Holyfield v. State

¶1concurring:

¶2While I fully concur in and endorse the opinion of the court, I add these observations in support of it.

¶3As the dissent notes, an important policy underlying the fifth amendment’s proscription against the use of compelled testimony is the prevention of extorted admissions of guilt. However, a paramount concern is also the need to insure that purported admissions have actually been made as reported. Miranda v. Arizona, 384 U.S. 436, 470 (1966). This concern is especially great where the state seeks to rest upon the uncorroborated testimony of a twice-convicted felon with a self-serving motive to produce inculpatory information. Accordingly, while the suggestion has been made that the majority’s statement of the issue presented here is “rhetorical and excessively judgmental,” I respectfully suggest that the dissent’s alternative statement of the issue is misdirected. I believe an examination of the cases relied upon by the dissent will make this quite clear.

¶41. Rhode Island v. Innis, 446 U.S. 291 (1980), is cited for the proposition that, for purposes of Miranda, the definition of “interrogation” focuses solely upon the “perceptions of the suspect.” Absent from this analysis is a discussion of footnote 7 of the Innisopinion wherein the Supreme Court made it clear that the intent of the police is relevant in determining whether a suspect has been “interrogated” for purposes of Miranda:

This is not to say that the intent of the police is irrelevant, for it may well have a bearing on whether the police should have known that their words or actions were reasonably likely to evoke an incriminating response. In particular, where a police practice is designed to elicit an. incriminating response from the accused, it is unlikely that the practice will *807not also be one which the police should have known was reasonably likely to have that effect.

¶5Id.at 301-02 n. 7.

¶6In the present case, it is clear that the police expected Jacobs to elicit, or claim to have elicited, admissions from Holyfield. The dissent concedes as much by noting that, under these circumstances, “Holyfield yielded his admissions [or Jacobs fabricated them] to an orchestrated deception by the State.” It seems, then, somewhat contradictory to conclude also that the police did not expect “that the jail cell scenario would produce incriminating statements by Holyfield.”

¶72. In People v. Wojtkowski, 213 Cal.Rptr. 846 (Ct.App. 1985), a husband savagely beat, raped, and sodomized his wife in California and then fled to Illinois. California police placed a recorder on the wife’s telephone, not merely to obtain admissions, but for the purpose of apprehending the husband and of protecting the wife and children. While still a fugitive from justice, the husband telephoned the wife three times in an attempt to persuade her not to testify against him. He called her again, after being apprehended and being placed in the Ventura County Jail. At the time of the last call, the recorder had not yet been removed from the wife’s phone. The trial court admitted all four recordings against the husband during his prosecution, and the California Court of Appeal upheld their admission in part because neither a police agent nor interrogation was involved. The wife, the court noted, was not a police agent but a victim and the complaining witness. The husband in all instances initiated the conversations, and made his admissions during them, without instigation by the wife or contrivance by the police. Obviously, therefore, the operative facts of the Wojtkowskicase are totally dissimilar from those in the instant one. (In addition, I note in passing that, in view of the recordings, there was absolutely no doubt that the admissions had been made.)

¶83. Similarly, in People v. Aalbu, 696 P.2d 796 (Colo. 1985), the first contact between the defendant and the informant was initiated by the defendant and not the police. The defendant, while incarcerated, as a condition of probation on a recent drug conviction, met with the informant (James Ross, who had served as a police informant on prior occasions) and engaged in converstations concerning the defendant’s plan to kill Mark Olson who along with defendant had been convicted of violation of drug laws. Ross then reported these conversations to the police. Ross agreed to participate in further discussions in exchange for money payments and favorable consideration on criminal matters pending against himself. As part of their investigation, the police arranged for the informant’s release from jail and recorded tele*808phone calls initiated by the defendant to the informant so the defendant’s murder scheme could be thwarted before he could bring it to fruition. The defendant unsuccessfully sought to suppress the taped telephone conversations. Relying upon Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136 (1984), the Colorado court held that no fifth amendment violation had occurred. The defendant in Aalbuwas not under suspicion for commission of a crime, he initiated the conversations with the informant, the conversations were recorded, and there was no doubt that they occurred or that the admissions had been made. The State was not relying solely upon the testimony of a felon, but upon recordings of the defendant’s conversations.

¶94. In Minnesota v. Murphy, supra, relied upon in Aalbu, the defendant made incriminating admissions during a regularly scheduled meeting with his probation officer. The Court rejected the defendant’s fifth amendment challenge to the use of those admissions in his subsequent prosecution. The Court concluded that the defendant had not been subjected to custodial interrogation for purposes of Mirandawhen he made the incriminating statements, because he was not in custody. 465 U.S......., 104 S.Ct. at 1144-46.

¶105. People v. Konke, 268 N.W.2d 42 (Mich.App. 1978), involved the admission of conversations had between a suspect and an undercover police agent equipped with a recording device. The conversations transpired in a public place; the defendant was not in custody. Because there was no custodial interrogation, the Michigan Court of Appeal properly held that no Mirandawarnings were required.

¶116. Milton v. Wainwright, 407 U.S. 317 (1972), was decided on a harmless error standard. A majority of the court expressly refused to reach the question of whether the defendant’s rights under the fifth and sixth amendments had been violated when an undercover police officer was placed in his cell. Four justices, dissenting, concluded that the State could not place an undercover police agent in a prisoner’s cell in the hope of eliciting a confession. Accordingly, Milton has little relevance to the fifth amendment issue before this court. If it supports anyone, it supports this court’s majority.

¶127. United States v. Leon, 104 S.Ct. 3405 (1984), represents the Supreme Court’s unwillingness to require an exaggerated response to technical and unintended police violations. Such violations are not involved here. Instead, we are presented with activity on the part of the police that was designed to frustrate the rights guaranteed by Miranda. The other cases cited in connection with Leoninvolve circumstances unrelated to the issue presented in this case.

¶13*8098. It has been suggested that this is simply a case of one friend (Holyfield) misplacing trust in another (Jacobs). As the majority note, however, “this is not a case of the police obtaining information through the misplaced confidence of Holyfield because Jacobs was working directly as a police agent.” The dissent overlooks the decision in United States v. Brown, 466 F.2d 493 (10th Cir. 1972). This case clearly holds that it would be improper to place an undercover policeman in a prisoner’s cell in the hope of eliciting inculpatory statements. When the police resort to tactics of this sort, they trick a defendant into relinquishing important consitutional protections. If the use of an undercover policeman is proscribed by the fifth amendment, certainly the use of a police agent with a self-serving motive to produce is likewise prohibited.

¶149. Finally, I note that cases based on sixth amendment analysis have little relevance to the fifth amendment issue presently before the court. Consequently, the majority has scrupulously refrained from relying on the vast body of case law holding that the police may not place an informant in an accused’s cell, to elicit incriminating information from the accused about the charge for which he is incarcerated, without violating his sixth amendment right to counsel. See, e.g., State v. McCorgary, 543 P.2d 952, 958 (Kan. 1975); State v. Smith, 482 P.2d 863 (Ariz. 1971); cf. Massiah v. United States, 377 U.S. 201 (1964). Reference to these cases obscures the real issue before the court.

¶15Although I share the dissent’s belief that the truth-finding function is the rightful province of the jury, it is no answer to the problem posed by Jacobs’ lack of credibility to assert that the jury is equipped to find facts and to assess the credibility of witnesses. The law requires the state to prove the elements of a crime without resorting to the simple expedient of compelling a confession from the accused. A major reason for this requirement is the inherent unreliability of a compelled confession and the possibility that a jury will be unfairly prejudiced by an apparent admission of guilt. These concerns are heightened when the state relies on the uncorroborated testimony of a self-interested informant, especially when the testimony is controverted by the alleged confessor. The possibility of false testimony increases dramatically when the state undertakes to place a convicted felon in a jail cell with an accused for the express purpose of eliciting an incriminating statement. In this case, Jacobs’ testimony was so inherently unreliable that, in my opinion, it should not have been placed before the jury.

¶16*810I respectfully dissent from the majority’s reversal of appellant Holyfield’s conviction but concur in the affirmance of appellant Townsell’s judgment of conviction.

¶17The majority describe the central issue on appeal in terms of whether police officers may “subvert” a suspect’s federal and Nevada constitutional rights under the Fifth Amendment and article 1, section 8, respectively. The issue, thus framed, is both rhetorical and excessively judgmental. It beckons an answer that is unmoored to the facts and the law applicable to this case. It is true, of course, that no group, individual or entity may lawfully “subvert” any aspect of our fundamental law. But the real issue here is whether law enforcement authorities may lawfully use non-professional jail cell informants to obtain inculpatory information from a suspect regarding an uncharged crime.

¶18A meaningful resolution of the issue presented by this case demands analysis of the policy interests underlying the issue. This leads to the seminal case of Miranda v. Arizona, 384 U.S. 436 (1966). The Mirandacourt specified the concerns of the opinion as “the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.” I suggest that the operative words of the quoted material are “subjected to” and “compelled.” Indeed, this is demonstrated by the Court’s description of the circumstances common to each of the admissions secured by police interrogators in the four cases decided in Miranda: “incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.” The Court also observed the history of extortive police methods based upon physical or mental intimidation, or both, conducted incommunicado for the express purpose of securing confessions of guilt. In short, the Court recognized, as do I, that the Fifth Amendment right against compelled self-incrimination would be shorn of meaning if a suspect could be lawfully subjected to physical or mental intimidation calculated to break the exercise of free will. Manifestly, if such overbearing methods of law enforcement were judicially condoned, the tragic prospect of convicting innocent persons would be greatly increased. Thus, the policy underlying Mirandais identical to that of the Fifth Amendment and its counterpart in the Nevada Constitution, viz, to prevent extorted admissions of guilt from innocent suspects.

¶19Since the majority have concluded that Holyfield was the victim of custodial interrogation without first being advised of his Mirandarights, it is important to consider the meaning of “custodial interrogation” as defined by the United States Supreme *811Court. In Miranda, the Court explained: “[b]y custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444. The Court’s concern in Miranda, as we recognized in Schaumberg v. State, 83 Nev. 372, 374, 432 P.2d 500, 501 (1967), focused on the compulsion which can be created by “the interplay of interrogation and custody.” Rhode Island v. Innis, 446 U.S. 291, 299 (1980) (emphasis added).1 Self-incriminating statements which are not the result of such compulsion are admissible despite the lack of Mirandawarnings. As the Court in Mirandanoted:

Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.

¶20384 U.S. at 478 (footnote omitted).

¶21The compulsion, moreover, must exceed that which the prisoner naturally feels as a result of being in jail. Custody and interrogation are each prerequisites to the necessity of Mirandawarnings. The court in Innisproclaimed:

It is clear therefore that the special procedural safeguards outlined in Mirandaare required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. “Interrogation,” as conceptualized in the Mirandaopinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.

¶22446 U.S. at 300 (emphasis added and footnote omitted.) The Supreme Court went on to expound the meaning of “interrogation” under Miranda, explaining:

[T]he Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its *812junctional equivalent. That is to say, the term “interrogation” under Mirandarefers not only to express questioning, but also to any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. The latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police.

¶23Id. at 300-01 (emphasis added and footnotes omitted).

¶24As previously stated, the critical issue before us has to do with the constitutional propriety of enlisting the aid of an informant in a jail cell environment to obtain incriminating information from a suspect. The majority refer at length to a colloquy between the prosecutor and a member of this Court as if to reveal startling admissions of culpability on the part of the state in placing an informant in a jail cell for the purpose of obtaining information from the defendant concerning his criminal activities. Absent is the incommunicado interrogation in a police-dominated atmosphere; absent is the aspect of intimidation, physical or mental; absent is the compulsion to speak or associate; absent is the authority figure through which a form of intimidation may be accomplished; absent is a process calculated to break down the exercise of free will. Present is the feigned appearance of friendship or common plight inducing hoped-for admissions by the defendant who spoke freely, voluntarily and without compulsion, intimidation or stressful setting. Under conditions thus described, I see no encroachment on the dictates or policy concerns of Miranda. Where my brethern see constitutional barriers, I see effective, resourceful and lawful police work.

¶25In the recent, unanimous opinion of the Colorado Supreme Court, sitting en banc, People v. Aalbu, 696 P.2d 796 (1985), the people prevailed under conditions far more offensive to my brethren in the majority than those found in the instant case. In Aalbu, the defendant was convicted of criminal solicitation to commit first degree murder. The evidence against the defendant consisted primarily of conversations between the defendant and a cellmate, James Ross, a police informant with an incentive to produce. Ross agreed to engage the defendant in conversation that was expected to be incriminating in exchange for money and favorable consideration on criminal charges pending against him. Citing Minnesota v. Murphy, 104 S.Ct. 1136 (1984), the Colorado Supreme Court held that “the privilege against self-incrimination protects against governmental compulsion to answer questions, not against voluntary conversation. In situations where a person is free to speak or not to speak at all [as was the case here], the privilege is generally not applicable.” The court then adverted to *813the exception involving “inherently coercive custodial interrogations” covered by Mirandaand noted that the Mirandasafeguards have no application outside the context of such interrogations. Minnesota v. Murphy, 104 S.Ct. 1144, quoting Roberts v. United States, 445 U.S. 552, 560 (1980). Moreover, the Colorado court concluded that the admission of the defendant’s statements to the informant did not violate Aalbu’s Sixth Amendment right to counsel. Observing that Aalbu’s incarceration was the result of sentencing under an unrelated crime, and that no charges were pending against the defendant for criminal solicitation when the informant was dispatched to gather inculpatory statements, the court held that no right to counsel existed in connection with the latter offense that could have been violated by the informant’s conduct.

¶26State v. McDonald, 387 So.2d 1116 (La. 1980), cert. denied, 449 U.S. 957 (1980), represents a case where a police informant was placed in a jail cell with an inmate suspected of criminal homicide. The informant, who was a friend of the suspect, cooperated in obtaining incriminating admissions from the suspect in exchange for the dismissal of charges against him. On appeal from a conviction of first-degree murder, the defendant claimed the trial court erred in admitting his inculpatory statements to the informant, a police agent, who assertedly violated his Fifth Amendment right against self-incrimination by failing to give him a Mirandawarning. Noting that the informant’s questions were not posed by a figure of authority and that the atmosphere was free of intimidation, the court concluded that the defendant’s admissions were not the result of a custodial interrogation requiring Mirandawarnings. The court also observed that: “[t]he case presented here is that of one friend misplacing confidential information with another who, in turn, used it to his own advantage. The misplacement of such confidence did not require the safeguards required by Mirandain custodial interrogation.” The McDonaldcourt also dispensed with the Sixth Amendment issue by holding that a person’s right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated.” At the time of his inculpatory statements to the informant, the defendant had not yet been indicted; his incarceration was attributable to an unrelated matter.

¶27In People v. Wojtkowski, 213 Cal.Rptr 846 (1985), the defendant placed a call from county jail to his wife who was the victim of his criminal assaults. The police had the victim record the conversation unbeknown to the defendant. In refusing to suppress the recorded admissions, the court held, inter alia, that:

Defendant’s argument also fails because courts have agreed that questioning by a police agent does not involve “interrogation” as long as the defendant is unaware of the agent’s *814relationship with the government. (Ringel, William. “Search and Seizure, Arrests and Confessions” (1984) p. 27-37). The premise for these decisions is that the interplay of interrogation and custody would “subjugate the individual to the will of his examiner.” (Rhode Island [v. Innis], 446 U.S. 291, 299, 100 S.Ct. 1682, 1688, 64 L.Ed.2d 297). If an individual is unaware of government involvement, he cannot reasonably be thought to experience pressure or coercion.

¶28Turning again to the case before us, police officials gained the cooperation of Obbie Jacobs in engaging Holyfield in conversation in the jail cell. Holyfield was incarcerated after an arrest for an unrelated robbery, and law enforcement authorities hoped that Holyfield would speak to Jacobs about the crime for which he was being held and also about the credit union robbery that he was suspected of committing. Jacobs testified that the police gave him no details regarding any robbery, no directions, and no specific questions to ask Holyfield. Jacobs was informed that Holyfield was in custody for one robbery, but was not told that he was under suspicion for another.

¶29The detective who “planted” Jacobs in Holyfield’s cell also testified that he gave Jacobs no details concerning any robbery. He told Jacobs to be an “ear” for the police concerning any criminal activity, as well as the whereabouts of some recently stolen dynamite. Jacobs was told not to instigate any discussion or to question the prisoner. He was then placed in the dormitory cell containing Holyfield and twelve other prisoners. One prisoner, Roy Joshua, testified that Jacobs asked Holyfield and other prisoners questions and that he overheard Jacobs and Holyfield discuss the cinema robbery, but not the credit union robbery. Jacobs, however, testified that Joshua was not present during his conversation with Holyfield and that Joshua’s bed was on the opposite side of the room.2

¶30The majority view the composite of Holyfield’s custody on an unrelated charge and Jacobs’ presence as a police agent as the equivalent of custodial interrogation mandating Mirandawarnings. In seeking to buttress this conclusion, the majority cite Rhode Island v. Innis, supra, and then indulge in characterizing and weighing the evidence as if this were an appellate court prerogative. First, the majority assign footnote priority to the most significant aspect of the Innisholding upon which they seek to rely. In analyzing the “functional equivalent” of “interrogation” as defined by Miranda, the Inniscourt specified that the functional equivalent to “interrogation” that police should *815understand would likely produce an incriminating response from a suspect refers to the perceptions of the suspect rather than the intent of the police. This, of course, simply reemphasizes the element of coercion that must coexist with custody in order to violate a suspect’s Fifth Amendment rights. As noted by Professor Kamisar, “if it is not ‘custodial police interrogation’ in the eye of the beholder, then it is not such interrogation within the meaning of Miranda.” See footnote 3, infra. Thus, the court covered coercive police practices that could not be characterized as interrogation but would, by design, have the same effect. A hypothetical example of such conduct might be the placement of a suspect in an isolated cell within sight of an enlarged, grotesque photograph of a murder victim. The combination of time, isolation and photograph could reasonably be viewed as a police practice constituting the functional equivalent of custodial interrogation; a practice that the police may view as being reasonably likely to eventually elicit an incriminating statement resulting from a breakdown of the suspect’s free will.

¶31The majority overlook the requirement, under both Mirandaand Innis, that a suspect in custody be “subject to” express interrogation or its functional equivalent. This aspect of interrogation relates to the captive attention a suspect must give to the questions or actions of his captors. A suspect such as Holyfield who was free to walk away from questions or any “functional equivalent” thereof, is hardly “subject to” interrogation. Moreover, subjecting a suspect to custodial police interrogation implicates an aspect of unrelenting verbal assault designed to break the suspect’s will. Thus, the Court in Minnesota v. Murphy, supra, declared that “the coercion inherent in custodial interrogation derives in large measure from an interrogator’s insinuations that the interrogation will continue until a confession is obtained.” 104 S.Ct. at 1145. Again, this major source of inherent coercion was entirely absent in the informal discussions between Holyfield and Jacobs.

¶32Moreover, in focusing on “the perceptions of the suspect,” it is simply free of doubt that Holyfield’s admissions were voluntary and untainted by any coercive element. Holyfield freely conversed with Jacobs as a fellow inmate in the unintimidating environment of a dormitory cell with twelve other prisoners. Holyfield’s agency remained uncompromised by Jacobs’ presence since the latter presented no figure of authority3 and Holyfield *816was free to tolerate Jacobs’ conversation and association or not as he pleased. Jacobs was neither trained nor prepared to provide a psychological priming for a Holyfield response; consequently, Holyfield was not subject to any psychologically coercive police practices such as those that aroused the ire of the Mirandamajority.4 Jacobs was simply interjected in the Holyfield environment as an equal to absorb whatever Holyfield was willing to give him. Under such circumstances, I do not perceive the evil deprecated by Mirandaand Innis. It is, of course, apparent that Holyfield yielded his admissions to an orchestrated deception by the State. Jacobs, clothed as a friend, functioned as a police agent. But in doing so, Jacobs did nothing more than take advantage of Holyfield’s willing but unwitting inclination to reveal the details of his criminal enterprise to one he perceived as a friend. There was no scheme, artifice or conduct designed to pry from Holyfield’s mind that which he was not wont to share freely with a fellow prisoner. Under such circumstances, I cannot conclude that the police should have reasonably expected that the jail cell scenario would produce incriminating statements by Holyfield.

¶33Although I do not consider the point relevant, it is true that a fellow inmate, Joshua, who shared the cell with Holyfield, testified that Jacobs questioned Holyfield. Jacobs, on the other hand, testified that Joshua was never in a position where he could overhear any conversation between Holyfield and Jacobs. Jacobs was not asked whether he directed questions to Holyfield, but, as noted previously, he was instructed not to do so by the detective who placed him in the cell with Holyfield.5 Furthermore, Joshua *817also stated that he warned Holyfield not to confide in Jacobs as he was suspicious of the purpose for which Jacobs was placed in the cell. Giving credence to Joshua’s testimony, it is nevertheless clear that any express questioning of Holyfield by Jacobs was not of the objectionable variety referred to in Innis. The type of interrogation considered by Innisto be within the pale of Miranda, whether in the form of express questioning or its functional equivalent, must contain an element of compulsion beyond that which is intrinsic to incarceration. 446 U.S. at 300; see also United States v. Booth, 669 F.2d 1231, 1237 (9th Cir.1981).

¶34It is also apparent that the State is not doing indirectly what it may not do directly. When the police planted Jacobs in Holy-field’s cell, concealing the fact that Jacobs was a police agent, they were not performing an interrogation at all. Rather they were relying on Holyfield’s misplaced confidence that Jacobs would not reveal his admissions of wrongdoing. The privilege against self-incrimination is not violated when a suspect unwittingly incriminates himself in the presence of a “friend” who is actually an informant.6See People v. Konke, 268 N.W.2d 42 (Mich. 1978); State v. McDonald, supra, People v. Aalbu, supra.

¶35The Fifth Amendment right not to incriminate oneself is one of the fundamental values of our society. I therefore strongly share judicial concerns about human contrivances that may be employed to extract admissions of guilt contrary to the free will of the suspect. However, the Fifth Amendment was designed as a shield, not a sword. There are simply no social values to be *818served by judicially excising the key element of compulsion from the Fifth Amendment guaranty against compelled self-incrimination. Indeed, in the face of public exasperation with criminal trends, the U.S. Supreme Court has, in several instances, contracted the panoply of armamentaria accorded criminal defendants. As recent examples: United States v. Leon, 104 S.Ct. 3405 (1984), substantially eroded the Court derived exclusionary rule by engrafting an exception based upon an objectively reasonable reliance by police on a subsequently invalidated search warrant; Minnesota v. Murphy, supra, validated a confession of rape and murder to a probation officer in spite of requirement that a probationer be truthful “in all things” with probation officer and in spite of an anticipation of the confession by the probation officer who did not give the confessant his Mirandarights; Pully v. Harris, 465 U.S. 37 (1983), declared that proportionality review was not constitutionally required in capital cases; and Oregon v. Elstad, 105 S.Ct. 1285 (1985), held that the Fifth Amendment does not require the suppression of a properly obtained confession that followed an earlier admission secured by police without Mirandawarnings. In short, it appears that concerns over issues of innocence and guilt are beginning to make sensible inroads among what many jurists have viewed as exaggerated judicial responses to instances of police abuse, both real and theoretical. I therefore view with some measure of concern this Court fashioning a rule that effectively eliminates a major investigative tool that should remain part of the law enforcement arsenal.7

¶36*819Although confined, Holyfield’s admissions to Jacobs were the product of his own will, freely expressed. There was no compulsion or intimidation, however subtle, designed to separate Holy-field from his natural inclinations and thought processes. However misplaced his trust, it was Holyfield’s decision to confide in Jacobs and discuss his criminal activities. In Minnesota v. Murphy, supra, the United States Supreme Court stated:

... the MirandaCourt required the exclusion of incriminating statements obtained during custodial interrogation unless the suspect fails to claim the Fifth Amendment privilege after being suitably warned of his right to remain silent and of the consequences of his failure to assert it. . . . We have consistently held, however, that this extraordinary safeguard “does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.”

¶37104 S.Ct. at 1144 (cites omitted).

¶38The majority, of course, have offered no explanation for their rule that excludes voluntary admissions unwittingly made in the complete absence of coercion, the key element that triggers the “extraordinary safeguard” of the Mirandadoctrine. In the case of Wilson v. Henderson, 584 F.2d 1185 (C.A.2, 1978) involving a jail cell informant and a defendant who sought to suppress his admissions under a Sixth Amendment challenge, the court said:

Furthermore, the admission of an in-custody statement voluntarily made to an informant seems less egregious than the use of a statement intercepted by an electronic eavesdropping device as was upheld in United States v. Hearst [563 F.2d 1331 (C.A.9, 1977), cert. den. 435 U.S. 1000 (1978)]. When a defendant makes a completely unsolicited, incriminating remark in a face-to-face encounter with an informant, he knowingly assumes the risk that his confidant may ultimately prove to be untrustworthy. In an illegal search and seizure case the Supreme Court stated: “[n]either this Court *820nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” [Citing Hoffa v. United States, 385 U.S. 293, 302 (1966)]. Nor can such a shield be found in the Sixth Amendment.

¶39Even if credibility were to be accorded to Joshua’s testimony and we were to view Holyfield’s admissions as being solicited by Jacobs, this would not be relevant. As noted previously, the United States Supreme Court denied certiorari in the case of State v. McDonald, supra, where the informant sought information from the suspect but did so as one who was not a figure of authority in a jail cell that was free of intimidation. That is precisely the case here. Having no awareness of Jacobs’ role as an informant, and having no obligation to even speak to Jacobs, it is irrefutably clear that Holyfield, twice convicted for previous robberies, felt no pressure or degree of compulsion to reveal anything to Jacobs.

¶40The element of compulsion is the sine qua non of unlawful self-incrimination addressed by Mirandaand the federal and Nevada Constitutions. It should so remain. Since no aspect of coercion was involved in Holyfield’s inculpatory remarks to Jacobs I am unable to subscribe to the majority’s reversal of Holyfield’s conviction. I accordingly dissent from that ruling. I do, however, concur in the affirmance of appellant Townsell’s conviction.