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Ninth Circuit:
Testimony of Agent Posing as Inmate Properly Admitted
Denial of Habeas Petition Affirmed Because California Court of Appeal Decision Approving Admission of Statements to Undercover Jailhouse Informant Did Not Run Afoul of Clearly Established Federal Law
By Kimber Cooley, Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday upheld the denial of a habeas corpus petition challenging a defendant’s conviction for second-degree murder based on the admission at trial by a Los Angeles Superior Court judge of statements to an undercover jailhouse informant—made after the invocation of the right to an attorney.
Circuit Judge Gabriel P. Sanchez wrote the opinion affirming a decision by District Court Judge Michael W. Fitzgerald of the Central District of California. Sanchez wrote:
“Because the Supreme Court has never squarely addressed whether the Fifth Amendment precludes an undercover jailhouse informant posing as an inmate to question an incarcerated suspect who has previously invoked his right to counsel, the California Court of Appeal’s decision is not contrary to, or an unreasonable application of, clearly established federal law as defined by the Antiterrorism and Effective Death Penalty Act of 1996….”
Circuit Judges Ryan D. Nelson and Lawrence VanDyke joined in the opinion.
Murder Case
Petitioning for relief was Christopher Grimes, who was found guilty by a jury in 2018 of the murder of Adrian Dawson and sentenced to 40 years in prison.
After his arrest, Grimes asked to have a lawyer present before the police interrogation began, but the police continued to talk to him outside the presence of counsel. A few hours later, Grimes was placed in a jail cell with an undercover informant posing as a fellow inmate.
Grimes did not admit his involvement to the informant but made several incriminating statements, such as confirming that the gun was fired from the driver’s side of the vehicle and admitting that the shooting took place “two minutes” after a strip mall encounter.
The statements made to the detectives and the comments made to the informant were admitted over Grimes’ objection by Los Angeles Superior Court Judge Ronald S. Coen.
Appellate Decision
In an unpublished opinion authored by then-Presiding Justice Dennis Perluss (now a lecturer at UCLA Law School), Div. Seven of this district’s Court of Appeal on Feb. 19, 2020, affirmed the conviction, finding that the admission of the statements to police following the invocation of the right to counsel was harmless error and finding no error in the introduction of his comments to the informant.
Perluss acknowledged that “[n]either the United States Supreme Court nor the California Supreme Court has addressed the application of Miranda in a case where the defendant has invoked his or her Miranda rights prior to the [informant] interview.” But, he said, California courts of appeal have “long held” that Miranda is “not implicated when a defendant who has invoked the Miranda right to counsel subsequently speaks to a person he or she does not know is an agent of the police.”
Grimes filed the federal habeas petition under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. §2254.
Habeas Relief
Sec. 2254(d) provides that a habeas petition of a defendant incarcerated pursuant to the judgment of a state court shall not be granted unless the adjudication of his claim:
“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
Sanchez noted that the highly deferential standard applies to “the state court’s last reasoned decision on the merits” and does not ask whether the court’s determination was erroneous but instead considers whether it was objectively reasonable.
Miranda Jurisprudence
The jurist pointed to two U.S. Supreme Court cases as relevant to the analysis—the 1981 decision in Edwards v. Arizona and the 1990 opinion in Illinois v. Perkins—and said:
“The protections outlined by Miranda were reinforced by the Supreme Court in Edwards, which concerned the reinterrogation of a suspect after he invoked his right to counsel….The Supreme Court held that officers violated the defendant’s Fifth Amendment rights because the invocation of his right to counsel during the initial interview precluded ‘further interrogation’ until the defendant’s counsel was present or he initiated communication with police.”
In Perkins, the high court clarified that an undercover law enforcement officer posing as an inmate is not required to give Miranda warnings before asking questions of the incarcerated defendant because the circumstances surrounding the conversation are not inherently coercive.
Appellate Decision
Turning to the appellate decision in the present case, the former state Court of Appeal justice reasoned:
“The California Court of Appeal’s decision that Grimes’ statements to the undercover informant were admissible at trial is not contrary to, or an unreasonable application of, ‘clearly established Federal law’ as defined by AEDPA….Neither Edwards nor Perkins provides a ‘clear answer’ to the issue presented by Grimes—whether the Fifth Amendment requires the suppression of a defendant’s statements made to an undercover informant after the defendant invoked his Miranda right to counsel during a custodial interrogation.”
Sanchez concluded that the state decision cannot be contrary to, or an unreasonable application of, clearly established federal law because the Supreme Court has not yet decided the issue.
Grimes contends that the state appellate decision is contrary to the bright-line rule established in Edwards that law enforcement officers must cease all police-initiated custodial interrogation once the right to counsel has been invoked as the informant was acting as a government agent.
Unpersuaded, Sanchez opined:
“As the California Court of Appeal found, Grimes was unaware that the jailhouse informant was working for law enforcement. The record supports the state court’s determination that Grimes spoke freely, believing the informant was a fellow inmate. Therefore, the state court’s conclusion that Grimes’ conversation with the informant lacked the coercive or police-dominated atmosphere of custodial interrogation underlying the Supreme Court’s holding in Miranda and Edwards was reasonable.”
The case is Grimes v. Phillips, 21-56353.
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