Schepps v. State

OPINION ON STATE’S MOTION FOR RE-HEARING

ONION, Judge.

Subsequent to our original opinion and opinions on appellant’s motion for re-hearing, the United States Supreme Court has handed down its decision in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 and Roberts v. Russell, 392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed.2d 1100 . The question now presented upon which this appeal must turn was not clearly raised until appellant’s motion for re-hearing, but it is one that requires review under the provisions of Article 40.09, Sec. 13, V.A.C.C.P. And it must be answered before reaching any other question on the admissibility of the confessions, particularly the question of whether the trial court erred in refusing to excise from the confessions as requested.

The precise question presented is whether the appellant, charged as an accomplice to the offense of printing and making a counterfeit cigarette tax stamp, was deprived of his federal constitutional right (6th and 14th Amendments) to be confronted with the witnesses against him. See also Texas Constitution, Art. I, Sec. 10. At appellant’s trial the extrajudicial confessions of three of the alleged principals named in the indictment, 1 Fusilier, Reyes and Vitello, taken after their arrest and in appellant’s absence, were introduced over his specific objection that he was being deprived of his right of confrontation and cross-examination and that said confessions were hearsay implicating him.

In discussing the right of confrontation, the Supreme Court recently said in Barber *939 v. Page, 390 U.S. 719 , 88 S.Ct. 1318 , 20 L.Ed.2d 255 :

“Many years ago this Court stated that ‘The primary object of the [Confrontation clause of the Sixth Amendment] * * * was to prevent depositions or ex parte affidavits * * * being used against the prisoner in lieu of a personal examination and cross examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.’ Mattox v. United States, 156 U.S. 237, 242-243 , 15 S.Ct. 337, 339 , 39 L.Ed. 409, 411 (1895). More recently, in holding the Sixth Amendment right of confrontation applicable to the States through the Fourteenth Amendment, this Court said:

“ ‘There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.’ Pointer v. State of Texas, 380 U.S. 400, 405 , 85 S.Ct. 1065, 1068 , 13 L.Ed.2d 923, 927 (1965). See also Douglas v. State of Alabama, 380 U.S. 415 , 85 S.Ct. 1074 , 13 L.Ed.2d 934 (1965).” See also 21 Amer.Jur.2d, Sec. 337, p. 364; Garcia v. State, 151 Tex.Cr.R. 593 , 210 S.W.2d 574 .

In Pointer v. State of Texas, supra, the Supreme Court held that the constitutional right of an accused to be confronted with the witnesses against him is denied at a state criminal trial where the examining trial transcript of a witness’ testimony was admitted into evidence and this testimony was taken at a time and under circumstances affording the accused no adequate opportunity to cross-examine the witness through counsel.

In Barber v. Page, supra, the Court pointed out that the accused’s right to confrontation of witnesses is basically a trial right. At Barber’s Oklahoma state trial for robbery, the prosecution, over objection, introduced the transcript of the testimony of a witness who was jointly charged with him, given at the preliminary hearing, at which Barber and the witness were jointly represented by the same counsel, who withdrew as the witness’s attorney when such witness waived his self-incrimination privilege. Such counsel did not cross-examine such witness although an attorney for another co-defendant did. At the time of Barber’s trial the witness was incarcerated in a federal prison in Texas, and the State made no effort to obtain his presence at the trial. His conviction was affirmed by the Oklahoma Court of Criminal Appeals. On certiorari from the Tenth Circuit Court of Appeals’ af-firmance ( 381 F.2d 479 (10 Cir.)) of the federal district court’s rejection of Barber’s habeas corpus claim of a confrontation denial, the United States Supreme Court reversed, holding that the use against Barber at his trial of the witness’ preliminary hearing testimony deprived him of his Sixth and Fourteenth Amendment rights to be confronted with the witness against him at his trial.

Making the result unanimous, Mr. Justice Harlan concurred in a separate opinion on the premises of his view that the case was governed by the due process clause of the Fourteenth Amendment, stating he agreed that the State’s failure to attempt to obtain the presence of the witness denied the petitioner due process.

In Brookhart v. Janis, 384 U.S. 1 , 86 S.Ct. 1245 , 16 L.Ed.2d 314 , there was introduced into evidence against the accused an alleged confession made out of court by one of his co-defendants, Mitchell, who did not testify in court, which denied the accused any opportunity to confront and cross- *940 examine the witness who made this very-damaging statement. There the Court said: “[A] denial of cross examination without waiver * * * would be a constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” See also Smith v. State of Illinois, 390 U.S. 129 , 88 S.Ct. 748 , 19 L.Ed.2d 956 (January 29, 1968).

Further, since our opinion on appellant’s motion for re-hearing and bearing strongly on the validity of limiting jury instructions, the United States Supreme Court in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 , overruled Delli Paoli v. United States, 352 U.S. 232 , 77 S.Ct. 294 , 1 L.Ed.2d 278 , and held that despite instructions to the jury to disregard the implicating statements in determining the co-defendant’s guilt or innocence, admission at a joint trial of a defendant’s extrajudicial confession implicating a co-defendant violated the co-defendant’s right of cross-examination secured by the confrontation clause of the Sixth Amendment. See Jones v. United States, 392 U.S. 299 , 88 S.Ct. 2050 , 20 L.Ed.2d 1104 , (June 10, 1968); People v. Aranda, 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 .

In Roberts v. Russell, 392 U.S. 293 , 88 S.Ct. 1921 , 20 L.Ed.2d 1100 , the Supreme Court held that the Bruton decision was not only applicable to a state proceeding (Tennessee) but that the decision overruling Delli Paoli was retroactive.

Turning aside from the constitutional issue for a moment, we should now examine the well settled Texas rule, to-wit: “that the admissions and confessions of the principal (if they would be admissible if the principal were on trial) are admissible on the trial of the accomplice, not for the purpose of proving the guilt of the accomplice, but for the purpose solely of proving the guilt of the principal.” Browney v. State, 128 Tex.Cr.R. 81 , 79 S.W.2d 311, 314 ; See also White v. State, 10 Tex.App. 167 ; Smith v. State, 91 Tex.Cr.R. 15 , 237 S.W. 265 ; 2 Branch’s Anno.P.C., 2nd Ed., Sec. 754, p. 52.

The general rule of law with regard to confessions made by one party after the deed has been committed and in the absence of the accused (as these in the case at bar) has long been that such confessions of guilt can only be used against the person giving the confession and is inadmissible against others under the hearsay rule. See McCormick & Ray, Texas Law of Evidence, 2nd Ed., Sec. 1219, p. 96; 24 Tex.Jur.2d, Evidence, Sec. 667, p. 272.

An exception to such general rule appears to obtain where an accomplice is being tried separately from his principal. This exception is apparently bottomed on the fact that the State has the burden of proving the guilt of the principal in such case and, therefore, any testimony which would be admissible to show the guilt of the principal if he were on trial is admissible on the trial of the accomplice for the purpose of showing the guilt of the principal. See McCormick & Ray, Texas Law of Evidence, 2nd Ed., Sec. 1219, p. 97; 2 Branch’s Anno.P.C. 2nd Ed., Sec. 754, p. 52; 24 Tex.Jur.2d, Evidence, Sec. 669, p. 273. The rule is discussed at some length in Simms v. State, 10 Tex.App. 161 , where the Court recognized that a contrary rule formerly prevailed. 2 In holding the exception or rule not applicable and the confession of the principal inadmissible where the principal is a competent witness and testifies acknowledging his guilt, this Court in Browney v. State, 128 Tex.Cr.R. 81 , 79 S.W.2d 311 , speculated as to the reasons which gave rise to such rule. There the Court said:

“If the rule permitting the introduction of the principal’s confession on the trial *941 of the accomplice to establish the principal’s guilt grew out of the fact of the incompetency of the convicted principal to testify as a witness, or his nonavailability by virtue of flight or his refusal to testify as a witness for the state, then no reason appears for applying the rule in the present case.”

Whatever the reasons giving birth to the rule, such rule applies only, at least in Texas, where the person whose confession is sought to be used is named in the indictment as a principal. Sapp v. State, 87 Tex.Cr.R. 606 , 223 S.W. 459 . Further, statements in the confession which might relate solely to the guilt of the accomplice and which throw no light on the principal’s actions should be excluded. Smith v. State, 91 Tex.Cr.App. 15 , 237 S.W. 265 . However, it has been held that if such deletions render the confession incomplete and fragmentary, the confession in toto is admissible. In all cases, however, where the principal’s confession is received into evidence, the trial court is required, at least upon proper request, to guard the rights of the accomplice on trial by limiting in his charge the purpose of the confession to establishing the principal’s guilt alone. Smith v. State, supra; Hoyt v. State, 88 Tex.Cr.R. 612 , 228 S.W. 936 . The reliance under such rule upon such jury instructions to remove the harmful effect is the same reliance utilized in the now overruled Delli Paoli case.

May this rule or exception and the constitutional right of confrontation be reconciled? This writer’s research has failed to reveal any Texas case where this question has been adequately discussed.

We know, of course, that many of the constitutional provisions in the nature of a bill of rights are subject to exceptions arising from the necessity of the case which were recognized long before the adoption of the Constitution, and which do not interfere at all with its spirit. The Constitution did not intend to abrogate these exceptions. Therefore, “it has been customarily held that the right of confrontation may not be invoked to exclude evidence otherwise admissible under well-established legitimate exceptions to the hearsay rule. Kay v. United States, 255 F.2d 476 , 4 CCA (1958); Matthews v. United States, 217 F.2d 409 , 50 A.L.R.2d 1187 , 5 CCA (1954); United States v. Leathers, 135 F.2d 507 , 2 CCA (1943); 5 Wigmore, Evidence, 1397.” McDaniel v. United States, 343 F.2d 785 , 5th Cir., (1965), cert. denied, 382 U.S. 826 , 86 S.Ct. 59 , 15 L.Ed.2d 71 .

Among the well recognized exceptions have been (a) dying declarations, (b) testimony from former trial, and (c) documentary evidence to establish collateral facts admissible under the common law. Recognizing these exceptions the Court in Pointer v. State of Texas, supra, observed:

“There are other analogous situations which might not fall within the scope of the constitutional rule requiring confrontation of witnesses. The case before us, however, does not present any situation like those mentioned above or others analogous to them.” 380 U. S. at p. 407, 85 S.Ct. at p. 1070, 13 L.Ed.2d at p. 928.

Further, new exceptions to the hearsay rule may be created, without violating constitutional rights, if there exists a reasonable necessity for it and it is supported by an adequate basis for assurance that the evidence has those qualities of reliability and trustworthiness attributed to other evidence admissible under long established exceptions to the hearsay rule. See Kay v. United States, (4 Cir.) 255 F.2d 476 . While the Sixth Amendment does not prevent the carving out of new exceptions, it does embody the requirements of real necessity and adequate guarantees of trustworthiness as essential to all exceptions to the rule, present or future, for otherwise legislative bodies and courts could abolish the right of confrontation by simply making unlimited exceptions to the hearsay rule. See Matthews v. United States, supra. *942 See also Note 113 University of Pennsylvania Law Review 741, 748. Further, in Barber v. Page, supra, the Court made it clear that the rationale of hearsay exceptions in criminal cases must be continually re-evaluated.

Can it be said that the exception here under consideration embodies these requirements? First, is there a real necessity for its existence? The prosecution can only claim the benefit of such exception with regard to the principal’s confession when there is in fact a confession. Such confession cannot be used unless the principal is named in the indictment, and even then it cannot be offered if the named principal testifies, acknowledging his guilt. Browney v. State, supra. In joint trials of the principal and accomplice, it would not now be usable. Bruton v. United States, supra. In separate trials of the accomplice where other evidence has clearly established the principal’s guilt, the convenience of introducing the principal’s confession is not apparently greater than the convenience of admitting any hearsay. Certainly in these trials the State has a heavy burden and from time to time cases will arise where it might be impossible without the confession to meet that burden, but similar situations exist in many types of criminal trials where there is not the benefit of any such exception.

In the case at bar the State made no effort to demonstrate any great probative need for the evidence or to show that the alleged principals were actually unavailable to the prosecution as witnesses; they merely relied upon the old exception.

Second, what about the adequate guarantees of trustworthiness? One could speculate at length as to why people confess— fear, duress, conscience, revenge, reward, offers of immunity or leniency, etc.

While a confession is admissible against the person making the same as a declaration against interest, what he says therein about others may be based on spite, on fear, pique, malice, or other motives not leading to the truth. When the State has laid the proper predicate to authorize the introduction into evidence of the principal’s confession, does this assure the trustworthiness of the instrument, without the accused’s right of cross-examination, or to test the recollection of the principal and without the opportunity for the jury to observe the principal’s demeanor? I think not.

It is observed that the majority in Bruton characterized the credibility of incriminating extrajudicial statements of a codefend-ant as being “inevitably suspect.” The dissent acknowledged that such statements “have traditionally been viewed with special suspicion,” and as they incriminate others “are less credible than ordinary hearsay.” Therefore, the exception here under consideration does not furnish some guarantee of truth in a degree serving the purpose of an oath and cross-examination and some measure of necessity for resorting to hearsay.

The unreliability of such evidence is intolerably compounded when the alleged principals, as here, do not testify and cannot be tested by cross-examination. In the case at bar, while the State established that the confessions were taken in accordance with the law then in existence, the unsworn confession of the alleged principal, Reyes, was taken in the English language and the record reflects he neither reads or writes English and that he signed the confession implicating the appellant with an “x.”

The only safeguard furnished the non-confessing defendant (or accomplice) under the practice permitted by such exception is the limiting jury instructions or admonition to confine the evidentiary effect to the confessing principal. Is such admonition sufficient? While it is reasonable to assume that in many cases the jury can and will follow a judge’s limiting instructions as to such information, “[nevertheless, as was recognized in Jackson v. Denno * * * there are some contexts in *943 which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored * * * ” Bruton v. United States, supra. The context presented here is the same or similar to that in Bruton and such admonition cannot be considered sufficient.

There can be little question but that the practice under the exception is prejudicial and unfair to the non-declarant accomplice and presents a serious flaw in the fact finding process at trial.

Lacking the necessary elements of real necessity and the assurance of trustworthiness so essential, no sufficient rational basis or justification exists for the continued life of this exception to hearsay rule, and it must give way to the constitutional right of confrontation, in absence of any affirmative waiver of that right by the accused. This is particularly true when the question is considered in the light of the recent Supreme Court decisions discussed at the beginning of this opinion. Compare also Kirby v. United States, 174 U.S. 47 , 19 S.Ct. 574 , 43 L.Ed. 890 (where Sixth Amendment invoked as basis for barring similar evidence).

Certainly it may be argued that none of these decisions involved the admissions of an alleged principal’s confession at the separate trial of an accomplice, but we cannot waltz around the important constitutional issue here involved and validly distinguish the cases by simply color matching the facts. We cannot adopt the luxury of merely saying this case involved the use of examining trial testimony, this one did not; that case was a joint trial, this one was not.

“In criminal actions,.where life or liberty is at stake, courts should not adhere to precedents unjust to the accused. It is never too late to mend.” United States v. Delli Paoli (2d Cir.), 229 F.2d 319, 323 .

The State, of course, was required to prove the guilt of the alleged principals in the case at bar in order to convict the appellant as an accomplice, and it was entitled to present all the legitimate evidence it possessed to sustain its burden of proof despite the fact the evidence already presented appeared to have clearly established that element of the offense charged. The State, however, because of its burden of proof, was not entitled to introduce the extrajudicial confessions of three of the alleged principals in violation of the appellant’s federal and state constitutional right of confrontation.

In the case at bar, despite appellant’s objections, the State made no effort to show that the appellant had previously been afforded an adequate opportunity to be confronted by and to cross-examine the three principals whose confessions were used and that they were presently unavailable to the State so as to bring the case within the recognized exception to the constitutional right of confrontation. See Barber v. Page, supra.

For the reasons stated, the State’s motion for re-hearing is overruled.

. The alleged principals, named in the indictment as such, were not charged therein.

. “Upon an indictment against an accessory, a confession by the principal is not admissible to prove the guilt of the principal; it must be proved aluinde.” 1 Russ, on Crimes (9th ed.), side p. 76.