Petitioners Brief — Parker v. Randolph

~~ Supreme Court, U, a7

FILED

} JAN 16 1979

’ DAK, JR., CLERR

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-99

CHIEF HARRY PARKER,

Petitioner,

VS.

JAMES RANDOLPH, WILBURN LEE PICKENS, and

ISAIAH HAMILTON,

Respondents.

BRIEF FOR PETITIONER

ROBERT E. KENDRICK

Deputy Attorney General

MICHAEL E. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

Phone (615) 741-2640

Of Counsel

WILLIAM M. LEECH, JR.

Attorney General

State of Tennessee

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

—

’

TABLE OF CONTENTS

Page

GD ME Ss ccc cesses cee nsccwcrecevevens 1

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

Constitutional Provision Involved .............0+005: 2

EE EEE EEE 3

CTE CAAA bebo s cc nassccccscccces 3

MCR MADERA CSS ASG e ea ssn sc scecsnccecs 8

Contrary to the Decision of the Sixth Circuit the Con-

frontation Clause of the Sixth Amendment and the

Decisions of This Court Do Not Require the Writ

eee 8

RE er dg ae ea 25

Table of Authorities

Cases:

Barber v. Page, 390 U.S. 719 (1968) ................ 10

Blumenthal v. United States, 332 U.S. 539 (1947) ...... 11

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

ES Oe 3, 5, 6, 8, 11, 12, 16, 19, 22, 23

Bunton v. Commonwealth, 464 S.W.2d 810 (Ky. 1971) .. 20

Catanzaro v. Mancusi, 404 F.2d 296 (1968), cert. denied,

RS 20, 21, 22, 23

California v. Green, 399 U.S. 149, 175.(1970) ........ 9,10

Connecticut v. Oliver, 273 Atl.2d 867 (1970) ........ 20

Delli Poali v. United States, 352 U.S. 233 (1957) ........ 1]

Doddell v. United States, 221 U.S. 325, 330 (1911) .... 10

Dutton v. Evans, 400 U.S. 74, 94 (1970) ............ 10

Ferguson v. Georgia, 365 U.S. 570 (1961) ............ 9

Frazier v. Cupp, 394 U.S. 731 (1969) ..............0. 24

Hall v. Wolff, 539 F.2d 1146 (8th Cir. 1976) .......... 23

Harrington v. California, 395 U.S. 250

GR. Pes ecetdests 3, 8, 12, 13, 14, 15, 16, 17, 18, 22, 23

Jones v. Florida, 227 So.2d 326 (Fla. App. 1969) ...... 20

Krulewitch v. United States, 336 U.S. 440 (1949) ...... 10

Lutwak v. United States, 336 U.S. 440 (1949) ........ 25

Lutwak v. United States, 344 U.S. 604 (1953) .......... 10

Mack v. Maggio, 538 F.2d 1229 (5th Cir. 1976) ........ 23

Mancusi v. Stubbs, 408 U.S. 204 (1972) ............ 10

Mattox v. United States, 146 U.S. 140, 151 (1892) ...... 10

Mattox v. United States, 156 U.S. 237, 246-249 (1958) .. 10

McHenry v. United States, 420 F.2d 927 (10th Cir. 1970) 20

Metropolis v. Turner, 437 F.2d 207 (10th Cir. 1971) .... 22

Miranda v. Arizona, 384 U.S. 436 (1966) ............ 7

Motes v. United States, 178 U.S. 458 (1899) .......... 12

Oneil v. State, 455 S.W.2d 597 (Tenn. 1970) .......... 20

Ortez v. Fritz, 476 F.2d 37 (2nd Cir. 1973) .......... 20

People v. Moll, 256 N.E.2d 185 (N.Y. 1970) cert. denied,

ee es BOE CUTE ws Kix Bin Ko.and owebwasdion.e. 20

People v. Rayes, 266 N.E.2d 539 (Ill. App. 1970) ...... 20

People v. Rosochacki, 244 N.E.2d 136 (Il. 1969) ...... 20

Pointer v. Texas, 380 U.S. 400 (1965) ................ 11

iii

Randolph, et al. v. Parker, 575 F.2d 1178 (6th Cir.

MOPED cg cccnccccsevebavecieecssosnrdeegvicns 1, 19, 20

Roberts v. Russell, 392 U.S. 293 (1968) ........--+55- 12

Schneble v. Florida, 405 U.S. 427

tL) eee eee ee ee oe 3, 8, 14, 15, 16, 17, 18

Snyder v. Massachusetts, 291 U.S. 97, 122 (1934) ...... 25

State v. Anderson, 229 So.2d 329 (1969), rev'd on other

grounds, 403 U.S. 949 ......-- seer eee eee eens 20

State v. Brinson, 177 S.E.2d 393 (N.C. 1970) .....-.-.-- 20

State v. Hall, 178 N.W.2d 268 (Neb. 1970) .......--- 20

Stewart v. Arkansas, 519 S.W.2d 733 (1975) .....-+--- 20

United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2nd

Cie BOPED 6 cna ouele con 0's aie cjee oe Cote heme weass yes 21

United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2nd

o | res ier eee eee eee oe, 20

United States, ex rel. Long v. Pate, 418 F.2d 1028 (7th Cir.

Ee Peete eo 22

United States v. Digilio, 538 F.2d 972 (3rd Cir. 1976) .. 23

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

cert. denied, 409 U.S. 1011 (1972) ....-.---++5:: 22

United States v. Venere, 416 F.2d 144 (Sth Cir. 1969) .. 20

United States v. Walton, 538 F.2d 1348 (8th Cir. 1976) .. 23

West v. Louisiana, 194 U.S. 258, 265, 266 (1904) ...... 10

Statutes:

2B UGC. 8 12541) 2. nce ccscccccccccrcevesccess 2

2B U.S.C. § 2254) ... creer errs rcccrcrecscrcceces 7

iv

Misc.:

H. Steven, “The Trial of Sir Walter Raleigh”, Transactions

of the Royal Historical Society, 172, 184, (4th Series,

Vol. II, 1919)

Note 44, St. John’s Law Review 54, 64 (1969)

Sixth Amendment to the Constitution of the United States

5 Wigmore, Evidence § 1397 at 130-131

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

No. 78-99

CHIEF HARRY PARKER,

Petitioner,

VS.

JAMES RANDOLPH, WILBURN LEE PICKENS, and

ISAIAH HAMILTON,

Respondents.

BRIEF FOR PETITIONER

OPINIONS BELOW

The Memorandum Opinion of the United States Court of

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

and is reported as Randolph, et al. v. Parker, 575 F. 2d 1178

(6th Cir. 1978).

This 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

os on

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

Bailey Brown entered a Memorandum Decision which is not

reported but is contained within the appendix at pages 321-326.

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 is contained within the appendix at pages 227-246.

The opinion of the Tennessee Court of Criminal Appeals, re-

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

1974 and is contained within the appendix at pages 215-226.

Neither of these opinions is 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. A petition for the

writ of certiorari was timely filed with this Court and granted

on November 27, 1978. The writ of certiorari was limited to

question one presented by the petition. Jurisdiction is invoked

pursuant to 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the Constitution of the United States

provides:

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the State and district wherein the crime shall have been

committed, which district shall have been previously as-

certained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the witnesses

dns Sans

against him; to have compulsory process for obtaining wit-

nesses in his favor, and to have the Assistance of Counsel

for his defence.

QUESTION PRESENTED

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

Circuit has correctly interpeted 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 v. California,

395 U.S. 250 (1969).

STATEMENT OF THIS CASE

The question before this Court may be characterized as a

question of law. However, this question must also be decided

with reference to the facts in this particular case. Therefore,

the following summary of the 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 the facts appear in the opinion of the Court of Criminal Ap-

peals (Appendix pp. 216-218), the opinion of the Supreme Court

of Tennessee (Appendix pp. 228-234), the magistrate’s prelim-

inary report (Appendix pp. 280-282), the district court’s mem-

orandum decision (Appendix pp. 321-322), and the memoran- .

dum decision of the United States Court of Appeals for the

Sixth Circuit which is reported at 575 F.2d 1178 (6th Cir.

1978).

The three respondents were convicted for their 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 moncy from

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

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

a

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 en-

listed 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 and the three

respondents to rob the game, and thus recoup 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 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 the game and

would kill Douglas, if he had to. James Randolph was en-

listed by Joe Wood to participate in the scheme on the night of

the murder, July 6, 1970.

On that 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. Sometime

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 position-

ing of their automobiles, the four men approached the apart-

ment. Those inside heard people approaching and Douglas,

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

convinced Douglas he was alone, and his three companions

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 be-

hind Douglas, ordering Douglas and Thomas to lie on the floor.

Po

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

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

shooting, arose from the floor, closed the door and attempted

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 apartment. One of

the respondents searched Thomas and took from him a knife

and $80.00. Robert Wood took all the money on the table

and stuffed it in his pockets. Everyone then left with the ex-

ception of Thomas, who remained behind with Douglas. The

three respondents and the two Wood brothers, riding in two

automobiles, went to the apartment of Hamilton where they hid

the weapons and split the money."

Subsequent to this incident all five co-defendants were either

arrested or surrendered themselves to the Memphis police.

Statements were made by all defendants except Joe Wood. At

trial, only Robert Wood testified. 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 and deletion for each of these statements.

. statement of the case in the Petition for Writ of Certiorari

setae a somewhat different interpretation of the facts. In the

petition, the conclusion reached is that Pickens did not go to oer

ilton’s apartment after the crime, nor did he receive any money.

closer examination of the trial records makes this interpretation oo

neous. Only Pickens’ own self-serving statements would support this

conclusion. The statements of his co-defendants, including the testi-

fying Robert Wood, support the conclusion that Pickens went to

Hamilton’s apartment and did receive his share of the money. (See

Appendix, pp. 136, 143).

2 391 U.S. 123 (1968).

ontne

The original signed statements and a police record of an oral

statement made by Hamilton were made part of the trial record

but not viewed by the jury. Substantial and material other

evidence was admitted showing the guilt of each of the defend-

ants. This other evidence is more fully described and discussed

within the argument portion of this brief.

On July 25, 1972, the two Wood brothers and the three

respondents were found guilty of murder in the perpetration

of a robbery in the Criminal Court of Shelby County (Mem-

phis), Tennessee. Punishment for each was set at life in the

State penitentiary. These convictions were appealed to the

Court of Criminal Appeals of Tennessee and, on June 5, 1974,

the Court of Criminal Appeals rendered a divided decision

reversing the convictions of all five defendants. (Appendix, p.

215). Although the Court of Criminal Appeals found Bruton

type error, the decision is primarily based upon an interpreta-

tion of the felony murder rule. The state petitioned the Supreme

Court of Tennessee and certiorari was granted. On December

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

curiam opinion reversing the Court of Criminal Appeals and

affirming the convictions. (Appendix, p. 227).

In February of 1976 Wilbur Pickens and James Randolph

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

of habeas corpus. (Appendix, p. 247). On March 17, 1976

the State responded to the cases of Pickens and Randolph.

(Appendix, p. 259), Subsequently, Isaiah Hamilton petitioned

for the writ of habeas corpus and his case was consolidated with

that of the other two respondents. (Appendix, pp. 264, 296).

The cases were referred to a magistrate for report. (Appendix,

p. 264). After several responses by the State and several refer-

ences to the magistrate, an evidentiary hearing was set by Chief

Judge Brown and held in Memphis on April 29, 1977. Al-

though argument was held on the Bruton issue the primary

thrust of the evidentiary portion of this hearing concerned an

_— oo

alleged Miranda® violation which only related to Pickens. On

May 2, 1977 Chief Judge Brown rendered a memorandum -

cision concluding that the admission into evidence of Pickens

confession was constitutional error in that it violated his rights

as set out in the Miranda case. Judge Brown also found that

the rights of all three petitioners, pursuant to the Bruton doc-

trine, were violated and that he was unable to conclude that this

violation was harmless error. (Appendix, p. 321). A judgment

was entered in accordance with the memorandum decision and

the State was ordered to discharge the petitioners from custody

unless they were retried within a reasonable time, or a timely

appeal was taken.

The State of Tennessee timely appealed the case to the United

States Court of Appeals for the Sixth Circuit, sitting in Cincin-

nati, Ohio. On May 19, 1978 the Court of Appeals rendered

a decision affirming the district court. No petition to rehear

was filed since the decision of the Court of Appeals addressed

all issues in question. The State of Tennessee then sought a

writ of certiorari from this Court presenting two questions, the

one here briefed and a second question concerning the district

court’s re-weighing of evidence on the Miranda issue as it related

to 28 U.S.C. § 2254(d). On November 27, 1978 this Court

issued the writ of certiorari limited to question one, which is

here briefed.

Miranda v. Arizona, 384 U.S. 436 (1965S).

ARGUMENT

Contrary to the Decision of the Sixth Circuit the Confronta-

tion Clause of the Sixth Amendment and the Decisions of This

Court Do Not Require the Writ of Habeas Corpus to Issue.

The United States Court of Appeals for the Sixth Circuit

has voided three first degree murder convictions, obtained al-

most seven years ago. The State of Tennessee is very much

aggrieved by the decision of the Sixth Circuit and submits this

decision is based on a misinterpretation of certain decisions of

this Court and is inconsistent with decisions rendered in other

circuits and various state courts.

The Sixth Circuit's decision is based primarily upon a find-

ing that the respondents’ constitutional rights, as enunciated

by this Court in Bruton v. United States, 391 U.S. 123 (1968),

were violated. The petitioner has maintained throughout the

federal proceedings that the doctrine of Bruton is inappropri-

ately applied to this case. The case sub judice is much more

analogous to the factual situations before this Court in Schneble

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

395 U.S. 296 (1969). The case before this Court should not

be labeled a Bruton case. The case before this Court is a right

to confrontation case, if it must be labeled at all. The decision

of the Sixth Circuit results from a misinterpretation of this

Court's decisions in Bruton, Schneble, and Harrington; and the

prevailing law regarding the Confrontation Clause of the Sixth

Amendment.

The Confrontation Clause of the Sixth Amendment guaran-

tees the right to confrontation for the beneficiaries of the Ameri-

can Constitution. The Clause itself is immutable and, of course,

is an Eighteenth Century articulation of the right. The right,

however, is evolutionary in nature. This characteristic has

caused some confusion among men searching for the origin of

_—

the Clause. This characteristic also causes confusion when men

search for the meaning of the right.’

As to the origin of the Clause, one popular notion is the

Clause is an indirect result of the trial of Sir Walter Raleigh in

1603 which focused attention on certain abusive trial practices.

Sir Walter’s conviction for treason to a great extent rested upon

a statement made by one Cobham, who implicated Raleigh in

a plot to seize the throne. Sir Walter, according to the story,

had a retraction and attempted to call Cobham as his witness

but failed.°

Professor Wigmore explains the Confrontation Clause as a

constitutionalization of the hearsay rule and all its exceptions."

Perhaps a better view is that the Clause originated simply as

part of the overall effort of the Framers to constitutionally as-

sure that a fair defense could be made to criminal accusation.‘

Mr. Justice Harlan, after examining the original of the Clause

4 The interpretative extremes to which the Clause is susceptible

was most succinctly stated by Mr. Justice Harlan in California v.

Green, 399 U.S. 149, 175 (1970): “Simply as a matter of English

the Clause may be read to confer nothing more than a right to

meet face to face all those who appear and give evidence at trial.

Since, however, an extrajudicial declarant is no less a witness, the

Clause is equally susceptible of being interpreted as a blanket pro-

hibition on the use of any hearsay testimony”.

5 See California v. Green, 399 U.S. 149, 158, 177-179 (1970)

(Harlan, J., concurring), citing F. Heller, The Sixth Amendment,

104 (1951) and H. Steven, “The Trial of Sir Walter Raleigh”, Trans-

actions of the Royal Historical Society, 172, 184, (4th Series, Vol.

II, 1919).

® See California v. Green, supra at 399 U.S. 178 at 179, citing 5

Wigmore, Evidence § 1397 at 130-131.

7 Sir Walter Raleigh's inability to cal! or cross-examine Cobham

was not the only problem he experienced in attempting to defend

himself. As indicated above, a defendant at that time could not call

witnesses in his own behalf, could not testify in his own behalf, had

no right to counsel, and basically was confined to simply arguing

that the prosecution had not proved its case. See California v. Green,

supra at 177. See also Ferguson v. Georgia, 365 U.S. 570 (1961).

—

and the historical context of its passage, seems to adopt this

view, and as to meaning states: “From the scant information

available it may tentatively be concluded that the Confronta-

tion Clause was meant to constitutionalize a barrier against

flagrant abuses, trials by anonymous accusers, and absentec

witnesses.”* Thus, the Confrontation Clause, as written in the

Sixth Amendment, demonstrates an evolution in the law from

1603 until the time our Constitution was adopted. Although

the writing has not changed, the evolution continues.

There can be little doubt that in the beginning “the paradig-

matic evil the Confrontation Clause was aimed at (was) trial

by affidavit.”® Early decisions considering the right to con-

frontation all involve ex parte testimony and turn on the issue

of availability and the hearsay rule.'° Thus, for many years,

the right to confrontation and the right to cross-examination

developed as identical concepts. Accordingly, exceptions to the

hearsay rule, which qualify the right to cross-examination, were

regarded as compatible with the right to confrontation.’! Fur-

thermore, in joint trials where two or more defendants were

tried for the same offense, a declaration made by one which

incriminated both was admitted in evidence, without the mak-

% California v. Green, supra at 180.

aera v. Evans, 400 U.S. 74, 94 (1970) (Harlan, J., concur-

10 See West v. Louisiana, 194 U.S. 258, 265, 266 (1904):

also California v. Green, supra, 179-188; and cases ee: an

footnote 11 of this text. Of course, availability is still an important

factor. Compare Mancusi v. Stubbs, 408 U.S. 204 (1972) and Bar-

ber v. Page, 390 U.S. 719 (1968); and so is the hearsay rule. See

Dutton v. Evans, 400 U.S. 74 (1970); Lutwak v. United States,

344 US. 604 (1953); and Krulewi '

440 (1949). ) ewitch v. United States, 336 US.

11 See Doddell v. United States, 221 U.S. 325, 330 (1911 ffi-

cial documents) ; Mattox v. United States, 156 US. 337, ae ee

(1958) (witness dead); Mattox v. United States, 146 US. 140, 151

(1892) (dying declarations); See al :

view 54, 64 (1969). ) so Note 44, St. John’s Law Re-

a

er’s testimony, provided the court by proper instructions limited

the application and told the jury that the statement could be

considered only against the declarant. Blumenthal v. United

States, 332 U.S. 539 (1947); Delli Poali v. United States, 352

U.S. 233 (1957). Of course, the non-testifying co-defendant’s

extrajudicial statement constituted inadmissible hearsay as to

the incriminated non-confessor. Nevertheless, even though the

hearsay rule was violated, the Confrontation Clause was satis-

fied. However, the decisions of this Court since Delli Paoli

clearly demonstrate that the right to confrontation is something

other than a constitutionalization of the hearsay rules.'*

In 1968 this Court overruled Delli Paoli with the decision of

Bruton v. United States, 391 U.S. 123 (1968). 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’ confession, including the por-

tion which implicated Bruton, was received into evidence. In

fact, the most damning evidence against Bruton was Evans’ con-

fession. This Court reversed Bruton’s conviction and held that

his rights under the Confrontation Clause had been violated be-

cause there was a substantial risk that the jury, despite instruc-

tions to the contrary, had looked to the incriminating statements

made by Brutam’s co-defendant. Three weeks later this Court

12 For example, in Pointer v. Texas, 380 U.S. 400 (1965), the

prior testimony exception to the hearsay rule permitted the intro-

duction at trial of the transcript of a preliminary hearing. This Court

reversed the convictions and held the defendants were denied their

confrontation rights, despite the hearsay exception. Similarly, in

Barber v. Page, supra, the’ prior testimony exception was used to

again allow a preliminary hearing transcript. This court reversed and

held that the right to confrontation had been violated by the failure

of the state to make a good faith effort to secure the presence of the

witness at trial. On the other hand, see Dutton v. Evans, supra, n.

10; Lutwak v. United States, supra, n. 10; Krulewitch v. United

States, supra, n. 10, and Mancusi v. Stubbs, supra, n. 10.

_— —

held Bruton was retroactive and applied to the states. Roberts

v. Russell, 392 U.S. 293 (1968).

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

California, 395 U.S. 250 (1969). In Harrington, this Court

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

tion 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,

Bosby and Cooper, did not take the stand. These facts are

analogous to the case sub judice. Here, three black men and

two white men have been convicted of murder in the perpetra-

tion of a robbery. Four of the individuals tried in state court

made statements which were admitted at trial.4 One of the

1% The harmless error concept was no stranger to the Confronta-

tion Clause. See Motes v. United States, 178 U.S. 458 (1899).

14 (a). Joe Wood did not make a statement. (b). Robert Wood

made a detailed lengthy statement which was recorded, transcribed,

and signed. This statement was made in the presence of police offi-

cers and his attorneys. (Appendix, pp. 1-60). At trial, a redacted

version was read by one of the police officers as part of the state’s

proof. (Appendix, pp. 61-105). (c). Isaiah Hamilton made an oral

statement which the police immediately transcribed. (Appendix, p.

150). Hamilton was later questioned by police and the questions

and answers were typed. The transcription was then read to him and

he initialed each page and signed the last. (Appendix, p. 152). At

trial, only a redacted version of the oral statement was admitted

through the testimony of a police officer. (Appendix, p. 160). (d).

James Randolph made two oral statements to different police offi-

cers. Redacted versions of these statements were admitted through

the testimony of the two police officers. (Appendix, pp. 162, 163).

(e). Wilbur Lee Pickens was questioned by police and the questions

and answers were typed. Pickens initialed each page and signed the

last page of the transcription. At trial, a redacted version of the

transcription was read into the record by the questioning detective.

(Appendix, p. 164).

oa

individuals here, Robert Wood, testified at trial and was subject

to cross-examination by the respondent’s lawyers.'® Much of the

other evidence existing in the record identifies the 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 Harrington, 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 upon our own reading of the record and on what

seems to us to have been the probable impact of the two

confessions on the mind of the average juror.”

See Harrington, supra, 395 US. at 255.

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

405 U.S. 516 (1972). Schneble and his co-defendant Snell

were tried jointly in a Florida state court for murder. Neither

defendant testified at trial. However, police officers testified to

a detailed confession that Schneble had given to them and one

officer related a statement given 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. There was no redaction performed. This Court af-

firmed the conviction of Schneble, finding any violation of

Bruton was harmless error beyond a reasonable doubt in view

of the overwhelming evidence of petitioner’s guilt as manifested

15 Although Robert Wood was subject to full cross-examination,

two of the respondents, Hamilton and Randolph, chose not to cross-

examine and Pickens’ counsel asked only one question. See Robuit

Wood's testimony, (Appendix, pp. 149, 150). This fact is very

curious since under any interpretation Robert Wood's testimony is

much more inculpatory than the redacted statements here complained

of. See Brookhart v. Janis, 384 U.S. 1 (1966).

—_—

by his confession, which completely comported with the objec-

tive evidence, and the comparatively insignificant prejudicial

effect of Snell’s statement. See Schneble, supra, 405 U.S. 429-

431. In reaching the conclusion cf 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 nonexistent. 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 431.

For the purposes of the case sub judice, there are at least two

lessons in Schneble. First, each of the respondents’ own con-

fessions must be considered as part of the quantum of proof in

considering the issue of harmless error.'* Second, the consist-

ency and corroborative nature of the respondents’ confessions

must be considered in deciding whether the confession of a non-

testifying co-defendant could have significantly affected the jury’s

verdict. Obviously, the rule of both Harrington and Schneble

is that extrajudicial statements which are corroborative and con-

sistent do little more than the individual’s own confession has al-

ready done. That is to say, the effect of a non-testifying co-

defendant’s statement is simply cumulative.

_16 Although recognizing this principle, it is obvious that the Sixth

Circuit below had difficulty applying re in this case: “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 harmless error. Since all three of these confessions

— baggage: at yy vr trial, we find this holding conceptually

cult in this case.” Ra h, et al. v. Parker, ;

1182 (6th Cir. 1978). . ee ee

a

In view of Schneble and Harrington, a closer look is required

at the statements actually admitted at trial in this cause.'7 An

examination of the statements admitted at trial necessitates the

conclusion that they are consistent with each other. In fact,

both the magistrate’s report (Appendix, p. 291) and the opinion

of the Supreme Court of Tennessee (Appendix, p. 239) reflect

findings that the statements of Hamilton, Pickens, and Randolph

are essentially alike in material details and are corroborative of

one another. Furthermore, because of the redaction, these

statements have little or no evidentiary value except against the

confessor. The conclusion is obvious, the statements are only

cumulative in their evidentiary value except for the incriminating

effect against the makers.?® Although the statements, as orig-

inally rendered, incriminated the co-defendants, the process of

redaction was successful to the extent that this Court may fairly

conclude that, as to the non-makers, the “probable impact. . .

on the mind of the average juror” was negligible, and at best

17 As more fully explained in Footnote 14, supra, there were a

number of statements taken by the police from four of the defendants

in this case. However, the trial court supervised a laborious process

of redaction and deletion, and the result was that the jury heard

much less than the police had. In fact, although Hamilton had given

both a short oral statement and had later been questioned in detail

by police, at trial only a redacted version of the oral statement was

admitted. The testimonial account of Hamilton’s statement is ap-

proximately one page; that of the two Randolph statements is less

than two pages; and the redacted entry of Pickens’ statement amounts

to approximately five pages. The record is in excess of 1000 pages,

the trial consumed approximately two weeks.

18 As described above, the process of redaction and deletion in

this case was laborious and consumes a great portion of the state

record. The process was largely successful. In Hamilton’s state-

ment, all references to Pickens and Randolph have been changed to

“they” references. The only exception is the third sentence where

the phrase “two other parties” is used. In Randolph's first state-

ment, again only “they” references are used. In Randolph’s second

statement, the phrases are “two other parties”, “they”, and “another

party”. In Pickens’ statement, the phrases are “two others”, “we”

and “guy” references. In fact, the “guy” reference in Pickens’ state-

ment is the only indication of sex in any of the four statements.

There is no indication of race, or any other description.

— 16 —

cumulative. In fact, this process of redaction makes this case

stronger then Schneble, Harrington, or Brown v. United Siates,

411 U.S. 223 (1973), wherein this Court also found harmless

error.'®

Perhaps the most important distinction between Bruton and

the cases of Harrington and Schneble is the fact that in the

latter two, the parties raising the Bruton objection had confessed

themselves. The same is true in the case before this Court. This

distinction is particularly important when considering an issue of

harmless error. As Mr. Justice White stated in Bruton:

“The defendant's own confession is probably the most pro-

bative and damaging evidence that can be admitted against

him. Though itself an out-of-court statement, it is admitted

as reliable evidence because it is an admission of guilt by

the defendant and constitutes direct evidence of the facts to

which it relates. Even the testimony of an eyewitness may

be less reliable than the defendant’s own confession. An

observer may not correctly perceive, understand, or re-

member the acts of another, but the admissions of a de-

fendant come from the actor himself, the most knowledge-

able and unimpeachable source of information* about his

past conduct.?°

‘8 In Schneble, Harrington, and Brown, there was no redaction.

In Schneble and Brown, the petitioners were directly named in the

co-defendant’s statement as admitted at trial. See Schneble, supra,

at 450 and Brown, supra, 231, footnote 5. In Harrington, the peti-

tioner was not named but Bosby’s confession referred to Harrington

as “a blond headed fellow” or the “white guy” or the “Patty”; and

Cooper’s confession referred to Harrington as “the white boy” or

this white guy”. Of course, as mentioned above, Harrington, a cau-

casian, was being tried with three blacks. The difference is obvious,

in neither Harrington, Schneble, or Brown, did the jury have to

speculate with regard to the reference. In the case sub judice, any

conclusion would be speculation.

20 Bruton. supra, 391 U.S. 139, 140 (White, J., dissenting).

—_—

In deciding Schneble and Harrington, this Court obviously

considered the defendant’s own confession against himself and

also considered the testimony of the co-defendant who took the

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

evidence automatically become part of the quantum of proof

necessary to find harmless error. The only evidence in the record

which is struck from the equation is the substantive content of

the non-testifying co-defendant’s confessions. However, the fact

that these confessions are corroborative and consistent should

be considered by the reviewing court in determining their prob-

able impact. Applying these principles to the instant case, the

proof against each of the respondents includes his own con-

fession, the inculpatory confession?! and testimony of Robert

Wood, the fact of corroboration and consistency in the excluded

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

formula to determine what evidence should be considered, a re-

viewing court should then determine what was the probable im-

pact of the two confessions, which are to be struck from the

equation, on the mind of an average juror. Using this formula,

21 As indicated above, Robert Wood gave a detailed statement to

police prior to his arrest. See footnote 14. A redacted version of this

statement was admitted as part of the state’s proof prior to Robert

Wood’s testimony. The redaction and deletion process was necessary

since the state could not anticipate the subsequent testimony of

Robert Wood. However, Robert Wood did subsequently testify and

was available for cross-examination. Robert Wood's statement was

much more detailed than any of those here complained of. Conse-

quently, the redaction and deletion process was arguably less success-

ful. For example, the redacted version of Robert Wood’s statement

contains some physical descriptions of the respondents (Appendix,

pp. 89, 90), and describes their number as three (Appendix, p. 86),

leaves no doubt as to their sex (Appendix, p. 84), places weapons

on the intruders (Appendix, p. 89), and in some places refers to

them as “blank”. However, any complaint that the redacted version

incriminates the respondents is cured by Wood’s subsequent testi-

mony and their opportunity to cross-examine. Therefore, after

Wood’s subsequent testimony, the jury was constitutionally permitted

not only to consider his testimony against the respondents, but to fill

in the “blanks” and consider the redacted statement against them

also.

aw 1§

which is drawn from the Schneble and Harrington decisions, the

decision of the Court of Appeals is erroneous. The most reason-

able conclusion is that any error committed in the admission of

the two non-testifying co-defendants’ confessions is clearly harm-

less.

Looking specifically at the admissible evidence, the scenario

of this crime is clearly set out in the testimony of Robert Wood,

Tommy Thomas, and the redacted statement of Robert Wood.??

At least five other witnesses testified to facts they observed at the

time of the crime. These people were not inside the apartment,

but their testimony corroborates the testimony of those who

were.** Further state evidence shows the recovery of the weapons

from Hamilton’s attic where they were hidden.?4 The testimony

of Tommy Thomas identifies the respondents as “three Negroes,”

and this fact is corroborated by the witnesses outside.25 Robert

Wood’s testimony identifies the three blacks, mentioned in the

testimony of at least six other people, as the respondents: Hamil-

ton, Pickens, and Randolph.*¢ All this evidence constitutes proof

which was properly admitted as to all three respondents. To

complete the equztion, the redacted statement of each respond-

ent must then be separately added to this proof and the result

weighed. The results are conclusive: the evidence is dGverwhelm-

ing. The only real issue is identification: Whether Hamilton,

Pickens, and Randolph were the three blacks who broke down

22 Appendix, pp. 61-105.

a 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 attempting 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 robbery was committed.

24 State Record, pg. 818.

© See footnote 23, supra, and Appendix p. 183.

26 State Record, pp. 894, 912, 918, 920 and 92

pp. 117, 136, 142, 144, 1 and Appendix,

_ o

the door to complete the murder-robbery. In each case, the

respondent’s own statement?’ basically adds the final touch—

direct admission of involvement in the entire scheme, incrimina-

tion of self only, and corroboration of the details. If one con-

tinues the equation by then adding the co-defendants’ statements,

nothing is gained. The evidence then becomes cumulative.

The only real factual issue was, and still is, identification.

However, the legal issue—the application of the felony-murder

rule—seems to overshadow this factual issue. Both the court of

appeals and the district court seem bothered by the murder con-

viction, although finding the state felony-murder rule properly

applied.2* In fact, the Court of Appeals states, “there might be

reasons to reach a different conclusion as to these defendants

if they were contesting a jury verdict of armed robbery rather

than first degree murder.” Randolph, et al. v. Parker, supra, 575

F. 2d at 1182. This conclusion implies that the identification

issue is settled in the state’s favor. However, this conclusion in-

correctly implies that first degree murder here would require

anything more than proof of armed robbery and a related homi-

cide, which are amply proven. The result is the misuse of

Bruton to redecide a question of state law which was correctly

decided by the Supreme Court of Tennessee.*®

There has existed for some time, considerable split and con-

fusion among the various circuits as to the application of Bruton

27 The petitioner is cognizant of the district court's finding that

Pickens’ confession was admitted in violation of Miranda. See Ap-

pendix, p. 324. The Court of Appeals’ decision affirmed this finding

in the last sentence of its opinion. This Court limited the writ of

certiorari to the Bruton issue. The petitioner hopes that a favorable

decision here and remand may cause the Court of Appeals to recon-

sider. If not, the only effect would be to weaken the identification

of Pickens by eliminating his own admissions.

28 Sec Magistrate’s Report on Reference, Appendix, pp. 283-285,

and District Court Memorandum, Appendix, p. 322.

29 See Appendix, p. 227.

—_ an

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 and in many states to

distinguish cases such as the one sub judice from Bruton have

resulted in the evolution of several “interlocking confession”

concepts which have been impliedly sanctioned by this Court.

See Catanzaro v. Mancusi, 404 F.2d 296 (1968), cert. denied,

397 U.S. 942 (1970); and People v. Moll, 256 N.E.2d 185

(N.Y. 1970), cert. denied 398 U.S. 911.

There is considerable discussion in the interlocking confession

concepts as to whether Bruton is inapplicable to such cases, or

whether Bruton applies but the interlocking nature of the con-

fessions requires a finding of harmless error. See Ortez v. Fritz,

476 F.2d 37 (2nd Cir. 1973). The first position contends that

Bruton simply does not apply to situations where both defendants

confess and the confessions interlock because of their corrobora-

tive nature.*!| The second position contends that Bruton does

apply but the violation is harmless error in light of the two inter-

locking confessions.*? The practical effect of both positions

30 Randolph, et al., supra, p. 1184.

*1 See Stewart v. Arkansas, 519 S.W.2d 733 (1975); People v.

Moll, 256 N.E.2d 185 (N.Y. 1970) cert. denied, 90 S. Ct. 1707

(1970); United States ex rel. Dukes v. Wallack, 414 F.2d 246 (2nd

Cir. 1969); United States v. Venere, 416 F.2d 144 (Sth Cir. 1969)

(no jury); McHenry v. United States, 420 F.2d 927 (10th Cir.

1970); Bunton v. Commonwealth, 464 S.W.2d 810 (Ky. 1971);

Oneil v. State, 455 S$.W.2d 597 (Tenn. 1970); and State v. Hall,

178 N.W.2d 268 (Neb. 1970).

32 See People v. Rosochacki, 244 N.E.2d 136 (Ill. 1969); Jones

v. Florida, 227 So.2d 326 (Fla. App. 1969); Connecticut v. Oliver,

273 Atl.2d 867 (1970); People v. Rayes, 266 N.E.2d 539 (Ill. App.

1970); State v. Anderson, 229 So.2d 329 (1969), rev’d on other

for. 403 U.S. 949; State v. Brinson, 177 S.E.2d 393 (N.C.

—

is the same. Further, and more important, the application of

these cases would result in a different decision than reached in

this case by the Sixth Circuit. The Sixth Circuit’s decision in

this case conflicts with the decisions reached in at least six

other circuits. Although the results reached the Second, Third,

Fifth, Seventh, Eighth, and Tenth circuits differ somewhat in

reaching their conclusion, the basic conclusion is consistent and

clear—confessing co-defendants whose confessions are consistent

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

Bruton.

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

three individuals 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 confession

interlocks and supports the confession of McChesney.

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 between that

case and Bruton. The major distinctions were confessions by

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

of the confessions. See also United States ex rel. Duff v. Zelker,

452 F.2d 1009 (2nd Cir. 1971).

_

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

two state co-defendants had been tried and convicted of murder.

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

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 instant

case is without the Bruton rule, or is within Bruton and the vio-

lation 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 psn. Se and Catan-

zaro.

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

cert. denied, 409 U.S. 1011 (1972), Spinks and one Turner

were tried together and convicted of robbery in federal court.

Spinks and Turner had both given confessions with no substantial

factual differences. The other three individuals involved in the

robbery did not confess and apparently their trials were severed

for this reason. Turner’s confession 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 con-

fession 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; see also United States, ex rel. Long v.

Pate, 418 F.2d 1028 (7th Cir. 1969).

_

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 confessions, im-

plicating the other defendant, were admitted at trial. There was

no redaction in the confessions and neither defendant testified

at trial. The Eighth Circuit affirmed the conviction and the

opinion does much to elucidate the law relating to interlocking

confessions, Bruton, and Harrington. The Eighth Circuit stated:

“It is now well established that Bruton does not automatically

call for a reversal where interlocking confessions of a co-defend-

ant tried at the same time are admitted in evidence, and that

there should be no reversal where the appellate court is con-

vinced that a complaining defendant was not subjected to a sub-

stantial risk of incurable prejudice as a result of the admission

of his co-defendant’s confession.” See Walton, 538 F.2d at 1353.

In reaching this conclusion in Walton the Eighth Circuit, like the

Tenth Circuit in Metropolis found that from a practical stand-

point 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. See also Hall v. Wolff, 539 F.2d 1146 (8th Cir. 1976).

In Mack v. Maggio, 538 F.2d 1229 (Sth Cir. 1976), three

co-defendants had confessed to the same crime. The confessions

interlocked with only slight variances, and they were admitted

with none of the confessors testifying. Two of the state prison-

ers 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-

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

a corroborative effect of the consistent confessions.

The petitioner submits that a close reading of the cases, both

federal and state, construing Bruton demonstrates there is no

interlocking confession doctrine, nor is there a simplistic parallel

statements rule operating as an exception to Bruton. Although

many cases turn on the question of whether Bruton applies,

most recognize the answer requires the consideration of a num-

ber of factors of which interlocking and parallel characteristics

may be one. This rationale is proper is since the paramount

issue is not, and never was, whether or not Bruton is violated,

but whether the defendant’s Sixth Amendment right to confron-

tation has been impugned. Bruton may assist in this resolution

but certainly is no more important than the facts, and other

relevant cases construing the Confrontation Clause.** Thus, a

reviewing court should consider whether the devastating effect,

addressed in Bruton, has been eliminated by a successful redac-

tion and deletion process. Accordingly, a reviewing court should

inquire whether the admission of the defendant’s own confession

has eliminated the risk of prejudice which may have resulted

33 The distinctions between this case and Bruton are as real as

the distinctions recognized in Frazier v. Cupp, 394 U.S. 731 (1969)

and Dutton v. Evans, 400 U.S. 74 (1970). In Frazier the prosecutor,

in good faith, told the jury in opening argument the substance of a

co-defendant’s statement which incriminated Frazier. The co-defend-

ant did not testify. This Court affirmed the conviction and relied

in part on the curative instructions of the trial judge. In Dutton, a

Georgia evidentiary statute was the basis for allowing inculpatory

hearsay. This Court affirmed, finding a lack of devastating impact.

Both cases involved more direct incrimination than this one.

= oo

from the admission of his co-defendant’s confession. The con-

sistency and corroborative nature of the confessions should be

considered in attempting to determine whether they are cumula-

tive in their impact on the mind of an average juror. Other

factors, such as the other evidence in the record and any cau-

tionary instructions given by the trial judge, should be consid-

ered in attempting to determine whether the right to confronta-

tion has been impermissibly violated. When these considerations

are made here, only one of two conclusions can be reached:

Either, (1) the Sixth Amendment has not been violated: or (2)

any violation is harmless beyond a reasonable doubt. The Con-

frontation Clause has never meant an absolute right to cross-

examination, nor has the Clause ever been an absolute bar

against hearsay. The Sixth Amendment has been satisfied in this

case, when the entire record is considered and an overly techni-

cal application of Bruton is avoided. On more than one occa-

sion, this Court has stated that a defendant is entitled to a fair

trial but not a perfect one. E.g., Lutwak v. United States, 336

U.S. 440 (1949).

CONCLUSION

About a half a century ago Mr. Justice Cardozo writing in the

Sixth Amendment case of Snyder v. Massachusetts, 291 U.S.

97, 122 (1934) stated, “There is danger that the criminal law

will be brought into contempt—that discredit will even touch

the Fourteenth Amendment—if gossamer possibilities of preju-

dice to a defendant are to nullify a sentence pronounced by a

court of competent jurisdiction in obedience to local law, and

set the guilty free”. Here too, the record establishes the guilt of

the respondents without question and the possibility of prejudice

from the issue before this Court is gossamer. For these con-

siderations, and for the others mentioned above, the State of

Tennessee respectfully prays that this Court will reverse the

= 26 —

Court of Appeals for the Sixth Circuit and remand this case to

the Sixth Circuit for further consideration.

Respectfully submitted,

WILLIAM M. LEECH, JR.

Attomey General

ROBERT E. KENDRICK

Deputy Attorney General

MICHAEL E. TERRY

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

Phone (615) 741-2640