Gladden v. Frazier

Citation388 F.2d 777
Decision Date15 April 1968
Docket NumberNo. 22140.,22140.
PartiesClarence T. GLADDEN, Warden, Appellant, v. Martin Rene FRAZIER, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Thomas H. Denney (argued), Deputy Dist. Atty., Oregon City, Or., Robert Y. Thornton, Atty. Gen. of Oregon, David H. Blunt, Asst. Atty. Gen., Salem, Or., Roger Rook, Dist. Atty. for Clackamas County, Oregon City, Or., for appellant.

Richard D. Barber (argued), Salem, Or., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and MERRILL and DUNIWAY, Circuit Judges.

MADDEN, Judge:

The appellee Frazier was convicted in 1965 of second degree murder in the Circuit Court of the State of Oregon. He was sentenced to imprisonment in the Oregon State Penitentiary for a term not to exceed twenty-five years. He appealed his conviction to the Supreme Court of Oregon, which court affirmed his conviction. State v. Frazier, 245 Or. 4, 418 P.2d 841 (1966). He then petitioned the United States District Court for the District of Oregon, pursuant to the provisions of §§ 2241-2254 of Title 28, United States Code, for a writ of habeas corpus. In that court his petition was superseded by a Pre-Trial Stipulation and Order. The district court found that in Frazier's Oregon murder trial his constitutional rights had been violated in several specified regards. The court therefore granted the petition and ordered the warden to release Frazier from custody within 20 days unless the State of Oregon granted Frazier a new trial on the murder charge, or unless the warden obtained from this court of appeals a stay of the operation of the district court's order pending the warden's appeal to this court, if he did so appeal. The warden has appealed, asserting that the district court committed error in granting Frazier's petition for habeas corpus, and the merits of his appeal are now before this court for decision. We consider the several occurrences in the trial, which occurrences the district court held to have involved violations of Frazier's constitutional rights.

Frazier and Rawls, a cousin of Frazier, were jointly indicted by the Oregon authorities for the murder of one Marleau. Rawls made a confession to the Oregon authorities, first orally and then in a writing signed by him, which confession deeply implicated Frazier in the killing. Rawls later pleaded guilty to second degree murder and, when Frazier's trial took place, had not yet been sentenced on his plea of guilty.

In Frazier's trial, the Oregon prosecutor, in his opening statement to the jury, stated in considerable detail the evidence which he intended to present, naming the witness or witnesses who would testify to the several items of evidence. He stated that he expected Rawls to testify to the commission of the crime, and recited what Rawls' testimony would be. He did not say that Rawls had confessed. When the prosecutor had completed his opening statement, Frazier's defense counsel moved for a mistrial. The court denied the motion. The prosecutor had subpoenaed Rawls, and called him to the witness stand. When questioned, Rawls claimed the privilege against self-incrimination and refused to answer the prosecutor's questions. The trial judge sustained Rawls' claim of privilege, and Rawls left the witness stand. Frazier's defense counsel again moved for a mistrial, and the motion was again denied. The prosecuting attorney, in the course of a lengthy trial, made no other reference to any statement made by Rawls.

The events above recited constituted one of the grounds on which the district court based his grant of Frazier's application for the writ of habeas corpus. The court held that the prosecutor's recital, in his opening statement, of what testimony he expected from Rawls, while the prosecutor held in his hand several papers, one of which was Rawls' signed confession, and read several times from that paper, was, in effect, the introduction before the jury of Rawls' statement, as to which Frazier's counsel had no opportunity to cross-examine Rawls.

In any case in which counsel for a litigant elects to make an opening statement outlining to the jury the substance of what he expects to prove, and naming the witnesses by which he hopes to prove it, rather than leaving it to the jury to pick up the thread of the continued story from the succession of incidents, each incident testified to by a separate witness, there is the possibility that the testimony which counsel has spoken of will never materialize on the witness stand. The expected witness may die or disappear or may effectively claim a privilege not to testify, or some person who has the right to prevent the witness from testifying may assert that right. If it happens that counsel does not get the expected testimony, he has to do the best he can without it. If he can prove his case without it, he may still win. But a rule that a mistrial must be declared because the expected testimony outlined in the opening statement is never given from the witness stand, and consequently the adversary never has a chance to test its truth by cross-examination, would be a wasteful and mischievous rule. The controlling question should be the good faith or lack of good faith of counsel in saying what he said in his opening statement and the likelihood that the opening statement was unfairly prejudicial to the defendant. Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; Namet v. United States, 373 U.S. 179, 180-190, 83 S.Ct. 1151, 10 L.Ed.2d 278.

In the instant case, at the beginning of the trial and before the jury was selected, Frazier's lawyer, in the presence of the prosecutor, said he had information that Rawls, if called as a witness, would claim his privilege against self-incrimination. He did not say what the source of his information was. Some days before Frazier's trial, the prosecutor had telephoned to Rawls' lawyer, Mr. Jacobs, to get permission to talk to Rawls. Permission was not immediately given, Jacobs saying that he himself had not talked to Rawls yet. The next day the prosecutor's assistant, Thomas, picked up Jacobs and transported him to the jail, where Jacobs talked to Rawls, then told Thomas that Rawls was going to refuse to testify, and gave permission to Thomas to talk to Rawls, saying, "All right, you talk to him. This is what he tells me. This is his own decision." Between that time and the trial, a deputy sheriff had talked to Rawls and had reported to the prosecutor that he felt sure that Rawls would testify and that Rawls' brothers, who had conversed with Rawls, had told the deputy that he wanted to testify and they thought he would testify, in spite of the advice of his lawyer. Rawls' probation officer told the prosecutor that he thought Rawls would testify.

In addition to the foregoing reasons for the prosecutor to believe that Rawls would, if called to the stand, testify, there was of course the fact that Rawls had pleaded guilty and was awaiting sentence, and would feel under strong compulsion not to refuse to cooperate with the prosecutor.

The Oregon trial judge, who was in the best position to determine whether the prosecutor had acted in good faith in calling Rawls to the witness stand, and whether this incident, when coupled with the opening statement, was prejudicial to the defendant, held that the prosecutor had acted in good faith and denied a motion for mistrial. We have before us the same cold record which the United States District Court had before it in this habeas corpus case, and we are in as good a position as was the district court to determine whether the Oregon court's implied findings were supported by the evidence. The district court's position in the habeas corpus case may well have been that good faith and prejudice were not the issues, but that counsel acts subject to the risk that the expected testimony which he recites in his opening statement, if it does not materialize, will require a mistrial. If that was the view of the district court, it was erroneous.

The fact that Rawls' expected testimony, once it became unavailable, was never again mentioned in the extended trial is of some significance on the question of the prosecutor's good faith, and of great significance on the question of the prejudicial effect of the opening statement and the calling of Rawls to the stand.

The Oregon trial judge said, in denying Frazier's second motion for a mistrial, that he would instruct the jury not to give any weight to what the prosecutor had said in his opening statement about Rawls' expected testimony. He did not give a specific instruction on that point. He either forgot his earlier statement or, more probably, thought better of it. Such an instruction, if given, would have recalled the incident to the minds of the jurors. Counsel for Frazier apparently for the same reason did not desire such an instruction or he would have reminded the court of its earlier statement. The court did give a general instruction that statements of counsel are not evidence.

Counsel for Frazier rely heavily upon the Supreme Court's decision in Douglas v. State of Alabama, supra. In Douglas, after the witness had claimed the privilege against self-incrimination, the prosecutor read the confession to him, a few sentences at a time, asking the witness after the reading of each few sentences, "Did you make that statement?" Each time the witness refused to answer, claiming the privilege. Thus the prosecutor, knowing that he was not going to get any testimony from the witness, deliberately placed every word of the inadmissible hearsay before the jury, compelling the witness to repeatedly claim his right to keep silent, and thus impressing the jury with the probable truth of the statement. The prosecutor could not possibly claim that he acted in a good faith expectation that the witness would testify. Douglas was a flagrant case of purposely and in bad faith...

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