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State v. Dixon6/3/2005
drunk and his negligence caused this accident by his inability to react properly, by his own admission, and lastly, you have Mr. Hunter who talks to his attorney and the last thing he says is "I wanted to talk to my attorney to see if he would defend me." A guilty mind. Thank you.'" 82 Md. App. at 685.
Although agreeing with the outcome of Macon and a number of cases that followed it, see 82 Md. App. at 689, the Maryland court disapproved the premise on which thoses cases rest, i.e., the exercise of a Sixth Amendment right to counsel:
"This raises the question whether the obtention or attempted obtention of a lawyer or legal advice prior to that point can properly be regarded as the exercise of a right under the Sixth Amendment for purposes of a Griffin analysis. The harm, of course, occurs at trial, when the evidence is elicited or the comment is made, and surely at that point, the Sixth Amendment right has attached. But as the harm consists of penalizing the earlier exercise of a Constitutional right, one must look back to the event purporting to constitute the exercise of that right. If in fact, or in law, it does not constitute the exercise of a Constitutional right, the whole 'penalty' analysis collapses." 82 Md. App. at 690.
Having rejected the Griffin analysis but being convinced that evidence of or comment on an early contact with counsel was impermissible, the Maryland court turned its attention to the Due Process Clause of the Fourteenth Amendment and the rules of evidence:
"The right of a person to seek the advice and assistance of counsel is not, of course, restricted to the specific right afforded by the Sixth Amendment or its State counterpart. [Citation omitted.] A person has an independent right, protected we think by the general due process clause of the Fourteenth Amendment and its State counterpart [citation omitted] to seek legal advice or representation at any time, on any matter, and for any reason. This is especially so when the person perceives that civil or criminal litigation against him may be in the offing, as was surely the case here. . . .
"The exercise of this right does not imply a consciousness of guilt. In seeking legal advice or representation, the person may well believe himself culpable of some tortious or criminal conduct. But he may just as well believe himself entirely innocent or only partly culpable, or he simply may not know whether his acts or omissions are in violation of law. And if he has some pre-formed belief as to his culpability or innocence, that belief may turn out to be unfounded. Indeed, common human experience would suggest that, absent some special circumstance not evident here, the most likely purpose for seeking legal advice or representation is to find out what one's status and exposure may be. If there is a rational inference to be drawn from the seeking of such advice or representation therefore, it cannot be more than that--an uncertainty. To draw an inference of consciousness of guilt from the seeking of such advice, then, is both illogical and unwarranted; the fact to be inferred--the consciousness of guilt--is not made more probable (or less probable) from the mere seeking of legal advice or representation, and so evidence of the predicate fact is simply irrelevant. On pure evidentiary grounds, it is inadmissible." 82 Md. App. at 690-91.
Concluding that it could not say that the error was harmless, the Maryland court reversed the convictions. 82 Md. App. at 691.
In the present case, the State contends that Dixon's right to counsel had not attached when he telephoned and met with Johnson in the days immediately after the explosion and before criminal proceedings
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