Petitioner in this habeas corpus proceeding challenged on Fifth
and Sixth Amendment grounds the introduction at his trial of a
post-indictment, pretrial confession he made to a police officer
posing as a fellow prisoner. The denial of habeas corpus relief is
affirmed without reaching the merits of petitioner's claims; any
possible error in the admission of the challenged confession was
harmless beyond a reasonable doubt in light of three other
unchallenged confessions and strong corroborative evidence of
petitioner's guilt.
Harrington v. California, 395 U.
S. 250;
Chapman v. California, 386 U. S.
18. Pp.
407 U. S.
372-378.
428 F.2d 463, affirmed.
BURGER, C.J., delivered the opinion of the Court, in which
WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J.,
filed a dissenting opinion, in which DOUGLAS, BRENNAN, and
MARSHALL, JJ., joined,
post, p.
407 U. S.
378.
MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted the writ of certiorari on claims under the Fifth and
Sixth Amendments arising out of the use of one of a number of
confessions, all of which were received in evidence over objection.
The confession challenged here was obtained by a police officer
posing as an accused person confined in the cell with
petitioner.
Page 407 U. S. 372
Petitioner Milton is presently serving a life sentence imposed
in 1958 upon his conviction of first-degree murder following a jury
trial in Dade County, Florida. During that trial, the State called
as a witness a police officer who, at a time when petitioner had
already been indicted and was represented by counsel, posed as a
fellow prisoner and spent almost two full days sharing a cell with
petitioner. The officer testified to incriminating statements made
to him by petitioner during this period. Contending that the
statements he made to the officer were involuntary under Fifth
Amendment standards and were obtained in violation of his Sixth
Amendment rights as subsequently interpreted in
Massiah v.
United States, 377 U. S. 201
(1964), petitioner initiated the present habeas corpus proceeding
in the United States District Court for the Southern District of
Florida. The District Court, finding that petitioner had exhausted
his state remedies in the course of several post-conviction
proceedings in the Florida courts, ruled against petitioner on the
merits of his claim, holding that his statements to the police
officer were not inadmissible on Fifth Amendment grounds and that
his Sixth Amendment claim could not prevail, since "[n]o Court has
declared
Massiah retroactive, and this Court will not be
the first to do so." 306 F. Supp. 929, 933. The Court of Appeals
affirmed the denial of relief to petitioner, 428 F.2d 463.
On the basis of the argument in the case and our examination of
the extensive record of petitioner's 1958 trial, we have concluded
that the judgment under review must be affirmed without reaching
the merits of petitioner's present claim. Assuming,
arguendo, that the challenged testimony should have been
excluded, the record clearly reveals that any error in its
admission was harmless beyond a reasonable doubt.
Harrington v.
California, 395 U. S. 250
(1969);
Chapman v. California, 386 U. S.
18 (1967). The jury, in addition to hearing the
challenged
Page 407 U. S. 373
testimony, was presented with overwhelming evidence of
petitioner's guilt, including no less than three full confessions
that were made by petitioner prior to his indictment. Those
confessions have been found admissible in the course of previous
post-conviction proceedings brought by petitioner in his attempts
to have this conviction set aside, and they are not challenged
here.
The crime for which petitioner was convicted occurred in the
early morning hours of June 1, 1958. The woman with whom petitioner
had been living was asleep while riding as a passenger in the rear
seat of an automobile driven by petitioner; she died by drowning
when the car ran into the Miami River with its rear windows closed
and its rear doors securely locked from the outside with safety
devices designed to ensure against accidental opening of the doors.
Petitioner, who jumped from the car shortly before it reached the
water, was nevertheless propelled into the river by the car's
momentum; he was recovered from the water when a seaman nearby
heard his cries for help and found him clinging to a boat moored in
the river near the point of the automobile's entry. A few hours
later the car, with the victim's body still inside, was retrieved
from the bottom of the river a short distance downstream from its
point of entry.
The following day, the Miami police arrested petitioner on
manslaughter charges and placed him in the city jail. Ten days
after the woman's death, petitioner, having been advised of his
right to remain silent, confessed that he had deliberately killed
the woman and that the accident was simulated. He first made an
oral confession to a police officer during a question and answer
exchange that was preserved on a wire-recording device. He then
repeated his confession during another exchange, and these
statements were taken down by a stenographer; after this
stenographic recording was converted to a transcript,
petitioner
Page 407 U. S. 374
read it over in full and signed it at 11 p.m. on June 11.
[
Footnote 1]
The following day, petitioner told a police officer that he
would like to make some clarifying additions to the statements in
the writing he had signed the previous night. The officer suggested
that they first go with a photographer to the scene of the incident
"and reconstruct how this thing . . . occurred." Petitioner agreed.
He, the police officer, and a photographer then went to the scene
of the crime where petitioner pointed out the route he had taken in
driving the car to the river, the approximate point at which he had
jumped out of the car, and the point of the car's entry into the
river. Petitioner was then taken back to the police station, where
he went over his statement of the night before and indicated to the
officer the parts of that statement he wanted to clarify. Once
again, a stenographer was summoned and a question and answer
exchange was taken down and transcribed to a writing that
petitioner read over and signed. [
Footnote 2]
Page 407 U. S. 375
Approximately one week after he had made these confessions,
petitioner secured the services of an attorney, who advised him not
to engage in any further discussions of his case with anyone
else.
Following this, and while petitioner was under indictment and
confined in the Dade County jail awaiting trial, the State, for
reasons that are not altogether clear, assigned a police officer
named Langford the special detail of posing as a prisoner and
sharing petitioner's cell in order to "seek information" from
him.
Langford entered the cell with petitioner late one Friday
afternoon and presented himself as a fellow prisoner under
investigation for murder; he assumed a friendly pose toward his
cellmate, offering petitioner some of his prison food at their
first breakfast together the next morning and telling petitioner
something of his own fictitious "crime," which he described as a
robbery committed with an accomplice who had used Langford's gun to
kill the robbery victim. Finally, petitioner began to boast that he
had not made Langford's mistake of having an accomplice who might
later serve as a witness; instead, he said, he had committed the
"perfect" crime with no surviving witnesses. By the time Langford
left the cell on Sunday afternoon, petitioner had described his own
crime in some detail, and had predicted with much assurance that he
would soon be released, that he would collect a lot of insurance
money, and that he would then flee the State with the insurance
money without ever being brought to trial for his "perfect" crime.
The incriminating statements made to Langford were essentially
the
Page 407 U. S. 376
same as those given in the prior confessions not challenged
here.
At petitioner's trial in state court, the, wire recording of his
first confession was played back, first to the judge for a ruling
on its admissibility, and then to the jury. Petitioner's two
written confessions were also received in evidence, as were the
photographs that were taken and the statements that were made by
petitioner when he reconstructed the crime at the scene of its
occurrence. In addition, Langford was permitted to testify to the
statements made to him by petitioner while the two men were sharing
the cell in the county jail. Other evidence, highly damaging to
petitioner in its totality, was also presented to the jury. For
example, there was testimony that petitioner had told an
acquaintance a few months before the murder that he disliked Minnie
Claybon (the murder victim) and was interested only in getting some
money out of her. The terms of certain insurance policies purchased
by petitioner about two months before the crime were described in
testimony given by the selling insurance agents; the policies
provided for the payment of $8,500 to petitioner upon the
accidental death of Miss Claybon, and the agents testified that
petitioner had faithfully maintained his weekly premium payments on
the policies. Other testimony, however, indicated that petitioner
was hard-pressed for money shortly before the murder, having fallen
behind in his rent payments and having sold some of his personal
clothing to raise small sums. There was testimony that petitioner
had purchased the car in which Miss Claybon drowned on the very
afternoon before the crime, making a cash down payment of $8; that
the safety devices on the rear doors of the car had been left in
the unlocked position by the car's former owner; that these devices
could be put in the locked position only by loosening a screw,
sliding the
Page 407 U. S. 377
locking device into position, and then retightening the screw;
and that these devices were found securely screwed in the locked
position when the car, with the victim's body still inside, was
recovered from the river. After hearing all the evidence, the jury
found petitioner guilty of murder in the first degree, but
recommended mercy; on that recommendation, the trial judge imposed
the sentence of life imprisonment.
The petitioner has made a number of collateral attacks on his
conviction, primarily in the courts of Florida. In response to one
of his applications for post-conviction relief, the Florida Supreme
Court issued a writ of habeas corpus, heard oral argument on the
voluntariness of petitioner's wire-recorded and written
confessions, but thereafter discharged the writ in a reported
decision upholding the voluntariness of those confessions, and
their admissibility at trial.
Milton v.
Cochran, 147 So. 2d 137
(1962),
cert. denied, 375 U.S. 869 (1963). The issues
raised in that proceeding are not now before us, and must, for the
purposes of the instant case, be treated as having been properly
resolved by the Florida Supreme Court.
Cf. Sup.Ct.Rule
23(1)(c).
In initiating the present habeas corpus proceeding in the
District Court, petitioner sought to have his conviction set aside
on the ground that the statements he made to police officer
Langford should not have been admitted against him. Our review of
the record, however, leaves us with no reasonable doubt that the
jury at petitioner's 1958 trial would have reached the same verdict
without hearing Langford's testimony. The writ of habeas corpus has
limited scope; the federal courts do not sit to retry state cases
de novo, but, rather, to review for violation of federal
constitutional standards. In that process, we do not close our eyes
to the reality of overwhelming evidence of guilt fairly established
in the state court 14
Page 407 U. S. 378
years ago by use of evidence not challenged here; the use of the
additional evidence challenged in this proceeding and arguably open
to challenge was, beyond reasonable doubt, harmless.
Affirmed.
[
Footnote 1]
In this first written confession, petitioner made the following
statements:
"Minnie Lee Claybon [the murder victim] and myself had an
insurance policy together. So I started thinking about the
insurance and the money that I could get if something happened to
her. I knew that I could use the money if something happened. So I
decided to do something about it one way or the other, so one night
we had been riding around in the car. So I decided to get the whole
thing over with. So I drived the car into the river and she was
killed."
"
* * * *"
". . . I drove the car straight toward the river, and just as I
got almost to the river, . . . I jumped from the car and the car
went on into the river and I skidded and kept rolling over and over
until I was in the river also. I hurt my shoulder. I couldn't move
that arm. It was hurting real bad."
[
Footnote 2]
In this second writing, petitioner confirmed in major part the
statements he had made the night before, but said in addition that
he had "decided to kill" the woman "about a month before this
incident happened." He further stated, however, that he was not
thinking of the insurance money when he made that decision, but was
thinking instead of the woman's habits of associating with other
men, drinking too much, and staying out late at night. He
reaffirmed in express terms that he had deliberately driven the car
into the river with the intention of killing the woman.
MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE
BRENNAN, and MR. JUSTICE MARSHALL join, dissenting.
Under the guise of finding "harmless error," the Court today
turns its back on a landmark constitutional precedent established
40 years ago. That precedent, which clearly controls this case, is
Powell v. Alabama, 287 U. S. 45. I
respectfully dissent.
In 1958, a Florida grand jury indicted the petitioner, George
Milton, for first-degree murder. This was an offense punishable by
death under Florida law. After he had been indicted, Milton was
remanded to the Dade County jail to await trial. He had retained a
lawyer, who had advised him not to talk about his case with
anyone.
Some two weeks later, the State directed a police officer named
Langford to enter Milton's cell, posing as a fellow prisoner also
under indictment for murder, in order to "seek information" from
Milton. Langford entered the cell on a Friday evening. That night
he "tried to open him [Milton] up," but Milton refused to talk
about his case. The next day, Langford devoted his efforts to
gaining Milton's confidence. He shared his breakfast with Milton
and gave him candy. He talked convincingly about his own purported
crime. He tried to steer the conversation to the charge against
Milton, but Milton repeatedly said he did not want to talk about
it, and had been told not to talk about it by his lawyer. Finally,
sometime between midnight and 3 a.m. on Sunday, after almost 36
hours of prodding
Page 407 U. S. 379
by his supposed fellow prisoner, Milton allegedly confessed the
murder to Langford.
At Milton's subsequent trial, Langford, over objection, was
allowed to testify in detail to this alleged confession. Milton was
convicted, and, upon the recommendation of the jury, he was not
sentenced to death, but to life imprisonment. His appeals to the
state appellate courts were unavailing, and he ultimately filed the
present federal habeas corpus proceeding in the United States
District Court for the Southern District of Florida, claiming that
his conviction was invalid because he had been deprived of his
constitutional right to the assistance of counsel after the
indictment.
The District Judge denied the writ, apparently believing that
the question before him was whether this Court's decision in
Massiah v. United States, 377 U.
S. 201, was "retroactive":
"This case was tried six years before the Supreme Court
indicated in
Massiah v. United States, 377 U. S.
201 . . . (1964), that confessions are involuntary
per se if induced by officers or their agents from an
accused after his indictment while he is without assistance of
counsel. No Court has declared
Massiah retroactive, and
this Court will not be the first to do so. Counsel for Milton
argues that
Massiah was not declared retroactive because,
far from stating new principles of law, it merely restated
principles derived from
Powell v. Alabama, 287 U. S. 45
. . . (1932). However, the
Powell case dealt with the
Sixth Amendment right to appointment of counsel in a capital case,
a situation far different from this case. Milton knew what he was
doing. He wasn't intimidated by the police, because he didn't even
know his cellmate was a policeman. He had a lawyer who had told him
not to make any statements concerning
Page 407 U. S. 380
his case, but he chose not to follow that advice."
306 F. Supp. 929, 933-934. The Court of Appeals for the Fifth
Circuit affirmed per curiam "on the basis of [the District Court's]
opinion," 428 F.2d 463, and we granted certiorari, 403 U.S.
904.
The District Court and the Court of Appeals were in error. They
were mistaken, first, in thinking that the
Massiah case
had anything to do with the "voluntariness" of a confession. They
were mistaken, second, in thinking that any real question of
"retroactivity" was presented. They were mistaken, third, in
thinking that
Powell v. Alabama, supra, dealt only with
"appointment of counsel in a capital case." And they were mistaken,
fourth, in thinking that
Powell v. Alabama was
inapplicable to this case.
Powell v. Alabama, decided almost 40 years ago, was one
of the truly landmark constitutional decisions of this Court. It
held that, under the Fourteenth Amendment, a man indicted for a
capital offense in a state court has an absolute right not "to
appointment of," but to the
assistance of, counsel. And
that constitutional right is not restricted to the trial. The Court
reversed the convictions in Powell because:
"during perhaps the most critical period of the proceedings
against these defendants, that is to say, from the time of their
arraignment until the beginning of their trial, when consultation,
thorough-going investigation, and preparation were vitally
important, the defendants did not have the aid of counsel in any
real sense, although they were as much entitled to such aid during
that period as at the trial itself."
287 U.S. at
287 U. S.
57.
In
Massiah v. United States, supra, we found that
Page 407 U. S. 381
this constitutional right to counsel [
Footnote 2/1] was violated when, after indictment, a
defendant who had a lawyer was surreptitiously interrogated alone
by an agent of the police. "[U]nder our system of justice," we
said,
"the most elemental concepts of due process of law contemplate
that an indictment be followed by a trial, 'in an orderly court
room, presided over by a judge, open to the public, and protected
by all the procedural safeguards of the law.' . . . [A]
Constitution which guarantees a defendant the aid of counsel at
such a trial could surely vouchsafe no less to an indicted
defendant under interrogation by the police in a completely
extrajudicial proceeding. . . ."
"This view," we said, "no more than reflects a constitutional
principle established as long ago as
Powell v. Alabama,
287 U. S. 45." 377
U.S. at
377 U. S.
204-205.
The "retroactivity" of the
Massiah decision is a wholly
spurious issue. For
Massiah marked no new departure in the
law. It upset no accepted prosecutorial practice. Its
"retroactivity" would effect no wholesale jail deliveries.
Cf.
Tehan v. Shott, 382 U. S. 406,
382 U. S.
418-419. In no case before
Massiah had this
Court, at least since
Powell v. Alabama, ever countenanced
the kind of post-indictment police interrogation there involved,
let alone ever specifically upheld the constitutionality of any
such interrogation. [
Footnote
2/2]
Page 407 U. S. 382
For four decades, this Court has recognized that, when a State
indicts a man for a capital offense, the most rudimentary
constitutional principles require that he be afforded the full and
effective assistance of counsel:
"Let it be emphasized at the outset that this is not a case
where the police were questioning a suspect in the course of
investigating an unsolved crime. . . ."
"Under our system of justice, an indictment is supposed to be
followed by an arraignment and a trial. At every stage in those
proceedings, the accused has an absolute right to a lawyer's help
if the case is one in which a death sentence may be imposed.
Powell v. Alabama."
Spano v. New York, 360 U. S. 315,
360 U. S. 327
(concurring opinion). So the question in this case is not whether
Massiah is "retroactive," [
Footnote 2/3] for the rule in that case has been settled
law ever since
Powell v. Alabama.
I can find no basis for the Court's holding today that the
admission of Officer Langford's testimony was harmless. In
Chapman v. California, 386 U. S. 18, we
said that an
"error in admitting plainly relevant evidence which possibly
influenced the jury adversely to a litigant
Page 407 U. S. 383
cannot, under
Fahy \[v. Connecticut,
375 U. S.
85], be conceived of as harmless."
386 U.S. at
386 U. S. 23-24.
And on the question of whether a jury might possibly have been
influenced, the State must "prove beyond a reasonable doubt that
the error complained of did not contribute to the verdict
obtained."
Id. at
386 U. S. 24.
Neither the District Court nor the Court of Appeals even
suggested the possibility of harmless error in this case, and with
very good reasons. The Court today relies on the fact that the
challenged "confession" was only one of several introduced at the
petitioner's trial. But it fails to mention that each of the
previous statements was taken during an 18-day period after arrest
but before indictment, when the petitioner was held in jail
incommunicado and was questioned almost every day, often for hours
at a time. For 10 days, the petitioner denied that he had
deliberately killed his wife. Finally, during a session in which
two detectives working in tandem questioned him continuously for
some eight hours, the petitioner allegedly confessed. Other
statements followed that one, but all were taken during the period
of incommunicado detention.
Under these circumstances, it is hardly surprising that the
Miami police chose to plant an officer in the petitioner's jail
cell two weeks after indictment, in the hope of obtaining
admissions less tainted by the indicia of unreliability that
surrounded the previous statements. They succeeded in doing so, and
the alleged confession thus obtained was truly devastating to the
defense at the trial. Langford's testimony was the first evidence
of any incriminating statements introduced by the State at the
trial, and it was referred to repeatedly by the prosecutor in his
final argument.
The state courts determined that the petitioner's pre-indictment
statements were voluntary, and that issue, as the Court notes, is
not now before us. But the weight
Page 407 U. S. 384
given by a jury to any alleged confession is affected by the
circumstances under which it was obtained, and the ability of the
petitioner to discredit in the minds of the jury the evidence of
his prior statements was undoubtedly destroyed by the strong
corroboration and elaboration supplied by the testimony of Officer
Langford, who had been unconstitutionally planted in the
petitioner's jail cell. Surely there is, at the least, a reasonable
doubt whether, in these circumstances, the introduction of
Langford's testimony did not contribute to the verdict of
first-degree murder returned by the jury, particularly where a
conviction for a lesser degree of homicide was a distinct
possibility on the evidence.
To hold otherwise, in the absence of any finding of harmless
error by any of the four courts that have previously ruled on the
admissibility of Langford's testimony, is to violate the very
principle that the Court restates today:
"The writ of habeas corpus has limited scope; the federal courts
do not sit to re-try state cases
de novo, but rather to
review for violation of federal constitutional standards."
Ante at
407 U. S.
377.
Despite its admonition, the Court today refuses to rule on the
constitutional question squarely presented in this case. That
question is whether the great constitutional lesson of
Powell
v. Alabama is to be ignored. I would not ignore it, but would
honor its
"fundamental postulate . . . 'that there are certain immutable
principles of justice which inhere in the very idea of free
government which no member of the Union may disregard.'"
Powell v. Alabama, 287 U.S. at
287 U. S.
71-72.
For these reasons, I would reverse the judgment before us.
[
Footnote 2/1]
Massiah involved a federal noncapital felony charge,
where the defendant had an absolute Sixth Amendment right to
counsel under
Johnson v. Zerbst, 304 U.
S. 458. The same absolute right was secured by
Gideon v. Wainwright, 372 U. S. 335, to
defendants in noncapital state criminal cases under the Sixth and
Fourteenth Amendments. This constitutional guarantee has now been
further extended.
See Argersinger v. Hamlin, ante p.
407 U. S. 25.
[
Footnote 2/2]
An issue of the "retroactivity" of a decision of this Court is
not even presented unless the decision in question marks a sharp
break in the web of the law. The issue is presented only when the
decision overrules clear past precedent,
e.g., Linkletter v.
Walker, 381 U. S. 618;
Desist v. United States, 394 U. S. 244;
Williams v. United States, 401 U.
S. 646; or disrupts a practice long accepted and widely
relied upon,
e.g., Johnson v. New Jersey, 384 U.
S. 719;
Stovall v. Denno, 388 U.
S. 293;
Cipriano v. City of Houma, 395 U.
S. 701.
[
Footnote 2/3]
Even on the erroneous premise that the "retroactivity" of
Massiah is here involved, the District Court was quite
mistaken in stating that "[n]o Court has declared
Massiah
retroactive." This Court, in
McLeod v. Ohio, 381 U.
S. 356, reversed, citing
Massiah, an Ohio
conviction because a voluntary confession was admitted in evidence
that had been obtained when police officers questioned the
petitioner in the absence of counsel a week after he had been
indicted. The conviction antedated
Massiah by almost four
years.