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State v. Carl A. Lewis, Jr., 2010 WI App 52

court of appeals decision; ror Lewis: John T. Wasielewski; Resp. Br.; Reply Br.

Appellate Procedure – Standard of Review: Government Informant

¶16      Our discussion must begin, as it almost always does, with the standard of review.  In deciding whether a person is a government informant or agent for purposes of this Sixth Amendment analysis, the determination regarding the relationship or understanding between the police and the informant is a factual determination. United States v. Surridge, 687 F.2d 250, 252 (8th Cir. 1982).  Once these historical findings have been ascertained, it is a legal question whether the relationship or understanding found by the trial court is such that the informant’s questioning has to be considered government interrogation. Id. This is an important distinction here, because Lewis makes the bold assertion that “Trenton Gray had an agreement with the federal government to reveal all that he knew or came to know regarding criminal activities.” While that is what Gray testified to, that is not what the trial court found. …

Appellate Procedure – Standard of Review: Documentary Evidence

¶15 n. 2:

We acknowledge that we are in the same position as the trial court to read the written proffer.  So, technically speaking, we would employ a de novo review of the document. See State v. Toliver, 187 Wis. 2d 346, 355, 523 N.W.2d 113 (Ct. App. 1994). Nonetheless, because the trial court heard evidence consisting of the conduct of the various governmental entities and Gray to see if the conduct was consistent or inconsistent with the court’s interpretation, and made its ultimate findings with that evidence in mind, our review really becomes a mixed question of fact and law as far as construing the proffer is concerned. With this standard of review in place, we conclude that the proffer document is not the slightest bit ambiguous and does not in any way support Gray’s testimony that the document required him to present continuing information of all that he learned relating to criminal activities unrelated to the circumstances of his federal charges. Moreover, the trial court’s findings regarding the conduct of the parties are not clearly erroneous. See Wis. Stat. § 805.17(2).

Confessions – 6th Amendment: Jailhouse Snitch, Post-Charge

¶1        The main issue in this Sixth Amendment case concerns inculpatory statements made to a jailhouse cellmate by the defendant, Carl A. Lewis, Jr., after he had been provided counsel. The United States Supreme Court has announced the law in this area. Law enforcement is prohibited from using a surreptitious government agent (e.g., a fellow jail cellmate) to deliberately elicit incriminatory statements, by investigatory techniques that are the equivalent of direct police interrogation, in the absence of counsel or a valid waiver of counsel. We hold that this requires evidence of some prior formal agreement—which may or may not be evidenced by a promise of consideration—plus evidence of control or instructions by law enforcement. Here, Lewis’s cellmate, Trenton Gray, had approximately one year earlier, executed a standard federal proffer, promising information which might lead to charging other individuals “in [that federal case] or related investigations.” (Emphasis added.) There was no promise for “continuing cooperation” beyond that. Therefore, we reject Lewis’s argument that the proffer carried over to this case. Because Gray acted purely on his own in the hope of getting further sentencing consideration, we affirm. …

On the facts, there may be a bit less than meets the eye. Gray thought he had an agreement with the feds to provide information in hopes of a lesser sentence, and he had done so in the Dodge, Milwaukee and Kenosha jails, ¶¶5-6. The unfortunate Lewis had Gray as a cellmate, spilled his guts to him, and Gray duly reported the conversations. But the trial court found that there was in fact no agreement with respect to Gray, “that Gray’s initiation of contact with Lewis was not at the behest of either the federal or state government,” “that Gray was under no compulsion to report what he heard” from Gray, and “that what Gray did was totally of his own volition,” ¶15. Lewis therefore argued that no agreement between government and informant was necessary. Instead, an objective standard applies: if the government “should have known” the informant would report the statements then the government shouldn’t place the informant in the cell with a represented defendant, ¶18. It is that position the court rejects:

¶23      We adopt the rationale of Surridge. 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. 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. As the court in United States v. Malik, 680 F.2d 1162, 1165 (7th Cir. 1982) stated, “We refuse to extend the rule of Massiah and Henry to situations where an individual, acting on his [or her] own initiative, deliberately elicits incriminating information.”

¶25      … To sum up the discussion, we quote the Surridge court again:

[W]e do not think the police have a duty to bar visits with potential informants; indeed such a requirement would be unfair to prisoners. Also, when a person offers to assist the police, we do not think the police must try to stop the person from providing assistance. 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 [F]ifth or [S]ixth Amendments.

Surridge, 687 F.2d at 255 (emphasis added). The italicized portion says it all and is the holding of this court.

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