When an informant is not an informant – court of appeals weighs in

By Deborah G. Spanic, legal writer

April 7, 2010 – In the Sixth Amendment case of State v. Lewis (2009AP429-CR, March 31, 2010), the Wisconsin Court of Appeals clarifies when a jailhouse informant is not an informant, for purposes of the defendant’s Sixth Amendment right to a fair trial and counsel.

The case history

The defendant, Carl Lewis, was convicted of multiple charges of armed robbery, false imprisonment, reckless endangerment, and possession of a firearm by a felon for an incident that occurred in January 2007. A dice game was played at a party Lewis attended, and the game’s loser ended up pulling a gun and robbing at gunpoint the winner and the other guests at the party. As the guests were leaving (after being robbed), Lewis fired a rifle several times from the balcony. No one was hit.

Lewis was arrested, charged, provided with counsel, and then incarcerated pending trial when the incident involving his cellmate, Trenton Gray, the focus of this case, occurred.

Gray testified that he was a cellmate of Lewis’s in the Kenosha County jail, and that Lewis spoke to him about the robbery, and how, once the people at the party were let go, Lewis went outside and shot the rifle at them about eight or nine times.

When asked why he decided to come forward with the information about Lewis, Gray responded that he is “under agreement with the federal government to provide any information of criminal activity from other people as well as myself.” See Lewis ¶ 5.

Gray added that he received “no promises from the Kenosha district attorney’s office,” that his agreement was with the federal authorities and they made no promises relative to this case. On cross, Gray explained that he received a long federal sentence and that he was looking for ways to reduce his time. Although he was not promised anything, he was hoping for some consideration by providing the information in this case. See Id. ¶¶ 5-6.

After the jury returned a guilty verdict, Lewis brought a postconviction motion, contending Gray’s testimony violated his right to counsel. Lewis stated he had been provided with counsel prior to his conversation with Gray and that, therefore, the prosecutor and police had an affirmative obligation not to act in a manner that circumvented the protection afforded by the right to counsel.

The state, in its response, noted that it had “no quarrel with the law that it may not place a ‘state agent’ in Lewis’s cell so as to circumvent his right to counsel.” However, the state argued that Gray was not a state agent and had acted on his own. See Id. ¶ 7. The trial court, after a hearing on the matter, found that what Gray did was of his own volition and that there was no violation of Lewis’s Sixth Amendment right. Lewis appealed.

When an informant is not an informant

The court of appeals determined that in deciding whether a person is a government informant or agent for the purposes of the Sixth Amendment, it comes down to a factual determination about the relationship between the police and the informant. It then becomes a legal question whether the relationship found by the trial court is such that the informant’s questioning has to be considered government interrogation. See Id. ¶ 16.

In this case, the trial court found that there was no oral agreement between Gray and the government outside of the federal proffer, which was related solely to the case that Gray was involved in, not Lewis’s case or any other case. The court of appeals, therefore, concluded that “Lewis is just wrong about what the facts are.” See Id.

Lewis argued that the state knew or should have known about Gray’s past history of informing on his cellmates. Therefore, by placing Gray in a cell with Lewis, the state violated Lewis’s right to counsel. Essentially, Lewis argued, if the government creates a situation where a person predisposed toward giving information in the hope of a possible reward is in a jailhouse setting, then that predisposed person is an agent when information is retrieved, agreement or no agreement, control or no control.

The court of appeals disagreed with Lewis’s argument. Instead, the court determined that, “the fact that the government might know an informant ‘hopes’ to receive a benefit as a result of providing information does not translate into an implicit agreement between the government and the informant if the informant is thereafter placed into an environment where incriminating information can be obtained.”

The court continued, “If there is just ‘hope’ and nothing else, then the informant cannot be construed to be a government agent, eliciting a statement in violation of the Sixth Amendment.” See Id. ¶ 23.

The court then clarified its holding by stating, “As long as the police do nothing to direct or control or involve themselves in the questioning of a person in custody by a private citizen, such questioning does not violate the Fifth or Sixth Amendments.” See Id. ¶ 25.

The judgment and order of the trial court were affirmed.