Amended September 20, 2016 State of Iowa v. Justin Alexander Marshall

IN THE SUPREME COURT OF IOWA
No. 13–0739
Filed June 30, 2016
Amended September 20, 2016
STATE OF IOWA,
Appellee,
vs.
JUSTIN ALEXANDER MARSHALL,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Johnson County, Sean W.
McPartland, Judge.
The State seeks further review of a court of appeals decision
reversing the defendant’s conviction for murder in the first degree.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND
CASE REMANDED.
Kent A. Simmons, Bettendorf, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant
Attorney General, Janet Lyness, County Attorney, and Meredith Rich-
Chappel, Assistant County Attorney, for appellee.
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APPEL, Justice.
In this case, we consider whether the State violated Justin
Marshall’s right to counsel through the acquisition of evidence from
jailhouse informants. The district court rejected the claim, and a jury
convicted Marshall of first-degree murder. The court of appeals reversed,
holding the State had violated Marshall’s Sixth Amendment right to
counsel by using a jailhouse informant to obtain incriminating
information when Marshall was represented by counsel. Finding the
error was not harmless, the court of appeals reversed Marshall’s
conviction.
In light of the remand, the court of appeals also considered
whether the trial court’s instructions on aiding and abetting and joint
criminal conduct violated due process of law because the instructions
were not supported by substantial evidence. The court of appeals
rejected Marshall’s due process claim.
We granted further review. We retain discretion to consider all
issues raised in the original appeal or limit our opinion to selected
issues. Botsko v. Davenport Civil Rights Comm’n, 774 N.W.2d 841, 844
(Iowa 2009). In our discretion, we consider only Marshall’s right-to-
counsel challenge. The court of appeals ruling on the due process
challenge to jury instructions stands.
For the reasons expressed below, we affirm in part and vacate in
part the court of appeals decision, reverse the trial court ruling on the
violation of the right-to-counsel issue, and remand the matter for a new
trial.
I. Procedural and Factual Background.
A. Overview of the Crime. John Versypt was the landlord of the
Broadway Condominiums complex in Iowa City. On October 8, 2009,
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Versypt was shot while hanging a sign at the complex. He suffered two
gunshot wounds, one to his forehead and the other to his right hand,
along with other injuries. He was discovered by a tenant shortly after
being shot. On the ground near Versypt were a wallet, a gun, a few tools,
and the sign. Versypt died at the scene.
Charles Thompson and Marshall were both staying at an
apartment in the complex with Marshall’s aunt on the date of the
murder. In February 2010, the State originally charged Thompson 1 with
murder in connection with Versypt’s death. Police, however, soon came
to suspect Marshall in connection with the slaying. On July 12, 2011,
the lead detective on the case for the Iowa City police, Jennifer Clarahan,
swore out a complaint against Marshall for the murder. The complaint
was filed in Johnson County District Court the following day.
B. Meetings with Confidential Informants Prior to and After
Arrest of Marshall. On July 12, Detective Clarahan and Detective
Michael Smithey met with Carl Johnson, a federal prisoner, at the
Muscatine County Jail. They told Johnson they sought information on
Charles Thompson, Courtney White, and Justin Marshall in connection
with Versypt’s murder. At the time of the meeting, Marshall was at large
in Texas. When Marshall was arrested in Texas and brought to Iowa, he
was immediately sent to the Muscatine County Jail. Marshall was
charged with Versypt’s murder on August 1, 2011. Iowa City police had
subsequent contacts with Johnson and two other inmates—Earl
Freeman and Antonio Martin—at the Muscatine County Jail. All three
1Thompson’s trial in connection with Versypt’s murder ended in a mistrial. The
State declined to retry Thompson.
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inmates had obtained information about the crime from Marshall while
he was incarcerated in Muscatine.
C. Disclosure of Relationship with Confidential Informants. In
March 2012, the State identified the inmates as additional witnesses in
Marshall’s upcoming trial in a notice of additional testimony. The State
noted that Martin and Johnson were in “a cooperation agreement with
the United States Attorney for the Southern District of Iowa.” The
minutes, however, did not indicate any other relationship between the
three inmates and the State.
Marshall’s trial was scheduled to commence on January 22, 2013.
On January 17, Marshall’s counsel received an email from the State with
two letters from Freeman to Detectives Clarahan and Smithey dated
September 21 and October 26, 2011. In the September 21 letter from
Freeman to Detective Clarahan, Freeman stated that he was in the
cellblock with Marshall, that he could back up information the State had
been provided on Marshall, and that if Marshall were kept in the block
“we could get a lot more information.” The October 26 letter from
Freeman to Detectives Clarahan and Smithey asked, among other things,
that Detectives Clarahan and Smithey advise federal prosecutors and
Freeman’s attorney that “[Freeman] helped in [their] investigation and
prosecution of Justin Marshall.”
The trial began as scheduled. Freeman was deposed a second time
in the middle of the trial on the evening of January 31 to resolve an
unrelated matter. At this time, Marshall’s attorney received a letter
dated January 26, 2013, from the Johnson County Attorney to Richard
Westphal, a federal prosecutor in charge of handling Freeman’s pending
federal drug prosecution. In this letter, the county attorney explained in
detail how Freeman cooperated first with the trial of Thompson and then
5
with the trial of Marshall for the death of Versypt. The county attorney
stressed that, while Freeman’s information had been helpful regarding
the Thompson matter, it was also “extremely helpful” to the State in
Marshall’s prosecution. She closed by requesting that Freeman receive a
reduction in his federal sentence because of his assistance in both the
Thompson and Marshall cases.
D. Trial Testimony and Midtrial Motion to Suppress.
1. Opening trial testimony of Detective Smithey. Detective Smithey
was called as a witness at Marshall’s trial. He described that pursuant
to a cooperation agreement, a federal defendant could get a reduction in
his or her sentence for providing information. Such a reduction would be
recommended by the United States Attorney and approved by a judge.
Detective Smithey testified that at the time of the July 12 meeting with
Johnson, Johnson had a cooperation agreement with the government.
Johnson had already pled guilty and was awaiting sentencing. Detective
Smithey testified that when the police interview someone in connection
with a cooperation agreement, they would not provide “specific
information about how [the informant] should gather information.”
Detective Smithey stated it was his understanding that providing specific
instructions “would be bypassing . . . certain rights that people have who
are incarcerated.”
Detective Smithey testified he told Johnson at the July 12 meeting
that the State was interested in information related to the Versypt
murder and particularly interested in information about Charles
Thompson, Justin Marshall, and Courtney White. He made no promises
regarding what Johnson would receive in exchange for the information,
but Johnson was aware or was made aware that the United States
Attorney would be advised of any information provided. Detective
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Smithey testified that, pursuant to the July 12 meeting, Johnson “was
trying to provide information that would be used to determine what
reduction [in sentence] he would receive.” He testified it was probably
reasonable to assume that Johnson would communicate the State’s
interest in Marshall to other cooperating witnesses.
2. Marshall’s midtrial motion to suppress. Marshall then made an
oral, midtrial motion to suppress the testimony of Johnson, Martin, and
Freeman. At a hearing on the motion, Marshall offered into evidence the
September 21, 2011, October 26, 2011, and January 26, 2013 letters.
Marshall maintained that Freeman, Johnson, and Martin “were engaged
in a pattern of seeking out Mr. Marshall [and] of working at the behest of
the police or agents of the State while Mr. Marshall was represented by
Counsel.” Marshall asked the court to prohibit the State from calling
Johnson, Martin, and Freeman to testify about Marshall’s conversations
with them because it would be an “end run around Mr. Marshall’s right
to have counsel present while agents of the State are questioning him.”
While Marshall’s counsel stated that he was challenging the testimony of
the three informants on grounds of Marshall’s right to counsel, he did
not explicitly mention either the Sixth Amendment of the United States
Constitution or article I, section 10 of the Iowa Constitution.
The district court took a recess, read the letters, and then
reconvened the hearing to ask Marshall and the State for relevant
authority. After the brief recess, the State cited Kuhlmann v. Wilson, 477
U.S. 436, 106 S. Ct. 2616, 91 L. Ed. 2d 364 (1986), and Moore v. United
States, 178 F.3d 994 (8th Cir. 1999), as standing for the proposition that
an “informant becomes a government agent only when the informant has
been instructed by the police to get information about the particular
7
defendant.” Marshall’s attorney did not offer caselaw. The State then
called Detectives Smithey and Clarahan as witnesses.
3. Testimony of Detective Smithey at midtrial hearing on motion to
suppress. Detective Smithey testified that he first met with Johnson on
things unrelated to the Versypt murder. He explained that on July 12,
2011, he had a meeting with Johnson, Johnson’s attorney, and Detective
Clarahan at the Muscatine County Jail “to do a proffer agreement” with
Johnson. Detective Smithey stated that the purpose of the meeting was
“[t]o find out if Carl Johnson had information about . . . the death of
John Versypt.” He stated that he did not request Johnson gather more
information, but that he “only requested that [Johnson] contact [him] if
he learned anything further.” Detective Smithey further stated that he
did not make any effort to have Marshall placed in a cell with anyone in
particular.
Detective Smithey testified that on September 12 Johnson’s
attorney informed him that Johnson now had information about the
Versypt murder. As a result, Detective Smithey and Johnson met on
September 15. At the meeting, Detective Smithey said Johnson told him
about statements made by Marshall while they were incarcerated in
segregation together at the Muscatine County Jail in August of 2011.
Detective Smithey repeated that he did not ask Johnson “to do anything
to try to obtain more information or any information” from Marshall
regarding Versypt’s death. Detective Smithey testified he told Johnson
“[o]nly to contact [him] if he learned anything.”
Detective Smithey further testified that he met with Freeman on
October 3 at the Muscatine County Jail to discuss what he had learned
about Marshall’s involvement in the Versypt murder. Detective Smithey
said that he did not ask Freeman to do anything further in the
8
investigation, only “to contact [the detective] if there was additional
information [Freeman] wished to relay.” Detective Smithey testified that
after speaking with Freeman he also met with Antonio Martin at the
Muscatine County Jail on October 3. According to Detective Smithey, he
happened to see Martin after completing his session with Freeman.
Detective Smithey stated he had previously done proffer interviews with
Martin on other matters. He further conceded that he “may have asked
[Martin] if he had any knowledge” of the Versypt murder during one of
the first proffers, but if so, it was a simple “do you know any information
about this?” Detective Smithey stated that he did nothing to put Martin
or Freeman “in the same vicinity” of the Muscatine County Jail with
Marshall. He testified he did not ask Freeman, Martin, or Johnson “to do
anything” to gather further information from Marshall.
4. Testimony of Detective Clarahan at midtrial hearing on motion to
suppress. Detective Clarahan also testified at the hearing on the motion
to suppress. Detective Clarahan said that she met with Johnson on
July 12, 2011. She stated she did not request Johnson to obtain
information from Marshall, nor did she hear anyone make such a
request. She also said that she had not arranged for Johnson to be
placed in the same cellblock as Marshall. Detective Clarahan confirmed
receipt of the two letters that Freeman had sent her. She also stated she
received a phone call from Freeman at home on October 1, 2011, during
which Freeman stated he had information about Versypt’s murder.
Detective Clarahan told the court she met with Freeman along with
Detective Smithey on October 3, but had not joined Detective Smithey
when he met with Martin. Detective Clarahan said she did not ask
Freeman to do anything on behalf of the State.
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At the motion to suppress, no party presented the testimony of
Freeman, Johnson, or Martin. Further, Marshall did not testify. As a
result, no evidence was offered at the motion to suppress regarding the
role or nature of the participation of each of the informants in the
communications between Marshall and the informants about the crime.
5. Ruling on the motion to suppress. After hearing the testimony of
Detectives Smithey and Clarahan, the district court overruled the motion
to suppress. The court recognized and the State conceded that
Marshall’s Sixth Amendment right to counsel had attached. The court
ruled, however, that in order to violate the Sixth Amendment right to
counsel, “[t]he defendant must demonstrate that the police and their
informant took some action beyond merely listening that was designed
deliberately to elicit incriminating remarks.” The court concluded that
the case “presents just the sort of luck or happenstance that resulted in
these gentlemen coming forward and providing information to the State.”
6. Freeman trial testimony. After ruling on the motion to suppress,
trial resumed. The three informants then testified on behalf of the State.
Freeman said that he first met Marshall when he was placed in the same
cellblock in the Muscatine County Jail. Freeman testified that Marshall
approached him, stating that he was not satisfied with his attorney, and
asked Freeman to help him draft a motion to appoint new counsel.
According to Freeman, inmates Antonio Martin and Richard Sandifer
sent Marshall to him. Freeman testified that Sandifer told Marshall that
Freeman had filed a motion for a different attorney and that the motion
had been granted. Freeman said that he did not know whether Johnson
was involved in sending Marshall to him.
Freeman stated that he wrote the motion for new counsel for
Marshall, which Marshall filed with the court. Freeman declared that
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Marshall told him about Charles Thompson being tried for Versypt’s
murder, that Thompson was “acquitted on a mistrial,” and that Marshall
wanted to see if he could get his charge dropped from murder to
manslaughter. Freeman testified that he and Marshall went over a paper
that contained a definition of manslaughter in Freeman’s cell. According
to Freeman, he told Marshall that Marshall would have to convince his
own lawyer that Versypt’s death was an accident for manslaughter to
work.
Freeman testified Marshall told him he intended to rob Versypt,
Versypt grabbed for the gun, the gun went off, and Versypt was shot in
the hand and in the head. Freeman recalled Marshall told him that
Versypt fell and that he wiped off the gun with the front of his jacket and
“took off.” According to Freeman, Marshall wanted him and another
inmate to go to their attorneys to “explain to them that Justin confessed
. . . to the shooting, but that it was an accident.” Freeman stated that he
told Marshall if he wanted to do that, he would need to write it down “so
all our stories would be the same.” Freeman testified, “[W]e all talked
about how he could try to convince his attorney that it was an accident.”
The prosecutor asked Freeman whether he in any way tried to
push Marshall to make admissions. Freeman responded,
I’d say yes. After he started to—admitting to doing it, yeah, I
would probably say, yeah, I did push him to tell me
information. . . . Once I realized that I thought he actually
did it, I was, you know, wanting to know what happened.
Freeman testified that he was in prison on a federal charge of conspiracy
to manufacture methamphetamine and that he had not been sentenced
when he contacted the detectives about Marshall in October 2011.
Freeman stated he did not have a cooperation agreement with the United
States Attorney, but Freeman had hoped to get “cooperation time off”
11
from his sentence for his testimony about the Versypt murder. Freeman
testified that he did not receive any reduction in his sentence because of
the information provided to the Iowa City police about Marshall. When
confronted with the January 26, 2013 letter from the Johnson County
Attorney to federal authorities, Freeman agreed that the letter might help
him get a reduction in his sentence in the future.
7. Johnson trial testimony. Johnson stated he had been living at
Broadway Condominiums when Versypt was murdered. Johnson said he
was acquainted with Marshall but they were not good friends. Johnson
testified he talked to Marshall about the murder once shortly after the
event, and Marshall indicated that “folks,” apparently meaning
Thompson, were responsible for the crime.
In the summer of 2011, Johnson stated he was in jail after
pleading guilty to a federal charge of distributing cocaine and had a
proffer agreement with the United States Attorney’s Office to assist in
other investigations. Johnson said he had provided such assistance to
police in about four other cases. Johnson stated he had testified against
his coconspirator. As part of his cooperation agreement, Johnson
testified that he met with Detective Smithey on July 12. At the July 12
meeting, Detective Smithey asked Johnson if he knew Marshall before
Johnson had been arrested.
Johnson testified that he was placed in segregation at the
Muscatine County Jail because of jailhouse rule violations. According to
Johnson, Marshall was also in segregation at that time, and over a ten-
day period, they interacted during their hour-a-day reprieve from solitary
confinement when they were permitted to leave their cells.
Johnson stated, “I asked him what was he in there for.” According
to Johnson, Marshall responded, “[T]hey got me for that landlord.” The
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State asked Johnson a series of questions limited to information that
Marshall told him about the crime. In response to the series of
questions, Johnson testified,
[H]e told me, he say that they didn’t have no evidence on him
and they didn’t have no witnesses. The only witnesses they
had was the police. . . . He told me that he—he left Iowa
City. He went to Burlington because the police kept
bothering him and other people was implicating his name in
a murder. . . . He said when the police came down there to
Burlington, harassing him, threatening him he wasn’t going
to see his family again if he didn’t tell them what happened,
he told me that’s when he knew they didn’t really have
evidence on him because they had previously before let him
go, so that’s why they left and went to Burlington.
. . . at first he said that they had nothing on him, and
then he said all they had was a little gun powder on him. . . .
He was looking at a lot of time. . . . He told me that him,
Weezy [Thompson], and Calvin was in the hallway, they was
all in the hallway playing dice. After a while Charles
Thompson left and went inside his apartment. That’s when
he came up with the idea that he wanted to rob the
landlord. . . . He say he wanted to rob the landlord because
he knows some people pay with money and some pay with
cash. . . .
He said, after Weezy went into the house, when he
came up with the idea, the robbery went wrong. . . . The
landlord got shot. . . . All he said was it was real—the shot
was loud. It was loud in the hallway, and that kind of froze
him up, and after that he ran out the back to get away from
the scene. . . . When he came back in the building, he was
knocking on the door, but he was whispering because he
didn’t want no one to know he was in the hallway. . . .
Charles Thompson’s trial was coming up, and he said he was
supposed to testify at his trial, and if he do, he was going to
say that he [Thompson] did it. . . . To shift the weight off
himself.
Although Johnson thus testified extensively and in considerable detail
about what Marshall said to him, the State did not ask, and Johnson did
not volunteer, what Johnson said in response to Marshall’s statements
or what his role was in the conversation after his initial inquiry.
13
Likewise, the defense did not ask about what Johnson said or did when
Marshall provided him with the information.
8. Martin trial testimony. Martin stated that he was serving a
federal sentence and entered into a plea and cooperation agreement in
February of 2011. After entering into the cooperation agreement, Martin
said that he had been interviewed twice regarding information he had
about drug cases. Martin said he testified against his cousin, a
codefendant in his own case. Martin claimed he did not know whether
he would get any kind of reduction for his testimony. After testifying
against his cousin, however, Martin stated that his sentence was reduced
from between twenty-seven and thirty-two years to twelve years and one
month.
Martin testified that he had not received a reduction for providing
information in the Marshall case and that he received no promises in
exchange for his testimony. Martin admitted, however, that he did hope
that he could receive a further reduction and that the United States
Attorney’s Office would ask the judge for a reduction.
Prior to his incarceration, Martin stated he lived in the Broadway
Condominiums neighborhood and knew Marshall and Thompson.
Martin testified his last communication with Marshall was around
September 2009.
After Marshall arrived at the Muscatine County Jail, Martin
testified that he was moved from one housing pod to the pod where
Marshall was incarcerated. When in the same housing pod, Martin
recalled that Marshall told him, “[T]hey got me on that BS, that
Broadway case, that Broadway murder case.” Martin further recalled
that later on, probably in September, Marshall told him “he didn’t have
nothing to do with it.” Martin told Marshall that he—Martin—was
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testifying against one of his codefendants. Martin remembered that they
had additional conversations about Marshall’s situation. As with
Johnson, the State asked Martin a series of questions about what
Marshall said to him. Martin testified Marshall told him that
the person’s—victim’s fingerprints was on the gun, that the
bullet went through his hand, through his face, and there
was a drill, a wallet and something else next to the body or
something that they found, and there was no money missing
out of the wallet . . . [h]e was saying it’s a robbery . . . .
Martin was next asked whether the two talked about Marshall
writing something down. Martin testified that they had discussions
about a lesser charge and that Marshall might confess and tell his side of
the story. Marshall asked Martin to get legal information for him
regarding the crimes of manslaughter and armed robbery. Martin
testified,
And I told him, you know, you might have to tell your side of
the story if you’re going to get a lesser charge. So he went to
write the story down, saying use me [Martin] as a jailhouse
snitch and I can get your story out and it might help both of
us. So he went and wrote it down and gave me what was his
version of what happened.
Martin repeatedly emphasized that he told Marshall, “I said that you
might have to tell—tell your side of the story, you know, your
involvement in it, you know, because they—they say one thing. You
might got to tell the truth of what really happened.”
Martin testified that Marshall told him information about the crime
for which Marshall was charged. According to Martin,
[H]e was giving me one account and he was saying that he
was going to take the gun to sell it to somebody and run
downstairs. Then . . . he started switching his story up, he
started saying that he was at—at Junior’s house playing a
game and got home. He was going to go downstairs to get
him something to eat, you know. He was just like arranging
his story. That’s when I told him just write it down.
15
Martin stated that Marshall provided him further details about the
crime:
He said he went downstairs and somebody came up behind
him saying something, coming, approaching him, and he got
scared and he turned around and pulled the gun from his
waistband. . . . He said it all happened so quick, you know.
The gun went off and he dropped it and picked it back up
and wiped it off and dropped it again and ran.
Martin testified that Marshall wrote down his story and that the plan was
“for [Martin] to take it to [his] lawyer . . . to get [Marshall’s] story out.”
Martin said that Marshall told him that he hoped that his story would get
him a lesser charge. Martin testified he began taking his own notes once
Marshall told him details of the crime to provide to his attorney. He then
set up a telephone meeting with his attorney on October 3 in a room set
up for prisoner conferences with attorneys. Martin stated he had with
him his notes about Marshall and Marshall’s notes about the crime.
During the conversation with his attorney, Detective Smithey entered the
room. Martin then told Detective Smithey that he “had some information
about the Broadway murder.” He showed Detective Smithey the yellow
legal pad with Marshall’s notes. When Detective Smithey asked if he
could take the yellow legal pad, Martin responded no because “[Marshall]
didn’t know [he] was talking to [Detective Smithey] about that, and it
wasn’t the plan to give it to [Detective Smithey] right then.” Instead,
Martin recalled, Detective Smithey made a copy and returned the yellow
legal pad to Martin.
Martin testified that he knew Johnson and Freeman. Although he
was housed with Johnson in the same pod for two or three weeks in
August of 2011, Martin denied ever talking with Johnson. Martin
admitted, however, that he and Freeman discussed what Marshall
should include in his written statement.
16
Through Martin, the State offered two exhibits purporting to be
Marshall’s handwritten notes into evidence. Along with other material in
the notes, Marshall provided Martin with a written description of the
events of October 8, 2011, in which Marshall claimed the shooting was
an accident. Marshall’s notes stated, “I gave up everything now you tell
me do the descriptions fit. I done told you the truth, now you telling me
that isn’t it.” The exhibit also contained a definition of ignorance or
mistake of law in what appeared to be Marshall’s handwriting. On cross-
examination, Martin admitted that Marshall sought information from
him about the legal definition of manslaughter. Martin repeated once
more that he “told [Marshall] to tell his side of the story.” Martin
acknowledged that the Johnson County Attorney could write a letter to
the United States Attorney and ask for a reduction in his sentence for
testifying against Marshall.
E. Verdict and Posttrial Motions. On February 7, 2013, the jury
found Marshall guilty of murder in the first degree. The verdict included
special interrogatories. No juror found Marshall guilty under the theory
of premeditation, willfulness, and deliberation. Seven jurors found
Marshall guilty under the theory of felony murder. Eleven jurors found
Marshall guilty under the theory of aiding and abetting. Two jurors
found Marshall guilty on the theory of joint criminal conduct.
On March 13, 2013, Marshall’s attorney filed a joint motion in
arrest of judgment and for a new trial. Marshall argued the prosecution
engaged in prejudicial misconduct by withholding the two letters that
Freeman sent to the detectives in September and October 2011, which
the defense only obtained in January 2013. This, the defense argued,
prevented Marshall from making an effective suppression motion by
requiring the suppression hearing to be conducted “ad-hoc, on the fly”
17
during trial. The district court denied the motion. On the issue of
prosecutorial misconduct, the court stated the defense was aware of the
testimony of the three jailhouse informants well in advance of trial. The
district court also found that the defense had not established a Massiah
violation. See Massiah v. United States, 377 U.S. 201, 207, 84 S. Ct.
1199, 1203, 12 L. Ed. 2d 246, 251 (1964). According to the district
court,
[T]he . . . Defendant had not established the informants were
government agents at the time the information was solicited,
a necessary requirement. . . . Rather, from the evidence in
the record, it appear[ed] the inmates collected information
prior to and without being approached by the police and
later turned it over to the officers.
Because the court concluded the inmates were not governmental agents
at the time they solicited information from Marshall, the court found he
was not entitled to a new trial.
F. Decision of Court of Appeals. Marshall filed a timely notice of
appeal, and we transferred the case to the court of appeals. The court of
appeals held that Johnson was acting as an agent of the State because
Detective Smithey asked Johnson to get information about Marshall’s
involvement in the Versypt murder on July 12, 2011, Johnson was being
“paid” in reduced prison time for the information as part of his proffer
agreement, and Detective Smithey “clearly . . . did not tell Johnson to be
a passive listener, nor did he communicate anything close to that.”
Therefore, the court held statements Marshall made to Johnson should
have been suppressed as violating Marshall’s Sixth Amendment right to
counsel. However, the court of appeals did not find that Freeman or
Martin were acting as agents of the State when they obtained information
from Marshall, and the suggestion that Johnson must have
18
communicated with Freeman or Martin about Marshall was not sufficient
to prove agency.
The court of appeals, noting that the State had not raised the issue
of harmless error, declined to engage in a sua sponte harmless-error
review because the harmlessness of the error was debatable. A
concurrence emphasized that the placement of Marshall, Freeman,
Johnson, and Martin in the Muscatine County Jail could hardly be
considered a coincidence. A dissent took a different approach. The
dissent focused on the question of deliberate elicitation. The dissent
found the defendant failed to provide proof on this issue. As a result, the
dissent argued that the trial court should be affirmed in all respects.
The State applied for further review, which we granted.
II. Standard of Review.
We review constitutional claims de novo. State v. Cox, 781 N.W.2d
757, 760 (Iowa 2010); State v. Wills, 696 N.W.2d 20, 22 (Iowa 2005).
On a motion to suppress evidence obtained in violation of a
defendant’s constitutional rights, the defendant generally has the burden
of proving the violation by a preponderance of the evidence. State v. Post,
286 N.W.2d 195, 201–02 (Iowa 1979); accord United States v. Johnson,
225 F. Supp. 2d 1022, 1036 (N.D. Iowa 2002), rev’d on other grounds,
352 F.3d 339, 344 (8th Cir. 2003). While the burden may shift to the
state in certain situations, when a defendant alleges that an agent of the
state violated his right to counsel the defendant must show that the
violation occurred. United States v. Henry, 447 U.S. 264, 277, 100 S. Ct.
2183, 2190, 65 L. Ed. 2d 115, 126 (1980) (Powell, J., concurring) (“To
demonstrate an infringement of the Sixth Amendment, a defendant must
show that the government engaged in conduct that, considering all of the
circumstances, is the functional equivalent of interrogation.”). But cf.
19
United States v. Johnson, 196 F. Supp. 2d 795, 841 (N.D. Iowa 2002),
rev’d on other grounds, 338 F.3d 918, 923 (8th Cir. 2003) (noting that the
defendant conceded that she bore the burden of proof, but suggesting
that there could be a distinction in who bears the burden of proof with
respect to a Massiah violation on direct appeal rather than in a habeas
action).
III. Preliminary Issue: Consideration of Trial Testimony on
Merits of Motion to Suppress.
As noted above, the informants did not testify at the midtrial
motion to suppress hearing, but did testify at trial. Evidence offered at
trial may be considered in reviewing the merits of a previously
determined motion to suppress. State v. Brooks, 760 N.W.2d 197, 203–
04 (Iowa 2009).
IV. Claimed Invasion of Right to Counsel Through Use of
Jailhouse Informant.
A. Introduction. Ours is an accusatorial, not an inquisitorial,
system of criminal justice. Rogers v. Richmond, 365 U.S. 534, 541, 81
S. Ct. 735, 739, 5 L. Ed. 2d 760, 766 (1961). A defendant’s right to
effective assistance of counsel is critical to the fairness of the
proceedings. See Maine v. Moulton, 474 U.S. 159, 170–71, 106 S. Ct.
477, 484, 88 L. Ed. 2d 481, 492–93 (1985). As noted in Henry, “[I]f the
Sixth Amendment ‘is to have any efficacy it must apply to indirect and
surreptitious interrogations as well as those conducted in the
jailhouse.’ ” 447 U.S. at 273, 100 S. Ct. at 2188, 65 L. Ed. 2d at 124
(quoting Massiah, 377 U.S. at 206, 84 S. Ct. at 1203, 12 L. Ed. 2d at
250).
The use of jailhouse informants to obtain information from
defendants represented by counsel is problematic for a number of
20
reasons. As noted by the United States Supreme Court, the jailhouse is
an unusual environment where a sense of camaraderie can mask real
interests, where defendants may be particularly vulnerable, and where
scheming and bravado are higher on the hierarchy of values than
reporting the truth. See Illinois v. Perkins, 496 U.S. 292, 303, 110 S. Ct.
2394, 2400, 110 L. Ed. 2d 243, 255 (1990) (Brennan, J., concurring);
Henry, 447 U.S. at 274, 100 S. Ct. at 2188–89, 65 L. Ed. 2d at 124
(“[T]he mere fact of custody imposes pressures on the accused;
confinement may bring into play subtle influences that will make [the
defendant] particularly susceptible to the ploys of undercover
Government agents.”).
Further, the use of jailhouse informants who stand to benefit—
sometimes substantially—for providing evidence against a defendant
raises substantial questions of reliability. The Supreme Court noted over
fifty years ago that “[t]he use of informers, accessories, accomplices, false
friends, or any of the other betrayals which are ‘dirty business’ may raise
serious questions of credibility.” On Lee v. United States, 343 U.S. 747,
757, 72 S. Ct. 967, 973, 96 L. Ed. 1270, 1277 (1952). On the question of
jailhouse informers particularly, the United States Court of Appeals for
the Fifth Circuit has observed that “[i]t is difficult to imagine a greater
motivation to lie than the inducement of a reduced sentence.” United
States v. Cervantes-Pacheco, 826 F.2d 310, 315 (5th Cir. 1987). More
recently, the Fourth Circuit has observed that use of jailhouse
informants is a “fertile field[] from which truth-bending or even perjury
could grow.” United States v. Levenite, 277 F.3d 454, 461 (4th Cir.
2002); see also United States v. Bernal-Obeso, 989 F.2d 331, 334 (9th
Cir. 1993); Cervantes-Pacheco, 826 F.2d at 315; United States v.
Meinster, 619 F.2d 1041, 1045 (4th Cir. 1980); Russell D. Covey,
21
Abolishing Jailhouse Snitch Testimony, 49 Wake Forest L. Rev. 1375,
1380 (2014) [hereinafter Covey].
As the recent work of the Innocence Project demonstrates,
jailhouse informants have played a significant role in convicting innocent
persons. According to one study of persons exonerated by DNA evidence,
false informant testimony supported the wrongful conviction in twenty-
one percent of the cases. See Jim Dwyer, Peter Neufield, & Barry
Scheck, Actual Innocence: Five Days to Execution and Other Dispatches
from the Wrongly Convicted 246 (2000); see generally Covey, 49 Wake
Forest L. Rev. at 1378. The reliability problems associated with
informants poses a particular problem as they are often utilized in cases
where the state has little direct evidence. Covey, 49 Wake Forest L. Rev.
at 1418.
With respect to the potential lack of reliability of informants, the
Supreme Court has responded by relying primarily on effective cross-
examination of informants. Hoffa v. United States, 385 U.S. 293, 311, 87
S. Ct. 408, 418, 17 L. Ed. 2d 374, 387 (1966). In order to provide the
defendant with effective means of cross-examination, the state has a
duty to disclose the fact that informants are working for the state. See
Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 766, 31
L. Ed. 2d 104, 108 (1972) (holding prosecutor had the duty to disclose to
the defense a promise of leniency given to a key witness); Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196–97, 10 L. Ed. 2d 215,
218 (1963) (holding suppressing evidence favorable to the defense
violates due process).
Finally, the use of jailhouse informants undercuts the role of
counsel as serving as a medium between the defendant and the state.
Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496. Many
22
defendants have undue confidence in their ability to game the system
that would be tempered by effective counsel. In addition, counsel can
assist the defendant in developing an effective defense that may be
impaired by ill-considered and imprecise statements made in the
freewheeling jailhouse environment. See generally James J. Tomkovicz,
An Adversary System Defense of the Right to Counsel Against Informants:
Truth, Fair Play, and the Massiah Doctrine, 22 U.C. Davis L. Rev. 1, 39–62
(1988) [hereinafter Tomkovicz, Adversary System]; James J. Tomkovicz,
The Massiah Right to Exclusion: Constitutional Premises and Doctrinal
Implications, 67 N.C. L. Rev. 751, 766–67 (1989).
On the other hand, the state is not deprived of evidence because
the defendant, acting on his own, has exercised poor judgment. The law
books are packed with occasions in which the defendant has been
apprehended primarily because of his or her own mistakes that, in
hindsight, are quite remarkable. As noted in State v. Leopardi,
it is no more unfair to use the evidence [the defendant]
exposed through his lack of guile than it is to turn against
[the defendant] clues at the scene of the crime that a
brighter, better informed, or more gifted criminal would have
hidden.
701 A.2d 952, 956 (N.J. Super. Ct. App. Div. 1997). Where a defendant
unwisely spills his guts in the presence of a third party who simply
serves as a passive listener to a heartfelt confession, literally does
nothing to elicit the statement, and was simply in the right place at the
right time, there is very little rationale for suppressing the evidence on
right to counsel grounds. See Kuhlmann, 477 U.S. at 459, 106 S. Ct. at
2630, 91 L. Ed. 2d at 384–85. The state should not be prohibited from
using evidence it discovers “by luck or happenstance.” Moulton, 474 U.S.
at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496.
23
Finally, there are questions of proof. As one authority has stated,
“[i]n-custody confessions are often easy to allege and difficult, if not
impossible, to disprove.” Fred Kaufman, Report of the Kaufman
Commission on Proceedings Involving Guy Paul Morin (Robert N. Moles,
ed. Mar. 1998), http://netk.net.au/Canada/Morin22.asp; see also Fred
Kaufman, The Commission on Proceedings Involving Guy Paul Morin:
Executive Summary 9–14 (1998), http://www.attorneygeneral.jus.gov.on.
ca/english/about/pubs/morin/morin_esumm.pdf; Covey, 49 Wake
Forest L. Rev. at 1380. The problem of proof, along with questions of
reliability, have given rise to requiring some corroboration of jailhouse
informant testimony to support a conviction in at least eighteen states.
Covey, 49 Wake Forest L. Rev. at 1416–20 (describing the various states’
corroboration requirements); see Am. Bar Ass’n Section of Criminal
Justice, Report to the House of Delegates 1, 6–7 & n.16 (Feb. 2005)
http://www.americanbar.org/content/dam/aba/publishing/criminal_ju
stice_section_newsletter/crimjust_policy_my05108b.authcheckdam.pdf.
B. Positions of the Parties. Marshall argues the record
establishes that the State violated Massiah by employing informants to
violate his right to counsel. He stresses that Johnson was operating
under a proffer agreement, that the State conceded Johnson was trying
to provide information that would be used to determine what reduction
in sentence he would receive, and that the State provided Johnson with a
list of suspects. Marshall notes that Johnson initiated the conversation
about the crime when Johnson “asked him what was he in . . . for.”
According to Marshall, Johnson was “deputized” to provide incriminating
information on him.
With respect to Martin and Freeman, Marshall recognizes that it is
less clear that they were serving as agents of the State at the time they
24
received incriminating information from Marshall. Marshall argues,
however, that the State “must have known” that Johnson would pass on
the State’s interest in him to Johnson’s coconspirator and coinformant,
Martin, who was also incarcerated at the Muscatine County Jail and had
provided information to Detective Smithey in the past under a
cooperation agreement. Marshall points out that Detective Smithey
testified that it was probably reasonable to assume that Johnson was
going to pass the information request on to Martin. Marshall finds it an
extraordinary coincidence that after Detective Smithey met with Johnson
on October 3 he happened to run into Martin, who also happened to
have extensive notes on a legal pad written by Marshall.
Marshall asserts that Martin lied at trial by stating that he did not
know Detective Smithey prior to providing information on Marshall when,
in fact, Detective Smithey was well acquainted with Martin. Detective
Smithey testified that he had interviewed Martin in connection with
Martin’s proffer agreement “on several occasions, two or more . . . prior
to that date.” Freeman, in turn, was enlisted by Martin. Marshall notes
that Freeman testified that Martin and another inmate named Sandifer
sent Marshall to him. Freeman and Martin then extensively infiltrated
Marshall and his lawyer’s attorney–client relationship by providing what
amounted to legal advice on how to prepare his defense and how to
present it to Marshall’s lawyer.
Marshall asserts that under Massiah and its progeny there is no
requirement that Johnson be given specific instruction regarding how to
obtain information. He notes that in Henry, the informant was
specifically told not to initiate any conversations. See 447 U.S. at 266,
100 S. Ct. at 2184–85, 65 L. Ed. 2d at 119. Yet the Henry Court found a
Massiah violation because the state “must have known” that the
25
informant would initiate conversations in light of the incentives to obtain
the information. Id. at 271, 100 S. Ct. at 2187, 65 L. Ed. 2d at 122.
Marshall claims these principles were reaffirmed in Moulton. See 474
U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496.
Marshall then addresses the most recent United States Supreme
Court case, Kuhlmann. Marshall contends that in Kuhlmann, the
Supreme Court “fudged” when it stated that the only remark made by the
informant was that Kuhlmann’s position on the crimes “didn’t sound too
good.” 477 U.S. at 460, 106 S. Ct. at 2630, 91 L. Ed. 2d at 385.
Marshall points out that the informant in Kuhlmann in fact said that the
defendant “better come up with a better story than that,” a fact noted in
a footnote and then disregarded in Kuhlmann. Id. at 440 n.1, 106 S. Ct.
at 2619 n.1, 91 L. Ed. 2d at 372 n.1. Marshall cites Justice Brennan’s
dissent in Kuhlmann, which stressed the failure of the majority to
consider the full facts, including the statement cited by Marshall and the
fact that the informant was placed in a jail cell with the defendant with a
view of the scene of the crime. Id. at 473, 106 S. Ct. at 2637, 91
L. Ed. 2d at 393–94 (Brennan, J., dissenting). The bottom line for
Marshall is that he was surrounded by a “tangled web” of informers and
that the incriminating statements made to them should be suppressed
under Massiah and its progeny.
The State responds by asserting that the evidence in the case does
not establish that the informants were acting as government agents and
does not establish that they deliberately elicited the incriminating
statements from Marshall. On the question of agency, the State—citing
Moore and other cases—asserts that there must be instructions to seek
information about a “particular defendant.” Moore, 178 F.3d at 999
(quoting United States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997)). In
26
Henry, according to the State, the informant was acting on instructions
from the police. See 447 U.S. at 271, 100 S. Ct. at 2187, 65 L. Ed. 2d at
122. Since the record is devoid of such instruction, neither Johnson,
Martin, nor Freeman, according to the State, were agents. In addition,
there was no promise of pay for successfully obtaining information.
Therefore, according to the State, Johnson, Freeman, and Martin cannot
be considered agents of the State.
The State challenges Marshall’s argument that the State “must
have known” that Johnson would tell others, including Freeman and
Martin, about the State’s interest in information about the Versypt
murder. The State emphasizes that Johnson testified that he never
talked with Martin about Marshall, and Freeman testified that he never
spoke with Johnson about the Marshall matter. The State also argued
that Marshall failed to show “deliberate elicitation” under Kuhlmann.
According to the State, the record shows that the informants were acting
as “listening posts” under Kuhlmann. 477 U.S. at 456 & n.19, 106 S. Ct.
at 2628 & n.19, 91 L. Ed. 2d at 382 & n.19 (majority opinion). Noting
that under Kuhlmann, the “primary concern of the Massiah line of
decisions is secret interrogation by investigatory techniques that are the
equivalent of direct police interrogation,” id. at 459, 106 S. Ct. at 2630,
91 L. Ed. 2d at 384, the State argues that the defendant has failed to
show deliberate elicitation.
In the alternative, the State argues that some of the interactions
between the State and Johnson occurred before Johnson’s Sixth
Amendment rights attached. Yet the State acknowledges that in the
proceedings below, the county attorney agreed with the district court
that the right had attached prior to the time when the informants
interacted with the defendants.
27
C. United States Supreme Court’s Approach to the Use of
Government Informants Against Defendants Represented by
Counsel. There are four important United States Supreme Court cases
that establish a general framework for determining when the use of
government informants violates the accused’s Sixth Amendment right to
counsel. The first case is Massiah, 377 U.S. at 201, 84 S. Ct. at 1199,
12 L. Ed. 2d at 246. In Massiah, the Supreme Court considered a case
where a government agent deliberately elicited information from a
criminal defendant. Id. at 203–04, 84 S. Ct. at 1201, 12 L. Ed. 2d at
249. A confederate of a defendant—who was on bail and had obtained
legal representation—agreed to allow federal authorities to place a radio
transmitter in the front seat of his car. Id. at 202–03, 84 S. Ct. at 1201,
12 L. Ed. 2d at 248. Federal authorities sat in a car down the street and
listened to the conversation between the confederate and the defendant.
Id. at 203, 84 S. Ct. at 1201, 12 L. Ed. 2d at 248–49. The defendant
“made several incriminating statements during the course of the
conversation.” Id. at 203, 84 S. Ct. at 1201, 12 L. Ed. 2d at 249. These
incriminating conversations were introduced into evidence at trial. Id.
The Supreme Court held that the incriminating conversations were
inadmissible. Id. at 207, 84 S. Ct. at 1203, 12 L. Ed. 2d at 251.
According to the Court, the defendant was denied the basic protections of
the Sixth Amendment right to counsel by use 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.” Id. at 206, 84
S. Ct. at 1203, 12 L. Ed. 2d at 250.
After Massiah, the Supreme Court decided Henry, 447 U.S. at 264,
100 S. Ct. at 2183, 65 L. Ed. 2d at 115. In that case, the informant
Nichols advised an FBI agent that he had been placed in the same
28
cellblock as the defendant Henry, who had been accused of participating
in a bank robbery. Id. at 266, 100 S. Ct. at 2184, 65 L. Ed. 2d at 119.
After Nichols was released from jail, Nichols told the FBI agent that “he
and Henry had engaged in conversation and that Henry told him about
the robbery.” Id. at 266, 100 S. Ct. at 2185, 65 L. Ed. 2d at 119.
At trial, Nichols testified that he had “an opportunity to have some
conversations with Mr. Henry while he was in the jail” and that Henry
had told him that he had participated in the robbery. Id. at 267, 100
S. Ct. at 2185, 65 L. Ed. 2d at 120. After the evidence was admitted and
the defendant convicted, an appellate court reversed and remanded for
an evidentiary inquiry into “whether the witness . . . was acting as a
government agent during his interviews with Henry.” Id. at 268, 100
S. Ct. at 2185, 65 L. Ed. 2d at 120. At the subsequent evidentiary
hearing, the FBI agent submitted an affidavit which stated,
I recall telling Nichols at this time to be alert to any
statements made by these individuals [the federal prisoners]
regarding the charges against them. I specifically recall
telling Nichols that he was not to question Henry or these
individuals about the charges against them, however, if they
engaged him in conversation or talked in front of him, he
was requested to pay attention to their statements.
Id. at 268, 100 S. Ct. at 2186, 65 L. Ed. 2d at 121. In addition, the FBI
agent’s affidavit also stated that he never requested anyone to place
Nichols in the same cell with Henry. Id. The district court affirmed
Henry’s conviction. Id. The court of appeals reversed, indicating that “by
general conversation . . . Nichols had developed a relationship of trust
and confidence with Henry such that Henry revealed incriminating
information.” Id. at 269, 100 S. Ct. at 2186, 65 L. Ed. 2d at 121.
Citing Massiah, the Court focused on the question of whether the
government deliberately elicited incriminatory statements from the
29
defendant. Id. at 270, 100 S. Ct. at 2186, 65 L. Ed. 2d at 122. In finding
deliberate elicitation, the Henry Court cited three facts. Id. First,
Nichols was acting under government instructions as a paid informant.
Id. at 270, 100 S. Ct. at 2186–87, 65 L. Ed. 2d at 122. Second, Nichols
appeared to be no more than a fellow inmate of Henry. Id. at 270, 100
S. Ct. at 2187, 65 L. Ed. 2d at 122. Third, “Henry was in custody and
under indictment at the time he was engaged in conversations by
Nichols.” Id. The Henry Court also noted that Nichols was operating on
a contingency-fee arrangement. Id. The Court concluded, “Even if the
agent’s statement that he did not intend that Nichols would take
affirmative steps to secure incriminating information is accepted, he
must have known that such propinquity likely would lead to that result.”
Id. at 271, 100 S. Ct. at 2187, 65 L. Ed. 2d at 122. The Henry Court also
rejected the government’s defense that the agents instructed Nichols not
to question Henry about the robbery. Id. at 271, 100 S. Ct. at 2187, 65
L. Ed. 2d at 122–23. The Court noted, “Nichols was not a passive
listener; rather, he had ‘some conversations with Mr. Henry’ while he was
in jail and Henry’s incriminatory statements were ‘the product of this
conversation.’ ” Id.
The Henry Court further noted that no inquiry was made in
Massiah “as to whether Massiah or his codefendant first raised the
subject of the crime under investigation.” Id. at 271–72, 100 S. Ct. at
2187, 65 L. Ed. 2d at 123. The Court emphasized that conversations
with a fellow inmate who is acting as a government informant “may elicit
information that an accused would not intentionally reveal to persons
known to be Government agents.” Id. at 273, 100 S. Ct. at 2188, 65
L. Ed. 2d at 124. What the police must not do, according to Henry, is
engage in deliberate elicitation, which the Court defined as “intentionally
30
creating a situation likely to induce [a person] to make incriminating
statements without the assistance of counsel.” Id. at 274, 100 S. Ct. at
2189, 65 L. Ed. 2d at 125 (emphasis added).
The Court did not provide a precise formula for determining when
“a situation” likely to induce a person to make incriminating statements
without the assistance of counsel is present. Henry, however, cited three
factors: (1) the informant acted under instructions as a paid informant
for the government, (2) the informant appeared to be just another
inmate, and (3) the defendant was in custody and under indictment at
the time the informant engaged him in conversation. Id. at 270, 100
S. Ct. at 2186–87, 65 L. Ed. 2d at 122. The Henry Court seemed to
emphasize the fact that Nichols and Henry shared facilities and that
Nichols had ingratiated himself through his “conduct and apparent
status as a person sharing a common plight.” Id. at 274, 100 S. Ct. at
2189, 65 L. Ed. 2d at 124. Yet the Court explicitly left open the question
of whether there can be deliberate elicitation when the government
informer, though planted, is wholly passive. Id. at 271 n.9, 100 S. Ct. at
2187 n.9, 65 L. Ed. 2d at 123 n.9.
While five members joined the majority opinion, Justice Powell
wrote a concurring opinion in Henry. Justice Powell emphasized that
Massiah requires deliberate elicitation. Id. at 275, 100 S. Ct. at 2189, 65
L. Ed. 2d at 125 (Powell, J., concurring). Justice Powell stressed that
Massiah did not apply to passive listening devices that merely collect, but
do not induce, incriminating statements. Id. at 276, 100 S. Ct. at 2190,
65 L. Ed. 2d at 126. Justice Powell further stated that “the mere
presence of a jailhouse informant who had been instructed to overhear
conversations and to engage a criminal defendant in some conversations
would not necessarily be unconstitutional.” Id.
31
In Moulton, an informant met with the defendant—his
accomplice—and repeatedly asked the defendant to remind him of the
details of the crime and encouraged the defendant to describe his plan
for killing witnesses. 474 U.S. at 165–66, 106 S. Ct. at 481–82, 88
L. Ed. 2d at 489. The Court explained that the informant engaging the
defendant in active conversation about the upcoming trial was virtually
certain to elicit incriminating statements. Id. at 177 n.13, 106 S. Ct. at
487 n.13, 88 L. Ed. 2d at 496 n.13. The Moulton Court emphasized
“[t]he Sixth Amendment also imposes on the State an affirmative
obligation to respect and preserve the accused’s choice to seek [the
assistance of counsel].” Id. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at
492. The Court also acknowledged that “[d]irect proof of the State’s
knowledge will seldom be available to the accused.” Id. at 176 n.12, 106
S. Ct. at 487 n.12, 88 L. Ed. 2d at 496 n.12.
In Kuhlmann, the Supreme Court considered a second federal
habeas corpus petition brought by a state prisoner who claimed a
Massiah violation. 477 U.S. at 438, 441, 106 S. Ct. at 2619–20, 91
L. Ed. 2d at 371–73. The defendant Wilson was accused of robbery and
murder in connection with a robbery of a taxicab garage that led to the
death of a night dispatcher. Id. at 438–39, 106 S. Ct. at 2619, 91
L. Ed. 2d at 371. After arraignment, Wilson was incarcerated in the
Bronx House of Detention. Id. at 439, 106 S. Ct. at 2619, 91 L. Ed. 2d at
371. Unbeknownst to Wilson, a detective had obtained an agreement
from Lee, Wilson’s cellmate, to be an informant. Id. The government
wanted to learn who participated in the crime with Wilson. Id. at 439,
106 S. Ct. at 2619, 91 L. Ed. 2d at 371–72. The Kuhlmann Court noted
that Lee was instructed simply to “keep his ears open” for the names of
persons who participated in the crimes with Wilson. Id. at 439, 106
32
S. Ct. at 2619, 91 L. Ed. 2d at 372. When Wilson observed that their cell
had a view of the taxicab garage where the crimes occurred, he declared,
“someone’s messing with me,” and narrated his version of events that he
had already told police. Lee responded that his explanation “didn’t
sound too good.” Id. at 439–40, 106 S. Ct. at 2619, 91 L. Ed. 2d at 372.
Later, Wilson changed his story, admitting that he and two others had
committed the robbery and murdered the dispatcher. Id. at 440, 106
S. Ct. at 2619–20, 91 L. Ed. 2d at 372.
At a hearing in the original state court proceeding, the detective
and Lee testified. Id. at 440, 106 S. Ct. at 2620, 91 L. Ed. 2d at 372.
The detective testified that he had instructed Lee “to ask no questions”
about the crime “but merely . . . listen” to what Wilson might say about
the crime. Id. After hearing from Lee, the state trial court found, as a
matter of fact, that Lee obeyed his instructions and only listened and
made notes regarding what Wilson had to say. Id. The state trial court
found respondent’s statements were spontaneous and unsolicited. Id.
After Wilson lost the appeal, he filed his first federal habeas corpus
petition challenging the introduction of Lee’s testimony on Massiah
grounds. Id. at 441, 106 S. Ct. at 2620, 91 L. Ed. 2d at 372–73. The
federal court denied relief and a divided court of appeals affirmed. Id. at
441, 106 S. Ct. at 2620, 91 L. Ed. 2d at 373; see Wilson v. Henderson,
584 F.2d 1185, 1192 (2d Cir. 1978).
After the Supreme Court decided Henry, however, Wilson filed a
motion to vacate his conviction in state court. Kuhlmann, 477 U.S. at
442, 106 S. Ct. at 2620–21, 91 L. Ed. 2d at 373. The state court denied
relief on the ground that Henry was factually distinguishable and that
under state law Henry was not retroactive. Id. at 442, 106 S. Ct. at
2621, 91 L. Ed. 2d at 373. Wilson then filed his second federal habeas
33
corpus petition, arguing that Henry enunciated a new rule of law that
should be retroactively applied to his case. Id. The federal district court
again denied relief. Id. at 442, 106 S. Ct. at 2621, 91 L. Ed. 2d at 373–
74. The federal district court noted that the state trial court’s findings of
fact were presumptively correct in a federal habeas corpus proceeding
and were fully supported by the record. Id. at 443, 106 S. Ct. at 2621,
91 L. Ed. 2d at 374. The federal court emphasized that under the facts
as found by the state court, Lee made “no affirmative effort” of any kind
“to elicit information” from the respondent. Id.
Wilson appealed and another divided panel of the Second Circuit
reversed. Id.; see Wilson v. Henderson, 742 F.2d 741, 745 (2d Cir. 1984).
Among other things, the majority found that the facts of the case were
indistinguishable from Henry and that Henry was fully applicable
because it did not announce a new constitutional rule but merely applied
settled principles to new facts. Kuhlmann, 477 U.S. at 443, 106 S. Ct. at
2621, 91 L. Ed. 2d at 374 (citing Wilson, 742 F.2d at 746–47). The
Supreme Court granted certiorari. Id. at 444, 106 S. Ct. at 2621, 91
L. Ed. 2d at 374.
In Kuhlmann, the majority concluded that there was no Massiah
violation. Id. The Kuhlmann majority noted that in Henry the informant
“developed a relationship of trust and confidence with [the defendant]
such that [the defendant] revealed incriminating information.” Id. at
458, 106 S. Ct. at 2629, 91 L. Ed. 2d at 383–84 (quoting Henry, 447 U.S.
at 269, 100 S. Ct. at 2186, 65 L. Ed. 2d at 121). The Kuhlmann Court
further noted that in Henry the informant had stimulated conversations
with the defendant in order to elicit incriminating information. Id. at
458, 106 S. Ct. at 2629, 91 L. Ed. 2d at 384. The Kuhlmann majority
emphasized that the defendant must demonstrate that “police and their
34
informant took some action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks.” Id. at 459, 106 S. Ct. at
2630, 91 L. Ed. 2d at 384–85.
The Court also emphasized that “the primary concern of the
Massiah line of decisions is secret interrogation by investigatory
techniques that are the equivalent of direct police interrogation.” Id. at
459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384–85. Because in Kuhlmann
the police deliberately placed the informant in the cell with the
defendant, the Kuhlmann majority appeared to answer the question
posed in a footnote in Henry—namely, whether mere placement of an
informant alone in a cell with the defendant was enough to give rise to a
Sixth Amendment violation. Id. at 456, 106 S. Ct. at 2628, 91 L. Ed. 2d
at 382–83.
The Kuhlmann Court then considered whether there was deliberate
elicitation under the circumstances of the case. Id. at 460–61, 106 S. Ct.
at 2630–31, 91 L. Ed. 2d at 385. The Court found that the Second
Circuit failed to give appropriate deference in the federal habeas corpus
proceeding to the factual findings of the state court. Id. at 459, 106
S. Ct. at 2630, 91 L. Ed. 2d at 385. The Court noted that the state court
found the detective had instructed Lee “only to listen” to Wilson and that
respondent’s comments were spontaneous and unsolicited. Id. at 460,
106 S. Ct. at 2630, 91 L. Ed. 2d at 385. The Kuhlmann majority found
that these state court findings were entitled to a presumption of
correctness under 28 U.S.C. § 2254(d). Id. at 459, 106 S. Ct. at 2630, 91
L. Ed. 2d at 385. The Court found that the Second Circuit had revised
some of the trial court’s findings and that its conclusions were at odds
with the factual findings of the state court. Id. at 460, 106 S. Ct. at
2630, 91 L. Ed. 2d at 385.
35
Justice Brennan, along with Justices Marshall and Stevens,
dissented. Id. at 461, 106 S. Ct. at 2631, 91 L. Ed. 2d at 386 (Brennan,
J., dissenting); id. at 476, 106 S. Ct. at 2639, 91 L. Ed. 2d at 396
(Stevens, J., dissenting). According to Justice Brennan, the Court in
Henry found incriminating statements were deliberately elicited when a
jailhouse informant followed instructions to obtain information without
directly questioning Henry and without initiating conversations
concerning the charges pending against Henry. Id. at 474, 106 S. Ct. at
2637–38, 91 L. Ed. 2d at 394 (Brennan, J., dissenting). Justice Brennan
noted that in Henry, it was irrelevant that the informant asked pointed
questions about the crime or “merely engage[d] in general conversation
about it.” Id. at 474, 106 S. Ct. at 2638, 91 L. Ed. 2d at 394 (quoting
Henry, 447 U.S. at 272 n.10, 100 S. Ct. at 2187 n.10, 65 L. Ed. 2d at
123 n.10 (1980)).
Justice Brennan emphasized that in Henry, the Court stressed the
importance of three factors: (1) whether the informant was a paid
informant, (2) whether the defendant was aware that there was an
informant in his presence, and (3) whether the accused was in custody at
the time incriminating statements were made. Id. at 475, 106 S. Ct. at
2638, 91 L. Ed. 2d at 394–95. Justice Brennan found that all three of
these factors were met in Kuhlmann. Id. at 475–76, 106 S. Ct. at 2638–
39, 91 L. Ed. 2d at 395–96. Justice Brennan also cited the fact that the
jail cell had a visual view of the taxicab garage where the crime occurred
and that the informant in essence gave the defendant advice to improve
his story. Id. at 476, 106 S. Ct. at 2638, 91 L. Ed. 2d at 395. In his
view, “[t]he State intentionally created a situation in which it was
foreseeable that respondent would make incriminating statements
without the assistance of counsel . . . .” Id. Justice Brennan argued that
36
the informant, “while avoiding direct questions, nonetheless developed a
relationship of cellmate camaraderie with the respondent and
encouraged him to talk about his crime.” Id. He found a sufficient
nexus between the state’s actions and the admissions of guilt to
constitute deliberate elicitation within the meaning of Henry. Id. at 476,
106 S. Ct. at 2638–39, 91 L. Ed. 2d at 395–96.
After Kuhlmann, the question arose whether its language regarding
what constituted deliberate elicitation should be interpreted as a
limitation on the expansive view provided in Henry. See, e.g., Craig
Bradley, What’s Left of Massiah?, 45 Tex. Tech L. Rev. 247, 260–61
(2012); Tomkovicz, Adversary System, 22 U.C. Davis L. Rev. at 19–20.
On the one hand, Henry was not expressly overruled in Kuhlmann.
Further, many of the concepts of Henry were cited with approval in
Kuhlmann. See Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91
L. Ed. 2d at 384 (majority opinion). Additionally, Kuhlmann arose in the
context of a federal habeas corpus challenge to a state court conviction.
Because Kuhlmann essentially held for the state on procedural grounds
unrelated to the Sixth Amendment, id. at 455, 106 S. Ct. at 2627–28, 91
L. Ed. 2d at 382, the subsequent discussion of Henry could be regarded
as mere dicta.
On the other hand, as pointed out by Justice Brennan, the facts of
Kuhlmann seemed strikingly similar, if not indistinguishable, to Henry.
Kuhlmann, 477 U.S. at 473, 106 S. Ct. at 2637, 91 L. Ed. 2d at 394
(Brennan, J., dissenting). One could argue that the only way the state
could have violated Henry’s Sixth Amendment rights but not Wilson’s
was if there was a modification of law in Kuhlmann. See Bruce D.
Lundstrom, Sixth Amendment—Right to Counsel: Limited Postindictment
37
Use of Jailhouse Informants Is Permissible, 77 J. Crim. L. & Criminology
743, 764–65 (1986).
Yet in reading the majority and dissenting opinions, they both
appear to accept the deliberate-elicitation framework. The facts,
however, are viewed differently. The majority considered the informant
to be passive, while the dissent suggested that the informant took an
active role by stimulating conversation about the crime and by
suggesting that the defendant develop a more convincing story. See April
Leigh Ammeter, Kuhlmann v. Wilson: ‘Passive’ and ‘Active’ Government
Informants: A Problematic Test, 72 Iowa L. Rev. 1423, 1435 (1987)
[hereinafter Ammeter]. As noted by one commentator, the debate
between the majority in Kuhlmann and Justice Brennan’s dissent is “a
demonstration of the morass into which the Court’s chosen path can
lead a conscientious judge.” H. Richard Uviller, Evidence from the Mind
of the Criminal Suspect: A Reconsideration of the Current Rules of Access
and Restraint, 87 Colum. L. Rev. 1137, 1194 (1987).
D. Application of Massiah and Its Progeny in Lower Courts.
1. Introduction. Applying the principles of Massiah and its
progeny has been a challenge in the lower courts. Courts frequently cite
the conflicts in the cases and the lack in clarity of the applicable legal
standards. See, e.g., United States v. LaBare, 191 F.3d 60, 64 (1st Cir.
1999) (“[W]hile these legal premises are clear, their application to this
case is less than straightforward.”); Leopardi, 701 A.2d at 956 (“[C]andor
requires us to confess our difficulty in reconciling several of these
decisions.”). Many of the cases are not unanimous. See, e.g., Johnson,
338 F.3d at 923 (Bye, J., dissenting); Matteo v. Superintendent, SCI
Albion, 171 F.3d 877, 905 (3d Cir. 1999) (McKee, J., concurring) (finding
Sixth Amendment analysis contrary to Massiah but error harmless);
38
Lightbourne v. Dugger, 829 F.2d 1012, 1027 (11th Cir. 1987) (Anderson,
J., concurring in part and dissenting in part); United States v. Taylor,
800 F.2d 1012, 1018 (10th Cir. 1986) (McKay, J., dissenting); State v.
Currington, 746 P.2d 997, 1005 (Idaho Ct. App. 1987) (Swanstrom, J.,
dissenting); Commonwealth v. Franciscus, 710 A.2d 1112, 1122 (Pa.
1998) (Castille, J., dissenting); Hartman v. State, 896 S.W.2d 94, 107
(Tenn. 1995) (Reid, J., concurring and dissenting); State v. Leadingham,
438 S.E.2d 825, 839 (W. Va. 1993) (Workman, C.J., dissenting).
2. Requirement of informant agency.
a. Introduction. For the activities of an informant to give rise to a
Sixth Amendment violation, the informant must be acting as an agent for
the government. Henry, 447 U.S. at 270, 100 S. Ct. at 2186–87, 65
L. Ed. 2d at 122. When the government and an informant have an
express agreement, often reduced to writing, there may be little question
that the informant should be regarded as an agent of the government for
Sixth Amendment purposes. But the question arises whether a jailhouse
informant may be considered an agent for Sixth Amendment purposes in
the absence of an express agreement. Even if we accept a theory of
implied agency, one may wonder where the line is to be drawn between
an implied agency relationship and jailhouse “entrepreneurs” who seek
to improve their prospects by offering information to the state in the
“jailhouse marketplace” of informant testimony. The cases have
struggled to make this important distinction.
Irrespective of the above, it seems clear from the cases that agency
under Massiah does not rely too heavily on traditional principles of
private contract or agency law, but instead seems closer to the doctrine
of state action. The question, for constitutional purposes, is whether the
actions of an informant may be fairly attributed to the state.
39
Nonetheless, the cases suggest, “At a minimum . . . there must be some
evidence that an agreement, express or implied, between the individual
and a government official existed at the time the elicitation takes place.”
Depree v. Thomas, 946 F.2d 784, 794 (11th Cir. 1991). The test for
agency is a multifactored one based on all the facts and circumstances
and not subject to clear maxims or bright-line rules.
b. Express or implied agency. There is some authority that seems
to require a formal express agreement before an informant may be
considered an agent of the state. Lightbourne, 829 F.2d at 1020
(majority opinion). Most of the caselaw, however, has drifted away from
such formalism. There is ample authority for the proposition that the
required agency may be express or implied. See, e.g., Ayers v. Hudson,
623 F.3d 301, 311 (6th Cir. 2010); Randolph v. California, 380 F.3d
1133, 1144 (9th Cir. 2004); Matteo, 171 F.3d at 893 (majority opinion);
United States v. Brink, 39 F.3d 419, 424 (3d Cir. 1994); Depree, 946 F.2d
at 794; United States v. York, 933 F.2d 1343, 1357 (7th Cir. 1991),
overruled on other grounds by Wilson v. Williams, 182 F.3d 562, 567 (7th
Cir. 1999); Thomas v. Cox, 708 F.2d 132, 136 (4th Cir. 1983).
State courts have also embraced the notion of implied agency. See,
e.g., McBeath v. Commonwealth, 244 S.W.3d 22, 33 (Ky. 2007) (holding it
is not necessary to have quid pro quo understanding in order to find
agency); Commonwealth v. Foxworth, 40 N.E.3d 1003, 1012 (Mass. 2015)
(requiring “evidence of a promise, express or implied” to find agency).
Moulton advises that the state has an affirmative duty to ensure that the
defendant’s right to counsel is honored. 474 U.S. at 171, 106 S. Ct. at
484, 88 L. Ed. 2d at 492–93. This affirmative duty cannot be met when
the state enters into somewhat vague agreements with informants that
predictably lead to interference with the right to counsel. Thus, the real
40
question at issue in the better-reasoned cases is not whether agency may
be implied, but rather what must be shown to establish implied agency.
In addition, it is important to point out that the question of agency
is a dynamic concept. For instance, in Wesbrook v. State, an inmate
reported conversations to state authorities in which the defendant
expressed a desire to kill his ex-wife and her husband. 29 S.W.3d 103,
116 (Tex. Crim. App. 2000). The inmate arranged a meeting with
authorities, hoping to exploit the information for his benefit. Id. After
receiving the information, the authorities then entered into an agreement
with the inmate to elicit more information in exchange for a good word
with the prosecution on the inmate’s pending charges. Id. The court
allowed the testimony on information obtained prior to the first meeting
with the authorities, but suppressed information gathered afterwards on
Massiah grounds. Id. at 119.
c. Requirement of express or implied instructions. Moulton and
Henry make clear that the existence of instructions not to ask questions
of a defendant are not determinative on the issue of whether a Massiah
violation has occurred. Moulton, 474 U.S. at 177 n.14, 106 S. Ct. at 488
n.14, 88 L. Ed. 2d at 497 n.14; Henry, 447 U.S. at 271–72, 100 S. Ct. at
2187, 65 L. Ed. 2d at 122–23. Such limitations are insufficient because
failure to follow instructions is foreseeable in light of the strong
incentives that motivate a jailhouse informant. Henry, 447 U.S. at 270–
71 & n.7, 100 S. Ct. at 2187 & n.7, 65 L. Ed. 2d at 122 & n.7.
Nonetheless, the slightly different question of whether explicit
instructions are required in order to establish agency, express or implied,
for purposes of the Sixth Amendment has sometimes reoccurred in the
caselaw.
41
For instance, in Johnson, the Eighth Circuit found that the
informant was not instructed, by express words or implication, to gather
information about a defendant. 338 F.3d at 921 (majority opinion).
Thus, according to the Johnson majority, there was no express or implied
agency. Id. A dissent in Johnson disagreed, however, and concluded
that agency should not be limited to cases where the government gives
an informant direct, explicit oral or written instructions. Id. at 925–26
(Bye, J., dissenting). According to the dissent, the record established
that the informant did not need for the instructions to be spelled out. Id.
The dissent emphasized that the government did not obtain statements
“by luck or happenstance” but as the result of a meeting purposefully
arranged by the prosecutor to “circumvent[ ] the accused’s right to have
counsel present in a confrontation between the accused and a state
agent.” Id. at 926 (quoting Robinson v. Clarke, 939 F.2d 573, 576 (8th
Cir. 1991) (second quote)) (alteration in original).
The formalism of the majority in Johnson seems inconsistent with
the “likely to induce” standard in Henry and has been rejected by a
number of courts. 447 U.S. at 274, 100 S. Ct. at 2189, 65 L. Ed. 2d at
125. As noted by the Eleventh Circuit, “There is, by necessity, no bright-
line rule for determining whether an individual is a government agent for
purposes of the [S]ixth [A]mendment right to counsel.” Depree, 946 F.2d
at 793–94. The Sixth Circuit has also rejected the Johnson approach,
noting that if explicit instructions were required to establish agency for
Sixth Amendment purposes, the state could accomplish “with a wink and
a nod” what it cannot overtly do. Ayers, 623 F.3d at 312. The Third and
Fourth Circuits have come to similar conclusions. See Matteo, 171 F.3d
at 893; Brink, 39 F.3d at 424; Cox, 708 F.2d at 136.
42
One state court case dramatically illustrates the shortcomings of a
formalistic Johnson approach. In Commonwealth v. Moose, the
Pennsylvania Supreme Court considered a case where the informant did
not have specific instructions. 602 A.2d 1265, 1270 (Pa. 1992). Yet the
record demonstrated that the informant knew what to do. Id. Indeed,
the informant was called “the monsignor” because so many inmates
confessed to him. Id. Notwithstanding the lack of instructions, the
informant was an agent of the state for Sixth Amendment purposes. Id.
at 1271.
d. Requirement of quid pro quo. Some cases have considered
whether an express or implicit quid pro quo is required to state a
Massiah violation. In McBeath, the Kentucky Supreme Court stated it is
not necessary to have an express quid pro quo agreement. 244 S.W.3d
at 33. Similarly, the California Supreme Court has stated that an
informant acts as a government agent if the informant acts “under the
direction of the government pursuant to a preexisting arrangement, with
the expectation of some resulting benefit or advantage.” People v.
Coffman, 96 P.3d 30, 83 (Cal. 2004) (emphasis added) (quoting In re
Neely, 864 P.2d 474, 481 (Cal. 1993)); see also Commonwealth v.
Murphy, 862 N.E.2d 30, 38, 40–41 (Mass. 2007); Rubalcado v. State, 424
S.W.3d 560, 575 (Tex. Crim. App. 2014).
In Brink, the court held that a lack of a specific promise was not
determinative on the issue of agency for Sixth Amendment purposes. 39
F.3d at 424. Additionally, in Randolph, the court emphasized that it was
enough that the state made a decision to obtain an informant’s
cooperation and that the informant decided to provide it. 380 F.3d at
1144. Brink and Randolph are consistent with Henry, which emphasized
that with respect to agency, it is the likely result of the government’s acts
43
that determines the issue. 447 U.S. at 271, 100 S. Ct. at 2187, 65
L. Ed. 2d at 122. Given the long prison sentences that many informants
face, the prospect that cooperation might be considered in reducing a
sentence is a sufficient inducement to support a Massiah violation.
e. Distinction between informers and entrepreneurs. Even if
instructions are not necessarily required for express or implied agency,
the cases generally draw a distinction between informants acting on
behalf of the government and those who act without government
involvement. See Birbal, 113 F.3d at 346. As stated in Cox, an inmate
who volunteers information to authorities based on “an unencouraged
hope to curry favor” does not offend Massiah. 708 F.2d at 136. The
Delaware Supreme Court offered a similar viewpoint, noting that the
Sixth Amendment “does not protect a defendant against private
individuals who wish to profit at his expense.” Jackson v. State, 684
A.2d 745, 752 (Del. 1996). Such persons, in the parlance of courts
grappling with Massiah issues, are commonly referred to as
entrepreneurs. See York, 933 F.2d at 1356.
In some cases, it is undisputed that the informer has no agency
relationship with the government. For instance, in LaBare, one of the
informants was “not even arguably a government agent” when he
gathered incriminating statements. 191 F.3d at 66. Whether an
informant has crossed the line between agency and entrepreneurship,
however, depends on the facts. A number of cases have found, for
instance, that what began as entrepreneurship may develop into an
agency relationship. See, e.g., Wesbrook, 29 S.W.3d at 119. Sometimes,
however, an entrepreneur who becomes an agent may still not violate
Massiah if, in his subsequent contact with the defendant, he does not
engage in acts of deliberate elicitation. See Birbal, 113 F.3d at 346.
44
f. Requirement of specific target. In some cases, courts have held
that an informant becomes a government agent only when instructed by
the government to get information about a particular defendant. See
LaBare, 191 F.3d at 65; Moore, 178 F.3d at 999; Birbal, 113 F.3d at 346;
In re Benn, 952 P.2d 116, 138–39 (Wash. 1998). Other courts, however,
have come to a different conclusion and do not require targeting of
specific individuals. Brink, 39 F.3d at 423–24; York, 933 F.2d at 1356–
57; United States v. Sampol, 636 F.2d 621, 638 (D.C. Cir. 1980) (per
curiam); Murphy, 862 N.E.2d at 40; Moose, 602 A.2d at 1270.
The problem with a requirement of a specific target is that it allows
“informant[s] at large” to seek opportunities within the jailhouse at their
discretion. Sampol, 636 F.2d at 638. The invasion of an incarcerated
prisoner’s Sixth Amendment rights is not affected by whether the
informant is operating at large or with a specific target. As noted in
Moose, “The vast majority of people in county jail are charged with crimes
and awaiting trial . . . .” Moose, 602 A.2d at 1270. As a result,
deliberately eliciting incriminating information from any of them violates
Massiah. Moose, 602 A.2d at 1270.
As noted in York, the relationship between the state and its
informers is often a symbiotic one. 933 F.2d at 1357. According to the
York court, it would be inconsistent with the Sixth Amendment to allow
the government to send out informants on “a reconnaissance patrol . . .
to gather evidence.” Id. at 1356. The court further noted “[w]hether the
principal exercises its control strictly, by targeting specific individuals, or
casually, by loosing an informant on the prison population at large, is
irrelevant.” Id. at 1357. A state’s use of an at-large informant is at least
somewhat inconsistent with the affirmative duty of prosecutors in
45
Moulton to avoid interference with the Sixth Amendment rights of
defendants. 474 U.S. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at 492–93.
g. Infiltration of cell. There is authority for the proposition that
placement of a friend or acquaintance with a defendant in the jailhouse
is at least some evidence of agency. See Matteo, 171 F.3d at 894–95.
Such action by the state “intentionally creat[es] a situation likely to
induce [the accused] to make incriminating statements without the
assistance of counsel” and is a significant factor to a finding of agency.
Id. at 895 (quoting Henry, 447 U.S. at 274, 100 S. Ct. at 2189, 65
L. Ed. 2d at 125); see also Brink, 39 F.3d at 424 (placing informant in
cell with pretrial detainee could represent a deliberate effort to obtain
incriminating evidence in violation of Sixth Amendment). As noted in
Kimball, if the state placed an informant back with the defendant after he
expresses a willingness to cooperate, the state intentionally “creat[ed] a
situation likely to induce” incriminating statements. United States v.
Kimball, 884 F.2d 1274, 1278 (9th Cir. 1989). Under these
circumstances, the government takes the risk that the informant will
engage in deliberate elicitation. See id.
Yet there is authority for the proposition that mere placement of a
person in a cell with a defendant, standing alone, is not sufficient to
establish agency. Taylor, 800 F.2d at 1016 (majority opinion). Yet even
in more cautious courts, the placement of an informant in a jail in
proximity to a defendant, as in Henry, is a factor to be considered in
determining whether the informant should be regarded as an agent of the
state for Sixth Amendment purposes. See, e.g., Henry, 447 U.S. at 274,
100 S. Ct. at 2189, 65 L. Ed. 2d at 124; Brink, 39 F.3d at 424.
h. Summary. No talismanic test, mechanical checklist, or
mathematical formula exists for determining whether an informant is an
46
agent for Massiah purposes. Instead, a court must determine—under all
the facts and circumstances—whether the relationship between the state
and an informant is such that the state has violated its affirmative duty
under Moulton to protect the Sixth Amendment rights of defendants.
3. Approach to deliberate elicitation.
a. Introduction. A second important issue in the federal caselaw is
the meaning of the elusive phrase “deliberate elicitation.” Before
exploring the meaning of the term, we must first note that it is clear that
deliberate elicitation is not the same as an interrogation. Fellers v.
United States, 540 U.S. 519, 524, 124 S. Ct. 1019, 1022–23, 157
L. Ed. 2d 1016, 1022–23 (2004); see also Brewer, 430 U.S. at 399, 97
S. Ct. at 1240, 51 L. Ed. 2d at 436–37 (stating that the detective “set out
to elicit information from [the defendant] just as surely as—and perhaps
more effectively than—if he had formally interrogated him”). Yet
Kuhlmann suggests that “the primary concern” of Massiah and its
progeny is to protect defendants from “secret interrogation by
investigatory techniques that are the equivalent of police interrogation.”
477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384.
In Henry, the Court seemed to embrace a three-part test to
determine if the relationship between the government and the jailhouse
informant was “likely” to elicit statements from a defendant in the
absence of counsel. 447 U.S. at 270–71, 100 S. Ct. at 2186–87, 65
L. Ed. 2d at 122. The three prongs of the test were the relationship
between the state and the informant, the fact that the informant and the
defendant were both incarcerated, and the fact that the informant was
under indictment. Id. There is nothing in Henry that requires a
defendant to show what actually happened at the jailhouse between the
informant and the defendant. Instead, the Court in Henry held the
47
creation of an environment likely to lead to elicitation was sufficient to
establish the constitutional violation. Id. at 271–72, 100 S. Ct. at 2187,
65 L. Ed. 2d at 123. Yet in Henry it was clear that the informant
engaged in some conversations with the defendant. Id. at 271, 100 S. Ct.
at 2187, 65 L. Ed. 2d at 122–23.
In Kuhlmann, however, the Supreme Court focused more
extensively on the deliberate-elicitation test. 477 U.S. at 459, 106 S. Ct.
at 2629–30, 91 L. Ed. 2d at 384–85. There is language in Kuhlmann that
seems to require that a defendant raising a Massiah challenge must
specifically show that the jailhouse informant took active steps to elicit
uncounseled statements by the defendant. Id. (stating that the
defendant must show that “the police and their informant took some
action” (emphasis added)). In short, under this theory of Kuhlmann,
merely establishing that the state created an environment where
elicitation of an uncounseled defendant was likely would not be
sufficient. Under this more expansive view of Kuhlmann, the defendant
must show, as a matter of fact, that the jailhouse informant was more
than a “passive listener.” Accordingly, under this understanding, active
participation of some kind by the informant is required. An important
issue under this reading of Kuhlmann is identifying what type of actions
by a jailhouse informant are sufficient for a finding of deliberate
elicitation and what actions may be regarded as merely incidental and
constitutionally insignificant.
b. Pure “listening post” cases. There are occasions, of course,
where the jailhouse informant merely overhears incriminating statements
but does not participate at all in an interaction directly with the
defendant. Where the evidence shows that the informant truly was a
passive listening post—when he simply listened to conversations between
48
defendant and another inmate—courts do not find a Sixth Amendment
violation. For instance, in United States v. Mourad, the court found no
deliberate elicitation when the government agents overheard the
defendant make incriminating statements to his wife on the telephone.
729 F.2d 195, 201 (2d Cir. 1984). This was a classic example of
obtaining incriminating statements by luck or happenstance.
But the boundary between listening-post cases and cases involving
deliberate elicitation is fraught with border disputes. For instance,
consider two cases from Kentucky. In Thurman v. Commonwealth, the
Kentucky Supreme Court concluded that the informant was, in fact, a
passive listening post. 975 S.W.2d 888, 895–96 (Ky. 1998). But in
McBeath, the Kentucky Supreme Court rejected a claim that an
informant—who recorded statements by a defendant—acted as a passive
listening post when the informant engaged in conversations about the
offense and discussed trial strategy with the defendant. 244 S.W.3d at
29, 34.
In fact, in many cases where courts found the informants to be
acting as listening posts, the informant was not literally silent but
instead engaged in some communication with the defendant. The
question in the caselaw is whether such communication was active or
passive. See Thomas, 708 F.2d at 136 n.5; Ammeter, 72 Iowa L. Rev. at
1431–36.
c. Requirement that informant initiate discussion leading to
incriminating statements. It is sometimes claimed that an informant
must initiate the conversation about the crime in order to violate
Massiah and its progeny. But Henry made clear a Massiah violation may
occur even when the defendant initiates discussion of criminal conduct.
Henry, 447 U.S. at 271–72, 100 S. Ct. at 2187, 65 L. Ed. 2d at 123; Bey
49
v. Morton, 124 F.3d 524, 530 (3d Cir. 1997). But deliberate elicitation is
not a question of timing—it is a question of substance. Faithfulness to
Henry requires that there be no escape from honoring the defendant’s
right to counsel simply because the informant initiates the discussion of
the general subject matter of the crime. The better view is that there is
no requirement that the informant begin the conversation if he or she
subsequently encourages the defendant to provide additional
incriminating information by his or her responses.
d. Active vs. passive communication: responsive remarks. Where
informants literally do not take part in the conversation, but only listen,
the cases are relatively easy. More difficult are situations where the
jailhouse informants are not completely silent bystanders but have some
degree of direct interaction with the defendant. The question then
becomes, under the expansive view of Kuhlmann, whether the actions of
the informant were active or passive. Sometimes the courts distinguish
casual remarks from statements designed to deliberately elicit
incriminating statements. In other cases, the courts distinguish
responsive comments from more probing remarks.
For instance, in McDonald v. Blackburn the defendant returned
from a meeting with police to his jail cell and declared to the jailhouse
informant that police had “the ring.” 806 F.2d 613, 618 (5th Cir. 1986).
When the informant asked “what ring?” the defendant answered that it
was the ring taken from the murder victim. Id. The Fifth Circuit found
this simple response was not an action designed to deliberately elicit
incriminating remarks. Id. at 622.
But a different result occurred in Murphy, 862 N.E.2d at 30. In
that case, the informant questioned the defendant about “what he did
about his anger toward the victim.” Id. at 44. Plainly, unlike in
50
McDonald, this was not merely a response to the statement by the
defendant, but was a question designed to enhance the substance of the
communication between the defendant and the informant. Id. at 44–45.
The Massachusetts Supreme Judicial Court found this statement was
sufficient deliberate elicitation to trigger a Massiah violation. Id. at 46.
e. Active or passive communication: clarifying questions. Matteo is
a case considering the question of whether responding to a defendant’s
statements by asking follow-up or clarifying questions amounts to
deliberate elicitation under Massiah. 171 F.3d at 877. In Matteo, the
defendant called the informant and asked him to retrieve the murder
weapon for him. Id. at 881–82. In the first conversation initiated by the
defendant, the defendant revealed the gun’s general location. Id. at 882.
During this conversation, the informant said virtually nothing at all. Id.
at 882–83. The police, however, could not find the gun based upon the
information volunteered by the defendant in the first conversation. Id. at
883. As a result, the police arranged for a second telephone
conversation. Id. In the second conversation, the informant advised the
defendant that he could not find the gun. Id. at 883–84. In the first
conversation, the informant’s responses included seventy-three one-word
expressions such as “okay” and “yeah.” Id. at 896 n.3. Nonetheless,
during the second conversation, the informant asked some clarifying
questions regarding the location of the gun:
On the far side, on the side all the way closer to your home?
. . . [I]s it in the water? . . . So it’s not in the grass? . . . So
it’s almost underneath the bridge? . . . Was the water frozen
when you dropped it?
Id. at 908 (McKee, J., concurring). The majority found that the clarifying
questions were directly responsive to statements made by the defendant.
51
Id. at 896 (majority opinion). The court concluded there was no
deliberate elicitation under Kuhlmann. Id. at 897.
Three judges, however, dissented on the issue of whether the Sixth
Amendment was violated, but concurred in the result because of
harmless error. Id. at 905 (McKee, J., concurring). According to these
judges, the police directed the informant to obtain more information in
the second conversation in order to find the gun. Id. at 908. The
dissenters argued that the many monosyllabic answers did not transform
the informant into a listening post when the very purpose of the second
conversation was to find out more information about the location of the
gun and the informant specifically asked questions designed to obtain
greater details about its location. Id. at 909.
The issue of clarifying questions was also considered in United
States v. Jacques, 684 F.3d 324, 330 (2d Cir. 2012). Here, in one of the
conversations, when the defendant stated that the actual killers had
planted evidence, the informant asked, “[W]hat did they do? What
. . . kind of evidence?” Id. at 330 n.2 (alteration in original). Yet the
court found no Sixth Amendment violation because the jailhouse
informant was “entirely passive.” Id. at 331–32. According to the court,
the few follow-up questions posed by the informant were not “of a
probing nature.” Id. at 332. The court expressly reserved the question of
whether limited follow-up questions could ever be found to stimulate
discussion and thus be deliberate elicitation. Id.
A similar issue was confronted in York, 933 F.2d at 1343. In York,
the informant and York were engaged in daily conversations, “kind of
digging in each other’s past.” Id. at 1359. York told the informant that
his son testified against him in his first trial and thought that York had
killed his mother. Id. When the informant observed, “You must have
52
been pretty mad at the bitch,” York declared, “Mad enough to put a
bullet in the back of her head.” Id. The court found the statement of the
informant not sufficient to rise to the level of deliberate elicitation. Id.
The court noted that informants are not required to reveal their status by
not responding to subjects, to remove themselves from situations that
might uncover incriminating information, or to abruptly change the
subject when inmates unburden themselves. Id.
Other cases are more critical of follow-up questions. For example,
in Currington, an Idaho appellate court rejected claims that the informant
was acting as a mere listening post when the informant asked some
twenty questions to follow up on statements made by the defendant. 746
P.2d at 1003–04 (majority opinion). Similarly, in State v. Mattatall, the
informant asked questions of the defendant and then pressed him for
“clarification of his equivocal responses.” 525 A.2d 49, 52 (R.I. 1987). In
these cases, follow-up questions were sufficient to trigger a Massiah
violation.
f. Active or passive communication: casual remarks. Some cases
seem to distinguish between casual remarks not designed to elicit
incriminating statements and those that do. An illustrative case is
Commonwealth v. Hilton, 823 N.E.2d 383 (Mass. 2005). In Hilton, a court
officer was escorting a murder and arson defendant in leg irons after
arraignment into a holding area. Id. at 391. The charges for which she
was being arraigned stemmed from a blaze that destroyed a residence.
Id. at 388, 391. The defendant stated that her son had warned her that
leg irons were “no good.” Id. at 391. The court officer asked the
defendant who her son was. Id. In response, the defendant made the
incriminating statement, “I hope he forgives me . . . . I could have killed
my grandchildren.” Id. At that point, the court officer asked the
53
defendant a series of questions about whether she had lit the fire, why
she had done so, and whether she knew about the other occupants of the
house. Id. The Massachusetts Supreme Judicial Court held that the
court officer’s question regarding the identity of the defendant’s son was
a casual remark not designed to elicit incriminating statements. Id. at
401. But the court officer’s follow-up questions about the crime crossed
the Massiah line and were properly suppressed. Id.
g. Deliberate placement of informant with cellmate. In Kuhlmann,
the Supreme Court stated that the Sixth Amendment does not “forbid . . .
admission in evidence of an accused’s statements to a jailhouse
informant who was ‘placed in close proximity but [made] no effort to
stimulate conversations about the crime charged.’ ” 477 U.S. at 456,
106 S. Ct. at 2628, 91 L. Ed. 2d at 382 (quoting Henry, 447 U.S. at 271
n.9, 100 S. Ct. at 2187 n.9, 65 L. Ed. 2d at 123 n.9) (alteration in
original). Nonetheless, cases stress the role of the state in placing the
informant in the jailhouse in a fashion designed to provoke discussion
and potential incriminating statements. For instance, in Brink, the
placement of an informant in close proximity to the defendant was a
factor in determining agency. 39 F.3d at 424. On the other hand, in
Taylor, the Tenth Circuit came to the conclusion that the mere placement
of an informant in a jail cell with a defendant is insufficient to establish
agency. 800 F.2d at 1016. But see Tomkovicz, Adversary System, 22
U.C. Davis L. Rev. at 79–81 (asserting when the government
surreptitiously enters defendant’s presence as a listener, it is not wholly
passive and that Massiah should regulate passive reception).
h. Affirmative acts to cultivate trust. A number of the cases
emphasize that when the informant engages in acts designed to
encourage the defendant to trust the informant, these acts may at least
54
be a factor in determining whether deliberate elicitation occurred. For
instance, in Murphy, the informant gained the trust of the defendant by
helping him hide a shank. 862 N.E.2d at 44. Such trust-building
activity contributes to the likelihood of obtaining incriminating
information.
Yet in State v. Robinson, an informant prior to his arrest had
worked with certain state agents. 448 N.W.2d 386, 390 (Neb. 1989).
After the informant’s arrest, he was placed in a corrections center where
the defendant was also incarcerated. Id. The officers with whom the
informant had the relationship had no role in his placement. Id. In the
cellblock, the informant asked the defendant why he was in prison, to
which the defendant responded that it was none of his business. Id.
Later, the defendant asked the informant if there were some people he
could contact to help raise bail money, which the informant said he
would help with—an act designed to generate trust with the defendant.
Id. The trial court, however, found these facts insufficient to establish
active elicitation. The Nebraska Supreme Court affirmed. Id. at 396.
i. Development of notes and written statements. There are a
handful of cases dealing with the development of written notes or
documents by informants. In United States v. Pannell, an informant
received listening-post instructions from law enforcement. 510
F. Supp. 2d 185, 188 (E.D.N.Y. 2007). The informant, however, took
detailed, handwritten notes of incriminating information supplied by the
defendant. Id. The district court did not believe that the informant
followed the listening-post instructions, in part because of the detailed
nature of the notes. Id. at 192. The district court noted that the
informant must have participated in active conversation with the
55
defendant in a deliberate attempt to elicit incriminating remarks. Id. at
193.
A different result was reached in Frederick v. State, 755 N.E.2d
1078 (Ind. 2001). In that case, the informant’s taking of notes, even if at
the request of the police, was held not to violate Sixth Amendment rights
if the informant did not elicit the information. Id. at 1082; see also
Commonwealth v. Harmon, 573 N.E.2d 490, 493 (Mass. 1991) (finding
the taking of notes about incriminating statements did not mean, under
the facts and circumstances, that the note-taker was an agent of the
state).
E. Application of Massiah in Iowa Cases. In State v. Nelson, a
defendant made incriminating statements to a jailhouse informant. 325
N.W.2d 118, 119 (Iowa 1982). The informant then told authorities about
the statements. Id. The informant was returned to his cell, where
further incriminating statements were obtained from the defendant. Id.
Citing the three-factor Henry test, we noted there was nothing to indicate
that the state had “put him up to it.” Id. at 119–20. Specifically, there
was nothing to indicate that Jackson had an agreement that he would be
paid or would receive more favorable treatment for the information. Id.
at 120. No promises were made to give anything to the informant in
exchange for incriminating statements. Id. We thus found, as a matter
of fact, that the informant was not acting as an agent of the state. Id.
We did not consider the question of deliberate elicitation.
V. Discussion of Right-to-Counsel Issue.
A. Attachment. The State contends that the right to counsel did
not attach because the arrest warrant was not issued at the time that the
State’s officers met with Johnson on July 12. The critical time is not
when the State met with Johnson or any other informant. The critical
56
time for purposes of attachment is when the informants obtained the
incriminating information. See Randolph, 380 F.3d at 1143 (“Once a
defendant’s Sixth Amendment right to counsel has attached, the
government is forbidden from ‘deliberately eliciting’ incriminating
statements from the defendant.” (Emphasis added.)). Here, there is no
dispute that the right to counsel attached by then. Therefore, we reject
the State’s attachment argument.
B. Agency Relationship. We next consider whether the State
had an agency relationship with its informants sufficient to support a
Massiah-type claim. The court of appeals majority found such agency
with respect to Johnson based on the totality of the circumstances and
the dissent agreed.
1. Johnson. We think the record establishes an agency
relationship existed as to Johnson. Whether a sufficient relationship
exists between an informant and the state should not turn on formalistic
analysis but on the more general proposition of whether an informant is
seeking to provide information to the state in return for some kind of
consideration. Ayers, 623 F.3d at 311–12. That was clearly the case
here.
We do not regard the State’s instructions, or lack of them, as
preventing an agency relationship for Massiah purposes. In Henry, the
state explicitly instructed the informant not to engage in questioning, but
the failure of the informant to follow instructions did not mean an agency
relationship was not present. 447 U.S. at 271–72, 100 S. Ct. at 2187, 65
L. Ed. 2d at 122–23. Also in Henry, the Court emphasized the jailhouse
setting as a circumstance creating especial danger of a Sixth Amendment
violation, a concern fully applicable here. Id. at 273, 100 S. Ct. at 2188,
65 L. Ed. 2d at 124.
57
Yet as in Henry, we think the incentives for Johnson were
sufficiently substantial that the State should know that there was a
likelihood that the informant would cross the line into deliberate
elicitation. Detective Smithey instructed Johnson to report back to him
if he learned something. Given the powerful incentives plus the
invitation to report back to Detective Smithey, Johnson was encouraged
by the State to become a criminal investigator. If we took a contrary
approach, we would promote a “wink and a nod” loophole to Massiah.
Ayers, 623 F.3d at 312. We further note that Johnson, an inmate at the
Muscatine County Jail, met with Detectives Smithey and Clarahan a day
prior to Marshall’s arrest. Marshall was then incarcerated in the same
jail. The fact that Johnson obtained incriminating information from
Marshall does not look like luck or happenstance.
We also reject the State’s argument regarding the fact that the
State officials asked for information about several persons of interest
prevents us from finding an agency relationship between the State and
Johnson. Whether the State seeks information about one person as in
Massiah and Kuhlmann or three persons as here, the incentives for the
informant remain precisely the same and the risks to the accused are no
different than if there was just one target. We do not believe that the
State can prevent the formation of an agency relationship by seeking
information about multiple persons or by letting loose an informant at
large in the jailhouse. We find the discussion in York persuasive. See
933 F.2d at 1356–57. We do not think the United States Supreme Court
intended to allow the states to employ informants such as “the
monsignor” to engage in wholesale violation of the right to counsel. See
Moose, 602 A.2d at 1270. To do so would be contrary to the State’s
affirmative obligation to ensure that it does not take action that violates
58
or interferes with the relationship between a defendant and his counsel.
See Moulton, 474 U.S. at 171, 106 S. Ct. at 484, 88 L. Ed. 2d at 492.
2. Freeman. Marshall has not, however, established an agency
relationship between the State and Freeman on the present record. The
record indicates that Freeman may have hoped to receive a benefit as a
result from his testimony, but there is no evidence of a proffer agreement
or any kind of meaningful relationship between Freeman and the State.
See Cox, 708 F.2d at 136; Jackson, 684 A.2d at 752; Nelson, 325 N.W.2d
at 120. Freeman was the classic entrepreneur, seeking to market his
information without any advance arrangement. We reach this result as
to Freeman even though he clearly deliberately elicited incriminating
statements from Marshall. Taylor, 800 F.2d at 1016 (holding if the
informant was not a government agent, no Massiah violation occurred
even if there was deliberate elicitation).
3. Martin. Unlike Freeman, Detective Smithey testified that Martin
had a proffer agreement. The evidence showed that Martin had provided
information under the proffer agreement on two other occasions and that
he remained in the Muscatine County Jail for a lengthy period of time
prior to sentencing. Detective Smithey did not mention in direct
examination that he met with Martin about the Versypt murder, but he
conceded on cross-examination that he “may have asked him” if he had
any information about the Versypt murder during one of his proffer
interviews. Further, Martin and Johnson were codefendants, and
Detective Smithey conceded that Johnson would probably pass on to
Martin that the State was interested in obtaining information about
Marshall’s involvement in the Versypt murder. In other words, it was
likely that the State’s informant, Johnson, would pass the State’s
interest in Marshall on to his codefendant, who also had a cooperation
59
agreement and had previously provided information to the State on at
least two occasions. After Marshall arrived at the Muscatine County Jail
in August, Martin was moved into his cellpod. Curiously, then, after
Detective Smithey met with Johnson on October 3 at the Muscatine
County Jail, Detective Smithey then saw Martin in a room off the library,
who just happened to be talking to his lawyer and just happened to have
with him his notes and Marshall’s notes about the Versypt murder.
Notably, Martin had taken steps to document this information.
Whatever else he is, Martin is not a classic jailhouse entrepreneur.
He had a proffer agreement and had at least two interviews under his
belt prior to providing information about Marshall. Further, Detective
Smithey’s admission that he may have asked him if he had information
about the Versypt murder, that Johnson in any event would probably
advise him of the State’s interest, Martin’s timely transfer into Marshall’s
cellpod, and the remarkable coincidental meeting with Detective Smithey
on October 3—where Martin presented Detective Smithey with
documents—suggests more than luck or happenstance occurred here. In
any event, as pointed out above, the federal cases are divided on the
question of whether deliberate elicitation by informants at large gives rise
to a Massiah violation. We think the better view, however, is that it does.
York, 933 F.2d at 1357. As a result, for purposes of this case, we
conclude that Martin should be considered an agent of the State for
Massiah purposes.
C. Deliberate Elicitation. We next confront the question of
deliberate elicitation.
1. Johnson. The evidence shows that Johnson asked Marshall
“what was he in there for” when they were both together in segregation in
the Muscatine County Jail. The evidence also shows that Marshall
60
ultimately provided extensive information to Johnson about the
underlying crime. As noted above, the disclosures made by Marshall are
extensive—they go on, and on, and on. According to Johnson, the
statements made to him by Marshall included the following comments:
(1) there was no evidence or witnesses to the crime; (2) Marshall went to
Burlington because police kept bothering him; (3) the police harassed
him in Burlington and threatened him; (4) at first police said they had
nothing on him and then they only had “a little gun powder;” (5) he was
looking at a lot of time; (6) he, Calvin, and Weezy (Thompson’s nickname)
were playing dice in the hallway; (7) he arrived at the idea to rob the
landlord; (8) Weezy then went into the apartment; (9) the robbery went
wrong; (10) the landlord got shot; (11) the shot was loud; (12) he froze in
the hallway and then ran out the back; and (13) he reentered through
the front door. No direct evidence, however, was offered at the motion to
suppress hearing or at trial about what Johnson specifically said to
Marshall. Surely it is unlikely that Marshall engaged in an extended
Shakespearean soliloquy about the crime. But the record does not
provide an “I said, then he said, then I said” type of narrative.
On the one hand, this situation could be regarded as a failure of
proof. It is, perhaps, conceivable that Johnson responded to Marshall’s
statements with neutral “Oh’s” and “Uh’s,” other neutral filler comments,
or solely with comments that did not encourage Marshall to elaborate.
Recall that in Matteo a recorded telephone conversation revealed the
informant had engaged in seventy-three one-word utterances in response
to incriminating statements by a defendant. 171 F.3d at 896 n.3. Such
an argument, however, did not persuade the district court in Pannell,
510 F. Supp. 2d at 192. In Pannell, the informant claimed he did not ask
the defendant any questions about his case and that the defendant
61
volunteered his incriminating comments during lengthy conversations
about everyday matters. Id. The district court found the informant’s
assertion incredible. Id. The district court noted that the informant “had
great incentive to actively encourage [the defendant]” in light of his heavy
sentence. Id. The district court concluded that there must have been
some active encouragement from the informant and suppressed the
statements. Id. at 193.
Yet on the record developed at trial, we think there has been a
failure of proof. It is conceivable that Johnson only responded to
volunteered incriminating statements made by Marshall with “Ah’s” and
“Oh’s” or other comments that did not encourage Marshall to continue
with the narrative. See Matteo, 171 F.3d at 896. Under Kuhlmann and
related cases, such neutral or responsive comments are not considered
deliberate elicitation. See Kuhlmann, 477 U.S. at 460–61, 106 S. Ct. at
2630–31, 91 L. Ed. 2d at 385. It is remarkable, perhaps, that Marshall’s
counsel—both at the motion to suppress and at trial—did not ask any
questions of Johnson regarding his degree of participation in the
communications with Marshall. It is possible that Marshall’s counsel
was not aware of the deliberate-elicitation requirement for finding a
Massiah violation. It is also possible, perhaps, that Marshall did provide
a lengthy, unprompted confession to Johnson, and said as much to his
attorney. The record, however, is not adequate on this direct appeal to
resolve any potential ineffectiveness claim based upon the failure of
counsel to explore deliberate elicitation. A different record, of course,
might be developed on remand.
2. Martin. As to Martin, there is no doubt that he deliberately
elicited incriminating statements from Marshall. At the outset, Martin
got “legal stuff” for Marshall about manslaughter and armed robbery.
62
According to Martin, “I told him, you know, you might have to tell your
side of the story if you’re going to get a lesser charge. So he went to write
the story down . . . .” Martin’s suggestion that it was in Marshall’s
interest to get out his side of the story is, of course, a classic police
interrogation technique. See, e.g., State v. Monroe, 645 P.2d 363, 365
(Idaho 1982) (finding an interrogation when the police officer asked the
defendant “if he would like to give his side of the story”); State v. Hebert,
82 P.3d 470, 481 (Kan. 2004) (inviting suspect to “tell his side of the
story” constitutes an interrogation); State v. Hannon, 636 N.W.2d 796,
806 (Minn. 2001) (warning defendant that “his side of [the] story [would]
never be known” after defendant invoked his right to counsel violated
defendant’s rights); State v. Lynch, 477 N.W.2d 743, 746 (Minn. Ct. App.
1991) (asking “[w]hat’s your side of the story?” was an interrogation).
Martin engaged in deliberate elicitation by any application of the
Kuhlmann standard. See Calder v. State, 133 So. 3d 1025, 1030–31 (Fla.
Dist. Ct. App. 2014) (reminding accused that this was his opportunity to
present his side of the story and that doing so would benefit him is
“reasonably likely to elicit an incriminating response” (quoting Rhode
Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d
297, 308 (1980))); State v. Harris, 741 N.W.2d 1, 7 (Iowa 2007)
(characterizing statements to “get it out on the table” and “[t]ell us what
really happened” as “reasonably likely to elicit an incriminating response”
(quoting Innis, 446 U.S. at 301, 100 S. Ct. at 1689, 64 L. Ed. 2d at 308
(third quote))); Hebert, 82 P.3d at 483 (holding “[w]ould you like the
opportunity to tell me your side of the story” elicited confession); see also
Mark A. Godsey, Shining the Bright Light on Police Interrogation in
America, 6 Ohio St. J. Crim. L. 711, 720–22 (2009).
63
Under the circumstances, Martin simply cannot be characterized
as “a passive listener to a heartfelt confession.” Franciscus, 710 A.2d at
1120 (majority opinion).
D. Sua Sponte Harmless Error Under Blaise. The State did not
argue harmless error in its briefing in this case. Yet in In re Detention of
Blaise, we held that we could consider the issue of harmless error when
it was not raised in the briefing in a narrow category of cases. 830
N.W.2d 310, 319 (Iowa 2013). Factors to be considered include “(1) the
length and complexity of the record, (2) whether the harmlessness of the
error or errors found is certain or debatable, and (3) whether a reversal
will result in protracted, costly, and ultimately futile proceedings in the
district court.” Id. (quoting United States v. Giovannetti, 928 F.2d 225,
227 (7th Cir. 1991)). The main factor, however, is “the extent to which
the harmlessness of the error is open to question.” Id. at 320.
The first Blaise factor, length and complexity of the record, cuts
against allowing a sua sponte harmless-error review. The trial lasted
thirteen days with over a hundred exhibits. This was not a relatively
short proceeding where the lack of harm is obvious from a cursory review
of the record. Further, we note that the State originally charged someone
else, Charles Thompson, with Versypt’s murder. This original
prosecution ended in a mistrial. This suggests that the question of who
was responsible for the murder has been an open question and has
shifted over time.
We now turn to the other Blaise factors, considering whether
reversal will lead to futile proceedings and especially the extent to
whether the harmlessness of error is open to question.
1. Opening and closing statements as windows to sua sponte
Blaise harmless error. We look to the opening and closing statements of
64
the parties as a window into whether the demanding Blaise sua sponte
harmless-error standard is met.
In its opening statement, the first substantive line from the
prosecution was, “This is a case about a robbery that went wrong.” The
prosecution outlined in detail uncontested facts related to the murder.
The prosecution continued by stating that the evidence would show that
Marshall observed Versypt as he approached the apartments on the day
of the murder. The prosecution noted that Charles Thompson, the
previous defendant in the Versypt murder, would testify that Marshall
took the clothes he was wearing on the day of the murder, placed them
in a plastic bag, and threw them away. The prosecution also stated that
the testimony of its experts would show gunshot residue on articles of
Marshall’s clothing.
The State closed by outlining the expected testimony of its three
informants. The prosecution noted that these men were persons
Marshall “thought that he could talk to and confide in.” The prosecution
summarized that Johnson would explain that Marshall told him that he,
Charles Thompson, and another individual were playing dice and that
Marshall and the other person decided to rob the landlord of rent money.
The prosecution indicated that Martin was asked by Marshall “to help
him write something that would make the shooting sound like an
accident.” The prosecution stated that Marshall asked Freeman for his
help in stating that the shooting was an accident and asked Freeman to
talk to his attorney about it.
In its opening statement, the defense began by noting that many of
the facts were not in dispute. What was in dispute was “who did it.” The
prosecution noted that after a long and intensive investigation, the State
charged Charles Thompson—and not Marshall—with the murder. With
65
respect to the three informants, the defense emphasized that they needed
to provide incriminating information to get reduction of their sentences.
The defense emphasized the lack of DNA and fingerprints linking
Marshall to the crime. With respect to gunshot residue, the defense
noted that gunshot residue was on the clothing of other occupants of the
apartment where Marshall lived, including Charles Thompson. In
closing, the defense declared, “Mr. Freeman, Mr. Johnson, Mr. Martin,
those are witnesses that the State needs for their case.” The defense
again attacked their credibility and their incentive to provide
incriminating statements.
In the prosecution’s closing statement, it methodically summarized
the testimony of trial witnesses. As in the opening statement, the
prosecution developed in depth the details of John Versypt’s life, the
investigation of the crime scene, and the autopsy. The prosecution
described in detail the testimony of Martin, Freeman, and Johnson. The
prosecution emphasized that Martin asked Marshall whether Marshall
trusted him and that afterwards they developed a plan through which
both would potentially benefit.
The prosecution read verbatim the entire contents of Exhibit 105,
the statement drawn up by Marshall at the request of Martin. The
prosecution emphasized to the jury, “[Y]ou’ll be able to take a look and
read it for yourself.” The prosecution further summarized the testimony
of Freeman and Johnson. All in all, the prosecution spent twelve
consecutive pages of transcript discussing the testimony of the
informants. The prosecution emphasized that the jury will “get to review
[the written statement] where [Marshall] lays out and admits that he’s
the one who shot John Versypt.” The State recognized that there was a
lack of scientific evidence linking Marshall to the crime, noting the trial
66
was “not a TV show, not everything is wrapped up.” But the prosecution
emphasized that “Justin Marshall did tell others what happened, and
they did testify.”
In the defense’s closing statement, the defense argued that the
State “has almost no physical evidence against Justin Marshall,” no
eyewitnesses, DNA, or fingerprints. The defense noted that while
gunshot residue, which has the capacity to migrate from one article of
clothing to another, was found on Marshall’s clothing, it was also found
on the clothing of Thompson and Courtney White, who from time to time
occupied the same apartment as Marshall. The defense noted testimony
that the gun found at the crime scene belonged to Thompson, not to
Marshall. The defense pointed at Thompson as a potential perpetrator,
noting that in September 2011 at Thompson’s trial the State identified
him as the shooter.
After citing the shortcomings of the State’s evidence, the defense
declared, “[S]o what it comes down to, ladies and gentlemen, is what
Justin Marshall said or supposedly said to the three convicted felons in
the Muscatine County jail, Earl Freeman, Carl Johnson, and Antonio
Martin.” According to the defense, “[T]he State’s whole case comes down
to three long-time career criminals who have done this before in order to
get a reduction in their sentences . . . .” In rebuttal, the prosecution
focused immediately on the testimony of the three informants, noting
that the prosecution had been “perfectly honest” about them. The
prosecution then briefly recanvased aspects of the trial, including
inconsistencies in Marshall’s October 9 statement and testimony
suggesting he disposed of his clothing after the murder. In closing, the
prosecution again returned to the subject of the informants. The
prosecution referred again to Exhibit 105, noting that “[t]his is not
67
something that was written by one of them. This was something written
by Justin Marshall.”
2. No sua sponte harmless error under Blaise. On the record
before us, we decline to find sua sponte that the error in admitting
Martin’s testimony was harmless. This was the second trial in
connection with Versypt’s murder, with the first trial against a different
defendant ending in a mistrial. The State then charged Marshall and a
thirteen-day trial ensued. The evidence admitted through Martin—
especially incriminating written materials that virtually amounted to a
confession—played a major role in the opening and closing statements of
the parties. The prosecution read the statement verbatim in closing
argument and in rebuttal emphasized the written exhibit as proof of
Marshall’s guilt. While Freeman offered testimony in some ways similar
to Martin’s, we do not think we can characterize Martin’s contribution as
merely cumulative in a Blaise-type review for sua sponte harmless error.
In addition, there was little direct scientific evidence linking
Marshall to the crime, and Thompson was a good alternative suspect—
indeed, some of the jurors in Thompson’s trial were unwilling to acquit
him of the charge. Further, we note that the jury in this case asked a
number of questions and ultimately were not unanimous on the theory of
guilt. We simply do not believe the narrow exception to our ordinary
issue preservation rules found in Blaise has been met based on the
record in this case.
E. Summary of Massiah Holdings. Based on our analysis of the
record, we conclude that Johnson and Martin were agents of the State.
While Martin plainly deliberately elicited information from Marshall, we
conclude that the evidence of deliberate elicitation is insufficient as to
Johnson. As a result, the motion to suppress should have been granted
68
as to Martin. Because the State does not argue harmless error and we
cannot say with certainty that the error was harmless under Blaise
standards, we vacate Marshall’s conviction and remand the case for a
new trial. We decide this case based on the Sixth Amendment of the
United States Constitution, since this was the approach followed by the
district court to decide the case. While we reserve the right to interpret
and apply the right to counsel provision in article I, section 10 of the
Iowa Constitution in a fashion different than under its federal
counterpart, see State v. Young, 863 N.W.2d 249, 280 (Iowa 2015) (“Our
tradition of the right to counsel is simply broader than that represented
by [the federal counterpart].”), we do not consider any questions in this
case related to the right to counsel under this state constitutional
provision.
VI. Conclusion.
For the above reasons, we hold that the district court improperly
overruled the motion to suppress as to Martin. As a result, the decision
of the court of appeals must be vacated and the judgment of the district
court must be reversed and the case remanded to the district court for
further proceedings.
DECISION OF COURT OF APPEALS AFFIRMED IN PART AND
VACATED IN PART; DISTRICT COURT JUDGMENT REVERSED AND
CASE REMANDED.
All justices concur except Mansfield, Waterman, and Zager, JJ.,
who concur in part and dissent in part.
69
#13–0739, State v. Marshall
MANSFIELD, Justice (concurring in part and dissenting in part).
This case can be resolved by common sense, precedent, and basic
constitutional principles. A defendant who volunteers incriminating
statements to a fellow inmate is not deprived of his Sixth Amendment
right to counsel just because the fellow inmate has a cooperation clause
in his plea agreement and is cooperating with law enforcement. Jail is
not a pure, pristine environment. Its occupants therefore run the risk
that persons with whom they are sharing confidences may be, in
common parlance, “snitches.” The State does not violate the Sixth
Amendment by taking advantage of this situation so long as the State
does not circumvent the right to counsel by using jailhouse stand-ins to
question inmates. The Iowa City Police Department did not do that here
or anything close to that. I therefore respectfully dissent in part.
In my view, the court goes well off the tracks in holding that
Antonio Martin’s testimony should have been suppressed. It appears the
Iowa City police had not spoken to Martin at all about the Versypt killing
before the defendant and Martin discussed it in jail; at most Martin had
been asked one general question about it. Furthermore, Martin disclosed
to the defendant from the beginning that he was a snitch, and the
defendant intentionally sought to use Martin as a snitch to tell his version
of Versypt’s death. As a practical matter, the majority finds a
constitutional violation only because Martin gave the defendant advice
that the defendant’s own counsel would not have given. Unlike the
court, I would not recognize this new constitutional claim of “ineffective
assistance of fellow inmate.”
The majority opinion, I fear, threatens to harm legitimate law
enforcement in Iowa. Under the majority’s approach, anyone who enters
70
into a cooperation agreement with the federal government as part of his
or her guilty plea—a fairly common occurrence—becomes a roving agent
“at large” of the State of Iowa. If this person then interacts with another
inmate, even if the interaction merely results in the inmate writing out
what the inmate has already said, a violation of the Sixth Amendment
right to counsel has occurred. I am unaware of any court anywhere in
the country that has adopted such an expansive view of Massiah v.
United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964). 2
I believe the court’s conclusions are driven by a fundamentally
wrong-headed view of the right to counsel. Undoubtedly, the government
has a constitutional obligation not to circumvent defendant’s legal
counsel. And that does happen in some cases, although it clearly didn’t
happen here. However, the majority’s position is that the State has to
make the jail a sanitized environment where every inmate can trust that
any fellow inmate who engages him in conversation isn’t cooperating with
the government. If the guarantee is violated, any statements can’t be
used even if (as in the case of Martin) the defendant knew the fellow
inmate was cooperating with the government.
A further flaw in the court’s approach is that it is utterly
unrealistic. Offenders have snitched on one another ever since Adam
blamed Eve for giving him the forbidden fruit. This will continue to occur
because the nature of plea bargaining and sentencing (especially federal
sentencing) provides a strong incentive for it to occur. The court’s
opinion, however, provides a strong disincentive for the documentation of
2Idiscuss below the cases that the court claims support its approach. There is
a Massachusetts case that adopts the majority’s view of agency but requires more by
way of deliberate elicitation than the majority does today. See Commonwealth v.
Murphy, 862 N.E.2d 30, 43–45 (Mass. 2007).
71
such arrangements. Instead of formal cooperation agreements, which
provide a clear basis for impeaching the informant while also providing a
sanction if the informant doesn’t tell the truth, there will be vague and
muddy informal arrangements.
I. Additional Factual Background.
A fair understanding of this case needs to begin with more facts
than the majority provides. The majority’s quick “overview of the crime”
does not adequately convey the strong evidence of Justin Marshall’s
guilt. 3 This evidence helps explain why Marshall was not so much a
victim of jailhouse snitching as a willing participant, when he sought out
others to tell his story in the hope that he would be convicted of a lesser
charge than first-degree murder.
Several witnesses placed Marshall in the location where Versypt
was killed at the time he was killed. Marshall was also tied to the
murder weapon. In addition, gunshot residue was found on Marshall’s
jacket. Marshall’s statements to police were highly inconsistent and
revealed details about Versypt’s death not known to the public. Marshall
later told two fellow inmates—the admissibility of whose testimony is not
questioned by the majority—that he had planned to rob Versypt, that
Versypt went for the gun or otherwise startled him, that as a result
Marshall shot Versypt, and that Marshall then wiped the gun off on his
own jacket and ran.
John Versypt’s death from a gunshot wound occurred around
4 p.m. on October 8, 2009. Officers found his body lying on the floor on
3The
district court found there was substantial evidence to support guilty
verdicts on all of the theories presented to the jury, including that Marshall committed
murder as a principal, that Marshall engaged in joint criminal conduct (i.e., he
intentionally joined a robbery during the course of which Versypt was murdered), and
that Marshall committed felony murder (the felony being robbery). I agree.
72
the back landing of Building C of the Broadway Condominiums. Versypt
had been shot once, with the bullet passing at close range through one of
his hands and his face. Versypt passed away before the officers arrived.
The officers retrieved a multicolored .38 caliber revolver that had been
left near Versypt’s body.
Shawnta Jackson lived in a third-floor apartment of Building C.
While doing laundry downstairs that afternoon, she had noticed Marshall
and another person (Courtney White) standing outside the back door of
the building. Later, when Jackson returned to get her laundry, she saw
Versypt lying on the ground on the back landing. He was bleeding and
gasping for air. Jackson ran back up to her apartment.
Andrew Shepard resided in the same third-floor apartment of
Building C as his sister Jackson. After Jackson ran into the apartment
telling Shepard in shock what she had seen, Shepard hurried
downstairs. Versypt was still breathing heavily, and Shepard saw a gun
on the ground. Shepard called the police. While Shepard was on the
phone with the 911 operator, Versypt stopped breathing. Shepard also
saw a drill, a wallet, and signs on the floor. The wallet was open.
The next day, Shepard discussed with his brother what he had
seen. Marshall joined the pair and asked what kind of gun Shepard had
observed near the body. Shepard said it was a camouflage .38. Marshall
admitted to owning “a gun just like that one.” Oddly, though, Marshall
claimed to have been in Shepard’s apartment at the time of the shooting.
Shepard disputed that, telling Marshall he had not been in Shepard’s
apartment. Marshall insisted he had been in Shepard’s apartment, and
Shepard again disagreed.
James Brown lived in Building C in an apartment next door to the
apartment where Marshall and Charles Thompson resided. On the night
73
before the shooting, Brown was visiting the other apartment and noticed
a dark-colored gun that appeared to be a .38 lying on the bed in the back
bedroom. At that time Marshall and Thompson were present in the
bedroom. Brown later saw the actual gun that was retrieved from beside
Versypt’s body. He identified this as the same gun he had seen the night
before the shooting.
Brown’s account of the shooting generally aligned with Shepard’s.
Brown heard a shot go off and heard the back door of the building “bust
open real quick” but was unable to see anyone exit the building. A few
minutes later, Brown could hear Marshall knocking on the door of his
own apartment, quietly asking his own aunt (who also resided in the
apartment) to let him in. When Brown opened the door and looked
downstairs, he saw Versypt’s body lying on the landing. Versypt was in
the process of dying, and Shepard was on the phone with the 911
operator.
On the evening of the shooting, a surveillance camera caught
Marshall and Thompson carrying garbage bags out of Building C, which
they tossed into the dumpster. However, a jacket that Marshall had been
seen wearing during the afternoon of the shooting was later recovered by
police. It tested positive for gunshot residue.
Marshall was interviewed by police and made numerous
inconsistent statements. His recorded interviews were subsequently
played back for the jury. Initially Marshall denied knowing anything
about the shooting. Later he tried to implicate Thompson, claiming he
heard Thompson talking on the phone about “hitting a sweet lick
[robbery]” around 2:30 p.m. on the day of the fatal shooting. Police were
unable to corroborate from phone records that this call had actually
occurred.
74
Later still Marshall said that Thompson and someone else had
planned to rob Versypt. He claimed he overheard Thompson saying on
the telephone afterward that “we hit a lick,” but the lick “went wrong.”
Yet further into the interview, Marshall contradicted himself again and
said that these alleged statements were made during a personal
conversation he had with Thompson the night after the shooting.
Marshall also told police that Versypt had been shot in the face.
When asked how he knew this, Marshall became flustered and claimed
the police had told him. In fact, the police had deliberately withheld this
factual detail.
Thompson was originally charged with Versypt’s murder. However,
his trial ended in a mistrial when inadmissible evidence was
inadvertently introduced. Subsequently, he reached a deal with the
State wherein he pled guilty to being an accessory after the fact.
Thompson ultimately testified against Marshall at Marshall’s trial.
According to Thompson’s testimony, right after the shooting, Marshall
came into their apartment and said that someone had been shot in the
hallway. Later in the evening, Thompson saw Marshall putting the pants
he had been wearing that day in a plastic sack. Marshall then placed the
sack in a larger garbage bag from the kitchen. This was one of the bags
the two men threw out that evening.
II. The Informants.
On July 12, 2011, a criminal complaint was sworn out against
Marshall. Marshall was arrested in Texas several days later and
transported back to Iowa. On August 1, a trial information was filed
charging Marshall with first-degree murder. Marshall pled not guilty on
August 2. He was thereafter held in custody at the Muscatine County
Jail.
75
Over the course of the Versypt murder investigation, Detective
Michael Smithey interviewed several jailed individuals he thought might
have information about the killing. Detective Smithey stated that the
focus of such interviews was “[t]o gather information that they have from
while they were on the street or that they have gathered while
incarcerated.” Detective Smithey said that individuals who have been
arrested for “federal-level drug crimes” can be particularly helpful in
investigations because they are well known in their communities and can
often “shed light on violent crimes, robberies, serious assaults,
homicides, [and] other [crimes].” He continued, “People in those
situations are a wealth of knowledge about what is going on in the street
and who is doing what.” Detective Smithey denied giving any
instructions to the persons he interviewed:
[P]eople oftentimes ask, do you want us to find it? No, we’re
not telling you to do anything. If you learn something,
contact us, but there are no specific directions as to find
something out about this person or ask them this or
anything like that.
Three of these informants ended up testifying against Marshall—
Carl Johnson, Earl Freeman, and Antonio Martin. The majority
concludes that error occurred only with respect to the admission of
Martin’s testimony. Let me therefore review the testimony of the other
two informants before I get to Martin.
A. Johnson. Johnson was being held in the Muscatine County
Jail during the summer of 2011 following a federal conviction for
conspiracy to distribute cocaine. He had entered into a guilty plea that
included a cooperation agreement. Johnson had originally been
sentenced to 240 months in prison, but after he testified against his
codefendant, his sentence was reduced to 140 months.
76
On July 12, Johnson went through a proffer interview with
Detective Smithey and Detective Jennifer Clarahan in the presence of
Johnson’s attorney. Detective Smithey subsequently testified regarding
the interview as follows:
Q. Now, according to your report, the first thing you
told him was we’re here for information about the death of
John Versypt or words to that effect, correct? A. May I refer
to my report?
Q. Yes. I’m looking at paragraph 2. A. Yes.
Q. Then, on the next page, he was asked to provide
information about Charles Thompson, also known as Weezy.
Do you see that there? A. Yes.
Q. Paragraph 4, he was asked to provide information
about Justin Marshall. Do you see that? A. Yes.
Q. And then paragraph 5, he was asked to provide
information about Courtney White, also known as Mow-Mow.
Do you see that? A. Yes.
Q. So, Officer, first you go into Mr. Johnson and you
say, we’re here to talk about the killing of John Versypt.
Then you give him the names of people you’re interested in,
whether it’s [Charles Thompson], Justin Marshall, or
Courtney White. Do you recall doing that? A. Yes. It’s in
the report.
Johnson said he had been a resident of the Broadway
Condominiums at the time of the shooting, and he remembered
discussing it with other residents when it occurred. During the
interview, Johnson told Detective Smithey that Marshall had said
Thompson killed Versypt. Detective Smithey did not ask Johnson to
gather any more information from Marshall, Thompson, or White but did
tell Johnson to “contact me if he learned anything further.”
In September, Johnson’s attorney contacted Detective Smithey,
indicating that Johnson might have additional information about the
Versypt killing. Detective Smithey accordingly reinterviewed Johnson at
77
the jail. Johnson said he had learned more from Marshall after both
men had been placed in a segregated area of the jail in August for
separate rule violations. According to Johnson’s trial testimony, their
discussion went as follows:
Q. What did you discuss initially with Justin Marshall
when you first started talking to him while you were in
segregation? A. Well, when I first—I say to him then, I knew
him so I asked him what was he in there for.
Q. And what did he tell you? A. He say, man, they
got me for that landlord, and he cursed.
Q. Did he tell you more about what happened that led
him to be charged or did he tell you more about the landlord
being shot? A. Both.
In further conversation, Marshall disclosed to Johnson that he
(Marshall) came up with the idea to rob Versypt because “some [tenants]
pay with cash.” Marshall also told Johnson that “the robbery went
wrong” in that “[t]he landlord got shot.” According to Johnson, Marshall
described the shooting in the following terms:
All [Marshall] said was it was real—the shot was loud. It was
loud in the hallway, and that kind of like froze him up, and
after that he ran out the back to get away from the scene.
He came back around, knocking on the front door, but he
was whispering a little bit because he didn’t want nobody to
know he was in the hallway.
The Iowa City police had made no effort to have either Johnson or
Marshall placed in segregation. Detective Smithey also denied asking
Johnson to try to obtain more information or indeed any information
from Marshall regarding the killing of Versypt. Detective Clarahan
likewise testified that she never asked Johnson to obtain information
from Marshall, nor did she ever hear anyone else from the State ask
Johnson to get information from Marshall.
78
B. Freeman. Freeman was also housed in the same cell block at
the Muscatine County Jail as Marshall for a time period in 2011. At one
point, while Freeman was helping Marshall draft a motion for
appointment of new counsel, Marshall spoke with Freeman about the
reasons why he (Marshall) was in jail. Marshall provided Freeman with
this version of what had happened on October 8, 2009:
[Marshall] went to rob him. [Versypt] grabbed for the gun.
The gun went off, shot him in the hand, shot him in the
head. He fell in the door or . . . on the ground in the
doorway . . . and [Marshall] wiped the gun off the front of his
jacket and he took off.
Marshall told Freeman that no one else was involved in the attempted
robbery and fatal shooting and that Thompson was “innocent.”
Marshall also explained that he wanted to get his charges reduced
from murder to manslaughter. He thus discussed a scheme with
Freeman under which Freeman would tell his attorney that Marshall had
confessed to an accidental shooting. Marshall wrote out on a yellow pad
what he wanted Freeman and another inmate—Martin—to say.
C. Martin. This brings us to Martin. In November 2010, Martin
was arrested on federal charges for conspiracy to distribute cocaine and
a firearms violation. He pled guilty, and his plea agreement included a
cooperation agreement with the federal government in which he agreed to
be interviewed by law enforcement and provide truthful information.
Martin understood that if he provided substantial assistance in another
criminal case to the government and the United States Attorney’s Office
filed a motion, the federal district court could reduce his sentence. In
fact, when Martin was sentenced on his federal charges in March 2012,
Martin received a large reduction in his sentence after testifying against
his cousin, a codefendant in his case.
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Although Martin had a cooperation agreement, his discussions
with the Iowa City police before October 2011 related to other matters
and not the Versypt killing. On cross-examination, Detective Smithey
conceded he “may have asked [Martin] if he had any knowledge of it . . .
but it would have been just a simple, do you know any information about
this?” At this point, Martin’s answer obviously would have been no. 4
Between his arrest in November 2010 and his sentencing in March
2012, Martin was also being held at the Muscatine County Jail. Martin
previously knew Marshall from the Broadway neighborhood, yet had not
seen him since 2009. In August 2011, Martin ran into Marshall when he
was moved into Marshall’s sixteen-man pod. There is no evidence that
the State deliberately placed the men together or that Martin sought out
Marshall’s pod.
In their initial conversations, Marshall told Martin that he was in
jail for the murder of Versypt but denied having anything to do with it.
Martin in turn told Marshall what his federal charges were and that he
was testifying against one of his codefendants. In other words, Marshall
knew that Martin was a “snitch.” In fact, Marshall intended to use
Martin for that purpose.
As time passed, Marshall stopped claiming that he had nothing to
do with Versypt’s death. Instead, Marshall related to Martin a different
story—that Versypt had startled Marshall, Marshall’s gun had
accidentally gone off, and then Marshall had wiped the gun off and run
away. As Martin testified,
4Martin himself did not recall ever meeting Detective Smithey prior to October
2011. Regardless, Detective Smithey’s testimony that he “may have” asked Martin in
passing about the Versypt killing does not demonstrate that Detective Smithey asked
Martin to gather information on that killing, let alone that Detective Smithey asked
Martin to get information on Marshall.
80
Q. [D]id he tell you what happened when he went out
to sell the gun? A. He said he went downstairs and
somebody came up behind him saying something, coming,
approaching him, and he got scared and he turned around
and pulled the gun from his waistband.
Q. Did he tell you what he did with the gun? A. He
said it all happened so quick, you know. The gun went off
and he dropped it and picked it back up and wiped it off and
dropped it again and ran.
Marshall also told Martin he was trying to get his charge reduced
to manslaughter and asked Martin for information on the legal definition
of manslaughter as well as armed robbery. At this point, Martin
encouraged Marshall to write his story down, i.e., to “use [Martin] as a
jailhouse snitch” so Martin could “get [Marshall’s] story out and it might
help both of [them].” Marshall did his writing on a legal pad provided by
Marshall’s attorney. Martin was not present when Marshall wrote out
his account and never told Marshall what to write.
In October 2011, Martin was telephoning with his own attorney at
the Muscatine County Jail and took Marshall’s handwritten story with
him. It turned out that Detective Smithey was there that day as well on
another matter. Neither Martin nor Detective Smithey knew the other
was going to be present. When Detective Smithey came into the room,
Martin showed him the legal pad and let him scan it but didn’t let him
keep it. Detective Smithey then obtained a search warrant for Marshall’s
cell. Marshall’s handwritten story, by then torn into pieces that had to
be reassembled, was recovered from Marshall’s jail cell. It was identified
by both Freeman and Martin and used against Marshall at trial.
The majority says it is a “remarkable coinciden[ce]” that Detective
Smithey was at the jail the day that Martin was talking on the phone
with his attorney. I do not find this remarkable. In 2011, Detective
Smithey had been reassigned to the Johnson County Drug Task Force
81
and thus had numerous other reasons to be at the jail. Here is Detective
Smithey’s testimony that the majority finds unbelievable and that I do
not:
Q. How did it come about that you interviewed him
that day? A. I had just finished having a conversation with
someone else there at the jail. There are two areas where
these conversations typically take place. One is the library.
It’s a fairly sizable room with law books, and I don’t know if
it’s technically a law library there or not, but there’s fairly—
it’s where most of the meetings take place because there are
multiple tables in it where five, six, ten people could
probably sit. And then there’s another room that is between
the library and the door that is used to exit the secure area
of the facility. As I was leaving the library area, I saw
Antonio Martin sitting alone inside that other much smaller
room. It’s a room that four people would be uncomfortable
being in. It’s tight. He was alone in that room. And I
confirmed with jail staff that it was indeed Mr. Martin in the
room.
Q. And what did you do when you saw Mr. Martin?
A. I asked the jail staff if they’d allow[] me in to speak with
him, and they did. I went into the room, and he was on the
phone with his attorney at the time. I identified myself to
her. I knew her from other cases that I was working, and
they allowed me to sit in and ask a few questions of Mr.
Martin.
Q. While you were sitting in with Mr. Martin, did Mr.
Martin show you anything? A. He did.
Q. And could you just generally describe what he
showed you. A. Mr. Martin showed me a yellow legal pad.
That legal pad had—it wasn’t completely full. It had four
pages. The first four pages had writing on them. The others
were blank.
The district court found that Martin “collected information prior to
and without being approached by the police.” Unlike the majority, I
would not disbelieve Detective Smithey but would rely on the trial judge’s
evaluation of what happened here.
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D. The District Court’s Ruling. The district court overruled
Marshall’s motion to suppress the testimony of Freeman, Martin, and
Johnson on the following grounds:
I have had a chance to review the standard, and I’m going to
overrule the motion to suppress and allow the witnesses to
testify. The case law suggests that an informant becomes a
government agent for purposes of the test only when the
informant has been instructed by the police to get
information about a particular defendant. The defendant
must demonstrate that the police and their informant took
some action beyond merely listening that was designed
deliberately to elicit incriminating remarks.
....
. . . The primary—the cases indicate that the primary
concern of those decisions is secret interrogation by
investigatory techniques that are the equivalent of direct
police interrogation. The Sixth Amendment is not violated,
however, whenever, by luck or happenstance, the State
obtains incriminating statements. I think this case presents
just the sort of luck or happenstance that resulted in these
gentlemen coming forward and providing information to the
State based upon what they alleged to have been statements
made by Mr. Marshall.
I think this analysis succinctly summarizes why there was no
Sixth Amendment violation here.
III. Marshall’s Sixth Amendment Right to Counsel Was Not
Violated Because Martin Was Not a Government Agent When He
Spoke to Marshall.
In Massiah, the United States Supreme Court held that a
defendant
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.
377 U.S. at 206, 84 S. Ct. at 1203, 12 L. Ed. 2d at 250. Thus, a Massiah
violation requires findings that the informant was a government “agent”
and “had deliberately elicited” statements from the defendant. Id. Both
83
of those elements are simply absent here. I will start with agency.
Marshall bears the burden of proof in establishing agency. See Moore v.
United States, 178 F.3d 994, 997, 999 (8th Cir. 1999); Lightbourne v.
Dugger, 829 F.2d 1012, 1020 (11th Cir. 1987).
I agree with the essence of the State’s position: Without some
direction or instruction from the government, an informant does not
become a government agent for Massiah purposes. The most one can
say here is that Martin had entered into a plea agreement on federal
charges wherein he agreed to cooperate with the government in the hope
of receiving a sentence reduction and that Martin and Marshall ended up
in the same jail pod. These routine circumstances fall well short of
establishing agency.
It is important to note what this case does not involve. There is no
evidence that Martin was asked to contact Marshall or engage him in
conversation. There is no evidence that any person with knowledge of
Martin’s status placed him in the same unit with Marshall (or even knew
they were going to be together). There is also no evidence that Martin
sought out Marshall.
Since Massiah, three other Supreme Court decisions have
specifically addressed the government use of informants to allegedly
circumvent the Sixth Amendment right to counsel. See Kuhlmann v.
Wilson, 477 U.S. 436, 456, 106 S. Ct. 2616, 2628, 91 L. Ed. 2d 364,
382–83 (1986); Maine v. Moulton, 474 U.S. 159, 171, 106 S. Ct. 477, 484,
88 L. Ed. 2d 481, 492–93 (1985); United States v. Henry, 447 U.S. 264,
269, 100 S. Ct. 2183, 2186, 65 L. Ed. 2d 115, 121 (1980).
No one disputes that Henry is the high-water mark for the
Supreme Court’s recognition of claims of Massiah violations. In Henry,
FBI agents reached out to Nichols, a paid informant, who was being held
84
in the same jail as Henry. Henry, 447 U.S. at 266, 100 S. Ct. at 2184,
65 L. Ed. 2d at 119. Henry had been indicted for armed robbery, and the
facts were not clear whether the government contacted Nichols for
information about the robbery more generally or asked for information
specifically about Henry. Id. Nichols told the agents that he was on the
same cellblock as several federal prisoners including Henry, and “[t]he
agent told him to be alert to any statements made by the federal
prisoners, but not to initiate any conversation with or question Henry
regarding the bank robbery.” Id. at 266, 100 S. Ct. at 2184–85, 65 L. Ed.
2d at 119. After Nichols’ release from jail, the same FBI agent contacted
him, and Nichols gave the agent information that Henry had revealed to
Nichols in conversation. Id. at 266, 100 S. Ct. at 2185, 65 L. Ed. 2d at
119. The government paid Nichols for the information. Id. Nichols
testified at Henry’s trial, and Henry was convicted. Id. at 267, 100 S. Ct.
at 2185, 65 L. Ed. 2d at 120.
Nichols had been a paid Government informant for more
than a year; moreover, the FBI agent was aware that Nichols
had access to Henry and would be able to engage him in
conversations without arousing Henry’s suspicion. The
arrangement between Nichols and the agent was on a
contingent-fee basis; Nichols was to be paid only if he
produced useful information.
Id. at 270, 100 S. Ct. at 2187, 65 L. Ed. 2d at 122.
In its opinion, the Court concluded, “By intentionally creating a
situation likely to induce Henry to make incriminating statements
without the assistance of counsel, the Government violated Henry’s Sixth
Amendment right to counsel.” Id. at 274, 100 S. Ct. at 2189, 65 L. Ed.
2d at 125. The Court added, “Even if the agent’s statement that he did
not intend that Nichols would take affirmative steps to secure
incriminating information is accepted, he must have known that such
85
propinquity likely would lead to that result.” Id. at 271, 100 S. Ct. at
2187, 65 L. Ed. 2d at 122. Otherwise stated, the Court found that
Nichols was “acting by prearrangement as a Government agent.” Id. at
273, 100 S. Ct. at 2188, 65 L. Ed. 2d at 124.
We applied Henry not long after it was decided in State v. Nelson,
325 N.W.2d 118, 120 (Iowa 1982). In that case, Jackson, an informant,
passed a note to a jailer stating that he had information regarding
Nelson’s case that he wanted to discuss with law enforcement. Id. at
119. The informant met with a deputy sheriff and passed along
incriminating statements made by Nelson in jail. Id. The deputy sheriff
told the informant that he would put him in touch with the officers
investigating Nelson’s case. Id. The deputy “made no promise to
Jackson in return for the information,” and “he did not direct Jackson to
endeavor to gather any further information.” Id. Rather, “[h]e merely
had Jackson return to his cell to continue in the same capacity as an
inmate.” Id. The deputy “obviously knew further conversations were
likely.” Id. Still we reasoned that “[t]he crux is that the State had not
‘put him [the informant] up to it.’ ” Id. After this first meeting, Jackson
later met with law enforcement again and agreed to work for the state on
other cases. Id.
We affirmed the trial court’s ruling that only statements made by
Nelson after Jackson’s second meeting with law enforcement should be
suppressed whereas statements made after the first meeting were
admissible. Id. at 120. With respect to the first meeting, we noted both
that the state had not directed Jackson to gather more information and
that Jackson had no agreement with the state that he would receive
payment or other favorable treatment for providing the information. Id.
at 119–20. “In summary we do not believe the statements which were
86
the subject of Jackson’s testimony were gathered by him at the time he
was working for the State.” Id.
This case falls short of the circumstances warranting suppression
that were described in either Henry or Nelson. At most, prior to Martin’s
encounter with Marshall, Detective Smithey might have asked Martin a
simple question as to whether Martin had any information about the
Versypt killing. Again, there is no evidence the Iowa City Police
Department knew Martin was going to be housed with Marshall, made
arrangements for this to happen, told Martin to listen for statements by
Marshall, or even expressed particular interest in the Versypt killing. 5
The majority places great weight, apparently dispositive weight,
upon Martin’s federal cooperation agreement. Although Martin’s plea
bargain is not in the record, there is no indication that it included
anything other than a typical, plain vanilla federal cooperation
agreement. Under such an agreement, the defendant agrees to meet with
the government and provide truthful information about criminal activity
of which he or she is aware, and the government agrees to move for a
downward sentencing departure if the defendant ends up providing
substantial assistance to the government. See, e.g., United States v.
Cimino, 381 F.3d 124, 125 n.1 (2d Cir. 2004); United States v. Tejada,
773 F. Supp. 622, 624 (S.D.N.Y. 1991).
5The majority points to testimony given by Detective Smithey on cross-
examination that it would “[p]robably” be “reasonable to assume” that after the July
2011 meeting, Johnson was “going to tell other snitches” that the government wants to
know about the Versypt killing and the people the government was interested in.
However, Martin denied discussing Marshall with Johnson, and Johnson likewise
denied discussing Marshall with Martin. Moreover, the three individuals who were
persons of interest in the Versypt killing—Marshall, Thompson, and White—were
already widely known to the general public.
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So, the question becomes, in effect, if an individual enters into a
standard cooperation agreement, does that individual become a
government agent with respect to any matters in which the government
happens to have interest?
A number of federal circuits would say no under their bright-line
approach. They hold that a cooperation agreement is not enough unless
the informant is “instructed by the police to get information about the
particular defendant.” United States v. Whitten, 610 F.3d 168, 193 (2d
Cir. 2010) (quoting United States v. Birbal, 113 F.3d 342, 346 (2d Cir.
1997)); see United States v. LaBare, 191 F.3d 60, 65–66 (1st Cir. 1999);
Moore, 178 F.3d at 999. Clearly that did not occur here.
The majority is correct that many circuits do not follow the bright-
line approach. But when one reviews the facts and holdings of these
cases, none of them are helpful to Marshall.
Thus, the Third Circuit has found that a combination of an
informant’s “tacit agreement with the government” to receive potentially
favorable sentencing treatment and the government’s deliberate placing
of the informant in a cell with another inmate to obtain information from
the inmate could amount to a Massiah violation. United States v. Brink,
39 F.3d 419, 424 (3d Cir. 1994). The Fourth Circuit requires that “the
prosecutors have intentionally placed the informant in the jail cell with
instructions to elicit a confession, or . . . there has been an agreement
promising consideration for a confession from a particular defendant.”
United States v. McFadden, 187 F. App’x 290, 294 (4th Cir. 2006). The
Fifth Circuit has approved a test for agency under which the informant
must have “acted pursuant to instructions from the State, or otherwise
submitted to the State’s control.” Creel v. Johnson, 162 F.3d 385, 393
(5th Cir. 1998). Similarly, the Seventh Circuit has refused to find a
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Massiah violation when “[t]he evidence demonstrated no government
control over [the informant’s] actions; most importantly, there was no
control over [the informant’s] decision to arrange a meeting with [the
defendant].” United States v. Li, 55 F.3d 325, 328 (7th Cir. 1995). The
Ninth Circuit has held that a Massiah violation can occur when the
informant is intentionally “put back in the cell with [the defendant]” after
meeting with law enforcement and indicating a “willingness to cooperate
with the prosecution” even without a promise of leniency. Randolph v.
California, 380 F.3d 1133, 1146–47 (9th Cir. 2004). Meanwhile, the D.C.
Circuit rejected a Sixth Amendment claim when the informant “was
acting as an entrepreneur” and the government had not encouraged or
instructed him to speak with the defendant in jail. United States v.
Watson, 894 F.2d 1345, 1348 (D.C. Cir. 1990).
As can be seen, the nonbright-line circuits are not uniform in their
approaches. However, under any of these standards Marshall has failed
to establish that Martin was acting as a government agent. Martin had
received no instructions from the State, and his encounters with
Marshall in the same segregation unit of the jail were pure
happenstance.
The majority attempts to use United States v. York, to support its
“informant at large” theory. See York, 933 F.2d 1343 (7th Cir. 1991),
overruled on other grounds by Wilson v. Williams, 182 F.3d 562, 567 (7th
Cir. 1999). The case is easily distinguishable. In that case, the
informant had a longstanding relationship with the FBI and was
reporting to the FBI on a weekly basis and making monitored phone calls
on the FBI’s behalf. Id. at 1357–58. After giving the information to the
FBI that was used against the defendant, he received $5000 from the
FBI. Id. at 1358. Additionally, the FBI agent “told [the informant] the
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type of information he was interested in receiving; that statement was
tantamount to an invitation to [the informant] to go out and look for that
type of information.” Id. In dicta, the Seventh Circuit concluded that an
agency relationship existed between the FBI and the informant, although
it ultimately found there had been no deliberate elicitation and therefore
no Massiah violation. Id. at 1358–60.
The Seventh Circuit’s test for agency was based on traditional
common law agency principles, and under the egregious facts of York the
Seventh Circuit said that the informant served as an agent subject to the
government’s control. See id. at 1357–58. However, it is noteworthy that
the court today disclaims a common law agency test. It is also
noteworthy that more recently, the Seventh Circuit declined to find
agency when the informant discussed with the government his plan to
meet with the defendant, but there was no government control over the
informant’s actions or his decision to arrange a meeting with the
defendant. See Li, 55 F.3d at 328.
Another informant-at-large case, Commonwealth v. Moose, is also
factually distinguishable from what occurred here. See 602 A.2d 1265
(Pa. 1992). In that case, the informant had been intentionally “kept in
the county jail for three years because he was supplying the district
attorney’s office with information about various inmates.” Id. at 1270.
In fact, this informant “was called the ‘monsignor’ because so many
inmates allegedly confessed to him.” Id. The Pennsylvania Supreme
Court concluded that even though the informant “was not planted for the
purpose of gaining information from a targeted defendant,” “[t]he fact
that the Commonwealth intentionally left him there to harvest
information from anyone charged with a crime and awaiting trial is the
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villainy.” Id. Again, these extreme facts that supported a finding of
agency bear no resemblance to the record here.
The majority also cites Ayers v. Hudson, 623 F.3d 301, 312 (6th
Cir. 2010), to support its view that “a wink and a nod” can establish
agency. The Sixth Circuit disavows the bright-line approach. Id. at 311.
(“We agree with those courts that do not limit agency in the Massiah
context to cases where the State gave the informant instructions to
obtain evidence from a defendant.”). Yet once again, the facts of the case
cited by the majority are quite different from here. In Ayers, the
defendant confessed to an informant sharing his jail pod that he had
committed a murder. Id. at 305. The informant contacted the police and
met with detectives to relay this information. Id. At that time, the
informant could not provide the detectives with information about the
murder weapon or money stolen from the victim. Id. The detectives’
report specifically noted this information was missing. Id. The detectives
returned the informant to the jail pod and “within an hour or so”
thereafter, the informant directly questioned the defendant regarding the
murder weapon and the stolen money. Id. at 305–06. The Sixth Circuit
suppressed the statements regarding the weapon and the money that the
informant had obtained from the defendant within an hour after meeting
with the detectives. Id. at 310.
By contrast, in the present case, the State did not intentionally
place Martin in proximity to Marshall so he could procure additional
information. Moreover, the record in Ayers strongly suggested the
informant had been given specific guidance by the police, considering
that he immediately sought out the two pieces of information the
detectives wanted. See id. at 305. No such guidance was given to
Martin.
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The only appellate decision I am aware of that might help Marshall
establish agency under the facts of this case comes from the
Massachusetts Supreme Judicial Court. See Commonwealth v. Murphy,
862 N.E.2d 30 (Mass. 2007). Murphy was found guilty of murder
following a trial at which an informant testified to statements Murphy
made in jail. Id. at 34–35. The informant had entered into a plea
agreement with the United States Attorney’s Office and subsequently met
Murphy in jail. Id. at 34. Under the terms of the plea agreement, “if the
informant provided ‘substantial assistance’ to the government, in the
discretion of the United States Attorney’s office,” the informant could
potentially receive a lesser sentence. Id. at 36. The informant did not
have any agreement with any Massachusetts authorities. Id. at 35. The
informant did two favors for Murphy to lure him into a false sense of
trust, before asking Murphy what he did about his anger toward the
victim. Id. at 44–45. The court concluded that the informant had acted
as a government agent and found a violation of both the Sixth
Amendment and its counterpart in the Massachusetts Constitution. Id.
at 46. The court explained,
[W]here the government has entered into an “articulated
agreement containing a specific benefit,” or promise thereof,
the recipient inmate is a government agent for purposes of
the Sixth Amendment to the United States Constitution and
art. 12 of the Massachusetts Declaration of Rights even if the
inmate is not directed to target a specific individual.
Id. at 33 (quoting Commonwealth v. Reynolds, 708 N.E.2d 658, 664
(Mass. 1999)).
I do not agree with this decision, which essentially holds that a
generic cooperation agreement is enough to confer government agent
status on an individual. See Whitten, 610 F.3d at 193 (“More than a
cooperation agreement is required to make an informant a government
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agent with regard to a particular defendant.”). Generally, of course, the
mere existence of an agreement containing a quid pro quo does not make
one party the agent of the other. Contract law teaches us that all
enforceable agreements have a quid pro quo, but that does not mean the
parties become agents of each other. See Restatement (Third) of Agency
§ 1.01 cmt. c, at 19 (Am. Law Inst. 2006) (“Not all relationships in which
one person provides services to another satisfy the definition of agency.”).
There must be some element of control, based on an actual instruction to
target a specific defendant, as several circuits hold, or some other form of
supervision, such as intentionally placing the informant directly with the
defendant in order to obtain information from the defendant. Even
foreseeability that the informant would engage with the defendant, which
we do not have here, was not enough according to our Nelson decision.
See Nelson, 325 N.W.2d at 119–20 (finding the informant was not
“working for the State” because the State “had not ‘put him up to it’ ”
even though the State “obviously knew further conversations were
likely”). Here there is simply no indication that Detective Smithey
directed or controlled Martin’s activities.
My colleagues do not approve of a direction-or-control requirement.
But the law as established by the United States Supreme Court requires
that the informant be a government “agent.” See Massiah, 377 U.S. at
206, 84 S. Ct. at 1203, 12 L. Ed. 2d at 250. And to be an agent one
must agree to act on a principal’s behalf and be subject to the principal’s
control. See Restatement (Third) of Agency § 1.01, at 17. So, a control
element focuses the inquiry where it should be focused.
By resorting to circular reasoning, the court leaves a hole in its
analysis. The majority states, “[A] court must determine—under all the
facts and circumstances—whether the relationship between the state and
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an informant is such that the state has violated its affirmative duty . . .
to protect the Sixth Amendment rights of defendants.” This circular
standard is no standard at all. Rather, it simply restates the ultimate
issue—i.e., whether the Sixth Amendment has been violated.
Given this circularity, we need to consider what as a practical
matter the court relies on to find agency here. As in Murphy, it is merely
the existence of a generic cooperation agreement between Martin and the
federal government.
Given the nature of federal sentencing, federal defendants are often
motivated to inform on other inmates with or without a cooperation
agreement. See 18 U.S.C. § 3553(e) (2012) (“Upon motion of the
Government, the court shall have the authority to impose a sentence
below a level established by statute as a minimum sentence so as to
reflect a defendant’s substantial assistance in the investigation or
prosecution of another person who has committed an offense”).
“Entrepreneurs and volunteers are not government agents.” United
States v. Johnson, 338 F.3d 918, 924 (8th Cir. 2003). Marshall fell prey
to the self-interest of other inmates, not government interference with his
right to counsel. This is clearly not a case where the government acted
“to circumvent the right to the assistance of counsel.” Moulton, 474 U.S.
at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at 496. Because Martin was not
acting as a government agent, Marshall’s Sixth Amendment rights were
not violated.
IV. Martin Did Not Deliberately Elicit Statements from
Marshall.
Marshall’s Massiah claim also fails because Martin did not
deliberately elicit statements from him. The Supreme Court has
explained the reasoning behind this prong of the inquiry:
94
[T]he primary concern of the Massiah line of decisions is
secret interrogation by investigatory techniques that are the
equivalent of direct police interrogation. Since “the Sixth
Amendment is not violated whenever—by luck or
happenstance—the State obtains incriminating statements
from the accused after the right to counsel has attached,” a
defendant does not make out a violation of that right simply
by showing that an informant, either through prior
arrangement or voluntarily, reported his incriminating
statements to the police. Rather, the defendant must
demonstrate that the police and their informant took some
action, beyond merely listening, that was designed
deliberately to elicit incriminating remarks.
Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed. 2d at 384–85
(quoting Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed. 2d at
496). It should be noted that the burden of proving deliberate elicitation,
like agency, rests with the defendant. See id. (“[T]he defendant must
demonstrate . . . .”).
Justice Powell’s concurrence in Henry makes clear that “the Sixth
Amendment is not violated when a passive listening device collects, but
does not induce, incriminating comments” and that “the mere presence
of jailhouse informant who had been instructed to overhear
conversations and to engage a criminal defendant in some conversations
would not necessarily be unconstitutional.” Henry, 447 U.S. at 276, 100
S. Ct. at 2190, 65 L. Ed. 2d at 126 (Powell, J., concurring). It is Justice
Powell’s concurrence that the Supreme Court cited and relied on in
Kuhlmann and Moulton when it clarified the deliberate-elicitation
element. See Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2629–30, 91
L. Ed. 2d at 384; Moulton, 474 U.S. at 176, 106 S. Ct. at 487, 88 L. Ed.
2d at 496.
Before I get to Martin, I would like to briefly comment on Johnson.
The court concedes only grudgingly that Johnson did not deliberately
elicit incriminating information from Marshall. In fact, the only question
95
that Johnson asked Marshall was the classic icebreaker: What are you in
for? As Johnson testified, “I knew [Marshall] so I asked him what was he
in there for.” Kuhlmann makes clear that establishing deliberate
elicitation requires more. See 477 U.S. at 459, 106 S. Ct. at 2629–30, 91
L. Ed. 2d at 384 (condemning techniques that are “the equivalent of
direct police interrogation”). Asking one question of such a generic
nature does not amount to the functional equivalent of interrogation.
See United States v. Rosa, 11 F.3d 315, 330 (2d Cir. 1993) (finding that a
witness who ran into the defendant unexpectedly in jail and asked the
defendant why he was there did not try to solicit information). The trial
testimony reveals that Marshall initiated the more detailed discussions
about the shooting of Versypt. As Johnson testified,
Q. . . . . And he just happened to start suddenly
talking to you about his case? A. He didn’t just start talking
to me over just a couple days. He started talking to me, yes.
....
Q. And only when you’re alone in segregation does he
suddenly open up to you, correct? A. Yeah. He told me
about it a little bit, yeah.
There is no evidence that Johnson asked Marshall any additional
questions or even made suggestive comments when Marshall was
describing to him the circumstances of Versypt’s death.
This should end any need to discuss Johnson further, but the
court goes on. In particular, it indicates that Marshall’s trial counsel
may have been ineffective, that counsel’s supposed failure to cross-
examine Johnson on the subject of elicitation was “remarkable,” and that
counsel may not have been aware of the deliberate-elicitation
requirement. Although I agree with the court’s ultimate resolution of the
Massiah claim regarding Johnson, these innuendoes are unfair. The
96
questions and answers quoted above come from defense counsel’s cross-
examination of Johnson. The deliberate-elicitation requirement had just
been discussed at some length when the court ruled on the motion to
suppress the previous afternoon. 6
Courts addressing Massiah claims with facts like these have found
that no deliberate elicitation occurred. See, e.g., United States v.
Jacques, 684 F.3d 324, 330–32 (2d Cir. 2012) (holding that no violation
of the right to counsel occurred when a friend of the defendant
cooperated with the FBI in speaking to the defendant through a series of
monitored phone calls and the friend asked no more than a few
questions that were not of “a probing nature”); Whitten, 610 F.3d at 192–
94 (denying Sixth Amendment claim when the defendant volunteered
incriminating information during conversation that the defendant
6Obviously, cross-examination is more an art than a science. Defense lawyers
need to weigh the downside of bringing out or reinforcing that which harms their clients
against the upside of bringing out or reinforcing that which helps their clients. We were
not on the scene making these difficult decisions in real time.
For related reasons, I do not see the relevance of United States v. Pannell, 510 F.
Supp. 2d 185 (E.D.N.Y. 2007). In that case, the district court made a specific finding
based on its own observations that the informant was not credible:
Miller testified that he never asked Pannell any questions about
his case and that Pannell volunteered the information during lengthy
conversations about general, everyday matters. Having carefully
observed Miller, his testimony that Pannell volunteered detailed
incriminating information—as memorialized in Miller’s notes—without
any prompting or encouragement from Miller cannot be credited . . . .
Miller was evasive and gave conclusory answers when questioned as to
how Pannell had provided such painstakingly detailed information about
his involvement in the post office robbery, repeatedly saying, “we
conversated.” Indeed, Miller would not acknowledge that, in the course
of their conversations, even on everyday matters, he had ever asked
Pannell a single question. I therefore discredit Miller’s testimony that he
never asked Pannell any questions about his case nor encouraged him to
speak of it.
Id. at 192. In contrast, the district court here made no such finding. And unlike the
trial judge, we did not have the opportunity to see and hear the witnesses.
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initiated); Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 895–96 (3d
Cir. 1999) (finding no deliberate elicitation when the defendant had
reached out to informant and the informant had largely just listened,
asking only “a few clarifying questions”); Lightbourne, 829 F.2d at 1021
(finding that an alleged Sixth Amendment violation was not supported by
sufficient evidence where the informant “took no actions to stimulate the
incriminating remarks”); Wallace v. Price, 265 F. Supp. 2d 545, 569
(W.D. Pa. 2003) (noting there was “no evidence that [the informant]
initiated the conversation with [the defendant]” and upholding
magistrate’s ruling that the defendant had failed to direct the court to
any evidence that the informant deliberately elicited statements).
Turning to Martin, the court today says “there is no doubt that he
deliberately elicited incriminating statements from Marshall.” I disagree.
Events happened in the following sequence. First, Marshall denied
involvement in the Versypt killing to Martin. Then, over time, Marshall
“started switching his story up,” according to Martin. Marshall told
Martin he had a gun with which he shot Versypt when Versypt startled
him. Marshall added that he had wiped off the gun and run away. At
that point, Marshall asked Martin for advice on manslaughter. Martin
researched manslaughter for Marshall and reported back. Only then did
Martin recommend that Marshall write down his “side of the story . . . to
get a lesser charge.” Marshall provided his written statement with the
mutual understanding and plan that this statement would be passed
along to law enforcement:
Q. When you were speaking with your attorney and to
Officer Smithey, did you think that you were helping Justin
Marshall? A. Yes.
Q. Did you believe that you were doing what Mr.
Marshall had asked you to do? A. Yes.
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Viewing the entire sequence of events, Martin did not engage in
deliberate elicitation. Marshall voluntarily told Martin what had
happened and asked for Martin’s legal advice on getting a lesser charge.
Thereupon Martin advised Marshall to write down his story so Martin
could deliver it to Martin’s attorney and from there to law enforcement.
This was poor advice, but it wasn’t deliberate elicitation. This case to
some extent resembles United States v. Booker, where the defendant
“voluntarily approached Blickley and sought his assistance researching
certain legal issues relating to this case.” No. 05-313 (JBS), 2006 WL
242509, at *8 (D.N.J. Feb. 2, 2006). As the court described in that case:
[T]he entire purpose of Booker’s request was to enlist
Blickley’s help. . . . . [T]hat task necessarily required Booker
to furnish Blickley with details about his case. Moreover,
Blickley actually furnished advice to Booker, based on
research, regarding suppression of evidence in this case and
legal issues in other matters, and Blickley drafted a
memorandum for Booker that led to the dismissal of
unrelated bank robbery charges against Booker under the
Speedy Trial Act, according to Blickley’s testimony. It is
understandable that a lot of talking transpired between
Blickley and Booker in January given the range of legal
assistance Booker was seeking from Blickley. That Blickley
may have asked certain clarifying questions of Booker during
their many conversations, or that Blickley told Booker to be
completely truthful, does not alter the voluntariness of
Booker’s disclosures.
Id.
Moreover, in this case, Marshall knew Martin would be passing
along his written statement to law enforcement. Thus, concerns about
an “undisclosed undercover informant” and “surreptitious interrogations”
were simply absent here. Henry, 447 U.S. at 273, 100 S. Ct. at 2188, 65
L. Ed. 2d at 123–24; Massiah, 377 U.S. at 206, 84 S. Ct. at 1203, 88
L. Ed. at 250. Again, as the Supreme Court put it in Kuhlmann, “[T]he
primary concern of the Massiah line of decisions is secret interrogation
99
by investigatory techniques that are the equivalent of direct police
interrogation.” Kuhlmann, 477 U.S. at 459, 106 S. Ct. at 2630, 91 L. Ed.
2d at 384. In Kuhlmann, an undisclosed informant commented to the
defendant that his initial version of what happened “didn’t too sound too
good”; a few days later, the defendant made incriminating statements.
Id. at 439–40, 106 S. Ct. at 2619–20, 91 L. Ed. 2d at 372. Yet,
considering the entire “interaction,” the Court found that no deliberate
elicitation had occurred. Id. at 460, 106 S. Ct. at 2630, 91 L. Ed. 2d at
385. Looking at the entire interaction here, I think this is an easier case
than Kuhlmann: There was nothing “secret” here. Martin was open about
what he was doing and advised Marshall to write down his story only
after Marshall had given Martin the same story orally and asked for
Martin’s legal advice.
V. Conclusion.
For the reasons stated, I would affirm Marshall’s conviction and
the well-reasoned suppression ruling of the district court.
Waterman and Zager, JJ., join this concurrence in part and
dissent in part.