Miller v. State of California

• Decision Date: 01 October 1967
• Docket Number: No. 154,154
• Citation: 88 S.Ct. 2258,20 L.Ed.2d 1332,392 U.S. 616
• Parties: Lucille MILLER, petitioner, v. STATE OF CALIFORNIA
• Court: U.S. Supreme Court

392 U.S. 616

88 S.Ct. 2258

20 L.Ed.2d 1332

Lucille MILLER, petitioner,

v STATE OF CALIFORNIA.

No. 154.

Supreme Court of the United States

October Term, 1967.

June 17, 1968

F. Lee Bailey, Boston, Mass., for petitioner.

Philip C. Griffin, Los Angeles, Cal., for respondent.

On Writ of Certiorari to the District Court of Appeal of California, Fourth Appellate District.

PER CURIAM.

The writ of certiorari is dismissed as improvidently granted.

Mr. Justice MARSHALL, with whom THE CHIEF JUSTICE, Mr. Justice DOUGLAS, and Mr. Justice BRENNAN join, dissenting.

The Court may leave this judgment standing only upon one or more of the following grounds: that there was no constitutional error in petitioner's trial; that whether or not there was error, objection to it was waived; or that the error was harmless. None of those grounds are persuasive to me, and I would reverse.

The facts of the case are as follows. A short time after midnight on October 8, 1964, petitioner's husband was killed in the conflagration of the automobile in which he and petitioner had been riding. Later that day, at about 1:30 p. m., petitioner was arrested for murder, and was taken to a county jail, where she was booked on that charge and placed in a cell. She was met at the jail by a lawyer, a family friend who had been called by petitioner shortly after the fire. The night of her arrest petitioner spoke with a police officer for several hours at the jail, answering questions and reciting her version of what she claimed to have been an accidental fire.

In an attempt to prevent questioning of his client, petitioner's counsel set up, with his associates, a 24-hour-a-day watch of her cell. Thereafter, at about 11 p. m. on October 9, Peggy Fisk, an undercover agent in the employ of the county sheriff's office, was falsely booked into the jail on a fictitious narcotics charge and placed in petitioner's cell. Two other prisoners who had shared the cell were later removed. Fisk did not advise petitioner that she was an agent of the sheriff placed in the cell to report on anything petitioner might say. She remained alone with petitioner until October 15, giving oral reports as to their conversations from time to time to the sheriff's office; a written report was prepared on October 12 and partly on October 14.

On October 13, a complaint was filed formally charging petitioner with murder; petitioner was arraigned that day on the complaint.¹ An indictment was returned on October 20, and the complaint was then dismissed.

It was the State's theory at trial that petitioner did not love her husband; that she drugged him and then set the automobile on fire; and that she killed him in order to be free to marry one Arthwell Hayton and to collect some $100,000 in insurance proceeds. The defense theory was that the fire was of accidental, rather than incendiary, origin. The defense contended that although petitioner was in love with Hayton until her husband's death the affair between them had terminated several months earlier, petitioner had given up any thought of marrying Hayton, and had been reconciled with her husband; and that she would not be motivated to kill her husband for the insurance since he earned some $30,000 a year in his dental practice.

Fisk was called as a prosecution witness at trial and testified that petitioner told her in the cell after her arrest for murder that 'she did not love her husband but she respected him'; that 'she had always loved Mr. Hayton and still loves him'; that 'she would receive over a hundred thousand dollars in insurance because of the accidental death'; and that 'as soon as this mess was over, that she planned to take [her children] * * * away to Europe with the insurance money.'

The district attorney relied upon and emphasized Fisk's testimony in his argument to the jury. See infra, at 628-629. After deliberating for more than three days, the jury returned a verdict that petitioner was guilty of murder in the first degree. She was later sentenced to life imprisonment.

I.

Although the issue is not free from difficulty, it seems to me the record clearly reveals petitioner adequately raised and preserved her federal constitutional objection to Fisk's testimony. That issue arises in the following context.

Toward the close of its case in chief, the prosecution called Fisk as a witness. Petitioner's trial counsel immediately objected, before Fisk was sworn, to her testimony at that time, on the ground that he had not been given her address prior to her testifying as he had been promised. There then occurred an extended conference in the judge's chambers.

In chambers, petitioner's counsel made two objections to Fisk's testimony. He first discussed the objection raised in the presence of the jury that he had not been given the witness' address as he had been promised, so that he might interview her. He then presented extensively the constitutional objection to any testimony at all from Fisk, discussing the circumstances giving rise to the contention and citing the relevant cases.² The district attorney first explained why he had been unable to provide counsel with Fisk's address and acknowledged that he had forgotten the request, which was apparently based on the fact that defense counsel had been shown, a month or so earlier, a report of the sheriff concerning the witness in which she had been identified as 'Jackie Doe.' He attempted to distinguish the cases cited by petitioner's counsel, and elaborated somewhat on Fisk's activities.³

As to the first ground of objection, the trial judge said 'in view of the circumstances related that Mr. Foley [defense counsel] was promised an opportunity to talk to this witness,' Fisk should be withdrawn at that time. The district attorney agreed to withdraw her. The trial judge then turned to the constitutional ground of objection. It had been clearly disclosed at the conference that Fisk spent almost a week in petitioner's cell, without disclosing her identity, and would testify concerning statements made to her by petitioner. The district attorney said he would call her as a witness the next day and stated to the judge, as to petitioner's constitutional objection: 'You would have to wait and listen to the voir dire on the stand and see.' The following colloquy, concluding the in-chambers conference, ensued:

'The Court: * * * [Y]ou will have the opportunity to talk to her but on the other objection, we would have to have her sworn and at least testify to the preliminary questions anyway, and have an objection made at the proper time.

'Mr. Foley: You know that isn't right, your Honor.

'The Court: Unless you want me to look at this [sheriff's] report and see what she knows. Does this report indicate?

'Mr. Turner [district attorney]: There has to be a foundation laid, an objection made. There is no way to——

'The Court: I think there would have to be. I don't see how that could be done in the absence of the jury.' (Emphasis added.)

The following day Fisk was called as a witness. The district attorney asked some preliminary questions. Fisk was identified as having been employed the previous October by the county sheriff as an undercover agent, and it was elicited that in the course of that employment she was assigned the task of pretending to be a prisoner in jail with petitioner, where she became acquainted and talked with her. When the district attorney asked Fisk if petitioner had discussed her 'domestic problems with her husband,' counsel for petitioner asked if he might 'ask a question on voir dire.' He elicited that Fisk had not identified herself as a police agent to petitioner, and had not advised petitioner she could have an attorney present when they talked. Direct examination was then resumed by the district attorney. Fisk then testified concerning petitioner's statements to her, see supra, at 618.

On cross-examination, petitioner's counsel elicited answers concerning Fisk's being placed in petitioner's cell, reporting to the sheriff, and activities in the cell (see infra, at 626). He also elicited that petitioner had told Fisk the fire was accidental, and, in short, a story concerning her husband's death consistent with that which petitioner had related to the police at the scene and in questioning at the jail, and consistent with petitioner's claim of innocence.

In these circumstances respondent contends that it is 'obvious' that petitioner's trial counsel, following his interview with Fisk, made a tactical judgment that her testimony would be helpful, and therefore that the federal claim is not available to petitioner here because it was waived. I find that view unacceptable.

The District Court of Appeal clearly agreed that petitioner's federal contention based on our decisions in Massiah and Escobedo was valid. 245 Cal.App.2d 112, 144, 53 Cal.Rptr. 720, 740. The court stated it did not reverse the conviction only because it viewed Fisk's testimony as nonprejudicial. Ibid. However, it went on to say that petitioner waived the point by failing to object when Fisk was called the day following the in-chambers conference, or, to put it another way, that 'it is reasonable to assume that defense counsel was willing to have Peggy [Fisk] testify' in the circumstances. 245 Cal.App.2d, at 143, 53 Cal.Rptr., at 740.⁴ I think it significant to note that the Supreme Court of California specifically disapproved the language of the District Court of Appeal in this case with respect to waiver of objections to admission of evidence obtained in violation of 'Escobedo-Dorado' by a mere failure to object, see People v. Doherty, 67 Cal.2d 9, 14, 59 Cal.Rptr. 857, 860, 429 P.2d 177, 180 (1967), and in the same decision cast considerable doubt on the approach of the District Court of Appeal in this case toward presuming or assuming that the failure to object was a considered trial stratagem.⁵

In any event, this Court has long held that a waiver of a federal...