Petitioner-appellant Thomas Mealer appeals from the denial of his petition for a writ of habeas corpus in the Southern District of New York.
Lumbard, Newman, and Pratt, Circuit Judges.
Thomas Mealer appeals from an order of the District Court for the Southern District, Duffy, J., denying his petition for a writ of habeas corpus. The appellant petitioned to set asise his 1976 conviction in the Supreme Court, New York County, for second degree murder, on the ground that the trial court had erroneously admitted post-indictment statements obtained from appellant in violation of his Sixth Amendment right to counsel. Although we agree that the admission of the statements was error, we find that the error was harmless, and accordingly we affirm.
The pertinent facts leading up to appellant's murder conviction and habeas petition are as follows. On the evening of March 23, 1974, Mealer and James Villareal went to the Stag's Head bar in Manhattan. At about 1:30 A.M., a fight broke out between Villareal and another patron, Robert Davis. Davis was knocked to the floor, apparently by Villareal, and then shot in the head at point-blank range as the other patrons looked on. At trial, three eyewitnesses, including John Gaudet, the bartender on duty at the time, testified that Mealer had fired the fatal shot. Mealer left the bar with Villareal, on his way out warning Gaudet not to talk to anyone. Once outside, Mealer handed the gun to Villareal, who threw it in a trash can. Although Villareal returned the following day with the police to search for it, the pistol was never recovered.
Meanwhile, immediately after Mealer and Villareal left the bar, Gaudet called the police, who arrived within a few minutes. Mealer was arrested the following afternoon in his apartment, where the police recovered a red plaid suit matching the description of the suit Mealer wore at the time of the shooting, and eight bullets of the same make and caliber as the bullet that killed Davis. Mealer was charged with second degree murder, and incarcerated in Ossining Correctional Facility pending trial.
About nine months later, Gaudet was approached by Mealer's wife, who asked Gaudet what he intended to say at Mealer's trial. When Gaudet responded that he would tell the truth, Mealer's wife said that Mealer wanted to talk to him, and that, although he did not have much money, he would be willing to "help [Gaudet] out in some way." Two days later, Gaudet contacted the district attorney's office and the police concerning the conversation. They instructed Gaudet to "follow through" with the invitation to speak to Mealer, and "see what he had to say." In the event that Mealer offered him money, they instructed Gaudet to "play along." The police gave Gaudet $10 to pay for his transportation to Ossining, and tried unsuccessfully to obtain recording equipment for him to take along.
A few days later, on December 13, 1974, Gaudet went to Ossining to see Mealer. Mealer asked Gaudet what he had told the grand jury. When Gaudet responded that he had told them what happened, Mealer suggested that Gaudet change his testimony and say he was coerced into the earlier version by the police. Mealer then indicated his willingness to pay Gaudet to change his story, Gaudet suggested a price of $300, and Mealer said he would get back to him about it. At trial, the statements of both Mealer and his wife were offered by the prosecution, through the testimony of Gaudet, to show Mealer's consciousness of guilt.
The jury convicted Mealer of second degree murder, and the court sentenced him to twenty years to life, a sentence he is currently serving. On appeal, Mealer challenged his conviction on three grounds, including the claim that his post-indictment statements to Gaudet while in prison awaiting trial were made outside the presence of Mealer's counsel, and hence were inadmissible under United States v. Massiah, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). The conviction was affirmed by the Appellate Division without opinion in October, 1981, and by the New York Court of Appeals in an opinion dated October 14, 1982, in which it rejected all three arguments. 57 N.Y.2d 214, 455 N.Y.S.2d 562, 441 N.E.2d 1080. On March 7, 1983, the Supreme Court denied certiorari. 460 U.S. 1024, 103 S. Ct. 1276, 75 L. Ed. 2d 497.
On May 6, 1983, petitioner filed his petition for writ of habeas corpus, raising again the Massiah claim concerning his post-indictment statements to Gaudet. On November 1, 1983, Judge Duffy denied the writ. The court acknowledged that Mealer's Sixth Amendment right to counsel had "indelibly attached" in regard to the murder charge once an indictment was filed, and that Gaudet was acting as an agent of the state when he met with Mealer in prison. Thus, under Massiah, any statements concerning the murder charge that Gaudet deliberately elicited from Mealer without Mealer's counsel present would be inadmissible at trial on the charge. However, as the statements were elicited for the purpose of proving Mealer's attempt to suborn perjury from Gaudet -- an unrelated charge not yet under indictment and for which Mealer's right to counsel had therefore not yet attached -- the court concluded that the incidental use of those statements in Mealer's murder trial did not violate Massiah. Mealer appeals from that denial.
The issue raised by appellant's claim falls between two settled principles of Sixth Amendment jurisprudence. Under United States v. Massiah, supra, once the right to counsel has attached by the filing of a formal charge, any incriminating statements concerning the charge that the state knowingly elicits from the accused without counsel present are inadmissible at trial. At the same time, courts have recognized that merely because the right to counsel has attached with regard to one charge, a defendant should not be immunized from investigation of other criminal conduct committed thereafter. Therefore, where the post-indictment statements elicited in the absence of counsel concern a new (i.e., as yet uncharged) crime, those statements are admissible in a subsequent trial on the new crime. See United States v. Hinton, 543 F.2d 1002, 1015 (2d Cir.), cert. denied, 429 U.S. 980, 97 S. Ct. 493, 50 L. Ed. 2d 589 and 429 U.S. 1051, 97 S. Ct. 764, 50 L. Ed. 2d 767 (1976), and 429 U.S. 1066, 97 S. Ct. 796, 50 L. Ed. 2d 783 and 430 U.S. 982, 97 S. Ct. 1677, 52 L. Ed. 2d 376 (1977); see also United States v. Capo, 693 F.2d 1330, 1339 (11th Cir. 1982) (statements concerning conspiracy to possess narcotics made after indictment for possession of narcotics held admissible in trial on indictment for conspiracy), cert. denied, 460 U.S. 1092, 103 S. Ct. 1793, 76 L. Ed. 2d 359 (1983); United States v. Missler, 414 F.2d 1293, 1303 (4th Cir. 1969) (statements elicited after indictment for hijacking admissible in a trial for obstruction of justice), cert. denied, 397 U.S. 913, 90 S. Ct. 912, 25 L. Ed. 2d 93 (1970).
The question posed here is whether incriminating statements that concern an already indicted offense may, notwithstanding Massiah, be introduced at trial on that offense, if they were obtained coincidentally in the course of an investigation ...