89-839 — DISSENT v. FULMINANTE

No. 89-839

ARIZONA, PETITIONER v. ORESTE C. FULMINANTE

[March 26, 1991]

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 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.

I 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." Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (quoted in Schneckloth v. Bustamonte, 412 U.S. 218, 225-226 (1973)).

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 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 ex amination 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 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 inter action of custody and official interrogation." Illinois v. Perkins, 496 U. S. —, — (1990) (slip op., at 4). 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.

II 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. —, — (1990) (slip op., at 12-14) (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. —, — (1989) (slip op., at 4) (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 non testifying codefendant in violation of the Sixth Amendment Counsel Clause); Milton v. Wainwright, 407 U.S. 371 (1972) (confession obtained

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 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 harmlesserror analysis to these many different constitutional vio lations, 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, 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,8 this statement in Fahy itself belies any belief that all trial errors which violate the Constitution automatically call for reversal.