# Petition — Parker v. Randolph

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 442 U.S. 62

## Text

| 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 e

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1378%3A1. Public record. Not legal advice.