State v. Marshall, 13–0739.

CourtUnited States State Supreme Court of Iowa
Citation882 N.W.2d 68
Docket NumberNo. 13–0739.,13–0739.
PartiesSTATE of Iowa, Appellee, v. Justin Alexander MARSHALL, Appellant.
Decision Date30 June 2016

882 N.W.2d 68

STATE of Iowa, Appellee,
Justin Alexander MARSHALL, Appellant.

No. 13–0739.

Supreme Court of Iowa.

June 30, 2016.

882 N.W.2d 72

Kent A. Simmons, Bettendorf, for appellant.

Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney General, Janet Lyness, County Attorney, and Meredith Rich–Chappel, Assistant County Attorney, for appellee.

APPEL, Justice.

In this case, we consider whether the State violated Justin Marshall's right to counsel through the acquisition of evidence from jailhouse informants. The district court rejected the claim, and a jury convicted Marshall of first-degree murder. The court of appeals reversed, holding the State had violated Marshall's Sixth Amendment right to counsel by using a jailhouse informant to obtain incriminating information when Marshall was represented by counsel. Finding the error was not harmless, the court of appeals reversed Marshall's conviction.

In light of the remand, the court of appeals also considered whether the trial court's instructions on aiding and abetting and joint criminal conduct violated due process of law because the instructions were not supported by substantial evidence. The court of appeals rejected Marshall's due process claim.

We granted further review. We retain discretion to consider all issues raised in the original appeal or limit our opinion to selected issues. Botsko v. Davenport Civil Rights Comm'n, 774 N.W.2d 841, 844 (Iowa 2009). In our discretion, we consider only Marshall's right-to-counsel challenge. The court of appeals ruling on the due process challenge to jury instructions stands.

For the reasons expressed below, we affirm in part and vacate in part the court of appeals decision, reverse the trial court ruling on the violation of the right-to-counsel issue, and remand the matter for a new trial.

I. Procedural and Factual Background.

A. Overview of the Crime. John Versypt was the landlord of the Broadway Condominiums complex in Iowa City. On October 8, 2009, Versypt was shot while hanging a sign at the complex. He suffered two gunshot wounds, one to his forehead and the other to his right hand, along with other injuries. He was discovered by a tenant shortly after being shot. On the ground near Versypt were a wallet, a gun,

882 N.W.2d 73

a few tools, and the sign. Versypt died at the scene.

Charles Thompson and Marshall were both staying at an apartment in the complex with Marshall's aunt on the date of the murder. In February 2010, the State originally charged Thompson1 with murder in connection with Versypt's death. Police, however, soon came to suspect Marshall in connection with the slaying. On July 12, 2011, the lead detective on the case for the Iowa City police, Jennifer Clarahan, swore out a complaint against Marshall for the murder. The complaint was filed in Johnson County District Court the following day.

B. Meetings with Confidential Informants Prior to and After Arrest of Marshall. On July 12, Detective Clarahan and Detective Michael Smithey met with Carl Johnson, a federal prisoner, at the Muscatine County Jail. They told Johnson they sought information on Charles Thompson, Courtney White, and Justin Marshall in connection with Versypt's murder. At the time of the meeting, Marshall was at large in Texas. When Marshall was arrested in Texas and brought to Iowa, he was immediately sent to the Muscatine County Jail. Marshall was charged with Versypt's murder on August 1, 2011. Iowa City police had subsequent contacts with Johnson and two other inmates—Earl Freeman and Antonio Martin—at the Muscatine County Jail. All three inmates had obtained information about the crime from Marshall while he was incarcerated in Muscatine.

C. Disclosure of Relationship with Confidential Informants. In March 2012, the State identified the inmates as additional witnesses in Marshall's upcoming trial in a notice of additional testimony. The State noted that Martin and Johnson were in “a cooperation agreement with the United States Attorney for the Southern District of Iowa.” The minutes, however, did not indicate any other relationship between the three inmates and the State.

Marshall's trial was scheduled to commence on January 22, 2013. On January 17, Marshall's counsel received an email from the State with two letters from Freeman to Detectives Clarahan and Smithey dated September 21 and October 26, 2011. In the September 21 letter from Freeman to Detective Clarahan, Freeman stated that he was in the cellblock with Marshall, that he could back up information the State had been provided on Marshall, and that if Marshall were kept in the block “we could get a lot more information.” The October 26 letter from Freeman to Detectives Clarahan and Smithey asked, among other things, that Detectives Clarahan and Smithey advise federal prosecutors and Freeman's attorney that “[Freeman] helped in [their] investigation and prosecution of Justin Marshall.”

The trial began as scheduled. Freeman was deposed a second time in the middle of the trial on the evening of January 31 to resolve an unrelated matter. At this time, Marshall's attorney received a letter dated January 26, 2013, from the Johnson County Attorney to Richard Westphal, a federal prosecutor in charge of handling Freeman's pending federal drug prosecution. In this letter, the county attorney explained in detail how Freeman cooperated first with the trial of Thompson and then with the trial of Marshall for the death of Versypt. The county attorney stressed that, while Freeman's information had been helpful regarding the Thompson matter, it was also “extremely helpful” to the

882 N.W.2d 74

State in Marshall's prosecution. She closed by requesting that Freeman receive a reduction in his federal sentence because of his assistance in both the Thompson and Marshall cases.

D. Trial Testimony and Midtrial Motion to Suppress.

1. Opening trial testimony of Detective Smithey. Detective Smithey was called as a witness at Marshall's trial. He described that pursuant to a cooperation agreement, a federal defendant could get a reduction in his or her sentence for providing information. Such a reduction would be recommended by the United States Attorney and approved by a judge. Detective Smithey testified that at the time of the July 12 meeting with Johnson, Johnson had a cooperation agreement with the government. Johnson had already pled guilty and was awaiting sentencing. Detective Smithey testified that when the police interview someone in connection with a cooperation agreement, they would not provide “specific information about how [the informant] should gather information.” Detective Smithey stated it was his understanding that providing specific instructions “would be bypassing ... certain rights that people have who are incarcerated.”

Detective Smithey testified he told Johnson at the July 12 meeting that the State was interested in information related to the Versypt murder and particularly interested in information about Charles Thompson, Justin Marshall, and Courtney White. He made no promises regarding what Johnson would receive in exchange for the information, but Johnson was aware or was made aware that the United States Attorney would be advised of any information provided. Detective Smithey testified that, pursuant to the July 12 meeting, Johnson “was trying to provide information that would be used to determine what reduction [in sentence] he would receive.” He testified it was probably reasonable to assume that Johnson would communicate the State's interest in Marshall to other cooperating witnesses.

2. Marshall's midtrial motion to suppress. Marshall then made an oral, midtrial motion to suppress the testimony of Johnson, Martin, and Freeman. At a hearing on the motion, Marshall offered into evidence the September 21, 2011, October 26, 2011, and January 26, 2013 letters. Marshall maintained that Freeman, Johnson, and Martin “were engaged in a pattern of seeking out Mr. Marshall [and] of working at the behest of the police or agents of the State while Mr. Marshall was represented by Counsel.” Marshall asked the court to prohibit the State from calling Johnson, Martin, and Freeman to testify about Marshall's conversations with them because it would be an “end run around Mr. Marshall's right to have counsel present while agents of the State are questioning him.” While Marshall's counsel stated that he was challenging the testimony of the three informants on grounds of Marshall's right to counsel, he did not explicitly mention either the Sixth Amendment of the United States Constitution or article I, section 10 of the Iowa Constitution.

The district court took a recess, read the letters, and then reconvened the hearing to ask Marshall and the State for relevant authority. After the brief recess, the State cited Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), and Moore v. United States, 178 F.3d 994 (8th Cir.1999), as standing for the proposition that an “informant becomes a government agent only when the informant has been instructed by the police to get information about the particular defendant.” Marshall's attorney did not offer caselaw. The State then called Detectives Smithey and Clarahan as witnesses.

882 N.W.2d 75

3. Testimony of Detective Smithey at midtrial hearing on motion to suppress. Detective Smithey testified that he first met with Johnson on things unrelated to the Versypt murder. He explained that on July 12, 2011, he had a meeting with Johnson, Johnson's attorney, and Detective Clarahan at the Muscatine County Jail “to do a proffer agreement” with Johnson. Detective Smithey stated that the purpose of the meeting was “[t]o find out if Carl Johnson had information about ... the death of John Versypt.” He stated that he did not request Johnson gather more information, but that he “only requested that [Johnson] contact [him] if he learned anything further.” Detective Smithey further stated that he did not make any effort to have...

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