Alexander v. State of Conn.

• Decision Date: 30 October 1990
• Docket Number: D,No. 378,378
• Parties: Wayne B. ALEXANDER, Petitioner-Appellant, v. STATE OF CONNECTICUT, Respondent-Appellee. ocket 88-2318.
• Court: U.S. Court of Appeals — Second Circuit

Page 747

917 F.2d 747

59 USLW 2343

Wayne B. ALEXANDER, Petitioner-Appellant, v. STATE OF CONNECTICUT, Respondent-Appellee.

No. 378, Docket 88-2318.

United States Court of Appeals Second Circuit.

Submitted after Remand Sept. 17, 1990.

Decided Oct. 30, 1990.

Gary D. Weinberger, Asst. Federal Public Defender (Thomas G. Dennis, Federal Public Defender, D. Conn., Hartford, Conn., of counsel), for petitioner-appellant.

Susan C. Marks, Asst. State's Atty., Appellate Unit, Office of The Chief State's Atty., Div. of Crim. Justice, Wallingford, Conn., for respondent-appellee.

Before LUMBARD, VAN GRAAFEILAND and ALTIMARI, Circuit Judges.

LUMBARD, Circuit Judge:

As instructed by the Supreme Court in Meachum v. Alexander, --- U.S. ----, 110 S.Ct. 2607, 110 L.Ed.2d 628 (1990) we reconsider, in light of Illinois v. Perkins, --- U.S. ----, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), decided one week earlier, Alexander's appeal from the denial by the district court for the District of Connecticut of Alexander's petition for a writ of habeas corpus. The district court denied Alexander's claim that the admission of his second confession made to a friend during his imprisonment, on other charges, violated his fifth amendment right to the assistance of counsel in such a custodial investigation. We reversed and directed the issuance of the writ in Alexander v. Connecticut, 876 F.2d 277 (2d Cir.1989).

In Illinois v. Perkins, the Supreme Court pointed out that, in cases where a confession is made in prison, there is a heavy burden on the state to show that coercion played no part in the making of such confession. The state can meet that burden by showing that the confession is freely given to someone who is trusted by the defendant, even though such receiver of the confession is acting in cooperation with the police.

In Perkins, the state placed an undercover agent in the prison to elicit statements regarding a murder from an inmate who was being held for aggravated battery. The inmate proceeded to confide in the undercover agent, relating specific details of the murder. The agent did not give the inmate the Miranda warnings prior to the conversations. The Supreme Court held that the inmate's confessions were admissible as they were not the product of a "custodial interrogation." Perkins, 110 S.Ct. at 2397. Justice Kennedy wrote that the rationale underlying Miranda and its progeny dictate that the warnings are only necessary during "incommunicado interrogation of individuals in a police-dominated atmosphere." Perkins, at 2397 (quoting Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694). The court went on to reason that when an incarcerated suspect believes he is conversing with a fellow inmate, there is no reason to fear that the former's words will be motivated by the reaction he expects from his listeners. Perkins, at 2397. Thus, the concerns underlying Miranda are inapplicable in the undercover agent context, even when the suspect is incarcerated. Id.

The record shows that Alexander's second confession to his friend, James Papagolas, was not made in a police dominated atmosphere. The confession was freely made to Papagolas when he visited Alexander at Alexander's request.

I.

In early 1979, Alexander and Vern Alan Cook were codefendants on a third degree larceny charge. The night before their trial was to commence in Rockville, Connecticut, Alexander and Cook set fire to the courthouse. As a result, their court appearances were continued for two weeks to February 6th.

On March 9, 1979, Alexander admitted to the police that he had set the Rockville courthouse on fire and implicated Cook, who was still at large. Alexander was immediately arrested for arson.

Before taking Alexander to jail, four state police troopers accompanied him home to visit his wife and child. In the presence of the officers, Alexander received a call from his friend, James Papagolas. Alexander told Papagolas that he had been arrested for arson and asked Papagolas to visit him in jail. He also told Papagolas that the police suspected that Cook was dead. One of the officers, Sergeant John Jacewicz, noted Papagolas's name for future reference.

At his March arraignment on the arson charge, Alexander requested an attorney. The court then appointed counsel for him.

On March 14, Papagolas visited Alexander at the Hartford Correctional Center. They discussed the arson and Alexander asked Papagolas to sell one of his cars in order to raise cash for Alexander's wife and to satisfy a debt that Alexander owed Papagolas. After the visit, Papagolas drove to Rockville to prepare Alexander's car for sale. As he opened the trunk, two police officers, Sergeant Jacewicz and Trooper John Rearick, who were patrolling the area, recognized the car and approached Papagolas to question Papagolas about his relationship with Alexander. The officers also asked Papagolas whether he knew Cook and his whereabouts and indicated they suspected that he had met with foul play. Papagolas said he did not know where Cook was and mentioned that he intended to visit Alexander again. He said he would let the police officers know if he heard anything about Cook, who had been Papagolas' friend for more than eight years.

On March 16, Papagolas called Jacewicz and Rearick to say that he would be junking Alexander's car and had been told by Alexander's wife that it might contain weapons or ammunition. When the officers arrived, Papagolas had just discovered some .38 caliber bullets in the glove compartment and handed them to the officers. The police asked him to call if he learned anything about Cook.

On March 17, Alexander's lawyer, appointed to represent him on the arson charge, notified the police that his client did not wish to talk to the police without him being present.

On March 19, Papagolas visited Alexander. He told Alexander that the police had asked him about Cook. Papagolas said he had to know, "for his own peace of mind," whether Alexander killed Cook. After a moment of thought, Alexander replied, "for your peace of mind, I did." He explained that Cook had possessed information that could have incriminated him in the arson charge. Papagolas asked whether the body was well hidden. At first Alexander said that it was, but then indicated he was not sure. He said he preferred not to talk about where the body was hidden. When the morning visiting period ended, Alexander asked Papagolas to return that evening. Papagolas testified that he was angry that Alexander had killed his friend, and that he wanted him to be punished for having done such "a useless, senseless act." He telephoned Jacewicz soon after he left the prison saying, "[y]ou guys were right. (Cook)'s dead. I just talked to Wayne and he told me he did it."

Jacewicz asked Papagolas whether he intended to visit Alexander again. They told Papagolas that they had conducted a routine check prior to meeting him that day, which revealed that Papagolas' driver's license had been suspended. They therefore agreed to provide him with transportation to and from the Hartford jail, which was about 20 miles from his home in Rockville.

Papagolas was driven to the jail by Jacewicz and Rearick on three occasions. For each visit with Alexander, the police would meet Papagolas at his Rockville home, drive him to the Hartford jail, wait for him in the parking lot and discuss the conversation with Alexander during the return trip.

When the police drove Papagolas home from his visit on the evening of March 19, he reported that Alexander was worried that Cook's body would be found. Alexander did not want to tell Papagolas where he had hidden it. When Papagolas mentioned that Alexander had asked him to return the following day, Jacewicz and Rearick offered to drive him.

On the return trip from his March 20 visit with Alexander, Papagolas told Jacewicz and Rearick that during his visit Alexander said he did not feel comfortable that the police had been speaking to Papagolas and again expressed concern lest Cook's body be discovered. He hoped it would rain so that the body would decay more rapidly. To persuade Alexander to tell him where the body was, Papagolas offered to cover it with lime to make it decompose more quickly. Alexander, however, repeated that he did not wish to disclose the body's location, but would have his wife call Papagolas if he changed his mind. Alexander would only say that he picked Cook up in his car and drove him out of town to shoot him.

On March 21, Mrs. Alexander called Papagolas and asked him to visit her husband that evening. Papagolas did not visit Alexander until the next day. During this visit, Alexander said he had reconsidered and wanted Papagolas to put lime on Cook's body and remove any identification from it. Alexander told Papagolas that he would kill him if he disclosed the body's location. He then gave Papagolas precise directions to the wooded glen where the corpse could be found.

Several hours later, the police discovered the body in a small clearing in the woods.

II.

On September 17, 1979, Alexander was indicted for the murder of Cook. On May 15, 1980, following a pretrial hearing, the court denied Alexander's motion to suppress Papagolas's testimony about his two confessions as violative of his rights under the fifth and sixth amendments. The court denied...