Petition — Florida v. Malone

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Office -Supiame Court, US.

FILLED

FEB 8 (ge

ALEXANDER L. STEVAS,

CLERK

In the

SUPREME COURT OF THE UNITED STATES _

October Term, 1980

no. RO-1331

STATE OF FLORIDA,

Petitioner,

Vv.

CHARLES WILLIS MALONE, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

STATE OF FLORIDA

AND APPENDIX

JIM SMITH

ATTORNEY GENERAL

ROBERT J. LANDRY

AND

JAMES S. PURDY

Assistant Attorneys General

Park Trammell Building

1313 Tampa Street, Suite 804

Tampa, Florida 33602

Counsel for Petitioner

QUESTION PRESENTED

WHETHER RESPONDENT'S SIXTH

AMENDMENT RIGHT TO THE

ASSISTANCE OF COUNSEL WAS

VIOLATED BY THE ADMISSION

AT TRIAL OF INCRIMINATING

STATEMENTS MADE BY RESPONDENT

TO HIS CELLMATE, AN UNDISCLOSED

POLICE INFORMANT, BEFORE HIS

ARREST OR INDICTMENT FOR

THAT CRIME AND WHILE IN CUS-

TODY ON A SEPARATE CHARGE IN

WHICH JUDICIAL PROCEEDINGS

HAD COMMENCED.

TABLE OF CONTENTS

Page

OPINION BELOW 1

JURISDICTION 1-2

QUESTION PRESENTED 2

CONSTITUTIONAL PROVISION INVOLVED 3

STATEMENT OF THE CASE -9

REASONS FOR GRANTING WRIT 10-24

CONCLUSION 25

CERTIFICATE OF SERVICE 26

APPENDIX:

Opinion of the Florida A-1-15

Supreme Court in Malone

v. State, Case Nos. 54,024

and 54,025, filed September

25, 1980

Warrant for Charles Willis A-16

Malone, Jr. for premeditated

murder of Manuel Tanner dated

July 29, 1977

Indictment of Charles Willis A-17-19

Malone, Jr. for premeditated

murder of Manuel Tanner and

robbery returned August 17,

1977

Warrant for Charles

Willis Malone, Jr. for

premeditated murder of

Jessee W. Woodward dated

October 19, 1977

Indictment of Charles

Willis Malone, Jr. for

premeditated murder of

Jessee W. Woodward re-

turned November 2, 1977

Transcript of pre-trial

hearing on defendant's

motion to suppress con-

fessions and statements

before the Honorable C.J.

Cheatwood, Judge, heard

March 3, 1978

Order of the Supreme Court

of Florida denying the

Petition for Rehearing

dated December 8, 1980 in

Malone v. State, Case Nos.

54,024 and 54,025

A-20

A-21-22

A-23-45

A-46

iii

TABLE OF CITATIONS

Page

CASES

Brewer v. Wtlltams, 430 14

U.S. 387 (1977)

Caltfornta v. Green, 399 16

U.S. 149 (1970)

Delaware v. Prouse, 440 15

U.S. 648 (1979)

Fare v. Michael C., 442 13

U.S. 707 (1979)

Hoffa v. Untted States, 385 22

U.S. 293, part III (1966)

Ktrby v. Illinois, 406 17

U.S. 682 (1972)

Masstah v. Untted States, 377 Passim

U.S. 201 (1964)

Mathis v. United States, 391 21

U.S. 1 (1968)

Michigan v. Mosley, 423 15

U.S. 96 (1975)

Miranda v. Artzona, 384 Passim

U.S. 436 (1966)

Moore v. Illtnots, 434 14

U.S. 220 (1977)

North Carolina v. Butler,

441 U.S. 369

Oregon v. Hass, 420

U.S. 714 (1975)

Powell v. Alabama, 283

U.S. 45 (1932)

Rhode Island v. Innis, U.S.

64 L.Ed.2d 297 (1980)

Untted States v. Henry, 447

U.S. ,100 S.Ct.2183,

65 L.Ed.2d 115 (1980)

United States v. Merritts,527

F.2d 713 (7th Cir. 1975)

United States v. Missler, 414

F.2d 1293, 1302-1303

(4th Cir. 1969)

United States v. Osser, 483

F.2d 727 (3d Cir. 1973)

Vinyard v. Untted States, 335

F.2d 176 (8th Cir. 1964)

cert.den. 379 U.S. 930

(1964)

RULES

Fla.R.Crim.P. 3.191; "Speedy

Trial"

13,17

13,15

Passim

22-23

°°.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

STATE OF FLORIDA,

Petitioner,

Vv.

CHARLES WILLIS MALONE, JR.,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

STATE OF FLORIDA

OPINION BELOW

The opinion of the Supreme Court of

the State of Florida, not yet reporter,

appears in the appendix hereto as "Al-15"

JURISDICTION

The Supreme Court of Florida entered

its judgment on September 25, 1980. It

denied a timely petition for rehearing on

December 8, 1980 and this petition for

certiorari was filed within sixty days of

that date (A-46). This Court's juris-

diction is invoked under 28 U.S.C. § 1257

(3).

QUESTION PRESENTED

WHETHER RESPONDENT'S SIXTH

AMENDMENT RIGHT TO THE

ASSISTANCE OF COUNSEL WAS

VIOLATED BY THE ADMISSION

AT TRIAL OF INCRIMINATING

STATEMENTS MADE BY RESPONDENT

TO HIS CELLMATE, AN UNDISCLO-

SED POLICE INFORMANT, BEFORE

HIS ARREST OR INDICTMENT FOR

THAT CRIME AND WHILE IN CUS-

TODY ON A SEPARATE CHARGE IN

WHICH JUDICIAL PROCEEDINGS

HAD COMMENCED.

' >

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United

States Constitution which provides:

"In all criminal prosecutions,

the accused shall enjoy the

right to a speedy and public

trial, by an impartial jury

of the State and district where-

in the crime shall have been

committed, which district shall

have been previously ascertained

by law, and to be informed of

the nature and cause of the

accusation; to be confronted

with the witnesses against him;

to have compulsory process for

obtaining witnesses in his

favor, and to have the assis-

tance of counsel for his

defense."

’%

-»

STATEMENT OF THE CASE

Respondent, Charles Willis Malone,

Jr., was tried and convicted in Florida on

two indictments in March, 1978. The first

indictment resulted from the robbery of a

service station on July 14, 1977 in which

Malone bludgeoned to death a service sta-

tion attendant, Manuel Tanner. This in-

dictment, filed August 17, 1977, charged

Malone with robbery and first degree

murder. The second indictment, filed

November 2, 1977, charged Malone with the

first degree murder of one Jessee

Woodward and arose out of a kidnapping

which occurred earlier on the same day as

the service station robbery-murder. In

this incident, Malone and his co-

perpetrator, Freddie Lee Morris, forced

the victim Jessee Woodward to accompany

them on a forty mile trip to a remote,

-™

deserted location on the outskirts of

Tampa, Florida where Malone took Woodward

into the marshes and shot him twice in

the back of the head.

Malone was arrested for the service

station robbery/Manuel Tanner murder on

July 29, 1977 after evidence implicating

Malone of that crime, including his fin-

gerprints, was found in an abandoned auto-

mobile. The automobile belonged to the

victim of the earlier killing, Jessee

Woodward, whose body had not yet been

discovered.

On September 17, 1977 after the re-

turn of the indictment for the service.

station robbery/Manuel Tanner murder but

before Malone was either arrested or in-

dicted for the Jessee Woodward murder,

Detective Hazzard of the Pinellas County

Sheriff's Department and Terry Mobley,

one of Malone's cellmates, entered into

an agreement whereby Mobley was to listen

for any information from Malone in regard

to the Woodward disappearance. Mobley re-

ceived no compensation of any sort for his

services. On October 3, 1977, Mobley re-

ported to Detective Bolle of the Pinellas

County Sheriff's Department that Malone

had admitted killing Woodward to him.

During the next week, Malone gave

Mobley directions to find Woodward's body.

These directions were given to Mobley

after he and the detectives had imple-

mented a plan wherein Mobley was trans-

ferred to the Manatee County Jail and

returned on visitation day in civilian

clothes under the guise of having been

fully released from custody. Malone gave

Mobley directions to the body in hopes

that he would dispose of the remains.

However, Woodward's body could not be lo-

cated by following Malone's directions even

after Mobley had returned a second time

for more specific directions following one

unsuccessful attempt to locate it.

Finally, on October 17, 1977, a

week after the last contact between

Malone and Mobley, the police were led to

Woodward's body by Freddie Lee Morris,

Malone's co-perpetrator. The body was in

the same area described by Malone in his

directions.

Malone was thereafter arrested for

the Woodwaru murder on October 20, 1977

and indicted by the grand jury on

November 2, 1977. (A-20-22)

On motion by defense counsel, the

Woodward murder and the service station

robbery/Manuel Tanner murder were later

consolidated for trial. A motion to

Suppress confessions and admissions was

filed by defense counsel and, following

hearing, was granted in part by the trial

court with regard to any statements made

to Mobley concerning the Tanner murder on

authority of Massiah v. Untted States, 377

U.S. 201 (1964). The trial court denied

the motion to suppress with regard to all

admission concerning the Woodward murder

on the grounds that Malone had not been

arrested nor indicted for that crime and

therefore had no Sixth Amendment right to

the assistance of counsel with regard to

the Woodward murder at the time those ad-

missions were made, (A-23-45)

On appeal, the Florida Supreme Court

reversed Malone's conviction on authority

of United States v. Henry, U.S. ___, 65

L.Ed.2d 115 (1980) rendered by this Court

after the completion of the briefing

schedule and oral arguments in the Court

below. The Florida Supreme Court held

that the admission at trial of the in-

criminating statements made by Malone to

Mobley with regard to the Woodward murder

violated Malone's Sixth Amendment right

to the assistance of counsel. (A-1-15)

The Florida Supreme Court granted the

State a thirty day stay of mandate with

the previso that any further stays must

come from this Court. A Motion for Stay

of Judgment and Mandate was denied in this

cause by the Honorable Lewis F. Powell,

Jr., Associate Justice, on January 10,

1981. A renewed Motion for Stay of Pro-

ceedings accompanies this petition. Pur-

Suant to Fla.R.Crim.P. 3.191,"Speedy

Trial", Malone must be retried by April

14, 1981 unless proceedings in the court

below are stayed pending review of this

petition.

REASONS FOR GRANTING WRIT

1. THE DECISION OF THE FLORIDA

SUPREME COURT IMPOSES AN EXPANDED RESTRIC-

TION ON POLICE INVESTIGATION ACTIVITY AS

A MATTER OF FEDERAL CONSTIYVUTIONAL LAW

WHICH THIS COURT HAS SPECIFICALLY RE-

FRAINED FROM IMPOSING THEREBY CREATING

CONFLICT WITH THE SIXTH AMENDMENT RIGHT

TO COUNSEL DECISIONS OF THIS COURT.

The Florida Supreme Court vacated

Malone's conviction on the grounds that

the introduction into evidence of Malone's

incriminating statements concerning the

Jessee Woodward murder deliberately elic-

ited by a cellmate government informant

violated his Sixth Amendment right to the

assistance of counsel. The reversal was

predicated solely upon this Court's re-

cent decision in United States v. Henry,

447 U.S. 100 S.Ct. 2183, 65 L.Ed.2d 115

(1980). In Henry, this Court held the

exclusionary principles of the Sixth

Amendment right to the assistance of coun-

sel contained in Massiah v. United States,

377 U.S. 201 (1964) prohibit the intro-

duction of statements made to a cellmate

government informant who deliberately

elicits incriminating information from

the defendant in the absence of counsel

after formal judicial proceedings have

commenced. +

In the prosecution which gives rise

to the instant petition however, Malone

had not been arrested or arraigned for

any crime in connection with the murder

of Jessee Woodward at the time he ill

advisedly confided in the cellmate

1/ this Court rendered its decision in Henry

after the completion of the briefing schedule

and oral arguments in the Florida Supreme Court,

below.

i. '

informant. Malone was in custody on

separate charges and the return of an in-

dictment for the murder of Jessee Woodward

was still a full month in the future. No

formal charges whatsoever had been filed

in connection with the Woodward case which

was still in the pre-arrest investigation

stages. (A-20-22)

Contrary to the numerous decisions

of this Court, the Supreme Court of

Florida has applied the exclusionary

principles of the Sixth Amendment right

to counsel to require suppression of in-

criminating statements made before formal

charges have been filed and before any

critical stage of the proceedings has

been reached. The Supreme Court of

2/ Malone was in custody on charges stemming from

the service station robbery/Manuel Tanner murder.

The trial court granted Malone's motion to sup-

press statements concerning that crime based am

Massiah v. United States. (A-17-°%,45)

Florida made this ruling solely as a

matter of Federal Constitutional Law. No

independent state ground for the decision

appears in the decision.

Although a State is free as a matter

of its own law to impose greater restric-

tions on police activity than those this

Court holds to be necessary upon federal

c. istitutional standards, a State may not

impose such greater restrictions as a

matter of federal constitutional law when

this Court specifically refrains from im-

posing them, Oregon v. Hass, 420 U.S. 714

(1975); North Carolina v. Butiee.. 04%

U.S. 369 (1979); Fare v. Michael C., 442

U.S. 707 (1979).

This Court has specifically, time

and again, refrained from recognizing the

existance of a Sixth Amendment right to

the assistance of counsel prior to the

time that judicial proceedings have been

initiated — "whether by way of formal

charge, preliminary hearing, indictment,

information, or arraignment." Kirby v.

Illinois, 406 U.S. 682, 689 (1972);

Brewer v. Wtlltams, 430 U.S. 387 (1977).

See Powell v. Alabama, 287 U.S. 45 (1932);

Moore v. Illinois, 434 U.S. 220 (1977);

Masstah v. United States, supra; Untted

States v. Henry, supra.

Although the Supreme Court of

Florida could have decided the present

case under Florida law or the State

Constitution, it did not do so. Neither

was cited. This case was decided squarely

upon the Sixth Amendment. The fact that

the Florida Court based its decision upon

United States v. Henry, supra., reveals

the federal basis. > C.f. Oregon v. Hass,

supra., ["The fact that the Oregon courts

found it necessary to attempt to distin-

guish Harris v. New York [401 U.S. 222

(1971)] reveals the federal basis, 420

U.S. at 719-720].

A holding by a state court that, for

federal constitutional reasons, the pros-

ecutor may not utilize otherwise relevant

evidence makes the State an aggrieved

party for purposes of review by this

Court. Id.; see Rhode Island v. Innis,

__U.S.__ 64 L.Ed.2d 297 (1980);

Delaware v. Prouse, 440 U.S. 648 (1979);

Michtgan v. Mosley, 423 U.S. 96 (1975);

3/ nithough the Florida Supreme Court went into

great detail in explaining this Court's decision

in Henry, not once does the decision address or

even mention the important factor recognized by

this Court that Henry was under indictment. (A-7-12)

Caltfornta v. Green, 399 U.S. 149 (1970).

Since the Supreme Court of Florida

held that United States v. Henry and the

Sixth Amendment right to the assistance of

counsel mandate the suppression of proba-

tive evidence gathered by a police agency

before any formal proceedings have been

initiated, the Cou t has expanded the

federally protected right to the assis-

tance of counsel beyond any previously

recognized bounds thereby presenting this

Court with a real and substantial federal

question.

The Sixth Amendment right to the

assistance of counsel should not be uti-

lized as a method of denying to the State

the use of probative evidence gathered

before arrest or indictment since no such

right exists at that time. A state court

can neither add to nor subtract from the

mandates of the United States Constitution.

North Carolina v. Butler, supra at 376.

The expansion of this right to the pre-

arrest/pre-indictment investigation stages

conflicts with the Henry decision itself

as well as Masstah v. United States, Brewer

v. Willtams and Kirby v. Illinois.

2. THE FLORIDA SUPREME COURT CON-

FUSED THE TESTS FOR DETERMINING VIOLATIONS

OF THE FIFTH AND SIXTh AMENDMENTS.

The decision of the Supreme Court of

Florida is succinctly stated in the fol-

lowing quote from the Court's opinion.

"In light of the recent pronouncement

of the Supreme Court of the United States

in Untted States v. Henry, No. 79-212, 48

U.S.L.W. 4703 (June 16, 1980), we hold that

Malone's incriminating statements made to

the State informant while in custody in the

Pinellas County jail should have been sup-

pressed because these statements made in

the absence of counsel, with no prior waiver

of counsel, were directly elicited by the

State's stratagem deliberately designed to

elicit an incriminating statement from

Malone. Therefore, the introduction of

these statements violated Malone's sixth

amendment right to the assistance of

counsel."

(A-7-8)

The Court held that "custody" plus

"deliberately elicited" equals Sixth

Amendment violation of the right to assis-

tance of counsel.

This Court has stated that the test

for determining a Massiah Sixth Amendment

violation is whether law enforcement of-

ficers (A) deliberately elicit incrimina-

ting statements from a defendant (B) in

the absence of counsel (C) after a formal

charge against the defendant has been

filed. Rhode Island v. Innis, supra, 64

L.Ed.2d at 307, n.4. In the decision

under review, the Florida Supreme Court

has deleted requirement (C) above and re-

placed it with "in custody". This is

precisely what the Court cautioned

*->

against in Henry:

"11. [3b] This is not to read a

"custody" requirement, which is a pre-

requisite to the attachment of Miranda

rights, into this branch of the Sixth

Amendment. Massiah was in no sense in

custody at the time of his comversatiaq

with his codefendant. Rather, we be-

lieve the fact of custody bears qm

whether the government "deliberately

elicited" the incriminating statements

from Henry."

(65 L.Ed.2d at 124,n.11)

Custody in such a case is not con-

trolling. Ibid.

Custody, or more specifically,

"custodial interrogation" is a Fifth

Amendment term adopted by this Court in

Miranda v. Artzona, 384 U.S. 436 (1966)

to determine the period during which an

accused is in need of additional proce-

dural safeguards to protect his privilege

against compulsory self incrimination.

The Court recognized that custody creates

a coercive "interrogation environment"

which would "subjugate the individual to

the will of his examiner" and thereby

undermine the privilege against compulsory

self-incrimination. Id., at 457-458. The

concern of the Court in requiring Miranda

warnings before custodial interrogation

can begin is to counteract this coercive

environment and to insure the voluntary

nature of any statements rendered by an

accused. Miranda warnings are protective

devices employed to dispel the compulsion

inherent in custodial surroundings. Id.,

at 458.

However, as the Court further noted

in Miranda, “[v]Jolunteered statements of

any kind are not barred by the Fifth

Amendment and their admissibility is not

affected by our holding today." Id., at

458.

Custody for the purposes of Miranda

and the Fifth Amendment serves a totally

different purpose than does custody in

the Sixth Amendment sense. The policies

underlying the two constitutional provi-

Sions are quite distinct. Rhode Island v.

Innis, n.4. Custody in the Fifth Amend-

ment sense is the coercive setting which

compels a suspect to incriminate himself

under interrogation and effects the

voluntary nature of any statement given.

For the purposes of the Fifth Amend-

ment, this Court has held that custody

for one crime is a sufficient coercive

setting to require Miranda warnings before

interrogation can begin concerning a

separate crime. see Mathis v. United

States, 391 U.S. 1 (1968).

On the otherhand, custody in the

Sixth Amendment sense is important only

in determining whether the government

"deliberately elicited" the incriminating

statements. Custody is by no means a re-

quirement under the Masstah line of cases.

On the contrary, this Court has repeatedly

required the initiation of formal judicial

proceedings as a prerequisite to the exis-

tence of a Sixth Amendment right to coun-

sel. Unlike custody in the Fifth

Amendment sense, there is no "bleed over"

effect to the investigation of other

crimes when the Sixth Amendment right to

counsel is at issue. The filing of for-

mal charges on one crime does not give

rise to a right to counsel for other

crimes still under investigation and yet

to be charged. see Hoffa v. United States,

385 U.S. 293, part III (1966); United

States v. Osser, 483 F.2d 727 (3d Cir.

1973); United States v. Merritts, 527

F.2d 713 (7th Cir. 1975); Untted States v.

Missler, 414 F.2d 1293, 1302-1303 (4th

Cir. 1969); Vinyard v. Untted States, 335

F.2d 176 (8th Cir. 1964) cert. dented 379

U.S. 930 (1964).

The Florida Supreme Court has con-

fused these two distinct constitutional

concepts to form a new test, predicated

solely upon an erroneous interpretation

of the Federal constitutional precedents

of this Court, which states that the

Sixth Amendment right to the assistance

of counsel is violated anytime the gov-

ernment uses an informant who deliberately

elicits incriminating statements from a

person in custody without the assistance

of counsel. The Court so held notwith-

standing the established fact that (a)

Malone conceded that these statements

concerning the Woodward murder were not

coerced and were voluntary (A-4 ); and

(b) no formal charge of any sort had been

filed against Malone concerning the

Woodward disappearance.

Neither the Fifth or the Sixth

Amendment tests are met unless they are

merged as the Florida Supreme Court has

done by replacing the requirement of

formal charges with a less stringent re-

quirement of simple custody. Not mere

Simple custody; simple custody on other

charges.

A substantial federal constitutional

boundary has been transgressed by the

decision of the Florida Supreme Court

which needs to be rectified in order to

protect a legitimate, federally recog-

nized method of criminal investigation.

CONCLUSION

For these reasons petitioner respect-

fully urges this Court to grant certiorari

and reverse the holding of the Supreme

Court of Florida.

Respectfully submitted,

JIM SMITH

ATTORNEY GENERAL

ROBERT J. LANDRY

Assistant Attorney General

JAMES S. PURDY

Assistant Attorney General

Park Trammell Building

1313 Tampa Street, Suite 804

Tampa, Florida 33602

Counsel for Petitioner

CERTIFICATE OF SERVICE

I, ROBERT J. LANDRY, Counsel for

Petitioner, and a member of the Bar of

the Supreme Court of the United States,

hereby certify that on the day of

February, 1981, I served three copies of

the Petition for Writ of Certiorari on

Samuel R. Mandelbaum, Assistant Public

Defender, Counsel for Respondent, Court-

house Annex, Tampa, Florida 33602, by a

duly addressed envelope with postage pre-

paid.

ROBERT J. LANDRY

Assistant Attorney General

I a

APPENDIX

**>

SUPREME COURT OF FLORIDA

Nos. 54,024 & 54,025

CHARLES WILLIS MALONE, JR., Appellant,

vs.

STATE OF FLORIDA, Appellee.

[September 25, 1980]

ALDERMAN, J.

Charles Willis Malone, Jr. appeals

his convictions for the first degree mur-

ders of Manuel Tanner and Jessee Woodward

and his sentences of death. He also ap-

peals his conviction and sentence for

robbery. We reverse.

On July 14, 1977, Jessee Woodward

appeared at the residence in St.

Petersburg, Florida, where Malone and his

friend and co-perpetrator, Freddie Lee

Morris, were staying. Three days earlier,

°%

Malone and Morris had attempted to commit

a robbery and kidnapping. They suspected

that Woodward was a detective investiga-

ting those crimes, but, in fact, he was

not. At gunpoint, they searched Woodward

and took two dollars and a wallet from

him. Then, using Woodward's automobile,

they forced him to accompany them on a

forty-mile trip to a remote, deserted lo-

cation on the outskirts of Tampa. During

this trip, Woodward pleaded for his life.

When they arrived, Malone took Woodward

away from the automobile into a marshy,

wooded area and shot him twice in the

back of his head. Then, after visiting

some friends in Tampa, Malone and Morris

drove around in Woodward's automobile

looking for a place to rob. They finally

selected a Tampa service station and, at

gunpoint, robbed the attendant, Manuel

A-3

Tanner, taking fifty to sixty dollars and

two hundred to three hundred packs of

cigarettes. During the robbery, Malone

beat Tanner to death with a blunt, pipe-

like instrument. As a result of being

struck on the head approximately ten

times, Tanner sustained severe skull

fractures, numerous fractures on the

right side of his scalp and on the base

of his skull, and ten lacerations on his

scalp. The police later found Woodward's

car parked in an apartment area in Tampa.

From several items of physical evidence

found in the automobile, including

Malone's fingerprints, the police were

able to connect Malone with Woodward's

automobile and with the service station

robbery.

Malone was convicted for the pre-

meditated, first-degree murders of Jessee

A-4

Woodward and Manuel Tanner and the rob-

bery of the service station. The jury

recommended death sentences. The trial

court sentenced Malone to death for each

of the murders and to life imprisonment

for the robbery.

Malone argues that his convictions

should be reversed and the cause remanded

for a new trial because the trial court

erred in denying his motion to suppress

certain incriminating statements made by

him to one of his cellmates who, un-

known to Malone, was an informer for the

State. He concedes that these statements

were not coerced and were voluntary. but

argues that they may not be used against

him because they were deliberately elic-

ited by a State agent in the absence of

his counsel and without his being in-

formed of his Miranda rights by the

- *

informant.

The informer, who was also a pris-

oner, first met Malone in the Pinellas

County jail in September, 1977. Two and

one-half weeks after meeting Malone, the

informer met Detective Hazzard who asked

him to assist in finding the body of

Jessee Woodward by just listening to

whatever Malone said about the case and

reporting anything he heard about where

the body was located. The informer tes-

tified that he did not ask Malone where

the body was or in any way interrogate

him, but he did suggest a plan to the

police by which he might be able to ob-

tain information from Malone as to where

Woodward's body was hidden. The plan

was to have the informer transferred to

another county jail and then to have him

come back and visit Malone in civilian

’%

-»%

A-6

Clothes. Prior to being transferred, the

informer went back to his cell and told

Malone that he was being released and as-

sured Malone that he knew a black female

attorney whom he would try to retain for

Malone. Under the misimpression that the

informer would be able to assist him on

the outside, Malone then told the infor-

mer that he had killed Woodward, that

there were several things he wanted the

informer to do for him, and that he would

tell the informer about them when he re-

turned on visitation day. Some time

later, dressed in civilian clothes, the

informer returned to the jail, as re-

quested by Malone. Anxious to ensure

that he would not be linked with

Woodward's body, Malone gave the infor-

mer directions to where the body was lo-

cated and instructed the informer to

A-7

dispose of the remains. From the direc-

tions given by Malone, the police were

unable to find the body. Pursuant to po-

lice directions, the informer returned to

the jail and told Malone that he was un-

able to locate the body from the previous

directions. Malone then gave more de-

tailed directions, but the police were

Still unable to find the body. The co-

defendant, Freddie Morris, ultimately

led the police to the body, which was

located in the area described by Malone

in his directions to the informer.

In light of the recent pronounce-

ment of the Supreme Court of the United

States in United States v. Henry, No.79-

121, 48 U.S.L.W. 4703 (June 16, 1980),

we hold that Malone's incriminating

statements made to the State informant

while in custody in the Pinellas County

A-8

jail should have been suppressed because

these statements made in the absence of

counsel, with no prior waiver of counsel,

were directly elicited by the State's

stratagem deliberately designed to elicit

an incriminating statement from Malone.

Therefore, the introduction of these

statements violated Malone's sixth amend-

ment right to the assistance of counsel.

Detective Carpenter testified that on

several occasions he had advised Malone

of his Miranda rights and had attempted

to interview Malone regarding the Tanner

and Woodward murders but that Malone had

refused to be interviewed. It was there-

after that the ruse of the cellmate being

released was concocted and employed to

derive information from Malone as to the

whereabouts of Woodward's body.

In United States v. Henry, the

A-9

Supreme Court held that Henry's state-

ments to a paid police informant-cellmate

were improperly admitted at trial because

the government violated Henry's sixth

amendment right to counsel by intention-

ally creating a situation likely to in-

duce Henry to make incriminating state-

ments without assistance of counsel.

Federal agents had instructed the infor-

mant to be alert to any statements made

by the federal prisoners regarding char-

ges against them but had specifically

directed him not to question Henry or the

other prisoners about their charges.

Distinguishing the situation before it

from one where the "listening post" is

an inanimate listening device having no

capability of leading the conversation

into a particular subject or prompting

a reply and from the situation where an

A-10

informant is placed in close proximity

but makes no effort to stimulate conver-

Ssations about the crime charged, the

Supreme Court held that the government

agent in Henry was not a passive listener

but had had conversations with Henry

while Henry was in jail. The Court de-

termined that Henry's incriminating

statements were the product of these

conversations and explained that, from

the fact that the informer was paid by

the government on a contingent fee basis

for incriminating information, it could

be assumed that he would take some affir-

mative steps to secure this information.

Where the accused is in the company of a

fellow cellmate who unbeknownst to him

is acting as an informer, the Court de-

clared, the conversation stimulated may

elicit information which the accused

A-11

would not intentionally reveal to a gov-

ernment agent. The Court reiterated its

previous pronouncement made in Massiah v.

United States, 377 U.S. 201 (1964), that

to have any effect, the sixth amendment

must apply to indirect surreptitious in-

terrogations. It further explained that

Since Henry was unaware that he was talk-

ing to a government agent, he could not

be held to have waived his right to coun-

sel. Finally, it emphasized the relevan-

cy to its holding of the fact that at the

time Henry was engaged in conversation by

the government agent, he was incarcerated,

and the Court stated:

While the concern in Miranda was

limited to custodial police inter-

rogation, the mere fact of custody

imposes pressures on the accused;

confinement may bring into play

subtle influences that will make

him particularly susceptible to the

ploys of undercover government

agents. The Court of Appeals

A-12

determined that on this record the

incriminating conversations between

Henry and Nichols were facilitated

by Nichols' conduct and apparent

status as a person sharing a common

plight. That Nichols had managed to

gain the confidence of Henry, as the

Court of Appeals determined, is con-

firmed by Henry's request that

Nichols assist him in his escape

plans when Nichols was released from

confinement.

48 U.S.L.W. at 4706.

In the present case, the subterfuge

employed by the informer and condoned and

participated in by the State precipitated

the incriminating statements made by

Malone. During the at least month-long

period of time preceding the informer-

cellmate's "release," Malone had not told

the informer that he had committed the

murder, nor had he ever mentioned the

location of Woodward's body. Not until

after being informed by the cellmate of

the cellmate's impending release, did

Ris

Malone confess to him that he had killed

Woodward and disclose the whereabouts of

the victim's body. Because of Malone's

confidence which the informant had man-

aged to gain and because Malone felt

that the informer could assist him on

the outside, Malone confided in the in-

former and enlisted, he thought, the in-

former's assistance in disposing of the

body. Although it does not definitely

appear in the record that the informer

gained any benefit from the State for

the disclosures he was able to obtain

from Malone, it was indirect surrepti-

tious State action which elicited

Malone's incriminating statements with-

out assistance of counsel and therefore

in violation of Malone's sixth amend-

ment right.

Reviewing the record in light of

A-14

the error of admitting these incriminating

statements into evidence, we are unable to

conclude beyond a reasonable doubt that

the informer's testimony did not influence

the jury. Chapman v. California, 386 U.S.

18 (1967). Since we conclude that this

error is reversible, we find it unneces-

sary to resolve Malone's remaining chal-

lenges to his convictions and sentences.

Accordingly, the judgments are re-

versed, and this cause is remanded for a

new trial.

It is so ordered.

SUNDBERG, C.J., BOYD, OVERTON, ENGLAND

and McDONALD, JJ., Concur

ADKINS, J., Dissents

NOT FINAL UNTIL TIME EXPIRES TO FILE RE-

HEARING MOTION AND, IF FILED, DETERMINED.

A-15

Consolidated Appeals from the Circuit

Court in and for Hillsborough County,

J.C. Cheatwood, Judge, Case Nos.

77-5191 Div. "C*

and 77-7178 Div. "C"

Jack O. Johnson, Public Defender, and

Wayne Chalu and Samuel Robert Mandelbaum,

Assistant Public Defenders, Tampa,

Florida,

for Appellant

Jim Smith, Attorney General, and C. Marie

King, Assistant Attorney General, Tampa,

Florida,

for Appellee

A-16

WARRANT

THE COUNTY COURT IN AND FOR

HILLSBOROUGH COUNTY, STATE OF FLORIDA

STATE OF FLORIDA ) To all and singular

) the sheriffs of the

COUNTY OF HILLSBOROUGH ) State of Florida

Whereas I. Carpenter, TPD has this day

made oath before me that m™m or about the 14th

day of July, A.D. 19 77, in the County

aforesaid, one

Charles Willis Malone, Jr. Did unlawfully

and from a premditated (sic) design to

effect the death of Manuel Tanner, did

murder Manuel Tanner by beating him to

death with a blunt object,

contrary to the statute in such cases made and

provided, against the peace and dignity of the

State of Florida.

These are therefore to command you to arrest

Charles Willis Malone, Jr. the said defen-

dant and bring him before me to be dealt with

according to law.

Given under my hand and official seal this 29th

day of July A.D. 1977.

Initiating Agency TPD

F.S. X M.O.

Inside Tampa City Limits Yes No.

/S/_ Thomas A. Miller, Sr.

JUDGE OF THE COUNTY COURT

OSP-6-73

A-17

THE 17TH DAY OF AUGUST, 1977 : CASE NO.

: 77-5191

THE STATE OF FLORIDA * DIVISION Cc

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF FLORIDA:

The Grand Jurors of the County of

Hillsborough, State of Florida, charge

that CHARLES WILLIS MALONE, JR. on the

14th day of July, 1977, in the County and

State aforesaid, unlawfully and from a

premeditated design to effect the death

of MANUEL TANNER did murder the said

MANUEL TANNER by striking him with a

blunt instrument, a more detailed descrip-

tion of which blunt instrument is to the

Grand Jurors unknown, contrary to the

form of the Statute in such cases made

and provided, to-wit: Florida Statute

782.04, and

SECOND COUNT

The Grand Jurors of the County of

Hillsborough, State of Florida, charge

that CHARLES WILLIS MALONE, JR. on the

14th day of July, 1977, in the County and

State aforesaid, did unlawfully, by force,

violence, assault or putting in fear, rob,

steal and take away from the person or

A-18

custody of MANUEL TANNER certain property,

to-wit: cash and cigarettes, a further

description of which is to the Grand Ju-

rors unknown, the said CHARLES WILLIS

MALONE, JR. not being the true owner of

the said property, and in the course of

committing the robbery did carry a deadly

weapon, to-wit: a blunt instrument, a

further description of which is to the

Grand Jurors unknown, contrary to the

form of the Statute in such cases made

and provided, to-wit: Florida Statute

812.13.

zxekekkkkkkke keke Kk KR KK Kk

INDICTMENT FOR FIRST DEGREE MURDER

and

ROBBERY

kk kK kK wk Kk RK kK KK KK KR KR KR KR

A TRUE BILL:

/S/ Julian R. Sanders

Foreman of the Grand Jury

A NO TRUE BILL:

Foreman of the Grand Jury

A-19

I. E. J. SALCINES, State Attorney for the

Thirteenth Judicial Circuit in and for

Hillsborough County, State of Florida, do

hereby aver, as authorized and required

by law, that I have acted in an advisory

capacity to the Grand Jurors of

Hillsborough County previous to their

returning the above indictment in the

above-styled causes.

by : /S/ Charles T. Davidson

for: E. J. SALCINES, STATE ATTORNEY

Presented before /S/ Neill McMullen

Circuit Judge

A-20

WARRANT

THE COUNTY COURT IN AND FOR

HILLSBOROUGH COUNTY, STATE OF FLORIDA

STATE OF FLORIDA ) To all and Singular

) the sheriffs of the

COUNTY OF HILLSBOROUGH ) State of Florida

Whereas Det. I. Carpenter, TPD has this

day made oath before me that on or about the 14th

day of July, A.D. 19 77, in the County

aforesaid, one

Charles Willis Malone, Jr. did unlawfully

and from a premeditated design to effect

the death of Jesse (sic) W. Woodward, did

murder Jessie (sic) W. Woodward by shoot-

ing with a 32 cal. Pistol,

contrary to the statute in such cases

made and provided, against the peace and

dignity of the State of Florida.

These are therefore to command you to

arrest Charles Willis Malone, Jr. the

said defendant and bring him before me to be

dealt with according to law.

Given under my hand and official seal this 19th

day of October A.D. 19 77.

Initiating Agency TPD ~~

F.S. X M.O.

Inside Tampa City Limits Yes No

/S/ Henry Wilson

JUDGE OF THE COUNTY COURT

COSP-6-73

’%

A-21

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL

IN AND FOR HILLSBOROUGH COUNTY,STATE OF FLORIDA

THE 2ND DAY OF NOVEMBER, 1977.

THE STATE OF FLORIDA : CASE NUMBER

we _-- 77-7178

CHARLES WILLIS MALONE,JR.: DIVISION C

IN THE NAME AND BY THE AUTHORITY OF THE

STATE OF FLORIDA:

The Grand Jurors of the County of

Hillsborough, State of Florida, charge that

CHARLES WILLIS MALONE, JR. om the 14th day of

July, 1977, in the Coumty and State aforesaid,

unlawfully and from a premeditated design to

effect the death of JESSIE (sic) WILBUR

WOODWARD did murder the said JESSIE (sic) WILBUR

WOODWARD by shooting him with a pistol, a more

detailed description of which is to the Grand

Jurors unknown, contrary to the form of the

Statute in such cases made and provided, to-wit:

Florida Statute 782.04.

- 2B RS Veer RR Se & 8 2. SS RR

INDICTMENT FOR FIRST DEGREE MURDER

kk kK kK KK KR KK RR KR KK KR KR KR

A-22

A TRUE BILL:

/S/ James R. Boyer

Foreman of the Grand Jury

A NO TRUE BILL:

Foreman of the Grand Jury

I, E. J. SALCINES, State Attorney for the

Thirteenth Judicial Circuit in and for

Hillsborough County, State of Florida, do

hereboy aver, as authorized and required

by law, that I have acted in an advisory

capacity to the Grand Jurors of

Hillsborough County previous to their

returning the above indictment in the

above-styled cause.

/S/ Norman S. Cannella, Ast. S. A.

for E. J. SALCINES, STATE ATTORNEY

Presented before /S/ Robert W. Patton

CIRCUIT JUDGE

A-23

IN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL

CIRCUIT IN AND FOR THE COUNTY OF HILLSBOROUGH

AND STATE OF FLORIDA

CRIMINAL JUSTICE DIVISION

THE STATE OF FLORIDA :

_ No. 77-5191-Div. C

= * No.77-7178-Div. C

CHARLES WILLIS MALONE

This cause came on for hearing on pre-trial

motions before the Honorable C. J. Cheatwood,

Judge, on March 3, 1978, as follows:

Appearances:

HONORABLE THOMAS DAVIDSON, Assistant

State Attorney, for the State;

RICHARD A. LAZZARA, ESQUIRE, 401

Governor Street, Tampa, Florida, appearing in

behalf of the Defendant.

A-24

PROCEEDINGS

(March 3, 1978, Friday,

8:00 o'clock a.m.)

THE COURT: All right, Gentlemen, let the

record reflect that after we recessed last night

that counsel and the Court listened to the tapes

of Mr. Mobley's statement in Chambers, and I will

ask the Clerk to please place these tapes in evi-

dence as Court Exhibit #1. The Court has also

read the statement of Ann Morehead Hardin and

Freddie Lee Morris, the desposition of Ruby

Staley, Canetha Strong, Jacqueline Williams,

CraigSmith, Terry Mobley and Lamar Larry.

All right. You may proceed, sir.

MR. LAZZARA: Judge, you would want to now

hear arguments cm the motion to suppress confes-

Sicms and statements, statements made by my

client to Mr. Mobley?

THE COURT: That will be fine, sir.

A-25

MR. LAZZARA: Judge, in addition to the - -

well, in this motion, Judge, I am relying not mly

on the Miranda case, the Fifth Amendment and Sixth

Amendment and the Fourteenth Amendment, but also

a case called Massiah versus United States, decid-

ed by the United States Supreme Court in 1964 and

cited at 84 Supreme Court Reporter, 1199. The

facts in the Massiah case, Judge, reveal that Mr.

Massiah was arrested, indicated, arraigned, pled

not guilty and had the services of an attorney.

There was a co-Defendant in the case and a few

days later, without the knowledge of Mr. Massiah,

this co-Defendant decided to cooperate with the

United States Government in their continuing in-

vestigation of the activities in which the Defen-

dant Mr. Massiah and the co-Defendant and others

had been involved. The co-Defendant allowed an

agent of the United States Government to place

a transmitting device in his automobile, by means

of which the agent could overhear any

A~26

conversations in the car, even though he was

stationed in an automobile somewhere else.

One night Mr. Massiah and the co-Defendant

had a lengthy conversation in the co-Defendant's

car by a prearrangement with the Government agent,

and unknown to the Defendant Mr. Massiah the

agent, in another automobile, was able to over-

hear the conversation. Naturally, Mr. Massiah

made certain incriminating statements which were

later introduced at his trial over strenuous

objection and, quite naturally, he was convicted.

The Supreme Court, Judge, in holding that

activity was impermissible stated, and I would

like with the Court's indulgence, to read sare

of the language of the case:

"We hold that the Petitioner was denied the

basic protection of that guarantee when there

was used against him at his trial evidence of

his own incriminating words which Federal agents

have deliberately elicited from him before he

A-27

had been indicted in the absence of his counsel.

It is true in the Spano case the Defendant was

interrogated in the Police Station, while we are

here the damaging testimony was elicited fram the

Defendant while he was on bail."

So you know, Judge, the Court of Appeals

confirmed the trial court's conviction of Mr.

Massiah, and part of the dissent, one of the

judges, Judge Hayes, stated as follows:

"If such a rule is to have this nature it

must apply to this direct and surreptitious in-

terrogation as well as those conducted in the

jail house."

In this case Massiah was more seriously

imposed upon because he did not even know that

he was under interrogation by a Government agent

and then finally, Judge, the Court in conclusim

states:

"We do not question in this case, as in

many cases, it was entirely proper to conduct an

A-28

investigation of a suspected criminal activity of

the Defendant and his alleged confederates, even

though the Defendant had already been indicted.

All that we hold is that the Defendant, on incrinm-

inating 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."

Judge, I would submit to you that the facts

in this case, Mr. Malone's case, are qm all fours

with the facts in Mr. Massiah's case. The record

is clear Mr. Malone was indicted in Case Number

77-5191 August 19th, 1977. On August 19th, 1977,

he was arraigned, pled not guilty and had the

services of an attorney. The court file will

reflect it was Mr. Starke, who was with the

Public Defender's Office. The record is also

clear that this was before Mr. Terry Mobley

entered the picture, which was, according to his

testimony, he was approached, I think, four days

A-29

after he was sentenced in Pinellas County om

September 13th, 1977.

I think the record is also clear, Judge,

that Mr. Mobley was assisting the State of Florida

and for all intents and purposes was an agent of

the State of Florida, and that the Defendant had

no knowledge of this whatsoever.

I think the record is clear that just as in

the Massiah case the State was engaging in a con-

tinuing investigation of the Defendant's criminal

activities. Recall the tape of Mr. Mobley, Judge,

that you heard last night. Detective Hazzard not

only advised him of the particulars of the

Woodward murder, Case Number 77-7178, but he also

advised him about the service station robbery and

how the other man was killed.

Additionally, Judge, I would submit to you

that taking all the evidence into consideraticn,

Mr. Mobley's testimony here yesterday and the

testimony of Detective Bolle and that tape-

A-30

recorded conversation of Mr. Mobley, that Mr.

Mobley is not just a person sitting back and

listening but rather is a persa who was taking

affirmative steps to draw information out of Mr.

Malone, and in that regard, Judge, I would like

to refresh the Court's recollection as to what it

heard on the tape last night. I think we heard

Mr. Mobley say that psychology had to be worked

on the Defendant since he was distrustful. I

think we heard how he decided to exploit the

ethnic angle in order to gain the Defendant's

confidence, how he created a fictitious black

female lawyer to gain the Defendant's confidence,

how he was working qm an angle where he was going

to tell Mr. Malone that this supposed lawyer had

gone through his case and there was no way in hell

and Judge, I remember those words, there was no

way in hell he would do anything or she could do

anything unless Charles told where the body was,

and remember, Judge, he stated he realized that

‘*

A-31

this was bold and very up front but he felt it was

going to work, and remember how he also explained

that he felt that if sameone went to Mr. Malone

and said, "Hey, you don't have to tell where the

body is," then he felt Mr. Malone would go free.

There is one other important part here,

Judge, that I wanted to bring out. One of the

other things Mr. Mobley was working on, if I re-

call that tape correctly, Judge, was to try and

get it across to Charles that if he cooperated

with him, meaning Mr. Mobley, and cooperated with

this supposed lawyer then if he got sentenced it

would be a life sentence and I remember that,

Judge, and remember he stated the main thing that

Charles was worried about was the sentencing

aspect.

Remember also, Judge, the situation in-

volving the taking of Mr. Mobley from the Pinellas

County Jail to the Manatee County Jail under the

ruse that he was being freed. Mr. Mobley told us

A-32

yesterday Mr. Malone was led to believe, "I was

being freed." It is just part of the overall plan

to get him to open up to him and then he is

brought back. I believe Detective Bolle stated

on three or four occasions he was brought back

and each time that Mr. Mobley received informatim

which, in a sense, doesn't pan out for whatever

reason, he is taken back to Mr. Malone to get

better information, and if you will recall, Judce,

on ome occasion Mr. Mobley is wired for sound, so

to speak.

I submit to you, Judge, these are not the

actions of a person, which is what I think the

State wants to lead you to believe, of a persm

who is sitting back and doing nothing but listen-

ing. These are the actions of a persm who I

would submit to you is taking affirmative steps

to elicit incriminating information fram Mr.

Malone, who was a key suspect fram the very

beginning.

A-33

I submit to you, Judge, what the State was

trying to do -- excuse me -- I submit to you that

the State was trying to do indirectly what they

could not do directly because, as the record re-

flects, Detective Carpenter and Detective Hazzard

attempted to interrogate Mr. Malone regarding

these crimes, but after advising him of his

Constitutional rights regarding self-incrimation

and a right to counsel, he invoked those rights.

So I would submit to you what the police

did, Judge, was they attempted and were, I think,

successful in eliciting incriminating statements

from my client in a surreptitious, illegal manner.

Judge, I would say to you that I feel on the rec-

ord that has been presented to this Court, the

Court under Miranda, under Massiah, under the

Fifth, Sixth and Fourteenth Amendments, must

suppress all statements given by my client to

Mr. Mobley. At the very least, Judge, the Court

must suppress under Massiah any statements given

by my client to Mr. Mobley relating to the service

station robbery and murder, which is Case Number

77-5191. Judge, then I have a copy of the Massiah

case if you would like to read it.

THE COURT: Yes, Sir.

MR. LAZZARA: I would like to point out me

thing to show you so you don't think I am mis-

leading you. The Court in there makes reference

to them dealing with a Federal case, Federal con-

viction, where the specific gurantee of the Fifth

Amendment directly applies. I think the law is

well settled that the Fifth and Sixth Amendment

of the United States Constitution are applicable

in the State's prosecution through the Fourteenth

Amendment. Thank you, Judge.

THE COURT: All right, Mr. Davidson?

MR. DAVIDSON: Yes, Your Honor. Your Honor,

I believe Mr. Lazzara, his final statement, hit

on the key to this whole situation when he men-

tioned to the Court that the Court should at

A-35

least suppress any statements made concerning the

Tanner service station robbery and, I believe, Mr.

Lazzara must have made that comment to the Court

because he is well aware after having read the

Massiah case that the Massiah case clearly applies

only in a post-indictment situation. In sare of

the remarks that Mr. Lazzara read from that opin-

ion, I think it is clear within that particular

case itself, that they are talking about oly a

Situation where a Defendant has been indicted

for the crime which is currently under investi-

gation.

Now just so the record is clear, I want

the Court to understand that the State will not

try to mislead the Court as to the facts of this

case and as to why Mr. Mobley was sent in and

what Mr. Mobley was doing when he was talking

with Mr. Malone. However, we do have a little

bit different understanding of these facts based

on the testimony that has been presented to the

A-36

Court yesterday. I believe that based on these

facts, Your Honor, there is a difference between

that tape where Mr. Mobley was discussing in an

office situation with Detective Bolle possible

courses of action and plans and so forth and in

talking with Mr. Maloe in the actual discussion

that took place.

Mr. Mobley was here himself yesterday as was

Detective Bolle, and they both testified as to

what Mr. Mobley was to do and as to what Mr.

Mobley actually did when he was talking to

Charles Malone. Also, the Court has a transcript

of Detective Hazzard where he also indicates what

Mr. Mobley's purpose was, and one thing that

stands out clear, clearly in all that testimony,

is that Mr. Mobley was there to determine where

the body of Jesse Woodward was located and Mr.

Malone here had neither been arrested nor in-

dicated during the whole course or whole period

of time during which Mr. Mobley was talking with

A-37

him, after having talked with Detective Hazzard

and Detecitve Bolle.

There were, as the Court recalls, from the

tapes same comments made about the service station

robbery, but I don't believe they were elicited

by Mr. Mobley nor was Mr. Mobley instructed to

find out information about the service stati

robbery. Of course, Detective Hazzard did brief,

in general, Mr. Mobley about that robbery and I

believe it is indicated in the testimony the

purpose of that was so he would have a background

on the man he was talking to.

Now rather than asking the Court to rely

strictly on Massiah, Your Honor, as to we key

points in this situation as to whether or not the

Massiah applies only to a post-indictment situa-

tion, I would cite to the Court Procunier versus

Atchley, U.S. Supreme Court case decided in

January, 1971, several years after the Massiah

case. Your Honor, I submit to the Court that

A-38

this case goes further than Massiah and is more

closely on point with the facts faced by the Court

here today. In that case a California man had

been arrested, Your Honor, for the murder of his

wife, and as the Court recalls Mr. Malone here

had not even been arrested for the death of Jesse

Woodward. This California man was arrested for

the shooting of his wife. An insurance man went

to visit the Defendant in jail concerning insur-

ance matters involving the death of the

California man's wife. During the course of

their discussion this Defendant made certain in-

criminating statements to the insurance man.

This insurance man, after the conversation, went

to the police authorities and reported what he

was told and the police authorities asked him to

go back in and talk to this Defendant again and

see if he could learn anything else about the

murder, and he was wired for sound. He had a

tape recording device on his person, which not

A-39

only picked up his conversation, as in our set of

facts, but also picked up the conversation of the

accused. All of this being prior to the indict-

ment on the murder case. During that conversation

the Defendant again made incriminating statements.

These statements were subsequently introduced in-

to evidence at the Defendant's trial and he was

subsequently convicted. The U. S. Supreme Court

in considering this matter through a petition for

writ of habeas corpus advised that these facts on

their face did not set out enough reason for

them to find that the Massiah or Miranda rules

had been violated and they specifically discussed

the fact that this was a pre-indictment situation.

THE COURT: The case you are making refer-

“nce to, Mr. Davidson, the man had been arrested

but not yet indicted at the time he was inter-

viewed by the insurance agent?

MR. DAVIDSON: That is correct, Your Honor.

THE COURT: All right.

A-40

MR. DAVIDSON: Now if I may, Your Honor,

with the Court's indulgence, quote from this

particular decision:

"Defendant also contends that the recording

was obtained by such fraud that its use as evi-

dence is inconsistent with due process relying

primarily on the Supreme Court case of Larry

versus Dino. Although there was a similar decep-

tion in a present case there was no comparable

mental coercion. Deception itself does not ren-

der Defendant's statements inadmissible, for it

was not of the type reasonably likely to procure

an untrue statement."

Now I will direct the Court's attention to

Mr. Mobley's testimony yesterday where he advised

that his intention was not to elicit untrue

Statements. What he did was to gain true

Statements. He was there to find the location

of the body of Jesse Woodward. That was the

Whole purpose. So it would stretch the

A-41

imagination that he would be doing anything to

elicit an untrue statement about the location of

the body, and I also believe he testified in de-

tail that he did nothing to coerce Mr. Malone into

making the statements involved. In fact, I think

the tape recording that the Court listened to and

the testimony indicates that, in fact, Mr. Malone

elicited the aid of Mr. Mobley. Your Honor, I

have a copy of this particular Supreme Court case.

I don't recall if I cited the case to the Court,

but it is at 524, U.S. Supreme Court Reporter -—-

excuse me, Your Honor, I am reading the wrong

citation. It is 400 U.S. 446, 27 Law Ed., 524,

91 Supreme Court 485. Your Honor, I have a copy

of that case if the Court wishes to look at it.

I do have some annotations on it.

Now, Your Honor, there is further case law

in Florida going to the same point where the

Florida Courts recognize that the techniques used

by the officers in this case were violative of

A-42

the Constitutional rights that Mr. Lazzara men-

tioned only in post-indictment situations or post-

filing of the Information. I cite to the Court

Dismukes versus State, 327 Southern Second, 201,

and Robinson versus State, 351 Southern Second,

1100. In that case the Court says we find the

reliance upon Massiah misplaced because Massiah

applies only to a Defendant who has been indicted

or informed against. This is November 8th, 1977,

decision, Your Honor. Again Sikes versus State,

Second District case, 313 Southern Second, 436,

wherein the Court specifically affirms and says

that the behavior used, which was similar in the

case at hand, was founded upom post-indictment

_ confessions. So, Your Honor, in conclusim, I

would only urge the Court to understand that

these officers were dealing with a situation

where they had to reach same solution to a

problem. They couldn't wait for Massiah to be

taken a step further in the directim that Mr.

A-43

Lazzara would want it to go. They couldn't wait

for the Atchley case to be reversed. They had to

act on the law as they understood it to be at the

time they reached the solution to their problem.

We are dealing here at a trial level, not appel-

late level, and these officers, I believe, have to

be able to act om the law as it stands at the time

they are dealing with the particular problem they

have, and I believe that the cases that the State

has cited to the Court make it clear their actions

were well within the law, within the laws stated

by the U.S. Supreme Court, and to knowledge, that

is the latest word on this particular kind of

situation.

I join with Mr. Lazzara in saying that in a

post-indictment situation there is no question

that these officers could not have done the things

that they did in talking to Mr. Malone, but we are

not dealing with a post-indictment situatic¢m. We

are not even dealing with a post-arrest situation.

A-44

Mr. Mobley was specifically instructed not to delve

into the matters involving the Tanner case, and it

is clear from the evidence presented that he was

seeking only to learn about Mr. Woodward's body

and its whereabouts, and of course, the admissions

made to him were concerning the body and his in-

volvement in the death of Jesse Woodward. For

these reasons the State would urge the Court to

apply the law as it is stated in the Florida cases

that the State has cited and in the Atchley case.

THE COURT: All right. Any response, Mr.

Lazzara?

MR. LAZZARA: Just so the record is clear,

I don't know if I brought it out, I am not rely-

ing solely and exclusively @ Massiah. I am also

relying on Miranda and the principles of the

Fifth, Sixth and Fourteenth Amendments.

THE COURT: Which is the Tanner file,

please, Miss Clerk, the number?

THE CLERK: 5191

A-45

THE COURT: Gentlemen, I appreciate the

arguments of counsel. I think they have been

helpful to the Court. I hope so, and in an

abundance of caution, I am going to grant the

motion but only insofar as it applies to the

Tanner case which is 77-5191. The reason for the

Court's ruling being that the indictment had been

handed down in the Tanner case. The Defendant

had been arraigned, entered a not guilty plea,

and since there is some trepidation in the Court's

mind of statements made by the Defendant to the

witness, I will grant the motion to suppress qnly

any Statements made pertaining to Case Number

@7-S191.

A-46

SUPREME COURT OF FLORIDA

Monday, December 8, 1980

CHARLES WILLIS MAIONF, JR.,

Appellant,

Case Nos. 54,024 &

v. 54,025

Circuit Court Nos.

77-5191 Div. "C" &

tie

-7178 Div. "C

Appellee. CONSOLIDATED CASES

STATE OF FLORIDA,

Upon consideration of the Petition for Re-

hearing filed in the above stylec cause by the

attorney for Appellee, and response thereto,

IT IS ORDERED that said Petition be and the

same is hereby denied.

SUNDBERG, C.J., BOYD, OVERTON, ENGLAND, ALDERMAN

and McDONAID, JJ., concur ADKINS, J., dissents.

A True Copy

TEST: cc: Hon. James F. Taylor, Jr.,Clerk

Hon. J. C. Cheatwood, Judge

James S. Purdy, Esquire

Sid J. White Samuel Robert Mandelbaum, Esquire

Clerk, Supreme Court

By: /s/ Tanya Carroll

Deputy Clerk

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.