Sam Hoover v. Dr. George J. Beto, Director, Texas Department of Corrections

GEWIN, Circuit Judge,

concurring in part and dissenting in part (with whom RIVES and GODBOLD, Circuit Judges, join in that portion of the opinion dealing with confrontation and harmless error) :

I fully concur in the opinion of the majority that Hoover consented to the search of his home. In my view Hoover invited the officers to search his home. I disagree with that portion of the dissent which would hold that Bumper v. North Carolina, 391 U.S. 543 , 88 S.Ct. 1788 , 20 L.Ed.2d 797 (1968) establishes a per se rule that there can be no consent to a search once the officers have disclosed that they possess a search warrant. Judge Rives makes much of the fact that the Court in Bumper did not specifically limit its holding to the peculiar circumstances to that case. (Rives, J. dissenting, p. 546). However the Supreme Court was clearly influenced substantially by the facts in Bumper . Mr. Justice Stewart graphically summarized the factual setting :

“The petitioner lived with his grandmother, Mrs. Hattie Leath, a 66-year-old Negro widow, in a house located in a rural area at the end of an isolated mile-long dirt road. Two days after the alleged offense but prior to the petitioner’s arrest, four white law enforcement officers — the county sheriff, two of his deputies, and a state investigator — went to this house and found Mrs. Leath there with some young children. She met the officers at the front door. One of them announced, T have a search warrant to search your house.’ Mrs. Leath responded, ‘Go ahead,’ and opened the door. In the kitchen the officers found the rifle that was later introduced in evidence at the petitioner’s trial after a motion to suppress had been denied.”

391 U.S. at 546 , 88 S.Ct. at 1790 , 20 L.Ed.2d at 801 .

The Court held that the prosecutor’s burden of proving that the consent to search was in fact freely and voluntarily given cannot be discharged by showing no more than acquiescence to a claim of lawful authority. But the record here discloses that Hoover was a well trained lawyer with wide experience in the practice of criminal law who invited the officers to search his home. I simply cannot equate the circumstances in the two cases.

However I do agree with the conclusions reached by the dissent in Part II regarding the lack of confrontation. Particularly in view of the Supreme Court’s recent decision in Mancusi v. Stubbs, 408 U.S. 204 , 92 S.Ct. 2308 , 33 L.Ed.2d 293 (June 26, 1972) it is clear that Dutton v. Evans, 400 U.S. 74 , 91 S.Ct. 210 , 27 L.Ed.2d 213 (1970) was not intended to represent a radical departure from the Court’s traditional analysis of confrontation. 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); Barber v. Page, 390 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 (1968); Bruton v. United States, 391 *566 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968); California v. Green, 399 U.S. 149 , 90 S.Ct. 1930 , 26 L.Ed.2d 489 (1970).

In the first instance the record here discloses no showing of “the predicate of unavailability”, Mancusi, 408 U.S. at 212 , 92 S.Ct. at 2313 , 33 L.Ed.2d at 301 , with regard to Sellars. The majority’s contention that Sellars may be presumed unavailable because of the possible invocation of his 5th Amendment rights leaves the prosecution in the same position as in Douglas v. Alabama, supra, in which the court reversed a conviction where the prosecution read into the record an alleged confession of the defendant’s supposed accomplice, Loyd, who refused to testify on self-incrimination grounds. The confrontation problem arose precisely because Loyd could not be cross-examined as to his prior statement. California v. Green, 399 U.S. at 163 , 90 S.Ct. at 1937 , 26 L.Ed.2d at 499-500 .

If the recitation of Sellars’ confession amounted to nothing more than a mere violation of the hearsay rule then I would not view the confession as a denial of confrontation. Dutton v. Evans, supra. But the confession, even if wholly voluntary, did not afford the jury a satisfactory basis for evaluating the truth of the statement. The confession was neither given nor acknowledged under oath; Sellars was never at any time subjected to cross examination as to the truth or accuracy of the confession, or whether he had in fact made such a statement; and the jury was never given the opportunity to observe Sellars or form any judgment as to his credibility.

Moreover this confession did not contain the indicia of reliability which the Court found in Dutton v. Evans, supra. Unlike Dutton this case does involve evidence which is “crucial” or “devastating.” 400 U.S. at 87 , 91 S.Ct. at 219 , 27 L.Ed.2d at 226 . Unlike Dutton this case does involve the use ,of a confession made in the coercive atmosphere of official interrogation. 400 U.S. at 87 , 91 S.Ct. at 219 , 27 L.Ed.2d at 226 . Unlike Dutton this confession does contain express and extensive assertions about past facts. 400 U.S. at 88 , 91 S.Ct. at 219 , 27 L.Ed.2d at 227 . Unlike Dutton the confession here was not given in circumstances which would give reason to suppose that Sellars would truthfully represent Hoover’s involvement in the crime. 400 U.S. at 89 , 91 S.Ct. at 219 , 27 L.Ed.2d at 227 . Unlike Dutton Sellars’ confession was not spontaneous. 400 U.S. at 89 , 91 S.Ct. at 220 , 27 L.Ed.2d at 227 .

This case is fully distinguishable from the other Supreme Court decisions in which no violation of confrontation has been found. In California v. Green, supra, confrontation was provided at the time of trial in the cross examination of the declarant about his unsworn statement. In Mancusi v. Stubbs, supra, confrontation was provided by the opportunity for cross examination at the first trial. Here Hoover was never at any time given the opportunity to confront Sellars with his unsworn confession to the police. Instead the jury was invited to believe in the truth of the confession of the unseen and unsworn Sellars as it came from the far more credible mouth of Officer Stone. Without regard to the hearsay rule, this lack of confrontation denied Hoover a fair trial.

Finally, with respect to the claim of “harmless error” I join in Part III of Judge Rives’ dissent to the extent that he indicates that the introduction of Sel-lars’ confession was not “harmless error.” I feel the court should heed the admonition of Justice Frankfurter in Bollenbach v. United States, 326 U.S. 607 , 66 S.Ct. 402 , 90 L.Ed. 350 (1946) :

“From presuming too often all errors to be ‘prejudicial,’ the judicial pendulum need not swing to presuming all errors to be ‘harmless’ if only the appellate court is left without doubt that one who claims its corrective process is, after all, guilty. In view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered *567 by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be.”

326 U.S. at 615 , 66 S.Ct. at 406 , 90 L.Ed. at 356 .