US EX REL., GIBSON v. McGinnis
| Decision Date | 20 April 1992 |
| Docket Number | No. 91-2025.,91-2025. |
| Parties | UNITED STATES of America, ex rel., Benjamin J. GIBSON, Petitioner, v. Kenneth McGINNIS, et al., Respondents. |
| Court | U.S. District Court — Central District of Illinois |
Arthur J. Inman, Peoria, Ill., for petitioner.
Nathan P. Maddox, Asst. Atty. Gen., Springfield, Ill., for respondents.
In November, 1990, Benjamin Gibson petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In this petition, Gibson alleged numerous grounds for relief, but only his claim that the admission of statements he made to a jailhouse informant violated his Sixth Amendment right to counsel is at issue today. On direct appeal from Gibson's conviction, the Illinois Appellate Court held that the trial court erred in admitting the statements, but that the error had been harmless under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). People v. Gibson, 109 Ill.App.3d 316, 64 Ill.Dec. 787, 440 N.E.2d 339 (1982). In order to rule on the merits of Gibson's petition, this court must determine first, whether in light of intervening Supreme Court decisions, the trial court's admission of those statements was in fact constitutional error, and if so, whether that error was harmless beyond a reasonable doubt.
The facts and procedural history of this case have been set out in some detail in the court's order of July 31, 1991, Gibson v. McGinnis, 773 F.Supp. 126 (C.D.Ill.1991), and the court will not repeat them here. As a preliminary matter, the respondents contend that at the time Gibson made the inculpatory statements to the informant, he had no Sixth Amendment right to counsel.1 The right to counsel attaches "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Moore v. Illinois, 434 U.S. 220, 226, 98 S.Ct. 458, 463, 54 L.Ed.2d 424 (1977); Michigan v. Jackson, 475 U.S. 625, 629 n. 3, 106 S.Ct. 1404, 1407 n. 3, 89 L.Ed.2d 631 (1986). For the Sixth Amendment right to counsel to attach, the government must do more than investigate the defendant, United States v. Jungels, 910 F.2d 1501, 1502 (7th Cir.1990), or even arrest him. United States v. Gouveia, 467 U.S. 180, 190, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984). The government must have "crossed the constitutionally significant divide from fact-finder to adversary" by committing itself to prosecute. Hall v. Lane, 804 F.2d 79, 82 (7th Cir.1986); Gouveia, 467 U.S. at 189, 104 S.Ct. at 2298.
In this case, Gibson encountered George Shaw, a jailhouse informant, prior to Gibson's preliminary hearing and indictment but after the Tazwell County State's Attorney had filed an information alleging that Gibson had committed the murder and after his arrest in Reno, Nevada. Although the Supreme Court has clearly stated that the filing of an information triggers the Sixth Amendment right to counsel, the trial court at Gibson's criminal trial determined that Gibson's right to counsel did not attach until the preliminary hearing, and therefore did not protect him during his conversation with Shaw. The trial court relied on Ill.Rev.Stat. ch. 38, § 111-2, which provides that "no prosecution may be pursued by information unless a preliminary hearing has been held or waived...." Citing Moore v. Illinois, 434 U.S. 220, 226, 98 S.Ct. 458, 463, 54 L.Ed.2d 424 (1977), the trial court reasoned that the prosecution had not officially begun until the prosecutor received approval from the judge to proceed.2
This court disagrees with the respondents and with the trial court and finds that when the prosecution filed the information against Gibson, it triggered Gibson's right to counsel under the Sixth Amendment. An information is a charging instrument. 21A Illinois Law and Practice, at 5-6. By signing and filing the information, the state's attorney commenced Gibson's prosecution. Ill.Rev.Stat. ch. 38, § 111-1; see also Ill.Rev.Stat. ch. 38, § 111-3(b). Although Moore held that a defendant has a Sixth Amendment right to counsel at the preliminary hearing, that decision in no way precludes the emergence of the right to counsel prior to the preliminary hearing. The case law is clear that "after charges have been filed, the Sixth Amendment prevents the government from interfering with the accused's right to counsel." Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 2399, 110 L.Ed.2d 243 (1990).
The next question the court must address is whether the government, through jailhouse informant Shaw, elicited statements from Gibson in violation of his Sixth Amendment right to counsel. We hold that it did not. In United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), the Supreme Court held that an undisclosed government jailhouse informant "deliberately elicited" incriminating statements from the defendant and therefore interfered with his Sixth Amendment right to counsel. Although instructed not to question the defendant, the informant in Henry "had some conversations with the defendant" and the defendant's incriminating statements "were the product of this conversation." Id. at 271, 100 S.Ct. at 2187. The Court found that the FBI agent who sent the informant into the defendant's cell "was aware that the informant had access to the defendant and would be able to engage him in conversations without arousing the defendant's suspicion." Id. at 270, 100 S.Ct. at 2187. The Court pointed further to "the powerful psychological inducements to reach for aid when a person is in confinement" and reasoned that the defendant was "particularly susceptible to the ploys of undercover government agents." Id. at 274, 100 S.Ct. at 2189. According to the Court, the government "intentionally created a situation likely to induce the defendant to make incriminating statements without the assistance of counsel...." Id.
In Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986), the Court expanded upon its holding in Henry. The Court held that the Sixth Amendment did 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'" Kuhlmann, 477 U.S. at 456, 106 S.Ct. at 2628 (quoting Henry, 447 U.S. at 271 n. 9, 100 S.Ct. at 2187 n. 9). "`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.'" Kuhlmann, 477 U.S. at 459, 106 S.Ct. at 2630 (citing Maine v. Moulton, 474 U.S. 159, 176, 106 S.Ct. 477, 487, 88 L.Ed.2d 481 (1985)). In order to make out a Sixth Amendment violation, "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.
In reaching its decision in Kuhlmann that the petitioner's Sixth Amendment rights were not violated, the Court characterized his statements to the informant as "spontaneous" and "unsolicited," and it characterized the informant as passive. Id. 477 U.S. at 460, 106 S.Ct. at 2630. The facts reveal that the cell the petitioner shared with the informant overlooked the scene of the alleged crime. When petitioner entered the cell and looked out the window, he became upset and remarked to the informant, "someone's messing with me." He then began "narrating the same story that he had given the police at the time of his arrest." Id. at 439, 106 S.Ct. at 2619. The informant replied to the petitioner that his story "didn't sound so good." Id. at 439-40, 106 S.Ct. at 2619. The petitioner and the informant engaged in at least some conversation during several days, and the petitioner eventually confessed the crime to the informant. Wilson v. Henderson, 742 F.2d 741, 745 (2d Cir.1984) (). The Court in Kuhlmann distinguished these facts from the facts of Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985), which concerned statements that the petitioner had made to his accomplice who, unbeknownst to the petitioner, was wired and who was cooperating with the police. In Moulton, the informant "repeatedly asked the defendant to remind him of the details of the crime, and encouraged the defendant to describe his plan for killing witnesses." Kuhlmann, 477 U.S. at 458, 106 S.Ct. at 2629 (citing Moulton, 474 U.S. at 165-66, 106 S.Ct. at 482).
In Kuhlmann, the Court seemed primarily concerned with whether the informant questioned the petitioner about the incident. The Kuhlmann opinion also placed less emphasis on the psychological inducements to speak that exist in a jailhouse situation than the Court did in Henry. For example, the Court rejected the conclusion of the Court of Appeals that "subtly and slowly, but surely, the informant's ongoing verbal intercourse with respondent served to exacerbate respondent's already troubled state of mind." Kuhlmann, 477 U.S. at 460, 106 S.Ct. at 2630. In addition, the Court was entirely unimpressed with the fact that the cell where the police placed the informant and the respondent overlooked the scene of the crime.
In order to decide in this case whether admitting Gibson's statements to Shaw into evidence violated Gibson's Sixth Amendment right to counsel, the court must determine whether the Reno police "deliberately elicited" incriminating statements from Gibson. Kuhlmann, 477 U.S. at 457, 106 S.Ct. at 2629 (citing Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964)). This court must determine whether, in light of Kuhlmann, Shaw's conduct crossed that fuzzy, often deceptive line between passive listening and the functional equivalent of interrogation.
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