UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
decided: January 26, 1973.
UNITED STATES OF AMERICA, APPELLEE,
ALFORD GAYNOR, APPELLANT
Kaufman, Anderson and Oakes, Circuit Judges.
Author: Per Curiam
The question raised by this appeal relates to the admissibility of an incriminating statement made by the appellant in a courthouse elevator to a Postal Inspector who had previously interrogated him, after his arraignment and assignment of counsel but in the absence of counsel. We hold that this statement was spontaneously volunteered and did not result from any official interrogation, and hence was not obtained in violation of either Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1965), or Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). It thus becomes unnecessary for us to reach the question whether it was "plain error" not to instruct the jury that a statement obtained in violation of Miranda may be used only in passing on credibility and not as evidence of guilt, under Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971).
It is undisputed that the statement made here was not a part of any interrogation, that it was not elicited by the Postal Inspector*fn1 and that, indeed, appellant was not asked anything by the Inspector but volunteered the statement to him.*fn2
While the trial court ruled that "it should have been called to [appellant's] attention that he doesn't have to make the statement and that if he does make it, it will be used against him" and said "that is the only objective testimony of voluntariness," there is no suggestion by the trial court in the record that the statement was involuntary in the traditional sense of resulting from physical or psychological coercion. Rather, the court felt that for even a spontaneously volunteered statement to be legally "voluntary" it must be interrupted and the defendant cautioned that what he says might be used against him. The cases in this circuit establish that this view of the law is erroneous. United States v. Garcia, 377 F.2d 321, 324 (2d Cir.), cert. denied, 389 U.S. 991, 88 S. Ct. 489, 19 L. Ed. 2d 484 (1967), points out that Massiah prevents the admissibility of incriminating statements only when "law enforcement authorities have 'deliberately elicited' incriminating statements from a defendant by direct interrogation or by surreptitous means," and that "the rule does not apply to spontaneous or voluntary statements made by the defendant in the presence of government agents. . . ." United States v. Maxwell, 383 F.2d 437, 443 (2d Cir. 1967), cert denied, 389 U.S. 1057, 88 S. Ct. 809, 19 L. Ed. 2d 856 (1968), held admissible a similarly volunteered statement by the defendant, the court saying: "Since Agent Murphy's unchallenged testimony reveals that Aiken freely volunteered the remarks, neither Massiah nor Escobedo has been violated." See also United States v. Barone, 467 F.2d 247, at 249 (2d Cir., 1972), (Massiah inapplicable even though damaging admissions were made "at least in part in response to interrogation by the agent" because they were made not only after an express waiver of counsel had been signed but also after the suspect had had a telephone conversation with his attorney). United States v. Collins, 462 F.2d 792, 802 (2d Cir. 1972) (en banc), is not to the contrary, holding only that renewed Miranda warnings are required before the reinterrogation of a suspect who has indicated that he wishes to remain silent. Here, the appellant had given no such indication.
We therefore affirm the conviction.