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People v. Whitt8/27/1984
etectives were to "keep Whitt talking." However, deLoach himself testified that Stowe had told him not to "mess with [Whitt]." The trial court found that the officers had told deLoach not to ask Whitt any further questions.
DeLoach did not see Stowe again after July 8th. On July 25th, Detective Swanlund came to see deLoach. This meeting was not at deLoach's request. Swanlund came because he wanted to make sure that deLoach was in protective custody before he released deLoach's July 8th statement to Whitt's attorney. At the meeting, deLoach volunteered that he had had further conversations with Whitt. DeLoach then gave Swanlund a much more detailed description of the crime as Whitt had allegedly told it to him.
At some point between July 8th and July 25th, the two detectives did contact the district attorney on deLoach's behalf. However, deLoach never received any promises of leniency, and testified that by July 25th he no longer expected any favors. Nor did he receive a more lenient sentence or other favorable treatment (other than protective custody) in exchange for his information.
At the suppression hearing, deLoach testified that Whitt had volunteered all his statements about the offense and his possible defenses. DeLoach said that he had not asked any questions.
The trial court denied the motion to suppress Whitt's statements to deLoach. It found that these statements were made voluntarily, that the police had not asked deLoach to ask Whitt any questions, that deLoach did not receive or expect to receive any benefits, and that deLoach was not a police agent.
Whitt contends that these findings were erroneous, and that all statements made after July 8th -- the date of deLoach's first meeting with the detectives -- should have been suppressed. He argues that after that date, deLoach was acting as a police agent. Therefore, he argues, the state "deliberately elicited" his statements through deLoach, in violation of the Sixth Amendment right to counsel. (Massiah v. United States (1964) 377 U.S. 201 [12 L.Ed.2d 246, 84 S.Ct. 1199]; United States v. Henry (1980) 447 U.S. 264 [65 L.Ed.2d 115, 100 S.Ct. 2183].) He further argues that the statements were obtained in violation of the Fifth Amendment, since he was not Mirandized (Miranda v. Arizona, supra, 384 U.S. 436) and that his statements were not voluntary.
B.
Preliminary, Whitt argues that his Sixth Amendment claim may be raised on appeal even though he did not clearly articulate this objection in the trial court. (People v. Quirk (1982) 129 Cal. App. 3d 618, 634 [181 Cal. Rptr. 301]; Cahill v. Rushen (E.D.Cal. 1980) 501 F.Supp. 1219, 1228, fn. 11, affd. (9th Cir. 1982) 678 F.2d 791.) Further, he contends that admission of an illegally obtained confession may be reviewed even in the absence of a contemporaneous objection, whether the illegality consists of a violation of Fifth or Sixth Amendment rights. Lastly, he asserts that his attorney's failure to articulate a Sixth Amendment objection denied him the effective assistance of counsel.
Notwithstanding defense counsel's failure expressly to state a Sixth Amendment claim, the parties developed an extensive record concerning the sheriff's department's relations with deLoach. Although the question is a close one, this record supports the conclusion that the state did not deliberately elicit Whitt's statements to deLoach. Therefore, defense counsel's failure to articulate a Sixth Amendment basis for his objection did not result in any prejudice to Whitt. (See People v. Fosselman (1983) 33 Cal. 3d 572, 584 [189 Cal. Rptr. 855, <
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