                     IN THE COURT OF APPEALS OF IOWA

                                   No. 13-0739
                               Filed June 10, 2015

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

JUSTIN ALEXANDER MARSHALL,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Johnson County, Sean W.

McPartland, Judge.



      Defendant appeals his conviction for murder in the first degree.

REVERSED AND REMANDED.



      Kent A. Simmons, Davenport, for appellant.

      Thomas J. Miller, Attorney General, Tyler J. Buller, Assistant Attorney

General, Janet M. Lyness, County Attorney, and Meredith Rich-Chappell,

Assistant County Attorney, for appellee.



      Heard by Mullins, P.J., and Bower and McDonald, JJ.
                                          2



MULLINS, P.J.

       Defendant Justin Marshall appeals his conviction for murder in the first

degree. During trial, Marshall moved to suppress the testimony of confidential

informants on the ground he was entitled to the assistance of counsel at the time

he spoke to them in jail.     Marshall appeals the denial of that motion.         We

determine the district court should have granted the motion to suppress as to one

of the informants. We are unable to conclude the error was certainly harmless,

and therefore, do not engage in a sua sponte harmless-error review.

       Marshall also argues there was not substantial evidence in the record to

support the submission of instructions on the theories of aiding and abetting and

joint criminal conduct. We decide this issue as it is likely to reoccur on retrial and

conclude the instructions were supported by the evidence.               We reverse

Marshall’s conviction for first-degree murder and remand to the district court.

I.     Background Facts & Proceedings

       On October 8, 2009, John Versypt, the owner of several apartment

buildings, was killed at the Broadway Condominium complex in Iowa City. On

August 1, 2011, almost two years after the murder, Marshall was charged with

murder in the first degree. Pending trial, he was held in the Muscatine County,

Iowa, jail. A jury trial commenced in January 2013.

       At the time of Versypt’s death, Marshall lived with Charles Thompson in

one of Versypt’s apartment buildings. Thompson stated he heard a loud noise

on October 8, 2009. A few minutes later, Marshall came into his room and was

“frantic.” Thompson saw Marshall putting some pants in a garbage bag, and
                                            3



then he and Marshall took the bag out to a dumpster. There is videotape from a

squad car showing Marshall and Thompson taking some garbage bags out to a

dumpster.      Thompson denied being involved in the robbery or shooting of

Versypt, but eventually pled guilty to being an accessory after the fact.1

          Shawnta Jackson, another tenant, saw Marshall talking to Courtney White,

known as Mow-Mow, outside the back door of the apartment building. When

Jackson was returning to her apartment from the basement level with her

laundry, she saw Versypt, who had been shot, lying on the back stairs.

          Another tenant, James Brown, stated that the night before the shooting,

on October 7, 2009, he saw a gun with a brown handle in the next-door

apartment where Marshall and Thompson lived. Then sometime between 3:30

and 4:00 in the afternoon of October 8, he heard a “loud pop in the hall.” Brown

stated that shortly after he heard the “loud pop,” he heard the downstairs back

door “bust open real quick,” but did not see anyone. A few minutes later he

heard Marshall softly knocking on the door of his apartment, asking his aunt to let

him in.

          Soon after the shooting, Andrew Shepard came out of his apartment and

saw a gun and a wallet were lying on the floor by Versypt’s body. He then called

the police. Shepard testified that a day or so after the incident Marshall asked

him what kind of a gun had been used, and when Shepard stated a camouflage

.38, Marshall responded he had a gun just like it.




1
  Thompson was tried for murder in the first degree for killing Versypt, but a mistrial was
declared during his criminal trial.
                                             4



         Marshall claimed he had been in Shepard’s apartment at the time of the

shooting, but Shepard denied he was there then. Shepard agreed with police to

wear a wire2 when meeting with Marshall. Marshall told Shepard the victim had

been shot in the head. The information of where Versypt had been shot was not

public knowledge at the time. Marshall also told him, “it might have been a

conflict gone wrong.”

         In an interview with officers on October 9, 2009, Marshall stated

Thompson and White planned to rob Versypt.              Marshall stated that after the

shooting Thompson “was panicked, he was crying, he was fidgety, and all he

could say was this sh*t’s crazy over and over and over.” He also stated he heard

Thompson on the telephone saying he “hit a lick. It wasn’t that good of a lick. It

went wrong. Things went wrong.”3 Marshall told the officers Versypt had been

shot in the face.

         Officers reviewed telephone records but were unable to corroborate

Marshall’s statements about a telephone call made by Thompson after the

shooting. Officers obtained some clothing from Marshall. Analysis of his jacket

with a scanning electron microscope showed gunshot residue.

         During the trial Marshall learned that Carl Johnson, Antonio Martin, and

Earl Freeman, fellow inmates at the Muscatine County Jail, had provided to law

enforcement certain statements he had made to them while they were in jail.

Marshall immediately moved to suppress any statements he had made to the

informants while he was in jail. He claimed they were confidential informants


2
    A wire is a concealed listening device used by law enforcement.
3
    An officer testified a “lick” was a slang term for a robbery.
                                           5



acting as agents of the State, and therefore, he was entitled to counsel while

discussing the case with them. Marshall asserted that because he had been

denied his constitutional right to counsel, the statements of these witnesses

should be suppressed.

       Outside the presence of the jury, Iowa City police officers Michael Smithey

and Jennifer Clarahan testified that while they may have asked the informants if

they “had information about any circumstances surrounding the death of John

Versypt,” they did not ask them to obtain information or do anything further on

behalf of the State. Additionally, the officers stated they had not arranged for the

informants’ jail cell placements to be in the vicinity of Marshall.

       The district court ruled from the bench, stating:

               Well, I have had a chance to review the standard, and I’m
       going to overrule the motion to suppress and allow the witnesses to
       testify. The case law suggests that an informant becomes a
       government agent for purposes of the test only when the informant
       has been instructed by the police to get information about a
       particular defendant. The defendant must demonstrate that the
       police and their informant took some action beyond merely listening
       that was designed deliberately to elicit incriminating remarks.
               ....
               The primary—the cases indicate that the primary concern of
       those decisions is secret interrogation by investigatory techniques
       that are the equivalent of direct police interrogation. The Sixth
       Amendment is not violated, however, whenever, by luck or
       happenstance, the State obtains incriminating statements. I think
       this case presents just the sort of luck or happenstance that
       resulted in these gentlemen coming forward and providing
       information to the State based on what they alleged to have been
       statements made by Mr. Marshall.

       The State then recommenced presenting evidence to the jury.              Earl

Freeman testified Marshall approached him at the Muscatine County Jail and

asked him to help write a motion requesting new counsel.              They discussed
                                         6



Marshall’s wish to have his charges dropped from murder to manslaughter.

Freeman testified that during this discussion, Marshall told Freeman,

        He went to rob him. John grabbed for the gun. The gun went off,
        shot him in the hand, shot him in the head. He fell in the door or on
        the ground, on the ground in the doorway or something like that,
        and he wiped the gun off the front of his jacket and he took off.

Marshall asked Freeman to tell his attorney that Marshall had confessed to the

shooting, but it was an accident. Freeman stated Marshall indicated he had not

taken anything out of Versypt’s wallet. He also stated Marshall told him no one

else was involved in the plan to rob Versypt.         Freeman testified that after

Marshall started to admit to the offense, “I did push him to tell me information.”

After gathering the information from Marshall, Freeman contacted the Iowa City

Police Department and in early October 2011, he and his attorney met with the

police investigators. Freeman testified at the time of trial he was serving prison

time on federal charges for conspiracy to manufacture methamphetamine and he

was hoping to get some time off of his sentence for providing information and

testimony in this case. He was, however, never under a proffer agreement or

any other agreement to gather or provide information to law enforcement

officials.

        Carl Johnson testified he knew Marshall because they both had lived at

the Broadway Condominium complex. Shortly after the shooting, Marshall told

Johnson that Thompson had shot Versypt. Johnson was arrested in November

2010 and was being held in the Muscatine County Jail on federal charges for

distribution of cocaine. He was facing a sentence of twenty years to life. As part

of a plea agreement, he had signed a proffer agreement with federal officials to
                                        7



cooperate and assist in the investigation of other individuals.     If he failed to

provide substantial evidence and truthful information, the plea agreement would

be withdrawn. As a part of the proffer agreement and his plea agreement, he

testified against his co-defendant on the cocaine charges.       He pled guilty in

February 2011. While he was in jail awaiting sentence, he and his attorney met

with Officers Smithey and Clarahan on July 12, 2011—the same day the arrest

warrant for Marshall was issued—for a proffer interview and discussed the John

Versypt case.     Smithey asked Johnson to provide information concerning

Charles Thompson, Justin Marshall, and Courtney White. At that time Johnson

was in segregation for violating jail rules. Within days, Marshall was arrested in

Texas and transported to Iowa, where he was held at the Muscatine County Jail.

Around August 2011 Johnson saw Marshall, who had also been placed in

segregation. When Johnson was out of his cell—one hour a day—he engaged

Marshall in conversation. In the course of those conversations, Marshall told

Johnson that he wanted to rob the landlord, but it went wrong and the landlord

got shot.

       Johnson took notes of what Marshall told him so he could provide

accurate information when he and his attorney had an interview with officer

Smithey at the Muscatine County Jail in September 2011. Johnson testified that

while they were in jail Marshall told him that he, “Weezy [Thompson], and Calvin

was in the hallway, they was all in the hallway playing dice. After a while Charles

Thompson left and went inside his apartment. That’s when he came up with the

idea that he wanted to rob the landlord.” Marshall told Johnson, “he wanted to
                                         8



rob the landlord because he knows some people pay with money and some pay

with cash.” He told Johnson the robbery went wrong and the landlord got shot.

Johnson further testified:

       All he said was it was real—the shot was loud. It was loud in the
       hallway, and that kind of like froze him up, and after that he ran out
       the back to get away from the scene. He came back around,
       knocking on the front door, but he was whispering a little bit
       because he didn’t want nobody to know he was in the hallway.

Johnson stated Marshall told him Calvin was “with him when he was going to do

the robbery,” but Johnson did not know specifically who this was.

       Johnson had received a substantial reduction in his federal drug sentence

as a result of testifying against his co-defendant. Although he had already been

sentenced when he testified in this case, he testified that he hoped to get a

further reduction of his sentence because of this testimony; but he knew there

was no guarantee.

       Antonio Martin, a co-conspirator of Johnson, was also arrested in

November 2010 and was being held at the Muscatine County Jail during part of

Marshall’s incarceration there. At the time of trial, Martin testified he was serving

a sentence of twelve years and one month on federal charges of selling cocaine

and possession of a firearm. When he was charged with those offenses he was

facing a sentence of between twenty-seven and thirty-two years. Like Johnson,

he had also entered into a cooperation agreement to provide truthful information

to government officers in hopes of gaining favorable sentencing concessions,

and, like Johnson, had pled guilty in February 2011.           Martin’s cooperation

agreement with the government also contained no promises of any particular
                                         9



sentencing concession; the agreement was simply that Martin might get a

favorable recommendation from the prosecutor if he provided truthful information

that assisted law enforcement. He testified against a fellow drug dealer and

ultimately received a fifteen-year reduction in his sentence.

       Like Johnson, Martin knew Marshall from having lived in the Broadway

neighborhood around the time of Versypt’s murder. Martin was also held in the

Muscatine County Jail pending his federal charges when Marshall was arrested

and jailed in Muscatine County. But unlike Johnson, Iowa City police did not

meet with Martin concerning the Versypt murder before Martin began to engage

Marshall in conversation concerning the murder.

       When Martin first began to talk with Marshall about the murder charge,

Marshall denied even being at the scene. Eventually, he told Martin it was a

robbery. Marshall discussed with Martin his idea to try to get his first-degree

murder charge reduced to manslaughter. Marshall wrote down his story and

planned to have Martin act as a jailhouse snitch to get his story out: a plan that

Marshall was led to believe might help them both with the legal issues.

       In the process, Marshall told Martin the bullet went through the victim’s

hand and through his face. He also stated there was a wallet next to the body

and no money had been taken from the wallet. In his written version, Marshall

stated he had a gun with him because he was going to sell it, when somebody

came up behind him he got scared and pulled out the gun, which went off.

Marshall stated he dropped the gun, then picked it up and wiped off his
                                           10



fingerprints, then dropped it again. Marshall told Martin he changed his clothes,

put the clothing he had on in a garbage bag, and threw them away.

        Martin took notes of what Marshall told him. As a part of the supposed

plan to assist Marshall with getting his manslaughter story out, Marshall let Martin

take his writings to a meeting with Martin’s attorney on October 3, 2011. While

meeting with his attorney, officer Smithey of the Iowa City Police Department

entered the room. Martin then told Smithey what he had learned and showed

him what Marshall had written. Smithey made a copy and returned the original to

Martin so Martin could return it to Marshall.4          Smithey ultimately used the

information to get a search warrant of Marshall’s jail cell, where he found most of

the original notes—but torn into pieces—that Marshall had written.

        Although Martin was already serving his sentence at a federal penitentiary

at the time he testified in this case, the federal system apparently allows for

additional reductions in the sentence already imposed. Martin testified that he

had not received any kind of promise about a specific reduction he could receive

for testifying in this case. But when asked, “Is it your hope that you may get

some kind of reduction?” he answered “yes.”

        Marshall now appeals the denial of his motion to suppress the information

obtained from Freeman, Johnson and Martin.

        Marshall objected to the instructions on aiding and abetting and joint

criminal conduct on the ground that the evidence did not support these

instructions. He asserted there was insufficient evidence there was a second


4
    Marshall did not know Martin met with Smithey on that day.
                                           11



person involved.       The court overruled Marshall’s objections to the jury

instructions. The jury found Marshall guilty of first-degree murder. The district

court denied Marshall’s joint motion in arrest of judgment and for a new trial.

Marshall now appeals these rulings.

II.    Confidential Informants

       Marshall contends the State’s use of informants to induce statements from

him violated his Sixth Amendment right to counsel.5 He claims the informants

were acting as agents for the State at the time he talked to them at the Muscatine

County Jail.     He argues that after the officers requested information from

Johnson within hours after Marshall was charged with murder, Johnson began to

work for them. He also argues the officers must have known Johnson would

relate the request for information to Freeman and Martin, thus converting them to

agents as well.     He asserts he was prejudiced by the testimony these three

confidential informants gave when reporting statements that were attributable to

Marshall. Our review of constitutional issues is de novo. State v. Thompson,

836 N.W.2d 470, 476 (Iowa 2013).

       In the case of Massiah v. United States, 377 U.S. 201, 202-03 (1964),

after the defendant had been charged with possession of narcotics, his

codefendant decided to cooperate with government agents and agreed to wear a

wire while discussing events with the defendant. The United States Supreme



5
   Marshall also raises a claim under the Iowa Constitution. This issue was not raised
before the district court nor decided by the court. Because error was not preserved on
this issue, it will not be addressed in this portion of the opinion. See State v. Paulsen,
293 N.W.2d 244, 247 (Iowa 1980) (noting even constitutional issues must be specifically
raised in the district court).
                                       12



Court determined the defendant had been denied his constitutional right to

counsel, “when there was used against him at his trial evidence of his own

incriminating words, which federal agents had deliberately elicited from him after

he had been indicted and in the absence of counsel.” Massiah, 377 U.S. at 206

(emphasis added).

      The issue was addressed in United States v. Henry, 447 U.S. 264, 266

(1980), where shortly after the defendant was incarcerated government agents

contacted a fellow inmate who was a paid confidential informant.        The paid

informant was told, “to be alert to any statements made by the federal prisoners,

but not to initiate any conversation with or question Henry regarding the bank

robbery.”   Henry, 447 U.S. at 266.    The Court noted, “according to his own

testimony, [the informant] was not a passive listener; rather, he had ‘some

conversations with Mr. Henry’ while he was in jail and Henry’s incriminatory

statements were ‘the product of this conversation.’” Id. at 271. The Court also

noted that in discussing the situation with the paid informant the government

agent had “singled out Henry as the inmate in whom the agent had a special

interest.” Id. at 271 n.8. The court concluded defendant’s statements to the paid

informant should not be admitted at trial because the defendant had been denied

his Sixth Amendment right to counsel. Id. at 274.

      The issue was again considered in Maine v. Moulton, 474 U.S. 159, 165-

66 (1985), where a codefendant agreed to wear a wire, then met with the

defendant and extensively discussed their pending charges with him, stating he

could not remember certain events and asking the defendant about them. The
                                        13



Court found that engaging the defendant “in active conversation about their

upcoming trial was certain to elicit statements that Moulton would not

intentionally reveal . . . to persons known to be police agents.” Moulton, 474 U.S.

at 177 n.13. The Court concluded, “By concealing the fact that [the codefendant]

was an agent of the State, the State denied Moulton the opportunity to consult

with counsel and this denied him the assistance of counsel guaranteed by the

Sixth Amendment.” Id. at 177. The court determined the defendant’s statements

should be suppressed. Id. at 180.

       In Kuhlmann v. Wilson, 477 U.S. 436, 439 (1986), officers had an

informant placed in the respondent’s jail cell and told the informant not to ask

respondent any questions, but to “simply ‘keep his ears open.’”         When the

respondent began to talk about the offense, the informant told him his story

“didn’t sound too good.” Kuhlmann, 477 U.S. at 439-40. Respondent then made

incriminatory statements. Id. at 440. The United States Supreme Court stated:

               As our recent examination of this Sixth Amendment issue in
       Moulton makes clear, the primary concern of the Massiah line of
       decisions is secret interrogation by investigatory techniques that
       are the equivalent of direct police interrogation. Since “the Sixth
       Amendment is not violated whenever—by luck or happenstance—
       the State obtains incriminating statements from the accused after
       the right to counsel has attached,” a defendant does not make out a
       violation of that right simply by showing that an informant, either
       through prior arrangement or voluntarily, reported his incriminating
       statements to the police. Rather, the defendant must demonstrate
       that the police and their informant took some action, beyond merely
       listening, that was designed deliberately to elicit incriminating
       remarks.

Id. at 459 (citation omitted).      The Court concluded the officers had not

“deliberately elicited” the respondent’s statements. Id. at 460.
                                        14



      The Eighth Circuit has had occasion to consider the informant status of a

jail inmate who is under a proffer agreement and who gathered incriminating

information about a fellow inmate who had not been identified to proffer-inmate

by law enforcement. See Moore v. United States, 178 F.3d 994, 999-1000 (8th

Cir. 1999). While housed in a county jail on drug charges, inmate Hartwig signed

an agreement with federal authorities to provide information concerning drug-

related criminal activity. Id. at 999. Over the next few weeks Hartwig overheard

inmate Moore talking about some details of a car theft and bank robbery. Id. No

one asked Hartwig to listen in on or solicit information from Moore. Id. A few

weeks later, when meeting with law enforcement pursuant to his agreement, he

provided what he had learned about Moore. Id. The court explained:

              “[A]n informant becomes a government agent for purposes
      of [Massiah] only when the informant has been instructed by the
      police to get information about the particular defendant.” United
      States v. Birbal, 113 F.3d 342, 346 (2d Cir. 1997) (collecting
      cases). To the extent there was agreement between Hartwig and
      the government, there is no evidence to suggest it had anything to
      do with Moore. The proffer agreement simply evidenced Hartwig’s
      willingness to disclose his knowledge of drug activity in hopes of
      receiving a more favorable plea agreement. . . . We find that the
      link between Hartwig’s relationship with the government and his
      conduct at issue here is insufficient for his actions to be attributable
      to the government for purposes of a Massiah violation.
              There is also no evidence that Hartwig did anything but act
      as a passive listening post in gathering this information. In
      Kuhlmann v. Wilson, 477 U.S. 436 (1986), the Supreme Court
      made clear that the “primary concern of the Massiah line of
      decisions is secret interrogation by investigatory techniques that
      are the equivalent of direct police interrogation . . . ‘the Sixth
      Amendment is not violated whenever—by luck or happenstance—
      the State obtains incriminating statements.’” Id. at 459 (citing
      United States v. Henry, 447 U.S. 264, 276 (1980)) (Powell, J.,
      concurring). “[T]he defendant must demonstrate that the police and
      their informant took some action, beyond merely listening, that was
      designed deliberately to elicit incriminating remarks.” Id. at 459. In
                                       15



      this case, Moore has not alleged anything to suggest he was
      subject to any improper or surreptitious interrogation.

Id. at 999-1000.

      In a Sixth Circuit case, the court conditionally granted a writ of habeas

corpus to Ayers, who had been convicted of murder. Ayers v. Hudson, 623 F.3d

301, 311-12 (6th Cir. 2010). The court reasoned:

              We agree with those courts that do not limit agency in the
      Massiah context to cases where the State gave the informant
      instructions to obtain evidence from a defendant. As Henry
      illustrates, a Massiah violation can occur even where the State
      specifically instructs its informant “not to initiate any conversation
      with or question [a defendant] regarding the [offense for which he
      had been indicted].” Henry, 447 U.S. at 266 [(1980)] (emphasis
      added). “[I]t is not the government’s intent or overt acts that are
      important; rather, it is the ‘likely . . . result’ of the government’s
      acts.” Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004)
      (quoting Henry, 447 U.S. at 271). Thus, we hold that although direct
      written or oral instructions by the State to a jailhouse informant to
      obtain evidence from a defendant would be sufficient to
      demonstrate agency, it is not the only relevant factor. A court must
      also analyze the facts and circumstances of a particular case to
      determine whether there exists an express or implied agreement
      between the State and the informant at the time the elicitation took
      place that supports a finding of agency. See Henry, 447 U.S. at
      271 (indicating that a “combination of circumstances is sufficient to
      support” a finding of agency); Moulton, 474 U.S. at 176; see also
      [United States v.] Brink, 39 F.3d [419,] 423–24 [(3rd Cir. 1994)]
      (suggesting that a “tacit agreement” may be sufficient to establish
      agency for Massiah purposes). To hold otherwise would allow the
      State to accomplish “with a wink and a nod” what it cannot do
      overtly. This, the Sixth Amendment does not permit.

Ayers, 623 F.3d at 311-12 (footnote omitted).

      This issue was addressed in Iowa in State v. Nelson, 325 N.W.2d 118,

119 (Iowa 1982), where the defendant was incarcerated in a cell adjacent to

inmate Jackson and made inculpatory statements to Jackson about charges he

was facing. Jackson slipped a note to the jailer stating he wanted to discuss the
                                        16



incriminating statements with police officers. Nelson, 325 N.W.2d at 119. As a

result, a deputy sheriff spoke to Jackson and told Jackson he would contact the

officer in charge of investigating the defendant’s case. Id. No promises were

made or directions given to Jackson. Id. When Jackson returned to his cell he

engaged in extensive conversations with the defendant, gathering information

that was very damaging. Id. Two days later, the deputy met again with Jackson

after the deputy had met with a DCI agent and a police captain. Id. At that

second meeting, the deputy and Jackson discussed Jackson working for the

State on unrelated cases. Id. Later that night, Jackson and the defendant talked

and defendant confessed. Id. Two days later, Jackson was released from jail in

order to work for the State on unrelated cases. Id. at 120.

      The district court suppressed the defendant’s confession made to Jackson

after the second meeting with the deputy. Id. The trial court concluded that by

that time, Jackson had “assumed the role of a state agent unknown to the

defendant.” Id. The court relied on Henry, 447 U.S. at 270, and Massiah, 377

U.S. at 206. The incriminating statements made by the defendant to Jackson

prior to that second meeting were, however, admitted at trial. Id. Defendant

Nelson was convicted, then appealed claiming all of Jackson’s testimony of

statements made by Nelson should have been suppressed.            Id.   The Iowa

Supreme Court determined Jackson did not qualify as a state agent prior to the

second meeting with the deputy. Id. The court noted at that time Jackson did

not have an ongoing relationship with the State as a paid informant, there was no

agreement he would be paid or would receive more favorable treatment for the
                                       17



information, and Jackson initiated the contact with the State.     Id.   The court

concluded it was “only a coincidence that [the informant] ended up in a cell close

in proximity to Nelson. Because [the informant] was not thus working for the

State it cannot be said that the statements were deliberately elicited.”         Id.

Therefore, Jackson could properly testify at the defendant’s trial about the

defendant’s statements to him prior to the second meeting with the deputy. Id.

      In the present case, officer Smithey knew Johnson from Smithey’s days as

a patrol officer and as a drug task force officer, and knew Johnson was then in

custody on federal drug charges. He knew Johnson had pled guilty and had

entered into a cooperation agreement with federal prosecutors. Pursuant to that

cooperation agreement, Smithey met with Johnson and Johnson’s attorney on

July 12, 2011, to find out if Johnson “had information about any circumstances

surrounding the death of John Versypt.” Officer Smithey requested that Johnson

contact him if he learned anything. On cross-examination, Smithey admitted he

asked Johnson to provide information concerning Charles Thompson—also

known as Weezy—Courtney White, and Justin Marshall.            At the request of

Johnson’s counsel, officer Smithey met with Johnson again on September 13,

2011. At that meeting, Johnson conveyed valuable information of admissions by

Marshall that he had been involved in the attempted robbery and the shooting of

Versypt.

      The officer met with Freeman on October 3, 2011, and Freeman then

provided him with information he had obtained prior to that date. Smithey told

Freeman to contact him if he had “additional information he wished to relay.”
                                         18



Officer Smithey also met with Martin on October 3, 2011. He stated he may have

previously asked Martin, “do you know any information about this?” Johnson,

Freeman, and Martin were in the Muscatine County Jail, where Marshall was

also being held, but officer Smithey stated he made no arrangements for them to

be jailed in the same vicinity as Marshall.

       Officer Jennifer Clarahan testified she was present at the meeting with

officer Smithey, Johnson, and Johnson’s attorney on July 12, 2011. She stated

she did not request Johnson to obtain other information or do anything further on

behalf of the State. Officer Clarahan received letters from Freeman that were

dated September 21, 2011, and October 26, 2011. Freeman also called her on

October 1, 2011, and stated he had information about the Versypt murder.

Clarahan was with Smithey when he met with Freeman on October 3, 2011, and

Freeman provided them with information he had learned from Marshall. She said

Freeman was not asked to do anything else on behalf of the State. Officer

Clarahan never met with Martin.

       We first consider whether Marshall’s Sixth Amendment rights were

violated as to communications between Johnson and Marshall. In Massiah, the

informant agreed to cooperate with the government and then wore a wire while

deliberately eliciting information from the defendant, and the testimony was

suppressed. Massiah, 377 U.S. at 206. In Henry, government agents contacted

a paid confidential informant and told him to be alert to statements of fellow

prisoners but not to initiate conversation; the inmate was not a passive listener

but engaged in conversation, and the testimony of the confidential informant was
                                        19



suppressed. Henry, 447 U.S. at 266-274. In Moulton, a codefendant agreed to

wear a wire and engaged the defendant in active conversation, and the

codefendant’s testimony was suppressed.       Moulton, 474 U.S. at 176-80.    In

Kuhlmann, the informant followed the instructions of law enforcement that he “at

no time asked any questions” of the accused, and that he only listen to

spontaneous and unsolicited statements. Kuhlmann, 477 U.S. at 460. This did

not constitute a Sixth Amendment violation. Id.

      In Moore, a fellow inmate subject to an agreement with authorities to

provide information concerning drug activity overheard inmate Moore give details

of a car theft and bank robbery. Moore, 178 F.3d at 998-99. The informant was

a passive listener who by luck or happenstance obtained incriminating

statements, so there was no violation of the Sixth Amendment. Id. at 1000. In

Ayers, the informant met with law enforcement, then deliberately elicited

information from Ayers regarding the crime. Ayers, 623 F.3d at 315-16. The

court reasoned that even in the absence of an express agency arrangement, a

Sixth Amendment violation can and did occur as a result of circumstances

intentionally created by the State that were likely to violate Ayers’s Sixth

Amendment rights and concluded Ayers’s Sixth Amendment rights were violated.

Id. at 315-16. In Nelson, a fellow inmate obtained inculpatory statements from

the defendant, then contacted law enforcement and an agreement was reached

that he would work for the State as a paid informant. Nelson, 325 N.W.2d at 119.

Statements made before the agreement were admissible, while statements made

after were in violation of the Sixth Amendment. Id. at 120.
                                        20



      There is no question that Smithey told Johnson he was interested in

information concerning Thompson, White, and Marshall in connection with the

Versypt murder.     There is no question Johnson was under a cooperation

agreement with federal prosecutors under which Johnson expected that if he

provided valuable information about the Versypt murder that he might receive a

favorable sentencing recommendation from the federal prosecutor. There is no

question that Smithey knew Johnson was under a cooperation agreement, had

already pled guilty and was awaiting sentencing; and that under the cooperation

agreement Johnson (1) would be required to provide to Smithey any information

he had concerning the Versypt murder, (2) would suffer negative consequences

if he failed to provide any information he had concerning the Versypt murder, and

(3) had the potential of a favorable sentencing recommendation if he provided

helpful, truthful information concerning the Versypt murder.

      Johnson was not a paid informant. He was under no arrangement for

which there was any agreement that he would get a charging or a sentencing

concession. But to say Johnson did not or should not have expected something

in return for his cooperation and assistance belies the obvious facts.        The

cooperation agreement he had with the federal authorities required that he

cooperate with all law enforcement and that he provide truthful information. The

cooperation agreement contained no binding consideration on the government’s

side, leaving the consideration solely in the discretion of the government and the

court. The obvious, and rather effective objective, was to induce maximum effort

and truthfulness from Johnson and remove any ability to negotiate the value of
                                         21



certain information. The inducement effectively encouraged Johnson to gather

as much information as he could that might be considered helpful to law

enforcement in hopes of obtaining a favorable report that could lead to a reduced

sentence. It is the probability of valuable information that gave value to the

government, and the possibility of a sentencing concession that gave value to

Johnson.

         Before his federal court sentencing hearing, Johnson gathered and

provided to Smithey information obtained from Marshall. By the time of that

hearing, he had also testified against one of his federal co-conspirators.      At

sentencing, he received a substantial reduction in his sentence.          He fully

expected that if he testified against Marshall he might still receive additional

sentencing concessions as a direct result of his cooperation with Smithey and the

Iowa City police.

         Smithey was fully aware of how the cooperation agreements worked. The

same lack of specificity in the terms of the agreement that were for the benefit of

the federal government also were for the benefit of the State.         It was not

necessary for Smithey or Johnson to discuss the value that would be received by

Johnson’s cooperation.       The value for Johnson was the expectation of a

favorable report to the federal authorities concerning his cooperation with the

State.

         Smithey testified that he knew incarcerated individuals had certain rights

that should not be bypassed by instructing informants on what information to find

or how to go about it. The State asserts Smithey did not cross the line. But
                                        22



clearly Smithey did not tell Johnson to be a passive listener, nor did he

communicate anything close to that.       On our de novo review, we find that

effective communication abounded. There were no misunderstandings. Smithey

knew there was a line he should not cross, and we have no reason to believe he

intentionally crossed it. But, we find that he did cross that line. Johnson was not

a paid informant—not paid in cash.           Johnson reasonably expected the

opportunity for a sentencing concession.        Smithey did not tell Johnson to

interrogate Marshall, but asking him to gather information, in light of the valuable

consideration at issue, communicated effectively that the more information he

could get from Marshall the better.

      A smile, a frown, crying, laughter, a pat on the back, a thumb up (or

down), a salute, an obscene gesture, and a wink and a nod are all examples of

effective communication without a spoken word.

      A court must also analyze the facts and circumstances of a
      particular case to determine whether there exists an express or
      implied agreement between the State and the informant at the time
      the elicitation took place that supports a finding of agency. . . . To
      hold otherwise would allow the State to accomplish “with a wink
      and a nod” what it cannot do overtly. This, the Sixth Amendment
      does not permit.

Ayers, 623 F.3d at 311-12.

      Smithey told Johnson the crime at issue. Smithey told Johnson the three

individuals about whom the police wanted him to gather information. Johnson

knew that if he obtained information from Marshall that was helpful to police, a

favorable report of his cooperation would be sent to federal prosecutors. He and

Smithey knew a favorable report had the potential for a sentencing concession.
                                       23



From the foregoing, it is clear Smithey expected Johnson to perform, and

Johnson did. The facts and circumstances demonstrate an implied agreement

that Johnson would perform the task that Smithey wanted. What we had here

was not a failure to communicate; expectations could not have been much

clearer. We find that when Johnson solicited information from Marshall after July

12, 2011, Johnson was an agent of the State of Iowa.

      Accordingly, all statements made by Marshall to Johnson after the July 12,

2011 meeting should have been suppressed as having been made in violation of

Marshall’s Sixth Amendment right to counsel.

      The evidence shows that Freeman and Martin had not met with Iowa City

police before gathering information from Marshall. Marshall’s argument that they

were acting as agents fails to satisfy the requirements of the Massiah line of

cases, requiring some evidence of an express or implied agreement prior to

soliciting information. Marshall seems to argue that Johnson, as an agent of the

State, must have communicated with Freeman and Martin and effectuated their

status as agents of the State.    First, there was no testimony from Johnson,

Freeman, or Martin that would support such a conclusion. Second, we are not

willing to speculate or assume that Johnson was authorized to or did initiate such

communications, even indirectly. The informants were not asked to deliberately

elicit information from Marshall, or do anything more than provide information

they heard. The officers did not do anything to place the informants in the same

vicinity as Marshall. It is not unexpected that Freeman and Martin, given their

circumstances of facing long prison sentences, might try to curry favor with law
                                        24



enforcement in hopes of improving their situation. What is missing, however, is a

prior agreement. We conclude the district court properly ruled Freeman and

Martin were not acting as agents of the State at the time Marshall talked to them

about his case. We agree with the court’s statement in its ruling on the motion

for new trial that Freeman and Martin “collected information prior to and without

being approached by the police and later turned it over to the officers.” We

determine Marshall’s motion to suppress the testimony of Freeman and Martin

was properly denied.

III.      Harmless Error

          When evidence has been admitted in violation of a defendant’s Sixth

Amendment rights, reversal of the defendant’s conviction is not required if the

error is harmless. State v. Peterson, 663 N.W.2d 417, 430 (Iowa 2003). The

parties, however, have not raised the issue of harmless error in the appellate

briefs.    The Iowa Supreme Court has stated courts may cautiously exercise

discretion in engaging in sua sponte harmless-error review. In re Det. of Blaise,

830 N.W.2d 310, 320 (Iowa 2013). Factors to be considered are: (1) the length

and complexity of the record; (2) whether the harmlessness of the error is certain

or debatable; and (3) whether a reversal will result in protracted, costly, and

ultimately futile proceedings in district court. Id. at 319. The second factor—“the

extent to which the harmlessness of the error is open to question”—has been

considered the chief factor. Id. at 320 (citing United States v. Gonzalez-Flores,

418 F.3d 1093, 1101 (9th Cir. 2005); Lufkins v. Leapley, 965 F.3d 1477, 1482-83

(8th Cir. 1992); United States v. Pryce, 938 F.2d 1343, 1348 (D.C. Cir. 1991)).
                                          25



       In examining these three factors, we first note the record is fairly lengthy

and complex in this case. Including jury selection and jury deliberations, the trial

took eleven days. There were twenty-eight witnesses and 111 exhibits during

the trial. On the other hand, this case does not involve complex legal issues.

       We turn to the second factor, whether the harmlessness of the error in

admitting Johnson’s testimony about Marshall’s statements after he met with

officer Smithey on July 12, 2011, is certain or debatable. Johnson is the only

witness who testified that Marshall, Thompson, and Calvin were in the hallway

playing dice, and then Thompson went inside his apartment.               According to

Johnson, “that’s when [Marshall] came up with the idea that he wanted to rob the

landlord.” Johnson stated Marshall told him Calvin was with him when he was

going to do the robbery. This is also the only evidence linking Calvin to the

crime. Johnson stated he did not know which “Calvin” Marshall was referring to.6

Additionally, Johnson is the only witness who testified that Marshall told him the

shot was loud. Johnson testified Marshall told him that after the shooting he ran

out the back way, then came back, “knocking on the front door, but he was

whispering a little bit because he didn’t want nobody to know he was in the

hallway.”   This last statement corroborates testimony from Brown that a few

minutes after hearing a “loud pop,” he heard Marshall quietly knocking on the

door of his apartment, asking his aunt to let him in.



6
  It is not clear from the record whether “Calvin,” was someone’s first name, last name,
or a nickname. When asked if he knew Calvin, Johnson stated, “I knew a couple
Calvins.” Johnson replied in the negative when asked, “Did he say which Calvin?”
Under a theory of aiding and abetting there is no requirement that the identity of the
principal be established. State v. Kern, 307 N.W.2d 22, 28 (Iowa 1981) (Kern I).
                                        26



       While there was evidence linking Marshall to the murder based on

Marshall’s own statements to officers, the testimony of Martin and Freeman,

gunshot residue on his jacket, and evidence Marshall put some clothing in a

garbage bag and took it out to a dumpster, Johnson’s testimony provides

important evidence on the issue of whether Marshall was guilty under a theory of

aiding and abetting due to Johnson’s statement Marshall told him Calvin was with

him when he was going to commit the robbery. The case was submitted to the

jurors on theories of aiding and abetting, participation in a forcible felony, and

joint criminal conduct. The jurors could vote for more than one theory. Eleven

jurors voted for aiding and abetting, seven for a forcible felony, and two for joint

criminal conduct. If Johnson’s testimony is eliminated, then the evidence that

Marshall and Calvin committed the offense together is also eliminated.          We

conclude the extent of the harmlessness of the error in admitting Johnson’s

testimony is debatable or open to question.

       Third, while a reversal will result in protracted and costly proceedings, we

are unable to conclude those proceedings would be ultimately futile. Although

without Johnson’s testimony there is not as much evidence to support a

conviction based on aiding and abetting, we cannot conclude there is insufficient

evidence from which a jury could find Marshall aided and abetted someone else

in the murder.

       Based on the three-factor test found in Blaise, 830 N.W.2d at 319, we

conclude it would be inappropriate for us to engage in a sua sponte harmless-

error review. Because the issue of harmless error was not raised by the parties,
                                              27



we will not consider it. See State v. Dudley, 856 N.W.2d 668, 678 (Iowa 2014)

(“The State does not argue the admissibility of the objectionable statements

constitute harmless error. Therefore, we will not make the arguments for the

State or reach the issue of harmless error.”).

IV.    Jury Instructions

       Marshall claims the district court erred by instructing the jury on the

theories of aiding and abetting and joint criminal conduct because there was

insufficient evidence in the record to support submitting these theories to the

jury.7 He claims there is not substantial evidence in the record to show more

than one person participated in the offense.             “We review jury instructions to

decide if they are correct statements of the law and are supported by substantial

evidence.” State v. Schuler, 774 N.W.2d 294, 297 (Iowa 2009). Our standard of

review is for the correction of errors at law. State v. Anderson, 636 N.W.2d 26,

30 (Iowa 2001).

       A.      “To sustain a conviction under a theory of aiding and abetting, ‘the

record must contain substantial evidence the accused assented to or lent

countenance and approval to the criminal act by either actively participating or

encouraging it prior to or at the time of its commission.’” State v. Hearn, 797

N.W.2d 577, 580 (Iowa 2011) (citation omitted).                 “Knowledge is essential;

however, neither knowledge nor presence at the scene of the crime is sufficient

to prove aiding and abetting.” Id. “A defendant’s participation may however be


7
  On appeal, Marshall claims this error violated his constitutional right to a fair jury trial.
He recognizes, however, defense counsel did not frame his objections to these
instructions in constitutional terms. We conclude Marshall failed to preserve error on his
constitutional arguments about the jury instructions. See Paulsen, 293 N.W.2d at 247.
                                          28



proven by circumstantial evidence.”            Id.    Factors such as presence,

companionship, and conduct before and after the offense may be considered in

determining whether a defendant participated in a crime. State v. Lewis, 514

N.W.2d 63, 66 (Iowa 1994).

         The State points out that from the evidence presented at the trial, the jury

could have determined Marshall aided and abetted Thompson or White, or both,

in committing the offense. Marshall told officers the robbery had been planned

by Thompson and White. He told officers and Johnson that Thompson had shot

Versypt. There was evidence of Thompson’s involvement—the murder weapon

belonged to Thompson; when officers arrived he was outside the apartment

building;8 and he and Marshall took some trash bags to a dumpster on the night

after the murder. There was also evidence Marshall had been talking to White

outside the back door of the apartment building, near where the shooting took

place.

         The jury could have believed Marshall’s statements that Thompson and

White were involved in the robbery and shooting, but concluded Marshall was

also involved. As the district court stated in its ruling on post-trial motions, “In

short, in part from Defendant’s own statements, there was evidence from which

the jury could reasonably have found that one or more persons other than

Defendant were involved in the crime.” The State is not required to establish the

identity of the principal. Kern I, 307 N.W.2d at 28. We conclude the district court




8
  This is consistent with Brown’s testimony that immediately after the shooting he heard
the downstairs back door “bust open real quick.”
                                         29



did not err in determining there was substantial evidence in the record to support

the submission of the instructions on aiding and abetting to the jury.

       B.     In order to show a defendant engaged in joint criminal conduct, the

State must prove: (1) the defendant was acting in concert with another; (2) the

defendant must knowingly be participating in a public offense; (3) a “different

crime” must be committed by another participant in furtherance of the

defendant’s offense; and (4) the commission of the different crime must be

reasonably foreseen. State v. Smith, 739 N.W.2d 289, 294 (Iowa 2007). “‘In

furtherance of’ is not limited to acts done to promote or advance the underlying

crime, but includes acts done while furthering that offense.” Id. As with aiding

and abetting, there is no requirement under a theory of joint criminal conduct that

the State must prove the identity of the principal actor.       State v. Kern, 307

N.W.2d 29, 30 (Iowa 1981) (Kern II).

       From Marshall’s own statements there is substantial evidence in the

record to show he was acting in concert with Thompson or White, or both.

Marshall knew he was participating in the public offense of robbery; he planned

the robbery of Versypt based on his belief the landlord would be carrying cash. A

different crime, shooting Versypt, was committed by another participant in

furtherance of the robbery. Killing Versypt allowed the participants to avoid being

identified, allowed them to take his wallet without resistance, and assisted in their

escape. Furthermore, the shooting was a reasonably foreseeable outcome of

the robbery. See State v. Speaks, 576 N.W.2d 629, 633 (Iowa Ct. App. 1998)
                                         30



(“A murder is a reasonably foreseeable crime when using a gun to threaten

robbery victims.”).

       In the post-trial ruling, the district court found “there was substantial

evidence on which the jury could have made findings that Mr. Versypt was killed

in the course of an intended robbery.” We determine the court did not err in

concluding, “there was also sufficient evidence from which the jury could have

concluded that Defendant participated in joint criminal conduct which resulted in

the forcible felony of robbery, during which Mr. Versypt was killed.” We conclude

the court properly submitted instructions on joint criminal conduct to the jury.

V.     Ineffective Assistance

       Marshall contends he received ineffective assistance from his defense

counsel.    We review claims of ineffective assistance of counsel de novo.

Ennenga v. State, 812 N.W.2d 696, 701 (Iowa 2012). To establish a claim of

ineffective assistance of counsel, a defendant must show (1) the attorney failed

to perform an essential duty, and (2) prejudice resulted to the extent it denied the

defendant a fair trial. State v. Carroll, 767 N.W.2d 638, 641 (Iowa 2009). A

defendant has the burden to show by a preponderance of the evidence counsel

was ineffective. See State v. McKettrick, 480 N.W.2d 52, 55 (Iowa 1992).

       A.     Marshall claims he received ineffective assistance because

defense counsel did not raise a claim based on the Iowa Constitution in his

motion to suppress. He states, “counsel should have argued an interpretation of
                                          31



the Iowa Constitution to provide protection of the rights to counsel that is broader

than protection provided under the federal Constitution.”9

       The Iowa Constitution states, “In all criminal prosecutions . . . the accused

shall have a right to . . . have the assistance of counsel.” Iowa Const. art. I, § 10.

This provision is broadly construed “to effectuate its purpose, which was to

correct the imbalance between the position of the accused and the powerful

forces of the State in a criminal prosecution.” State v. Newsom, 414 N.W.2d 354,

359 (Iowa 1987). In a case where a defendant claimed he made statements to

officers based on promises of leniency, the Iowa Supreme Court stated, “We hold

that our constitution prohibits agents of the State from initiating any

conversations or dealings with an accused concerning the criminal charge on

which representation of counsel has been sought.” Id.

       Similar to the Sixth Amendment, the rule under the Iowa Constitution

applies to State agents. See id.; Nelson, 325 N.W.2d at 120 (considering the

Sixth Amendment and noting the informant did not qualify as a state agent). We

note that “when the federal and state constitutions contain similar provisions,

they are usually deemed to be identical in scope, import, and purpose.” State v.

Davis, 304 N.W.2d 432, 434 (Iowa 1981). “Special respect and deference is

accorded United States Supreme Court interpretations of similar language in the

federal constitution.” Id.; see also State v. Findling, 456 N.W.2d 3, 6 (Iowa Ct.




9
   This issue is moot as to the testimony of Johnson because we have concluded
Johnson’s testimony of information he obtained from Marshall after July 12, 2011, should
be suppressed based on the federal constitution. We consider this issue as to Martin
and Freeman only.
                                          32



App. 1990) (interpreting Article I, section 10 of the Iowa Constitution in accord

with the Sixth Amendment).

       We have already determined Freeman and Martin were not acting as

agents of the State when Marshall talked to them about this case. Because the

Iowa Constitution, like the federal constitution, prohibits state agents from

questioning a defendant after the defendant has invoked his right to counsel, we

conclude Marshall has not shown that if defense counsel had raised an argument

based on the Iowa Constitution that it would have been successful. “We will not

find counsel incompetent for failing to pursue a meritless issue.”            State v.

Brothern, 832 N.W.2d 187, 192 (Iowa 2013). We determine Marshall has not

shown he received ineffective assistance of counsel on this ground.

       B.     Marshall also claims he received ineffective assistance because

defense counsel did not object to the jury instructions on aiding and abetting and

joint criminal conduct on constitutional due process grounds. He states, “The

due process violation is not a categorical challenge to the statutory validity of

liability by the rule of joint criminal conduct. The due process violation was in the

trial court’s application of the rule to the instant case.” He asserts the instructions

were confusing and this led the jury to find Marshall guilty based on something

other than the evidence presented in the case. Marshall asserts an objection on

due process grounds would have been successful and would have changed the

outcome of the case.

       “[T]he Due Process Clause protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary to constitute the
                                        33



crime with which he is charged.” State v. Frei, 831 N.W.2d 70, 76 (Iowa 2013).

“[T]aken as a whole, the instructions [must] correctly conve[y] the concept of

reasonable doubt to the jury.” Id.

       In reviewing Marshall’s objections to the instructions on aiding and

abetting and joint criminal conduct, we determined there was substantial

evidence in the record to support the submission of these instructions to the jury.

Because the instructions were supported by substantial evidence, we do not

believe the instructions were confusing, or that Marshall has shown the jury

determined his guilt based on something other than proof beyond a reasonable

doubt. We conclude he has not shown he was denied due process based on the

court’s decision to give these instructions. Marshall has not met his burden to

show by a preponderance of the evidence counsel was ineffective.              See

McKettrick, 480 N.W.2d at 55.

       We have determined that all statements made by Marshall to Johnson

after July 12, 2011, should have been suppressed as having been made in

violation of Marshall’s Sixth Amendment right to counsel. Because the issue was

not raised by the parties, we have not engaged in a harmless-error analysis. We

determine Marshall’s conviction for first-degree murder must be reversed and the

case remanded to the district court.         Because issues relating to the jury

instructions may arise on remand, we have considered the jury instructions and

find no error.

       REVERSED AND REMANDED.

       Bower, J., concurs specially; McDonald, J., dissents.
                                       34



BOWER, J. (concurring specially)

         I concur in the result but choose to write separately. My fellow panel

members have appropriately set out the case law in this area, and therefore I see

no reason to repeat it. However, I believe there are additional facts showing

Marshall’s conviction should be reversed.     The State asks us to believe the

events that occurred from the time the arrest warrant was issued for Marshall on

July 12, 2011, until the interviews of the jailed informants were completed in

October 2011, are merely a coincidence.       The American Heritage dictionary

defines a coincidence as: “A sequence of events that although accidental seems

to have been planned or arranged.” American Heritage Dictionary 173 (4th ed.

2004).

         After a review of the record, I am convinced the actions of law

enforcement, and the subsequent information provided by Johnson, was not

coincidental. The murder of Versypt occurred on or about October 8, 2009.

Marshall’s whereabouts after the murder were known to Johnson and law

enforcement as Marshall was questioned while living in Burlington, Iowa, before

he fled to Texas. Marshall was apprehended in July 2011 and had an initial

appearance in Iowa on July 26, 2011. Marshall, who knew Johnson, Martin, and

Freeman prior to his arrest in Texas, was placed in the Muscatine County Jail on

his state charge for murder while the others were held in the same jail on federal

drug charges. Johnson (as previously noted) knew Marshall and had talked to

him concerning the murder.      Law enforcement interviewed Johnson prior to

Marshall’s arrest and prior to Marshall being placed in the Muscatine County Jail
                                        35



as an “overflow” inmate from another county. Johnson had pleaded guilty to drug

charges in February 2011 (prior to Marshall’s return), and expected to be

sentenced in July 2011, but was not sentenced until March of 2012—seven

months after the original sentencing date.

      Before Marshall returned to Iowa, Detective Smithey met with Johnson at

the jail on July 12, 2011, and asked Johnson more questions about the Versypt

murder. Smithey advised Johnson if he was to learn anything about the Versypt

murder from Marshall (who had not been placed in the Muscatine County Jail as

of the time of the interview) to let Smithey know as he was interested in any

information about the murder—specifically information about Thompson,

Marshall, and White. From the initial meeting between Smithey and Johnson on

July 12, 2011, (the same day the arrest warrant was issued for Marshall) Smithey

met with Johnson approximately one to three additional times. Johnson provided

Smithey and Clarahan with incriminating information derived from Marshall that

helped seal his conviction.

      During the several months while Johnson and Marshall were held in the

Muscatine County Jail, they were both placed in administrative segregation,

which limited their interactions but did allow for one hour of time outside their

individual jail cell. Their time in segregation overlapped in excess of seven days.

In addition to advising Johnson about gathering information on Marshall, Smithey

told Johnson to spread the word within the jail that Smithey wanted to know

about the crime.
                                        36



       These additional factors convince me a combination of circumstances, not

luck or happenstance, resulted in an implied, if not express, agreement for

Johnson to deliberately elicit statements from Marshall. These circumstances

resulted in the functional equivalent of an interrogation by law enforcement. For

those reasons, I concur in the reversal of this matter due to my lack of confidence

Marshall received a fair trial.
                                         37



MCDONALD, J. (dissenting)

       What we have here is a failure of proof. To establish a violation of his

Sixth Amendment right to counsel, as relevant here, Marshall was required to

establish both that Carl Johnson was acting as an agent of the State and that

Johnson deliberately elicited the statements at issue from Marshall. The majority

opinion and special concurrence discuss in great detail the evidence establishing

agency but wholly ignore the lack of evidence establishing deliberate elicitation. I

conclude Marshall failed to establish Johnson deliberately elicited from him the

statements at issue.     I would hold the district court did not err in denying

Marshall’s motion to suppress the statements Marshall made to informant

Johnson.10

       Massiah was the first of four newly-created Warren Court constitutional

exclusion doctrines relating to incriminating statements issued during a four-year

period in the 1960s. See James J. Tomkovicz, Sacrificing Massiah: Confusion

Over Exclusion and Erosion of the Right to Counsel, 16 Lewis & Clark L. Rev. 1,

4-5 (2012). In Massiah, the Could held the defendant “was denied the basic

protections of [the Sixth Amendment right to counsel] when there was used

against him at his trial evidence of his own incriminating words, which federal

agents had deliberately elicited from him after he had been indicted and in the

absence of his counsel.” Massiah, 377 U.S. at 206.




10
   I agree with the majority that the State failed to establish agency with respect to
informants Martin and Freeman and that the district court did not err in denying
Marshall’s motion to suppress with respect to the statements Marshall made to
informants Martin and Freeman.
                                         38



       The Court revisited Massiah in Henry. In that case, the Court held that

“[b]y intentionally creating a situation likely to induce Henry to make incriminating

statements without the assistance of counsel, the Government violated Henry’s

Sixth Amendment right to counsel.” Henry, 447 U.S. at 274. Mr. Justice Powell

concurred in the Court’s judgment but expressed a narrow interpretation of

Massiah:

               The rule of Massiah serves the salutary purpose of
       preventing police interference with the relationship between a
       suspect and his counsel once formal proceedings have been
       initiated.    But Massiah does not prohibit the introduction of
       spontaneous statements that are not elicited by governmental
       action. Thus, the Sixth Amendment is not violated when a passive
       listening device collects, but does not induce, incriminating
       comments. Similarly, the mere presence of a jailhouse informant
       who had been instructed to overhear conversations and to engage
       a criminal defendant in some conversations would not necessarily
       be unconstitutional. In such a case, the question would be whether
       the informant’s actions constituted deliberate and “surreptitious
       interrogatio[n]” of the defendant. If they did not, then there would
       be no interference with the relationship between client and counsel.
               . . . . I could not join the Court’s opinion if it held that the
       mere presence or incidental conversation of an informant in a jail
       cell would violate Massiah. To demonstrate an infringement of the
       Sixth Amendment, a defendant must show that the government
       engaged in conduct that, considering all of the circumstances, is
       the functional equivalent of interrogation.

Henry, 447 U.S. at 276-77 (Powell, J., concurring) (citation omitted).

       In Kuhlmann, the Court adopted Mr. Justice Powell’s more limited reading

of Massiah. Writing for the Kuhlmann Court, Mr. Justice Powell explained the

doctrine as follows:

       [T]he primary concern of the Massiah line of decisions is secret
       interrogation by investigatory techniques that are the equivalent of
       direct police interrogation. Since “the Sixth Amendment is not
       violated whenever—by luck or happenstance—the State obtains
       incriminating statements from the accused after the right to counsel
       has attached,” [Moulton,] 474 U.S., at 176 at 487, citing United
                                        39



      States v. Henry, [477 U.S.] at 276 (Powell, J., concurring), a
      defendant does not make out a violation of that right simply by
      showing that an informant, either through prior arrangement or
      voluntarily, reported his incriminating statements to the police.
      Rather, the defendant must demonstrate that the police and their
      informant took some action, beyond merely listening, that was
      designed deliberately to elicit incriminating remarks.

Kuhlmannn, 477 U.S. at 459.        Applying this more limited interpretation of

Massiah, the Court held the defendant failed to establish a Massiah violation.

Although the Kuhlmann court attempted to distinguish rather than overrule Henry,

the cases appear materially indistinguishable. See id. at 473-75 (Brennan, J.,

dissenting) (explaining the case was “virtually indistinguishable from Henry” and

discussing same).

      Under Kuhlmann, the defendant bears the burden of establishing both that

the informant was acting as an agent of the State and that the “informant took

some action . . . that was designed deliberately to elicit incriminating remarks.”

Id. at 459. These are separate and distinct elements. See Depree v. Thomas,

946 F.2d 784, 793 (11th Cir. 1991) (“To establish his claim, [the defendant] ‘must

show (1) that a fellow inmate was a government agent, and (2) that the inmate

deliberately elicited incriminating statements from’ him.”); Wallace v. Price, 265

F. Supp. 2d 545, 569 (W.D. Pa. 2003) (explaining that agency element is distinct

from the deliberate elicitation element); People v. Williams, 940 P.2d 710, 744

(Cal. 1997) (“As we have recognized, in order to prevail on a Massiah claim

involving use of a government informant, the defendant must demonstrate that

. . . the informant (1) was acting as a government agent, i.e., under the direction

of the government pursuant to a preexisting arrangement, with the expectation of

some resulting benefit or advantage; and (2) deliberately elicited incriminating
                                         40



statements.”); State v. Fields, 908 P.2d 1211, 1217 (Idaho 1995) (“The inquiry

into such possible Sixth Amendment violations requires that this Court determine

whether (1) the inmates were acting as agents of the police, and (2) the

informants affirmatively and deliberately elicited the incriminating statements.”).

       The first element requires proof of agency. The inquiry is more akin to the

state action doctrine rather than commercial agency. See James J. Tomkovicz,

An Adversary System Defense of the Right to Counsel Against Informants:

Truth, Fair Play, and the Massiah Doctrine, 22 U. C. Davis L. Rev. 1 (1988)

(explaining the first element requires proof the government created or exploited a

situation in which the informant is likely to elicit inculpatory statements). The

majority and special concurrence conclude Johnson was working as an agent of

the State. I have no quibble with that conclusion.

       The second element requires proof of deliberate elicitation. This requires

the defendant to establish the informant engaged in “the functional equivalent of

interrogation.” Henry, 447 U.S. at 276-77 (Powell, J., concurring). The informant

being placed in close proximity to the defendant is not enough to satisfy the

standard. See United States v. Jacques, 684 F.3d 324, 331-32 (2d Cir. 2012)

(“[T]he Sixth Amendment does not forbid admission in evidence of an accused’s

statements to a jailhouse informant who was placed in close proximity but made

no effort to stimulate conversations about the crime charged.”). Moreover, the

Sixth Amendment does not forbid admission in evidence of an accused’s

statements to an informant made during conversations not rising to the level of

surreptitious interrogation. See id. Instead, to prove a violation of the right to
                                        41



counsel, the defendant must establish the informant’s conduct was the functional

equivalent of an uncounseled interrogation. See Kansas v. Ventris, 556 U.S.

586, 592 (2009) (stating “the Massiah right is a right to be free of uncounseled

interrogation, and is infringed at the time of the interrogation”); id. (“The

constitutional   violation   occurs   when   the   uncounseled    interrogation   is

conducted.”).

       I conclude there is a wholesale failure of proof that Johnson engaged in

conduct arising to the functional equivalent of an uncounseled interrogation and

that this failure of proof is fatal to Marshall’s claim. See Pursell v. Horn, 187 F.

Supp. 2d 260, 338 (W.D. Pa. 2002) (stating defendant must “prove the informant

affirmatively [sought] to induce [incriminating statements]”) (alterations in

original). What evidence did Marshall offer in support of his claim during the

suppression hearing? Only two witnesses were called during the suppression

hearing, Officers Smithey and Clarahan. As pertinent here, Smithey testified as

follows:

              Q. Did you make any request from Carl Johnson at that time
       to gather more information or to try to contact Justin Marshall for
       further information? A. I did not. I only requested that he contact
       me if he learned anything further.
              ....
              Q. Did you ever make any effort, once Justin Marshall was
       arrested, to have him placed in the cell with anybody in particular?
       A. No.
              Q. Including Carl Johnson? A. I did not.
              ....
              Q. Did you subsequently meet with Carl Johnson then on
       September 5, 2011? A. I did.
              Q. And did he relay to you information that he had obtained
       from Justin Marshall in the Muscatine County Jail? A. Yes, he did.
              Q. And what time frame did he say that he obtained that
       information?     A.   He indicated that he had obtained some
                                         42



       information while they were each in a segregated area of the
       Muscatine County Jail in August of 2011.
               Q. Had you made any effort to get them into segregation?
       A. No.
               Q. Was it your understanding that they were in segregation
       for different purposes, for different violations? A. Yes.
               Q. The information he provided you then, was it all
       information he had obtained prior to your meeting with him on
       September 13 of 2011? A. Yes.
               Q. At any time when you met with Mr. Johnson, either in
       July or in September, did you ever ask him to do anything to try to
       obtain more information or any information from Justin Marshall
       regarding John Versypt’s death? A. No. Only to contact me if he
       learned anything.
               Q. Did any of the other investigators present when you
       interviewed Mr. Johnson on July 12 ever say anything to the effect
       of you should get more information or tell him to do anything further
       for the investigation of John Versypt’s death? A. No.

Officer Clarahan testified similarly to Smithey:

              Q. At that meeting, did you ever request Carl Johnson to
       obtain other information for you or to do anything further on behalf
       of the State in the investigation of John Versypt’s murder? A. No.
              Q. Did you hear anybody else from the government making
       that request of him? A. No, I did not.
              Q. Did you make any arrangements for Carl Johnson to
       ever be placed in the same cell, cell block, pod, anything at the
       Muscatine County Jail with Justin Marshall? A. No.
              ....
              Q. Did you ever ask . . . Carl Johnson . . . to do anything on
       behalf of the State to gather information from Justin Marshall
       regarding the John Versypt murder? A. No.

This is the totality of the relevant evidence presented to the district court during

the suppression hearing.        There was no evidence received during the

suppression hearing establishing Johnson conducted the functional equivalent of

an uncounseled interrogation. Indeed, there was no evidence received during

the suppression hearing illuminating any of the details regarding Johnson’s

contact with Marshall.    We should not fault the district court for denying the
                                        43



motion to suppress when the defendant failed to adduce evidence in support of

the motion.

        Looking beyond the suppression record, there is also nothing in the trial

record evidencing “deliberate elicitation.” See State v. Brooks, 760 N.W.2d 197,

203-04 (Iowa 2009) (explaining an appellate court may consider the evidence

during a suppression hearing as well as the evidence admitted at trial). Johnson

testified he was placed in the segregation unit, or special housing unit, at the

Muscatine County Jail in August 2011 for violating facility rules. Inmates in the

segregation unit are housed in single cells, and they get one hour out of their

cells per day.      Johnson estimated he was in the segregation unit for

approximately seventeen days.        Marshall was in the segregation unit for

approximately nine to ten of these days, also for violating facility rules. Johnson

did not request to be in the segregation unit. Johnson did not know Marshall was

in the segregation unit at the time he was moved to the unit:

               Q. And you knew that Justin was also in segregation didn’t
               you? A. No.
               Q. You sure about that? A. Positive.
               Q. Okay. But he just happened to be in segregation? A.
        Yes.

While in the segregation unit, Johnson and Marshall spoke with each other.

Johnson testified that Marshall initiated the discussions regarding Marshall’s

case:

                Q. All right. And he just happened to start suddenly talking
        to you about his case? A. He didn’t just start talking to me over
        just a couple days. He started talking to me, yes.
                ....
                                        44



                 Q. And only when you’re alone in segregation does he
       suddenly open up to you, correct? A. Yeah. He told me about it a
       little bit, yeah.

There is no evidence contrary to Johnson’s testimony regarding the nature of his

interactions with Marshall.

       The defendant bears the burden of coming forward with evidence

establishing the State violated his right to counsel. He failed to meet his burden.

Marshall’s Massiah claim is speculation, conjecture, and belief unsupported by

evidence. The evidence established several facts dispositive of Marshall’s claim

with respect to Johnson’s testimony. No state actor instructed Johnson to obtain

information from Marshall.      No state actor requested Johnson to obtain

information from Marshall. Smithey merely identified Marshall and two others as

persons of interest and told Johnson to contact him if he heard anything. The

prosecution did not make arrangements to place Johnson in proximity to

Marshall.   Johnson made no efforts to be placed in proximity to Marshall.

Johnson and Marshall were in the segregation unit together for only nine to ten

days and had limited time to hold any conversations.         It was Marshall, not

Johnson, who initiated conversations regarding the murder.           There is no

evidence that Johnson asked questions during those conversations designed to

elicit additional information regarding the murder.       There is no evidence

regarding the nature of Marshall and Johnson’s conversations showing that

Johnson conducted the functional equivalent of an uncounseled interrogation of

Marshall.

       Under similar facts, the Iowa Supreme Court and numerous other courts

have concluded the defendant failed to prove a violation of his right to counsel.
                                        45



See State v. Liggins, 524 N.W.2d 181, 186-87 (Iowa 1994) (denying Massiah

claim where there was a lack of evidence establishing deliberate elicitation); see

also United States v. Whitten, 610 F.3d 168, 194 (2d Cir. 2010) (holding inmate

did not deliberately elicit statements from defendant where the statements were

made during conversation regarding many other things); United States v. Lentz,

524 F.3d 501, 521-22 (4th Cir. 2008) (holding no deliberate elicitation where

jailhouse informant was told to personalize conversations to bring up matters of

common interest rather than elicit information about the case); Moore v. United

State, 178 F.3d 994, 1000 (8th Cir. 1999) (denying relief where there was no

proof of “any improper or surreptitious interrogation”); Lightbourne v. Dugger, 829

F.2d 1012, 1021 (11th Cir. 1987) (holding there was no deliberate elicitation

where informants “took no actions to stimulate the incriminating remarks”);

Wallace v. Price, 265 F. Supp. 2d 545, 569 (W.D. Pa. 2003) (holding no

deliberate elicitation where “[t]here [was] no evidence of instruction to obtain

information and no evidence that informant initiated the conversation” even

where the informant was placed in a cell near defendant and they had a prior

personal relationship); Pursell, 187 F. Supp. 2d at 338 (stating there was “nothing

in the record to establish deliberate elicitation”); People v. Williams, 940 P.2d

710, 744 (Cal. 1997) (concluding defendant was a mere “listening post” and that

while the defendant and the informant talked about their cases together “nothing

in the record suggests that [the informant] actively questioned defendant about

defendant’s case”); State v. Swinton, 847 A.2d 921, 966 (Conn. 2004) (stating

there is no “bright line test” to determine whether statements were deliberately
                                        46



elicited and the court must “scrutinize the record to determine whether the

exchanges . . . look like government interrogations”); State v. Fields, 908 P.2d

1211, 1217 (Idaho 1995) (affirming denial of motion to suppress where the

defendant “presented no evidence to establish that the informants asked any

questions or initiated any conversations about the murder”); State v. Johnson,

858 N.E.2d 1144, 1178 (Ohio 2006) (finding no deliberate elicitation where

informant and defendant were placed in same cell without government

involvement and defendant “volunteered” information); Sincock v. State, 76 P.3d

323, 333 (Wyo. 2003) (holding informant’s receipt of information was passive and

not deliberate elicitation).

       On de novo review, finding no proof that informant Carl Johnson

deliberately elicited statements from Marshall regarding Marshall’s murder of

Versypt, and finding overwhelming authority supporting the proposition that the

defendant’s Massiah claim fails in the absence of such proof, I conclude the

district court did not err in denying Marshall’s motion to suppress. Accordingly, I

respectfully dissent.
