United States v. Matthew Higgins-Vogt ( 2018 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1528
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW HIGGINS-VOGT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 2:17-cr-20022 — Colin S. Bruce, Judge.
____________________
ARGUED OCTOBER 26, 2018 — DECIDED DECEMBER 21, 2018
____________________
Before WOOD, Chief Judge, and SYKES and SCUDDER, Circuit
Judges.
SCUDDER, Circuit Judge. Concerned that the getaway
driver to his armed robbery would provide information to
the police, Matthew Higgins-Vogt shot the driver multiple
times in a wooded area near the Sangamon River in Decatur,
Illinois. He later confessed to the murder while detained in
the Macon County jail awaiting trial on the robbery charge.
Higgins-Vogt appeals the district court’s denial of his
2 No. 18-1528
motion to suppress his statements, challenging their
voluntariness. We agree with the district court that Higgins-
Vogt’s statements to law enforcement were entirely
voluntary and therefore affirm.
In doing so we sound our strong disapproval of the role a
particular individual, who portrayed herself as a mental
health counselor, was permitted to play within the Macon
County jail. The individual was not a licensed mental health
professional, met multiple times with Higgins-Vogt, and
pledged him her confidentiality, only then to urge him to
talk to the police after hearing his confession to the murder.
What occurred has all the earmarks of a bait and switch of
extraordinary gravity and potential consequence for
Higgins-Vogt. We affirm because it is clear that Higgins-
Vogt, separate and apart from his statements to and
interactions with the purported counselor, affirmatively and
voluntarily chose to confess to the murder.
I
On April 3, 2015, Higgins-Vogt and his friend Kelton
Snyder used a stolen shotgun to rob a Circle K gas station of
$700. During the robbery, Paige Mars waited outside as the
getaway driver. Three days later a sanitation worker discov-
ered Mars’s body, dead from multiple shotgun wounds. Lat-
er that month, state officials arrested Higgins-Vogt and
charged him with armed robbery.
Higgins-Vogt confessed to Mars’s murder while he was
in state custody pending trial on the robbery charge. The
events surrounding the confessions are unusual. During the
month or so preceding his confessions, Higgins-Vogt met
multiple times with Sharon Brown, a contractor working at
No. 18-1528 3
Macon County jail and holding herself out as a mental
health counselor. This appeal requires that we examine the
voluntariness of Higgins-Vogt’s statements in light of his in-
teractions with Brown—during both his so-called counseling
sessions with her as well as his two subsequent interviews
with law enforcement, in which Brown participated.
During this time period, even though he had been ap-
pointed counsel following his arrest for robbery, Higgins-
Vogt never met with his attorney due to a conflict of interest
on the attorney’s part. Accordingly, the attorney was not
present at the time of the confessions Higgins-Vogt now
challenges on appeal. The appeal does not entail any claim
regarding the absence of counsel.
We begin with Brown’s role and position at the Macon
County jail. Although employed by a private entity, Brown
worked exclusively at the jail and had an office there. She
provided what she characterized as “counseling” to inmates
under the title of “Senior Law Enforcement Officer.” While
she had an undergraduate degree in psychology, Brown
held no licenses in the field of mental health and received no
training for her role at the Macon County jail.
In describing her work, Brown stated that her goal was to
allow inmates to develop a sense of empathy for their vic-
tims because, “somewhere along the line in order to become
incarcerated, you’ve made a victim.” She pursued this objec-
tive by meeting with inmates. And the record shows she was
generally free to do so at her discretion, either at the in-
mates’ request or hers, and without supervision from any-
one at the Macon County jail.
4 No. 18-1528
Shortly after entering the jail on the robbery charge,
Higgins-Vogt requested to meet with Brown, who he had
previously met while incarcerated as a juvenile. During this
first meeting on April 16, 2015, Higgins-Vogt revealed to
Brown that he murdered Paige Mars. Following the meeting,
Brown created a “clinical progress note,” in which she wrote
that Higgins-Vogt not only told her about a person he killed,
but also went into “great detail” about the murder and the
murder weapon.
Brown’s note is somewhat at odds with itself, and brings
to light the dual and competing role she played while inter-
acting with inmates. On the one hand, Brown recorded that
Higgins-Vogt had not been charged with the murder and
that she had “encouraged client to inform his attorney of all
this information and informed client she could not tell police
due to confidentiality.” But despite pledging this confidenti-
ality to Higgins-Vogt, Brown told him that she “wanted po-
lice to know so [the] murder victim’s family could have clo-
sure.” Brown later elaborated on her desire to make sure law
enforcement learned of crimes that inmates confessed to her
during their “counseling” sessions: “[w]hen an inmate,
whether it be Matthew [Higgins-Vogt] or anyone, starts tell-
ing me details of things and they have already talked to a
cop of some sort, I encourage them to continue to talk to the
cop. For the one reason is that I can’t repeat what is said to
me. It is not my job to listen to crimes and the details of their
crimes and hold that in for months.” Brown’s dual and com-
peting objectives—promising confidentiality yet prodding
disclosure—add substantial complexity to this case.
Over the ensuing weeks, Brown and Higgins-Vogt con-
tinued to meet. Beyond discussing the abuse Higgins-Vogt
No. 18-1528 5
suffered as a child, Brown tried to get Higgins-Vogt to gain
empathy for Mars by discussing the Mars family with him.
She also offered her views on how Higgins-Vogt’s mental
state might impact his criminal case, suggesting that he was
suffering from a psychological disorder known as “disasso-
ciation.” She discussed with Higgins-Vogt whether he might
be eligible for placement in a mental health facility based on
this disorder.
The interactions between Brown and Higgins-Vogt did
not end there. On May 20, 2015, Higgins-Vogt told Brown
that he wanted to meet with Detective Joe Patton, the lead
detective investigating the Circle K robbery. Brown contact-
ed Detective Patton and arranged a meeting, where Patton
learned that Higgins-Vogt wanted to speak with him about
the weapon used in the Mars murder. After Higgins-Vogt
waived his right to have his attorney present, the parties
moved into an interview room so the questioning could be
recorded. The Macon County State’s Attorney joined the in-
terview at Higgins-Vogt’s request.
Brown was present for the entire interview. She ex-
plained her role to Detective Patton in this way: “I encour-
aged [Higgins-Vogt] to speak to a police officer because I’m
not one and I don’t need to know this type of thing, but I’m
supportive of him telling the truth and if he ever wants to
say anything else, I’m supportive of that and I will encour-
age that.” During the interview, Higgins-Vogt provided de-
tails about the location of the shotgun used to kill Mars,
though he claimed to have learned that information
secondhand from Kelton Snyder. The police then used the
information to recover the murder weapon. Given the level
6 No. 18-1528
of detail Higgins-Vogt shared, Detective Patton was skeptical
of Higgins-Vogt’s denial of playing any role in the murder.
Throughout the May 20 interview, including while
Detective Patton expressed doubt about whether Higgins-
Vogt was being entirely truthful, Brown did not expressly
contradict Higgins-Vogt’s account or explicitly state that he
had confessed to her to murdering Paige Mars. But Brown
did not sit silent during the interview either. To the contrary,
she asked questions and elicited incriminating admissions
from Higgins-Vogt, some of which she presumably learned
during her prior “confidential” meetings with him. For
example, she pressed Higgins-Vogt to discuss gang activity
in the Decatur area. More to the point here, Brown urged
Higgins-Vogt to discuss the precise location of the murder
weapon and the type of ammunition used. And after
Higgins-Vogt had maintained he did not know anything
about the Mars murder beyond the location of the murder
weapon, Brown pressed him to reveal more information,
strongly suggesting through her comments and questions
that Higgins-Vogt was not telling the whole story.
A week passed between the May 20 interview and
Higgins-Vogt’s next contact with law enforcement. The
record does not show whether Higgins-Vogt met with
Brown during this time. On May 27, Higgins-Vogt decided
he wanted to own up to killing Mars. He did so by
affirmatively flagging down Correctional Officer John
Mayer. Without warning or explanation, Higgins-Vogt told
Officer Mayer that he wanted to confess to a murder and
needed to speak to the police. Caught entirely off guard,
Officer Mayer—who had no familiarity with the case and
had never spoken with Higgins-Vogt about it—reacted by
No. 18-1528 7
asking Higgins-Vogt to fill out an inmate request form.
Higgins-Vogt did so, writing: “I want to confess to the Paige
Mars murder.” Officer Mayer then notified the command
office of this unexpected development. He also reached out
to Brown because he noticed Higgins-Vogt appeared
distraught and anxious.
When Brown arrived, Higgins-Vogt told her that he had
a conversation with his girlfriend earlier that day and she
admonished him that if he had murdered someone he
should feel terrible about himself and deserved to be held
accountable. Higgins-Vogt later described his discussion
with his girlfriend as “the straw that broke the camel’s
back,” leading him to confess to the murder.
Later that same day, Detective Patton arrived at the jail to
interview Higgins-Vogt a second time. The interview began
with Higgins-Vogt confirming that he knew his rights were
still in effect. He then explained that he wanted to confess to
the murder, stating that he could no longer live with it and
wanted to “do what’s right.” Higgins-Vogt also insisted that
he be able to tell his family and friends about his involve-
ment in the murder before it became public, and Patton
agreed. He then confessed in detail to killing Paige Mars.
Brown was once again present for the entire interview and at
times questioned Higgins-Vogt or commented on his state-
ments, including, for example, on his psychological state at
the time of the murder.
The next day Higgins-Vogt told his girlfriend that he had
murdered Mars. He explained that he could no longer “live
with it” and “had to come clean.” That same day Higgins-
Vogt called his mother and a family friend to tell them that
8 No. 18-1528
he had confessed to the murder of Mars. All of this was rec-
orded.
Higgins-Vogt was ultimately indicted federally, and his
state charges were dismissed. In federal court, Higgins-Vogt
moved to suppress the statements he made on May 20 and
May 27, arguing that his confessions were coerced by Brown,
who held herself out as a mental health professional and
pressured him to confess. The district court held a hearing at
which multiple witnesses testified, including Higgins-Vogt
and Brown. For his part, Higgins-Vogt testified that he
would not have confessed but for Brown’s pressure. For her
part, Brown acknowledged not only that one of her goals in
working with inmates was to get them to feel empathy for
their victims, but also that she considered it important that
police be appraised of criminal activity that she had learned
from inmates. But Brown denied any role in assisting law
enforcement and maintained that her goal in meeting with
Higgins-Vogt was to allow him to “heal and have peace.”
The district court denied Higgins-Vogt’s motion, finding
that his statements on May 20 and May 27 were voluntary.
Higgins-Vogt then pleaded guilty to committing and
conspiring to commit a Hobbs Act robbery (18 U.S.C.
§ 1951(a)), brandishing a firearm during the robbery (18
U.S.C. § 924(c)), and possessing a firearm as a previously-
convicted felon (18 U.S.C. § 922(g)). In doing so, he reserved
for appeal the district court’s denial of his motion to sup-
press. The district court subsequently sentenced Higgins-
Vogt to 60 years’ imprisonment.
No. 18-1528 9
II
On appeal Higgins-Vogt presents two arguments, both
related to the role that he contends Sharon Brown played in
encouraging him to confess to the murder. First, he argues
that Brown should have administered Miranda warnings and
her failure to do so tainted his confessions on May 20 and
May 27. Second, he argues that Brown, by holding herself
out as a mental health professional but then questioning him
during his interviews with the police, functioned as an agent
of law enforcement and coerced his confessions to the Mars
murder.
A
Higgins-Vogt’s argument that Brown was required to
administer Miranda warnings during their meetings is
straightforward and need not occupy us long. Miranda warn-
ings must be provided at the outset of any custodial interro-
gation by law enforcement. See United States v. Patterson, 826
F.3d 450, 454 (7th Cir. 2016). Imprisonment alone does not
establish custody for Miranda purposes. Howes v. Fields, 565
U.S. 499, 507 (2012). Rather, “custody” is a term of art “that
specifies circumstances that are thought generally to present
a serious danger of coercion.” Id. at 508–09. An individual
free to end the interrogation and leave is not in custody. Id.
at 509.
The record shows that Higgins-Vogt sought to meet with
Brown on his own initiative and by his own choice. It is
equally clear that he was free to end his discussions with her
at any time. In these circumstances, we cannot conclude
Higgins-Vogt was in custody within the meaning of Miranda.
Accordingly, the law did not require Brown to administer
10 No. 18-1528
Miranda warnings before accepting Higgins-Vogt’s invitation
to meet with him.
B
So we turn to the voluntariness of Higgins-Vogt’s confes-
sions to the police on May 20 and 27. The central question is
whether Brown, despite portraying herself as a mental
health counselor, acted as an agent of law enforcement and
imposed sufficient pressure on Higgins-Vogt to render his
May 20 and May 27 confessions the result of her coercion ra-
ther than the product of his own free will. We review the ul-
timate question of voluntariness de novo and the district
court’s embedded factual determinations for clear error. See
United States v. Villalpando, 588 F.3d 1124, 1127 (7th Cir.
2009).
A confession is voluntary if it is the product of a rational
intellect and free will and “not the result of physical abuse,
psychological intimidation, or deceptive interrogation tactics
that have overcome the defendantʹs free will.” Id. at 1128. In
assessing voluntariness, we consider the totality of the sur-
rounding circumstances and evaluate “both the characteris-
tics of the accused and the details of the interrogation.”
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973). Among
the factors to be considered is whether the defendant initiat-
ed contact with law enforcement. See United States v. Cahill,
920 F.2d 421, 427 (7th Cir. 1990).
In Colorado v. Connelly, the Supreme Court emphasized
that some form of overreaching by the state must be present
before a confession will be deemed involuntary: “[t]he most
outrageous behavior by a private party seeking to secure ev-
idence against a defendant does not make that evidence in-
No. 18-1528 11
admissible under the Due Process Clause.” 479 U.S. 157, 166
(1986). But the law does not require a badge and gun for
someone to function as an agent of law enforcement. The
state action inquiry is more practical, focusing on substance
more than form. See, e.g., United States v. D.F., 115 F.3d 413,
419–20 (7th Cir. 1997) (recognizing that the case did not in-
volve the “usual face-to-face confrontation between law en-
forcement officers and the defendant” but concluding that
staff at a county mental health facility acted as agents of law
enforcement).
Whether a private person acted as an agent of law en-
forcement turns on whether the government knew of and
acquiesced in the conduct at issue, whether the individual
sought to assist law enforcement, and whether the individu-
al performed the conduct at the request of the government.
See United States v. McAllister, 18 F.3d 1412, 1417–18 (7th Cir.
1994). In undertaking this inquiry, we are mindful that the
same individual can play more than one role and the subject
undergoing particular questioning may not appreciate the
duality of that role. A prime example came in Estelle v. Smith,
where the Supreme Court concluded that when a neutral
court-appointed psychiatrist went beyond reporting to the
court on the issue of the defendant’s competence and instead
testified for the prosecution “his role changed and became
essentially like that of an agent of the State recounting un-
warned statements.” 451 U.S. 454, 467 (1981).
We faced an analogous situation in D.F. There we ad-
dressed “whether, in the course of psychiatric treatment and
observation in a government mental health care facility,” a
juvenile defendant who confessed to murder was subject “to
the sort of questioning that reasonably contemplates the
12 No. 18-1528
possibility of government prosecution” such that the facility
staff should be considered agents of the state. 115 F.3d at
419. We held that the facility staff functioned as agents of
law enforcement in eliciting statements from the defendant
because the staff had a close relationship with protective
services, the court system, and the FBI, and “saw themselves
as an arm of law enforcement.” Id. at 420.
So, too, for Sharon Brown here. Her own testimony at the
suppression hearing makes clear that she acted with the
purpose of assisting law enforcement. Brown portrayed her
role at the jail as promoting the mental wellbeing of the in-
mates, but she also emphasized her goal of aiding in com-
munity safety and ensuring that victims of crimes got clo-
sure. She acted on the latter objective not only by encourag-
ing inmates to disclose their criminal conduct to law en-
forcement, but also, in this case, by attending and participat-
ing in police interviews.
The record shows that Brown’s participation bore fruit
for law enforcement: she helped to elicit incriminating
information from Higgins-Vogt, including, for example,
details about the murder weapon and ammunition as well as
gang activity in the local community—some of which she
had presumably learned in prior conversations with
Higgins-Vogt. Brown herself admitted as much by testifying
that she sought to help law enforcement by asking Higgins-
Vogt about gang activity because “I wanted him to
acknowledge the fact that there was gang activity that was
going on” and “wouldn’t want any gang-banger living next
to anyone and harming them.” On this record, we have little
difficulty concluding that Brown acted as an agent of law
enforcement.
No. 18-1528 13
It matters not that law enforcement never sought Brown’s
assistance in interviewing Higgins-Vogt. Detective Patton
and the State’s Attorney knew Brown was present, never
asked her to leave (to protect the full confidentiality of men-
tal health counseling provided to inmates), and indeed per-
mitted her to participate in the questioning. To be sure, the
record shows that Higgins-Vogt requested Brown’s presence
during the interviews. But that does not alter the fact that
law enforcement allowed Brown’s active participation in the
interviews, including by drawing out incriminating infor-
mation from Higgins-Vogt that she had learned in conversa-
tions she pledged were confidential. All of this was sufficient
to render her an agent of law enforcement.
The question then becomes whether Brown’s actions
amounted to coercion sufficient to overcome Higgins-Vogt’s
free will. The circumstances surrounding Higgins-Vogt’s
confessions point in both directions. While presenting her-
self as a mental health counselor, Brown was uniquely posi-
tioned to earn Higgins-Vogt’s trust and exert influence over
him. Her role became problematic once she began participat-
ing in the interviews with police without steadfastly honor-
ing her pledge of confidentiality. This risk was exacerbated
by Brown’s aim of helping Higgins-Vogt develop empathy
for his victim and her family, which she seemed to believe
warranted her urging Higgins-Vogt to reveal his conduct to
the police. Higgins-Vogt’s interactions with Brown, which he
understood to be confidential counseling sessions, combined
with her later participation in law enforcement interviews,
casts doubt on the voluntariness of Higgins-Vogt’s state-
ments. See D.F., 115 F.3d at 421 (concluding that the defend-
ant’s statements made to mental health center staff during
treatment were involuntary because the treatment was de-
14 No. 18-1528
signed to develop trust and encourage the defendant to dis-
cuss the crimes she had committed).
But Brown’s conduct alone tells nowhere near the whole
story. Weighing in the other direction are the many affirma-
tive steps Higgins-Vogt took on his own volition, the cumu-
lative weight of which show that his statements to law en-
forcement on May 20 and May 27 were knowing and volun-
tary. Higgins-Vogt was never required to meet with Brown;
he reached out to her on his own initiative and confessed to
murdering Mars. And in the intervening weeks between his
initial conversation with Brown and his subsequent inter-
views with law enforcement, Brown never spoke to the po-
lice or prosecutors about Higgins-Vogt. Rather, the inter-
views with law enforcement came only on Higgins-Vogt’s
own initiative.
On May 20, Higgins-Vogt asked Brown to contact
Detective Patton. The interview took place not in Brown’s
office but in a recorded interview room, after Higgins-Vogt
had waived his right to have an attorney present and
confirmed his desire to submit to an interview. This lies in
stark contrast to the statements at issue in D.F., which were
secured during the mental health treatment sessions
themselves. See 115 F.3d at 421. And while Brown did not
strictly maintain the confidentiality of her communications
with Higgins-Vogt, the information she alluded to during
the interview did not drive Higgins-Vogt to come clean
about the murder. Indeed, the May 20 interview concluded
with Higgins-Vogt sticking to his story that he knew nothing
about the Mars murder beyond the location of the murder
weapon. Although the May 20 interview presents a close
call, we cannot conclude that Brown coerced Higgins-Vogt
No. 18-1528 15
into divulging his knowledge about the location of the
murder weapon.
The circumstances surrounding Higgins-Vogt’s May 27
confession are more clear-cut. Every indication is that
Higgins-Vogt chose to confess on his own accord, following
a discussion earlier in the day with his girlfriend. At the
suppression hearing, Higgins-Vogt admitted that this
conversation was “the straw that broke the camel’s back.”
And there is no suggestion in the record that Brown added
any pressure or, for that matter, even spoke to Higgins-Vogt
the day he made the choice to approach the correctional
officer and tell him he wanted to confess to a murder. Before
Higgins-Vogt had any contact with law enforcement or
Brown, he was given an opportunity to revisit the question
and instead chose to complete the inmate request form,
affirmatively writing “I want to confess to the Paige Mars
murder.” And, at the outset of the May 27 interview,
Higgins-Vogt confirmed that he understood his rights and
wanted to provide additional information to the police. Only
then did Higgins-Vogt tell the officers that he killed Mars
and needed to get this information off his chest because he
could no longer live with keeping it to himself and not
owning up to what he did.
We also cannot conclude that Higgins-Vogt’s earlier con-
versations with Brown tainted his May 20 and May 27 con-
fessions. What transpired here is far afield from the facts in
Missouri v. Seibert, 542 U.S. 600 (2004). There the Supreme
Court disapproved of police officers questioning an individ-
ual without providing Miranda warnings and then immedi-
ately turning around and repeating the same interview after
16 No. 18-1528
providing the warnings—a two-step technique designed to
evade Miranda’s protections. See id. at 617.
Here, however, Brown was never required to provide
Miranda warnings to Higgins-Vogt during their initial,
voluntary meetings. Nor were those meetings so close in
time, context, and circumstance to the later police interviews
to support a conclusion that any coercion Brown may have
imposed spilled over to the later interviews. See Oregon v.
Elstad, 470 U.S. 298, 310 (1985). Even accepting that Higgins-
Vogt may have felt some pressure to confess to law
enforcement after choosing to divulge his crime to Brown, it
is not the case that “the psychological impact of voluntary
disclosure of a guilty secret qualifies as state compulsion.”
Id. at 312.
Finally, we see nothing in the record to support Higgins-
Vogt’s suggestion that Brown exacted coercion by making a
false promise of leniency to induce his confession. See
Villalpando, 588 F.3d at 1128. On this score, Higgins-Vogt
points to nothing beyond Brown’s telling him that he had a
psychological disorder that may ultimately allow him to
enter assisted living. But even accepting all of that as true
falls well short of demonstrating, as the law requires, that
Brown’s statements were tantamount to a promise that
compelled him to confess to the Mars murder.
Taken in their entirety, all of the facts and circumstances
show that Higgins-Vogt’s decision to confess was the prod-
uct of his own free will.
C
The criminal justice system did not see one of its finer
moments here. What most troubles us about the role Brown
No. 18-1528 17
played in the Macon County jail is the twofold reality that
her pledge of confidentiality to Higgins-Vogt meant very
little, yet nobody within the jail seemed to have any
awareness of what was transpiring under the guise of mental
health counseling. Nor can the police and prosecutors wash
their hands of the whole affair by pointing out that they
never recruited Brown to elicit a confession from Higgins-
Vogt, especially where they benefitted from Brown’s
presence at and participation in the interviews. The stakes
for those who stand accused are way too high for all of this
to have occurred, to say nothing of the imperative of
protecting the integrity of mental health counseling offered
to inmates.
Yet, however troubled we are by what occurred here, the
deliberate steps Higgins-Vogt undertook to confess to police
demonstrate an affirmative choice on his part and eliminate
any concern that his confessions were not entirely voluntary.
Accordingly, we AFFIRM.