Richard Bradford v. Walter T. Stone

Two men attempted to rob the Spartan Market in San Jose, California, killing an employee. Petitioner was indicted and con-victed of attempted robbery and first degree murder. The California District Court of Appeals upheld petitioner’s conviction. The California Supreme Court denied review.

Petitioner sought habeas corpus, charging various acts of prosecutorial misconduct deprived him of a fair trial. The district court denied the petition. We affirm.

Petitioner’s principal claim is that during trial the prosecutor commented on petitioner’s post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610 , 96 S.Ct. 2240 , 49 L.Ed.2d 91 (1976). The district court held that constitutional error had occurred, but on the whole record found the error harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). We agree.

During cross-examination, the prosecutor asked petitioner if he had said anything about his alibi to the police when he was arrested. Petitioner responded that he had not — because he had not been asked, but mainly because his lawyer had told him not to speak unless the lawyer was present. This exchange violated…