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People v. Whitt8/27/1984
news this claim. He also contends -- despite the absence of objection below -- that his statement was taken in violation of his Sixth Amendment right to counsel. Alternatively, Whitt contends that he was denied the effective
assistance of counsel by counsel's failure to preserve the Sixth Amendment claim.
A.
Whitt presented the factual basis for his claim at a lengthy pretrial hearing. DeLoach was arrested in Georgia in June 1980, having escaped from a California prison where he was serving a term for writing bad checks. Detective Stowe, who worked in the homicide division of the San Bernardino County Sheriff's office, went to Georgia to escort him back to San Bernardino County on an extradition warrant. During the flight back to California, the two had a friendly conversation but did not discuss deLoach's case. DeLoach appreciated the fact that Stowe allowed him to remove his leg restraints while they were on the plane. At the end of the flight, Stowe gave deLoach his card and asked deLoach to contact him if he heard anything about any homicides. Stowe testified that it was his standard practice to make this request of persons whom he arrested or transported.
DeLoach had previously worked as an informer for the federal Drug Enforcement Administration in Cleveland, Washington, and Philadelphia. He had also informed for the San Diego Police Department vice squad. He worked for money, rather than to "work off a beef." However, during the flight, deLoach did not discuss his career as an informer. When Stowe gave deLoach his card he was not aware that deLoach was a police informant.
DeLoach arrived at the jail on June 18th. Whitt was placed in his cell on July 7th. The jail sheriff testified that cell assignments were made by a floor deputy based on the availability of space. Neither the watch commander nor the floor deputy was aware of deLoach's prior career as an informer. The jail sheriff also testified that few newspapers were delivered to the jail before July 19th, so deLoach was probably not made aware of the importance of Whitt's case until several days after Whitt arrived.
Whitt and deLoach met on the morning of July 7th and recognized each other from San Quentin. Within hours, Whitt allegedly told deLoach his story. DeLoach promptly requested a meeting with Stowe. On July 8th he met with Stowe and with Detective Swanlund, an investigator on the Whitt case. DeLoach gave the two detectives a brief version of the offense as he
had learned it from Whitt. DeLoach also told them that Whitt was planning to present a defense that he was drunk at the time of the robbery.
At the conclusion of that conversation, Stowe said he would contact the district attorney's office about deLoach's case. Stowe also warned deLoach not to solicit any further information. Stowe was aware that if deLoach acted as a police agent, the information he gathered might not be admissible as evidence. However, deLoach was told that if he happened to hear any more information from Whitt, "there was nothing that we could do, you know."
Later in the afternoon of July 8th, deLoach talked to his attorney. DeLoach asked whether he could get a suspended or a concurrent sentence on the escape charge in exchange for cooperation on the Whitt case. The attorney warned him of the dangers of becoming a jail "snitch," and advised him that it probably was not worth his while to cooperate. The attorney advised him that at the very least, deLoach should obtain a promise of leniency in writing before giving the police any more information.
According to his attorney, deLoach understood that his instructions from the sheriff's d
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