394 U.S. 731 (1969), 643, Frazier v. Cupp

Docket Nº:No. 643
Citation:394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684
Party Name:Frazier v. Cupp
Case Date:April 22, 1969
Court:United States Supreme Court

Page 731

394 U.S. 731 (1969)

89 S.Ct. 1420, 22 L.Ed.2d 684




No. 643

United States Supreme Court

April 22, 1969

Argued February 26, 1969




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.


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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.

MARSHALL, J., lead opinion

MR. JUSTICE MARSHALL delivered the opinion of the Court.

Petitioner was convicted in an Oregon state court of second-degree murder in connection with the September 22, 1964, slaying of one Russell Anton Marleau. After the Supreme Court of Oregon had affirmed his conviction, 245 Ore. 4, 418 P.2d 841 (1966), petitioner filed a petition for a writ of habeas corpus in the United States District Court for the District of Oregon. The District Court granted the writ, but the Court of Appeals for the Ninth Circuit reversed, 388 F.2d 777 (1968). We

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granted certiorari to consider three contentions of error raised by petitioner. 393 U.S. 821 (1968). Although petitioner's case has been ably briefed and argued by appointed counsel, we find none of these allegations sufficient to warrant reversal.


Petitioner's first argument centers on certain allegedly prejudicial remarks made during the prosecutor's opening statement. Petitioner had been indicted jointly with his cousin, Jerry Lee Rawls, who pleaded guilty to the same offense. Prior to petitioner's trial, petitioner's defense counsel told the prosecutor that Rawls would invoke his privilege against self-incrimination if he were called to the stand; defense counsel warned the prosecutor not to rely in his opening [89 S.Ct. 1422] statement upon Rawls' expected testimony. The prosecutor replied that he would act on the basis of "all of the information I have concerning [Rawls'] testimony." Before trial, he consulted with a police officer who had spoken to Rawls and with Rawls' probation officer; each indicated his belief that Rawls would testify. Similar information came, through a sheriff's report, from some of Rawls' close relatives. Because of these reports, the prosecutor concluded that Rawls would testify if asked to do so. The court below felt that the prosecutor also relied on the fact that Rawls had pleaded guilty and was awaiting sentence. This would give him reason, the court felt, to cooperate with the prosecutor.

In any case, after the trial began, the prosecutor included in his opening statement a summary of the testimony he expected to receive from Rawls. The summary was not emphasized in any particular way; it took only a few minutes to recite, and was sandwiched between a summary of petitioner's own confession and a description of the circumstantial evidence the State would introduce.

Page 734

At one point, the prosecutor referred to a paper he was holding in his hands to refresh his memory about something Rawls had said. Although the State admitted in argument here that the jury might fairly have believed that the prosecutor was referring to Rawls' statement, he did not explicitly tell the jury that this paper was Rawls' confession, nor did he purport to read directly from it. A motion for a mistrial was made at the close of the opening statement, but it was denied. Later, the prosecutor called Rawls to the stand. Rawls informed the court that he intended to assert his privilege against self-incrimination in regard to every question concerning his activities on the morning of September 22, 1964. The matter was not further pursued, and Rawls was dismissed from the stand. His appearance could not have lasted more than two or three minutes. The motion for mistrial was renewed and once again denied.

Petitioner argues that this series of events placed the substance of Rawls' statement before the jury in a way that "may well have been the equivalent in the jury's mind of testimony," Douglas v. Alabama, 380 U.S. 415, 419 (1965), and that, as in Bruton v. United States, 391 U.S. 123, 128 (1968), the statement "added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination. . . ." In this way, petitioner claims he was denied his constitutional right of confrontation, guaranteed by the Sixth and Fourteenth Amendments to the Constitution. See Pointer v. Texas, 380 U.S. 400 (1965). Although the judge did caution the jurors that they "must not regard any statement made by counsel in your presence during the proceedings concerning the facts of this case as evidence," petitioner contends that Bruton v. United States, supra, disposes of the contention that limiting instructions of this sort can be relied upon to cure the error which occurred. Although the...

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