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People v. Whitt8/27/1984
y 8th regarding his conversations with Whitt. Detective Swanlund met with deLoach on July 25th only to notify him that Swanlund was going to release the July 8th report to the defense.
Most significant are the facts that the detectives did not succeed in obtaining any promise of leniency for deLoach, who must have been aware by July 25th that no promises were likely. Certainly, the police did nothing after July 8th to indicate to deLoach that his reports would in fact convince the prosecutor to be lenient.
Thus, on these close facts it cannot be found that the police gave deLoach the incentive to obtain information from Whitt after July 8th, to such an extent that deLoach's conduct is attributable to the state. As no Sixth Amendment claim can be established, defense counsel cannot be found ineffective for failing to raise it.
C.
Whitt also contends that since deLoach was a police agent, deLoach was required to give Miranda warnings (Miranda v. Arizona, supra, 384 U.S. 436) before any interrogation.
Miranda and its progeny govern law enforcement officials, their agents, and agents of the court. (In re Deborah C. (1981) 30 Cal. 3d 125, 130 [177 Cal. Rptr. 852, 635 P.2d 446].) "'A private citizen is not required to advise another individual of his rights before questioning him. Absent evidence of complicity on the part of law enforcement officials, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees.' [Citations.]" (In re Eric J. (1979) 25 Cal. 3d 522, 527 [159 Cal. Rptr. 317, 601 P.2d 549].)
The trial court found that deLoach was not a police agent when he talked to Whitt. This finding was tantamount to a conclusion that there was no "law enforcement complicity" in deLoach's activities. For the reasons set forth in Part IIIB, ante, this court agrees that there was no agency relationship. Therefore, the trial court's conclusion was correct.
(See fn. 15.) Whitt nonetheless urges this court to reject the trial court's contrary finding as "palpably erroneous." An agency relationship between deLoach and the authorities was established, Whitt argues, because (1) deLoach obviously wanted leniency and had been advised by his attorney to obtain a written guarantee of leniency before providing any further information; and (2) the police wanted the information and, therefore, must have given deLoach some promise of leniency.
However, these motivations suggest at most a hope for some reward by deLoach. They do not demonstrate that the police actively encouraged this hope or that the police actually promised to do anything in exchange for information. Thus, the record does not demonstrate that an agency relationship was established.
In addition to his Miranda argument, Whitt contends that his statements should have been suppressed because they were involuntary. This claim, too, lacks merit. It is based solely on the premise that deLoach was acting as a government agent -- a premise which is not tenable on the present record.
This court does not foreclose the possibility that when an accused is in custody and confides in a government agent who is "ostensibly no more than a fellow inmate" (United States v. Henry, supra, 447 U.S. at p. 270 [65 L.Ed.2d at p. 122]), his statements may be deemed involuntary even though there is no coercion. The accused may well make "voluntary" statements
when he believes he is conversing with an ally. Yet by purposefully creating a false sense of security, the state is in a s
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