Alexander, who was convicted of murder in Connecticut Superior Court, appeals from the dismissal of his petition for habeas corpus, Dorsey, J., based on the alleged violation of his fifth amendment right to counsel by the admission into evidence of a confession elicited by an undisclosed implied state agent while Alexander was incarcerated on a separate offense. Reversed and remanded.
Lumbard, Van Graafeiland, and Altimari, Circuit Judges.
Wayne Alexander, who was convicted in 1980 in the Connecticut Superior Court of having murdered Vern Alan Cook, appeals the dismissal of his writ of habeas corpus in the District of Connecticut, Dorsey, J. Alexander claims that the police used his friend James Papagolas as their undisclosed implied agent to interrogate him in the absence of counsel about the location of Cook's body. Alexander, who was incarcerated on a charge of arson when Papagolas questioned him, asserts that the trial court should have suppressed the second of two confessions he made to Papagolas because it was elicited in violation of his fifth amendment right to the assistance of counsel at custodial interrogations pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Alexander made two confessions to Papagolas, the first on March 19, 1979, that he killed Cook, and the second on March 22, 1979, describing where he had hidden the body. We hold that, although Alexander's first confession was admissible, his second should have been suppressed. Alexander's fifth amendment right to counsel was not violated by the admission of his first confession because Papagolas, at that time, was not acting as a police agent. By the time the second confession was elicited, however, Papagolas was acting as an undisclosed implied state agent and his interrogation of Alexander violated his right to counsel. We accordingly reverse the judgment of the district court and remand for the entry of an order granting the writ and the release of Alexander on the murder charge, unless he is retried within a reasonable time.
Wayne Alexander and Vern Cook were codefendants in a third degree larceny case. On January 23, 1979, the day they were scheduled to appear in court in Rockville, Connecticut, the courthouse was seriously damaged by fire. Their court appearances were therefore continued to February 6, 1979. When Cook failed to appear on that date, the state police began to search for him.
On March 9, 1979, Alexander admitted to the police that he had set the Rockville courthouse on fire and implicated Cook, who was still at large. Alexander was immediately arrested for arson.
Before taking Alexander to jail, four state police troopers accompanied him home to say good-bye to his wife and child. In the presence of the officers, Alexander received a call from his friend, James Papagolas. Papagolas frequently saw Alexander socially and had helped him find a job about two years earlier. Alexander told Papagolas that he had been arrested for arson and asked that he visit him in prison. He also said that the police suspected that Cook was dead. One of the officers, Sergeant John Jacewicz, testified that he noted Papagolas's name for future reference.
Papagolas and Alexander's wife were the only people listed by Alexander on his visiting card at the Hartford Correctional Center where he was held. On March 14, Papagolas visited Alexander. They discussed the arson and Alexander asked Papagolas to sell one of his cars in order to raise cash for Alexander's wife and to satisfy a debt that he owed Papagolas. After the visit, Papagolas drove to Rockville to prepare Alexander's car for sale. As he opened the trunk, Sergeant Jacewicz and Trooper John Rearick, who were patrolling the area, recognized the car and pulled up to question Papagolas about his relationship to Alexander. The officers asked Papagolas whether he knew Cook and his whereabouts and indicated they suspected that he had met with foul play. Papagolas said he did not know where Cook was and mentioned that he intended to visit Alexander again. He said he would let the police officers know if he heard anything about Cook.
Alexander had come to know Cook in the year before his arrest; Papagolas had been Cook's friend for over eight years. Cook often babysat for Papagolas's children and Papagolas once found him a job and let him stay in his home for several months.
On March 15, Papagolas visited Alexander without notifying the police. Later that day he had a conversation with Mrs. Alexander concerning any firearms Alexander might have. She said that if her husband kept any guns, they would be in the car.
The next day, March 16, Papagolas called Jacewicz and Rearick to say that he would be junking Alexander's car and had heard that it might contain weapons or ammunition. When the officers arrived, Papagolas had just discovered some 38 caliber bullets in the glove compartment and handed them to the officers. The police asked him to call if he learned anything about Cook.
On March 17, Alexander's lawyer, who represented him on the arson charge, notified the police that his client did not wish to talk to ...