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

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, Dissenting

* * *

II

The Court holds that the Court of Appeals erred with respect to the merits of respondent's habeas petition. According to the Court, the Court of Appeals failed to accord 2254(d)'s presumption of correctness to the state trial court's findings that respondent's cellmate, Lee, "at no time asked any questions" of respondent concerning the pending charges, and that Lee only listened to respondent's "spontaneous" and "unsolicited" statements. As a result, the Court concludes, the Court of Appeals failed to recognize that this case presents the question, reserved in Henry, supra, whether the Sixth Amendment forbids the admission into 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." I disagree with the Court's characterization of the Court of Appeals' treatment of the state court's findings and, consequently, I disagree with the Court that the instant case presents the "listening post" question.

The state trial court simply found that Lee did not ask respondent any direct questions about the crime for which respondent was incarcerated. The trial court considered the significance of this fact only under state precedents, which the court interpreted to require affirmative "interrogation" by the informant as a prerequisite to a constitutional violation. The court did not indicate whether it referred to a Fifth Amendment or to a Sixth Amendment violation in identifying "interrogation" as a precondition to a violation; it merely stated that "the utterances made by [respondent] to Lee were unsolicited, and voluntarily made and did not violate the defendant's Constitutional rights."

The Court of Appeals did not disregard the state court's finding that Lee asked respondent no direct questions regarding the crime. Rather, the Court of Appeals expressly accepted that finding, but concluded that, as a matter of law, the deliberate elicitation standard of Henry and Massiah encompasses other, more subtle forms of stimulating incriminating admissions than overt questioning. The court suggested that the police deliberately placed respondent in a cell that overlooked the scene of the crime, hoping that the view would trigger an inculpatory comment to respondent's cellmate. The court also observed that, while Lee asked respondent no questions, Lee nonetheless stimulated conversation concerning respondents' role in the Star Taxicab Garage robbery and murder by remarking that respondent's exculpatory story did not " 'sound too good' " and that he had better come up with a better one. Thus, the Court of Appeals concluded that respondent's case did not present the situation reserved in Henry, where an accused makes an incriminating remark within the hearing of a jailhouse informant, who "makes no effort to stimulate conversations about the crime charged." Instead, the court determined this case to be virtually indistinguishable from Henry.

The Sixth Amendment guarantees an accused, at least after the initiation of formal charges, the right to rely on counsel as the "medium" between himself and the State. Accordingly, the Sixth Amendment "imposes on the State an affirmative obligation to respect and preserve the accused's choice to seek [the assistance of counsel]," and therefore "[t]he determination whether particular action by state agents violates the accused's right to ... counsel must be made in light of this obligation." To be sure, 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. It is violated, however, when "the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent." As we explained in Henry, where the accused has not waived his right to counsel, the government knowingly circumvents the defendant's right to counsel where it "deliberately elicit[s]" inculpatory admissions, that is, "intentionally creat[es] a situation likely to induce [the accused] to make incriminating statements without the assistance of counsel."

In Henry, we found that the Federal Government had "deliberately elicited" incriminating statements from Henry based on the following circumstances. The jailhouse informant, Nichols, had apparently followed instructions to obtain information without directly questioning Henry and without initiating conversations concerning the charges pending against Henry. We rejected the Government's argument that because Henry initiated the discussion of his crime, no Sixth Amendment violation had occurred. We pointed out that under Massiah, it is irrelevant whether the informant asks pointed questions about the crime or "merely engage[s] in general conversation about it." Nichols, we noted, "was not a passive listener; ... he had 'some conversations with Mr. Henry' while he was in jail and Henry's incriminatory statements were 'the product of this conversation.' "

In deciding that Nichols' role in these conversations amounted to deliberate elicitation, we also found three other factors important. First, Nichols was to be paid for any information he produced and thus had an incentive to extract inculpatory admissions from Henry. Second, Henry was not aware that Nichols was acting as an informant. "Conversation stimulated in such circumstances," we observed, "may elicit information that an accused would not intentionally reveal to persons known to be Government agents." Third, Henry was in custody at the time he spoke with Nichols. This last fact is significant, we stated, because "custody imposes pressures on the accused [and] confinement may bring into play subtle influences that will make him particularly susceptible to the ploys of undercover Government agents." We concluded that 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."

In the instant case, as in Henry, the accused was incarcerated and therefore was "susceptible to the ploys of undercover Government agents." Like Nichols, Lee was a secret informant, usually received consideration for the services he rendered the police, and therefore had an incentive to produce the information which he knew the police hoped to obtain. Just as Nichols had done, Lee obeyed instructions not to question respondent and to report to the police any statements made by the respondent in Lee's presence about the crime in question. And, like Nichols, Lee encouraged respondent to talk about his crime by conversing with him on the subject over the course of several days and by telling respondent that his exculpatory story would not convince anyone without more work. However, unlike the situation in Henry, a disturbing visit from respondent's brother, rather than a conversation with the informant, seems to have been the immediate catalyst for respondent's confession to Lee. While it might appear from this sequence of events that Lee's comment regarding respondent's story and his general willingness to converse with respondent about the crime were not the immediate causes of respondent's admission, I think that the deliberate-elicitation standard requires consideration of the entire course of government behavior.

The State intentionally created a situation in which it was foreseeable that respondent would make incriminating statements without the assistance of counsel -- it assigned respondent to a cell overlooking the scene of the crime and designated a secret informant to be respondent's cellmate. The informant, while avoiding direct questions, nonetheless developed a relationship of cellmate camaraderie with respondent and encouraged him to talk about his crime. While the coup de grace was delivered by respondent's brother, the groundwork for respondent's confession was laid by the State. Clearly the State's actions had a sufficient nexus with respondent's admission of guilt to constitute deliberate elicitation within the meaning of Henry. I would affirm the judgment of the Court of Appeals.

JUSTICE STEVENS, DISSENTING

On the merits, I agree with the analysis in Part II of Justice BRENNAN's dissent. Accordingly, I also would affirm the judgment of the Court of Appeals.

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