Opinion
No. 2-19-0255
05-25-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID D. SEATON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). Appeal from the Circuit Court of Winnebago County. No. 15-CF-300 Honorable John S. Lowry, Judge, Presiding. JUSTICE BIRKETT delivered the judgment of the court.
Presiding Justice Bridges and Justice Zenoff concurred in the judgment.
ORDER
¶ 1 Held: The trial court properly denied defendant's sixth amendment claim that a jailhouse informant was a State agent when defendant made incriminating statements to the informant. There was no evidence that the informant acted with the State's encouragement in eliciting the statements from defendant. ¶ 2 Defendant, David D. Seaton, appeals from his conviction of one count of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 1998)) and three counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 1998)). He contends that his sixth amendment rights under the United States Constitution were violated when the trial court allowed the State to present trial testimony from Chad Dobbs, a jailhouse informant, who defendant contends was an agent of the State when defendant made incriminating statements to him. We reject defendant's claim and affirm his convictions.
¶ 3 I. BACKGROUND
¶ 4 A grand jury indicted defendant on the four counts of which he now stands convicted. Prior to trial, defendant moved to suppress testimony detailing certain inculpatory statements that he made to two jailhouse informants, Dobbs and Vincent Phillips. Arguing that the men had acted as agents of the State at a time when defendant was already represented by legal counsel, defendant contended that their proposed testimony would consequently violate his sixth amendment rights. The State specified that it would not call Phillips at trial; thus, only defendant's statements to Dobbs were at issue at the suppression hearing. ¶ 5 Dobbs testified that, in 2014, while in pretrial detention, he was placed in the medical pod of the Winnebago County jail. Because Dobbs had no medical issues at the time, he regarded his placement in the medical pod as "[p]rotective custody." Dobbs—who described himself as a "professional snitch"—agreed that he had previously acted as an informant for several law enforcement agencies, including the Winnebago County sheriff's department. However, Dobbs had never been incarcerated for more than a day and had not previously provided information about fellow inmates while in jail. When asked if his placement in the medical pod was because of "information previously given," Dobbs answered, "Yes, I wasn't really *** getting along too well with people in the jail at that time." Dobbs met Phillips when they were housed together in the medical pod and learned that Phillips had experience as a jailhouse informant. ¶ 6 Dobbs testified that, in March 2015, defendant was placed in the medical pod with Dobbs and Phillips. Dobbs knew of defendant prior to their detention together. Immediately upon seeing defendant, Dobbs planned to obtain information from defendant that could then be used as leverage to improve an existing plea deal that the State had previously offered him, which would have otherwise required him to accept a sentence of 15 years' imprisonment. Dobbs learned the particulars of the charges against defendant from the local television news and by asking his mother to further seek out publicly available information. On March 6, 2015, Dobbs phoned his mother. Dobbs acknowledged saying to his mother, "I am one of the best," that " 'they know that,' " and that " 'they put him—.' " When asked in court to explain what he meant by these statements, Dobbs initially answered, "God put [defendant] there to get me out of my jam." Upon further questioning, Dobbs claimed that, by "they," he meant no one in particular. Dobbs further testified that the State had never asked him to get information from defendant in exchange for a better plea deal. ¶ 7 Dobbs's attorney, Debra Schafer, testified that Dobbs was in pretrial detention on charges including "Armed Violence, Possession with Intent to Deliver Cocaine," "Unlawful Restraint," perhaps "Aggravated Battery," and possibly one or two more counts. On March 12, 2015, she learned in a phone call from Dobbs's mother that defendant "was confessing" to Dobbs. Schafer understood that Dobbs hoped to use defendant's statements in negotiations with the State. After receiving the call, Schafer spoke to the assistant state's attorney (ASA) responsible for defendant's case to ask whether the State had a confession from defendant and whether the State would be interested in information about defendant's inculpatory statements. She did not mention Dobbs or their relationship to one another to the ASA. The ASA indicated that the State was interested and Schafer responded that she would "be in touch." ¶ 8 Schafer knew that she "would have to reach out to the police officer involved" in order to proceed further. Schafer was unsure whether she had communicated to Dobbs that she had spoken to the ASA. She spoke to Dobbs by video link the next day, and Dobbs described defendant's statements to her. Schafer told him that providing the information to the State would likely help him. She clarified that she was referring to the past-tense. At some point during the month, she did "reach out" to Pete DalPra, the detective in charge of defendant's case. Schafer did not tell Dobbs to continue gathering information from defendant. ¶ 9 On April 14, 2015, Dobbs, Schafer, and DalPra met. DalPra's report of that meeting describes the details of defendant's confession, which included information that only defendant could have provided, such as the names of the two twin girl victims. Defendant also offered details as to other victims. Dobbs continued to provide information to the State after the meeting. For example, defendant gave two letters to Dobbs and asked him to give the letters to his attorney. The first letter was to K.S. and C.S. ¶ 10 On February 5, 2016, in conjunction with the formation of a proffer agreement with the State in which Dobbs would receive a sentence of five years' imprisonment, Dobbs participated in a video-recorded interview with DalPra. In this interview, Dobbs described the inculpatory statements that defendant made. ¶ 11 Following the hearing, the court denied the motion to suppress. It found that no one in law enforcement had instructed Dobbs to collect information on defendant, nor was Dobbs in a "symbiotic relationship" with law enforcement at the time he decided to start collecting information. Specifically, Dobbs collected information from defendant from March 2015 through July or August of 2015, but he and the State did not reach an agreement until February 5, 2016. In finding that Dobbs was not a government agent, the court provided that "Dobbs, on his own volition, reached out to the State." Moreover, "neither law enforcement nor the State created the situation likely to induce incriminating statements." ¶ 12 Dobbs testified at defendant's jury trial. He said that he had befriended defendant specifically to try to get information from him. When first befriending defendant, Dobbs only knew that his charges involved sex crimes. Defendant told Dobbs that he was charged with sexual assaults stemming from incidents involving twin sisters, K.S. and C.S. Defendant said that he would have the two play with his penis. He had K.S. perform oral sex on him. When C.S. was sitting next to him while he was driving, he had opened her pants and "play[ed]" with her vagina. He had also followed C.S. into the kitchen and kissed her with his tongue in her mouth. ¶ 13 Dobbs agreed that, before he made his agreement with the state, he was facing eight felony charges whose sentencing ranges were known to him. Those charges were:
(1) Armed violence, a Class X felony, with a sentencing range of 15 to 30 years;Under the agreement, the State dropped all the charges except those of possession with intent to deliver and aggravated battery. The State further agreed to recommend that Dobbs receive a sentence of five years' imprisonment. ¶ 14 The jury found defendant guilty on all four charged counts. Defendant filed a posttrial motion in which he contended, among other things, that the trial court erred in allowing Dobbs to testify. Prior to any hearing on defendant's posttrial motion, defendant filed a pro se motion alleging ineffective assistance of trial counsel. Following a Krankel hearing, the trial court appointed independent counsel to review defendant's claims of ineffective assistance. Independent counsel found that only one claim had merit, that trial counsel should have persuaded defendant to testify. The trial court rejected this argument, noting that defendant had been fully admonished and it was his choice not to testify, yet he voluntarily chose not to testify. The trial court discharged independent Krankel counsel, and with the defendant's approval, trial counsel continued to represent the defendant. The court denied defendant's motion and imposed a 16-year prison term for the predatory criminal sexual assault conviction and three consecutive 4-year prison terms for the aggravated criminal sexual abuse convictions. Defendant moved to reconsider the sentence, the court denied the motion, and defendant timely appealed.
(2) Possession of a controlled substance with intent to deliver, a Class 1 felony with a sentencing range of 4 to 30 years;
(3) Unlawful use of weapons by a felon, a Class 2 felony with a sentencing range of 3 to 14 years;
(4) Possession of cannabis plants, a Class 2 felony with a sentencing range of 3 to 14 years;
(5 & 6) Two counts of aggravated unlawful restraint, Class 3 felonies with a sentencing range of 2 to 10 years;
(7) Aggravated battery, a Class 3 felony with t a sentencing range of 2 to 10 years; and
(8) Possession of a controlled substance, a Class 4 felony with a sentencing range of 1 to 6 years.
Under the agreement, Dobbs also was required to testify in a separate murder case.
¶ 15 II. ANALYSIS
¶ 16 On appeal, defendant contends that "the State or police intentionally placed [Dobbs,] a jailhouse informant[,] in a cell with [defendant] to pull information out of him at a time when he was represented by counsel." He also states that "[t]he totality of the circumstances indicates that the State or police engaged in a duplicitous ploy to deny that Dobbs was working as their agent, which violated [defendant's] [s]ixth [a]mendment rights." He therefore contends that the court erred in admitting Dobbs's testimony. ¶ 17 The State responds by arguing that the cases defendant cites fail to establish that Dobbs was an agent of the State. It further notes that defendant has treated the admissibility of Dobbs's testimony as an all-or-nothing proposition. That is, defendant only argues that Dobbs was a State agent at the beginning of his relationship with defendant—not that Dobbs became an agent after meeting with DalPra, which would be a colorable argument under Randolph v. California, 380 F.3d 1133 (9th Cir. 2004). The State therefore contends that defendant has forfeited any argument under which Dobbs's testimony would be partially admissible. ¶ 18 We agree with the State on both points. Of course, as our summary of the evidence shows, the core problem with defendant's claim is that the only evidence that the State "engaged in a duplicitous ploy" is that the State was seemingly aware that Dobbs was a regular informant and nevertheless housed defendant with him. Such action does not alone amount to a "duplicitous ploy." However, defendant's arguments, as developed in full, go beyond the scope of the summaries we quoted. Defendant suggests that several cases can be read to essentially imply an agency relationship when the State knew or should have known that the informant is motivated to cooperate by the belief that he or she will receive consideration. Although we disagree with defendant's reading of the cases, he does present a legitimate argument that we must address.
A. Forfeiture of Any Argument that Dobbs, Although Initially Not a State Agent, Became
One in the Course of his Dealings with the State
¶ 19 Defendant argues that Dobbs was the State's agent from the outset of defendant's placement in the medical pod with Dobbs. As provided above, he does not argue in the alternative that an agency relationship formed when the State responded positively to Dobbs's approach. Again, the State asks us to explicitly deem that defendant has forfeited any such an argument. Although defendant has filed a reply brief, he has not responded to the State's point concerning forfeiture. We agree with the State that defendant has limited his argument to the claim that Dobbs was a State agent from his first contact in jail with defendant. Therefore, we will not address whether his agency started later and thus whether only part of his testimony should be excluded. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) ("Points not argued [in the appellant's brief] are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.").
¶ 20 B. The Overall Sixth Amendment Standard and the Standard of Review
¶ 21 The sixth amendment gives defendants the right to the assistance of counsel from the start of formal proceedings through trial. See Massiah v. United States, 377 U.S. 201, 205, (1964) (a defendant has as much of a right to counsel starting with arraignment as during trial). Once a defendant's sixth amendment right to counsel has attached, the State may not "deliberately elicit[]" inculpatory statements from the defendant. Massiah, 377 U.S. at 206. The sixth amendment imposes on the State an "affirmative obligation not to act in a manner that circumvents and thereby dilutes the protection afforded by the right to counsel." Maine v. Moulton, 474 U.S. 159, 171 (1985).
"[T]he 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. [Citation.] However, knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State's obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity. Accordingly, the Sixth Amendment is violated when the State obtains incriminating statements by knowingly circumventing the accused's right to have counsel present in a confrontation between the accused and a state agent." Moulton, 474 U.S. at 176.¶ 22 For example, in People v. Brown, the Fifth District sought to find whether the defendant's counsel was ineffective for failing to argue that the defendant's sixth amendment rights were violated when the State secured a jailhouse informant to procure incriminating statements from him. 358 Ill. App. 3d 580, 593 (2005). There, after the defendant was arrested for residential burglary and murder, the informant "gathered *** additional evidence of the defendant's guilt as an arm of the prosecution, at a time when the defendant was indicted, arraigned, and represented by counsel." Id. at 587. Specifically, "[t]wenty-five conversations between the defendant and [the informant], made by [the informant] at the prosecution's behest, were covertly overheard and tape-recorded." Id. Some of these tapes, which recorded various aspects of the defendant's plans to kill or threaten certain trial witnesses, were admitted into evidence at the defendant's trial. Id. Given the State's recruitment of the informant to record defendant's "self-incriminating words into a State-sponsored microphone attached to a dedicated line at the *** police department," the court found that the informant "had clearly joined the prosecution team when most, or all, of that evidence was collected." Id. For this reason, the court found that the informant's recordings were "gathered in violation of the defendant's sixth amendment right to counsel." Id. However, as we explain below, there is no evidence here that the State similarly recruited Dobbs to gather incriminating evidence from defendant when defendant was initially placed in the medical pod of the jail. ¶ 23 We review a ruling on a motion to suppress according to the following standards:
"[T]he trial court's findings of historical fact are reviewed only for clear error, giving due weight to any inferences drawn from those facts by the fact finder, and reversal is warranted only when those findings are against the manifest weight of the evidence. [Citation.] However, a reviewing court remains free to undertake its own assessment of the facts in relation to the issues and may draw its own conclusions when deciding what relief should be granted. [Citation.] A trial court's ultimate legal ruling as to whether suppression is
warranted is subject to de novo review. [Citation.]" People v. Hackett, 2012 IL 111781, ¶ 18.Defendant claims that the facts are not in dispute and that our review should be strictly de novo. We agree. ¶ 24 Defendant asks us to deem that the holdings in Randolph, State v. Marshall, 882 N.W. 2d 68 (Iowa 2016), and People v. Gibson, 109 Ill. App. 3d 316 (1982), all support his claim that Dobbs was acting as an agent of the State from the outset. We address each case in turn.
¶ 25 C. United States v. Henry
¶ 26 As all three of the cases we address here include comparisons to the facts and holding in Henry, we briefly summarize that case. In Henry, an informant, Nichols, who was in the same cellblock as the defendant, was instructed by law enforcement officers to pay attention to the defendant and take note of any incriminating statements he made. However, the officers also instructed Nichols to avoid actively questioning the defendant. But Nichols did not obey that latter instruction; he actively sought out a conversation with the defendant. Henry, 447 U.S. at 271. Nichols expected to receive payment for information that he provided, but that payment was contingent on his producing useful information. Henry, 447 U.S. at 270. ¶ 27 The Henry Court concluded that "this combination of circumstances" was sufficient to support suppression of the informant's testimony: "Even if the [law enforcement] agent's statement that he did not intend that [the informant] would take affirmative steps to secure incriminating information is accepted, [the agent] must have known that such propinquity likely would lead to that result." Henry, 447 U.S. at 271.
¶ 28 D. Randolph v. California and Defendant's Claim
¶ 29 Defendant suggests that, under the holding in Randolph, we should conclude that Dobbs was a State agent from the outset because the State knew or should have known that he expected consideration for his cooperation. In Randolph, a Ninth Circuit panel addressed the use of testimony from an informant on facts similar to those here, concluding "that if the State places a cooperating informant in a jail cell with a defendant whose right to counsel has attached, and if the informant then makes a successful effort to stimulate a conversation with the defendant about the crime charged, the State thereby violates the defendant's Sixth Amendment rights under Massiah." Randolph, 380 F.3d at 1138. But, as we discuss, Dobbs was not, at least at the outset, a "cooperating informant" in the sense meant by the Randolph court. ¶ 30 In Randolph, a state prisoner, Randolph, who was imprisoned for the murder of a ten-year-old boy, sought federal habeas corpus review of that conviction. Randolph's first trial ended in a hung jury. An informant, Moore, testified at Randolph's second trial, and that trial resulted in Randolph's conviction.
"Moore shared a jail cell with Randolph throughout most of Randolph's first trial and for several weeks after the judge declared a mistrial. Moore came to the attention of prosecutors when he gave them a letter asking for leniency and mentioning that he was Randolph's cellmate. Moore's defense attorney, as well as prosecutors, interpreted Moore's letter as an offer to testify against Randolph. Moore met with [the prosecution team, i.e., a deputy district attorney and a detective] several times to discuss his possible testimony against Randolph, as well as a plea deal relating to the crime for which Moore was being held. At some point, Moore told [the prosecution team] that Randolph had admitted to killing [the victim] and had said that he was due to receive a lot of money. Randolph, 380 F.3d at 1139.¶ 31 The Randolph court, considering the holdings of Massiah and its Supreme Court progeny, recognized that "to show that the state violated his [s]ixth [a]mendment rights by obtaining and using Moore's testimony," Randolph needed both to show "that Moore was acting as an agent of the State when he obtained the information from Randolph" and that "Moore made some effort to stimulate conversations about the crime charged." (Internal quotation marks omitted.) Randolph, 380 F.3d at 1144. However, crucially, because the State had no part in eliciting any statements that Randolph made to Moore before the prosecution team met with Moore, the Randolph court concluded that any premeeting statements by Randolph to Moore could not form the basis of a Massiah violation. Randolph, 380 F.3d at 1144. ¶ 32 However, after Moore met with the prosecution team, he was rendered a State agent:
"After Moore met with [the prosecution team], he was returned to the cell he shared with Randolph. Unlike in Henry, there was no explicit deal under which Moore was promised compensation in exchange for his testimony. For purposes of our holding, we accept as true the State's contention that Moore was told not to expect a deal in exchange for his testimony. However, Henry makes clear that it is not the government's intent or overt acts that are important; rather, it is the 'likely [ ] result' of the government's acts. Henry, 447 U.S. at 271. It is clear that Moore hoped to receive leniency and that, acting on that hope, he cooperated with the State. [The prosecution team] either knew or should have known that Moore hoped that he would be given leniency if he provided useful testimony against Randolph. (Indeed, that is precisely what happened. After providing useful testimony against Randolph, Moore received a sentence of probation instead of a prison term.)" Randolph, 380 F.3d at 1144.¶ 33 The Randolph court did not base its agency analysis on any express agreement for compensation, but rather on the existence of a relationship between the State and the informant:
"In the circumstances of this case, we hold that an explicit agreement to compensate Moore is not necessary to a finding that Moore acted as an agent of the State. There is sufficient undisputed evidence to show that the State made a conscious decision to obtain Moore's cooperation and that Moore consciously decided to provide that cooperation. That cooperation rendered Moore an agent of the State. We recognize that agreed-upon compensation is often relevant evidence in determining whether an informant is acting as an agent of the State. But it is the relationship between the informant and the State, not the compensation the informant receives, that is the central and determinative issue." Randolph, 380 F.3d at 1144.¶ 34 The Randolph court thus treated Moore as merely working on speculation—an "entrepreneur" in Marshall's terms (Marshall, 882 N.W. 2d at 91)—until he met with the prosecution team and received encouragement, becoming then a State agent. ¶ 35 In applying Randolph, we again emphasize that defendant has forfeited any argument that Dobbs, if not a State agent from the outset, became one later. Thus, for Randolph to support defendant's position here, Dobbs's role, from the outset, would have to be similar to that of Moore after Moore met with the prosecution team. The facts here do not support such a comparison as there was no evidence of a relationship between Dobbs and law enforcement when Dobbs first began eliciting information from defendant. Defendant, however, reads Randolph to hold that an agency relationship exists if the State knew or should have known that the informant expected that he or she would be compensated for providing useful testimony. Defendant misconstrues the case. The Randolph court held that Randolph had met his burden to demonstrate that Moore was a State agent because there was "sufficient *** evidence to show that the State made a conscious decision to obtain Moore's cooperation and that Moore consciously decided to provide that cooperation." Randolph, 380 F.3d at 1144. The Randolph court determined that, based on this mutual understanding that Moore would cooperate, the prosecution team "knew or should have known" that Moore was thereafter acting on the expectation of compensation. Randolph, 380 F.3d at 1144. ¶ 36 Here, by contrast, there was no evidence of a "conscious" offer and acceptance of cooperation. Dobbs gave unrebutted testimony that he was placed in the medical pod because his history as an informant made him a target for retaliation. Even if we can assume that the State knew that Dobbs might have a propensity to act as an informant, this does not permit an inference that the State, by placing defendant in the medical pod, had the conscious intention of seeking Dobbs's cooperation. Moreover, while there is no way to wholly rule out the possibility that someone hoped that housing defendant with Dobbs would yield information, it defies credulity to suggest that the State knew or should have known that Dobbs might take a mere cell block assignment as an offer of compensation.
¶ 37 E. State v. Marshall
¶ 38 We now turn to Marshall, a case in which the Iowa Supreme Court conducted a near-encyclopedic examination of the authority relating to informants and the sixth amendment. At issue was the admission of the testimony of three informants (Carl Johnson, Earl Freeman, and Antonio Martin), each of whom had a different relationship with the State. Marshall, 882 N.W. 2d at 100-02. Two aspects of the decision are relevant to defendant's arguments. First, the Marshall court rejected the idea that any simple formula exists for determining whether a witness is a State agent:
"No talismanic test, mechanical checklist, or mathematical formula exists for determining whether an informant is an agent for Massiah purposes. Instead, a court must determine—under all the facts and circumstances—whether the relationship between the state and an informant is such that the state has violated its affirmative duty under Moulton to protect the Sixth Amendment rights of defendants." Marshall, 882 N.W. 2d at 95.Second, the Marshall court embraced the proposition that an informant's agency can be either express or implied, recognizing that in doing so, it was going against some existing authority. Marshall, 882 N.W.2d at 91-92. According to the Marshall court, an informant need not have an explicit agreement to provide evidence in exchange for sentencing concessions; even "somewhat vague agreements with informants" will "predictably lead to interference with the right to counsel" and thus violate the State's affirmative duty under Moulton to avoid such interference. Marshall, 882 N.W. 2d at 92. ¶ 39 Although the Marshall court was prepared to recognize that relatively slight state involvement can make an informant an agent of the State, it nevertheless recognized that some informants are not State agents, but rather "jailhouse 'entrepreneurs' who seek to improve their prospects by offering information to the state in the 'jailhouse marketplace' of informant testimony." Marshall, 882 N.W. 2d at 91. ¶ 40 Informant Freeman was just such an entrepreneur. Freeman wrote two letters to detectives investigating the defendant's case. The letters stated that Freeman was in the same cellblock as the defendant, that Freeman could bolster information the police had received about the defendant, and that, if the defendant continued to be kept in the same cellblock, " 'we could get a lot more information.' " Marshall, 882 N.W. 2d at 73. One of Freeman's letters also asked the detectives to advise the federal prosecutors handling a drug case against Freeman that he had been of assistance in the defendant's case. Marshall, 882 N.W. 2d at 73. But, according to Freeman, no cooperation agreement existed between him and the federal prosecutors. Marshall, 882 N.W. 2d at 77. A detective met with Freeman to discuss what he had learned about the defendant's case. Marshall, 882 N.W. 2d at 75. The detective testified that he did not ask Freeman to take further investigative steps but did ask Freeman to "contact [him] if there was additional information [Freeman] wished to relay." Marshall, 882 N.W. 2d at 75. The detective further testified that "he did nothing to put Martin or Freeman 'in the same vicinity' " as the defendant. Marshall, 882 N.W. 2d at 75. On these facts, the defendant had failed to establish an agency relationship between the State and Freeman:
"The record indicates that Freeman may have hoped to receive a benefit as a result from his testimony, but there is no evidence of a proffer agreement or any kind of meaningful relationship between Freeman and the State. [Citations.] Freeman was the classic entrepreneur, seeking to market his information without any advance arrangement. We reach this result as to Freeman even though he clearly deliberately elicited incriminating statements from [the defendant]." Marshall, 882 N.W. 2d at 101.¶ 41 Defendant contends that the critical passage in Marshall is its statement that "[w]hether a sufficient relationship exists between an informant and the state should not turn on formalistic analysis but on the more general proposition of whether an informant is seeking to provide information to the state in return for some kind of consideration." Marshall, 882 N.W. 2d at 100. He urges us to treat that as the standard for an informant's agency and to apply that standard here. But, because that passage is taken out of context, we decline defendant's offer. ¶ 42 The Marshall court held that Johnson was a State agent because the State had encouraged him to watch the defendant and because it suggested to him that consideration was likely. Before the defendant in Marshall was arrested, a detective told Johnson that the authorities were seeking information about three suspects, including the defendant. Marshall, 882 N.W. 2d at 73. At a later meeting, a detective "made no promises regarding what Johnson would receive in exchange for the information, but Johnson was aware or was made aware that the United States Attorney would be advised of any information provided." Marshall, 882 N.W. 2d at 74. Johnson's "incentives *** were [thus] sufficiently substantial that the State should know that there was a likelihood that [he] would cross the line into deliberate elicitation." Marshall, 882 N.W. 2d at 100. To conclude otherwise would "promote a 'wink and a nod' loophole" to the rule against deliberate use of informants to seek information from a represented defendant. Marshall, 882 N.W. 2d at 100. ¶ 43 If one compares the Marshall court's holding concerning Johnson with its holding concerning Freeman, it is clear that the court did not mean to suggest that an informant should be deemed an agent of the State merely because he or she hoped to gain consideration. Freeman, the "entrepreneur," clearly hoped for consideration. Johnson had two things that Freeman did not; an explicit request for information and a strong suggestion from the State indicating that consideration was available. Of the two informants in Marshall, Dobbs is most like Freeman. Dobbs may have thought that defendant's placement in his cell was a "wink"—an indication that the State was seeking his aid as an informant—but, for the reasons discussed above, there was no evidence to support that position. And Dobbs certainly did not have a direct request for information when defendant started "confessing" to him. Thus, Marshall does not support defendant's claim that Dobbs was the State's agent from the outset.
¶ 44 F. People v. Gibson
¶ 45 Finally, we consider Gibson, the facts of which defendant contends "are nearly identical to those presented here," making the case "most instructive." We conclude that Gibson is similar only if one assumes facts that we have already demonstrated do not exist here. ¶ 46 In Gibson, law enforcement officers placed an informant, Shaw, in a cell with Gibson, a murder suspect, and told Shaw to passively gather information. Gibson, 109 Ill. App. 3d at 322-23. But Shaw failed to act merely as a passive listener; he asked Gibson questions seeking to clarify Gibson's statements about the victim's death. Gibson, 109 Ill. App. 3d at 324. Unlike Nichols, Shaw did not receive compensation in exchange for his testimony, although he was compensated for his travel expenses. Gibson, 109 Ill. App. 3d at 323. However, Shaw "admitted that he was not testifying against [Gibson] 'out of the goodness of [his] heart,' " and he agreed that he had been "compensated for his services as an informer in the past." Gibson, 109 Ill. App. 3d at 324. The Gibson court deemed the facts to be "virtually indistinguishable" from those of Henry and held that the trial court had erred in admitting the informant's testimony. Gibson, 109 Ill. App. 3d at 323-24. ¶ 47 Any close resemblance between the facts of this case and those in Gibson rests on defendant's claim that the State deliberately housed defendant with Dobbs so that Dobbs could gather information from defendant. But, as we have said, that claim is unsupported by the evidence. ¶ 48 Defendant nevertheless argues in reply that, although the facts in Gibson are "not identical" to those here, "the underlying reasoning *** still supports [defendant's] argument." First, he points out that Shaw, like Dobbs, did not at the relevant time have a promise of consideration. We agree that Gibson stands for the proposition that a person can be a State agent without having been promised consideration, but that proposition hardly exhausts Gibson's analysis concerning the formation of a State agent. Defendant also points out that the Gibson court, quoting Henry, "emphasized that the issue with placing [a] defendant in the same cell with a known informant centered on the 'powerful psychiatric incentive to reach for aid while in confinement,' and not whether the informant had been promised or received compensation for his services." But this seems to argue that an inmate who is a "known informant," becomes a State agent by simply virtue of being housed with other inmates. This theory underlines several of the defendant's arguments but defendant provides no authority that supports such a broad proposition. Every case defendant cites, Gibson included, is consistent with the proposition that even a known informant—a "professional snitch"—must receive some State encouragement to transform him or her from an entrepreneur into an agent of the State. Here, Dobbs received no such encouragement at the relevant time.
¶ 49 III. CONCLUSION
¶ 50 For the reasons, stated we affirm the denial of the motion to exclude Dobbs's testimony, and we thus affirm defendant's ensuing convictions. ¶ 51 Affirmed.