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Subject: 89-839 -- OPINION, ARIZONA v. FULMINANTE




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
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press.

SUPREME COURT OF THE UNITED STATES


No. 89-839



ARIZONA, PETITIONER v. ORESTE C. FULMINANTE

on writ of certiorari to the supreme court of arizona

[March 26, 1991]



    Justice White delivered the opinion of the Court.

    The Arizona Supreme Court ruled in this case that respondent Oreste
Fulminante's confession, received in evidence at his trial for murder, had
been coerced and that its use against him was barred by the Fifth and
Fourteenth Amendments to the United States Constitution.  The court also
held that the harmless-error rule could not be used to save the conviction.
We affirm the judgment of the Arizona court, although for different reasons
than those upon which that court relied.

I
    Early in the morning of September 14, 1982, Fulminante called the Mesa,
Arizona, Police Department to report that his 11-year-old stepdaughter,
Jeneane Michelle Hunt, was missing.  He had been caring for Jeneane while
his wife, Jeneane's mother, was in the hospital.  Two days later, Je
neane's body was found in the desert east of Mesa.  She had been shot twice
in the head at close range with a large caliber weapon, and a ligature was
around her neck.  Because of the decomposed condition of the body, it was
impossible to tell whether she had been sexually assaulted.
    Fulminante's statements to police concerning Jeneane's disappearance
and his relationship with her contained a number of inconsistencies, and he
became a suspect in her killing.  When no charges were filed against him,
Fulminante left Arizona for New Jersey.  Fulminante was later convicted in
New Jersey on federal charges of possession of a firearm by a felon.
    Fulminante was incarcerated in the Ray Brook Federal Correctional
Institution in New York.  There he became friends with another inmate,
Anthony Sarivola, then serving a 60-day sentence for extortion.  The two
men came to spend several hours a day together.  Sarivola, a former police
officer, had been involved in loansharking for organized crime but then
became a paid informant for the Federal Bureau of Investigation.  While at
Ray Brook, he masqueraded as an organized crime figure.  After becoming
friends with Ful minante, Sarivola heard a rumor that Fulminante was
suspected of killing a child in Arizona.  Sarivola then raised the subject
with Fulminante in several conversations, but Ful minante repeatedly denied
any involvement in Jeneane's death.  During one conversation, he told
Sarivola that Jeneane had been killed by bikers looking for drugs; on
another occasion, he said he did not know what had happened.  Sarivola
passed this information on to an agent of the Federal Bureau of
Investigation, who instructed Sarivola to find out more.
    Sarivola learned more one evening in October 1983, as he and Fulminante
walked together around the prison track.  Sarivola said that he knew
Fulminante was "starting to get some tough treatment and whatnot" from
other inmates because of the rumor.  App. 83.  Sarivola offered to protect
Fulminante from his fellow inmates, but told him, " `You have to tell me
about it,' you know.  I mean, in other words, `For me to give you any
help.' "  Ibid.  Fulminante then admitted to Sarivola that he had driven
Jeneane to the desert on his motorcycle, where he choked her, sexually
assaulted her, and made her beg for her life, before shooting her twice in
the head.  Id., at 84-85.
    Sarivola was released from prison in November 1983.  Fulminante was
released the following May, only to be arrested the next month for another
weapons violation.  On September 4, 1984, Fulminante was indicted in
Arizona for the first-degree murder of Jeneane.
    Prior to trial, Fulminante moved to suppress the statement he had given
Sarivola in prison, as well as a second confession he had given to Donna
Sarivola, then Anthony Sarivola's fiancee and later his wife, following his
May 1984 release from prison.  He asserted that the confession to Sarivola
was coerced, and that the second confession was the "fruit" of the first.
Id., at 6-8.  Following the hearing, the trial court denied the motion to
suppress, specifically finding that, based on the stipulated facts, the
confessions were voluntary.  Id., at 44, 63.  The State introduced both
confessions as evidence at trial, and on December 19, 1985, Fulminante was
convicted of Jeneane's murder.  He was subsequently sentenced to death.
    Fulminante appealed, arguing, among other things, that his confession
to Sarivola was the product of coercion and that its admission at trial
violated his rights to due process under the Fifth and Fourteenth
Amendments of the United States Constitution.  After considering the
evidence at trial as well as the stipulated facts before the trial court on
the motion to suppress, the Arizona Supreme Court held that the confession
was coerced, but initially determined that the admission of the confession
at trial was harmless error, because of the overwhelming nature of the
evidence against Fulminante.  161 Ariz. 237, 778 P. 2d 602 (1988).  Upon
Fulminante's motion for reconsideration, however, the court ruled that this
Court's precedent precluded the use of the harmless-error analysis in the
case of a coerced confession.  Id., at 262, 778 P. 2d, at 627.  The court
therefore reversed the conviction and ordered that Fulminante be retried
without the use of the confession to Sarivola. {1}  Because of dif fering
views in the state and federal courts over whether the admission at trial
of a coerced confession is subject to a harmless-error analysis, we granted
the State's petition for certiorari, 494 U. S. --- (1990).  Although a
majority of this Court finds that such a confession is subject to a
harmlesserror analysis, for the reasons set forth below, we affirm the
judgment of the Arizona court.

II
    We deal first with the State's contention that the court below erred in
holding Fulminante's confession to have been coerced.  The State argues
that it is the totality of the circumstances that determines whether
Fulminante's confession was coerced, cf. Schneckloth v. Bustamonte, 412 U.
S. 218, 226 (1973), but contends that rather than apply this standard, the
Arizona court applied a "but for" test, under which the court found that
but for the promise given by Sarivola, Fulminante would not have confessed.
Brief for Petitioner 14-15.  In support of this argument, the State points
to the Arizona court's reference to Bram v. United States, 168 U. S. 532
(1897).  Although the Court noted in Bram that a confession cannot be
obtained by " `any direct or implied promises, however slight, nor by the
exertion of any improper influence,' " id., at 542-543 (quoting 3 H. Smith
& A. Keep, Russell on Crimes and Misdemeanors 478 (6th ed. 1896)), it is
clear this passage from Bram, which under current precedent does not state
the standard for determining the voluntariness of a confession, was not
relied on by the Arizona court in reaching its conclusion.  Rather, the
court cited this language as part of a longer quotation from an Arizona
case which accurately described the State's burden of proof for
establishing voluntariness.  See 161 Ariz., at 244, 778 P. 2d, at 609
(citing State v. Thomas, 148 Ariz. 225, 227, 714 P. 2d 395, 397 (1986),
Malloy v. Hogan, 378 U. S. 1, 7 (1964), and Bram, 168 U. S., at 542-543).
Indeed, the Arizona Supreme Court stated that a "determination regarding
the voluntariness of a confession . . . must be viewed in a totality of the
circumstances," 161 Ariz., at 243, 778 P. 2d, at 608, and under that
standard plainly found that Fulminante's statement to Sarivola had been
coerced.
    In applying the totality of the circumstances test to de termine that
the confession to Sarivola was coerced, the Arizona Supreme Court focused
on a number of relevant facts.  First, the court noted that "because
[Fulminante] was an alleged child murderer, he was in danger of physical
harm at the hands of other inmates."  Ibid.  In addition, Sarivola was
aware that Fulminante had been receiving " `rough treatment from the guys.'
"  Id., at 244, n. 1, 778 P. 2d, at 609, n. 1.  Using his knowledge of
these threats, Sarivola offered to protect Fulminante in exchange for a
confession to Je neane's murder, id., at 243, 778 P. 2d, at 608, and "[i]n
response to Sarivola's offer of protection, [Fulminante] confessed."  Id.,
at 244, 778 P. 2d, at 609.  Agreeing with Ful minante that "Sarivola's
promise was `extremely coercive,' " id., at 243, 778 P. 2d, at 608, the
Arizona Court declared: "[T]he confession was obtained as a direct result
of extreme coercion and was tendered in the belief that the defendant's
life was in jeopardy if he did not confess.  This is a true coerced
confession in every sense of the word."  Id., at 262, 778 P. 2d, at 627.
{2}
    We normally give great deference to the factual findings of the state
court.  Davis v. North Carolina, 384 U. S. 737, 741 (1966); Haynes v.
Washington, 373 U. S. 503, 515 (1963); Culombe v. Connecticut, 367 U. S.
568, 603-604 (1961).  Nevertheless, "the ultimate issue of `voluntariness'
is a legal question requiring independent federal determination."  Miller
v. Fenton, 474 U. S. 104, 110 (1985).  See also Mincey v. Arizona, 437 U.
S. 385, 398 (1978); Davis, supra, at 741-742; Haynes, supra, at 515;
Chambers v. Florida, 309 U. S. 227, 228-229 (1940).
    Although the question is a close one, we agree with the Arizona Supreme
Court's conclusion that Fulminante's confession was coerced. {3}  The
Arizona Supreme Court found a credible threat of physical violence unless
Fulminante confessed.  Our cases have made clear that a finding of coercion
need not depend upon actual violence by a government agent;  {4} a credible
threat is sufficient.  As we have said, "coercion can be mental as well as
physical, and . . . the blood of the accused is not the only hallmark of an
unconstitutional inquisition."  Blackburn v. Alabama, 361 U. S. 199, 206
(1960).  See also Culombe, supra, at 584; Reck v. Pate, 367 U. S. 433,
440-441 (1961); Rogers v. Richmond, 365 U. S. 534, 540 (1961); Payne v.
Arkansas, 356 U. S. 560, 561 (1958); Watts v. Indiana, 338 U. S. 49, 52
(1949).  As in Payne, where the Court found that a confession was coerced
because the interrogating police officer had promised that if the accused
confessed, the officer would protect the accused from an angry mob outside
the jailhouse door, 356 U. S., at 564-565, 567, so too here, the Arizona
Supreme Court found that it was fear of physical violence, absent
protection from his friend (and Government agent) Sarivola, which motivated
Fulminante to confess.  Accepting the Arizona court's finding, permissible
on this record, that there was a credible threat of physical violence, we
agree with its conclusion that Fulminante's will was overborne in such a
way as to render his confession the product of coercion.

III


    Four of us, Justices Marshall, Blackmun, Stevens, and myself, would
affirm the judgment of the Arizona Supreme Court on the ground that the
harmless-error rule is inapplicable to erroneously admitted coerced
confessions.  We thus disagree with the Justices who have a contrary view.
    The majority today abandons what until now the Court has regarded as
the "axiomatic [proposition] that a defendant in a criminal case is
deprived of due process of law if his conviction is founded, in whole or in
part, upon an involuntary confession, without regard for the truth or
falsity of the confession, Rogers v. Richmond, 365 U. S. 534, and even
though there is ample evidence aside from the confession to support the
conviction.  Malinski v. New York, 324 U. S. 401; Stroble v. California,
343 U. S. 181; Payne v. Arkansas, 356 U. S. 560."  Jackson v. Denno, 378 U.
S. 368, 376 (1964).  The Court has repeatedly stressed that the view that
the admission of a coerced confession can be harmless error because of the
other evidence to support the verdict is "an impermissible doctrine,"
Lynumn v. Illinois, 372 U. S. 528, 537 (1963); for "the admission in
evidence, over objection, of the coerced confession vitiates the judgment
because it violates the Due Process Clause of the Fourteenth Amendment."
Payne, supra, at 568.  See also Rose v. Clark, 478 U. S. 570, 578, n. 6
(1986); New Jersey v. Portash, 440 U. S. 450, 459 (1979); Lego v. Twomey,
404 U. S. 477, 483 (1972); Chapman v. California, 386 U. S. 18, 23, and n.
8 (1967); Haynes v. Washington, supra, at 518; Blackburn v. Alabama, supra,
at 206; Spano v. New York, 360 U. S. 315, 324 (1959); Brown v. Allen, 344
U. S. 443, 475 (1953); Stroble v. California, 343 U. S. 181, 190 (1952);
Gallegos v. Nebraska, 342 U. S. 55, 63 (1951); Haley v. Ohio, 332 U. S.
596, 599 (1948); Malinski v. New York, 324 U. S. 401, 404 (1945); Lyons v.
Oklahoma, 322 U. S. 596, 597, n. 1 (1944).  As the decisions in Haynes and
Payne, supra, show, the rule was the same even when another confession of
the defendant had been properly admitted into evidence.  Today, a majority
of the Court, without any justification, cf. Arizona v. Rumsey, 467 U. S.
203, 212 (1984), overrules this vast body of precedent without a word and
in so doing dislodges one of the fundamental tenets of our criminal justice
system.
    In extending to coerced confessions the harmless error rule of Chapman
v. California, 386 U. S. 18 (1967), the majority declares that because the
Court has applied that analysis to numerous other "trial errors," there is
no reason that it should not apply to an error of this nature as well.  The
four of us remain convinced, however, that we should abide by our cases
that have refused to apply the harmless error rule to coerced confessions,
for a coerced confession is fundamentally different from other types of
erroneously admitted evidence to which the rule has been applied.  Indeed,
as the majority concedes, Chapman itself recognized that 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," and it
placed in that category the constitutional rule against using a defendant's
coerced confession against him at his criminal trial.  386 U. S., at 23,
and n. 8 (emphasis added).  Moreover, cases since Chapman have reiterated
the rule that using a defendant's coerced confession against him is a
denial of due process of law regardless of the other evidence in the record
aside from the confession.  Lego v. Twomey, supra, at 483; Mincey v.
Arizona, 437 U. S., at 398; New Jersey v. Portash, supra, at 459; Rose v.
Clark, supra, at 577, 578, and n. 6.
    Chapman specifically noted three constitutional errors that could not
be categorized as harmless error: using a coerced confession against a
defendant in a criminal trial, depriving a defendant of counsel, and trying
a defendant before a biased judge.  The majority attempts to distinguish
the use of a coerced confession from the other two errors listed in Chapman
first by distorting the decision in Payne, and then by drawing a
meaningless dichotomy between "trial errors" and "structural defects" in
the trial process.  Viewing Payne as merely rejecting a test whereby the
admission of a coerced confession could stand if there were "sufficient
evidence," other than the confession, to support the conviction, the
majority suggests that the Court in Payne might have reached a different
result had it been considering a harmless error test.  Post, at 7 (opinion
of Rehnquist, C. J.).  It is clear, though, that in Payne the Court
recognized that regardless of the amount of other evidence, "the admission
in evidence, over objection, of the coerced confession vitiates the
judgment," because "where, as here, a coerced 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."  356 U.
S., at 568.  The inability to assess its effect on a conviction causes the
admission at trial of a coerced confession to "defy analysis by
`harmless-error' standards," cf. post, at 7 (opinion of Rehnquist, C. J.),
just as certainly as do deprivation of counsel and trial before a biased
judge.
    The majority also attempts to distinguish "trial errors" which occur
"during the presentation of the case to the jury," post, at 6, and which it
deems susceptible to harmless error analysis, from "structural defects in
the constitution of the trial mechanism," post, at 8, which the majority
concedes cannot be so analyzed.  This effort fails, for our jurisprudence
on harmless error has not classified so neatly the errors at issue.  For
example, we have held susceptible to harmless error analysis the failure to
instruct the jury on the presumption of innocence, Kentucky v. Whorton, 441
U. S. 786 (1979), while finding it impossible to analyze in terms of
harmless error the failure to instruct a jury on the reasonable doubt
standard, Jackson v. Virginia, 443 U. S. 307, 320, n. 14 (1979).  These
cases cannot be reconciled by labeling the former "trial error" and the
latter not, for both concern the exact same stage in the trial proceedings.
Rather, these cases can be reconciled only by considering the nature of the
right at issue and the effect of an error upon the trial.  A jury
instruction on the presumption of innocence is not constitutionally
required in every case to satisfy due process, because such an instruction
merely offers an additional safeguard beyond that provided by the
constitutionally required instruction on reasonable doubt.  See Whorton,
supra, at 789; Taylor v. Kentucky, 436 U. S. 478, 488-490 (1978).  While it
may be possible to analyze as harmless the omission of a presumption of
innocence instruction when the required reasonable doubt instruction has
been given, it is impossible to assess the effect on the jury of the
omission of the more fundamental instruction on reasonable doubt.  In
addition, omission of a reasonable doubt instruction, though a "trial
error," distorts the very structure of the trial because it creates the
risk that the jury will convict the defendant even if the State has not met
its required burden of proof.  Cf. Cool v. United States, 409 U. S. 100,
104 (1972); In re Winship, 397 U. S. 358, 364 (1970).
    These same concerns counsel against applying harmless error analysis to
the admission of a coerced confession.  A defendant's confession is
"probably the most probative and damaging evidence that can be admitted
against him," Cruz v. New York, 481 U. S. 186, 195 (1987) (White, J.,
dissenting), so damaging that a jury should not be expected to ignore it
even if told to do so, Bruton v. United States, 391 U. S. 123, 140 (1968)
(White, J., dissenting), and because in any event it is impossible to know
what credit and weight the jury gave to the confession.  Cf. Payne, supra,
at 568.  Concededly, this reason is insufficient to justify a per se bar to
the use of any confession. Thus, Milton v. Wainwright, 407 U. S. 371
(1972), applied harmless-error analysis to a confession obtained and
introduced in circumstances that violated the defendant's Sixth Amendment
right to counsel. {5}  Similarly, the Courts of Appeals have held that the
introduction of incriminating statements taken from defendants in violation
of Miranda v. Arizona, 384 U. S. 436 (1966), is subject to treatment as
harmless error. {6}
    Nevertheless, in declaring that it is "impossible to create a
meaningful distinction between confessions elicited in violation of the
Sixth Amendment and those in violation of the Fourteenth Amendment," post,
at 10 (opinion of Rehnquist, C. J.), the majority overlooks the obvious.
Neither Milton v. Wainwright nor any of the other cases upon which the
majority relies involved a defendant's coerced confession, nor were there
present in these cases the distinctive reasons underlying the exclusion of
coerced incriminating statements of the defendant. {7}  First, some coerced
confessions may be untrustworthy.  Jackson v. Denno, 378 U. S., at 385-386;
Spano v. New York, 360 U. S., at 320.  Consequently, admission of coerced
confessions may distort the truth-seeking function of the trial upon which
the majority focuses.  More importantly, however, the use of coerced
confessions, "whether true or false," is forbidden "because the methods
used to extract them offend an underlying principle in the enforcement of
our criminal law: that ours is an accusatorial and not an inquisitorial
system -- a system in which the State must establish guilt by evidence
independently and freely secured and may not by coercion prove its charge
against an accused out of his own mouth," Rogers v. Richmond, 365 U. S., at
540-541; see also Lego, 404 U. S., at 485.  This reflects the "strongly
felt attitude of our society that important human values are sacrificed
where an agency of the government, in the course of securing a conviction,
wrings a confession out of an accused against his will," Blackburn v.
Alabama, 361 U. S., at 206-207, as well as "the deep-rooted feeling that
the police must obey the law while enforcing the law; that in the end life
and liberty can be as much endangered from illegal methods used to convict
those thought to be criminals as from the actual criminals themselves,"
Spano, supra, at 320-321.  Thus, permitting a coerced confession to be part
of the evidence on which a jury is free to base its verdict of guilty is
inconsistent with the thesis that ours is not an inquisitorial system of
criminal justice.  Cf. Chambers v. Florida, 309 U. S., 235-238.
    As the majority concedes, there are other constitutional errors that
invalidate a conviction even though there may be no reasonable doubt that
the defendant is guilty and would be convicted absent the trial error.  For
example, a judge in a criminal trial "is prohibited from entering a
judgment of conviction or directing the jury to come forward with such a
verdict, see Sparf & Hansen v. United States, 156 U. S. 51, 105 (1895);
Carpenters v. United States, 330 U. S. 395, 408 (1947), regardless of how
overwhelmingly the evidence may point in that direction."  United States v.
Martin Linen Supply Co., 430 U. S. 564, 572-573 (1977).  A defendant is
entitled to counsel at trial, Gideon v. Wainwright, 372 U. S. 335 (1963),
and as Chapman recognized, violating this right can never be harmless
error.  386 U. S., at 23, and n. 8.  See also White v. Maryland, 373 U. S.
59 (1963), where a conviction was set aside because the defendant had not
had counsel at a preliminary hearing without regard to the showing of
prejudice.  In Vasquez v. Hillery, 474 U. S. 254 (1986), a defendant was
found guilty beyond reasonable doubt, but the conviction had been set aside
because of the unlawful exclusion of members of the defendant's race from
the grand jury that indicted him, despite overwhelming evidence of his
guilt.  The error at the grand jury stage struck at fundamental values of
our society, and "undermine[d] the structural integrity of the criminal
tribunal itself, and [was] not amenable to harmless-error review."  Id., at
263-264.  Vasquez, like Chapman, also noted that rule of automatic reversal
when a defendant is tried before a judge with a financial interest in the
outcome, Tumey v. Ohio, 273 U. S. 510, 535 (1927), despite a lack of any
indication that bias influenced the decision.  Waller v. Georgia, 467 U. S.
39, 49 (1984), recognized that violation of the guarantee of a public trial
required reversal without any showing of prejudice and even though the
values of a public trial may be intangible and unprovable in any particular
case.
    The search for truth is indeed central to our system of justice, but
"certain constitutional rights are not, and should not be, subject to
harmless-error analysis because those rights protect important values that
are unrelated to the truthseeking function of the trial."  Rose v. Clark,
478 U. S., at 587 (Stevens, J., concurring in judgment).  The right of a
defendant not to have his coerced confession used against him is among
those rights, for using a coerced confession "abort[s] the basic trial
process" and "render[s] a trial fundamentally unfair."  Id., at 577, 578,
n. 6.
    For the foregoing reasons the four of us would adhere to the consistent
line of authority that has recognized as a basic tenet of our criminal
justice system, before and after both Miranda and Chapman, the prohibition
against using a defendant's coerced confession against him at his criminal
trial.  Stare decisis is "of fundamental importance to the rule of law,"
Welch v. Texas Highways and Public Transp. Dept., 483 U. S. 468, 494
(1987); the majority offers no convincing reason for overturning our long
line of decisions requiring the exclusion of coerced confessions.

IV


    Since five Justices have determined that harmless error analysis
applies to coerced confessions, it becomes necessary to evaluate under that
ruling the admissibility of Fulmi nante's confession to Sarivola.  Cf.
Pennsylvania v. Union Gas Co. 491 U. S. 1, 45 (1989) (White, J., concurring
in judgment in part and dissenting in part); id., at 57 (O'Connor, J.,
dissenting).  Chapman v. California, 386 U. S., at 24, made clear that
"before a federal constitutional error can be held harmless, the court must
be able to declare a belief that it was harmless beyond a reasonable
doubt."  The Court has the power to review the record de novo in order to
determine an error's harmlessness.  See ibid.; Satterwhite v. Texas, 486 U.
S., at 258.  In so doing, it must be determined whether the State has met
its burden of demonstrating that the admission of the confession to
Sarivola did not contribute to Fulminante's conviction.  Chapman, supra, at
26.  Five of us are of the view that the State has not carried its burden
and accordingly affirm the judgment of the court below reversing
petitioner's conviction.
    A confession is like no other evidence.  Indeed, "the defendant's own
confession is probably the most probative and damaging evidence that can be
admitted against him. . . .  [T]he admissions of a defendant come from the
actor himself, the most knowledgeable and unimpeachable source of
information about his past conduct.  Certainly, confessions have profound
impact on the jury, so much so that we may justifiably doubt its ability to
put them out of mind even if told to do so."  Bruton v. United States, 391
U. S., at 139140 (White, J., dissenting).  See also Cruz v. New York, 481
U. S., at 195 (White, J., dissenting) (citing Bruton).  While some
statements by a defendant may concern isolated aspects of the crime or may
be incriminating only when linked to other evidence, a full confession in
which the defendant discloses the motive for and means of the crime may
tempt the jury to rely upon that evidence alone in reaching its decision.
In the case of a coerced confession such as that given by Fulminante to
Sarivola, the risk that the confession is unreliable, coupled with the
profound impact that the confession has upon the jury, requires a reviewing
court to exercise extreme caution before determining that the admission of
the confession at trial was harmless.
    In the Arizona Supreme Court's initial opinion, in which it determined
that harmless-error analysis could be applied to the confession, the court
found that the admissible second confession to Donna Sarivola rendered the
first confession to Anthony Sarivola cumulative.  161 Ariz., at 245-246,
778 P. 2d, at 610-611.  The court also noted that circumstantial physical
evidence concerning the wounds, the ligature around Jeneane's neck, the
location of the body, and the presence of motorcycle tracks at the scene
corroborated the second confession.  Ibid.  The court concluded that "due
to the overwhelming evidence adduced from the second confession, if there
had not been a first confession, the jury would still have had the same
basic evidence to convict" Fulminante.  Id., at 246, 778 P. 2d, at 611.
    We have a quite different evaluation of the evidence.  Our review of
the record leads us to conclude that the State has failed to meet its
burden of establishing, beyond a reasonable doubt, that the admission of
Fulminante's confession to Anthony Sarivola was harmless error.  Three
considerations compel this result.
    First, the transcript discloses that both the trial court and the State
recognized that a successful prosecution depended on the jury believing the
two confessions.  Absent the confessions, it is unlikely that Fulminante
would have been prosecuted at all, because the physical evidence from the
scene and other circumstantial evidence would have been insufficient to
convict.  Indeed, no indictment was filed until nearly two years after the
murder. {8}  App. 2.  Although the police had suspected Fulminante from the
beginning, as the prosecutor acknowledged in his opening statement to the
jury, "[W]hat brings us to Court, what makes this case fileable, and
prosecutable and triable is that later, Mr. Fulminante confesses this crime
to Anthony Sarivola and later, to Donna Sarivola, his wife."  App. 65-66.
After trial began, during a renewed hearing on Fulminante's motion to
suppress, the trial court opined, "You know, I think from what little I
know about this trial, the character of this man [Sarivola] for
truthfulness or untruthfulness and his credibility is the centerpiece of
this case, is it not?," to which the prosecutor responded, "It's very
important, there's no doubt."  App. 62.  Finally, in his closing argument,
the prosecutor prefaced his discussion of the two confessions by conceding,
"[W]e have a lot of [circumstantial] evidence that indicates that this is
our suspect, this is the fellow that did it, but it's a little short as far
as saying that it's proof that he actually put the gun to the girl's head
and killed her.  So it's a little short of that.  We recognize that."  10
Tr. 75 (Dec. 17, 1985).
    Second, the jury's assessment of the confession to Donna Sarivola could
easily have depended in large part on the presence of the confession to
Anthony Sarivola.  Absent the admission at trial of the first confession,
the jurors might have found Donna Sarivola's story unbelievable.
Fulminante's confession to Donna Sarivola allegedly occurred in May 1984,
on the day he was released from Ray Brook, as she and Anthony Sarivola
drove Fulminante from New York to Pennsylvania.  Donna Sarivola testified
that Fulminante, whom she had never before met, confessed in detail about
Jeneane's brutal murder in response to her casual question concerning why
he was going to visit friends in Pennsylvania instead of returning to his
family in Arizona.  App. 167-168.  Although she testified that she was
"disgusted" by Fulmin ante's disclosures, id., at 169, she stated that she
took no steps to notify authorities of what she had learned.  Id., at
172-173.  In fact, she claimed that she barely discussed the matter with
Anthony Sarivola, who was in the car and overheard Fulminante's entire
conversation with Donna.  Id., at 174-175.  Despite her disgust for
Fulminante, Donna Sari vola later went on a second trip with him.  Id., at
173-174.  Although Sarivola informed authorities that he had driven
Fulminante to Pennsylvania, he did not mention Donna's presence in the car
or her conversation with Fulminante.  Id., at 159-161.  Only when
questioned by authorities in June 1985 did Anthony Sarivola belatedly
recall the confession to Donna more than a year before, and only then did
he ask if she would be willing to discuss the matter with authorities.
Id., at 90-92.
    Although some of the details in the confession to Donna Sarivola were
corroborated by circumstantial evidence, many, including details that
Jeneane was choked and sexually assaulted, were not.  Id., at 186-188.  As
to other aspects of the second confession, including Fulminante's motive
and state of mind, the only corroborating evidence was the first confession
to Anthony Sarivola. {9}  No. CR 142821 (Super. Ct. Maricopa County, Ariz.,
Feb. 11, 1986), pp. 3-4.  Thus, contrary to what the Arizona Supreme Court
found, it is clear that the jury might have believed that the two
confessions reinforced and corroborated each other.  For this reason, one
confession was not merely cumulative of the other.  While in some cases two
confessions, delivered on different occasions to different listeners, might
be viewed as being independent of each other, cf. Milton v. Wainwright, 407
U. S. 371 (1972), it strains credulity to think that the jury so viewed the
two confessions in this case, especially given the close relationship
between Donna and Anthony Sarivola.
    The jurors could also have believed that Donna Sarivola had a motive to
lie about the confession in order to assist her husband.  Anthony Sarivola
received significant benefits from federal authorities, including payment
for information, immunity from prosecution, and eventual placement in the
federal Witness Protection Program.  App. 79, 114, 129-131.  In addition,
the jury might have found Donna motivated by her own desire for favorable
treatment, for she, too, was ultimately placed in the Witness Protection
Program.  Id., at 176, 179-180.
    Third, the admission of the first confession led to the admission of
other evidence prejudicial to Fulminante.  For example, the State
introduced evidence that Fulminante knew of Sarivola's connections with
organized crime in an attempt to explain why Fulminante would have been
motivated to confess to Sarivola in seeking protection.  Id., at 45-48, 67.
Absent the confession, this evidence would have had no relevance and would
have been inadmissible at trial.  The Arizona Supreme Court found that the
evidence of Sarivola's connections with organized crime reflected on
Sarivola's character, not Fulminante's, and noted that the evidence could
have been used to impeach Sarivola.  161 Ariz., at 245-246, 778 P. 2d, at
610-611.  This analysis overlooks the fact that had the confession not been
admitted, there would have been no reason for Sarivola to testify and thus
no need to impeach his testimony.  Moreover, we cannot agree that the
evidence did not reflect on Fulminante's character as well, for it depicted
him as someone who willingly sought out the company of criminals.  It is
quite possible that this evidence led the jury to view Fulminante as
capable of murder. {10}
    Finally, although our concern here is with the effect of the erroneous
admission of the confession on Fulminante's conviction, it is clear that
the presence of the confession also influenced the sentencing phase of the
trial.  Under Arizona law, the trial judge is the sentencer.  Ariz. Rev.
Stat. MDRV 13703(B) (1989).  At the sentencing hearing, the admissibility
of information regarding aggravating circumstances is governed by the rules
of evidence applicable to criminal trials.  MDRV 13-703(C).  In this case,
"based upon admissible evidence produced at the trial," No. CR 142821,
supra, at 2, the judge found that only one aggravating circumstance existed
beyond a reasonable doubt, i. e., that the murder was committed in "an
especially heinous, cruel, and depraved manner."  Ibid.; see Ariz. Rev.
Stat. MDRV 13-703(F)(6) (1989).  In reaching this conclusion, the judge
relied heavily on evidence concerning the manner of the killing and
Fulminante's motives and state of mind which could only be found in the two
confessions.  For example, in labeling the murder "cruel," the judge
focused in part on Fulminante's alleged statements that he choked Jeneane
and made her get on her knees and beg before killing her.  No. CR 142821,
supra, at 3.  Although the circumstantial evidence was not inconsistent
with this determination, neither was it sufficient to make such a finding
beyond a reasonable doubt.  Indeed, the sentencing judge acknowledged that
the confessions were only partly corroborated by other evidence.  Ibid.
    In declaring that Fulminante "acted with an especially heinous and
depraved state of mind," the sentencing judge relied solely on the two
confessions.  Id., at 4.  While the judge found that the statements in the
confessions regarding the alleged sexual assault on Jeneane should not be
considered on the issue of cruelty because they were not corroborated by
other evidence, the judge determined that they were worthy of belief on the
issue of Fulminante's state of mind.  Ibid.  The judge then focused on
Anthony Sarivola's statement that Fulminante had made vulgar references to
Jeneane during the first confession, and on Donna Sarivola's statement that
Fulminante had made similar comments to her.  Ibid.  Finally, the judge
stressed that Fulminante's alleged comments to the Sarivolas concerning
torture, choking, and sexual assault, "whether they all occurred or not,"
ibid., depicted "a man who was bragging and relishing the crime he
committed."  Id., at 5.
    Although the sentencing judge might have reached the same conclusions
even without the confession to Anthony Sarivola, it is impossible to say so
beyond a reasonable doubt.  Furthermore, the judge's assessment of Donna
Sarivola's credibility, and hence the reliability of the second confession,
might well have been influenced by the corroborative effect of the
erroneously admitted first confession.  Indeed, the fact that the
sentencing judge focused on the similarities between the two confessions in
determining that they were reliable suggests that either of the confessions
alone, even when considered with all the other evidence, would have been
insufficient to permit the judge to find an aggravating circumstance beyond
a reasonable doubt as a requisite prelude to imposing the death penalty.
    Because a majority of the Court has determined that Ful minante's
confession to Anthony Sarivola was coerced and because a majority has
determined that admitting this confession was not harmless beyond a
reasonable doubt, we agree with the Arizona Supreme Court's conclusion that
Ful minante is entitled to a new trial at which the confession is not
admitted.  Accordingly the judgment of the Arizona Supreme Court is
Affirmed.
------------------------------------------------------------------------------
1
    In its initial opinion, the Arizona Supreme Court had determined that
the second confession, to Donna Sarivola was not the "fruit of the
poisonous tree," because it was made six months after the confession to
Sarivola; it occurred after Fulminante's need for protection from Sarivola
presumably had ended; and it took place in the course of a casual
conversation with someone who was not an agent of the State.  161 Ariz.
237, 246, 778 P. 2d 602, 611 (1988).  The court adhered to this
determination in its supplemental opinion.  Id., at 262, 778 P. 2d, at 627.
This aspect of the Arizona Supreme Court's decision is not challenged
here.

2
    There are additional facts in the record, not relied upon by the
Arizona Supreme Court, which also support a finding of coercion.
Fulminante possesses low average to average intelligence; he dropped out of
school in the fourth grade.  Record 88i, 88o.  He is short in stature and
slight in build.  Id., at 88.  Although he had been in prison before,
ibid., he had not always adapted well to the stress of prison life.  While
incarcerated at the age of 26, he had "felt threatened by the [prison]
population," id., at 88x, and he therefore requested that he be placed in
protective custody.  Once there, however, he was unable to cope with the
isolation and was admitted to a psychiatric hospital.  Id., at 88t-88b1.
The Court has previously recognized that factors such as these are relevant
in determining whether a defendant's will has been overborne.  See, e. g.,
Payne v. Arkansas, 356 U. S. 560, 567 (1958) (lack of education); Reck v.
Pate, 367 U. S. 433, 441 (1961) (low intelligence).  Cf. Schneckloth v.
Bustamonte, 412 U. S. 218, 226 (1973) (listing potential factors); Culombe
v. Connecticut, 367 U. S. 568, 602 (1961) (same).  In addition, we note
that Sarivola's position as Fulminante's friend might well have made the
latter particularly susceptible to the former's entreaties.  See Spano v.
New York, 360 U. S. 315, 323 (1959).

3
    Our prior cases have used the terms "coerced confession" and "in
voluntary confession" interchangeably "by way of convenient shorthand."
Blackburn v. Alabama, 361 U. S. 199, 207 (1960).  We use the former term
throughout this opinion, as that is the term used by the Arizona Supreme
Court.

4
    The parties agree that Sarivola acted as an agent of the Government
when he questioned Fulminante about the murder and elicited the confession.
Brief for Petitioner 19; Brief for Respondent 2.

5
    In Satterwhite v. Texas, 486 U. S. 249 (1988), and Moore v. Illinois,
434 U. S. 220 (1977), the harmless error rule was applied to the admission
of evidence in violation of the Sixth Amendment Counsel Clause, but in
neither case did the error involve admitting a confession or an
incriminating statement of the defendant, which was the case in Milton v.
Wainwright.

6
    Howard v. Pung, 862 F. 2d 1348, 1351 (CA8 1988), cert. denied, 492 U.
S. 920 (1989); United States v. Johnson, 816 F. 2d 918, 923 (CA3 1987);
Bryant v. Vose, 785 F. 2d 364, 367 (CA1), cert. denied, 477 U. S. 907
(1986); Martin v. Wainwright, 770 F. 2d 918, 932 (CA11 1985), modified, 781
F. 2d 185, cert. denied, 479 U. S. 909 (1986); United States v. Ramirez,
710 F. 2d 535, 542-543 (CA9 1983); Harryman v. Estelle, 616 F. 2d 870, 875
(CA5) (en banc), cert. denied, 449 U. S. 860 (1980).

7
    The same can be said of the Miranda cases.  As the Court has
recognized, a Miranda violation "does not mean that the statements received
have actually been coerced, but only that the courts will presume the
privilege against compulsory self-incrimination has not been intelligently
exercised."  Oregon v. Elstad, 470 U. S. 298, 310 (1985).  See also New
York v. Quarles, 467 U. S. 649, 654 (1984).

8
    Although Fulminante had allegedly confessed to Donna Sarivola several
months previously, police did not yet know of this confession, which
Anthony Sarivola did not mention to them until June 1985.  App. 90-92.
They did, however, know of the first confession, which Fulminante had given
to Anthony Sarivola nearly a year before.

9
    The inadmissible confession to Anthony Sarivola was itself subject to
serious challenge.  Sarivola's lack of moral integrity was demonstrated by
his testimony that he had worked for organized crime during the time he was
a uniformed police officer.  App. 74-75, 104-105.  His overzealous approach
to gathering information for which he would be paid by authorities, id., at
79, was revealed by his admission that he had fabricated a tape recording
in connection with an earlier, unrelated FBI investigation.  Id., at 96-98.
He received immunity in connection with the information he provided.  Id.,
at 129.  His eagerness to get in and stay in the federal Witness Protection
Program provided a motive for giving detailed information to authorities.
Id., at 114, 129-131.  During his first report of the confession, Sarivola
failed to hint at numerous details concerning an alleged sexual assault on
Jeneane; he mentioned them for the first time more than a year later during
further interrogation, at which he also recalled, for the first time, the
confession to Donna Sarivola.  Id., at 90-92, 148-149.  The impeaching
affect of each of these factors was undoubtedly undercut by the presence of
the second confession, which, not surprisingly, recounted a quite similar
story and thus corroborated the first confession.  Thus, each confession,
though easily impeachable if viewed in isolation, became difficult to
discount when viewed in conjunction with the other.

10
    Fulminante asserts that other prejudicial evidence, including his prior
felony convictions and incarcerations, and his prison reputation for
untruthfulness, likewise would not have been admitted had the confession to
Sarivola been excluded.  Brief for Respondent 31-32.  Because we find that
the admission of the confession was not harmless in any event, we express
no opinion as to the effect any of this evidence might have had on
Fulminante's conviction.