Thompson v. State
| Decision Date | 04 April 1989 |
| Docket Number | No. 18813,18813 |
| Citation | 771 P.2d 592,105 Nev. 151 |
| Parties | William Paul THOMPSON, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Robison, Belaustegui & Robb and David C. McElhinney, Reno, for appellant.
Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty. and Gary H. Hatlestad, Deputy Dist. Atty., Washoe County, Reno, for respondent.
Appellant Thompson was arrested on April 21, 1984, in Reno and eventually charged with murder, attempted murder, robbery and attempted robbery, in Washoe County, Nevada. On August 16, 1984, Thompson was waiting for a hearing to begin in district court and spent six hours in a holding cell with another inmate, Robert Dean Kennedy, who was charged with burglary and the possession of stolen property committed in the Reno area.
Sitting across the table from each other, Thompson and Kennedy engaged in the usual jailhouse talk that included their offenses, drugs and sex. Thompson discussed his pending charges in Reno; and when Kennedy mentioned that he had a matter pending in Placer County, California, Thompson volunteered in detail the circumstances of the murder of two men he had committed along the American River near Auburn, California.
Regarding the Reno homicide, Thompson told Kennedy that he thought he could beat the case by using the defense of self defense and that he would testify that the victim pulled a knife on him at the murder scene, even though that was not the case. Thompson also told Kennedy that he put a knife in the victim's hand and that Thompson knows that the police found a knife.
Thompson also told Kennedy that he committed murders in Kansas and New York and that he always used a .22 because it was the perfect assassination weapon. Kennedy observed that Thompson had a gleam in his eye and an erection when talking about the murders he had committed.
Kennedy was no stranger to law enforcement and had acted as an informant and agent for the police in the past. In 1982, Kennedy testified as a prosecution witness in a murder case in California. He testified about the accused confessing to him when both were inmates in jail. This testimony was subsequently suppressed because the California Superior Court declared that Kennedy was an unannounced police presence and was acting as a police agent when the admissions by the accused were made. The court decision was based on the fact that Kennedy had reached an agreement with the prosecutor whereby Kennedy would obtain information from the accused and then testify to it. In exchange for his help, Kennedy would have certain charges pending against him dismissed. Kennedy elicited the incriminating admissions subsequent to reaching the agreement with the prosecutor.
Kennedy also had a history as an agent and informer for the United States Drug Enforcement Administration (DEA). Prior to coming to Nevada, Kennedy was held in Oregon on unrelated charges. At that time, he was working as an informer for the DEA and making arrangements with inmates for the sale of drugs to others who were not incarcerated. Pursuant to a prior arrangement Kennedy would inform DEA of the particulars of these drug transactions, for which he was compensated. 1 Kennedy waived extradition to Nevada to dispose of the charges pending against him in Washoe County. Shortly after arriving in Washoe County, Kennedy contacted Scott Laurence, an officer with the DEA in Portland, Oregon. He informed Laurence of his location and requested money. Laurence sent him $200. This money was not paid for any future work or a specific assignment and it was totally unrelated to the Thompson case.
After his lengthy conversation with Thompson, Kennedy telephoned a Reno Police Department detective and informed him that he had information regarding Thompson, that he had acted as an informant in the past and that he hoped to receive some consideration from the Placer County District Attorney's Office regarding his pending burglary charges in exchange for his assistance in the Thompson case. Without any specific promises being made to Kennedy, Kennedy then told the police of his discussion with Thompson.
At Thompson's trial, Kennedy testified regarding the admissions Thompson had made concerning the Reno homicide and also testified to Thompson's confession to the California murders. At the end of the trial, Thompson was convicted of murder in the first degree with use of a deadly weapon, attempted murder with use of a deadly weapon, robbery with use of a deadly weapon, attempted robbery with use of a deadly weapon, and carrying a concealed weapon. The jury then imposed the death penalty for the murder and the court sentenced Thompson to the maximum sentences on the remaining charges. The judgment and sentences have been affirmed by this court.
On November 14, 1986, Thompson filed a petition for post-conviction relief and alleged that he was denied his constitutional right to the effective assistance of counsel at his trial. The thrust of his alleged errors is that defense counsel failed to file a motion to suppress the testimony of Kennedy and also failed to request a cautionary jury instruction at trial concerning the testimony of Kennedy. The district court found that Kennedy did indeed have a history as a paid informant for law enforcement and that he had acted as a "snitch" in several cases. However, the district judge concluded that Kennedy was not acting as a paid informant or agent of the police when he obtained the incriminating statements from Thompson in 1984, that Nevada law enforcement authorities were initially unaware of Kennedy's history as an informant, and that Nevada authorities did not have a prearranged agreement with Kennedy or place him in the cell with Thompson to collect information.
The district court concluded that any motion to suppress Kennedy's testimony would not have been successful because he was not a paid informant or government agent and that no cautionary instruction with regard to the reliability of a paid informant's testimony was necessary. The appellant's post-conviction relief petition was denied and this appeal was taken.
This court has disapproved of the practice of an inmate and law enforcement striking an agreement whereby the inmate is placed with an accused, solicits information to be used against the accused and then have the inmate testify against the accused concerning any admission secured, all in exchange for concessions by law enforcement to the charges pending against the inmate. Holyfield v. State, 101 Nev. 793, 711 P.2d 834, 835 (1985). In that case, we held that the jailhouse informant's communication with the accused was the functional equivalent of express police questioning and that this violated the accused's privilege against self-incrimination as stated in the United States and Nevada Constitutions. Thompson argues...
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