Byrd v. Comstock
| Citation | 430 F.2d 937 |
| Decision Date | 22 September 1970 |
| Docket Number | No. 24694.,24694. |
| Parties | Cleo F. BYRD, Petitioner-Appellant, v. Howard M. COMSTOCK, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Cleo R. Byrd, in pro. per.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., Jeffrey S. Wohlner, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.
Before BARNES, BROWNING and DUNIWAY, Circuit Judges.
Petitioner, a California state prisoner, appeals from an order denying his petition for writ of habeas corpus. Petitioner and a co-defendant, who were represented by the same attorney, were convicted of robbery after joint trial before a judge sitting without a jury.
Petitioner's claims arise from use at trial, without objection, of a statement given to the police by petitioner's co-defendant.
Petitioner complains that the record does not establish that his co-defendant was given the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) before her statement was taken. But the purpose of such warnings would have been to safeguard the co-defendant's privilege against self incrimination, a right personal to her. Petitioner may not complain of the violation of his co-defendant's right, if any occurred. People v. Varnum, 66 Cal.2d 808, 812-813, 59 Cal.Rptr. 108, 427 P.2d 772 (1967); Cf. Alderman v. United States, 394 U.S. 165, 171-176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).
This also disposes of petitioner's complaint that the trial court did not make a specific determination of voluntariness of his co-defendant's statement. In addition, (1) there was no notice to the trial judge that the voluntariness of the statement was challenged. LaBrasca v. Misterly, 423 F.2d 708 (9th Cir. 1970); and (2) there was no jury involved. United States v. Taylor, 374 F.2d 753, 756 (7th Cir. 1967).
Finally, since petitioner's co-defendant took the stand, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), affords petitioner no comfort absent circumstances which rendered the apparent opportunity to cross-examine illusory. Petitioner cites O'Neill v. Nelson, 422 F. 2d 319, 320-321 (9th Cir. 1970), in which the co-defendant denied having made the statement. However, petitioner's co-defendant admitted making the statement. As petitioner points out, his co-defendant testified that the statement was only partially true, but obviously this did not preclude cross-examination on those portions of the...
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...claimed solely by the individual who is being questioned. United States v. Sullivan, 435 F.2d 650, 652 (9 th Cir.1970); Byrd v. Comstock, 430 F.2d 937 (9th Cir.1970); See also, United States v. Alderman, 394 U.S. 165, 171–176, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969) (constitutional rights may o......
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