Petition — Parker v. Randolph

| Bupreme Court, U. &.-

( FILED

| JUL 18 1978

———oooorrrrrrrooororrr een ms .. CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

rea 78 ie 9 9

CHIEF HARRY PARKER

Petitioner,

vs.

JAMES RANDOLPH, WILBURN LEE PICKENS, and

ISAIAH HAMILTON

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Sixth Circuit

ROBERT E. KENDRICK

Deputy Attorney General

MICHAEL E. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

Phone: (615) 741-1376

Of Counsel:

WILLIAM M. LEECH

Attorney General

State of Tennessee

St. Louis Law Printing Co., Inc., 812 Olive Street 63101 314-231-4477

>

SUBJECT INDEX

EE ee eee ii

CETUS CUTE ey ca becveserccorccoces 1

Grounds on Which Jurisdiction Is Invoked .......... 2

Constitutional and Statutory Provisions Involved ...... 3

i pc kes c6bve esse ene Meee 4

CEC. SC Gh eck cecescccceveccees 5

Eee 9

NS ee eee 12

1. The Court of Appeals for the Sixth Circuit Has In-

correctly Interpreted the Law as Stated by This

Court in Bruton, Schneble, and Harrington ...... 12

Il. The Court of Appeals’ Affirmation of the District

Court’s Determination That Wilburn Pickens Was

Denied Access to Counsel, in Violation of Miranda,

Is Erroneous and Violates the Principles of Law Set

re 20

Ne ceca cccccces 26

INDEX TO APPENDIX

Memorandum Opinion of the United States Court of Ap-

peals for the Sixth Circuit, Filed May 19, 1978 ...... A-l

Memorandum Decision and Order filed by the United

States District Court for the Western District of Ten-

nessee, Western Division, Filed May 2, 1977 ....... A-7

Opinion of the Supreme Court of Tennessee at Jackson,

Filed December 15, 1975

Opinion of the Court of Criminal Appeals of Tennessee

me Decmeom, Fed Fume 5, 1974 .... ccc eee A-40

TABLE OF AUTHORITIES

Cases

Bruton v. United States, 391 U.S. 123

A re eee 4,9, 10, 12, 13, 15, 17, 18, 19, 20

Catanzaro v. Mancusi, 404 F.2d 296, cert. denied 397

a has we bees cde > ale 6 Muss 10, 17, 18, 19

Harrington v. California, 395 U.S. 250

| are ce Peer 4,9, 10, 12, 13, 15, 18, 19, 20

LaVallee v. Delle Rose, 410 U.S. 695 (1973) 342 Fed.

Supp. 567, 468 F.2d 1288 .............. 11, 24, 25, 26

Mack v. Maggio, 538 F.2d 1129 (Sth Cir. 1976) ...... 10, 19

Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) 10, 17, 19

Miranda v. Arizona, 384 U.S. 436 (1966) ....20, 21. 22, 23

Ortiz v. Fritz, 476 F.2d 37 (2d Cir. 1973) ............ 10

Schneble v. Florida, 405 U.S. 427 (1972) 4, 9, 10, 13, 15, 18, 20

Townsend v. Sain, 372 U.S. 293 (1963) . .10, 11, 23, 24, 25, 26

United States v. Digilio, 538 F.2d 972 (3d Cir. 1976) ..10, 19

United States v. Spinks, 470 F.2d 64 (7th Cir. 1972) ..10, 18

United States v. Walton, 538 F.2d 1348 (8th Cir.

PS aca ia ony ble wee ee et Oct 10, 18, 19

Other Authorities

ee I SC eg ee ee kee Lea eT 2

28 U.S.C. § 2254(d) ...... 3, 5, 10-11, 20, 21, 23, 24, 25, 26

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

RRO Se hae ee

CHIEF HARRY PARKER

Petitioner,

VS.

JAMES RANDOLPH, WILBURN LEE PICKENS, and

ISAIAH HAMILTON

Respondents.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

for the Sixth Circuit

The Petitioner, Chief Harry Parker, respectfully prays that

a Writ of Certiorari issue to review the judgment and opinion

of the United States Court of Appeals for the Sixth Circuit

rendered in this proceeding on May 19, 1978, wherein the

Court of Appeals affirmed the United States District Court

which has issued the writs of habeas corpus for the respond-

ents, three prisoners incarcerated by the State of Tennessee.

OPINIONS BELOW

The memorandum opinion of the United States Court of

Appeals for the Sixth Circuit was rendered on May 19, 1978,

ne

is styled Randolph, et al. v. Parker, Nos. 77-1463-65, and is

attached hereto as Appendix “A”.

The case arose as separate petitions for federal habeas corpus

relief which were consolidated in the United States District

Court for the Western District of Tennessee, Western Division.

At the district level these cases were styled James Randolph

v. Chief Harry Parker, Civil C-76-68; Wilburn Pickens v. Chief

Harry Parker, Civil C-76-69; and Isaiah Hamilton v. Chief

Harry Parker, Civil C-76-310. On May 2, 1977, Chief Judge

Brown entered a memorandum decision which is attached

hereto as Appendix “B”.

The opinion of the Supreme Court of Tennessee, reversing

the Tennessee Court of Criminal Appeals, and affirming the

convictions of the respondents, was filed on December 15,

1975 and a copy is attached hereto as Appendix “C”. The

opinion of the Tennessee Court of Criminal Appeals, revers-

ing the convictions of the respondents, was filed on June 5,

1974 and is attached hereto as Appendix “D”. None of these

opinions are reported.

GROUNDS ON WHICH JURISDICTION IS INVOKED

The opinion and judgment of the United States Court of

Appeals for the Sixth Circuit was rendered on May 19, 1978.

The State did not file a petition to rehear. This petition is

timely filed within ninety (90) days of the date of decision.

Jurisdiction is invoked pursuant to 28 U.S.C. § 1254(1).

ete

i amen

=

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

28 U.S.C. § 2254(d).

“State Custody; remedies in Federal courts.—

* * * * * + *

“(d) In any proceeding instituted in a Federal court by

an application for a writ of habeas corpus by a person

in custody pursuant to the judgment of a State court, a

determination after a hearing on the merits of a factual

issue, made by a State court of competent jurisdiction in a

proceeding to which the applicant for the writ and the

State or an officer or agent thereof were parties, evidenced

by a written finding, written opinion, or other reliable and

adequate written indicia, shall be presumed to be correct,

unless the applicant shal! establish or it shall otherwise

appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and fair

hearing;

(3) that the material facts were not adequately

developed at the State court hearing;

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant in

the State court proceeding;

(5) that the applicant was an indigent and the State

court, in deprivation of his constitutional right, failed

to appoint counsel to represent him in the State court

proceeding;

— yr

(6) that the applicant did not receive a full, fair,

and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or unless that part of the record of the State

court proceeding in which the determination of such

factual issue was made, pertinent to a determination of

the sufficiency of the evidence to support such factual

determination, is produced as provided for herein-

after, and the Federal court on a consideration of

such part of the record as a whole concludes that such

factual determination is not fairly supported by the

record:

And in an evidentiary hearing in the proceeding in the

Federal court, when due proof of such factual determination

has been made, unless the existence of one or more of the

circumstances respectively set forth in paragraphs numbered

(1) to (7), inclusive, is shown by the applicant, otherwise

appears, or is admitted by the respondent, or unless the

court concludes pursuant to the provisions of paragraph

numbered (8) that the record in the State court proceed-

ing, considered as a whole, does not fairly support such

factual determination, the burden shall rest upon the ap-

plicant to establish by convincing evidence that the factual

determination by the State court was erroneous.

QUESTIONS PRESENTED

1. Whether the United States Court of Appeals for the Sixth

Circuit has correctly interpreted the law as stated by this Court

in Bruton v. United States, 391 U.S. 123 (1968): Schneble v.

Florida, 405 U.S. 427 (1972); and Harrington vy. California,

395 U.S. 250 (1969).

mula

2. Whether the United States Court of Appeals and the Dis-

trict Court have violated 28 U.S.C. § 2254(d), by finding that

one of the respondents was denied his right to counsel.

STATEMENT OF THE CASE

The two questions before this Court are questions of law.

However, the following summary of facts is submitted so that

this Court may be well acquainted with the factual basis upon

which the three respondents were convicted in state court.

Other summaries of facts appear in the opinion of the Court of

Criminal Appeals (Appendix D), the opinion of the Supreme

Court of Tennessee (Appendix C), the Magistrate’s preliminary

report, the District Court’s memorandum decision (Appendix

B), and the memorandum decision of the United States Court

of Appeals, Sixth Circuit (Appendix A).

The three respondents were convicted for the participation

in the murder and robbery of William Douglas, in Memphis.

on July 6, 1970. Mr. Douglas was a professional gambler who

had, for some time prior to his murder, been winning money

from Robert Wood, one of the respondents’ co-defendants in

state court. Mr. Douglas, by using marked playing cards, had

cheated Robert Wood out of approximately $5,000 in three

poker games set up between the two, spanning the three weeks

prior to the Douglas murder.

Robert Wood suspected that he was being cheated and

enlisted his brother, Joe Wood, also a co-defendant at the

trial, in a scheme to recoup his losses. The scheme was for

Robert to set up a game with Douglas, and for his brother.

Joe, and the three respondents to rob the game, and thus re-

coup some of Robert's losses. Prior to the night of the murder,

Joe took two of the respondents, Hamilton and Pickens, to the

scene of the game, pointed out to them the particular apartment

any ene

where the game would be played, promised them $3,000 to

$4,000 to rob the game, and also told them that he would be

inside in the game and would kill Douglas, if he had to. James

Randolph was enlisted by Joe Wood to participate in the scheme

on the night of the murder, July 6, 1970.

On the night Robert Wood and William Douglas began

playing poker at approximately 7:30 p.m. Joe Wood and one

Tommy Thomas sat in the same room as spectators. Some-

time before 9:00 p.m., Joe Wood announced he was going to

get some beer. While allegedly obtaining beer, Joe Wood met

with the three respondents. After a brief meeting, a trip to a

nearby restaurant, the purchase of some beer, and the po-

sitioning of their automobiles, the four men approached the

apartment. Those inside heard people approaching and Doug-

las, fearing a break-in, armed himself with a shotgun. Joe

Wood convinced Douglas he was alone, and his three com-

panions returned to their automobiles. Douglas made Joe

Wood crawl through a small window next to the door. Once

Joe Wood was back in the room, Douglas resumed the poker

game. The game was resumed for some five to ten minutes when

Joe Wood arose and asked permission to go to the bathroom.

He came out of the bathroom armed with a gun and walked

behind Douglas, ordering Thomas and Douglas to lie on the

floor. Joe Wood then handed the gun to his brother, and ran

out the door, leaving it open. Thomas, in an effort to avoid

the shooting, arose from the floor, closed the door and at-

tempted to talk to Robert Wood. Douglas then made a move

for the pistol in his belt and Robert Wood killed him. Within

seconds, the three respondents kicked in the door and one of

the three fired a shot at Robert Wood. The record shows that

Joe Wood had summoned them when he ran from the apart-

ment. One of the respondents then searched Thomas and took

from him a knife and $80.00. Robert Wood then took all the

money on the table and stuffed it in his pockets. Everyone

then left with the exception of Thomas, who remained behind

adh oe

with Douglas. Robert and Joe Wood, Isaiah Hamilton, and

James Randolph went to the apartment of Hamilton where

they hid the weapons and split the money, with Hamilton and

Randolph receiving $50.00 apiece. Pickens did not go to the

Hamilton apartment, and received no money.

Subsequent to this incident all five co-defendants were either

arrested or surrendered themselves to the Memphis police.

Statements were taken from all except Joe Wood. At trial only

Robert Wood took the stand. The statements of Hamilton,

Pickens, Randolph and Robert Wood, all found by the trial

judge to have been given freely and voluntarily, were admitted

into evidence through the testimony of several police officers of

the Memphis Police Department. In an effort to comply with

Bruton, the trial court and all counsel diligently attempted a

program of redaction for each of the statements.

On July 25, 1972, the two Woods and the three respondents

were found guilty of murder in the perpetration of a robbery,

in the Criminal Court of Shelby County (Memphis), Tennessee.

Punishment for each was set at life in the state penitentiary.

These convictions were appealed to the Court of Criminal Ap-

peals of Tennessee and, on June 5, 1974, the Court of Crim-

inal Appeals rendered a divided decision reversing the convic-

tions of all five defendants. The State petitioned to the Supreme

Court of Tennessee and certiorari was granted. On December

15, 1975 the Supreme Court of Tennessee rendered a per cu-

riam opinion reversing the Court of Criminal Appeals and af-

firming the convictions.

In February of 1976 Wilbur Pickens and James Randolph

sought resort to the federal courts by filing petitions for the writ

of habeas corpus. On March 17, 1976 the State responded to

the cases of Randolph and Pickens. Subsequently, Isaiah Ham-

ilton petitioned for the writ of habeas corpus and his case was

consolidated with that of the other two respondents. The cases

were referred to a Magistrate for report. After several re-

sponses by the State and several references to the Magistrate, an

evidentiary hearing was set by Chief Judge Brown and held in

Memphis on April 29, 1977. On May 2, 1977 Chief Judge

Brown rendered a memorandum decision concluding that the

admission into evidence of Pickens’ confession was constitu-

tional error in that it violated his rights as set out in the Miranda

case. Judge Brown also found that the rights of all three peti-

tioners pursuant to the Bruton doctrine were violated, and the

Court was unable to conclude that this violation was harmless

error. A judgment was entered in accordance with the memo-

randum decision and the State was ordered to discharge the

petitioners from custody unless they were retried within a rea-

sonable time, or a timely appeal was taken.

A timely appeal was taken by the State to the Court of Ap-

peals for the Sixth Circuit and on May 19, 1978 the United

States Court of Appeals rendered a decision affirming the Dis-

trict Court.

REASONS FOR GRANTING THE WRIT

The United States Court of Appeals for the Sixth Circuit has

voided three first degree murder convictions, obtained six and

one-half years ago. The State of Tennessee is very much ag-

grieved by the decision of the Sixth Circuit and submits that this

decision is based upon a misinterpretation of certain decisions

of this Court and, further, clearly conflicts with federal statutory

law.

The Sixth Circuit’s decision is primarily based upon a finding

that the respondents’ constitutional rights, as enunciated by this

Honorable Court in Bruton v. United States, 391 U.S. 123

(1968), were violated. The petitioner/State has maintained

throughout the federal proceedings that the doctrine of Bruton

is inappropriately applied to this case. The case sub judice is

much more analogous to the factual situation before this Court

in Schneble v. Florida, 405 U.S. 516 (1972) and Harrington

v. California, 395 U.S. 296 (1969). In Bruton there was one

confession and no testimony by either co-defendant. In this

case, there are four consistent and corroborative confessions and

there has been testimony by a confessing co-defendant. In both

Schneble and Harrington, the parties raising the Bruton objec-

tion had confessed themselves. The same is true in this case.

This distinction is important since a reviewing court considering

the issue of harmless error must consider the confessor’s confes-

sion against himself. This case should not be labeled a Bruton

case. The case before this Court is a Schneble or a Harrington

case, if it must be labeled at all.

There has existed for some time considerable split and con-

fusion among the various circuits as to the application of Bruton

to facts which are not on point with Bruton. Simply stated, if

the case sub judice had arisen in another circuit, then the de-

cision quite probably would be different. This split among the

circuits is expressly recognized in the Sixth Circuit opinion.

—

Judicial attempts in the various circuits to distinguish cases such

as the one sub judice from Bruton have resulted in the evolution

of the interlocking confession theory, which has been impliedly

sanctioned by this Court. See Catanzaro v. Mancusi, 404 F.2d

296 (1968), cert. denied, 397 U.S. 942 (1970). There is con-

siderable disagreement as to whether the interlocking confes-

sion theory is in reality a finding that Bruton is inapplicable to

such cases, or whether the theory is an application of Harring-

fon and, thus, in reality a finding of harmless error. See Ortiz

v. Fritz, 476 F.2d 37 (2d Cir. 1973). The first position contends

that Bruton simply does not apply to situations where both de-

fendants confess and the confessions interlock. The second posi-

tion contends that Bruton does apply but the violation is harm-

less error in light of the two interlocking confessions. The prac-

tical effect of both positions is the same. Further, and more

important, the adoption of either theory would result in a dif-

ferent decision than reached in this case by the Sixth Circuit.

Additionaily, the Third, Fifth, Seventh, Eighth and Teuih Cir-

cuits have also rendered decisions which conflict with the de-

cisions of the Sixth Circuit and seemingly would produce a dif-

ferent result than reached here. See United States v. Digilio,

538 F.2d 972 (3d Cir. 1976); Mack v. Maggio, 538 F.2d 1129

(Sth Cir. 1976); United States v. Spinks, 470 F.2d 64 (7th

Cir. 1972); United States v. Walton, 538 F.2d 1348 (8th Cir.

1976); Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971).

The petitioner/State contends that the opinion of the Sixth

Circuit is in obvious conflict with opinions rendered by other

circuit courts in similar cases. Further, the petitioner contends

the decision of the Sixth Circuit results from a misinterpretation

of this Court's decisions in Bruton, Schneble, and Harrington.

The writ of certiorari should be granted by this Court to clear

up the confusion which has resulted from the judicial attempts

to apply Bruton to differing facts.

The United States Supreme Court decision in Townsend v.

Sain, 372 U.S. 293 (1963), is a precursor of 28 U.S.C.

§ 2254(d). In Townsend, this Court set forth general stand-

ards governing the holding of hearings on federa! habeas corpus

petitions. Those standards now appear in 28 U.S.C. § 2254(d).

Under the standards laid down in Townsend and embodied in

28 U.S.C. § 2254(d), a determination made on the merits of

a factual issue by a state court of competent jurisdiction is en-

titled to a presumption of correctness in a federal habeas corpus

proceeding unless the applicant for the writ can prove one or

more of the first seven standards listed in § 2254(d), or unless

the federal court concludes that the record in the state court

proceeding, considered as a whole, does not fairly support the

factual determination. In LaVallee v. Delle Rose, 410 US.

695 (1973), this Court further elaborated on Townsend and

28 U.S.C. § 2254(d). In LaVallee, the admissibility of a con-

fession was at issue. The same issue was before the District

Court in this case. Similar to LaVailee, the admissibility of

the confession in this case revolved around one basically im-

portant issue—credibility. In LaVallee, this Court rejected an

overly technical application of Townsend and recognized the

simplicity of the major issue. This Court reversed the Second

Circuit and the District Court and reinstated the factual deter-

mination made in state court. The same problem exists in this

case since the Sixth Circuit has affirmed a District Court de-

termination wherein the District Judge redetermined a factual

issue previously decided in the State’s favor, in state court.

Thus, the Sixth Circuit opinion is erroneous and violates the

principles of law set out in 28 U.S.C. § 2254(d) and eluci-

dated in Townsend and LaVallee. For this additional reason,

the writ of certiorari should issue.

The Court of Appeals for the Sixth Circuit Has Incorrectly

Interpreted the Law as Stated by This Court in Bruton, Schneble

and Harringcon.

The primary basis upon which the Court of Appeals’ deci-

sion rests is a finding that the respondents’ constitutional rights,

as enunciated by this Court in Bruton v. United States, 391

U.S. 123 (1968), were violated. The petitioner/State respect-

fully submits that the Court of Appeals incorrectly applied

Bruton to this case.

In Bruton, Bruton and one Evans were jointly tried and

convicted of armed postal robbery. Neither testified upon their

trial. Bruton made no admissions or confessions. However,

Evans did confess to the postal authorities that he and Bruton

committed the robbery in question and upon trial Evans’ con-

fession, including the portion which implicated Bruton, was

received into evidence. This Court reversed Bruton’s convic-

tion and held that his rights under the confrontation clause of

the Sixth Amendment had been violated because there was a

substantial risk that the jury, despite instructions to the con-

trary, had looked to the incriminating statements made by

Bruton’s co-defendant.

The next year this Court decided the case of Harrington v.

California, 395 U.S. 296 (1969). In Harrington, this Court,

with Mr. Justice Douglas writing, held that a Bruton type vio-

lation can constitute harmless error. In Harrington, four men

were tried together—Harrington, a caucasian, and Bosby, Rhone,

and Cooper, who were black. All four were found to have par-

ticipated in an attempted robbery in the course of which a store

employee was killed. Each of Harrington’s co-defendants con-

—

fessed and their confessions were introduced at the trial with

limiting instructions that the jury was to consider each confes-

sion only against the confessor. Rhone testified, and Harring-

ton’s counsel cross-examined him. The other two individuals

did not take the stand. These facts are analogous to the case

now before this Court. Here, three black men and two white

men have been convicted of murder in the perpetration of a rob-

bery. Four of the individuals tried in state court made confes-

sions which were admitted at trial. One of the individuals here,

Robert Wood, testified at trial and was cross-examined by the

respondents’ lawyers. Much of the other evidence existing in the

record identifies individuals as three blacks and a white man.

This is the same sort of other evidence which existed in the

Harrington case. In reaching a finding of harmless error in Har-

rington, this Court stated:

“It is argued that we must reverse if we can imagine a single

juror whose mind might have been made up because of

Cooper's and Bosby’s confessions and who otherwise would

have remained in doubt and unconvinced. We, of course,

do not know the jurors who sat. Our judgment must be

based on our own reading of the record and on what seems

to us to have been the probable impact of the two confes-

sions on the mind of the average juror.”

See Harrington, supra, 89 S.Ct. at 1728.

In 1972 this Court decided the case of Schneble v. Florida,

405 U.S. 516 (1972). In Schneble, Schneble and his co-defend-

ant Snell were tried jointly in a Florida state court for murder.

Police officers testified to a detailed confession that Schneble

had given to them and one officer related a statement related

to him by Snell. The statement of Snell, who did not testify,

tended to undermine Schneble’s initial version and to corroborate

certain details of Schneble’s confession. This Court confirmed

the conviction of Schneble, finding any violation of Bruton was

harmless error beyond a reasonable doubt in view of the over-

= }4

whelming evidence of petitioner's guilt as manifested by his con-

fession, which completely comported with the objective evidence

and the comparatively insignificant effect of the co-defendant’s

admission. See Schneble, supra, 92 S.Ct. at 1057, 1058-1060.

In reaching this conclusion of harmless error this Court stated:

. without Schneble’s confession and the resulting dis-

covery of the body, the State’s case against Schneble was

Virtually non-existent. The remaining evidence in the case

—the disappearance of Mrs. Collier sometime during the

trip, and Snell’s statement that Schneble sat in the back

seat of the car during the trip and never left Snell alone

with Mrs. Collier—could not by itself convict Schneble

with this or any other crime.”

See Schneble, supra at 1059.

In Schneble neither co-defendant testified. What was im-

portant was the internal consistency of Schneble’s contession,

the corroboration by other evidence, and the lack of contradic-

tion in the record. Most important, was the confession of

Schneble which this Court, expressly stating there was little else,

found to be a large measure of the overwhelming evidence

against him. In the instant case, both the Magistrate's report

and the opinion of the Supreme Court of Tennessee reflect find-

ings that the confessions of Hamilton, Pickens and Randolph

are essentially alike in material details and are corroborative of

one another. For the purposes of this case, the lessons of

Schneble are twofold. First, each of the respondent's own

confession must be considered as part of the quantum of proof

in reaching a determination of harmless error. Second, the

consistency and corroborative nature of the respondent's con-

fessions must be considered in deciding whether the confession

of a non-testifying co-defendant could have significantly af-

fected the jury’s verdict. Obviously, the implication of Schneble

is that confessions which are corroborative and consistent do

aw 15

little more than the individual's own confession has already

done.

The case before this Court is much more analogous to

Harrington and Schneble than to Bruton. The Court of Appeals

for the Sixth Circuit erred in strictly applying Bruton to this

case. In Bruton there was one confession and no testimony by

either co-defendant. In this case there are four consistent and

corroborative confessions and there has been testimony by a

confessing co-defendant, Robert Wood. Bruton did not confess.

Since the only confession in Bruton was that of Evans, a harm-

less error determination, which was not at issue, would have

had to be made on proof other than any confession. In

Schneble and Harrington the parties raising the Bruton objection

had confessed themselves. The same is true in the case sub

judice. This distinction is important since a reviewing court

considering the issues of harmless error must consider the con-

fessor’s confession against himself. As Mr. Justice White stated

in Bruton, “The defendant's own confession is probably the most

probative and damaging evidence that can be admitted against

him.” The distinctions are evident. This case should not be

labeled a Bruton case.

The petitioner/State contends that under the authority of

Schneble and Harrington there is ample evidence in this record

to mandate a finding of harmlessness. The Court of Appeals’

finding to the contrary is inconsistent with this Court's decisions

in Schneble and Harrington. In reaching a decision in Schneble

and Harrington, it is patently obvious that this Court considered

the defendant’s own confession against himself and also con-

sidered the testimony of the co-defendant who took the stand

and was cross-examined. Therefore, these two pieces of evidence

automatically should become part of the quantum of proof

necessary to find harmless error. In fact, the only evidence in

the record which is struck from the equation is the substantive

—

content of the non-testifying co-defendants’ confessions. How-

ever, the fact these confessions are corroborative and consistent

should be considered. Applying these principles to the instant

case, the proof against respondent includes his own confession,

the incriminating confession and testimony of a testifying co-

defendant, the fact of corroboration and consistency in the ex-

cluded confessions, and all the other evidence in this record.

Using this formula to determine what evidence should be con-

sidered, a reviewing court should then determine what was the

probable impact of the two confessions on the mind of an aver-

age juror. Using this formula, which is drawn from the Schneble

and Harrington decisions, the decision of the Court of Appeals

is erroneous. The most reasonable conclusion is that any error

committed in the admission of the two non-testifying co-de-

fendants’ confessions is clearly harmless.

' The following is a summary of the other evidence which is con-

tained in the record: 1. Mr. Tommy Thomas, the individual who was

inside when the shooting and robbery occurred, testified at trial. His

testimony is harmonious and corroborative of the entire chain of

events set out in the confessions. Mr. Thomas made no specific

identification of Pickens, Hamilton, or Randolph. He only identified

—- as three negroes (State Record, p. 60, et seq.). 2. Mr. Robert

Nood, the confessing co-defendant, testified at trial. Mr. Wood

simply imposed a defense of self-defense which the jury apparently

did not believe. Mr. Wood’s testimony was consistent with the entire

scheme of events and he identified Pickens, Hamilton, and Randolph

as participants in the criminal episode (State Record p. 884, et seq.,

912). 3. Five other witnesses testified as to facts they observed at

the time of the crime. These facts were, in whole, consistent with the

state’s theory of the case. Although none of these individuals could

specifically identify the respondents, they all testified to seeing indi-

viduals, whose descriptions were consistent with the state’s theory

at the scene of the crime when it was committed. For example, a Ms.

Waterbury and a Ms. Rudkins testified to seeing “three colored men”

leaving the apartment after the crime was committed. A Mr. Knight

testified to seeing “three blacks” at the door of the apartment at-

tempting to break it down. A Mrs. Knight and a Mr. James testified

to seeing a “white man and three blacks” at the apartment at the time

the crime was committed. 4. Numerous other witnesses were pro-

duced by the state an’ testified to facts consistent with the state’s

— tn case and consistent with the three confessions of the

a.

In Catanzaro v. Mancusi, 404 F.2d 296 (1968), three in-

dividuals were tried and convicted of murder in New York

state court. The confession of Catanzaro and his non-testifying

co-defendant, McChesney, were admitted at the joint trial.

Catanzaro sought a writ of habeas corpus and relied upon

Bruton. The Second Circuit denied the writ and affirmed the

conviction, stating:

“The reasoning of Hill and Bruton is not persuasive here.

Both of those cases involved a defendant who did not con-

fess and who was tried along with a co-defendant who did.

In our case Catanzaro himself confessed and his con-

fession interlocks and supports the confession of McChes-

ney.

Where the jury has heard not only a co-defendant’s con-

fession, but the defendant's own confession, no such

devastating risk attends the lack of a confrontation as what

was thought to be involved in Bruton.”

See Catanzaro, supra, at p. 300.

Simply stated, the Second Circuit in Catanzaro refused to

apply the sanctions of Bruton because of the distinctions be-

tween that case and Bruton. The distinctions were confessions

by both defendants, instead of only one, and the interlocking

nature of the confessions. The Second Circuit recognized that

such factors distinguish a case from Bruton, but the Sixth Cir-

cuit has failed to make that distinction in this case. This Court

denied certiorari in Catanzaro. See 397 U.S. 942, 90 S.Ct.

956 (1970).

In Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971)

two state co-defendants had been tried and convicted of mur-

der. Both had made complete confessions which were admitted

at trial with instructions that such were admissible only against

the declarant. In a habeas corpus proceeding the district court

hates A aint

granted the petitions under the authority of Bruton. The Tenth

Circuit reversed the district court and stated: “We need not

concern ourselves with the legal nicety as to whether the in-

stant case is without the Bruton rule, or is within Bruton and

the violation thereof constituting only harmless error. In either

event the judgment of the trial court (district court) must be

reversed.” In reversing the district court, the Tenth Circuit

discussed and was persuaded by the rationale of both Harring-

ton and Catanzaro.

In United States v. Spinks, 470 F.2d 64 (7th Cir. 1972)

Spinks and one Turner were tried together and convicted of rob-

bery in federal court. Spinks and Turner had both given con-

fessions with no substantial factual differences. The other three

individuals involved in the robbery did not confess and appar-

ently their trials were severed for this reason. Turner’s confes-

sion implicated Spinks and Turner did not testify. In affirming

the conviction the Seventh Circuit cited Catanzaro, Schneble,

and Harrington, and further stated:

“There is no merit in Spinks’ claim that he was prejudiced

by denial of the right to cross-examine Turner. It would

be ludicrous to have Spinks trying to break down Turner’s

confession, which implicated Spinks, while Spinks’ own

confession remained unchallenged, and even if Turner's

confession had been excluded from the evidence—or even

if Spinks’ motion for severance had been granted—Spinks

would still be faced with his own confession.”

See Spinks, supra, at 66.

In United States v. Walton, 538 F.2d 1348 (8th Cir. 1976)

the two defendants had been convicted in District Court of

armed robbery. Both defendants confessed, and both confes-

sions, implicating the other defendant, were admitted at trial.

There was no redaction in the confessions. Neither defendant

testified at trial. The Eighth Circuit affirmed the conviction and

the opinion does much to elucidate the law relating to inter-

locking confessions, Bruton, and Harrington. The Eighth Cir-

cuit stated: “It is now well established that Bruton does not

automatically call for a reversal where interlocking confessions

of a co-defendant tried at the same time are admitted in evi-

dence, and that there should be no reversal where the appellate

court is convinced that a complaining defendant was not sub-

jected to a substantial risk of incurable prejudice as a result of

the admission of his co-defendant’s confession.” See Walton,

supra at 1353.

In reaching this conclusion in Walton the Eighth Circuit,

like the Tenth Circuit in Metropolis found that from a prac-

tical standpoint it made no difference whether the Court held

the admission of the confessions was not erroneous or whether

they found the error harmless beyond a reasonable doubt. The

Eighth Circuit also cited both Harrington and Catanzaro in

supporting their decision.

In Mack v. Maggio, 538 F.2d 1129 (Sth Cir. 1976), three

co-defendants had confessed in the same crime. The confes-

sions interlocked with only slight variances, and they were ad-

mitted with none of the confessors testifying. Two of the state

prisoners sought federal habeas corpus relief which was refused

by the district court. The Fifth Circuit affirmed and found that

Bruton was inapplicable to such situations.

In United States v. Digilio, 538 F.2d 972 (3rd Cir. 1976)

three men, Digilio, Lupo, and Szwandrak were convicted in the

United States district court for conspiracy. Statements taken by

the F.B.I. from Lupo and Szwandrak were admitted at the joint

trial. These statements were redacted when read to the jury and

neither Lupo or Szwandrak testified. All references to Digilio

were deleted. The Third Circuit expressly disapproved of the

suggestion that there is “a parallel statement” exception to the

Bruton rule. Nevertheless, the Third Circuit affirmed the con-

a, ee

viction on the basis of harmless error and in doing so mentioned

a corroborative effect of the consistent confessions.

Although the above cited Circuit Courts differ somewhat in

reaching their conclusions, the basic conclusion is consistent

and clear—confessing co-defendants whose confessions are con-

sistent and corroborative do not stand in the same shoes as Mr.

Bruton. This result reached by the Second, Third, Fifth,

Seventh, Eighth and Tenth Circuits, is contrary to the result

reached in the case sub judice by the Sixth Circuit. Bruton is

a specific case with specific facts and its application has not

been extended since the decision in 1968. Bruton should not be

applied to the factual situation before this Court. The Sixth

Circuit’s decision in this case conflicts with the decisions reached

in at least six other circuits and with the decisions of this Court

in Schneble and Harrington.

HI

The Court of Appeals’ Affirmation of the District Court’s De-

termination That Wilburn Pickens Was Denied Access to Coun-

sel, in Violation of Miranda, Is Erroneous and Violates the

Principles of Law Set Out in 28 U.S.C. §2254(d).

Throughout his quest to avoid conviction and punishment for

the crime in which he participated, Wilburn Pickens, one of the

respondents, has repeatedly asserted that his written statement

was taken in violation of his constitutional rights as enunciated

by this Court in Miranda v. Arizona, 384 U.S. 436 (1966).

Pickens has alleged in state and federal court, that after his

arrest he was threatened with physical harm by police officers

on three occasions, deprived of his reading glasses so he could

not read the statement, and denied access to counsel by police

despite his request for counsel. Mr. Pickens raised these ques-

tions in the state trial court to no avail. His lawyers assigned

these issues to the Court of Criminal Appeals of Tennessee and

=_— 2] —

to the Supreme Court of Tennessee, to no avail. Mr. Pickens

raised these same issues in his federal habeas corpus application

and first found relief in the district court’s determination that

he was denied access to counsel prior to interrogation. The

Sixth Circuit Court of Appeals affirmed this determination and

the petitioner/State contends this affirmation is erroneous and

violates 28 U.S.C. § 2254(d).

As the record demonstrates, Mr. Pickens, after his arrest

actually made two statements, one oral and one written. The ad-

mission of the oral statement was prevented at trial because the

State had not supplied Mr. Pickens’ counsel with a copy thereof.

A redacted version of the written statement given by Pickens

was admitted at trial. The admission of the redacted version of

Pickens’ statement occurred only after a lengthy state court

hearing, held without the jury, during which testimony was

heard from Pickens, his attorney, and six members of the

Memphis Police Department. (See State Record, pp. 348-416).

Throughout this hearing, Pickens contended that the admission

of the statement violated the principles of Miranda because he

had requested counsel and was denied access to counsel. Also,

Pickens contended that he had indicated an unwillingness to

cooperate and the police continued their interrogation. During

the testimony of the six police officers each of them was asked

whether Pickens requested counsel prior to interrogation or

whether he was denied access to counsel. The testimony of each

and every one of these officers clearly and consistently estab-

lished that Pickens did not request counsel prior to interroga-

tion, was fully advised of his right to counsel, and was, in fact,

allowed the opportunity to contact counsel if he so desired.

(See State Record, pp. 349-351, 353, 355, 357, 359-361, 365-

367, 404-406, 408-411, 414-415). The testimony of these

officers established that Pickens was advised on numerous occa-

sions of his constitutional rights, he was further given an op-

portunity to utilize the telephone, waived this opportunity in

writing, and he never made any request whatsoever or indicated

any desire to communicate with his attorney prior to making

his statement.

In the face of this testimony Pickens offered only his own

interested version of the facts and the testimony of his lawyer,

who was not present prior to the statement. The only evidence

which the lawyer could offer concerns a conversation he had

with Pickens prior to his arrest.

Therefore, the issue before the State trial judge was very

simply one of credibility. The issue was crystal clear—did

Pickens request access to counsel? Six police officers said he

didn’t, he said he did, and his lawyer said he had told him to

do so in such a situation. The judge heard the testimony, viewed

the demeanor of the witnesses, knew the interest of those testify-

ing, and found that Miranda had not been violated, and the

statement was admissible. Simply stated, the judge decided not

to believe Pickens and was not convinced by his testimony. In

reversing the trial court on other grounds, the Tennessee Court

of Criminal Appeals considered this assignment and found it

without merit. The Supreme Court of Tennessee reversed the

Court of Criminal Appeals and in doing so, impliedly agreed

with the determination made by the Court of Criminal Appeals

and the trial court as to the admissibility of the statement.

Pursuant to the habeas corpus proceeding, an evidentiary

hearing was held in Memphis, Tennessee on April 29, 1977.

The evidentiary hearing did nothing to extend the scope of

the State trial court’s hearing, produced no other evidence or

witnesses which were not before the trial court, and simply

consisted of Mr. Pickens and his attorney attempting to re-

count their state trial testimony almost five years after testify-

ing in state court, and almost seven years after the facts oc-

curred. The State did not call any witnesses. The Memphis

police officers who were still available were placed on call and

offered to opposing counsel if they so desired. This offer was

=

refused and the State submitted and relied upon the state court

transcript from the original hearing. Therefore, the record be-

fore the district court was exactly what was before the state

trial court. Furthermore, Pickens testimony in federal court

was filled with inconsistencies as he attempted to recount his

trial testimony some five years later.”

In his memorandum opinion, the District Judge concluded,

after the evidentiary hearing, that Pickens was denied access

to his attorney and the admission of his confession was consti-

tutional error in that it violated Miranda. The District Court's

action simply amounts to a reevaluation of the evidence. This

procedure is nothing more than a reweighing of the evidence

in a factual controversy that has already been determined in

a more complete hearing. The district court redecided the

credibility issue with regard to ihe access to counsel issue, and

held contrary to the state court even though the district court

hearing was not as complete. The Sixth Circuit affirmed.

This Court’s decision in Townsend v. Sain, 372 U.S. 293

(1963), is the precursor of 28 U.S.C. § 2254(d). In Town-

send this Court set forth general standards governing the hold-

ing of hearings on federal habeas corpus petitions. Those

standards now appear in 28 U.S.C. § 2254(d). Under the

standards laid down in Townsend and embodied in 28 U.S.C.

§ 2254(d), a determination made on the merits of a factual

issue by a state court of competent jurisdiction is entitled to a

presumption of correctness in a federal habeas corpus proceed-

ing unless the applicant of the writ can prove one or more of

the first seven standards listed in § 2254(d), or unless the

federal court concludes that the recor in the State court pro-

ceeding, considered as a whole, does not fairly support such

factual determination.

. , _—" a “on

2 Numerous discrepancies occur in Pickens’ tesumony in

court. “These inconsistencies occur even though the State trial =

was filed with the federal court and was available to Pickens months

before his testimony.

= a

In LaVallee v. Delle Rose, 410 U.S. 695 (1973), this Court

further elaborated on Townsend and 28 U.S.C. § 2254(d). In

LaVallee the District Court for the Southern District of New

York held that the state trial judge had not made an adequate

determination within the meaning of 28 U.S.C. § 2254(d),

which would have entitled the state court's finding to a pre-

sumption of correctness and placed the burden on petitioner

to establish by convincing evidence that the state court’s con-

clusions were erroneous. The district court, therefore, held its

own hearing, found the confessions there involuntary, and or-

dered the applicant discharged or retried. A divided panel for

the Second Circuit affirmed. See LaVallee, supra, at 1204; See

also 342 Fed. Supp. 567 and 468 Fed.2d 1288. This Court

reversed in a situation somewhat analogous to the case sub

judice.

The admissibility of the confession at issue in LaVallee, like

the admissibility of the confession in this case, revolved around

basically one important issue—credibility. Simply stated, as this

Court recognized in LaVallee, the confession of the applicant

in LaVallee would have to be suppressed if the applicant's ver-

sion of the facts were believed. Accordingly, the confession was

admissible if the trier of facts chose not to believe the applicant’s

version. The district court and the court of appeals in LaVallee

both based their decisions on what they perceived to be an in-

ability to ascertain exactly the reasoning of the state trier of fact.

This Court rejected this overly technical application of Townsend

and, recognizing the simplicity of the major issue before the

State trier of fact, reversed the Second Circuit.

Even the dissenting justices in LaVallee recognized that an

overly technical application of Townsend was not intended by

this Court. In dissent, Mr. Justice Marshall stated:

“The precise problem encountered by the courts below in

evaluating the state court's conclusion—a problem which

the court now effectively ignores—is that the issue of volun-

=

tariness in this case presents just the sort of difficult mixed

question of law and fact which Townsend recognized would

make federal courts speculation concerning the basis for

unreasoned state court action wholly inappropriate. To be

sure, where, for instance, a defendant alleges simply that

a confession was extracted from him by means of a physical

beating administered by the police, it is obvious that if

the defendant's story is believed the confession would be

involuntary. Thus, even if a state court holds the defend-

ant’s confession to be voluntary without articulating any

reasons, a federal district court may safely assume that in

such an uncomplicated situation the state court’s deter-

mination resulted from a rejection of defendant's factual

allegations.”

See LaVallee, supra, 93 S.Ct. 1203, 1207, 1208.

This case is analogous to the situation before this Court in

LaVallee. In both cases a district judge has taken a factual de-

termination reached by a state trier of fact at a hearing which

complies with the mandate of Townsend, and substituted his own

judgment. In both cases the basic issue boiled down to one of

credibility. However, for at least two reasons, the district court

decision in the instant case is more peculiar than the district

court decision reached in the LaVaillee case. First, in the instant

case, as mentioned above, the District Judge, with the exact same

evidence before him, found he was prohibited by § 2254(d)

from reviewing the other factual questions regarding Pickens’

confession. Second, the District Judge in LaVallee apparently

found, prior to the District Court evidentiary hearing, that the

presumption of correctness in § 2254(d) did not apply. Ib the

instant case the District Judge made no such finding until after

the evidentiary hearing. Thus, the State entered the evidentiary

hearing assuming reliance upon the presumption of correctness.

Obviously, the State was operating without a presumption of

correctness since a contrary decision was returned without the

— =

admission of anything new. The federal proceeding was simply

a presentation of a part of the evidence heard in state court.

The result is clearly erroneous and violates the principles of law

set out in 28 U.S.C. § 2254(d) and elucidated by this Court

in Townsend and LaVallee.

CONCLUSION

For all these reasons, the State of Tennessee, through Chief

Harry Parker, respectfully prays that a writ of certiorari issue to

the United States Court of Appeals for the Sixth Circuit.

Respectfully submitted,

WILLIAM M. LEECH, JR.

Attorney General

State of Tennessee

ROBERT E. KENDRICK

Deputy Attorney General

MICHAEL E. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

Phone: (615) 741-2640

APPENDIX

a

a poe

APPENDIX A

Nos. 77-1463-65

United States Court of Appeals

For the Sixth Circuit

James Randolph, Wilber Pickens, ,

Isaiah Hamilton, Appeals from the

Petitioners-Appellees, United States Dis-

v. . trict Court for the

Western District of

Chief Harry Parker, Tennessee.

Respondent-Appellant. |

Decided and Filed May 19, 1978.

Before: Edwards, Peck and Keith, Circuit Judges.

Edwards, Circuit Judge. This appeal involves a sequence

of events which have the flavor of the old West before the law

ever crossed the Pecos. The difference is that here there are no

heroes and here there was a trial.

In July of 1970 a Las Vegas gambler named William Doug-

las came to Memphis with dob’ and gun and an assumed name.

Using the services of a runner with the improbable name of

Woppy Gaddy, who had been promised a cut of the take,

Douglas was introduced to Robert Wood, a sometime Memphis

gambler. In three evenings of gambling with cards marked by

Douglas, Wood was relieved of $5,000. He was also filled with

1 A dob is a device (which Douglas wore under his collar) which

contained a preparation for marking cards so that the professional

dobber could read their backs, but his amateur opponent could not.

=

suspicion and plans for recoupment. A fourth encounter of a

similar kind left Douglas dead on the floor from a pistol shot

fired by Robert Wood, and Robert Wood in possession of some

of the money he had lost. In the long denouement, it also re-

sulted in life sentences for murder for Robert Wood, Joe Wood,

his brother, and three other Memphis men who are the subjects

of this appeal.

These habeas corpus petitions, filed by Randolph, Pickens

and Hamilton, were heard in the United States District Court

for the Western District of Tennessee and resulted in the issu-

ance of three writs of habeas corpus requiring the state to dis-

charge petitioners unless they are promptly retried. The writs

were issued by Chief Judge Bailey Brown of the Western District

who, after evidentiary hearings, found violations of the right of

confrontation guaranteed by the Sixth Amendment of the United

States Constitution as to all three petitioners in their joint state

court felony murder trial. Judge Brown based his ruling on the

holding of the United States Supreme Court in Bruton v. United

States, 391 U.S. 123 (1968). He also found violation of peti-

tioner Pickens’ right to counsel, as guaranteed by the Sixth

Amendment under the Supreme Court’s interpretation of Miranda

v. Arizona, 384 U.S. 436 (1969).

On review of the entire record of the federal habeas hearing

and the prior state trial, we find ample support for the District

Judge’s findings of fact, and we agree with his well-reasoned

conclusions of law. We affirm.

We recite the state’s theory of this case from the District

Judge’s summary thereof:

In July, 1970, Robert Woods had lost a considerable

amount of money in head-to-head card games with one

Douglas and had become convinced that Douglas had

been cheating him. In anticipation of still another game,

Roert asked his brother, Joe Woods, to arrange to “have

the game robbed,” and in this way regain most, if not

a

4

j

ae eo

all, of what he had lost. Joe Woods then enlisted petitioner

Hamilton, an employee of his, who associated petitioners

Randolph and Pickens,” to carry out this venture. While

the card game was in progress, petitioners, by pre-arrange-

ment, were waiting in the vicinity of the apartment where

it was being held. Joe Woods and one Tommy Thomas

were in the apartment watching the game. Joe left the

apartment and brought petitioners back with him, but failed

to gain entrance for them when Douglas, hearing strange

noises in the hallway, refused to allow the door to be

opened. However, later, after petitioners had returned to

their place of waiting, Joe did obtain admission for himself

into the apartment. Shortly thereafter, Joe pulled a pistol

on Douglas and Thomas, and then, handing the pistol to

Robert Woods, went to tell petitioners to move in on the

game. (Obviously, matters were not going according to

plan.) Before petitioners reached the apartment, however,

Douglas went for his pistol with the result that Robert

Woods shot and killed him. Within seconds after the shoot-

ing, Joe and the petitioners knocked the apartment door

down and entered, Robert then took all of the cash, and

later petitioners Hamilton and Randolph (but not petitioner

Pickens) were paid $50.00 for their participation.

The state’s problems of proof in relation to the two Wood

brothers were quite different from those applicable to the cur-

rent petitioners. Witness Thomas testified explicitly to Douglas’

method of cheating Robert Wood at cards and to his (Thomas’)

complicity in it. He also testified to Joe Wood’s producing a

pistol (after Robert Wood accused Douglas of cheating him)

and that Joe Wood handed the gun to Robert and ran out of

2 All three petitioners in this case are black, whereas all the card

players and watchers were white.

A police officer was allowed to testify, over objection, to an oral

statement by Randolph that a coconspirator (presumably Joe Wood)

had told Randolph “that the money was going to be taken even if

he had to kill” Douglas.

— se

the room. Thomas then testified that with only himself, Douglas

and Robert Wood in the room, he heard a shot and saw Douglas

fall fatally wounded.

Robert Wood was the only one of the five codefendants who

testified before the jury at the state court trial. Although he

had originally given the police a statement which obviously

sought to accuse outsiders to the poker game of killing Douglas,

at the trial he admitted firing the fatal shot. His evidence sought

to mitigate the shooting by testifying about his reasons for

believing that Douglas was cheating him and to present a self-

defense theory by claiming that Douglas reached for his own

gun before he (Robert Wood) fired.

The state’s problems in relation to the three present petition-

ers were considerably greater. None of them took the stand.

Eyewitness Thomas could not identify any of them. Robert

Wood, who had originally denied that he killed Douglas, ad-

mitted at trial that he had killed Douglas. He also testified that

Hamilton (whom he had known as an emplovee of Joe Wood)

was one of the three armed black men who entered the room

after he (Robert Wood) had killed Douglas. He was unable

to make a clear identification of petitioners Pickens and Ran-

dolph as the other two participants at the scene. The state’s

reliance, as a result, was primarily upon the admission of oral

or written statements said by the Memphis police to have been

furnished voluntarily by the three petitioners.

While each such statement was redacted to the extent of

eliminating the other two petitioners’ names, they were such

as to leave no possible doubt in the jurors’ minds concerning

the “person{s]” referred to.

it should also be noted that at the original trial, motions to

suppress the Randolph and Pickens statements were made on

grounds of physical abuse and threats, but were denied by the

state court trial judge after some rather vivid coercion com-

—" ee

plaints. The District Judge found no federal constitutional

abuse in the state trial judge’s finding on this score and no issue

concerning coercion is presented on this appeal.

The state trial judge also gave in each instance an instruc-

tion to the jury that the confession admitted could only be used

against the defendant who gave it and not as evidence of guilt

of the codefendants.

As indicated above, all five of the defendants in the state

court trial were found guilty of first degree murder and sen-

tenced to life imprisonment.

After their state court trial convictions and sentences, all five

defendants appealed. The Tennessee Court of Appeals set the

convictions aside on the ground that the Bruton rule, Bruton

v. United States, 391 U.S. 123 (1968), had been violated by

the admission of confessions by coconspirators who did not

testify and were not subject to cross-examination, and because

under Tennessee law, felony murder had not been made out

in relation to these three parties who had not entered the room

at the time of the shooting. The Tennessee Supreme Court,

however, reversed on both of these issues. It construed Tennes-

see felony murder law broadly enough to include these three

petitioners because they were parties to a prior robbery Plan.

The court also held that each defendant’s own statement “inter-

locked with” and corroborated the other statements of the other

two defendants. In these contentions it found justification for

the admission of all three confessions as to petitioners, citing

Harrington v. California, 395 U.S. 250 (1969) and Schneble

v. Florida, 405 U.S. 427 (1972), and some Tennessee case

law (see O'Neil v. State, 2 Tenn. Crim. App. 518, 455 S.W.

2d 597 (1970)).

It should be noted that no court which has dealt with these

three petitioners’ Bruton contentions has sought to treat the

admission of the three confessions as harmless error.

The Bruton Issue

In Bruton v. United States, supra, the United States Supreme

Court set forth the rule of law which we believe governs this

case. The Court’s opinion said:

[A]s was recognized in Jackson v. Denno, supra, there

are some contexts in which the risk that the jury will not,

or cannot, follow instructions is so great, and the conse-

quences of failure so vital to the defendant, that the prac-

tical and human limitations of the jury system cannot be

ignored. Compare Hopt v. Utah, supra; Throckmorton v.

Holt, 180 U.S. 552, 567; Mora v. United States, 190 F.

2d 749; Holt v. United States, 94 F.2d 90. Such a con-

text is presented here, where the powerfully incriminat-

ing extrajudicial statements of a codefendant, who stands

accused side-by-side with the defendant, are deliberately

spread before the jury in a joint trial. Not only are the

incriminations devastating to the defendant but their cred-

ibility is inevitably suspect, a fact recognized when ac-

complices do take the stand and the jury is instructed to

weigh their testimony carefully given the recognized moti-

vation to shift blame onto others. The unreliability of such

evidence is intolerably compounded when the alleged ac-

complice, as here, does not testify and cannot be tested

by cross-examination. It was against such threats to a fair

‘trial that the Confrontation Clause was directed. Pointer

v. Texas, supra. * * * It was enough that that procedure

posed “substantial threats to a defendant’s constitutional

rights to have an involuntary confession entirely disre-

garded and to have the coercion issue fairly and reliably

determined. These hazards we cannot ignore.” 378 U.S.,

at 389. Here the introduction of Evans’ confession posed

a substantial threat to petitioner’s right to confront the

witness against him, and this is a hazard we cannot ig-

nore. Despite the concededly clear instructions to the jury

a '<. om

to disregard Evans’ inadmissible hearsay evidence incul-

pating petitioner, in the context of a joint trial we cannot

accept limiting instructions as an adequate substitute for

petitioner's constitutional right of cross-examination. The

effect is the same as if there had been no instruction at

all. See Anderson v. United States, 318 U.S. 350, 356-

357; cf. Burgett v. Texas, 389 U.S. 109, 115. Reversed.

Reversed.

Bruton v. United States, supra at 135-37 (footnotes omit-

ted).

We find no instance where the rule just stated has been

overruled or altered in subsequent Supreme Court opinions.

In the case presently before us, the Bruton rule of exclusion

would therefore apply to all police evidence concerning the

confessions (written or oral) said to have been given by the

three present petitioners. No one of the petitioners took the

stand or was available for cross-examination by his codefendants.

As to each defendant, testimony concerning the two other con-

fessions was purely hearsay and was admitted without any possi-

bility of in-court confrontation.

We find no language in the Harrington or Schneble cases

relied upon by the state which holds testimony concerning the

confessions of joint defendants to be admissible under such

circumstances with or without judicial admonitions to the

jury.

As we read the Supreme Court opinions in Harrington and

Schneble, the sole issue pertained to whether or not (assum-

ing the codefendants’ confessions had been admitted in viola-

tion of Bruton’s interpretation of the confrontation clause)

there were nonetheless admissible proofs of such force as to

make the constitutional error “harmless beyond reasonable

—~ po

doubt.” See Chapman v. California, 386 U.S. 18 (1967). In

Harrington the Court’s opinion described such proofs as “so

overwhelming that unless we say no violation of Bruton can

constitute harmless error, we must leave this state conviction

undisturbed.” Harrington v. California, supra at 254. And the

Court, in addition to other admissible evidence indicating guilt,

noted specifically that a codefendant who testified and was

cross-examined had placed Harrington in the store with a gun

when the murder was committed. The clearly admissible facts

in Schneble were equally clearly probative of participation in

the murder there involved.

This court has sought faithfully to follow the teachings of

Bruton, Harrington and Schneble. See Glinsey v. Parker, 491

F.2d 337 (6th Cir.), cert. denied, 417 U.S. 921 (1974); United

States v. Brown, 452 F.2d 868 (6th Cir. 1971), aff'd, 411 US.

223 (1973), and Hodges v. Rose, 570 F.2d 643 (6th Cir.

1978). In the last two cases we found Bruton violations,

but our analysis of the clearly admissible evidence showed it

to be so strong as to make the Bruton error harmless beyond

reasonable doubt.

We recognize that the majority opinions in both Harrington

and Schneble accepted the defendant's own confession as part

of the evidence to be weighed as admissible in determining

whether the violation of the Bruton rule was or was not harm-

less error. Since all three of these confessions were inadmissible

at this joint trial, we find this holding conceptually difficult

in this case. Nonetheless, we accept at face value each of the

defendants’ confessions in this case as it might apply in a single

trial against him. So considered in each case, we find such

evidence, plus the testimony of Robert Wood, sufficient to sup-

port, but certainly not so overwhelming as to compel the jury

verdict of guilty of first degree murder. As indicated below,

there might be reasons to reach a different conclusion as to

es ee

these defendants if they were contesting a jury verdict of

armed robbery rather than first degree murder.

In evaluating the question of harmless error in this case, it

is important to point out the factors which might affect a

jury’s verdict in relation to these three defendants in separate

trials where the Bruton rule was observed:

1) Randolph, Pickens and Hamilton were not involved in

the gambling game between Douglas, the Las Vegas gambler,

and Robert Wood, the hometown gambler who got cheated.

2) They were not involved in originating the plan for re-

couping Robert Wood’s losses.

3) They were not in the room (and had not been) when

Robert Wood killed Douglas.

4) Indeed, the jury could conclude from the admissible

evidence in this case that when Joe Wood pulled out his pistol,

the origina! plan for three “unknown” blacks to rob the all-

white poker game was aborted and that petitioners’ subsequent

entry into the room did not involve them in the crime of

murder.

Additionally, if we return to consideration of the joint trial,

that jury as charged by the state court judge had the responsi-

bility of determining whether or not any of the three con-

fessions testified to by Memphis police was voluntarily given.

Assuming that two of the three confessions had been removed

from jury consciousness by adherence to Bruton, we find it

impossible to conclude that the jury finding and ultimate ver-

dict would, “beyond reasonable doubt,” have been the same.

These factors serve to distinguish this case from Harrington

v. California, supra, and Schneble v. Florida, supra, and to

convince us that the Bruton errors found by the District Judge

cannot (as he also held) be determined to be harmless beyond

reasonable doubt.

— A-10 —

We are fully aware that our rejection of the “interlocking”

confession theory underscores a conflict between the holding

of the Sixth Circuit in Glinsey v. Parker, supra, United States

v. Brown, supra, and Hodges v. Rose, supra, and the views

of the Second Circuit, as exemplified by United States ex rel.

Catanzaro v. Mancusi, 404 F.2d 296, 300 (2d Cir. 1968),

cert. denied, 397 U.S. 942 (1970); United States ex rel.

Ortiz v. Fritz, 476 F.2d 37, 39-40 (2d Cir.), cert. denied,

414 U.S. 1075 (1973), and United States ex rel. Stanbridge

v. Zelker, 514 F.2d 45, 48-50 (2d Cir.), cert. denied, 423

U.S. 872 (1975).

The Second Circuit rationale is set out in the first of these

cases as follows:

Catanzaro’s final claim is that the failure of the trial

court to grant his motion for a separate trial prejudiced

his right to a fair trial. He relies on Bruton v. United

States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476

(1968) and United States ex rel. Hill v. Deegan, supra,

[268 F. Supp. 580 (S.D.N.Y. (1967)] and argues that

because the confession of the codefendant McChesney was

introduced at the joint trial the writ of habeas corpus should

be granted here.

The reasoning of Hill and Bruton is not persuasive here.

Both of those cases involved a defendant who did not

confess and who was tried along with a codefendant who

did. In our case Catanzaro himself confessed and his

confession interlocks with and supports the confession of

McChesney.

Where the jury has heard not only a codefendant’s con-

fession but the defendant’s own confession no such “devas-

tating” risk attends the lack of confrontation as was

thought to be involved in Bruton. See 391 U.S. at 136,

88 S.Ct. 1620.

— A-ll —

United States ex rel. Catanzaro vy. Mancusi, supra

at 300.

Catanzaro was decided on the heels of Bruton v. United

States, supra. As noted above, there has been much debate on

differing facts, as to whether a violation of the Bruton rule

should or should not be held to be harmless error beyond rea-

sonable doubt. But in no instance has the Supreme Court over-

ruled Bruton or suggested that either identity or greater or

lesser similarity of confessions presented by hearsay and with-

out confrontation served to make them admissible. See Har-

rington v. California, supra, and Schneble v. Florida, supra.

We believe that Bruton v. United States is controlling law.

We also believe that there is a great difference between hold-

ing that hearsay and unconfronted confessions are admissible

as to others than the confessor in joint trials, and holding that

such confessions are inadmissible and, where admitted in error,

must result in new trials unless the court can say that the con-

stitutional error was harmless beyond reasonable doubt. Bur

see Metropolis v. Turner, 437 F.2d 207, 208-09 (10th Cir.

1971) and United States v. Walton, 538 F.2d 1348, 1353-54

(8th Cir.), cert. denied, 429 U.S. 1024 (1976).

While there are conflicting Circuit Court opinions* which are

both supportive of and contrary to the views expressed above

on the Bruton violation and harmless error issues, this court's

view was stated earlier in an opinion by our then colleague

3 1. Cases Rejecting “Interlocking” Confession Admissiility :

a. Expressly:

Hodges v. Rose, — U.S. — (6th Cir. 1978) (Nos. 77-1374-75,

slip. op. at 6); United States v. DiGilio, 538 F.2d 972, 981-83 (3d

Cir. 1976), cert. denied, 429 U.S. 1038 (1977).

b. Impliedly:

Hall v. Wolff, 539 F.2d 1146, 1148-49 (8th Cir. 1976); Glinsey

v. Parker, 491 F.2d 337, 340-44 (6th Cir.), cert. denied, 417 U.S.

921 (1974); United States v. Brown, 452 F.2d 868 (6th Cir. 1971),

aff'd, 411 U.S. 223 (1973); Ignacio v. Guam, 413 F.2d 513, 515-16

(9th Cir. 1969), cert. denied, 397 U.S. 943 (1970); United States

— A-12 —

Judge Wade McCree. See United States v. Brown, 452 F.2d 868

(6th Cir. 1971), aff'd, 411 U.S. 223 (1973).

What we have written upon the Bruton issue requires our

affirmance of issuance of the writs of habeas corpus. We there-

fore feel no need to write upon the second issue concerning

the District Judge’s finding that Pickens’ right to counsel had

been violated beyond noting that we have reviewed and we

affirm his findings of fact and conclusions of law on this issue

also.

The judgment of the District Court is affirmed.

ex rel. Johnson v. Yeager, 399 F.2d 508, 510-11 (3d Cir. 1968),

cert. denied, 393 U.S. 1027 (1969).

2. Cases Adopting “Interlocking” Confession Admissibility:

United States ex rel. Catanzaro v. Mancusi, 404 F.2d 296, 300

(2d Cir. 1968), cert. denied, 397 U.S. 942 (1970); United States ex

rel. Stanbridge v. Zelker, 514 F.2d 45, 48-50 (2d Cir.), cert. denied,

423 U.S. 872 (1975); United States ex : el. Duff v. Zelker, 452 F.2d

1009, 1010 (2d Cir. 1971), cert. denied, 406 U.S. 932 (1972).

3. Cases Relying Upon Both “Harmless Error” and “Interlocking”

Confession Admissibility (or Saying That the Choice of Doctrine

Made No Difference) :

United States v. Walton, 538 F.2d 1348, 1353-54 (8th Cir.),

cret. denied, 429 U.S. 1025 (1976); Mack v. Maggio, 538 F.2d

1129, 1130 (Sth Cir. 1976); United States v. Spinks, 470 F.2d 64,

65-66 (7th Cir.), cert. denied, 409 U.S. 1011 (1972); Metropolis

v. Turner, 437 F.2d 207, 208-09 (10th Cir. 1971); United Staies ex

rel. Dukes v. Wallack, 414 F.2d 246, 247 (2d Cir. 1969).

4. In United States ex rel. Ortiz v. Fritz, 476 F.2d 37, 38-40 (2d

Cir.), cert. denied, 414 U.S. 1075 (1973), a panel of the Second

Circuit questioned the “interlocking” confession doctrine but felt

bound to follow it by United States ex rel. Catanzaro v. Mancusi,

supra.

— A-13 —

APPENDIX B

In the United States District Court

For the Western District of Tennessee

Western Division

James Randolph,

Petitioner,

v. Civil C-76-68

Chief Harry Parker,

Respondent.

Wilburn Pickens,

Petitioner,

v. Civil C-76-69

Chief Harry Parker,

Respondent.

Isaiah Hamilton,

Petitioner,

v. Civil C-76-310

Chief Harry Parker,

Respondent.

Memorandum Decision

(Filed May 2, 1977)

Petitioners, Hamilton, Randolph and Pickens, were convicted

in early 1972 in the Criminal Court of S'.c!by County of the

offense of felony-murder, in this case a homicide in the perpe-

tration of an armed robbery, and they received life sentences.

The state’s factual theory, in a nutshell, can be stated as

foliows: In July, 1970, Robert Woods had lost a considerable

am Av14

amount of money in head-to-head card games with one Doug-

las and had become convinced that Douglas had been cheating

him. In anticipation of still another game, Robert asked his

brother, Joe Woods, to arrange to “have the game robbed,” and

in this way regain most, if not all, of what he had lost. Joe

Woods then enlisted petitioner Hamilton, an employee of his,

who associated petitioners Randolph and Pickens, to carry out

this venture. While the card game was in progress, petitioners,

by pre-arrangement, were waiting in the vicinity of the apart-

ment where it was being held. Joe Woods and one Tommy

Thomas were in the apartment watching the game. Joe left

the apartment and brought petitioners back with him, but failed

to gain entrance for them when Douglas, hearing strange noises

in the hallway, refused to allow the door to be opened. How-

ever, later, after petitioners had returned to their place of wait-

ing, Joe did obtain admission for himself into the apartment.

Shortly thereafter, Joe pulled a pistol on Douglas and Thomas,

and then, handing the pistol to Robert Woods, went to tell pe-

titioners to move in on the game. (Obviously, matters were

not going according to plan.) Before petitioners reached the

apartment, however, Douglas went for his pistol with the re-

sult that Robert Woods shot and killed him. Within seconds

after the shooting, Joe and the petitioners knocked the apart-

ment door down and entered, Robert then took all of the

cash, and later petitioners Hamilton and Randolph (but not

petitioner Pickens) were paid $50.00 for their participation.

The commission of a homicide during the commission of a

felony was murder at common law, and under Tennessee crimi-

nal statutes (TCA § 39-2402) such is murder in the first degree.

The Tennessee Court of Criminal Appeals reversed the con-

victions, holding that, since the shooting of Douglas had oc-

curred before petitioners had reached the scene, they could not

be guilty of felony-murder. The Supreme Court of Tennessee,

however, granted certiorari, reversed the Court of Criminal

Appeals, and reinstated the convictions. It held that the shoot-

— A-15 —

ing of Douglas was within the res gestae of the robbery in which

petitioners were taking part.

Thereafter, petitioners filed the instant habeas petitions,

which have been before the magistrate for a report and recom-

mendation. With the exception of two of the claims raised by

petitioners, the magistrate concluded, with which we have con-

curred, that the claims of petitioners have been foreclosed by

the determinations made in the state courts or that petitioners

have not exhausted state remedies with respect to such claims.

In particular, the magistrate concluded (and we have agreed)

that the application of the felony-murder rule under these facts

did not constitute a denial of federal due process.

The issues that we have before us, then, are the following:

1. Was petitioner Pickens deprived of a Miranda right when

his confession was taken after, he contends, he has asked that

his lawyer be present.

2. Were all three petitioners denied their right to confronta-

tion and cross-examination under the Bruton decision when their

confessions were read to the jury and none of them testified.

I

With respect to petitioner Pickens’ Miranda claim, it should

be pointed out that his claim in this general area is actually

broader than that he was denied access to counsel. Indeed, he

claims that the arresting officers threatened him with physical

harm on two occasions while he was being brought to the police

station and that he was threatened with such harm again while

there before he signed a statement. Pickens also claims that,

because the police had taken his glasses, he could not read and

did not know what he was signing and that the facts in the

Statement were supplied by the police. Thus Pickens claims

— A-16—

that the signed statement was not a free and voluntary one and,

indeed, that it was not his statement at all.

At the conclusion of the hearing on the admissibility of

Pickens’ confession, during which evidence had been introduced

out of the presence of the jury on all of these matters, the state

trial court overruled the motion to suppress on all grounds

without elaborating. This court has concluded that, with re-

spect to all of Pickens’ contentions except that based on denial

of access to counsel, the record supports the conclusion of the

state trial court under the standards set out in 28 USCA § 2254

(d) and that this court therefore cannot review such determina-

tions. Our conclusion, however, is to the contrary with respect

to the claim of denial of access to counsel.

The facts surrounding Pickens’ contact with his lawyer on

the day before his arrest were undisputed in the state trial court

and are undisputed here. On the day prior to his arrest, Pickens’

picture appeared in a local newspaper, along with others, with

a story saying that they were wanted for the Douglas murder.

Pickens saw his picture and called a local lawyer, who already

represented him in another matter, in the early evening and

asked the lawyer to accompany him to the police station to turn

himself in. The lawyer Anthony Sabella, had already seen the

picture and story. Sabella advised Pickens that he could not go

with him that evening and asked Pickens to come to his office

the next morning and he would surrender Pickens to the police.

Sabella also told Pickens that if, in the meantime, he were

arrested, he must advise the police that Sabella was his lawyer

amd that he wanted his lawyer present for any questioning.

Pickens was arrested in the very early hours of the next morning.

Pickens testified in the state court and here that he told the

police more than once that Sabella was his lawyer and wanted

to contact him and that the police denied him the opportunity.

— A-17 —

The police testified in state court that Pickens never asked for

a lawyer or mentioned Sabella.

It seems practically inconceivable to this court that Pickens,

who had been in contact with his lawyer the evening before and

had been instructed by his lawyer to tell the police that he

wanted his lawyer present if he were arrested during the night,

would not have mentioned this to the police, when they arrested

him a few hours later and had him in custody. The police,

it is true, testified that Pickens did not ask for or even mention

that he had counsel, but the police were testifying about, to

them, a routine event eighteen months after the event. We are

satisfied, therefore, that this record does not support the find-

ing that Pickens did not ask for access to his lawyer and on the

contrary that the evidence is convincing that he did ask for

access to his lawyer. 28 USCA § 2254(d).

We, therefore, conclude that the admission in evidence of

Pickens’ confession was constitutional error in that it violated

his right as set out in Miranda.

I

As stated, each of the three petitioners contends that his

right to confrontation and cross-examination, as such is set

out in Bruton, was violated when the confessions of the other

petitioners were admitted in evidence and neither of them took

the stand and testified, although the trial court did charge the

jury that each confession could be considered as evidence only

against the defendant making the confession.

At the state trial, an effort was made so to redact the state-

ments so that the identity of persons other than the declarant

and persons not on trial could not be ascertained by the jury.

This effort, however, was unsuccessful and respondent does not

contend to the contrary.

— A-18 —

The Supreme Court of Tennessee considered the Bruton

problem and concluded that there was no constitutional error.

Each of the confessions was consistent with the others so that

they could be said to be interlocking confessions. It is not

clear whether the Tennessee court considered that there was

no such error because, under these circumstances, Bruton

simply does not apply or because, under these circumstances,

the violation of Bruton was harmless error.

In any case, respondent, relying on such cases as Stanbridge

v. Zelker, 514 F.2d 45 (2nd Cir. 1975), holding that there

was no Bruton violation because there were interlocking con-

fessions, contends that the same result should be reached here

so far as the Bruton case is concerned. In Gl*1sey v. Parker,

491 F.2d 337 (6th Cir. 1974), however, our Court of Appeals

held that Bruton applied where there were interlocking con-

fessions. We therefore conclude that, as of now, the rule in

this circuit is different from that in the Second Circuit.

Respondent alternatively contends that, even if Bruton ap-

plies and was violated, such was harmless error beyond a rea-

sonable doubt. This contention raises the question whether the

confessions of petitioners Hamilton and Randolph, the admis-

sion of which this court has held not to have been constitutional

error, could themselves be the basis of a finding that the Bruton

violation was harmless. Again, in Glinsey, supra, at 343-344,

our Court of Appeals seems to hold that the proper admission

of a confession does not cure the Bruton problem as to the

confessor. Moreover, other than the confessions of these peti-

tioners, the only other evidence of their guilt is the testimony

of Robert Woods whose identification of petitioners Rando!ph

and Pickens was very weak. Still further, there was no proof,

except in the confessions, that petitioners had been, though Joe

Woods, a part of a pre-arranged robbery plan, a necessary

ingredient to their conviction of felony—murder; Robert Woods

supplied no such proof in his testimony.

ee

— A-19 —

Accordingly, we conclude that the right of these petitioners

to confrontation and cross-examination was violated under

Bruton and we cannot find that the violation of the Bruton

principle was harmless error beyond a reasonable doubt.

Order for Judgment

It is therefore ORDERED that the Clerk will enter a final

judgment providing that petitioners will be discharged from

custody unless (1) the State of Tennessee retries them within

a reasonable time or (2) respondent timely appeals this deci-

sion in which case the discharge of petitioners will be stayed

pending appeal.

ENTER this 2 day of May, 1977.

/s/ (Illegible)

Chief Judge

— A-20 —

APPENDIX C

In the Supreme Court of Tennessee

at Jackson

December 15, 1975

State of Tennessee, .

Petitioner,

VS. Shelby Criminal

Honorable

Robert Hugh Wood, Joe E. Wood, { Perry H. Sellers,

Isaiah Hamilton, James Albert Ran- Judge

dolph and Wilbur Lee Pickens,

Respondents. |

FOR PETITIONER: FOR RESPONDENTS:

David M. Pack Hugh Stanton, Jr.

Attorney General Memphis, Tennessee

Nashville, Tennessee

Robert H. Roberts H. H. McKnight

Assistant Attorney General Memphis, Tennessee

Nashville, Tennessée

Joe Patterson Robert L. Smith

Don D. Strother Memphis, Tennessee

Assistant District Attorneys Charles J. Cassell

General

Memphis, Tennessee

Memphis, Tennessee ite —

Anthony J. Sabella

Memphis, Tennessee

Opinion

(Filed December 15, 1975)

REVERSED PER CURIAM

— A-21 —

This case presents two principal issues, viz: (1) whether the

facts justify an application of the “felony-murder” rule, and (2)

whether the admissibility of certain confessions of the co-defend-

ants constitute a violation of the rule enunciated in Bruton v.

United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476

(1968).

The five defendants were convicted of murder in the perpe-

tration of robbery and were sentenced to life imprisonment.

The Court of Criminal Appeals reversed and remanded for a

new trial.

I

The record reveals the following crucial facts surrounding

this homicide.

Approximately three weeks prior to the night of the incident

at issue, July 6, 1970, a poker game was arranged by one Walter

Lee (Woppy) Gaddy between respondent, Robert Wood, and the

deceased, William Douglas, alias Ray Blaylock. Douglas, a pro-

fessional gambler from Las Vegas had agreed to give Gaddy a

cut of his winnings in exchange for the use of his apartment, and

his effort at setting up Robert Wood. Wood arrived for this

first game, anticipating the presence of several participants, yet

only he and the deceased, as planned, showed up. The final re-

sult of this initial encounter was that Wood lost “twenty-some

hundred dollars.”

A similar pattern was followed for the second meeting one

week later. This game also produced a similar result. Wood

losing another fifteen hundred ($1,500) to two thousand ($2,000)

dollars.

For the scheduled third meeting of July 3, 1970, Wood, his

suspicions of being cheated’ having increased with each game,

1 The record reflects that Douglas was playing with a marked

deck. He was utilizing a wax substance on a deck of paper cards

which was discernible to the trained eye.

— A-22 —

decided to bring along an acquaintance, Tommy Thomas, who

had the reputation of being a “pretty good poker player.” How-

ever, the fathers of Thomas and Douglas had been close friends,

and Thomas was also persuaded to fix the game by losing some

one thousand ($1,000) dollars, six hundred ($600) dollars of

which had been put up by Wood.

The fourth meeting between Douglas and Wood was set

for July 6, 1970, again at Gaddy’s apartment. Wood, con-

vinced he was being cheated, asked his brother, Joe E. Wood,

to come along. The extent of Robert Wood’s plan to retrieve

the four thousand five hundred ($4,500) dollars he had lost is

best demonstrated by his own testimony:

Q. Now, was your brother in any of these other games?

A. No, sir.

Q. How did he happen to come this time?

A. I had told him that I would probably need some

money and I told him I suspected the man was cheating.

Q. Did you say anything to him about getting some

help?

A. I told him that several people there and they had

guns and so forth. I told him I suspected the man was

cheating me. If I caught him cheating me, I was going

to ask for my money back and I might need some help

to get it back.

Q. And, you mentioned to him that you thought you

were being cheated, is that correct?

A. Yes, Sir.

Q. And, what else did you tell him?

A. I told him that I, we was getting plastic cards.

Q. That you were getting plastic cards?

_—

A. To play with and I was going to see if I could

catch him cheating in any way.

Q. And, did you tell him that there were men out

there with guns if I understood you right?

A. I said the man had some guns there.

Q. Did you say anything to him about getting some

help?

A. He said that he would bring somebody with him. I

didn’t know exactly who or how many.

Q. Said he would bring somebody with him?

A. That worked for him.

Q. Now, they were—you understood that he was to

bring some people with him that worked for him, is that

correct?

A. Yes, sir.

Q. What were they coming there for?

A. If I caught the man cheating, I was going to demand

my money back and I did not figure he would be willing to

give it up that easily.

Q. So you cotild say that they were coming there to

rob this man, is that correct?

A. Well, if you would call it that, I would call it if you

had been cheated out of your money, you just got your

money back, it wouldn't be considered as robbing some-

body.

Robert’s brother, Joe, responding to this plea for assistance,

contacted two of the other respondents, Isaiah Hamilton and

Wilbur Pickens, enlisting them in this scheme. Joe Wood, on

July 4, 1970, took them to the Benbow Apartments (where

the game was to be held), pointing out the particular apart-

<n

ment, and he promised them three hundred ($300) to four

hundred ($400) dollars to rob the game explaining to them

that his brother was being cheated. He also told them that he

would be inside the apartment and would “kill him (Douglas)

if I have to.”

On the night of July 6, Joe Wood enlisted a third com-

panion, James Randolph. Randolph, having been informed of

the situation with the same brief yet decisive language used by

Joe Wood with Hamilton and Pickens, joined these two and

the trio headed for the Benbow Apartments.

At Gaddy’s apartment the scene was as follows: Robert

Wood and Douglas began playing poker around 7:30 p.m. Joe

Wood and Tommy Thomas (who had come at the invitation of

Douglas) sat in the same room as spectators. Between 8:30

p.m. and 9:00 p.m. Joe Wood announced he was going to

get some more beer. He asked Thomas to accompany him, but

Thomas elected to remain. While supposedly out getting beer,

Joe Wood met with his three enlisted companions.

After a brief trip to the nearby Krystal Restaurant, a pur-

chase of some beer, and a positioning of the automobiles, the

four approached the apartment. As they neared the apart-

ment, Thomas heard the sounds of several people. He placed

himself near the door. Douglas, fearing a break-in, ran to

the bedroom, returning with a shotgun. He stood in front of

the door armed with the shotgun and a pistol which he pulled

from his belt. After repeated inquiries by Thomas as to who

it was, during which Joe Wood’s three companions returned to

their car, Joe Wood convinced him he was alone. Yet, as a pre-

cautionary measure, Douglas made Joe Wood crawl through a

small window next to the front door. During all this Douglas

remained armed with two weapons, pointed at the incoming

Wood. :

Once Joe Wood was in the room, Douglas was convinced

the situation had returned to normal, and announced his in-

— A-25 —

tention to resume the game (approximately eighteen hundred

($1,800) dollars was on the table at this time). At this point,

Robert Wood expressed his desire to quit and leave but Douglas

still armec with two weapons, would not so agree, and he stated

that the game would continue until the money on the table was

completely won or lost. Reluctantly Robert Wood sat down.

The game having been resumed for only five to ten minutes,

Joe Wood arose, and asked permission to go into the bath-

room. He exited the bathroom armed with a derringer, and

walked behind Douglas, ordering Thomas and him to lie on the

floor. Thomas quickly responded, but Douglas remained sit-

ting. Joe Wood then handed the derringer to his brother,

who remained stunned at these totally unexpected actions

(Robert Wood testified he did not even know his brother was

armed, especially since he was fiercely quizzed by Douglas as

he crawled in through the window). Joe then darted out the

door, leaving it open.

At this point, Thomas in an effort to avoid any shooting, rose

from the floor, telling Robert Wood “that they had to talk this

thing out”, and went to front door, where he closed and locked

it. As he was returning toward the poker table, Douglas made

a move for the pistol in his belt, and Robert Wood “spun

around and snapped one shot” into Douglas’ chest.

Within seconds after the shooting, the three armed men

kicked in the door and one of them fired a shot at Robert Wood

because he was armed, the bullet landing in the wall above his

head. (The record demonstrates that after Joe Wood exited the

apartment, he called to his three companions who came running

from their nearby car). One of the three searched Thomas,

taking from him a knife and eighty ($80) dollars. Robert

Wood then took all the money on the table (some two thousand

($2,000) to two thousand five hundred ($2,500) dollars) and

stuffed it in his pockets. Everyone then exited with the excep-

tion of Thomas who remained behind to attend to Douglas.

— A-26 —

Four of the five respondents then met at the apartment of

Isaiah Hamilton, where the weapons were hidden, and Hamilton

and Randolph were given fifty ($50) dollars apiece. Pickens,

who had left the car prior to arriving at Hamilton’s apartment,

received no money.

Subsequent to the incident, all five respondents were either

arrested or surrendered themselves to Memphis police. State-

ments were taken from all except Joe Wood. At the trial only

Robert Wood took the witness stand. The statements of Hamil-

ton, Pickens, Randolph and Robert Wood, all being found by

the trial judge to have been freely and voluntarily given, were

admitted into evidence through the testimony of several officers

of the Memphis Police Department.

In an effort to comply with the rule enunciated in Bruton v.

United States, supra, the trial court and all counsel diligently

attempted a program of redaction for each of the total four

statements. These efforts are revealed through several entire

volumes of the bill of exceptions. In short, any reference by one

defendant as to another defendant was replaced with “blank”

or “another person.” The Court of Criminal Appeals, in its ma-

jority opinion found this particular type of redaction to be in-

appropriate and not in full compliance with the Bruton rule.

In summarized form, as to the crucial facts, the evidence re-

veals:

(1) that Tommy Thomas witnessed the felonious actions

of Joe Wood, Randolph, Pickens and Hamilton, and he

saw Robert Wood actually shoot William Douglas;

(2) that Robert Wood took approximately two thousand

($2,000) dollars from the poker table;

(3) that the actual physical shooting preceded the ulti-

mate robbery by only a few seconds;

—

(4) that Robert Wood fired upon Douglas after the

latter reached for a pistol in his belt.

(5) that all the respondents were operating under a

scheme of some proportions to retrieve the money lost by

Robert Wood to William Douglas.

Based upon these presented facts, all five (5) defendants

were convicted of murder in the perpetration of a robbery, §

39-2402 T.C.A. On appeal the Court of Criminal Appeals in

a split decision reversed and ruled:

There is nothing to indicate that the shooting took place

as part of or in perpetration of the robbery of the de-

ceased. To the contrary, the evidence clearly reflects that

Robert Wood shot the deceased prior to the taking of the

money from the apartment. The testimony of State’s wit-

ness Tommy Thomas supports Robert Wood’s statement

that he shot Douglas as the latter was going for his gun.

There is no evidence offered by the prosecution which

supports the theory that Robert Wood was participating

in the robbery of William Douglas at the time he shot

Douglas. Even the confession of co-defendants Randolph,

Hamilton and Pickens, support the conclusion that the

shooting was not part of a robbery attempt.

[Court of Criminal Appeals opinion, p. 3, Judge

Mitchell dissented as to this ruling, stating that the

facts clearly demonstrated an overall robbery plan,

and that the jury's finding of guilt is not overcome

by a preponderance of the evidence, citing State v.

Grace, 493 §.W.2d 474 (1973)].

Il

We cannot concur with the majority’s assessment of evidence

on the issue of felony-murder.

— A-28 —

In his muiti-volume work on criminal law and procedure,

Wharton defines the felony-murder rule at §251 as follows:

A murder committed in the course of the perpetration

of a felony is murder on the theory that the element of

malice may be implied from the fact of the commission

of a felony, even though the killing is unintentional and

accidental.

Wharton's Criminal Law and Procedure Vol. 1 (1957).

This concept of implied or imputed malice was statutorily

recognized in Tennessee in 1829 with chapter 23 of the Public

Acts of that year which ultmately produced §39-2402 T.C.A.

This statute now reads in pertinent part:

39-2402. Murder in the first degree-——An individual

commits murder in the first degree if:

(4) he commits a willful, deliberate and malicious kill-

ing or murder during the perpetration of any arson, rape,

robbery, burglary, larceny, kidnapping, aircraft piracy, or

unlawful throwing, placing or discharging of a destructive

device or bomb. (Emphasis supplied )

In applying §39-2402 T.C.A. the courts of this State have

consistently held that killing is murder in the first degree, re-

gardless of whether malice and premeditation are proven, where

such is done in the commission of a robbery. Phillips v. State,

2 Tenn.Crim.App. 609, 455 S.W.2d 637 (1970). Woodruff

v. State, 164 Tenn. 530, 51 S.W.2d 843 (1932).

Additional cases offer more definitive treatment of the felony-

murder rule. Quoting from Wharton on Homicide, this Court

in the case of Smith v. State, 209 Tenn. 499, 354 S.W.2d 450

(1961) pronounced:

— A-29 —

Where a person is killed by another in perpetrating, or

attempting to perpetrate, a felony or criminal act calcu-

lated to cause death, the premeditated intent to commit a

felony or other criminal act is, by implication of law,

transferred from that offense to the homicide actually com-

mitted, so as to make the latter offense a killing with mal-

ice aforethought constituting murder in the first degree.

In such case the turpitude of the criminal act supplies the

place of deliberate and premeditated malice and is its

legal equivalent and the purpose to kill is conclusively

presumed from the intention which is of the essence of

the criminal act intended. And such a murder is a mur-

der in the first degree under such statutes, though it is

casual and unintentional.

354 S.W.2d at 450, 451

The killing must have been done in pursuance of the unlawful

act, and not collateral to it: it must have an intimate relation

and close connection with the felony and not be separate, dis-

tinct and independent from it. Farmer v. State, 201 Tenn. 107,

296 S.W.2d 879 (1956). For the felony-murder to apply, it

is necessary that the homicide be a natural and probable conse-

quence of the commission or attempt to commit the felony.

Wharton, § 252, supra.

However, it is not necessary that the defendants believe that

death would result. As pronounced by Justice Felts, when

speaking for this Court in Dupes v. State, 209 Tenn. 506, 354

S.W.2d 453 (1962):

A murder committed in the perpetration of or attempt

to perpetrate, ‘robbery’, is murder in the first degree.

(T.C.A. § 39-2402).

When they thus entered upon a common design to com-

mit a felony, the natural and probable consequences of

—~

which involved the contingency of taking human life,” all

were res, nsible for the acts of each committed in further-

ance of such design even though the killing was not spe-

cifically contemplated. (citations omitted )

354 S.W.2d at 456

Although the cumulative import of the evidence as recited

above is that no physical harm was planned as to the deceased,

each and every defendant either through words or actions

demonstrated his knowledge that “killing may be necessary.”

Each foresaw the probable consequence of homicide.

The majority opinion by the Court of Criminal Appeals

seemed to view the timing of the events as the crucial factor in

their conclusion of the non-application of the felony-murder

doctrine. The fact that the shooting was prior to the actual

taking of money from the apartment was controlling in their

minds. We feel that this limited “timing” analysis is an over-

simplification of the felony-murder rule, and is contrary to the

law in this State.

In Smith v. State, supra, this court applied the concept of

“res gestae” to the issue of felony murder. In that case the

defendant argued that the killing which occurred prior to the

actual taking of any money, was not done in pursuance of the

robbery, but collateral to it. The facts of the case were that

the defendant upon entering a liquor store informed the pro-

prietor, who was positioned behind the counter, of his in-

tentions of robbery. When refused money, defendant drew a

pistol. The proprietor also drew a gun and attempted to fire

it at the intruder, to which the defendant retaliated with a deadly

shot to the chest of the store owner. This Court, in rejecting

2 Historically, the felony-murder doctrine applies only to felonies

that are inherently or foreseeably dangerous to human life, of which

robbery is unanimously included. See Annotation, Felony Murder—

“Dangerous” Felonies, 50 A.L.R.3d 397.

—A-31—

defendant’s argument that the homicide was collateral to the

robbery, stated:

We think that unquestionably this killing was done and

is part of the res gestae of the whole acts embracing the

robbery. It had a close and intimate connection with the

felony and grew out of the attempt to commit the felony.

354 S.W.2d at 452.

(This application of “res gestae”*® to cases of felony-murder has

been recognized in eighteen (18) additional jurisdictions. See

Annotation, Felony Murder Rule—“Termination of Felony”

58 A.L.R.3d 851).

The felony-murder rule applies when the killing occurs dur-

ing the commission of or the attempt to commit the felony.

Wharton §251, supra; Smith v. State, supra. The evidence

demonstrates that each defendant was carrying out or attempt-

ing to carry out a scheme of robbery. During the attempt to

activate this plan, the deceased was shot and subsequently died;

a natural and foreseeable consequence of activity which en-

dangers human life. By the agreement between the defendants

to pursue the illegal action of a robbery, the act of one co-

conspirator (Robert Wood) in pursuance of that purpose was

an act for which criminal liability attached to each defendant.

Williams v. State, 164 Tenn. 562, 51 S.W.2d 482 (1932);

Dupes v. State, supra, and Wharton §251, supra.

There remains one tangential issue, derivative of the felony-

murder rule in this case. Defendant Robert Wood claims that

8 There are numerous decisions from multiple jurisdictions which

apply the felony-murder doctrine to homicides which occur after the

actual commission of the felony, eg. during the escape. The separa-

tion of time and/or place between the felony and the homicide is

usually answered by ruling that the delayed homicide was of

the res gestae or in pursuance of the felony. (See 58 A.L.R.3d 85!,

infra, at section 6.) This case presents the inverse situation wherein

the homicide precedes the commission of the felony. However,

the application of the principle of res gestae is equally appropriate.

— A-32 —

he shot the deceased only after he reached for a gun in his belt.

The testimony of Tommy Thomas corroborates this version of

the homicide. However, this implied formulation of a self-

defense theme is inappropriate in a felony-murder case.

This Court answered this particular proposition in Smith v.

State, supra, holding that a robber could not claim self-defense

in a prosecution for first degree murder committed during such

robbery, because:

Under such circumstances when one brings on the act

by approaching another with a gun and demands money,

he is not, should not, and cannot be in a position to say,

‘Well, I killed him because I thought he was going to

shoot me.’ He is the instigator and author and brings about

the whole chain reaction, and thus cannot defend on this

ground.

354 S$.W.2d at 452

nal

The latter, and equally difficult issue of this case is a con-

sideration of the admission of certain evidence in light of the

holding in Bruton v. United States, supra.

As noted previously, each of the statements given to Memphis

police authorities by Robert Wood, Randolph, Pickens and

Hamilton, were admitted through the testimony of the inter-

rogating officer. And, as cited, each went through a laborious

process of redaction, whereby references by the confessing de-

fendant as to the other defendants were replaced with “blank”

or “another person.”

It should be stressed that Robert Wood's inculpatory testi-

mony (in direct variance to his confession wherein he stated

that Randolph, Pickens and Hamilton shot Douglas and robbed

— A-33 —

the game) went way beyond the replaced references to him

within the statements of Randolph, Pickens and Hamilton, for

none of them actually witnessed the shooting. And, in addition,

the record reveals that the confessions of these three were strik-

ingly similar in content, both in their original and redacted ver-

sions.

In the Bruton case, two co-defendants, Evans and Bruton,

were jointly tried on a federal charge of armed postal robbery.

Although Evans did not testify, a prior oral confession by

Evans, implicating both Bruton and him, was admitted through

the testimony of a postal inspector. The trial court instructed

the jury that although Evans’ confession was competent evi-

dence against Evans, it was inadmissible hearsay against Bru-

ton and must be disregarded in determining the guilt or inno-

cence of Bruton. In light of the trial court’s limiting instructions,

Bruton’s conviction was affirmed by the Eighth Circuit Court

of Appeals. On certiorari. the United States Supreme Court

reversed as to Bruton’s conviction.

The full import of this decision can best be demonstrated

through several extracted portions of the opinion, which will

follow a brief examination of the evolution of the Bruton rule.

The Bruton case presented the identical question considered

by the United States Supreme Court in Delli Paoli v. United

States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957),

i.e., whether the conviction of a defendant at a joint trial

should be set aside although the jury was instructed that a co-

defendant's confession inculpating the defendant had to be

disregarded in determining his guilt or innocence. In a 5-4

opinion the Court ruled that under appropriate instructions to

the jury protecting the implicated defendants, the admission

of such a confession was not reversible error. The basic prem-

ise upon which the Delli Paoli decision rested was the belief

that it was fair to proceed under the assumption that the jury

— A-34 —

was capable of following the judge’s repeated admonitions con-

cerning the utility of the confession. 352 U.S. 239.

Between the Delli Paoli and Bruton decisions, the United

States Supreme Court confronted an analogous situation in

Douglas v. State of Alabama, 380 U.S. 415, 85 S.Ct. 1074,

13 L.Ed.2d 934 (1965). In that case, a mutually inculpatory

confession by one defendant was admitted into evidence at the

separate trial of a co-defendant. The defendant at the latter

trial was denied the opportunity to cross-examine his accuser

because he had exercised his Fifth Amendment privilege. The

Court reversed the conviction, ruling that such a procedure

denied the defendant “the right of cross-examination secured

by the Confrontation Clause,” 380 U.S. 419 (relying upon

Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13

L.Ed.2d 923).

With this particular case law development in mind, the Court

in Bruton reasoned:

Delli Paoli assumed that this encroachment on the right

to confrontation could be avoided by the instruction to

the jury to disregard the inadmissible hearsay evidence.

But . . . that assumption has since been effectively re-

pudiated.

391 U.S. at 128 (with reference to the Pointer v.

Texas, supra, and Douglas v. Alabama, supra, deci-

sions).

Adopting the language of Justice Frankfurter in his dissent

in Delli Paoli as to the jury instructions the Court pronounced:

“The fact of the matter is that too often such admoni-

tion against misuse is intrinsically ineffective in that the

effect of such non-admissible declaration cannot be

wiped from the brains of the jurors. The admonition there-

fore becomes a futile collection of words and fails of its

— A-35 —

purpose of a legal protection to defendants against whom

such a declaration should not tell.”

Id. at 129.

Recognizing the attack that its ruling would have upon the

viability and vitality of the jury system, the Court pointed out:

Not every admission of inadmissible hearsay or other

evidence can be considered to be reversible error un-

avoidable through limiting instructions; instances occur in

almost every trial where inadmissible evidence creeps in,

usually inadvertently. . . . It is not unreasonable to con-

clude that in many cases, the jury can and will follow the

trial judge’s instructions to disregard such information.

(Emphasis supplied)

Id. at 135.

Yet the Court concluded with explicit reaffirmance that a

confession which inculpates a co-defendant, yet evades con-

frontation is inadmissible hearsay and, standing alone is re-

versible error. “his firm conclusion is inescapable from a read-

ing of the following pronouncements:

Nevertheless . . . there are some contexts in which

the risk that the jury will not, or cannot, follow instruc-

tions 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. (Emphasis supplied)

Id. at 135.

Despite the concededly clear instructions to the jury to

disregard Evans’ inadmissible hearsay evidence inculpat-

ing petitioner, in the context of a joint trial we cannot

accept limiting instructions as an adequate substitute for

petitioner’s constitutional right of cross-examination. The

— A-36 —

effect is the same as if there had been no instruction at all.

(Emphasis supplied )

Id. at 137.

Following the Bruton decision, an exception to the applica-

tion of this rule emerged through two particular decisions. Both

Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23

L.Ed.2d 284 (1969) and Schneble v. Florida, 405 U.S. 427,

92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) stand for the proposition

that a violation of the Bruton rule in the course of a trial

does not require reversal, if evidence of guilt is so overwhelming,

that the prejudicial effect of the co-defendant’s admission is so

comparatively insignificant as to clearly be harmless error.

(In each of these cases, the evidence of overwhelming guilt was

in major portion, a product of the defendant’s own confession. )

This “overwhelming evidence” exception has been recognized

by the courts of this State. Taylor v. State, 493 S.W.2d 477

(Tenn.Crim.App. 1972).

However, prior to this recognition of the exception pro-

nounced in Harrington v. California, supra, the Tennessee

Court of Criminal Appeals had carved out an additional ju-

dicial limitation to the application of the Bruton rule. In the

opinion of O’Neal v. State, 2 Tenn.Crim.App. 518, 455 S.W.2d

597 (1970) the court, in applying the Bruton doctrine to a

situation where all co-defendants made inculpatory, intertwining

confessions, yet none testified, stated:

In this record under these facts and circumstances, with

Bruton v. United States, supra, in mind, to say this was

error, i.¢., violative of the confrontation clause of the

Sixth Amendment, to allow these statements to be used in

evidence we believe not.

tT vie

We are of the opinion this is one of the contexts in

which the jury under the facts and circumstances developed

could obey and follow the instructions of the court as

found in this record.

455 S.W.2d at 603

This pronouncement was relied upon as direct precedent in a

subsequent case, Briggs v. State, 501 S.W.2d 831 (Tenn. Crim.

App. 1973) for the legal proposition that the Bruton rule is in-

applicable where all of the jointly tried co-defendants confess.*

We reiterate the observation recently made by Justice Cooper

while speaking for this Court in State v. Elliott, 524 S.W.2d 473

(Tenn. 1975):

We think this statement is an over-simplification of the

impact of the Bruton rule.

524 S.W.2d at 477

The facts of this case, when combined wiih the particular

pattern of confessions and testimony by the various defendants,

present a hybrid Bruton-Schneble-O'Neil problem.

The major criterion for the Bruton application is satisfied

through the admissibility of confessions of the defendants, im-

plicating their various co-defendants, without such co-defend-

ants being afforded the opportunity of a cross-examination of

their accusors.

Yet, the “overwhelming guilt” exception to Bruton announced

in Schneble v. Florida, supra, also has direct application to de-

fendants, Robert and Joe Wood. Robert’s own testimony es-

4 There is a clear division among the jurisdictions as to the proper

Bruton analysis in a situation where two or more co-defendants make

mutually inculpatory, interlocking confessions which are admitted at

trial. Courts have ruled that such admission is: (1) erroneous; (2)

erroneous but harmless error; and (3) not erroneous. See Anno-

tation, Confrontation Clause—Bruton Rule, 29 L.Ed.2d 931, 981-

989.

— A-38 —

tablishes his guilt with greater specificity than do any of the

three redacted confessions (either singly or cumulatively) of his

co-defendants. (This is especially true since the confessing co-

defendants had no visible knowledge of the actual homicide.)

In addition, Robert's version of the homicide is corroborated

in detail by the testimony of the eye-witness Tommy Thomas.

Robert Wood’s effort to plead self-defense is inappropriate,

Smith v. State, supra; and his guilt is demonstrated through

“overwhelming evidence”, thus causing any possible Bruton

violation to be harmless error. Schneble v. Florida, supra.

This “overwhelming guilt” analysis also has application to

the guilt or innocence of defendant, Joe Wood. The testimony

of both Robert Wood and Tommy Thomas (who were subject

to cross-examination) reveal Joe Wood as the initial instigator

of the actual felony-murder. In addition, independent evidence

(through several State witnesses who were neighbors of Woppy

Gaddy) places Joe Wood at the entrance to Gaddy’s apartment

prior to and immediately following the shooting. Also, the

record reflects that the confessions of Hamilton, Pickens and

Randolph were sufficiently “cleansed” of any direct references

to Joe Wood. And he did not suffer under the potential bur-

den of group identification as did the three enlisted participants.

Even accepting that the cumulative import of the three con-

fessions caused some prejudice to attach to Joe Wood, their

admissibility was harmless error in light of the overwhelming

evidence against him, Schneble v. Florida, supra. His guilt in

the felony-murder was properly established.

Finally, the interlocking inculpatory confessions of Randolph,

Pickens and Hamilton is a situation akin to that addressed in

O'Neal v. State, supra. The confessions of Randolph, Pickens

and Hamilton clearly demonstrated the involvement of each,

as to crucial facts such as time, location, felonious activity,

and awareness of the overall plan or scheme. As pointed out

by this Court in State v. Elliott, supra:

— A-39 —

The fact that jointly tried co-defendants have confessed

precludes a violation of the Bruton rule where the confes-

sions are similar in material aspects . . .

524 S.W.2d at 478

This observation is more clearly understood through a direct

comparison of such a situation to the facts from which Bruton

emerged. As noted previously, Bruton involved a situation

where the co-defendant through a confession (and not testi-

mony) implicated the defendant in contradiction and repudi-

ation to the defendant's testimony. Unlike Bruton, and like

O'Neil, this case includes a situation where three co-defendants

confess with similar, intertwining versions of their own actions.

The contradiction and repudiation found in Bruton, upon which

the prejudicial deprivation of confrontation rests, is simply not

present. See United States ex rel. Dukes v. Wallack, 414 F.

2d 246, (2nd Cir. 1969). Added to this, in the instant case,

is the fact that Robert Wood through direct testimony identi-

fied Randolph, Pickens and Hamilton as the three other partici-

pants. The guilt of this trio was presented to the jury without

any prejudice attaching under a Bruton analysis. A defendant

is entitled to a fair trial but not a perfect one. Lutwak v. United

States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953).

Such was afforded these five defendants.

Accordingly, the decision of the Court of Criminal Appeals

is reversed, and the convictions of each defendant, as deter-

mined by the jury. is affirmed.

PER CURIAM.

—

APPENDIX D

The Court of Criminal Appeals of Tennessee

at Jackson

January 1974

Appeal from the Criminal Court of Shelby County

Honorable Perry H. Sellers, Judge

Robert Hugh Wood, Joe E. Wood, ,

Isaiah Hamilton, James Albert Ran-

dolph and Wilber Lee Pickens,

Plaintiffs in Error, | No. 41

vs.

State of Tennessee,

Defendant in Error. |

For Ptaintiffs in Error:

HUGH STANTON, JR.

Memphis, Tennessee

H. H. McKNIGHT

Memphis, Tennessee

ROBERT L. SMITH

Memphis, Tennessee

CHARLES J. CASSELL

Memphis, Tennessee

ANTHONY J. SABELLA

Memphis, Tennessee

- Shelby County

For Defendant in Error:

DAVID M. PACK

Attorney General

Nashville, Tennessee

ROBERT H. ROBERTS

Assistant Attorney General

Nashville, Tennessee

JOE PATTERSON

DON D. STROTHER

Assistant District Attorneys

General

Memphis, Tennessee

—

Judgment Reversed and Remanded

Opinion by Judge Charlies Galbreath

(Filed: June 5, 1974)

Opinion

The five defendants in this case were jointly indicted, tried

and convicted of murder in the perpetration of robbery and each

sentenced to life imprisonment in the State penitentiary. Each

was represented by retained counsel in the trial court and each

has filed assignments of error and a brief in support thereof in

this Court.

Of the numerous errors assigned by these defendants, those

attacking the sufficiency of the evidence and the admissibility of

confessions appear to have merit. To bring these contentions

into focus, the evidence is summarized as follows:

Approximately three weeks prior to July 6, 1970, a poker

game was arranged by Walter Lee (Woppy) Gaddy between the

defendant, Robert Hugh Wood, and the deceased, William Doug-

las, alias Ray Blaylock. Douglas, a professional Las Vegas

gambler, had made arrangements with Gaddy to use the latter’s

apartment and for Gaddy to make the initial contact with the

defendant Wood. Under the arrangement Gaddy was to receive

a cut of the winnings for the use of the apartment and for mak-

ing the set-up. Wood was told that several people were to play

in the game, but as planned only Wood and Douglas showed

up for the game.

During the first game, Wood lost about “twenty something

hundred dollars.” A week later, a second game was played at

Gaddy’s apartment and Wood lost another $1,500 to $2,000.

A third game was played a few days before July 6th, but this

time between the deceased and Tommy Thomas, an acquaint-

=

ance of Wood who had a reputation of being a “pretty good”

poker player. Thomas played with $1,000 of which $600 had

been put up by Wood. The purpose of this game was to deter-

mine if and how the deceased was cheating. Thomas, however,

was the son of Titanic Thomis, a well known professional

gambler and a close friend of the deceased. Tommy, as pre-

arranged with the deceased, lost the game and reported to Wood

that as far as he could tell the deceased was not cheating. Ac-

tually cheating was accomplished by transferring a small amount

of colored wax onto white areas of the playing cards from a

supply of the substance, called a “dob” by the witness Thomas,

concealed under the shirt collar of Douglas in a small metallic

container.

A fourth game between Douglas and Wood was set up for

July 6, 1970, at Gaddy’s apartment. Wood, still suspecting that

Douglas was cheating, took his brother Joe along with him.

Tommy Thomas was also present at the game. Joe had ar-

ranged for the other co-defendants, Randolph, Hamilton and

Pickens, to come by the apartment to help get his brother's

money back by staging a “hold up”.

During the course of this fourth game, Joe Wood left to get

some beer. When Joe returned with the beer, Tommy Thomas

and Douglas heard others outside the apartment, and fearing

a robbery attempt Douglas brandished a .38 caliber pistol and

an automatic shotgun. Joe convinced them that he was alone,

but as a precautionary measure, Douglas made Joe enter the

apartment through a small window. After this incident Robert

Wood wanted to stop the game and leave, but Douglas insisted

that the game continue. The game was resumed and after a few

minutes Joe Wood went to the bathroom. On his return he was

carrying a small caliber derringer pistol, and he ordered Thomas

and Douglas to lie on the floor. Thomas complied with the

demand but Douglas remained seated at the table. Joe handed

the gun to his brother and left through the front door. Accord-

ing to his undisputed testimony Robert Wood stood there with

— A-43 —

the gun down by his side, and when Thomas got up from the

floor and was in the process of locking the front door he saw

Douglas make a move and shot him as the deceased was reaching

for his gun. Immediately following the shooting, Joe and the

other three co-defendants forced their way into the apartment.

The money on the table was taken, as was a knife and about $50

from Tommy Thomas, and then all five of the defendants fled.

While we are well aware of the presumptions and burden of

proof facing the defendants in their challenge on the sufficiency

of the evidence, we are also aware of our duty to intercede and

reverse the trial court where the evidence is clearly insufficient

to support the conviction. Under the facts as presented in this

particular case, we must follow the latter course of action.

There is nothing in this record to indicate that the shooting

took place as part of or in perpetration of the robbery of the

deceased. To the contrary, the evidence clearly reflects that

Robert Wood shot the deceased prior to the taking of the money

from the apartment. The testimony of State’s witness Tommy

Thomas supports Robert Wood’s statement that he shot Douglas

as the latter was going for his gun. There is no evidence offered

by the prosecution which supports the theory that Robert Wood

was participating in the robbery of William Douglas at the time

he shot Douglas. Even the confessions of co-defendants Ran-

dolph, Hamilton and Pickens, support the conclusion that the

shooting was not part of a robbery attempt.

The defendants have also challenged the admission into

evidence of the confessions of the co-defendants Randolph,

Hamilton and Pickens and the statement of Robert Wood.

Their contention is that since the confession implicates not only

the confessing defendant but also other co-defendants, and since

the confessing defendants did not take the stand, the co-defend-

ants were denied their Sixth Amendment right to confrontation

of witnesses against them. Bruton v. United States, 391 U.S.

123, 88 S. Ct. 1620. This claim appears to have merit as re-

gards the confessions of Randolph, Hamuton and Pickens but

a A.44

not regarding Robert Wood’s statement. Robert Wood took

the stand and was therefore subject to cross-examination by the

other defendants.

Although an attempt was made to avoid prejudice to the other

defendants by omitting their names from the confessions as read

to the jury, a reading of the confessions clearly indicates that

mere omission of names was not sufficient to avoid harm to the

other defendants. As judge Dwyer said for this Court in White

v. State, 497 S W 2d 751:

“To assume, as urged here by the state, that the insertion

of ‘the other person’ cured any possible prejudice to John-

son would be legal sophistry. Or as Justice Learned Hand

States, it would be a ‘mental gymnastic which is beyond

not only their (the jurors’) powers, but anybody elses.’

See Nash v. United States, 54 F 2d 1006, 1007 (2nd Cir.

1932). We have stated before that a statement of the con-

fessing co-defendant could be used only if completely?

stripped of any incriminating references to the non-con-

fessor. See Taylor v. State, Tenn. Cr. App., 493 S W 2d

477. In this context the insertion of ‘the other person’ does

not meet that test. See Serio v. United States, 131 U S App

D.C. 38, 401 F 2d 989, 990.”

While reversal is not predicated solely on the incorrect admis-

sion of these confessions, such would have been the case had

there not been any other error found by this Court.

All of the other assignments of error have been considered

and found to be without merit. The case is reversed and re-

manded for a new trial consistent with this opinion.

/s/ CHARLES GALBREATH, Judge

CONCUR:

/s/ W. WAYNE OLIVER, Judge

JOHN A. MITCHELL, Judge

~~

Dissenting and Concurring Opinion

I respectfully dissent in part and concur in part.

I agree that the admission in evidence of the confessions of

the non-testifying co-defendants was a violation of the rule in

Bruton v, United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.

Ed.2d 476, and prejudicial to the rights of those defendants who

were deprived of the right to cross-examine the non-testifying

co-defendants and therefore constituted reversible error. See

opinion by Judge Robert K. Dwyer in White v. State, — Tenn.

Crim. App. —, 497 $.W.2d 751.

Robert Wood contended that although the words “other party”

and “another party” were substituted for the name “Robert

Wood” in the statements of the co-defendants it was easy to see

that Robert Wood was the name that had been eliminated from

the statements.

Robert Wood may have been identifiable from his co-de-

fendants’ statements but, I am unable to find any me it in this

contention because in the statements of Pickens and Hamilton

they told about Robert Wood shooting Douglas. They heard

the shot and on entering the room they saw Robert Wood with

the pistol in his hand and Douglas lying on the floor. They

heard Robert Wood say he shot Douglas. They also told about

the plan to rob the poker game which was organized by Robert

Wood’s brother Joe Wood.

Robert Wood took the witness stand and testified substantially

to a great many of the material facts contained in his co-

defendants’ statements.

Robert Wood told his brother Joe that the deceased was

cheating and he intended to get his money back. That several

people there had guns and he might need some help to get it

—_. a

back. And he said he would bring somebody with him that

worked for him.

Robert Wood said “If I caught the man cheating I was going

to demand my money back and I did not figure he would be

willing to give it up that easily.

On cross-examination Robert Wood was asked “so you

could say that they were coming there to rob this man, is that

correct?” Robert Wood answered, “Well, if you call it that,

I would call it if you had been cheated out of your money, you

just got your money back it wouldn’t be considered as robbing

somebody.” Robert Wood said he did not catch him cheating

and he did not ask for his money back.

That his brother Joe was to see to it that they got there.

That he sat down and started playing again.

That he saw his brother come back in with the three male

blacks, the co-defgndants Wilber Pickens, Isaiah Hamilton

and James Randolph with weapons and that he knew one shot

was fired.

Robert Wood said he went there to get even if he could.

That his brother Joe Wood said “he could bring some help if

I thought I would need it.” That the man might not want to

give the money back, but he intended to get his money back

if he caught him cheating. That he let his brother know he

wanted him to bring help if he wanted to, that he did not tell

him whether to come armed, that he figured his brother Joe

would have a gun on him or in the car. That Joe said some

of his help would be with him.

The district attorney asked “In talking about the understand-

ing you had with your brother Joe Wood,” “Now you've already

said as I understood you that you asked him or that you agreed

that he was going to bring some help because you were going

to ask for your money back if you caught him cheating, is that

—.

right?” The defendant Robert Wood answered “That's right.”

That he told Joe where the place was.

The defendant Robert Wood also testified he talked with his

brother Joe Wood about getting his money back and that he

wanted his brother to bring help if he wanted to do so. That

he figured his brother Joe would either have a gun on him or

in his car. That his brother Joe told him some of his help

would be there. Robert Wood said he helped to plan the game

in order to get back what he had lost. That he had lost heavily,

perhaps $4,000.00. That his brother Joe came along armed

and furnished him the pistol with which he shot Douglas. That

he shot and killed Douglas and then took the money which was

over $2,000.00 from the gambling table. That they planned

what story they would tell if arrested, and he cautioned his

confederates not to involve him and Joe on the matter and

fled. That the next morning he went back to Mississippi.

I do not think the defendant Robert Wood can escape the

responsibility for his acts by saying he did not know of the

robbery, or if he did know of it, the re-taking of the money

was in a fake robbery and was for the purpose of recovering

money illegally taken from him by a cheating gambler.

It seems to me that having testified about the facts contained

in the statements of his co-defendants his testimony cleared or

cured whatever objection he might make to the introduction of

his co-defendants’ statements.

In Lester v. State, 216 Tenn. 615, 393 S.W.2d 288, the

Supreme Court said:

“There are many cases in this jurisdiction and others which

deal with the broad principle that if a defendant testifies

in substance as to evidence which has been otherwise erro-

neously admitted, then his testimony clears whatever error

there might have been. See Zachary v. State, 144 Tenn.

— A-48 —

623, 234 S.W. 758; Moon v. State, 146 Tenn. 319, 242

S.W. 39; Switzer v. State, 213 Tenn. 671, 378 S.W.2d 760;

Owens v. State, 202 Tenn. 679, 308 S.W.2d 423; Cathey

v. State, 191 Tenn. 617, 235 S.W.2d 601; and others.

Thus, these cases clearly show that the rule is not limited

to the situation where the defendant takes the stand and

admits he committed the crime with which he was charged.”

In McClain v. State, — Tenn. Crim. App. — 455 S.W.2d

942, in an opinion by Judge Charles Galbreath, concurred in

by Presiding Judge Mark A. Walker, and result concurred in

by Judge W. Wayne Oliver, we cited and quoted Hill v. United

States, 363 F.2d 176 (5 Cir.) where the Court said:

“We reject this assigned error for a second and entirely

different reason. When Hill testified in his own behalf,

he substantially repeated the accountant’s testimony which

is complained about in this assignment. If there was any

error in the admission of the accountant’s testimony, it was

cured by Hill’s testimony to the same facts. See Barshop

v. United States, 192 F.2d 699 (Sth Cir. 1951), cert. den.

342 U.S. 920, 72 S.Ct. 367, 96 L.Ed. 688 (1952). Thus

we find no prejudicial error in the admission of the ac-

countant’s testimony, or the trial court’s refusal to with-

draw it from the jury’s consideration. 363 F.2d 180, 181.”

In McGregor v. State, — Tenn. Crim. App. —, 491 S.W.2d

619 cert. denied March 1973, in an opinion by Judge Robert

K. Dwyer, concurred in by Walker, Presiding Judge, and

O’Brien, Judge, we said:

“Further, when the defendant voluntarily took the witness

stand at the trial and gave testimony explaining the

presence of the weapon and the satchel that were intro-

duced, he cured any illegal search question, because his own

words established the existence of these two articles in his

car. See Lester v. State, 216 Tenn. 615, 624, 393 S.W.2d

— on

288. The assignment pertaining to the legality of the

search is overruled.”

Able counsel for the defendant Robert Wood in his excellent

brief has made the contention that a new trial should be granted

to Robert Wood because of the erroneous introduction of the

statements of the non-testifying co-defendants in which they

identified Robert Wood as the man who shot and killed Wil-

liam Douglas.

In considering this contention we are faced with the plain

and positive fact that Robert Wood voluntarily took the witness

stand and testified in his own behalf and admitted he fired the

pistol shot which killed Douglas.

I think this contention is without merit.

I cannot agree with the majority opinion holding that the

killing was not done in the perpetration of a robbery.

The robbery was planned for the purpose of assisting the de-

fendant Robert Wood to recover the money he had lost in a

gambling game with the deceased William Douglas.

I think the facts show that the robbery was commencing

according to plan at the place and at the time of or a few seconds

before Robert Wood shot and killed the deceased Douglas.

Those who were to commit the robbery were at the door pre-

paring to enter. It is true that the actual taking of the money

was subsequent to the fatal shooting of Douglas.

The defendant Robert Wood testified he took the money from

the table immediately after he shot Douglas.

I cannot agree with the holding of the majority opinion that

the evidence is insufficient to support the conviction of Robert

Wood. Robert Wood in his testimony says he shot and killed the

deceased William Douglas at a time when Douglas was reaching

for his gun.

— A-50 —

The jury heard all the proof, saw and heard the witnesses

testify, including the defendant Wood. The jury rejected the

defendant Robert Wood’s theory that he shot in his own neces-

sary self defense.

The verdict of the jury approved by the trial court takes away

the presumption of innocence which stood for the defendant in

the trial court and he is here under the presumption of guilt.

The burden is on the defendant to show that the evidence pre-

ponderates against the verdict. We may not reverse a conviction

on the facts unless the evidence preponderates against the verdict

and in favor of his innocence. White v. State, 210 Tenn. 78, 356

S.W.2d 411; Holt v. State, 210 Tenn. 188, 357 S.W.2d 57;

Gann v. State, 214 Tenn. 711, 383 S.W.2d 32.

Moreover, it was the province of the jury to settle the issue

of self defense. The jury heard the witnesses and observed them

on the witness stand, passed on their credibility and decided in

favor of the state’s contention. I am unable to say that the evi-

dence preponderates against the finding of the jury. Arterburn

v. State, 216 Tenn. 240, 391 S.W.2d 648; King v. State, —

Tenn. Crim. App. — 432 S.W.2d 490.

I would hold that the evidence does not preponderate against

the jury’s verdict and in favor of the innocence of the defendant

Robert Wood.

In Grace v. State, 493 S.W.2d 474 (1973), the Supreme Court

of Tennessee in reversing the judgment of the Court of Criminal

Appeals said:

“Neither this Court, nor the Court of Crimina! Appeals is

free to re-evaluate the evidence as it pleases. A guilty

verdict by the jury, approved by the trial judge, accredits

the testimony of the witnesses for the State and resolves

all conflicts in favor of the theory of the State. A verdict

against the defendant removes the presumption of in-

— A-51 —

nocence and raises a presumption of guilt upon appeal. The

defendant has the burden upon appeal of showing that

the evidence preponderates against the verdict (and) in

favor of his innocence.”

I would affirm the judgment against the defendant Robert

Hugh Wood.

/s/ JOHN A. MITCHELL

Judge