Thomas v. Cox

• Decision Date: 01 June 1983
• Docket Number: No. 82-6614,82-6614
• Citation: 708 F.2d 132
• Parties: B. Frank THOMAS, Appellant, v. J.D. COX, Warden, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 132

708 F.2d 132

B. Frank THOMAS, Appellant, v. J.D. COX, Warden, Appellee.

No. 82-6614.

United States Court of Appeals, Fourth Circuit.

Argued Jan. 10, 1983.

Decided June 1, 1983.

Irving M. Blank, Richmond, Va. (Paul, Smith & Blank, Richmond, Va., on brief), for appellant.

Jerry P. Slonaker, Asst. Atty. Gen., Richmond, Va. (Gerald L. Baliles, Atty. Gen. of Va., Richmond, Va., on brief), for appellee.

Before WIDENER and PHILLIPS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

JAMES DICKSON PHILLIPS, Circuit Judge:

This appeal presents the question whether incriminating statements made by a pre-trial prison detainee to a fellow prison inmate who had initiated contacts with the police and been advised by them to listen for but not elicit information were unconstitutionally admitted in the detainee's state criminal trial in violation of his sixth amendment rights to counsel as defined in United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). The district court denied a petition for federal habeas corpus based upon the sixth amendment claim. We agree with the district court that the facts of this case are distinguishable in critical respects from those in Henry and that they lie beyond the sixth amendment protections defined and applied in that case. Accordingly, we affirm.

I

On June 2, 1979, Thomas was arrested and charged with the murder of his girlfriend's mother, Rosa Annette Stout, who during the preceding evening had been strangled with a shoelace and run over with a car. Thomas was incarcerated in the Goochland County Jail, where he became acquainted in late August with Charles Gregory, who was serving a three-year sentence, with two years and three months suspended, for auto theft. During the following several weeks, Thomas made a series of statements, some in response to questions posed by Gregory and others in the course of general conversation, that incriminated him in the murder of Mrs. Stout. For example, when Gregory observed that he had heard that the victim of the crime for which Thomas had been charged had been strangled, raped and run over with a car, Thomas replied, "I did not rape her."

In early or mid-November, when Gregory was in court on a sentencing matter, he encountered Leslie Parrish, an investigator for the sheriff's office. When Gregory asked about the disposition of Thomas's case, Parrish informed Gregory that the Thomas trial had been postponed. Gregory observed, "I know he's guilty ... just from the things he's said," and then related several of Thomas's earlier, self-incriminating statements. Both Gregory and Parrish later testified that Gregory did not agree to furnish the Commonwealth with additional information, and Gregory further testified that he declined Parrish's invitation to talk to the Commonwealth's Attorney.

Approximately a week later, when Gregory again was required to appear in court on his own behalf, he met with Thomas Snead, a state police investigator who had been informed by Parrish that Gregory possessed information helpful to the Commonwealth's case against Thomas. At this meeting, Gregory showed Snead a single sheet of paper on which Gregory had handwritten a list of Thomas's damaging admissions. Snead testified that he

instructed [Gregory] not to go back to the jail and ask any questions, but if [Gregory] did hear of anything else to let [him] know .... But specifically [Gregory] was instructed ... not to ask [Thomas] any questions ... but to be alert to anything [Thomas] might say.

Snead further testified that he told Gregory that no promises could be made for his help, that Gregory was neither offered, nor asked for, anything from Snead, and that the gist of the conversation was "if you [Gregory] want to give us the information that's fine, if not, that's fine."

When Gregory returned to the Goochland jail, he again had the opportunity to converse with the petitioner, who made over twelve additional self-incriminating statements to Gregory. Included in this series of statements to Gregory were several direct admissions of guilt. Illustrative of the nature of petitioner's statements are two replies to observations made by Gregory: "Yeah, I killed her and I bet I will get off scott free [sic]," and "I killed somebody and I ain't carrying any dead woman on my back." Gregory continued recording Thomas's comments on scraps of paper until he was released on parole in December of 1980.

At Thomas's trial, the Commonwealth sought to have Gregory testify as to the approximately 25 self-incriminating statements made by Thomas. The state trial judge held a hearing to determine if the Commonwealth had, through Gregory, elicited the damaging evidence from Thomas in violation of his sixth amendment right to counsel, as that protection had been interpreted by this court in Henry v. United States. ¹ At this hearing Gregory explained that his motivation for collecting information from Thomas, as well as from other prisoners, was curiosity, and that he did not decide until three days after his release from prison to cooperate with the Commonwealth. Officers Snead and Parrish corroborated Thomas's testimony, and the trial judge found that Gregory was "a self-initiated informant, moved by conscious [sic]," that he was not a "government agent," and that the Commonwealth had therefore not violated the principle established in Henry.

Gregory then testified before the jury, which found Thomas guilty of the first degree murder of Rosa Annette Stout on February 18, 1980. Arguing that the Commonwealth had unconstitutionally interfered with his right to counsel, Thomas appealed his conviction to the Virginia Supreme Court, which dismissed his Petition for Appeal.

Thomas then sought federal habeas corpus relief under 28 U.S.C. Sec. 2254. The district court denied the relief on the basis that the Commonwealth's actions did not run afoul of the principle announced in Henry, because Gregory was not under the control of the Commonwealth and had made no agreement to cooperate with them in their investigation or prosecution of Thomas. Moreover, the court found as fact--against petitioner's allegation--that the Commonwealth had not placed Gregory near Thomas in the Goochland jail and concluded from all this that no agent of the Commonwealth had "set a scheme in motion" to deprive Thomas of his right to counsel. This appeal followed.

II

In Henry, the Court held that the government violated an incarcerated defendant's right to counsel by intentionally placing a paid, undercover government informant in close proximity to the defendant and instructing the informant "not to initiate" any conversations with the defendant but "to be alert" to any statements he might make regarding the crime for which he was charged. In holding that the government had "deliberately elicited" incriminating statements from the defendant in violation of the proscription of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), the Court relied on three factors: that the inmate witness was a paid informant acting on instructions from the government, that the informant was ostensibly no more than a fellow inmate of the defendant, and that the defendant was in custody and under indictment at the time he incriminated himself. Henry, 447 U.S. at 270, 100 S.Ct. at 2186.

The petitioner argues that the same considerations that guided the Supreme Court's decision in Henry, except for the fact that Gregory was an unpaid informant while the inmate witness in Henry worked for a fee, are present in this case as well. Indeed, as the Commonwealth concedes, the similarities between the two cases are quite close and readily apparent. Like the inmate witness in Henry, Gregory gathered much of his information after having received practically identical "instructions" from the government, and appeared to be no more than a fellow inmate of the defendant who, at the time he incriminated himself, was in custody and under indictment. And we agree with petitioner that whether the Commonwealth violated Thomas's right to counsel cannot, on this record, turn solely on the fact that Gregory was not monetarily rewarded for his efforts. See United States v. Sampol, 636 F.2d 621, 638 (D.C.Cir.1980) (reward of staying free on probation).

But there are also critical differences in the two situations. They relate essentially to the nature of the relationship between the state and the inmate witness, hence to the question whether the actions of the inmate witnesses in the two cases can properly be attributed to the state. ²

In Henry, the Court considered it critical that the informant, previously in the government's paid employ in similar missions, was specifically contacted by the government and given his charge respecting the procurement of possibly incriminating information from Henry. Also important to the Henry Court was the fact that the informant's mission was on a "contingent-fee" basis, Henry, 447 U.S. at 270, 100 S.Ct. at 2187, thereby demonstrating a formal "prearrangement," id. at 273, 100 S.Ct. at 2188, between state and informant (as well as encouraging an active rather than merely passive role for the latter in eliciting inculpatory information). From these circumstances the Court in Henry was able to characterize the informant as a "Government agent expressly commissioned to secure evidence," id. at 273, 100 S.Ct. at 2188, from the accused.

By contrast, as determined by the state trial judge, whose factual findings are entitled to a presumption of correctness when, as here, none of the enumerated exceptions to 28 U.S.C. Sec. 2254(d) exists, see Sumner v. Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d 480 (1982), the inmate witness Gregory in the present case was a "self-initiated informant" who was "motivated by conscience" in initiating the contact and carrying through his proffer of assistance. And the district court further determined, looking solely to the...