¶1dissenting:
¶2I respectfully dissent, since I believe that Massiah v. United States, 377 U. S. 201, 84 S. Ct. 1199, 12 L.Ed.2d 246*576(1964), proscribes admission of the testimony concerning appellee’s conversation with Sergeant Zero.
¶3Prior to Massiah, confessions were excluded from evidence only if found to be involuntary. By relying on the Sixth Amendment right to counsel rather than the Due Process Clauses of the Fifth and Fourteenth amendments, Massiahextended this exclusionary rule to certain voluntary, post-indictment admissions:
“. .. We hold that the petitioner was denied the basic protections of [the Sixth Amendment] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel. It is true that in [Spano v. New York, 360 U. S. 315, 79 S. Ct. 1202, 3 L.Ed.2d 1265 (1959)] the defendant was interrogated in a police station, while here the damaging testimony was elicited from the defendant without his knowledge while he was free on bail. But, as Judge Hays pointed out in his dissent in the Court of Appeals, ‘if such a rule is to have any efficacy it must apply to indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon . . . because he did not even know that he was under interrogation by a government agent.’ [ United States v. Massiah, 307 F. 2d 62, 72-73 (2d Cir. 1962)].” 377 U. S. at 206 (emphasis added).
¶4The Supreme Court extended the confession rule in this manner because “[a]ny secret interrogation” of the defendant after indictment contravenes the “basic dictates of fairness,” that a defendant be entitled to the aid of counsel at the stage when legal aid and advice would help him. 377 U. S. at 204-05 (emphasis added). See also United States v. Anderson, 523 F. 2d 1192, 1195 (5th Cir. 1975).
¶5A fair reading of Massiah, I think, would suggest that a court always has discretion to find either that the *577defendant’s words were not incriminating or that they were not deliberately elicited. The only question is whether there can be an effective waiver of the right to counsel or whether the absence of counsel absolutely bars admission of the evidence, regardless of waiver by the defendant. This last requirement of presence of counsel is the nub of the “automatic rule” against which Mr. Justice White protested vehemently in his dissent. Massiah v. United States, supra, 377 U. S. at 213. Although the plain language of the majority’s opinion in Massiah suggests it was establishing an automatic rule, it must be remembered that Massiah did not present this exact issue since Massiah was afforded no effective opportunity to waive his right to counsel. Although there has been some dispute among the courts considering the issue, I agree with the majority of them that there can be an effective waiver of this right. Indeed, this Court held as much in Elliott v. Warden, 243 Md. 627, 631, 222 A. 2d 55 (1966),
“. . . Under the Massiah test, absent an effective waiver of Sixth Amendment rights, no inculpatory statement which is made by an indicted declarant will be allowed into evidence against him if such a statement is elicited from the accused when he does not have counsel present.”
¶6See also Sabatini v. State, 14 Md. App. 431, 448-49, 287 A. 2d 511, cert. denied, 265 Md. 742 (1972).
¶7Thus, the factual questions we must review in our independent analysis of the facts are: (1) was the defendant’s statement incriminating, (2) was the statement deliberately elicited, and (3) was counsel present, and if not, did the defendant effectively waive his right to counsel.
¶8I neither understand nor accept the majority’s bald *578conclusion that Blizzard’s statement was not incriminating. To my mind, it clearly was. It is patently absurd to suggest that because Blizzard said only that “he knew’ it,” he said nothing incriminating. The jury could reasonably infer from his statement that his alibi was fabricated and. further, that he knew the State had a very strong case against him.
¶9As I read its opinion, the majority also finds that the statement was not deliberately elicited because Sergeant Zero employed no “trickery or cajolery." Although statements may perhaps be deliberately elicited without trickery or cajolery, here these methods were utilized. The practice of trapping an unwary person by asking a so-called misleading question is hardly a novel one. Here Sergeant Zero’s statement was all the more insidious because he did not ask a question, but instead placed Blizzard in a position where any response, or even no response, might appear incriminating to a jury. In short, as the Court of Special Appeals aptly noted, the remark “may well have been calculated to bait [Blizzard].” Blizzard, v. State, 30 Md. App. 156, 164, 351 A. 2d 443 (1976). See also United States v. Anderson, supra, 523 F. 2d at 1196 n. 3.
¶10The majority, of course, concedes that Blizzard’s statement was made in the absence of counsel. The majority alludes to the controverted testimony to the effect that Blizzard requested to see Sergeant Zero, but it does not decide whether or not Blizzard effectively w’aived his right on this occasion. Nor was any finding or ruling to that effect made by the trial court. Although some courts may require both notice to counsel and reasonable opportunity to be present before the right can be w’aived, see, e.g., United States v. Thomas, 474 F. 2d 110, 112 (10th Cir.), cert. denied, 412 U. S. 932 (1973), I see no necessity for deciding that issue here. For the Massiah rule to retain its efficacy, waiver of the right to counsel cannot be premised on an inference drawn from controverted testimony concerning the defendant’s actions, namely, a request that a police officer come to the jail — a request Blizzard denies making. Surely there must be some indication by the defendant that he wished to waive his right to counsel before it can be said that *579he effectively waived that right. Indeed, here, by stating that he did not wish to discuss the case with Zero, Blizzard may well have been attempting to exercise his right, not to waive it.
¶11Finally, the majority suggests that even if Massiah proscribes admission of this evidence, its admission was not prejudicial as the matter is “trivial” and “of no real importance.” Arguably, the right to counsel is one of those constitutional rights so basic to a fair trial that its denial can never be treated as harmless error, see State v. Renshaw, 276 Md. 259, 271, 347 A. 2d 219 (1975), but even if that doctrine does apply, United States v. Anderson, supra, 523 F. 2d at 1196-97, it cannot be said that the error here was *580“harmless beyond a reasonable doubt.” Chapman v. California, 386 U. S. 18, 24, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967). Only one of the four persons in the store at the time of the robbery identified the perpetrator, who was wearing a nylon stocking mask, as Blizzard. The State’s only other witnesses were two supposed confederates. One of them, Markert, had been tried separately and found guilty and had been promised additional protection for his family in exchange for his testimony. The other was granted immunity. Blizzard, on the other hand, in addition to testifying himself, presented three witnesses in support of his alibi and two witnesses who testified about conversations they had with Markert in which he disclosed a scheme to frame Blizzard. In this context, the testimony about Blizzard’s statement may well have tipped the scale.
¶12Because the State has failed, in my view, to show that Massiah is inapplicable to the circumstances of this case, I would affirm the judgment of the Court of Special Appeals and remand the case for a new trial. Judge Eldridge authorizes me to state that he concurs in the views expressed herein.
¶13. The majority now claims our holding in Elliottwas mere dicta. We would not have reached the retroactivity question which Elliott raised if we had not first decided that admission of Elliott’s statements violated Massiah. The concession of the Warden that admission of the evidence violated Massiah did not deprive us of the duty to decide that constitutional issue. Consequently, our narrowed statement of the Massiah rule was “necessary to a determination of [an] issue,” Kardy v. Shook, 237 Md. 524, 544, 207 A. 2d 83 (1965), and is not dicta.
¶14. The prosecution’s introduction of this episode into the case smacks of an attempt to comment on a defendant’s lawful exercise of his constitutional right, a tactic condemned a dozen years ago with respect to the exercise of the right not to testify. Griffin v. California, 380 U. S. 609, 615, 85 S. Ct. 1229, 14 L.Ed.2d 106 (1965).
¶15. The State argues that even if Massiah would preclude admission of this evidence in the State’s case-in-chief, the rule does not preclude introduction in rebuttal of Blizzard’s incriminating admission that the State had a strong case against him, to impeach the defendant’s testimony that he was not present at the scene of the crime. I read the majority opinion to hold that Massiah does not apply here because the statement was neither incriminating nor deliberately elicited. The majority then adds some questionable dicta to the effect that even if Blizzard has made out the elements of a Massiah objection, he fails because the testimony was used in rebuttal and was admissible on the issue of credibility. Although I note that there was no instruction to the jury limiting its consideration of this testimony to impeachment, I would not reach the basic issue whether a statement made by the defendant in circumstances rendering it inadmissible to establish the prosecution’s case-in-chief under Massiah may be used to impeach his credibility. Cf. Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971) (evidence inadmissible for case-in-chief under Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), is admissible for impeachment); Oregon v. Hass, 420 U. S. 714, 95 S. Ct. 1215, 43 L.Ed.2d 570 (1975) (same). I also note that Cephus v. United States, 352 F. 2d 663 (D.C. Cir.), cert. dismissed, 382 U. S. 897 (1965), upon which the majority heavily relies, is inapplicable since the controverted statements there were made before indictment. 352 F. 2d at 668 (Washington, J. dissenting). State v. Lancaster, 25 Ohio St. 2d 83, 267 N.E.2d 291, 294 (1971), moreover, held that defendant's statements were voluntary but were not deliberately elicited, and that therefore Massiah could not apply. That court then went on to hold that even though the statements were made without the appropriate Mirandawarnings having been given, the statements could be admitted for impeachment.