Frank E. Cota v. Frank A. Eyman, Warden, Arizona State Prison

453 F.2d 691 Frank E. COTA, Petitioner-Appellant, v. Frank A. EYMAN, Warden, Arizona State Prison, Respondent-Appellee. No. 25231. United States Court of Appeals, Ninth Circuit. Dec. 23, 1971. Rehearing Denied Jan. 17, 1972. Lawrence C. Cantor (argued), Phoenix, Ariz., for petitioner-appellant. Roderic A. Dietz, Asst. Atty. Gen. (argued), Gary K. Nelson, Atty. Gen. of Ariz., Carl Waag, Thomas M. Tuggle, Asst. Attys. Gen., Phoenix, Ariz., for respondent-appellee. Before BROWNING and CHOY, Circuit Judges, and Von Der HEYDT, District Judge * . CHOY, Circuit Judge. 1 Cota appeals from the denial of a writ of habeas corpus by the District Court. We affirm. 2 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…

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…

(dissenting):

The majority relies principally on the conclusion that the inference drawn from Valenzuela’s refusal to testify did not add “critical weight” 1 to the prosecution’s case because the facts the jury might have inferred from Valenzuela’s claim of privilege were testified to directly by the witnesses Osorio and Pino.

It is respectfully submitted that the majority’s premise is faulty.

The prosecution’s theory was that petitioner and Valenzuela took the decedent to an abandoned adobe hut on the edge of Phoenix and there stabbed him to death, petitioner wielding the knife.

The prosecution offered Osorio and Pino as witnesses. They testified that before the killing petitioner told Valenzuela he and Valenzuela would have to dispose of the victim; that petitioner and Valenzuela left with the victim, and were later seen without him; and that in subsequent conversations between petitioner and Valenzuela, petitioner admitted the killing.

Despite this testimony, the state’s case against petitioner was vulnerable, for the credibility of Osorio and Pino had been seriously undermined. Both were members of the group of narcotics users, including petitioner and Valenzuela, that…