State v. McLeod

203 N.E.2d 349, 1 Ohio St. 2d 60, 30 Ohio Op. 2d 34, 1964 Ohio LEXIS 735

• Court: Ohio Supreme Court
• Decided: December 29, 1964
• Docket: No. 37465
• Status: Published

Opinions

Per Curiam.

In the Massiah case, the defendant, after being indicted for violating the federal narcotics law, retained a lawyer, pleaded not guilty and while free on bail made incriminating statements in an automobile to a confederate who had decided to co-operate with the government. Those statements were overheard by a government agent by means of a radio hidden in the automobile and, over his objection, were used against the defendant at the trial.

In the majority opinion by Mr. Justice Stewart it is stated (84 S. Ct., 1199, 1203):

“We hold that the petitioner was denied the basic protections of that guarantee [Sixth Amendment guarantee of right to assistance of 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.”

Although the statements in the Massiah case were made voluntarily by the defendant, they were elicited by an accomplice who had agreed to co-operate with the government. At the time defendant made the statements, he had no knowledge that the conversation was being overheard by a government agent and would be used against him at his trial. Here, on the contrary, defendant’s statements, though made at a time when he had no counsel, were made willingly in the known presence of public officers.

In his concluding sentence in the Massiah case, Mr. Justice Stewart said (84 S. Ct., 1199, 1203):

“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.”

In both Massiah and Escobedo v. Illinois, 12 L. Ed. (2d), 977, 84 S. Ct., 1758, the excluded incriminating statements were obtained while the respective defendants were represented by counsel. In Massiah, those statements were obtained by trickery. In Escobedo, they were obtained by an affirmative interrogation of defendant after a denial of his request to consult with his counsel.

In the instant case, defendant’s incriminating statements were made by him while he was voluntarily endeavoring to aid the police in securing evidence of the crime. Defendant was not then represented by counsel and had not even requested counsel. Our statutes provide that “after a copy of an indictment has been served * * * the accused shall be brought into court, and if he is without and unable to employ counsel, the court shall assign him counsel” at state expense. Sections 2941.49 to 2941.51, inclusive, Revised Code. As to defendant, this had not yet been done. It was done before his arraignment. Succeeding statutes specify that, after counsel has been assigned, the defendant through counsel shall have every opportunity to fully assert all rights to attack the indictment before being “arraigned” and “asked to plead thereto.” Sections 2941.49 to 2943.03, inclusive, Revised Code.

In Massiah, the opinion of the court by Mr. Justice Stewart states:

“We do not question that * * * 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 * * * under the circumstances here disclosed, could not constitutionally be used * * * against him * *

At another place, that opinion mentions a right to counsel “from the time of * * * arraignment.”

In the instant ease, defendant had not yet been arraigned and, as hereinbefore indicated, the “circumstances” under which his incriminating statements were given were wholly different from those in Massiah.

The holding of the court in Escobedo is stated in the court’s opinion (12 L. Ed. [2d], 977, 986) by Mr. Justice Goldberg where one of the controlling factors specified and emphasized is that “the suspect has requested and been denied an opportunity to consult with his lawyer,” a factor wholly absent in the instant case.

Mr. Justice White’s statement in the dissenting opinion in Massiah that “it is * * * a rather portentious occasion when a constitutional rule is established barring the use of evidence which is relevant, reliable and highly probative of the issue which the trial court has before it — whether the accused committed the act with which he is charged” is most persuasive.

He indicates doubt as to what “the content or scope of the rule” involved in that case “may prove to be.”

In a dissenting opinion, Mr. Justice Stewart expresses alarm about the extension of that rule being made in Escobedo. Mr. Justice White apparently believes that that rule unreasonably raises “additional barriers to the pursuit of truth.” A decision which would extend such a rule beyond where it has already been extended would be required in order to reverse the judgment in this case.

The circumstances here being different as to the manner in which the statements were obtained in the Massiah case, we are of the opinion that the judgment of the Court of Appeals should be affirmed.

Judgment affirmed.

Taft, C. J., Zimmerman, Matthias, Griffith and Herbert, JJ., concur. O’Neill and Gibson, JJ., dissent.