Frank E. COTA, Petitioner-Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee, 453 F.2d 691

CHOY, Circuit Judge. Cota appeals from the denial of a writ of habeas corpus by the District Court. We affirm. Appellant and an accomplice, Pedro Flores Valenzuela, were charged with the murder of Roy Singh, an undercover agent for the Arizona Narcotics Department. Proceedings in a state court in Arizona resulted in a mistrial. After commencement of the second trial, Valenzuela pled guilty and was sentenced to death. The trial continued as to appellant, who was convicted by the jury and given a death sentence.

An appeal to the Arizona Supreme Court resulted in a reversal, whereupon appellant was retried, convicted, and received a life sentence. The Arizona Supreme Court affirmed the conviction. State v. Cota, 102 Ariz. 416, 432 P.2d 428 (1967). Appellant instituted a petition for a writ of habeas corpus in the District Court alleging that he had been denied his Sixth Amendment right to confront a witness who testified against him, and that certain prosecutorial misconduct amounted to denial of a fair trial and deprivation of due process under the 14th Amendment.

The prosecutor in his opening statement to the jury mentioned Valenzuela eighteen times, linking him with appellant in the killing of Singh, and referred to three conversations between appellant and Valenzuela, one before and two subsequent to the murder of Singh. These conversations were eventually testified to by witnesses Pino and Osorio. Included in these conversations were an admission by appellant to Pino that appellant had done the killing, and a reproach by Valenzuela to appellant: “What are you trying to prove, what a big man you are?

Stabbing a guy in the back?” — to which, Pino said, appellant did not reply.

Other testimony showed that appellant and Valenzuela had conspired to and did kill Singh because they had discovered Singh was an undercover agent; e. g., Osorio testified: “Pedro Valenzuela asked Frank, he asked him ... he asked: ‘Do you think that they know anything about us, about taking care of that undercover agent?’ And Frank Cota said: ‘No, because I think some narcotics agents have seen me today, and if they knew anything about me stabbing a guy and beating him up or anything’ . . . ” The prosecutor called Valenzuela from prison, where he was awaiting execution, as a state witness.

Voir dire ex-animation of Valenzuela outside the jury’s presence revealed that Valenzuela would invoke his right under the Fifth Amendment not to incriminate himself, and would refuse to testify. The prosecutor insisted that Valenzuela exercise the privilege before the jury. This was opposed by appellant’s counsel, but allowed by the court. Before the jury, Valenzuela was asked his name, age and length of residence in Arizona, which he answered, and then a series of questions to each of which his refusal to answer was sustained.

These questions were whether he knew appellant, his acquaintance with two other key prosecution witnesses, and where he lived at the time of the murder. Valenzuela was then excused. Appellant then moved for a mistrial which was denied. Appellant did not testify. During closing argument to the jury the prosecutor’s only comment on the reluctant witness was: “. . .

Pedro Valenzuela who refused to testify . . . ” Appellant contends that he was denied due process of law because he was deprived of his right to confront and cross-examine Valenzuela who had taken the Fifth Amendment and because he could not question the prosecutor about the conversations mentioned in the latter’s opening statement to the jury. Appellant also urges that the prior knowledge possessed by the prosecutor that Valenzuela, if called, would invoke the Fifth Amendment, showed bad faith on the part of the prosecutor when he forced the invocation of the privilege before the jury.

We'find nothing objectionable in the prosecutor’s opening statement including mention of Valenzuela’s name eighteen times in connection with the murder and referring to conversations between appellant and Valenzuela about the killing. The prosecutor did not represent that Valenzuela would testify to those details, and he made good those portions of his statement by the testimonies of witnesses Pino and Osorio. Although appellant had no right to question the prosecutor on any portion of that opening statement, appellant did confront and cross-examine Pino and Osorio, the sources of those details.

More troubling is the requiring of Valenzuela to take the Fifth with prior knowledge that he would do so. Appellant relies on Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) and Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963) in support of his contention that appellant was denied due process of law.

But, the flagrant impropriety found in Douglas is absent here, for there, after the witness had claimed the Fifth, the prosecutor persisted in reading the confession bit by bit pausing to ask the witness after each piece, “Did you make that statement?”, compelling repeated reliance on the witness’ privilege, and, thus, by indirection getting the confession, otherwise inadmissible, into evidence. Neither is Pointer v. Texas apposite here. The complaining witness’ preliminary hearing testimony had been taken when Pointer had no counsel and Pointer neglected to cross-examine.

The complaining witness having moved to another state during trial, the prosecutor read that testimony to the jury. The Supreme Court reversed Pointer’s conviction holding that the reading of such testimony was a denial of his Sixth Amendment right to confront the complaining witness. Nor is Namet v. United States of assistance- to appellant. There the Supreme Court held that since co-defendant Kahn’s spouse had pleaded guilty to wagering, testimony from Mr.

Kahn that he had accepted wagers was not privileged; that although the prosecutor required the Kahns to claim their privilege before the jury after their lawyer had announced that they would invoke the privilege, “the prosecutor need not accept at face value every asserted claim of privilege”; that since the few questions to which the claim of privilege was sustained were not the only or chief source of the inference that the witness had engaged in the crime charged with the defendant, no “critical weight” was added to the prosecution’s case in a form not' subject to cross-examination to defendant’s unfair prejudice; and that since the defendant did not ask for curative instructions, the court had no obligation sua sponte to give them.

In Cain v.

Cupp, 442 F.2d 356 (9th Cir., 1971) where a prosecutor who had been notified that a prospective witness would take the Fifth Amendment, nevertheless called the witness to testify, but promptly excused him when he invoked the privilege, and commented at length on and asked the jury to draw unfavorable inferences from the exercise of the privilege, we held: “Although calling the witness may not in itself be sufficient to justify ha-beas corpus relief, when coupled with the prosecutor’s closing argument, it will justify such relief.” 442 F.2d at 358. in the instant case, although the prosecutor did call Valenzuela knowing he would assert the privilege, the only comment thereon in summation was a terse, “Pedro Valenzuela who refused to testify,” with no solicitation that the jury draw any inference against appellant.

There was no curative or neutralizing instruction that no inference should be drawn from the failure to testify, but appellant asked for none, perhaps for tactical reasons. On a consideration of the entire record, we find that the state court committed no constitutional error in that no “critical weight” was added, by the summoning of Valenzuela, to the prosecution’s ease in a form not subject to cross-examination.

The testimonies of Pino and Osorio which covered appellant’s admission and his conspiracy with Valenzuela were other sources of the inference created by Valenzuela’s refusal to testify that he had had a

part in the crime with appellant. Affirmed. . Osorio, on cross examination by appellant’s counsel, acknowledged that he had previously by affidavits admitted to the killing of Singh, but upon redirect examination, Osorio contended that his affidavits relating his implication were coerced because he had been threatened by appellant and others under appellant's direction while incarcerated at the Arizona State Prison. This bore on Osorio’s credibility. The jury apparently believed him. . In State v.

Cota, 102 Ariz. 416, 421, 432 P.2d 428, 433 (1967) the Supreme Court of Arizona said: “For the state to have presented its theory without calling Valenzuela would have meant leaving an obvious step out of its argument. Then the defense could have argued that the state’s failure to produce the alleged accomplice meant that no corroboration for its theory would have come from such testimony. United States v. Gernie, [252 F.2d 664, 669-670 (2d Cir., 1958) ] “There could have been no testimony more material to the prosecution of this case than that of Valenzuela.

Further, since the privilege against self-incrimination is a personal immunity for the witness and does not disqualify him from being called, we cannot conclude otherwise but that, regardless of its reason to believe that Valenzuela would choose to invoke the privilege against self-incrimination, the state had the right to show that it was presenting all the relevant evidence at its disposal in order to prove its theory of the case.” .

A fuller statement of what the prosecutor said is: “A few minutes later, who comes downstairs, Uadies and Gentlemen, but the defendant, Frank Cota, Pedro Valenzuela who refused to testify, and who else, but the person whose picture you saw and who lias been identified as Boy Singh, the undercover state narcotics agent . . . ” . In Frazier v.

Cupp, 394 U.S. 731, 736, 89 S.Ct. 1420, 1423, 22 L.Ed.2d 684 (1969) the Supreme Court indicated, “ . . we do not believe that the prosecutor’s good faith, or lack of it, is controlling in determining whether a defendant lias been deprived of the right of confrontation . . . ” . See Bowles v. United States, 439 F.2d 536, 542 (D.C.Cir., 1970).