified that at the time the check was issued, he was no
longer in the city's employ. He also testified that he neither
endorsed his name on the check nor authorized respondent to do so,
and that he never received proceeds from the check. Other evidence
indicated that respondent had deposited the check in his own
account.
Respondent testified in his own behalf to the effect that Malone
had asked if his brother could fulfill his duties during the period
of an absence from the State necessitated by personal problems.
Malone also allegedly gave respondent permission to endorse
paychecks and deliver the proceeds to his brother. Thus, as the
record comes to us, with a jury finding of guilty, an affirmance by
the Alabama Court of Criminal Appeals,
372 So. 2d 378, and a denial of certiorari by the Supreme Court
of Alabama,
372
So. 2d 384, it provides a jury question of guilt or innocence
so
Page 454 U.S.
988 , 991
far as the charges were concerned. But respondent eventually
sought federal habeas relief in the United States District Court
for the Northern District of Alabama. His complaint there was that
the state prosecutor had violated Massiah, supra, Brewer, supra,
and the more recent case of United States v. Henry,
447 U.S. 264 (1980 ).
These violations were alleged to consist of the testimony of the
District Attorney at trial about a telephone conversation with
respondent. He was examined by an Assistant District Attorney; over
respondent's objection, he testified that he had called to request
city records for use as samples of respondent's handwriting and
that of the Malone brothers. At this time respondent was under
indictment and had retained counsel, but still served as Mayor and
custodian of the city's records. In reply to the District
Attorney's request, respondent stated that the records would be
made available, but that they would be unnecessary since he had
signed Malone's name, as well as his own, on the back of the check.
[
Footnote 2]
Ultimately, the jury acquitted respondent of forgery, but
convicted him of embezzlement. Respondent appealed to the Alabama
Court of Criminal Appeals. He argued, in part, that the District
Attorney's telephone request for handwriting exemplars should have
been preceded by the warnings required in Miranda v. Arizona,
384 U.S. 436, 16
L. Ed. 2d 694 (1966). The Court of Criminal Appeals rejected this
argu-
Page 454 U.S.
988 , 992
ment, concluding that the telephone call did not amount to
custodial interrogation, Stringer v. State,
372 So. 2d 378, 382 (1979). It noted that "the admission was a
volunteered statement, not in response to a question calling for
such an answer." Ibid. The court also dismissed the contention that
the conviction was invalid because the District Attorney had
violated an ethical obligation imposed by the Alabama Code of
Professional Responsibility to contact respondent's attorney before
initiating the telephone call. Assuming that a breach of ethical
obligations had occurred, it could provide no basis for reversing a
criminal conviction. Id., at 382-383. Finally, the court concluded
that any error in admission of the District Attorney's testimony
was harmless . "[T]he appellant testified at trial that he signed
William Malone's name to the check. In fact his whole defense was
that he had Malone's permission to sign the check." Id., at 383.
The court affirmed respondent's conviction, and the Alabama Supreme
Court denied a writ of certiorari. Ex parte Stringer,
372 So. 2d
384 (1979).
Respondent then sought a writ of habeas corpus in the United
States District Court for the Northern District of Alabama. In a
brief opinion, that court issued the writ on the ground that
"the securing of an incriminating
statement from a defendant who was represented by counsel after
indictment in the absence of presence of defense counsel or a
waiver thereof is a deprivation of such a defendant's right to
counsel as that right is described in Massiah v. United States,
[
377 U.S. 201
(1964)]. Due to the fact that without the evidence obtained by the
prosecuting official the State's case would have likely failed, it
is impossible to conclude that the obtaining of this statement was
harmless error." App. to Pet. for Cert. 6a-7a.
Page 454 U.S.
988 , 993
The United States Court of Appeals for the Fifth Circuit
affirmed for the reasons set forth in the District Court's opinion.
640 F.2d
383 ( 1981).
By a subtle process, the relevant text of the Sixth Amendment,
which provides that "[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for
his defence," has in a short period of time evolved through a stage
of excluding testimony " deliberately elicited" from a defendant
who had been isolated from the services of counsel, to mandating a
new trial of one who by telephone has volunteered a statement to a
prosecutor.
As one Member of the Henry majority stated, "Massiah does not
prohibit the introduction of spontaneous statements that are not
elicited by governmental action." 447 U.S., at 276 (POWELL, J.,
concurring). Rather, "a defendant must show that the government
engaged in conduct that, considering all of the circumstances, is
the functional equivalent of interrogation." Id., at 277. The facts
and language of Massiah, Brewer, and Henry clearly support that
interpretation. They offer no support for the result in this
case.
The federal habeas court also concluded that the admission of
respondent's statement could not have been harmless error. App. to
Pet. for Cert. 7a. This conclusion was squarely contrary to that of
the Alabama Court of Criminal Appeals, which found that any error
in the admission of the District Attorney's testimony was harmless.
As noted, " the appellant testified at trial that he signed William
Malone's name to the check. In fact his whole defense was that he
had Malone's permission to sign the check." 372 So.2d, at 383
(emphasis supplied). It is even less likely that the testimony
influenced the verdict in view of the jury's acquittal of
respondent on the forgery charge.
It is scarcely surprising that fewer and fewer capable lawyers
can be found to serve on state benches when they may find their
considered decisions overturned by the ruling of a-
Page 454 U.S.
988 , 994
single federal district judge on grounds as tenuous as these.
This case represents, not merely one more piece of grist in a giant
judicial mill, but a vivid illustration of the misapplication of
the precedent of this Court by a single federal habeas court,3
followed by a conclusion that the habeas court's version of our
case law required exclusion of evidence which the state court
system had found to be harmless. I would therefore grant the
petition for certiorari in this case.
Footnotes
Footnote 1 The holding of
Massiah was immediately rendered authoritative in the States by
virtue of another judicial building block-the "selective
incorporation" of the Sixth Amendment by the Due Process Clause of
the Fourteenth accomplished in Gideon v. Wainwright,
372 U.S. 335 (1963).
Footnote 2 According to
petitioners, the District Attorney's relevant testimony is as
follows:
"I asked Mayor Stringer if he would
be willing to, through records down there at City Hall, provide me
with samples of his handwriting and Donald Malone's handwriting and
William Malone's handwriting. . . .
...
"Q. What was Mayor Stringer's reply
to you, please?
"A. He was willing to give me those
records. He said that I was welcome to have whatever records that I
wanted but he said he felt like it was unnecessary because he had
signed William Malone's name to the back of the check as well as
his own. . . ." Pet. for Cert. 10-11.
Footnote 3 The District
Judge in this case also rendered the initial decision ultimately
reversed in Beatty v. United States,
389 U.S. 45 (1967). Beatty
was a one-sentence per curiam opinion, resting on the authority of
Massiah. In his opinion in this case, the judge recalled that
experience in offering consolation to the District Attorney:
"Prosecuting officials and trial judges acting with absolute good
faith and sincerity oftentimes take acts which run afoul of
principles of law declared by the Supreme Court of the United
States. This court found itself in the same position in Beatty v.
United States . . . ." App. to Pet. for Cert. 9a. Perhaps that
experience rendered the District Court hypersensitive to
allegations of Massiah error. While this possibility may help to
illuminate the reasons for the judgment below, however, it cannot
substitute for a careful analysis of the constitutional issues,
especially when the federal court sits in judgment on the courts of
the State by virtue of its power to issue a writ of habeas
corpus.
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