Frazier v. Cupp, 394 U.S. 731 (1969)

Frazier v. Cupp

No. 643

Argued February 26, 1969
Decided April 22, 1969
394 U.S. 731

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Petitioner in this habeas corpus proceeding claims that his constitutional rights were violated in three respects in his trial in 1965 for murder for which he had been indicted jointly with one Rawls, who pleaded guilty. (1) The prosecutor, on the basis of previous information he had received that Rawls would testify, included in his opening statement a brief summary of Rawls’ expected testimony. When Rawls was called to the stand, he claimed his privilege against self-incrimination, and was dismissed. Petitioner’s motions for a mistrial were overruled. The trial court instructed the jury that the opening statements of counsel should not be considered as evidence. (2) After preliminary questioning shortly after his arrest, petitioner was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Thereafter the interrogating officer falsely told petitioner, who was reluctant to talk, that Rawls had confessed. Petitioner later began to spill his story, but again showed signs of reluctance and said he thought he better get a lawyer before he talked any more. Following the officer’s reply that petitioner could not be in any more trouble than he was in, petitioner fully confessed and, after further warnings, signed a written confession, which was later admitted into evidence over petitioner’s objection. (3) Also admitted into evidence was some clothing which officers had seized from petitioner’s duffel hag which he and Rawls had used jointly and which the officers had found during a search conducted with Rawls’ consent. Petitioner was convicted, and the State Supreme Court affirmed. Petitioner thereafter filed a petition for a writ of habeas corpus in the District Court, which granted the writ. The Court of Appeals reversed. Petitioner claims that the prosecutor’s use of the summarized Rawls statement denied him his constitutional rights of confrontation as guaranteed by the Sixth and Fourteenth Amendments; that his confession contravened the principles established by Escobedo v. Illinois, 378 U.S. 478 (1964), and Miranda v. Arizona, 384 U.S. 436 (1966), and was involuntary, and that the clothing had been illegally seized in violation of the Fourth and Fourteenth Amendments.

Held:

1. On the facts here, where the evidence which the prosecutor reasonably expected to produce was objectively and briefly summarized and was not touted to the jury as crucial to the prosecution’s case, the court’s limiting instructions were sufficient to protect petitioner’s constitutional rights. Douglas v. Alabama, 380 U.S. 415 (1965), and Bruton v. United States, 391 U.S. 123 (1968), distinguished. Pp. 734-737.

2. In the context of this case, where it is possible that the questioning officer took petitioner’s remark about seeing an attorney not as a request that the interrogation cease but as a passing comment, there was no denial of the right to counsel such as existed in Escobedo, and Miranda, which was decided after petitioner’s trial, is inapplicable under Johnson v. New Jersey, 384 U.S. 719 (1966). Pp. 738-739.

3. On the facts of this case and in view of the "totality of the circumstances," the trial court did not err in holding that petitioner’s confession was voluntary. P. 739.

4. The clothing from petitioner’s duffel bag was found in the course of a lawful search since Rawls, a joint user of the bag, had authority to consent to its search. P. 740.

388 F.2d 777, affirmed.