|Arizona v. Fulminante
161 Ariz. 237, 778 P.2d 602, (1988), affirmed.
[ White ]
[ Rehnquist ]
[ Kennedy ]
Arizona v. Fulminante
CERTIORARI TO THE SUPREME COURT OF ARIZONA
CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR joins, JUSTICE KENNEDY and JUSTICE SOUTER join as to Parts I and II, and JUSTICE SCALIA joins as to Parts II [p303] and III, delivering the opinion of the Court as to Part II, and dissenting as to Parts I and III.
The Court today properly concludes that the admission of an "involuntary" confession at trial is subject to harmless error analysis. Nonetheless, the independent review of the record which we are required to make shows that respondent Fulminante's confession was not, in fact, involuntary. And even if the confession were deemed to be involuntary, the evidence offered at trial, including a second, untainted confession by Fulminante, supports the conclusion that any error here was certainly harmless.
The question of whether respondent Fulminante's confession was voluntary is one of federal law.
Without exception, the Court's confession cases hold that the ultimate issue of "voluntariness" is a legal question requiring independent federal determination.
Miller v. Fenton, 474 U.S. 104, 110 (1985). In Mincey v. Arizona, 437 U.S. 385 (1978), we overturned a determination by the Supreme Court of Arizona that a statement of the defendant was voluntary, saying
we are not bound by the Arizona Supreme Court's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record.
Id. at 398.
The admissibility of a confession such as that made by respondent Fulminante depends upon whether it was voluntarily made.
The ultimate test remains that which has been the only clearly established test in Anglo-American courts for two hundred years: the test of voluntariness. Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. [p304]
In this case, the parties stipulated to the basic facts at the hearing in the Arizona trial court on respondent's motion to suppress the confession. Anthony Sarivola, an inmate at the Ray Brook Prison, was a paid confidential informant for the FBI. While at Ray Brook, various rumors reached Sarivola that Oreste Fulminante, a fellow inmate who had befriended Sarivola, had killed his step-daughter in Arizona. Sarivola passed these rumors on to his FBI contact, who told him "to find out more about it." Sarivola, having already discussed the rumors with the defendant on several occasions, asked him whether the rumors were true, adding that he might be in a position to protect Fulminante from physical recriminations in prison, but that "[he] must tell him the truth." Fulminante then confessed to Sarivola that he had, in fact, killed his step-daughter in Arizona, and provided Sarivola with substantial details about the manner in which he killed the child. At the suppression hearing, Fulminante stipulated to the fact that "[a]t no time did the defendant indicate he was in fear of other inmates, nor did he ever seek Mr. Sarivola's ‘protection.'" App. at 10. The trial court was also aware, through an excerpt from Sarivola's interview testimony which the defendant appended to his reply memorandum, that Sarivola believed Fulminante's time was "running short," and that he would "have went out of the prison horizontally." Id. at 28. The trial court found that respondent's confession was voluntary.
The Supreme Court of Arizona stated that the trial court committed no error in finding the confession voluntary based on the record before it. But it overturned the trial court's finding of voluntariness based on the more comprehensive trial record before it, which included, in addition to the facts stipulated at the suppression hearing, a statement made by Sarivola at the trial that "the defendant had been receiving ‘rough treatment from the guys, and if the defendant would [p305] tell the truth, he could be protected.'" 161 Ariz. 237, 244, n. 1, 778 P.2d 602, 609, n. 1 (1989). It also had before it the presentence report, which showed that Fulminante was no stranger to the criminal justice system: he had six prior felony convictions, and had been imprisoned on three prior occasions.
On the basis of the record before it, the Supreme Court stated:
Defendant contends that, because he was an alleged child murderer, he was in danger of physical harm at the hands of other inmates. Sarivola was aware that defendant faced the possibility of retribution from other inmates, and that, in return for the confession with respect to the victim's murder, Sarivola would protect him. Moreover, the defendant maintains that Sarivola's promise was "extremely coercive," because the "obvious" inference from the promise was that his life would be in jeopardy if he did not confess. We agree.
Id. at 243, 778 P.2d at 608.
Exercising our responsibility to make the independent examination of the record necessary to decide this federal question, I am at a loss to see how the Supreme Court of Arizona reached the conclusion that it did. Fulminante offered no evidence that he believed that his life was in danger or that he, in fact, confessed to Sarivola in order to obtain the proffered protection. Indeed, he had stipulated that "[a]t no time did the defendant indicate he was in fear of other inmates, nor did he ever seek Mr. Sarivola's ‘protection.'" App. at 10. Sarivola's testimony that he told Fulminante that "if [he] would tell the truth, he could be protected," adds little, if anything, to the substance of the parties' stipulation. The decision of the Supreme Court of Arizona rests on an assumption that is squarely contrary to this stipulation, and one that is not supported by any testimony of Fulminante.
The facts of record in the present case are quite different from those present in cases where we have found confessions [p306] to be coerced and involuntary. Since Fulminante was unaware that Sarivola was an FBI informant, there existed none of "the danger of coercion result[ing] from the interaction of custody and official interrogation." Illinois v. Perkins, 496 U.S. 292, 297 (1990). The fact that Sarivola was a government informant does not, by itself, render Fulminante's confession involuntary, since we have consistently accepted the use of informants in the discovery of evidence of a crime as a legitimate investigatory procedure consistent with the Constitution. See, e.g., Kuhlmann v. Wilson, 477 U.S. 436 (1986); United States v. White, 401 U.S. 745 (1971); Hoffa v. United States, 385 U.S. 293, 304 (1966). The conversations between Sarivola and Fulminante were not lengthy, and the defendant was free at all times to leave Sarivola's company. Sarivola at no time threatened him or demanded that he confess; he simply requested that he speak the truth about the matter. Fulminante was an experienced habitue of prisons, and presumably able to fend for himself. In concluding on these facts that Fulminante's confession was involuntary, the Court today embraces a more expansive definition of that term than is warranted by any of our decided cases.
Since this Court's landmark decision in Chapman v. California, 386 U.S. 18 (1967), in which we adopted the general rule that a constitutional error does not automatically require reversal of a conviction, the Court has applied harmless error analysis to a wide range of errors, and has recognized that most constitutional errors can be harmless. See, e.g., Clemons v. Mississippi, 494 U.S. 738, 752-754 (1990) (unconstitutionally overbroad jury instructions at the sentencing stage of a capital case); Satterwhite v. Texas, 486 U.S. 249 (1988) (admission of evidence at the sentencing stage of a capital case in violation of the Sixth Amendment Counsel Clause); Carella v. California, 491 U.S. 263, 266 (1989) [p307] (jury instruction containing an erroneous conclusive presumption); Pope v. Illinois, 481 U.S. 497, 501-504 (1987) (jury instruction misstating an element of the offense); Rose v. Clark, 478 U.S. 570 (1986) (jury instruction containing an erroneous rebuttable presumption); Crane v. Kentucky, 476 U.S. 683, 691 (1986) (erroneous exclusion of defendant's testimony regarding the circumstances of his confession); Delaware v. Van Arsdall, 475 U.S. 673 (1986) (restriction on a defendant's right to cross-examine a witness for bias in violation of the Sixth Amendment Confrontation Clause); Rushen v. Spain, 464 U.S. 114, 117-118, and n. 2 (1983) (denial of a defendant's right to be present at trial); United States v. Hasting, 461 U.S. 499 (1983) (improper comment on defendant's silence at trial, in violation of the Fifth Amendment Self-Incrimination Clause); Hopper v. Evans, 456 U.S. 605 (1982) (statute improperly forbidding trial court's giving a jury instruction on a lesser-included offense in a capital case in violation of the Due Process Clause); Kentucky v. Whorton, 441 U.S. 786 (1979) (failure to instruct the jury on the presumption of innocence); Moore v. Illinois, 434 U.S. 220, 232 (1977) (admission of identification evidence in violation of the Sixth Amendment Counsel Clause); Brown v. United States, 411 U.S. 223, 231-232 (1973) (admission of the out-of-court statement of a nontestifying codefendant in violation of the Sixth Amendment Counsel Clause); Milton v. Wainwright, 407 U.S. 371 (1972) (confession obtained in violation of Massiah v. United States, 377 U.S. 201 (1964)); Chambers v. Maroney, 399 U.S. 42, 52-53 (1970) (admission of evidence obtained in violation of the Fourth Amendment); Coleman v. Alabama, 399 U.S. 1, 10-11 (1970) (denial of counsel at a preliminary hearing in violation of the Sixth Amendment Counsel Clause).
The common thread connecting these cases is that each involved "trial error" -- error which occurred during the presentation of the case to the jury, and which may therefore [p308] be quantitatively assessed in the context of other evidence presented in order to determine whether its admission was harmless beyond a reasonable doubt. In applying harmless error analysis to these many different constitutional violations, the Court has been faithful to the belief that the harmless error doctrine is essential to preserve the
principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial, rather than on the virtually inevitable presence of immaterial error.
Van Arsdall, supra, 475 U.S. at 681 (citations omitted).
In Chapman v. California, supra, the Court stated that
Although our prior cases have indicated that there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,([n. 8]) this statement in Fahy [v. State of Connecticut, 375 U.S. 85 (1963)] itself belies any belief that all trial errors which violate the Constitution automatically call for reversal.
Id., 386 U.S. at 23.
It is on the basis of this language in Chapman that JUSTICE WHITE, in dissent, concludes that the principle of stare decisis requires us to hold that an involuntary confession is not subject to harmless error analysis. I believe that there are several reasons which lead to a contrary conclusion. In the first place, the quoted language from Chapman does not, by its terms, adopt any such rule in that case. The language that "[a]lthough our prior cases have indicated," coupled with the relegation of the cases themselves to a footnote, is more appropriately regarded as a historical reference to the holdings of these cases. This view is buttressed by an examination of the opinion in Payne v. Arkansas, 356 U.S. 560 (1958), which is the case referred to for the proposition that [p309] an involuntary confession may not be subject to harmless error analysis. There the Court said:
Respondent suggests that, apart from the confession, there was adequate evidence before the jury to sustain the verdict. But where, as here, an involuntary confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And, in these circumstances, this Court has uniformly held that, even though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.
Id. at 567-568.
It is apparent that the State's argument which the Court rejected in Payne is not the harmless error analysis later adopted in Chapman, but a much more lenient rule which would allow affirmance of a conviction if the evidence other than the involuntary confession was sufficient to sustain the verdict. This is confirmed by the dissent of Justice Clark in that case, which adopted the more lenient test. Such a test would, of course -- unlike the harmless error test -- make the admission of an involuntary confession virtually risk-free for the state.
The admission of an involuntary confession -- a classic "trial error" -- is markedly different from the other two constitutional violations referred to in the Chapman footnote as not being subject to harmless error analysis. One of those cases, Gideon v. Wainwright, 372 U.S. 335 (1963), involved the total deprivation of the right to counsel at trial. The other, Tumey v. Ohio, 273 U.S. 510 (1927), involved a judge who was not impartial. These are structural defects in the constitution of the trial mechanism, which defy analysis by "harmless error" standards. The entire conduct of the trial, from beginning to end, is obviously [p310] affected by the absence of counsel for a criminal defendant, just as it is by the presence on the bench of a judge who is not impartial. Since our decision in Chapman, other cases have added to the category of constitutional errors which are not subject to harmless error the following: unlawful exclusion of members of the defendant's race from a grand jury, Vasquez v. Hillery, 474 U.S. 254 (1986); the right to self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168, 177-178, n. 8 (1984); and the right to public trial, Waller v. Georgia, 467 U.S. 39, 49, n. 9 (1984). Each of these constitutional deprivations is a similar structural defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.
Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.
Rose v. Clark, 478 U.S. at 577-578 (citation omitted).
It is evident from a comparison of the constitutional violations which we have held subject to harmless error, and those which we have held not, that involuntary statements or confessions belong in the former category. The admission of an involuntary confession is a "trial error," similar in both degree and kind to the erroneous admission of other types of evidence.
The evidentiary impact of an involuntary confession, and its effect upon the composition of the record, is indistinguishable from that of a confession obtained in violation of the Sixth Amendment -- of evidence seized in violation of the Fourth Amendment -- or of a prosecutor's improper comment on a defendant's silence at trial in violation of the Fifth Amendment. When reviewing the erroneous admission of an involuntary confession, the appellate court, as it does with the admission of other forms of improperly admitted evidence, simply reviews the remainder of the evidence against the defendant to determine whether the admission of the confession was harmless beyond a reasonable doubt. [p311]
Nor can it be said that the admission of an involuntary confession is the type of error which "transcends the criminal process." This Court has applied harmless error analysis to the violation of other constitutional rights similar in magnitude and importance, and involving the same level of police misconduct. For instance, we have previously held that the admission of a defendant's statements obtained in violation of the Sixth Amendment is subject to harmless error analysis. In Milton v. Wainwright, 407 U.S. 371 (1972), the Court held the admission of a confession obtained in violation of Massiah v. United States, 377 U.S. 201 (1964), to be harmless beyond a reasonable doubt. We have also held that the admission of an out-of-court statement by a nontestifying codefendant is subject to harmless error analysis. Brown v. United States, 411 U.S. at 231-232; Schneble v. Florida, 405 U.S. 427 (1972); Harrington v. California, 395 U.S. 250 (1969). The inconsistent treatment of statements elicited in violation of the Sixth and Fourteenth Amendments, respectively, can be supported neither by evidentiary or deterrence concerns nor by a belief that there is something more "fundamental" about involuntary confessions. This is especially true in a case such as this one, where there are no allegations of physical violence on behalf of the police. The impact of a confession obtained in violation of the Sixth Amendment has the same evidentiary impact as does a confession obtained in violation of a defendant's due process rights. Government misconduct that results in violations of the Fourth and Sixth Amendments may be at least as reprehensible as conduct that results in an involuntary confession. For instance, the prisoner's confession to an inmate-informer at issue in Milton, which the Court characterized as implicating the Sixth Amendment right to counsel, is similar on its facts to the one we face today. Indeed, experience shows that law enforcement violations of these constitutional guarantees can involve conduct as egregious as police conduct used to elicit statements in violation of the Fourteenth Amendment. It is thus [p312] impossible to create a meaningful distinction between confessions elicited in violation of the Sixth Amendment and those in violation of the Fourteenth Amendment.
Of course an involuntary confession may have a more dramatic effect on the course of a trial than do other trial errors -- in particular cases, it may be devastating to a defendant -- but this simply means that a reviewing court will conclude in such a case that its admission was not harmless error; it is not a reason for eschewing the harmless error test entirely. The Supreme Court of Arizona, in its first opinion in the present case, concluded that the admission of Fulminante's confession was harmless error. That court concluded that a second and more explicit confession of the crime made by Fulminante after he was released from prison was not tainted by the first confession, and that the second confession, together with physical evidence from the wounds (the victim had been shot twice in the head with a large calibre weapon at close range and a ligature was found around her neck) and other evidence introduced at trial rendered the admission of the first confession harmless beyond a reasonable doubt. 161 Ariz. at 24246, 778 P.2d at 61611.
I would agree with the finding of the Supreme Court of Arizona in its initial opinion -- in which it believed harmless error analysis was applicable to the admission of involuntary confessions -- that the admission of Fulminante's confession was harmless. Indeed, this seems to me to be a classic case of harmless error: a second confession giving more details of the crime than the first was admitted in evidence and found to be free of any constitutional objection. Accordingly, I would affirm the holding of the Supreme Court of Arizona in its initial opinion, and reverse the judgment which it ultimately rendered in this case. [p313]