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  • August 11, 2022

    Use of Jailhouse Recordings Didn’t Violate Defendant’s Right to Counsel

    Inculpatory recordings made secretly by a defendant’s cellmate and introduced at the defendant’s homicide trial did not violate the defendant’s Sixth Amendment right to counsel, the Wisconsin Supreme Court has ruled.

    Jeff M. Brown

    Two Beds In A Jail Cell, Lit By Winter Light Bleeding In Through A Chicken-Wire Window

    August 11, 2022 – Inculpatory recordings made secretly by a defendant’s cellmate and introduced at the defendant’s homicide trial did not violate the defendant’s Sixth Amendment right to counsel, the Wisconsin Supreme Court has ruled.

    In State v. Arrington, 2022 WI 53 (July 1, 2022), a four-justice majority held that the introduction of the recordings against the defendant was constitutional because the defendant’s cellmate had not acted as a government agent in making the recordings.

    The supreme court also held that the defendant’s lawyer had not provided ineffective assistance of counsel by failing to object to the introduction of the recordings.

    Justice Patience Roggensack wrote the majority opinion. Justice Rebecca Dallet wrote a concurring opinion, which Justice Ann Walsh Bradley and Justice Jill Karofsky joined.

    Wrong Man Gunned Down

    On April 2, 2016, Richard Arrington shot and killed Ricardo Gomez on the front porch of a house in Green Bay.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    Arrington had driven to the house and parked across the street because he suspected that Rafeal Santana-Hermida, who had stabbed him in the mouth during a drug deal gone bad several weeks earlier, was inside.

    Santana-Hermida was standing in the open doorway when Gomez, who was approaching the house.As soon as Arrington spotted Santana-Hermida he opened fire, striking and killing Gomez.

    Recordings Introduced

    The Brown County District Attorney charged Arrington with first degree intentional homicide with use of a dangerous weapon and being a felon in possession of a firearm.

    Before the trial, Arrington told a detective that he’d fired in self-defense after he saw Santana-Hermida reaching for his waistband. Arrington also claimed that he only fired at the porch and that it was Santana-Hermida who, after ducking to avoid Arrington’s volley, fired the bullet that killed Gomez.

    During the trial, which lasted six days and saw 42 witnesses testify, the state introduced several recordings made by Miller, Arrington’s jail cellmate.

    Miller testified that Arrington hold him that when he saw Santana-Hermida, all he could think about was the stabbing and “just got to shooting.” Miller also testified that Arrington said that one of his bullets hit Gomez because Santana-Hermida jumped out of the way when he began shooting.

    Arrington’s lawyer did not object to the introduction of the recordings. The jury convicted Arrington on both counts.

    Court of Appeals Reverses

    Arrington moved for post-conviction relief, arguing that admission of the recordings made by Miller violated his Sixth Amendment right to counsel.

    Arrington also argued that he was entitled to a new trial because his lawyer’s failure to object to the introduction of the recordings constituted ineffective assistance of counsel.

    The circuit court denied Arrington’s motion. He appealed to the Wisconsin Court of Appeals, which reversed the circuit court and ordered a new trial. The state then appealed.

    Informant Was Not an Agent

    In her opinion for the majority, Justice Roggensack explained that federal courts interpreting U.S. Supreme Court case law have concluded that the admission of jailhouse statements to informants violate a defendant’s Sixth Amendment right to counsel only where 1) the statements were deliberately elicited by the information and 2) were made to a government agent.

    To determine whether Miller had been acting as a government agent when he recorded Arrington’s statements, Roggensack looked to the general law of agency. She also looked at federal case law holding that a jailhouse informant is not a government agent unless the government has agreed to reward the informantfor his or her services.

    Justice Roggensack explained that case law instructs that an informant becomes a government agent only upon being instructed by law enforcement to gather information on a specific defendant.

    Detectives Didn’t Control Miller

    Based on that case law, Roggensack concluded that Miller had not been acting as a government agent because he had no agreement with the government to record Arrington. Justice Roggensack based that conclusion on the following:

    • Miller unilaterally approached detectives about recording Arrington;

    • Detectives told Miller that he could record Arrington if he wanted to, rather than directing him to do so;

    • The detectives didn’t pay Miller or promise him payment if he recorded Arrington; and

    • A previous agreement between the detectives and Miller to record another inmate had nothing to do with Arrington;

    “Here, the detectives did not direct or control Miller’s questioning of Arrington,” Roggensack wrote. “Furthermore, when Miller did choose to record, he was in control of what was recorded … The detectives could not listen into the conversations in real-time. They did not control Miller’s recording or questioning.”

    No Prejudice from Recordings

    Because admission of Miller’s recordings didn’t violate Arrington’s Sixth Amendment right to counsel, Justice Roggensack explained, his lawyer was not deficient in failing to object to their introduction.

    Even if that were not the case, Roggensack concluded, there was not a reasonable probability that the admission of the recordings prejudiced Arrington – numerous witnesses testified to the feud between Arrington and Santana-Hermida; to the fact that Arrington shot at the house at the time Gomez was killed; and to Arrington’s efforts to silence witnesses to the shooting.

    “Even without Miller’s recordings, Arrington’s testimony was sufficiently discredited by the multiple witnesses who all corroborated the State’s theory of the case,” Justice Roggensack wrote. “The recordings merely provided additional discrediting support.”

    Concurrence: Miller Was Agent

    In her concurrence, Justice Dallet argued that the majority/lead opinion erred by looking to the state law of agency in considering whether Miller had been acting as a government agent when he recorded Arrington’ statements.

    “That novel approach has no support in either Wisconsin or federal case law – unsurprising, given that no state law can deprive a person of a federal constitutional right,” Dallet wrote.

    Moreover, Justice Dallet argued, the lead/majority opinion misinterpreted relevant U.S. Supreme Court case law regarding the admission of statements made to jailhouse informants.

    Dallet pointed out that Miller contacted detectives about recording Arrington while he was working as an informant under an agreement about gathering information on another inmate. She also pointed out that the first day on which Miller made a recording of the other inmate was the same day on which he made his first recording of Arrington.

    “Miller questioned and recorded Arrington for two more days, with [the detective] collecting the recording device and replacing it with a ‘fresh’ one each day,” Justice Dallet wrote. “Under these circumstances, Miller was an agent of the police when he questioned and recorded Arrington.”

    ‘Simplistic, Bright-Line Approach’

    Dallet also noted that federal and state courts have rejected the reasoning that an informant’s agreement to collect statements from one inmate does not make him or her an agent of the police when subsequently collecting statements from a second inmate. She also pointed out that the U.S. Supreme Court has never adopted the notion.

    “The majority’s simplistic, bright-line approach ‘would allow the State to accomplish “with a wink and a nod” what it cannot do overtly,’” Justice Dallet wrote.

    And just because the police hadn’t promised Miller anything in exchange for recording Arrington didn’t mean that he wasn’t a government agent, Dallet argued. She pointed out that the detectives testified that they don’t promise would-be informants anything in advance, and instead rely on the district attorney to negotiate with informants once they have gathered information.

    “Thus, if the majority were right that the absence of a specific promise in Arrington’s case meant that Miller wasn’t an agent of the police, it’s unclear how anyone could be,” Justice Dallet wrote.

    Arrington not Prejudiced

    Nonetheless, Dallet concluded that whether the admission of the recordings violated Arrington’s Sixth Amendment right to counsel was immaterial, because his lawyer’s failure to object to the admission of the recordings didn’t prejudice Arrington. 

    Neither Miller’s recordings nor his testimony likely had any effect on the jurors’ contemplation of the charges against Arrington, Justice Dallet concluded.

    “Nothing in Miller’s testimony or jailhouse recording speaks to the factual predicates for self-defense – whether Arrington believed he was in imminent danger of death or great bodily harm and that he needed to fire three shots to repel that threat,” Dallet wrote.




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    WisBar Court Review, published by the State Bar of Wisconsin, includes summaries and analysis of decisions from the Wisconsin Supreme Court, the Wisconsin Court of Appeals, and the U.S. Court of Appeals for the Seventh Circuit, as well as other court developments. To contribute to this blog, contact Joe Forward.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

    © 2022 State Bar of Wisconsin, P.O. Box 7158, Madison, WI 53707-7158.

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