IN THE COURT OF APPEALS OF IOWA
No. 13-0739
Filed June 10, 2015
STATE OF IOWA,
Plaintiff-Appellee,
vs.
JUSTIN ALEXANDER MARSHALL,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Johnson County, Sean W.
McPartland, Judge.
Defendant appeals his conviction for murder in the first degree.
REVERSED AND REMANDED.
Kent A. Simmons, Davenport, for appellant.
Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney
General, Janet M. Lyness, County Attorney, and Meredith Rich-Chappell,
Assistant County Attorney, for appellee.
Heard by Mullins, P.J., and Bower and McDonald, JJ.
2
MULLINS, P.J.
Defendant Justin Marshall appeals his conviction for murder in the first
degree. During trial, Marshall moved to suppress the testimony of confidential
informants on the ground he was entitled to the assistance of counsel at the time
he spoke to them in jail. Marshall appeals the denial of that motion. We
determine the district court should have granted the motion to suppress as to one
of the informants. We are unable to conclude the error was certainly harmless,
and therefore, do not engage in a sua sponte harmless-error review.
Marshall also argues there was not substantial evidence in the record to
support the submission of instructions on the theories of aiding and abetting and
joint criminal conduct. We decide this issue as it is likely to reoccur on retrial and
conclude the instructions were supported by the evidence. We reverse
Marshall’s conviction for first-degree murder and remand to the district court.
I. Background Facts & Proceedings
On October 8, 2009, John Versypt, the owner of several apartment
buildings, was killed at the Broadway Condominium complex in Iowa City. On
August 1, 2011, almost two years after the murder, Marshall was charged with
murder in the first degree. Pending trial, he was held in the Muscatine County,
Iowa, jail. A jury trial commenced in January 2013.
At the time of Versypt’s death, Marshall lived with Charles Thompson in
one of Versypt’s apartment buildings. Thompson stated he heard a loud noise
on October 8, 2009. A few minutes later, Marshall came into his room and was
“frantic.” Thompson saw Marshall putting some pants in a garbage bag, and
3
then he and Marshall took the bag out to a dumpster. There is videotape from a
squad car showing Marshall and Thompson taking some garbage bags out to a
dumpster. Thompson denied being involved in the robbery or shooting of
Versypt, but eventually pled guilty to being an accessory after the fact.1
Shawnta Jackson, another tenant, saw Marshall talking to Courtney White,
known as Mow-Mow, outside the back door of the apartment building. When
Jackson was returning to her apartment from the basement level with her
laundry, she saw Versypt, who had been shot, lying on the back stairs.
Another tenant, James Brown, stated that the night before the shooting,
on October 7, 2009, he saw a gun with a brown handle in the next-door
apartment where Marshall and Thompson lived. Then sometime between 3:30
and 4:00 in the afternoon of October 8, he heard a “loud pop in the hall.” Brown
stated that shortly after he heard the “loud pop,” he heard the downstairs back
door “bust open real quick,” but did not see anyone. A few minutes later he
heard Marshall softly knocking on the door of his apartment, asking his aunt to let
him in.
Soon after the shooting, Andrew Shepard came out of his apartment and
saw a gun and a wallet were lying on the floor by Versypt’s body. He then called
the police. Shepard testified that a day or so after the incident Marshall asked
him what kind of a gun had been used, and when Shepard stated a camouflage
.38, Marshall responded he had a gun just like it.
1
Thompson was tried for murder in the first degree for killing Versypt, but a mistrial was
declared during his criminal trial.
4
Marshall claimed he had been in Shepard’s apartment at the time of the
shooting, but Shepard denied he was there then. Shepard agreed with police to
wear a wire2 when meeting with Marshall. Marshall told Shepard the victim had
been shot in the head. The information of where Versypt had been shot was not
public knowledge at the time. Marshall also told him, “it might have been a
conflict gone wrong.”
In an interview with officers on October 9, 2009, Marshall stated
Thompson and White planned to rob Versypt. Marshall stated that after the
shooting Thompson “was panicked, he was crying, he was fidgety, and all he
could say was this sh*t’s crazy over and over and over.” He also stated he heard
Thompson on the telephone saying he “hit a lick. It wasn’t that good of a lick. It
went wrong. Things went wrong.”3 Marshall told the officers Versypt had been
shot in the face.
Officers reviewed telephone records but were unable to corroborate
Marshall’s statements about a telephone call made by Thompson after the
shooting. Officers obtained some clothing from Marshall. Analysis of his jacket
with a scanning electron microscope showed gunshot residue.
During the trial Marshall learned that Carl Johnson, Antonio Martin, and
Earl Freeman, fellow inmates at the Muscatine County Jail, had provided to law
enforcement certain statements he had made to them while they were in jail.
Marshall immediately moved to suppress any statements he had made to the
informants while he was in jail. He claimed they were confidential informants
2
A wire is a concealed listening device used by law enforcement.
3
An officer testified a “lick” was a slang term for a robbery.
5
acting as agents of the State, and therefore, he was entitled to counsel while
discussing the case with them. Marshall asserted that because he had been
denied his constitutional right to counsel, the statements of these witnesses
should be suppressed.
Outside the presence of the jury, Iowa City police officers Michael Smithey
and Jennifer Clarahan testified that while they may have asked the informants if
they “had information about any circumstances surrounding the death of John
Versypt,” they did not ask them to obtain information or do anything further on
behalf of the State. Additionally, the officers stated they had not arranged for the
informants’ jail cell placements to be in the vicinity of Marshall.
The district court ruled from the bench, stating:
Well, 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 on what they alleged to have been
statements made by Mr. Marshall.
The State then recommenced presenting evidence to the jury. Earl
Freeman testified Marshall approached him at the Muscatine County Jail and
asked him to help write a motion requesting new counsel. They discussed
6
Marshall’s wish to have his charges dropped from murder to manslaughter.
Freeman testified that during this discussion, Marshall told Freeman,
He went to rob him. John 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, on the ground in the doorway or something like that,
and he wiped the gun off the front of his jacket and he took off.
Marshall asked Freeman to tell his attorney that Marshall had confessed to the
shooting, but it was an accident. Freeman stated Marshall indicated he had not
taken anything out of Versypt’s wallet. He also stated Marshall told him no one
else was involved in the plan to rob Versypt. Freeman testified that after
Marshall started to admit to the offense, “I did push him to tell me information.”
After gathering the information from Marshall, Freeman contacted the Iowa City
Police Department and in early October 2011, he and his attorney met with the
police investigators. Freeman testified at the time of trial he was serving prison
time on federal charges for conspiracy to manufacture methamphetamine and he
was hoping to get some time off of his sentence for providing information and
testimony in this case. He was, however, never under a proffer agreement or
any other agreement to gather or provide information to law enforcement
officials.
Carl Johnson testified he knew Marshall because they both had lived at
the Broadway Condominium complex. Shortly after the shooting, Marshall told
Johnson that Thompson had shot Versypt. Johnson was arrested in November
2010 and was being held in the Muscatine County Jail on federal charges for
distribution of cocaine. He was facing a sentence of twenty years to life. As part
of a plea agreement, he had signed a proffer agreement with federal officials to
7
cooperate and assist in the investigation of other individuals. If he failed to
provide substantial evidence and truthful information, the plea agreement would
be withdrawn. As a part of the proffer agreement and his plea agreement, he
testified against his co-defendant on the cocaine charges. He pled guilty in
February 2011. While he was in jail awaiting sentence, he and his attorney met
with Officers Smithey and Clarahan on July 12, 2011—the same day the arrest
warrant for Marshall was issued—for a proffer interview and discussed the John
Versypt case. Smithey asked Johnson to provide information concerning
Charles Thompson, Justin Marshall, and Courtney White. At that time Johnson
was in segregation for violating jail rules. Within days, Marshall was arrested in
Texas and transported to Iowa, where he was held at the Muscatine County Jail.
Around August 2011 Johnson saw Marshall, who had also been placed in
segregation. When Johnson was out of his cell—one hour a day—he engaged
Marshall in conversation. In the course of those conversations, Marshall told
Johnson that he wanted to rob the landlord, but it went wrong and the landlord
got shot.
Johnson took notes of what Marshall told him so he could provide
accurate information when he and his attorney had an interview with officer
Smithey at the Muscatine County Jail in September 2011. Johnson testified that
while they were in jail Marshall told him that he, “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.” Marshall told Johnson, “he wanted to
8
rob the landlord because he knows some people pay with money and some pay
with cash.” He told Johnson the robbery went wrong and the landlord got shot.
Johnson further testified:
All he 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.
Johnson stated Marshall told him Calvin was “with him when he was going to do
the robbery,” but Johnson did not know specifically who this was.
Johnson had received a substantial reduction in his federal drug sentence
as a result of testifying against his co-defendant. Although he had already been
sentenced when he testified in this case, he testified that he hoped to get a
further reduction of his sentence because of this testimony; but he knew there
was no guarantee.
Antonio Martin, a co-conspirator of Johnson, was also arrested in
November 2010 and was being held at the Muscatine County Jail during part of
Marshall’s incarceration there. At the time of trial, Martin testified he was serving
a sentence of twelve years and one month on federal charges of selling cocaine
and possession of a firearm. When he was charged with those offenses he was
facing a sentence of between twenty-seven and thirty-two years. Like Johnson,
he had also entered into a cooperation agreement to provide truthful information
to government officers in hopes of gaining favorable sentencing concessions,
and, like Johnson, had pled guilty in February 2011. Martin’s cooperation
agreement with the government also contained no promises of any particular
9
sentencing concession; the agreement was simply that Martin might get a
favorable recommendation from the prosecutor if he provided truthful information
that assisted law enforcement. He testified against a fellow drug dealer and
ultimately received a fifteen-year reduction in his sentence.
Like Johnson, Martin knew Marshall from having lived in the Broadway
neighborhood around the time of Versypt’s murder. Martin was also held in the
Muscatine County Jail pending his federal charges when Marshall was arrested
and jailed in Muscatine County. But unlike Johnson, Iowa City police did not
meet with Martin concerning the Versypt murder before Martin began to engage
Marshall in conversation concerning the murder.
When Martin first began to talk with Marshall about the murder charge,
Marshall denied even being at the scene. Eventually, he told Martin it was a
robbery. Marshall discussed with Martin his idea to try to get his first-degree
murder charge reduced to manslaughter. Marshall wrote down his story and
planned to have Martin act as a jailhouse snitch to get his story out: a plan that
Marshall was led to believe might help them both with the legal issues.
In the process, Marshall told Martin the bullet went through the victim’s
hand and through his face. He also stated there was a wallet next to the body
and no money had been taken from the wallet. In his written version, Marshall
stated he had a gun with him because he was going to sell it, when somebody
came up behind him he got scared and pulled out the gun, which went off.
Marshall stated he dropped the gun, then picked it up and wiped off his
10
fingerprints, then dropped it again. Marshall told Martin he changed his clothes,
put the clothing he had on in a garbage bag, and threw them away.
Martin took notes of what Marshall told him. As a part of the supposed
plan to assist Marshall with getting his manslaughter story out, Marshall let Martin
take his writings to a meeting with Martin’s attorney on October 3, 2011. While
meeting with his attorney, officer Smithey of the Iowa City Police Department
entered the room. Martin then told Smithey what he had learned and showed
him what Marshall had written. Smithey made a copy and returned the original to
Martin so Martin could return it to Marshall.4 Smithey ultimately used the
information to get a search warrant of Marshall’s jail cell, where he found most of
the original notes—but torn into pieces—that Marshall had written.
Although Martin was already serving his sentence at a federal penitentiary
at the time he testified in this case, the federal system apparently allows for
additional reductions in the sentence already imposed. Martin testified that he
had not received any kind of promise about a specific reduction he could receive
for testifying in this case. But when asked, “Is it your hope that you may get
some kind of reduction?” he answered “yes.”
Marshall now appeals the denial of his motion to suppress the information
obtained from Freeman, Johnson and Martin.
Marshall objected to the instructions on aiding and abetting and joint
criminal conduct on the ground that the evidence did not support these
instructions. He asserted there was insufficient evidence there was a second
4
Marshall did not know Martin met with Smithey on that day.
11
person involved. The court overruled Marshall’s objections to the jury
instructions. The jury found Marshall guilty of first-degree murder. The district
court denied Marshall’s joint motion in arrest of judgment and for a new trial.
Marshall now appeals these rulings.
II. Confidential Informants
Marshall contends the State’s use of informants to induce statements from
him violated his Sixth Amendment right to counsel.5 He claims the informants
were acting as agents for the State at the time he talked to them at the Muscatine
County Jail. He argues that after the officers requested information from
Johnson within hours after Marshall was charged with murder, Johnson began to
work for them. He also argues the officers must have known Johnson would
relate the request for information to Freeman and Martin, thus converting them to
agents as well. He asserts he was prejudiced by the testimony these three
confidential informants gave when reporting statements that were attributable to
Marshall. Our review of constitutional issues is de novo. State v. Thompson,
836 N.W.2d 470, 476 (Iowa 2013).
In the case of Massiah v. United States, 377 U.S. 201, 202-03 (1964),
after the defendant had been charged with possession of narcotics, his
codefendant decided to cooperate with government agents and agreed to wear a
wire while discussing events with the defendant. The United States Supreme
5
Marshall also raises a claim under the Iowa Constitution. This issue was not raised
before the district court nor decided by the court. Because error was not preserved on
this issue, it will not be addressed in this portion of the opinion. See State v. Paulsen,
293 N.W.2d 244, 247 (Iowa 1980) (noting even constitutional issues must be specifically
raised in the district court).
12
Court determined the defendant had been denied his constitutional right to
counsel, “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 counsel.” Massiah, 377 U.S. at 206
(emphasis added).
The issue was addressed in United States v. Henry, 447 U.S. 264, 266
(1980), where shortly after the defendant was incarcerated government agents
contacted a fellow inmate who was a paid confidential informant. The paid
informant was told, “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.” Henry, 447 U.S. at 266. The Court noted, “according to his own
testimony, [the informant] 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. at 271. The Court also
noted that in discussing the situation with the paid informant the government
agent had “singled out Henry as the inmate in whom the agent had a special
interest.” Id. at 271 n.8. The court concluded defendant’s statements to the paid
informant should not be admitted at trial because the defendant had been denied
his Sixth Amendment right to counsel. Id. at 274.
The issue was again considered in Maine v. Moulton, 474 U.S. 159, 165-
66 (1985), where a codefendant agreed to wear a wire, then met with the
defendant and extensively discussed their pending charges with him, stating he
could not remember certain events and asking the defendant about them. The
13
Court found that engaging the defendant “in active conversation about their
upcoming trial was certain to elicit statements that Moulton would not
intentionally reveal . . . to persons known to be police agents.” Moulton, 474 U.S.
at 177 n.13. The Court concluded, “By concealing the fact that [the codefendant]
was an agent of the State, the State denied Moulton the opportunity to consult
with counsel and this denied him the assistance of counsel guaranteed by the
Sixth Amendment.” Id. at 177. The court determined the defendant’s statements
should be suppressed. Id. at 180.
In Kuhlmann v. Wilson, 477 U.S. 436, 439 (1986), officers had an
informant placed in the respondent’s jail cell and told the informant not to ask
respondent any questions, but to “simply ‘keep his ears open.’” When the
respondent began to talk about the offense, the informant told him his story
“didn’t sound too good.” Kuhlmann, 477 U.S. at 439-40. Respondent then made
incriminatory statements. Id. at 440. The United States Supreme Court stated:
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.
Id. at 459 (citation omitted). The Court concluded the officers had not
“deliberately elicited” the respondent’s statements. Id. at 460.
14
The Eighth Circuit has had occasion to consider the informant status of a
jail inmate who is under a proffer agreement and who gathered incriminating
information about a fellow inmate who had not been identified to proffer-inmate
by law enforcement. See Moore v. United States, 178 F.3d 994, 999-1000 (8th
Cir. 1999). While housed in a county jail on drug charges, inmate Hartwig signed
an agreement with federal authorities to provide information concerning drug-
related criminal activity. Id. at 999. Over the next few weeks Hartwig overheard
inmate Moore talking about some details of a car theft and bank robbery. Id. No
one asked Hartwig to listen in on or solicit information from Moore. Id. A few
weeks later, when meeting with law enforcement pursuant to his agreement, he
provided what he had learned about Moore. Id. The court explained:
“[A]n informant becomes a government agent for purposes
of [Massiah] only when the informant has been instructed by the
police to get information about the particular defendant.” United
States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997) (collecting
cases). To the extent there was agreement between Hartwig and
the government, there is no evidence to suggest it had anything to
do with Moore. The proffer agreement simply evidenced Hartwig’s
willingness to disclose his knowledge of drug activity in hopes of
receiving a more favorable plea agreement. . . . We find that the
link between Hartwig’s relationship with the government and his
conduct at issue here is insufficient for his actions to be attributable
to the government for purposes of a Massiah violation.
There is also no evidence that Hartwig did anything but act
as a passive listening post in gathering this information. In
Kuhlmann v. Wilson, 477 U.S. 436 (1986), the Supreme Court
made clear that the “primary concern of the Massiah line of
decisions is secret interrogation by investigatory techniques that
are the equivalent of direct police interrogation . . . ‘the Sixth
Amendment is not violated whenever—by luck or happenstance—
the State obtains incriminating statements.’” Id. at 459 (citing
United States v. Henry, 447 U.S. 264, 276 (1980)) (Powell, J.,
concurring). “[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.” Id. at 459. In
15
this case, Moore has not alleged anything to suggest he was
subject to any improper or surreptitious interrogation.
Id. at 999-1000.
In a Sixth Circuit case, the court conditionally granted a writ of habeas
corpus to Ayers, who had been convicted of murder. Ayers v. Hudson, 623 F.3d
301, 311-12 (6th Cir. 2010). The court reasoned:
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. As Henry
illustrates, a Massiah violation can occur even where the State
specifically instructs its informant “not to initiate any conversation
with or question [a defendant] regarding the [offense for which he
had been indicted].” Henry, 447 U.S. at 266 [(1980)] (emphasis
added). “[I]t is not the government’s intent or overt acts that are
important; rather, it is the ‘likely . . . result’ of the government’s
acts.” Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004)
(quoting Henry, 447 U.S. at 271). Thus, we hold that although direct
written or oral instructions by the State to a jailhouse informant to
obtain evidence from a defendant would be sufficient to
demonstrate agency, it is not the only relevant factor. A court must
also analyze the facts and circumstances of a particular case to
determine whether there exists an express or implied agreement
between the State and the informant at the time the elicitation took
place that supports a finding of agency. See Henry, 447 U.S. at
271 (indicating that a “combination of circumstances is sufficient to
support” a finding of agency); Moulton, 474 U.S. at 176; see also
[United States v.] Brink, 39 F.3d [419,] 423–24 [(3rd Cir. 1994)]
(suggesting that a “tacit agreement” may be sufficient to establish
agency for Massiah purposes). To hold otherwise would allow the
State to accomplish “with a wink and a nod” what it cannot do
overtly. This, the Sixth Amendment does not permit.
Ayers, 623 F.3d at 311-12 (footnote omitted).
This issue was addressed in Iowa in State v. Nelson, 325 N.W.2d 118,
119 (Iowa 1982), where the defendant was incarcerated in a cell adjacent to
inmate Jackson and made inculpatory statements to Jackson about charges he
was facing. Jackson slipped a note to the jailer stating he wanted to discuss the
16
incriminating statements with police officers. Nelson, 325 N.W.2d at 119. As a
result, a deputy sheriff spoke to Jackson and told Jackson he would contact the
officer in charge of investigating the defendant’s case. Id. No promises were
made or directions given to Jackson. Id. When Jackson returned to his cell he
engaged in extensive conversations with the defendant, gathering information
that was very damaging. Id. Two days later, the deputy met again with Jackson
after the deputy had met with a DCI agent and a police captain. Id. At that
second meeting, the deputy and Jackson discussed Jackson working for the
State on unrelated cases. Id. Later that night, Jackson and the defendant talked
and defendant confessed. Id. Two days later, Jackson was released from jail in
order to work for the State on unrelated cases. Id. at 120.
The district court suppressed the defendant’s confession made to Jackson
after the second meeting with the deputy. Id. The trial court concluded that by
that time, Jackson had “assumed the role of a state agent unknown to the
defendant.” Id. The court relied on Henry, 447 U.S. at 270, and Massiah, 377
U.S. at 206. The incriminating statements made by the defendant to Jackson
prior to that second meeting were, however, admitted at trial. Id. Defendant
Nelson was convicted, then appealed claiming all of Jackson’s testimony of
statements made by Nelson should have been suppressed. Id. The Iowa
Supreme Court determined Jackson did not qualify as a state agent prior to the
second meeting with the deputy. Id. The court noted at that time Jackson did
not have an ongoing relationship with the State as a paid informant, there was no
agreement he would be paid or would receive more favorable treatment for the
17
information, and Jackson initiated the contact with the State. Id. The court
concluded it was “only a coincidence that [the informant] ended up in a cell close
in proximity to Nelson. Because [the informant] was not thus working for the
State it cannot be said that the statements were deliberately elicited.” Id.
Therefore, Jackson could properly testify at the defendant’s trial about the
defendant’s statements to him prior to the second meeting with the deputy. Id.
In the present case, officer Smithey knew Johnson from Smithey’s days as
a patrol officer and as a drug task force officer, and knew Johnson was then in
custody on federal drug charges. He knew Johnson had pled guilty and had
entered into a cooperation agreement with federal prosecutors. Pursuant to that
cooperation agreement, Smithey met with Johnson and Johnson’s attorney on
July 12, 2011, to find out if Johnson “had information about any circumstances
surrounding the death of John Versypt.” Officer Smithey requested that Johnson
contact him if he learned anything. On cross-examination, Smithey admitted he
asked Johnson to provide information concerning Charles Thompson—also
known as Weezy—Courtney White, and Justin Marshall. At the request of
Johnson’s counsel, officer Smithey met with Johnson again on September 13,
2011. At that meeting, Johnson conveyed valuable information of admissions by
Marshall that he had been involved in the attempted robbery and the shooting of
Versypt.
The officer met with Freeman on October 3, 2011, and Freeman then
provided him with information he had obtained prior to that date. Smithey told
Freeman to contact him if he had “additional information he wished to relay.”
18
Officer Smithey also met with Martin on October 3, 2011. He stated he may have
previously asked Martin, “do you know any information about this?” Johnson,
Freeman, and Martin were in the Muscatine County Jail, where Marshall was
also being held, but officer Smithey stated he made no arrangements for them to
be jailed in the same vicinity as Marshall.
Officer Jennifer Clarahan testified she was present at the meeting with
officer Smithey, Johnson, and Johnson’s attorney on July 12, 2011. She stated
she did not request Johnson to obtain other information or do anything further on
behalf of the State. Officer Clarahan received letters from Freeman that were
dated September 21, 2011, and October 26, 2011. Freeman also called her on
October 1, 2011, and stated he had information about the Versypt murder.
Clarahan was with Smithey when he met with Freeman on October 3, 2011, and
Freeman provided them with information he had learned from Marshall. She said
Freeman was not asked to do anything else on behalf of the State. Officer
Clarahan never met with Martin.
We first consider whether Marshall’s Sixth Amendment rights were
violated as to communications between Johnson and Marshall. In Massiah, the
informant agreed to cooperate with the government and then wore a wire while
deliberately eliciting information from the defendant, and the testimony was
suppressed. Massiah, 377 U.S. at 206. In Henry, government agents contacted
a paid confidential informant and told him to be alert to statements of fellow
prisoners but not to initiate conversation; the inmate was not a passive listener
but engaged in conversation, and the testimony of the confidential informant was
19
suppressed. Henry, 447 U.S. at 266-274. In Moulton, a codefendant agreed to
wear a wire and engaged the defendant in active conversation, and the
codefendant’s testimony was suppressed. Moulton, 474 U.S. at 176-80. In
Kuhlmann, the informant followed the instructions of law enforcement that he “at
no time asked any questions” of the accused, and that he only listen to
spontaneous and unsolicited statements. Kuhlmann, 477 U.S. at 460. This did
not constitute a Sixth Amendment violation. Id.
In Moore, a fellow inmate subject to an agreement with authorities to
provide information concerning drug activity overheard inmate Moore give details
of a car theft and bank robbery. Moore, 178 F.3d at 998-99. The informant was
a passive listener who by luck or happenstance obtained incriminating
statements, so there was no violation of the Sixth Amendment. Id. at 1000. In
Ayers, the informant met with law enforcement, then deliberately elicited
information from Ayers regarding the crime. Ayers, 623 F.3d at 315-16. The
court reasoned that even in the absence of an express agency arrangement, a
Sixth Amendment violation can and did occur as a result of circumstances
intentionally created by the State that were likely to violate Ayers’s Sixth
Amendment rights and concluded Ayers’s Sixth Amendment rights were violated.
Id. at 315-16. In Nelson, a fellow inmate obtained inculpatory statements from
the defendant, then contacted law enforcement and an agreement was reached
that he would work for the State as a paid informant. Nelson, 325 N.W.2d at 119.
Statements made before the agreement were admissible, while statements made
after were in violation of the Sixth Amendment. Id. at 120.
20
There is no question that Smithey told Johnson he was interested in
information concerning Thompson, White, and Marshall in connection with the
Versypt murder. There is no question Johnson was under a cooperation
agreement with federal prosecutors under which Johnson expected that if he
provided valuable information about the Versypt murder that he might receive a
favorable sentencing recommendation from the federal prosecutor. There is no
question that Smithey knew Johnson was under a cooperation agreement, had
already pled guilty and was awaiting sentencing; and that under the cooperation
agreement Johnson (1) would be required to provide to Smithey any information
he had concerning the Versypt murder, (2) would suffer negative consequences
if he failed to provide any information he had concerning the Versypt murder, and
(3) had the potential of a favorable sentencing recommendation if he provided
helpful, truthful information concerning the Versypt murder.
Johnson was not a paid informant. He was under no arrangement for
which there was any agreement that he would get a charging or a sentencing
concession. But to say Johnson did not or should not have expected something
in return for his cooperation and assistance belies the obvious facts. The
cooperation agreement he had with the federal authorities required that he
cooperate with all law enforcement and that he provide truthful information. The
cooperation agreement contained no binding consideration on the government’s
side, leaving the consideration solely in the discretion of the government and the
court. The obvious, and rather effective objective, was to induce maximum effort
and truthfulness from Johnson and remove any ability to negotiate the value of
21
certain information. The inducement effectively encouraged Johnson to gather
as much information as he could that might be considered helpful to law
enforcement in hopes of obtaining a favorable report that could lead to a reduced
sentence. It is the probability of valuable information that gave value to the
government, and the possibility of a sentencing concession that gave value to
Johnson.
Before his federal court sentencing hearing, Johnson gathered and
provided to Smithey information obtained from Marshall. By the time of that
hearing, he had also testified against one of his federal co-conspirators. At
sentencing, he received a substantial reduction in his sentence. He fully
expected that if he testified against Marshall he might still receive additional
sentencing concessions as a direct result of his cooperation with Smithey and the
Iowa City police.
Smithey was fully aware of how the cooperation agreements worked. The
same lack of specificity in the terms of the agreement that were for the benefit of
the federal government also were for the benefit of the State. It was not
necessary for Smithey or Johnson to discuss the value that would be received by
Johnson’s cooperation. The value for Johnson was the expectation of a
favorable report to the federal authorities concerning his cooperation with the
State.
Smithey testified that he knew incarcerated individuals had certain rights
that should not be bypassed by instructing informants on what information to find
or how to go about it. The State asserts Smithey did not cross the line. But
22
clearly Smithey did not tell Johnson to be a passive listener, nor did he
communicate anything close to that. On our de novo review, we find that
effective communication abounded. There were no misunderstandings. Smithey
knew there was a line he should not cross, and we have no reason to believe he
intentionally crossed it. But, we find that he did cross that line. Johnson was not
a paid informant—not paid in cash. Johnson reasonably expected the
opportunity for a sentencing concession. Smithey did not tell Johnson to
interrogate Marshall, but asking him to gather information, in light of the valuable
consideration at issue, communicated effectively that the more information he
could get from Marshall the better.
A smile, a frown, crying, laughter, a pat on the back, a thumb up (or
down), a salute, an obscene gesture, and a wink and a nod are all examples of
effective communication without a spoken word.
A court must also analyze the facts and circumstances of a
particular case to determine whether there exists an express or
implied agreement between the State and the informant at the time
the elicitation took place that supports a finding of agency. . . . To
hold otherwise would allow the State to accomplish “with a wink
and a nod” what it cannot do overtly. This, the Sixth Amendment
does not permit.
Ayers, 623 F.3d at 311-12.
Smithey told Johnson the crime at issue. Smithey told Johnson the three
individuals about whom the police wanted him to gather information. Johnson
knew that if he obtained information from Marshall that was helpful to police, a
favorable report of his cooperation would be sent to federal prosecutors. He and
Smithey knew a favorable report had the potential for a sentencing concession.
23
From the foregoing, it is clear Smithey expected Johnson to perform, and
Johnson did. The facts and circumstances demonstrate an implied agreement
that Johnson would perform the task that Smithey wanted. What we had here
was not a failure to communicate; expectations could not have been much
clearer. We find that when Johnson solicited information from Marshall after July
12, 2011, Johnson was an agent of the State of Iowa.
Accordingly, all statements made by Marshall to Johnson after the July 12,
2011 meeting should have been suppressed as having been made in violation of
Marshall’s Sixth Amendment right to counsel.
The evidence shows that Freeman and Martin had not met with Iowa City
police before gathering information from Marshall. Marshall’s argument that they
were acting as agents fails to satisfy the requirements of the Massiah line of
cases, requiring some evidence of an express or implied agreement prior to
soliciting information. Marshall seems to argue that Johnson, as an agent of the
State, must have communicated with Freeman and Martin and effectuated their
status as agents of the State. First, there was no testimony from Johnson,
Freeman, or Martin that would support such a conclusion. Second, we are not
willing to speculate or assume that Johnson was authorized to or did initiate such
communications, even indirectly. The informants were not asked to deliberately
elicit information from Marshall, or do anything more than provide information
they heard. The officers did not do anything to place the informants in the same
vicinity as Marshall. It is not unexpected that Freeman and Martin, given their
circumstances of facing long prison sentences, might try to curry favor with law
24
enforcement in hopes of improving their situation. What is missing, however, is a
prior agreement. We conclude the district court properly ruled Freeman and
Martin were not acting as agents of the State at the time Marshall talked to them
about his case. We agree with the court’s statement in its ruling on the motion
for new trial that Freeman and Martin “collected information prior to and without
being approached by the police and later turned it over to the officers.” We
determine Marshall’s motion to suppress the testimony of Freeman and Martin
was properly denied.
III. Harmless Error
When evidence has been admitted in violation of a defendant’s Sixth
Amendment rights, reversal of the defendant’s conviction is not required if the
error is harmless. State v. Peterson, 663 N.W.2d 417, 430 (Iowa 2003). The
parties, however, have not raised the issue of harmless error in the appellate
briefs. The Iowa Supreme Court has stated courts may cautiously exercise
discretion in engaging in sua sponte harmless-error review. In re Det. of Blaise,
830 N.W.2d 310, 320 (Iowa 2013). Factors to be considered are: (1) the length
and complexity of the record; (2) whether the harmlessness of the error is certain
or debatable; and (3) whether a reversal will result in protracted, costly, and
ultimately futile proceedings in district court. Id. at 319. The second factor—“the
extent to which the harmlessness of the error is open to question”—has been
considered the chief factor. Id. at 320 (citing United States v. Gonzalez-Flores,
418 F.3d 1093, 1101 (9th Cir. 2005); Lufkins v. Leapley, 965 F.3d 1477, 1482-83
(8th Cir. 1992); United States v. Pryce, 938 F.2d 1343, 1348 (D.C. Cir. 1991)).
25
In examining these three factors, we first note the record is fairly lengthy
and complex in this case. Including jury selection and jury deliberations, the trial
took eleven days. There were twenty-eight witnesses and 111 exhibits during
the trial. On the other hand, this case does not involve complex legal issues.
We turn to the second factor, whether the harmlessness of the error in
admitting Johnson’s testimony about Marshall’s statements after he met with
officer Smithey on July 12, 2011, is certain or debatable. Johnson is the only
witness who testified that Marshall, Thompson, and Calvin were in the hallway
playing dice, and then Thompson went inside his apartment. According to
Johnson, “that’s when [Marshall] came up with the idea that he wanted to rob the
landlord.” Johnson stated Marshall told him Calvin was with him when he was
going to do the robbery. This is also the only evidence linking Calvin to the
crime. Johnson stated he did not know which “Calvin” Marshall was referring to.6
Additionally, Johnson is the only witness who testified that Marshall told him the
shot was loud. Johnson testified Marshall told him that after the shooting he ran
out the back way, then came back, “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.” This last statement corroborates testimony from Brown that a few
minutes after hearing a “loud pop,” he heard Marshall quietly knocking on the
door of his apartment, asking his aunt to let him in.
6
It is not clear from the record whether “Calvin,” was someone’s first name, last name,
or a nickname. When asked if he knew Calvin, Johnson stated, “I knew a couple
Calvins.” Johnson replied in the negative when asked, “Did he say which Calvin?”
Under a theory of aiding and abetting there is no requirement that the identity of the
principal be established. State v. Kern, 307 N.W.2d 22, 28 (Iowa 1981) (Kern I).
26
While there was evidence linking Marshall to the murder based on
Marshall’s own statements to officers, the testimony of Martin and Freeman,
gunshot residue on his jacket, and evidence Marshall put some clothing in a
garbage bag and took it out to a dumpster, Johnson’s testimony provides
important evidence on the issue of whether Marshall was guilty under a theory of
aiding and abetting due to Johnson’s statement Marshall told him Calvin was with
him when he was going to commit the robbery. The case was submitted to the
jurors on theories of aiding and abetting, participation in a forcible felony, and
joint criminal conduct. The jurors could vote for more than one theory. Eleven
jurors voted for aiding and abetting, seven for a forcible felony, and two for joint
criminal conduct. If Johnson’s testimony is eliminated, then the evidence that
Marshall and Calvin committed the offense together is also eliminated. We
conclude the extent of the harmlessness of the error in admitting Johnson’s
testimony is debatable or open to question.
Third, while a reversal will result in protracted and costly proceedings, we
are unable to conclude those proceedings would be ultimately futile. Although
without Johnson’s testimony there is not as much evidence to support a
conviction based on aiding and abetting, we cannot conclude there is insufficient
evidence from which a jury could find Marshall aided and abetted someone else
in the murder.
Based on the three-factor test found in Blaise, 830 N.W.2d at 319, we
conclude it would be inappropriate for us to engage in a sua sponte harmless-
error review. Because the issue of harmless error was not raised by the parties,
27
we will not consider it. See State v. Dudley, 856 N.W.2d 668, 678 (Iowa 2014)
(“The State does not argue the admissibility of the objectionable statements
constitute harmless error. Therefore, we will not make the arguments for the
State or reach the issue of harmless error.”).
IV. Jury Instructions
Marshall claims the district court erred by instructing the jury on the
theories of aiding and abetting and joint criminal conduct because there was
insufficient evidence in the record to support submitting these theories to the
jury.7 He claims there is not substantial evidence in the record to show more
than one person participated in the offense. “We review jury instructions to
decide if they are correct statements of the law and are supported by substantial
evidence.” State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). Our standard of
review is for the correction of errors at law. State v. Anderson, 636 N.W.2d 26,
30 (Iowa 2001).
A. “To sustain a conviction under a theory of aiding and abetting, ‘the
record must contain substantial evidence the accused assented to or lent
countenance and approval to the criminal act by either actively participating or
encouraging it prior to or at the time of its commission.’” State v. Hearn, 797
N.W.2d 577, 580 (Iowa 2011) (citation omitted). “Knowledge is essential;
however, neither knowledge nor presence at the scene of the crime is sufficient
to prove aiding and abetting.” Id. “A defendant’s participation may however be
7
On appeal, Marshall claims this error violated his constitutional right to a fair jury trial.
He recognizes, however, defense counsel did not frame his objections to these
instructions in constitutional terms. We conclude Marshall failed to preserve error on his
constitutional arguments about the jury instructions. See Paulsen, 293 N.W.2d at 247.
28
proven by circumstantial evidence.” Id. Factors such as presence,
companionship, and conduct before and after the offense may be considered in
determining whether a defendant participated in a crime. State v. Lewis, 514
N.W.2d 63, 66 (Iowa 1994).
The State points out that from the evidence presented at the trial, the jury
could have determined Marshall aided and abetted Thompson or White, or both,
in committing the offense. Marshall told officers the robbery had been planned
by Thompson and White. He told officers and Johnson that Thompson had shot
Versypt. There was evidence of Thompson’s involvement—the murder weapon
belonged to Thompson; when officers arrived he was outside the apartment
building;8 and he and Marshall took some trash bags to a dumpster on the night
after the murder. There was also evidence Marshall had been talking to White
outside the back door of the apartment building, near where the shooting took
place.
The jury could have believed Marshall’s statements that Thompson and
White were involved in the robbery and shooting, but concluded Marshall was
also involved. As the district court stated in its ruling on post-trial motions, “In
short, in part from Defendant’s own statements, there was evidence from which
the jury could reasonably have found that one or more persons other than
Defendant were involved in the crime.” The State is not required to establish the
identity of the principal. Kern I, 307 N.W.2d at 28. We conclude the district court
8
This is consistent with Brown’s testimony that immediately after the shooting he heard
the downstairs back door “bust open real quick.”
29
did not err in determining there was substantial evidence in the record to support
the submission of the instructions on aiding and abetting to the jury.
B. In order to show a defendant engaged in joint criminal conduct, the
State must prove: (1) the defendant was acting in concert with another; (2) the
defendant must knowingly be participating in a public offense; (3) a “different
crime” must be committed by another participant in furtherance of the
defendant’s offense; and (4) the commission of the different crime must be
reasonably foreseen. State v. Smith, 739 N.W.2d 289, 294 (Iowa 2007). “‘In
furtherance of’ is not limited to acts done to promote or advance the underlying
crime, but includes acts done while furthering that offense.” Id. As with aiding
and abetting, there is no requirement under a theory of joint criminal conduct that
the State must prove the identity of the principal actor. State v. Kern, 307
N.W.2d 29, 30 (Iowa 1981) (Kern II).
From Marshall’s own statements there is substantial evidence in the
record to show he was acting in concert with Thompson or White, or both.
Marshall knew he was participating in the public offense of robbery; he planned
the robbery of Versypt based on his belief the landlord would be carrying cash. A
different crime, shooting Versypt, was committed by another participant in
furtherance of the robbery. Killing Versypt allowed the participants to avoid being
identified, allowed them to take his wallet without resistance, and assisted in their
escape. Furthermore, the shooting was a reasonably foreseeable outcome of
the robbery. See State v. Speaks, 576 N.W.2d 629, 633 (Iowa Ct. App. 1998)
30
(“A murder is a reasonably foreseeable crime when using a gun to threaten
robbery victims.”).
In the post-trial ruling, the district court found “there was substantial
evidence on which the jury could have made findings that Mr. Versypt was killed
in the course of an intended robbery.” We determine the court did not err in
concluding, “there was also sufficient evidence from which the jury could have
concluded that Defendant participated in joint criminal conduct which resulted in
the forcible felony of robbery, during which Mr. Versypt was killed.” We conclude
the court properly submitted instructions on joint criminal conduct to the jury.
V. Ineffective Assistance
Marshall contends he received ineffective assistance from his defense
counsel. We review claims of ineffective assistance of counsel de novo.
Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of
ineffective assistance of counsel, a defendant must show (1) the attorney failed
to perform an essential duty, and (2) prejudice resulted to the extent it denied the
defendant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A
defendant has the burden to show by a preponderance of the evidence counsel
was ineffective. See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).
A. Marshall claims he received ineffective assistance because
defense counsel did not raise a claim based on the Iowa Constitution in his
motion to suppress. He states, “counsel should have argued an interpretation of
31
the Iowa Constitution to provide protection of the rights to counsel that is broader
than protection provided under the federal Constitution.”9
The Iowa Constitution states, “In all criminal prosecutions . . . the accused
shall have a right to . . . have the assistance of counsel.” Iowa Const. art. I, § 10.
This provision is broadly construed “to effectuate its purpose, which was to
correct the imbalance between the position of the accused and the powerful
forces of the State in a criminal prosecution.” State v. Newsom, 414 N.W.2d 354,
359 (Iowa 1987). In a case where a defendant claimed he made statements to
officers based on promises of leniency, the Iowa Supreme Court stated, “We hold
that our constitution prohibits agents of the State from initiating any
conversations or dealings with an accused concerning the criminal charge on
which representation of counsel has been sought.” Id.
Similar to the Sixth Amendment, the rule under the Iowa Constitution
applies to State agents. See id.; Nelson, 325 N.W.2d at 120 (considering the
Sixth Amendment and noting the informant did not qualify as a state agent). We
note that “when the federal and state constitutions contain similar provisions,
they are usually deemed to be identical in scope, import, and purpose.” State v.
Davis, 304 N.W.2d 432, 434 (Iowa 1981). “Special respect and deference is
accorded United States Supreme Court interpretations of similar language in the
federal constitution.” Id.; see also State v. Findling, 456 N.W.2d 3, 6 (Iowa Ct.
9
This issue is moot as to the testimony of Johnson because we have concluded
Johnson’s testimony of information he obtained from Marshall after July 12, 2011, should
be suppressed based on the federal constitution. We consider this issue as to Martin
and Freeman only.
32
App. 1990) (interpreting Article I, section 10 of the Iowa Constitution in accord
with the Sixth Amendment).
We have already determined Freeman and Martin were not acting as
agents of the State when Marshall talked to them about this case. Because the
Iowa Constitution, like the federal constitution, prohibits state agents from
questioning a defendant after the defendant has invoked his right to counsel, we
conclude Marshall has not shown that if defense counsel had raised an argument
based on the Iowa Constitution that it would have been successful. “We will not
find counsel incompetent for failing to pursue a meritless issue.” State v.
Brothern, 832 N.W.2d 187, 192 (Iowa 2013). We determine Marshall has not
shown he received ineffective assistance of counsel on this ground.
B. Marshall also claims he received ineffective assistance because
defense counsel did not object to the jury instructions on aiding and abetting and
joint criminal conduct on constitutional due process grounds. He states, “The
due process violation is not a categorical challenge to the statutory validity of
liability by the rule of joint criminal conduct. The due process violation was in the
trial court’s application of the rule to the instant case.” He asserts the instructions
were confusing and this led the jury to find Marshall guilty based on something
other than the evidence presented in the case. Marshall asserts an objection on
due process grounds would have been successful and would have changed the
outcome of the case.
“[T]he Due Process Clause protects the accused against conviction except
upon proof beyond a reasonable doubt of every fact necessary to constitute the
33
crime with which he is charged.” State v. Frei, 831 N.W.2d 70, 76 (Iowa 2013).
“[T]aken as a whole, the instructions [must] correctly conve[y] the concept of
reasonable doubt to the jury.” Id.
In reviewing Marshall’s objections to the instructions on aiding and
abetting and joint criminal conduct, we determined there was substantial
evidence in the record to support the submission of these instructions to the jury.
Because the instructions were supported by substantial evidence, we do not
believe the instructions were confusing, or that Marshall has shown the jury
determined his guilt based on something other than proof beyond a reasonable
doubt. We conclude he has not shown he was denied due process based on the
court’s decision to give these instructions. Marshall has not met his burden to
show by a preponderance of the evidence counsel was ineffective. See
McKettrick, 480 N.W.2d at 55.
We have determined that all statements made by Marshall to Johnson
after July 12, 2011, should have been suppressed as having been made in
violation of Marshall’s Sixth Amendment right to counsel. Because the issue was
not raised by the parties, we have not engaged in a harmless-error analysis. We
determine Marshall’s conviction for first-degree murder must be reversed and the
case remanded to the district court. Because issues relating to the jury
instructions may arise on remand, we have considered the jury instructions and
find no error.
REVERSED AND REMANDED.
Bower, J., concurs specially; McDonald, J., dissents.
34
BOWER, J. (concurring specially)
I concur in the result but choose to write separately. My fellow panel
members have appropriately set out the case law in this area, and therefore I see
no reason to repeat it. However, I believe there are additional facts showing
Marshall’s conviction should be reversed. The State asks us to believe the
events that occurred from the time the arrest warrant was issued for Marshall on
July 12, 2011, until the interviews of the jailed informants were completed in
October 2011, are merely a coincidence. The American Heritage dictionary
defines a coincidence as: “A sequence of events that although accidental seems
to have been planned or arranged.” American Heritage Dictionary 173 (4th ed.
2004).
After a review of the record, I am convinced the actions of law
enforcement, and the subsequent information provided by Johnson, was not
coincidental. The murder of Versypt occurred on or about October 8, 2009.
Marshall’s whereabouts after the murder were known to Johnson and law
enforcement as Marshall was questioned while living in Burlington, Iowa, before
he fled to Texas. Marshall was apprehended in July 2011 and had an initial
appearance in Iowa on July 26, 2011. Marshall, who knew Johnson, Martin, and
Freeman prior to his arrest in Texas, was placed in the Muscatine County Jail on
his state charge for murder while the others were held in the same jail on federal
drug charges. Johnson (as previously noted) knew Marshall and had talked to
him concerning the murder. Law enforcement interviewed Johnson prior to
Marshall’s arrest and prior to Marshall being placed in the Muscatine County Jail
35
as an “overflow” inmate from another county. Johnson had pleaded guilty to drug
charges in February 2011 (prior to Marshall’s return), and expected to be
sentenced in July 2011, but was not sentenced until March of 2012—seven
months after the original sentencing date.
Before Marshall returned to Iowa, Detective Smithey met with Johnson at
the jail on July 12, 2011, and asked Johnson more questions about the Versypt
murder. Smithey advised Johnson if he was to learn anything about the Versypt
murder from Marshall (who had not been placed in the Muscatine County Jail as
of the time of the interview) to let Smithey know as he was interested in any
information about the murder—specifically information about Thompson,
Marshall, and White. From the initial meeting between Smithey and Johnson on
July 12, 2011, (the same day the arrest warrant was issued for Marshall) Smithey
met with Johnson approximately one to three additional times. Johnson provided
Smithey and Clarahan with incriminating information derived from Marshall that
helped seal his conviction.
During the several months while Johnson and Marshall were held in the
Muscatine County Jail, they were both placed in administrative segregation,
which limited their interactions but did allow for one hour of time outside their
individual jail cell. Their time in segregation overlapped in excess of seven days.
In addition to advising Johnson about gathering information on Marshall, Smithey
told Johnson to spread the word within the jail that Smithey wanted to know
about the crime.
36
These additional factors convince me a combination of circumstances, not
luck or happenstance, resulted in an implied, if not express, agreement for
Johnson to deliberately elicit statements from Marshall. These circumstances
resulted in the functional equivalent of an interrogation by law enforcement. For
those reasons, I concur in the reversal of this matter due to my lack of confidence
Marshall received a fair trial.
37
MCDONALD, J. (dissenting)
What we have here is a failure of proof. To establish a violation of his
Sixth Amendment right to counsel, as relevant here, Marshall was required to
establish both that Carl Johnson was acting as an agent of the State and that
Johnson deliberately elicited the statements at issue from Marshall. The majority
opinion and special concurrence discuss in great detail the evidence establishing
agency but wholly ignore the lack of evidence establishing deliberate elicitation. I
conclude Marshall failed to establish Johnson deliberately elicited from him the
statements at issue. I would hold the district court did not err in denying
Marshall’s motion to suppress the statements Marshall made to informant
Johnson.10
Massiah was the first of four newly-created Warren Court constitutional
exclusion doctrines relating to incriminating statements issued during a four-year
period in the 1960s. See James J. Tomkovicz, Sacrificing Massiah: Confusion
Over Exclusion and Erosion of the Right to Counsel, 16 Lewis & Clark L. Rev. 1,
4-5 (2012). In Massiah, the Could held the defendant “was denied the basic
protections of [the Sixth Amendment right to counsel] 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.” Massiah, 377 U.S. at 206.
10
I agree with the majority that the State failed to establish agency with respect to
informants Martin and Freeman and that the district court did not err in denying
Marshall’s motion to suppress with respect to the statements Marshall made to
informants Martin and Freeman.
38
The Court revisited Massiah in Henry. In that case, the Court held that
“[b]y 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.” Henry, 447 U.S. at 274. Mr. Justice Powell
concurred in the Court’s judgment but expressed a narrow interpretation of
Massiah:
The rule of Massiah serves the salutary purpose of
preventing police interference with the relationship between a
suspect and his counsel once formal proceedings have been
initiated. But Massiah does not prohibit the introduction of
spontaneous statements that are not elicited by governmental
action. Thus, the Sixth Amendment is not violated when a passive
listening device collects, but does not induce, incriminating
comments. Similarly, 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. In such a case, the question would be whether
the informant’s actions constituted deliberate and “surreptitious
interrogatio[n]” of the defendant. If they did not, then there would
be no interference with the relationship between client and counsel.
. . . . I could not join the Court’s opinion if it held that the
mere presence or incidental conversation of an informant in a jail
cell would violate Massiah. 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.
Henry, 447 U.S. at 276-77 (Powell, J., concurring) (citation omitted).
In Kuhlmann, the Court adopted Mr. Justice Powell’s more limited reading
of Massiah. Writing for the Kuhlmann Court, Mr. Justice Powell explained the
doctrine as follows:
[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,” [Moulton,] 474 U.S., at 176 at 487, citing United
39
States v. Henry, [477 U.S.] at 276 (Powell, J., concurring), 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.
Kuhlmannn, 477 U.S. at 459. Applying this more limited interpretation of
Massiah, the Court held the defendant failed to establish a Massiah violation.
Although the Kuhlmann court attempted to distinguish rather than overrule Henry,
the cases appear materially indistinguishable. See id. at 473-75 (Brennan, J.,
dissenting) (explaining the case was “virtually indistinguishable from Henry” and
discussing same).
Under Kuhlmann, the defendant bears the burden of establishing both that
the informant was acting as an agent of the State and that the “informant took
some action . . . that was designed deliberately to elicit incriminating remarks.”
Id. at 459. These are separate and distinct elements. See Depree v. Thomas,
946 F.2d 784, 793 (11th Cir. 1991) (“To establish his claim, [the defendant] ‘must
show (1) that a fellow inmate was a government agent, and (2) that the inmate
deliberately elicited incriminating statements from’ him.”); Wallace v. Price, 265
F. Supp. 2d 545, 569 (W.D. Pa. 2003) (explaining that agency element is distinct
from the deliberate elicitation element); People v. Williams, 940 P.2d 710, 744
(Cal. 1997) (“As we have recognized, in order to prevail on a Massiah claim
involving use of a government informant, the defendant must demonstrate that
. . . the informant (1) was acting as a government agent, i.e., under the direction
of the government pursuant to a preexisting arrangement, with the expectation of
some resulting benefit or advantage; and (2) deliberately elicited incriminating
40
statements.”); State v. Fields, 908 P.2d 1211, 1217 (Idaho 1995) (“The inquiry
into such possible Sixth Amendment violations requires that this Court determine
whether (1) the inmates were acting as agents of the police, and (2) the
informants affirmatively and deliberately elicited the incriminating statements.”).
The first element requires proof of agency. The inquiry is more akin to the
state action doctrine rather than commercial agency. See 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 (1988)
(explaining the first element requires proof the government created or exploited a
situation in which the informant is likely to elicit inculpatory statements). The
majority and special concurrence conclude Johnson was working as an agent of
the State. I have no quibble with that conclusion.
The second element requires proof of deliberate elicitation. This requires
the defendant to establish the informant engaged in “the functional equivalent of
interrogation.” Henry, 447 U.S. at 276-77 (Powell, J., concurring). The informant
being placed in close proximity to the defendant is not enough to satisfy the
standard. See United States v. Jacques, 684 F.3d 324, 331-32 (2d Cir. 2012)
(“[T]he 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.”). Moreover, the
Sixth Amendment does not forbid admission in evidence of an accused’s
statements to an informant made during conversations not rising to the level of
surreptitious interrogation. See id. Instead, to prove a violation of the right to
41
counsel, the defendant must establish the informant’s conduct was the functional
equivalent of an uncounseled interrogation. See Kansas v. Ventris, 556 U.S.
586, 592 (2009) (stating “the Massiah right is a right to be free of uncounseled
interrogation, and is infringed at the time of the interrogation”); id. (“The
constitutional violation occurs when the uncounseled interrogation is
conducted.”).
I conclude there is a wholesale failure of proof that Johnson engaged in
conduct arising to the functional equivalent of an uncounseled interrogation and
that this failure of proof is fatal to Marshall’s claim. See Pursell v. Horn, 187 F.
Supp. 2d 260, 338 (W.D. Pa. 2002) (stating defendant must “prove the informant
affirmatively [sought] to induce [incriminating statements]”) (alterations in
original). What evidence did Marshall offer in support of his claim during the
suppression hearing? Only two witnesses were called during the suppression
hearing, Officers Smithey and Clarahan. As pertinent here, Smithey testified as
follows:
Q. Did you make any request from Carl Johnson at that time
to gather more information or to try to contact Justin Marshall for
further information? A. I did not. I only requested that he contact
me if he learned anything further.
....
Q. Did you ever make any effort, once Justin Marshall was
arrested, to have him placed in the cell with anybody in particular?
A. No.
Q. Including Carl Johnson? A. I did not.
....
Q. Did you subsequently meet with Carl Johnson then on
September 5, 2011? A. I did.
Q. And did he relay to you information that he had obtained
from Justin Marshall in the Muscatine County Jail? A. Yes, he did.
Q. And what time frame did he say that he obtained that
information? A. He indicated that he had obtained some
42
information while they were each in a segregated area of the
Muscatine County Jail in August of 2011.
Q. Had you made any effort to get them into segregation?
A. No.
Q. Was it your understanding that they were in segregation
for different purposes, for different violations? A. Yes.
Q. The information he provided you then, was it all
information he had obtained prior to your meeting with him on
September 13 of 2011? A. Yes.
Q. At any time when you met with Mr. Johnson, either in
July or in September, did you ever ask him to do anything to try to
obtain more information or any information from Justin Marshall
regarding John Versypt’s death? A. No. Only to contact me if he
learned anything.
Q. Did any of the other investigators present when you
interviewed Mr. Johnson on July 12 ever say anything to the effect
of you should get more information or tell him to do anything further
for the investigation of John Versypt’s death? A. No.
Officer Clarahan testified similarly to Smithey:
Q. At that meeting, did you ever request Carl Johnson to
obtain other information for you or to do anything further on behalf
of the State in the investigation of John Versypt’s murder? A. No.
Q. Did you hear anybody else from the government making
that request of him? A. No, I did not.
Q. Did you make any arrangements for Carl Johnson to
ever be placed in the same cell, cell block, pod, anything at the
Muscatine County Jail with Justin Marshall? A. No.
....
Q. Did you ever ask . . . Carl Johnson . . . to do anything on
behalf of the State to gather information from Justin Marshall
regarding the John Versypt murder? A. No.
This is the totality of the relevant evidence presented to the district court during
the suppression hearing. There was no evidence received during the
suppression hearing establishing Johnson conducted the functional equivalent of
an uncounseled interrogation. Indeed, there was no evidence received during
the suppression hearing illuminating any of the details regarding Johnson’s
contact with Marshall. We should not fault the district court for denying the
43
motion to suppress when the defendant failed to adduce evidence in support of
the motion.
Looking beyond the suppression record, there is also nothing in the trial
record evidencing “deliberate elicitation.” See State v. Brooks, 760 N.W.2d 197,
203-04 (Iowa 2009) (explaining an appellate court may consider the evidence
during a suppression hearing as well as the evidence admitted at trial). Johnson
testified he was placed in the segregation unit, or special housing unit, at the
Muscatine County Jail in August 2011 for violating facility rules. Inmates in the
segregation unit are housed in single cells, and they get one hour out of their
cells per day. Johnson estimated he was in the segregation unit for
approximately seventeen days. Marshall was in the segregation unit for
approximately nine to ten of these days, also for violating facility rules. Johnson
did not request to be in the segregation unit. Johnson did not know Marshall was
in the segregation unit at the time he was moved to the unit:
Q. And you knew that Justin was also in segregation didn’t
you? A. No.
Q. You sure about that? A. Positive.
Q. Okay. But he just happened to be in segregation? A.
Yes.
While in the segregation unit, Johnson and Marshall spoke with each other.
Johnson testified that Marshall initiated the discussions regarding Marshall’s
case:
Q. All right. 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.
....
44
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 contrary to Johnson’s testimony regarding the nature of his
interactions with Marshall.
The defendant bears the burden of coming forward with evidence
establishing the State violated his right to counsel. He failed to meet his burden.
Marshall’s Massiah claim is speculation, conjecture, and belief unsupported by
evidence. The evidence established several facts dispositive of Marshall’s claim
with respect to Johnson’s testimony. No state actor instructed Johnson to obtain
information from Marshall. No state actor requested Johnson to obtain
information from Marshall. Smithey merely identified Marshall and two others as
persons of interest and told Johnson to contact him if he heard anything. The
prosecution did not make arrangements to place Johnson in proximity to
Marshall. Johnson made no efforts to be placed in proximity to Marshall.
Johnson and Marshall were in the segregation unit together for only nine to ten
days and had limited time to hold any conversations. It was Marshall, not
Johnson, who initiated conversations regarding the murder. There is no
evidence that Johnson asked questions during those conversations designed to
elicit additional information regarding the murder. There is no evidence
regarding the nature of Marshall and Johnson’s conversations showing that
Johnson conducted the functional equivalent of an uncounseled interrogation of
Marshall.
Under similar facts, the Iowa Supreme Court and numerous other courts
have concluded the defendant failed to prove a violation of his right to counsel.
45
See State v. Liggins, 524 N.W.2d 181, 186-87 (Iowa 1994) (denying Massiah
claim where there was a lack of evidence establishing deliberate elicitation); see
also United States v. Whitten, 610 F.3d 168, 194 (2d Cir. 2010) (holding inmate
did not deliberately elicit statements from defendant where the statements were
made during conversation regarding many other things); United States v. Lentz,
524 F.3d 501, 521-22 (4th Cir. 2008) (holding no deliberate elicitation where
jailhouse informant was told to personalize conversations to bring up matters of
common interest rather than elicit information about the case); Moore v. United
State, 178 F.3d 994, 1000 (8th Cir. 1999) (denying relief where there was no
proof of “any improper or surreptitious interrogation”); Lightbourne v. Dugger, 829
F.2d 1012, 1021 (11th Cir. 1987) (holding there was no deliberate elicitation
where informants “took no actions to stimulate the incriminating remarks”);
Wallace v. Price, 265 F. Supp. 2d 545, 569 (W.D. Pa. 2003) (holding no
deliberate elicitation where “[t]here [was] no evidence of instruction to obtain
information and no evidence that informant initiated the conversation” even
where the informant was placed in a cell near defendant and they had a prior
personal relationship); Pursell, 187 F. Supp. 2d at 338 (stating there was “nothing
in the record to establish deliberate elicitation”); People v. Williams, 940 P.2d
710, 744 (Cal. 1997) (concluding defendant was a mere “listening post” and that
while the defendant and the informant talked about their cases together “nothing
in the record suggests that [the informant] actively questioned defendant about
defendant’s case”); State v. Swinton, 847 A.2d 921, 966 (Conn. 2004) (stating
there is no “bright line test” to determine whether statements were deliberately
46
elicited and the court must “scrutinize the record to determine whether the
exchanges . . . look like government interrogations”); State v. Fields, 908 P.2d
1211, 1217 (Idaho 1995) (affirming denial of motion to suppress where the
defendant “presented no evidence to establish that the informants asked any
questions or initiated any conversations about the murder”); State v. Johnson,
858 N.E.2d 1144, 1178 (Ohio 2006) (finding no deliberate elicitation where
informant and defendant were placed in same cell without government
involvement and defendant “volunteered” information); Sincock v. State, 76 P.3d
323, 333 (Wyo. 2003) (holding informant’s receipt of information was passive and
not deliberate elicitation).
On de novo review, finding no proof that informant Carl Johnson
deliberately elicited statements from Marshall regarding Marshall’s murder of
Versypt, and finding overwhelming authority supporting the proposition that the
defendant’s Massiah claim fails in the absence of such proof, I conclude the
district court did not err in denying Marshall’s motion to suppress. Accordingly, I
respectfully dissent.