89-839 — DISSENT v. FULMINANTE

No. 89-839

ARIZONA, PETITIONER v. ORESTE C. FULMINANTE

[March 26, 1991]

Justice Kennedy, concurring in the judgment.

For the reasons stated by The Chief Justice, I agree that Fulminante's confession to Anthony Sarivola was not coerced. In my view, the trial court did not err in admitting this testimony. A majority of the Court, however, finds the confession coerced and proceeds to consider whether harmless-error analysis may be used when a coerced confession has been admitted at trial. With the case in this posture, it is appropriate for me to address the harmless-error issue.

Again for the reasons stated by The Chief Justice, I agree that harmless-error analysis should apply in the case of a coerced confession. That said, the court conducting a harmless-error inquiry must appreciate the indelible impact a full confession may have on the trier of fact, as distinguished, for instance, from the impact of an isolated statement that incriminates the defendant only when connected with other evidence. If the jury believes that a defendant has admitted the crime, it doubtless will be tempted to rest its decision on that evidence alone, without careful consideration of the other evidence in the case. Apart, perhaps, from a videotape of the crime, one would have difficulty finding evidence more damaging to a criminal defendant's plea of innocence. For the reasons given by Justice White in Part IV of his opinion, I cannot with confidence find admission of Fulmin ante's confession to Anthony Sarivola to be harmless error.

The same majority of the Court does not agree on the three issues presented by the trial court's determination to admit Fulminante's first confession: whether the confession was inadmissible because coerced; whether harmless error analysis is appropriate; and if so whether any error was harmless here. My own view that the confession was not coerced does not command a majority.

In the interests of providing a clear mandate to the Arizona Supreme Court in this capital case, I deem it proper to accept in the case now before us the holding of five Justices that the confession was coerced and inadmissible. I agree with a majority of the Court that admission of the confession could not be harmless error when viewed in light of all the other evidence; and so I concur in the judgment to affirm the ruling of the Arizona Supreme Court.