KUHLMANN v. WILSON
477 U.S. 436 (1986)

POWELL, J.

I

In the early morning of July 4, 1970, respondent and two confederates robbed the Star Taxicab Garage in the Bronx, New York, and fatally shot the night dispatcher. Shortly before, employees of the garage had observed respondent, a former employee there, on the premises conversing with two other men. They also witnessed respondent fleeing after the robbery, carrying loose money in his arms. After eluding the police for four days, respondent turned himself in. Respondent admitted that he had been present when the crimes took place, claimed that he had witnessed the robbery, gave the police a description of the robbers, but denied knowing them. Respondent also denied any involvement in the robbery or murder, claiming that he had fled because he was afraid of being blamed for the crimes.

After his arraignment, respondent was confined in the Bronx House of Detention, where he was placed in a cell with a prisoner named Benny Lee. Unknown to respondent, Lee had agreed to act as a police informant. Respondent made incriminating statements that Lee reported to the police. Prior to trial, respondent moved to suppress the statements on the ground that they were obtained in violation of his right to counsel. The trial court held an evidentiary hearing on the suppression motion, which revealed that the statements were made under the following circumstances.

Before respondent arrived in the jail, Lee had entered into an arrangement with Detective Cullen, according to which Lee agreed to listen to respondent's conversations and report his remarks to Cullen. Since the police had positive evidence of respondent's participation, the purpose of placing Lee in the cell was to determine the identities of respondent's confederates. Cullen instructed Lee not to ask respondent any questions, but simply to "keep his ears open" for the names of the other perpetrators. Respondent first spoke to Lee about the crimes after he looked out the cellblock window at the Star Taxicab Garage, where the crimes had occurred. Respondent said, "someone's messing with me," and began talking to Lee about the robbery, narrating the same story that he had given the police at the time of his arrest. Lee advised respondent that this explanation "didn't sound too good," but respondent did not alter his story. Over the next few days, however, respondent changed details of his original account. Respondent then received a visit from his brother, who mentioned that members of his family were upset because they believed that respondent had murdered the dispatcher. After the visit, respondent again described the crimes to Lee. Respondent now admitted that he and two other men, whom he never identified, had planned and carried out the robbery, and had murdered the dispatcher. Lee informed Cullen of respondent's statements and furnished Cullen with notes that he had written surreptitiously while sharing the cell with respondent.

[fn]At the suppression hearing, Lee testified that, after hearing respondent's initial version of his participation in the crimes, "I think I remember telling him that the story wasn't--it didn't sound too good. Things didn't look too good for him." At trial, Lee testified to a somewhat different version of his remark: "Well, I said, look, you better come up with a better story than that because that one doesn't sound too cool to me, that's what I said."]

After hearing the testimony of Cullen and Lee, the trial court found that Cullen had instructed Lee "to ask no questions of [respondent] about the crime but merely to listen as to what [respondent] might say in his presence." The court determined that Lee obeyed these instructions, that he "at no time asked any questions with respect to the crime," and that he "only listened to [respondent] and made notes regarding what [respondent] had to say." The trial court also found that respondent's statements to Lee were "spontaneous" and "unsolicited." Under state precedent, a defendant's volunteered statements to a police agent were admissible in evidence because the police were not required to prevent talkative defendants from making incriminating statements. The trial court accordingly denied the suppression motion.

The jury convicted respondent of common-law murder and felonious possession of a weapon.

* * *

IV

. . . [W]e conclude that [the Court of Appeals] erred in holding that respondent was entitled to relief under United States v. Henry, 447 U.S. 264 (1980). As the District Court observed, Henry left open the question whether the Sixth Amendment forbids 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."Our review of the line of cases beginning with Massiah v. United States, 377 U.S. 201 (1964), shows that this question must, as the District Court properly decided, be answered negatively.

A

The decision in Massiah had its roots in two concurring opinions written in Spano v. New York, 360 U.S. 315(1959). See Maine v. Moulton, 474 U.S. 159, (1985). Following his indictment for first-degree murder, the defendant in Spano retained a lawyer and surrendered to the authorities. Before leaving the defendant in police custody, counsel cautioned him not to respond to interrogation. The prosecutor and police questioned the defendant, persisting in the face of his repeated refusal to answer and his repeated request to speak with his lawyer. The lengthy interrogation involved improper police tactics, and the defendant ultimately confessed. Following a trial at which his confession was admitted in evidence, the defendant was convicted and sentenced to death. Agreeing with the Court that the confession was involuntary and thus improperly admitted in evidence under the Fourteenth Amendment, the concurring Justices also took the position that the defendant's right to counsel was violated by the secret interrogation. As Justice Stewart observed, an indicted person has the right to assistance of counsel throughout the proceedings against him. The defendant was denied that right when he was subjected to an "all-night inquisition," during which police ignored his repeated requests for his lawyer.

 The Court in Massiah adopted the reasoning of the concurring opinions in Spano and held that, once a defendant's Sixth Amendment right to counsel has attached, he is denied that right when federal agents "deliberately elicit" incriminating statements from him in the absence of his lawyer. The Court adopted this test, rather than one that turned simply on whether the statements were obtained in an "interrogation," to protect accused persons from " 'indirect and surreptitious interrogations as well as those conducted in the jailhouse. In this case, Massiah was more seriously imposed upon ... because he did not even know that he was under interrogation by a government agent.' "Thus, the Court made clear that it was concerned with interrogation or investigative techniques that were equivalent to interrogation, and that it so viewed the technique in issue in Massiah.

[fn]The defendant in Massiah made the incriminating statements in a conversation with one of his confederates, who had secretly agreed to permit Government agents to listen to the conversation over a radio transmitter. The agents instructed the confederate to "engage Massiah in conversation relating to the alleged crimes."

In United States v. Henry, the Court applied the Massiah test to incriminating statements made to a jailhouse informant. The Court of Appeals in that case found a violation of Massiah because the informant had engaged the defendant in conversations and "had developed a relationship of trust and confidence with [the defendant] such that [the defendant] revealed incriminating information." This Court affirmed, holding that the Court of Appeals reasonably concluded that the Government informant "deliberately used his position to secure incriminating information from [the defendant] when counsel was not present." Although the informant had not questioned the defendant, the informant had "stimulated" conversations with the defendant in order to "elicit" incriminating information. The Court emphasized that those facts, like the facts of Massiah, amounted to " 'indirect and surreptitious interrogatio[n]' " of the defendant.

Earlier this Term, we applied the Massiah standard in a case involving incriminating statements made under circumstances substantially similar to the facts of Massiah itself. In Maine v. Moulton, 474 U.S. 159 (1985), the defendant made incriminating statements in a meeting with his accomplice, who had agreed to cooperate with the police. During that meeting, the accomplice, who wore a wire transmitter to record the conversation, discussed with the defendant the charges pending against him, repeatedly asked the defendant to remind him of the details of the crime, and encouraged the defendant to describe his plan for killing witnesses. The Court concluded that these investigatory techniques denied the defendant his right to counsel on the pending charges. Significantly, the Court emphasized that, because of the relationship between the defendant and the informant, the informant's engaging the defendant "in active conversation about their upcoming trial was certain to elicit" incriminating statements from the defendant. Thus, the informant's participation "in this conversation was 'the functional equivalent of interrogation.' "

As our recent examination of this Sixth Amendment issue in Moulton makes clear, the 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.

B

It is thus apparent that the Court of Appeals erred in concluding that respondent's right to counsel was violated under the circumstances of this case. Its error did not stem from any disagreement with the District Court over appropriate resolution of the question reserved in Henry, but rather from its implicit conclusion that this case did not present that open question. That conclusion was based on a fundamental mistake, namely, the Court of Appeals' failure to accord to the state trial court's factual findings the presumption of correctness expressly required by 28 U.S.C. 2254(d).

The state court found that Officer Cullen had instructed Lee only to listen to respondent for the purpose of determining the identities of the other participants in the robbery and murder. The police already had solid evidence of respondent's participation. The court further found that Lee followed those instructions, that he "at no time asked any questions" of respondent concerning the pending charges, and that he "only listened" to respondent's "spontaneous" and "unsolicited" statements. The only remark made by Lee that has any support in this record was his comment that respondent's initial version of his participation in the crimes "didn't sound too good." Without holding that any of the state court's findings were not entitled to the presumption of correctness under 2254(d), the Court of Appeals focused on that one remark and gave a description of Lee's interaction with respondent that is completely at odds with the facts found by the trial court. In the Court of Appeals' view, "[s]ubtly and slowly, but surely, Lee's ongoing verbal intercourse with [respondent] served to exacerbate [respondent's] already troubled state of mind." After thus revising some of the trial court's findings, and ignoring other more relevant findings, the Court of Appeals concluded that the police "deliberately elicited" respondent's incriminating statements. This conclusion conflicts with the decision of every other state and federal judge who reviewed this record, and is clear error in light of the provisions and intent of 2254(d).

V

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

Kuhlmann Dissent Snitch Material