Frazier v. Cupp, 643

• Court: United States Supreme Court
• Writing for the Court: MARSHALL
• Citation: 89 S.Ct. 1420,394 U.S. 731,22 L.Ed.2d 684
• Parties: Martin Rene FRAZIER, Petitioner, v. H. C. CUPP, Warden
• Docket Number: No. 643,643
• Decision Date: 22 April 1969

394 U.S. 731 89 S.Ct. 1420 22 L.Ed.2d 684 Martin Rene FRAZIER, Petitioner,

v.

H. C. CUPP, Warden.

No. 643. Argued Feb. 26, 1969. Decided April 22, 1969.

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Howard M. Feuerstein, Portland, Or., for petitioner.

Arlen Specter, Philadelphia, Pa., for respondent.

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 Or. 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, 89 S.Ct. 222, 21 L.Ed.2d 93 (1968). Although petitioner's case has been ably briefed and argued by appointed counsel, we find none of these allegations sufficient to warrant reversal.

I.

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 statement upon Rawls' expected testimon . 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.

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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, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934 (1965), and that, as in Bruton v. United States, 391 U.S. 123, 128, 88 S.Ct. 1620, 1623, 20 L.Ed.2d 476 (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, 85 S.Ct. 1065, 13 L.Ed.2d 923 (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 question thus posed is not an

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easy one, we cannot agree with petitioner's conclusion.

First of all, it is clear that this case is quite different from either Douglas or Bruton. In Douglas, the prosecutor called the defendant's coconspirator to the stand and read his alleged confession to him; the coconspirator was required to assert his privilege against self-incrimination repeatedly as the prosecutor asked him to confirm or deny each statement. The Court found that this procedure placed powerfully incriminating evidence before the jury in a manner which effectively denied the right of cross-examination. Here, Rawls was on the stand for a very short time and only a paraphrase of the statement was placed before the jury. This was done not during the trial, while the person making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening statement should not be considered as evidence. Certainly the impact of the procedure used here was much less damaging than was the case in Douglas. And unlike the situation in Bruton, the jury was not being asked to perform the mental gymnastics of considering an incriminating statement against only one of two defendants in a joint trial. Moreover, unlike the situation in either Douglas or Bruton, Rawls' statement was not a vitally important part of the prosecution's case.

We believe that in these circumstances the limiting instructions given were sufficient to protect petitioner's constitutional rights.^* As the Court said in Bruton, 391 U.S. at 135, 88 S.Ct. at 1627, 'Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.' See Hopt v. Utah, 120

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