Petitioners Brief — Tennessee v. Street

No. 83-2143

In THE

Supreme Court of the United States

Ocroser Term, 1984

Srare Or TENNESSEE

Petitioner,

Vs.

Harvey J. STREET,

Respondent.

On Writ of Certiorari to the Court of

Criminal Appeals Of Tennessee At Knoxville

BRIEF FOR THE PETITIONER

W. J. Micwagt Copy

Attorney General of Tennessee

Counsel of Record

Rosert A. GRUNOW

Associate Chief Deputy

Attorney General

Wayne E. Uni

Assistant Attorney General

J. Anorew Hoya tl

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-7087

Counsel for Petitioner

——=—_———_—_————

S%. Lous Law Printing Co., Inc., 411 No. Tenth Street 63101 64.23) .4477

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QUESTION PRESENTED

Whether the introduction of a nontestifying accomplice’s

‘‘interlocking”’ confession, on rebuttal, solely to impeach the

defendant's claim that his own confession was a coerced imita-

tion of the accomplice’s, violated the defendant's right to con-

frontation of witnesses against him.

The Introduction Of The Accomplice’s Confes-

sion, To Impeach And Rebut The Respondent’s

Testimony That He Had Been Forced To Imitate

It, Did Not Violate The Respondent’s Right To

A. Peele’s Confession was Admissible Against

the Respondent as a Matter of State Eviden-

tiary Law, and Was Properly Before the Jury

for its Consideration ............6.6+eee6

B. The Respondent ‘‘Opened the Door”’ to In-

troduction of Peele’s Confession by Bringing

Inte Issue the Terms of the Confession ......

C. The Respondent’s Alibi Defense Had Already

Been “‘Devastated”’ by His Own Confessions

and Statements, and Introduction of Peele’s

‘Interlocking’ Confession Was Not So

Damaging as to Invoke Bruton..........---

10

12

16

23

oof =

TABLE OF AUTHORITIES

Cases:

Blumenthal v. United States, 332 U.S. 539 (1948) ...... 14

Brown v. United States, 356 U.S. 148 (1958) .......... 19

Bruton v. United States, 391 U.S. 123 (1968)........... passim

California v. Green, 399 U.S. 149 (1970) ............. 19

Delli Paoli v. United States, 352 U.S. 232 (1957) ....... 12

Douglas v. Alabama, 380 U.S. 415 (1965) ............. passim

Dutton v. Evans, 400 U.S. 74 (1970) ...... 6.6... 0005. 17, 19

Harrington v. California, 395 U.S. 250 (1969)......... 13

Harris v. New York, 401 U.S. 222 (1971)............ 17, 19, 20

Jackson v. Denno, 378 U.S. 368 (1964)............... 12

Jenkins v. Anderson, 447 U.S. 231 (1980) ............ 19

Marshall v. Lonberger, 459 U.S. 422 (1983) ........... 14

Michelson v. United States, 335 U.S. 469 (1948) ....... 17

Miranda v. Arizona, 384 U.S. 436 (1966) ............. 19

Namet v. United States, 373 U.S. 179 (1963) .......... 14

Opper v. United States, 348 U.S. 84(1954)............ 14

Oregon v. Hass, 420 U.S. 714 (1975) ..... 2.2... 60005. 17, 19

Parker v. Randolph, 442 U.S. 62 (1979) ............ 14, 15, 20

People v. Aranda, 63 Cal.2d 518, 47 Cal. Rptr. 353,

Gr Fe ch coe cccboe cc cbbvevedetece: 16

Schneble v. Florida, 405 U.S. 427 (1972) ............. 13

Spencer v. Texas, 385 U.S. 554 (1967)................ 17

Tamilio v. Fogg, 713 F.2d 18 (2d Cir. 1983) cert. denied

___ U.S. ___, 104 S.Ct. 706 (1984) ... 6... e

United States ex rel. Ortiz v. Fritz, 476 F.2d 37 (2d Cir.),

cert. denied 414 U.S. 1075 (1973) ........6.6655-

United States ex rel. Stanbridge v. Zelker, 514 F.2d 45

(2d Cir.), cert. denied 423 U.S. 872 (1975) ........

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

(MA Cir. 19G9) 0. cc cece cece eee eee neennees

United States v. Fleming, 594 F.2d 598 (7th Cir.), cert.

denied 442 U.S. 931 (1979)... 6. cerns

Walder v. United States, 347 U.S. 62 (1954)...........

PUG.C. CUBS) 0. cc cccccvccsccccccccceseeecess

Fed. R. Evid. SOU(C)... 6... ccc ccc ee eee ee eeeees

Tenn. Code Ann. § 37-1-134(a) .. 6... cee

Tenn. Code Ann. § 39-2-202(a) .... 66... cece eee eees

Tenn. Code Ann. § 39-2-202(b) ... «6.6

1982 Tenn. Pub. Acts, ch. 637 .. 2... 66ers

Ne WN N WN

No. 83-2143

In THE

Supreme Court of the United States

OctToser TERM, 1984

State Or TENNESSEE,

Petitioner,

vs.

Harvey J. STREET,

Respondent.

On Writ of Certiorari to the Court of

Criminal Appeals Of Tennessee At Knoxville

BRIEF FOR THE PETITIONER

OPINION BELOW

The opinion of the Court of Criminal Appeals of Tennessee

at Knoxville reversing the respondent's conviction (Pet. App.

A-1 - A-12) is reported at 674 S.W.2d 741. The order of the

Supreme Court of Tennessee at Knoxville denying discretionary

review under Tenn. R. App. P. 1! (Pet. App. A-12) is not

published, but is noted at 674 S.W.2d 741.

JURISDICTION

The judgment of the Court of Criminal Appeals was entered

on January 25, 1984. Discretionary review was sought in the

Supreme Court of Tennessee, and was denied on April 30, 1984

(Pet. App. A-13). The petition for a writ of certiorari was filed

on June 29, 1984, and was granted on October 29, 1984.

=

U.S. ___., 105 S.Ct. 321. Jurisdiction is invoked under 28

U.S.C. § 1257).

CONSTITUTIONAL PROVISION INVOLVED

U.S. Const. amend. VI:

In all criminal prosecutions, the accused shall enjoy the

right. . to be confronted with the witnesses against him . . ..

STATEMENT OF THE CASE

The victim, 72-year-old Ben Tester, was last seen alive walk-

ing toward his house in Hampton, Tennessee, at about 8:45

p.m. on August 26, 1981. (J.A. 9.) His body was found the next

eae eeuainane mentee pyle vite Perea

Respondent Harvey J. “‘Joe’’ Street, a juvenile at the time of

the murder, was transferred to the Criminal Court of Carter

County to be tried as an adult. (J.A. 3.) He was indicted jointly

with several others (but not including Clifford Peele, who was

charged separately), charged in a single count with murder in

the first degree, both premeditated and during the commission

of a felony.' (J.A. 4-5.) Street's case was severed from those of

= Se

the other defendants, and the venue was changed to Unicoi

County. (J.A. 4, 6.) A motion to suppress a statement made by

Street on September 17, 1981 was denied after a pretrial hear-

ing.’ (J.A. 7.) On the second day of trial, the trial court

ordered that Clifford Peele be transported to and held at the

Unicoi County Jail. (J.A. 7-8.)

The State’s case in chief at trial rested primarily on Street's

confession of September 17, 1981. Agent Don Collins of the

Tennessee Bureau of Investigation testified that he too\ the

statement and reduced it to handwriting, correcting ii as Street

directed. (J.A. 24, 26-28, 50-58, 64-66.) Street had been advis-

ed of and had waived his rights, and his father was present

throughout the questioning; Street did not want his mother pres-

ent. (J.A. 22-24, 43-45.) An assistant district attorney present

during the questioning told Street three times that he was free to

go home any time he wished, and he was permitted to leave after

making the statement. During the quesiioning, he told Agent

Collins two or three times to hurry up so he could go home.

(J.A. 28-29, 46-48.) The statement was read to the jury, and

Agent Collins’ handwritten original (with Street's corrections

and signature) was introduced into evidence. (J.-A. 25-26.)

According to the statement (J.A. 353-360), Street and Clif-

ford Peele planned the burglary of Tester’s house, based on

Street’s information that Tester would be at church that night

and had $10,000 in cash in the house. At one point, Peele asked

Street if he was “‘willing to do {his} part”’ if Tester came in dur-

ing the burglary, i.c., help to “whip” or **kill”’ Tester; Street

responded that he was not. During the course of the day, and

on Peele’s instructions, Street reeruited Eugene Montgomery

and Jeff Causby to assist in the burglary, and gave some money

to Tiny Bailey to buy a white nylon rope.

’ Street appealed the admissibility issue to the Tennessee Court of

Criminal Appeals, which held that the trial court's findings of a know-

ing waiver and voluntariness were supported by the record. (Pet. App.

A-4 - A-6.) Street did not appeal this issue to the Tennessee Supreme

— Po

Between 9:00 and 9:30 p.m., the four young men drove to

Tester’s unlighted house in a stolen pick-up truck. A window to

the right of the front door was open, and the burglars cut the

screen completely out with a Double-X knife Street had stolen

earlier in the day. The burglars entered the house and began to

search it; the telephone wire was cut and a light was turned on.

After 10 or 15 minutes, Peele warned that someone was coming,

and Tester walked in the front door. Peele wrestled with Tester,

who eventually quit struggling. Peele then ripped open Tester’s

shirt searching for the money. Street claimed that he then ran

out to the truck, followed by Peele, whom he urged to flee with

him. Peele got the rope out of the truck and said, ‘‘No, we’re

going to string him up.’’ Montgomery came outside and

agreed.

The statement further related that they went back into thc

house, where Street made a gag from a sheet and put it in

Tester’s mouth (after being threatened by Montgomery). Peele

requested that a pillow be brought to smother the victim, but

when Montgomery appeared with a pillow Peele said it was not

needed. Montgomery emptied Tester’s wallet and threw it into

the right front bedroom. Montgomery and Peele carried Tester

outside and laid him on the tailgate of the truck, which Peele

then backed to the tree. Street and Peele got up in the truck

while Montgomery climbed into the tree to affix the rope. Peele

tied loops in the rope and put them around Tester’s neck (at

which point Causby fled on foot), and Peele and Montgomery

eased Tester off the tailgate. Street kept urging them to get out

of there, and they left in the truck. At the close of the state-

ment, Street said that some shirts and a sheet removed from

Tester’s house were later thrown off a cliff, and that Mont-

gomery had stolen some checks, one of which was cashed.

Street made two other incriminating statements which were

described to the jury. On November 23, 1981, while in-

carcerated at the Carter County Jail, Street told an officer that

he needed to see the sheriff, since he knew the location of the

ont

white truck which had the clothes in it that had come from

Tester’s house. (J.A. 84-86.) On June 27, 1982 Street gave a

statement to the sheriff and two other men. Street identified a

truck as the one used in the hanging, and admitted that he had

placed the second loop of the rope around Tester’s neck, having

been compelled to do so by his uncle, Kelly Banner. (J.A.

74-76.)

The remainder of the State’s proof in chief tended to cor-

roborate Street’s primary confession. Agent Collins and the

victim’s son investigated the scene, finding that the window

screen had been cut with a knife and partially torn, a light in the

house had been turned on, and the telephone wire had been cut.

(J.A. 10-11, 17, 20; R. II, 220.) The house had been ransack-

ed, shirts were missing from a bedroom closet, buttons from the

victim’s ripped shirt were found on the floor, a small pillow was

lying near the entrance to the living room, and the victim’s

empty wallet was lying on the floor of the right front bedroom.

(J.A. 11-12, 15, 18-20.) A torn sheet in the house matched the

gag found in the victim’s mouth. (J.A. 16, 29.) The victim was

hanging by a white nylon rope tied in a double loop, and bits of

grass on the limb from which the victim was hanging indicated

that someone had climbed into the tree. (J.A. 14-16.)

in cross-examining Agent Collins, defense counsel brought

out the fact that Clifford Peele had made a ‘‘confession’’ on

September 16, 1981, the day before Street’s main confession.

(J.A. 30-32, 50.) Defense counsel attempted to introduce

Peele’s confession into evidence, but the State’s hearsay objec-

tion was sustained. (J.S. 40-42.) Agent Collins denied that

Peele’s confession or any other information had been used to

suggest to Street the contents of his own confession; in fact,

Street included in his confession details which the officers knew

were inconsistent with other information they had received.

(J.A. 50-58, 64-66.)

The defense proof began with a string of alibi witnesses who

attempted to account for Street’s whereabouts throughout the

=

night of the murder. This proof, however, contained several

contradictions. For example, two girls testified that they spoke

with Street by telephone at a pool hall until 9:30 p.m., but also

that at the end of the call they spoke with another youth who

testified that he left the pool hall at 8:00 p.m. (J.A. 131-132,

134-138, 141-144.) Few of the witnesses were able to testify to

Street’s actual whereabouts at the time of the burglary and

murder.

Street also testified in his own behalf, recanting his confession

and denying any connection to or knowledge of the burglary or

murder. Street stated that on several occasions Sheriff Papan-

toniou had taken Street into custody and questioned him about

the murder, although Street could not recall whether he was

under arrest at the time of the September 17, 1981 confession.

(J.A. 186-188.) On that evening he was alone with the sheriff

before the other officers arrived, and the sheriff threatened that

he would see that Street received stiff penitentiary sentences on

certain juvenile offenses unless Street confessed to the murder.

The sheriff also allegedly promised that if Street confessed, he

could go home that night and would be made a trustee while

serving his sentences in the Carter County Jail. (J.A. 188-190,

192, 196, 228-229.)

Feeling that he had to confess to avoid the penitentiary,’

Street decided to give a ‘‘confession’’ in which he deliberately

falsified or concocted various details. He supposedly reasoned

that the officers would investigate these details and, upon fin-

ding them to be false, would reject the entire statement as

unreliable. (J.A. 194-195, 217-221, 234-235, 240-241.)

> Despite a long history as a juvenile offender, Street claimed he did

not know a juvenile could not be sentenced to the penitentiary without

first having been transferred to criminal court to be tried as an adult.

(J.A. 222-224.)

—

Certain details (which the proof showed to be accurate) had,

according to Street, been fed to him by the officers, particularly

Sheriff Papantoniou. The sheriff had earlier read to Street

several times the statement made by Peele the day before, and

Street admitted on direct examination that Peele’s statement im-

plicated Street. (J.A. 190-191, 221, 224.) Several times during

Street’s confession the sheriff would read from Peele’s state-

ment and insist that Street say something similar. If Street

deviated from Peele’s account in any particular, the sheriff

would halt the proceedings, accuse Street of lying, and insist

that Street adopt Peele’s or the sheriff’s version. (J.A. 194, 202,

203, 217-221, 225-226, 239-250.)

Street also testified that the circumstances of the confession

were generally oppressive. His father had left immediately after

signing the interrogation form, and the officers refused Street’s

requests for the presence of his mother or an attorney. (J.A.

192-193, 205-206, 226-227.) Street simply denied making either

of the other two incriminatory statements. (J.A. 196-200,

203-204, 235-239.)

The State presented rebuttal proof including three witnesses

whose observations on the night of the murder tended to im-

peach Street’s alibi defense. (J.A. 253-265.) A police officer

testified about a statement begun by Street two days after the

murder, but cut off on the request of Street’s attorney. (J.A.

208-213, 265-268.)

Also in rebuttal the State called Sheriff George Papantoniou,

who began by testifying about his conduct at the times of Street’s

various statements. The sheriff specifically denied leading or

suggesting facts to Street during the September 17, 1981 confes-

sion, and denied Street’s other allegations about the taking of

the statement. (J.A. 271-277, 288-291, 305-310, 311-314.)

An evening recess was taken, and on the following morning

the State moved for introduction into evidence of Peele’s

September 16, 1981 confession. The State argued that the con-

— Pe

fession was not being offered for the truth of the matters stated

therein, but instead to impeach Street’s account of his own con-

fession by showing that Street had confessed to details which

were not contained in Peele’s confession. After extended argu-

ment, the trial court allowed Peele’s confession into evidence.

(J.A. 281-288, 292-295.)

Before the confession was read into evidence, the trial judge

twice instructed the jurors as follows:

Objection is overruled, but ladies and gentlemen of the

jury, I want to explain that the Court is - - is allowing the

introduction of Mr. Peele’s statement not for the purpose

of proving the truthfulness of his statement, but for the

purpose of rebuttal only as to other proof that might have

been offered.

(J.A. 292, 293.) The statement was then read into evidence by

the sheriff (J.A. 295-303), and it was introduced both in hand-

written and typewritten forms (J.A. 290-291; R. XVIII, Ex. 42).

Peele’s account of the burglary and murder was generally

similar to Street’s, but, as the State emphasized, there were

several direct contradictions between the statements, and

Street’s statement contained several details absent from Peele’s.

For example, Peele said that a Triple-X knife had been used to

partially cut the window screen, while Street had described a

Double-X knife that had been used to completely cut out a por-

tion of the screen. (J.A. 300, 357.) Peele’s statement said

nothing about any lights being turned on, the telephone wire be-

ing cut, the victim’s shirt being ripped open, the victim’s wallet

being emptied and thrown into the right front bedroom, shirts

stolen from the house, or the fact that the rope was made of

white nylon. (J.A. 300-302, 303-304.) With respect to the hang-

ing itself, Peele’s confession stated that all four burglars had

carried Tester outside, and that Montgomery and Causby stayed

in the tree while Street and Peele together put the loops around

Tester’s neck and lifted Tester off the tailgate. (J.A. 302.)

——— es a EC

—

Finally, the State presented another T.B.1. agent who was

present during portions of Street’s September 17, 1981 state-

ment, and who also testified contrary to Street’s version of how

the statement was obtained. (J.A. 324-334.)

In closing argument, counsel for the State referred to Peele’s

confession only to argue that it impeached Street’s claim that he

had been coerced to imitate it. (J.A. 334-336, 340-344.) During

the final instructions, the trial judge again cautioned the jurors

that Peele’s statement ‘‘can be considered by you for rebutable

[sic] purposes only, and you are not to consider the truthfulness

of the statement in any way whatsoever.’’ (J.A. 350.) The jury

found Street guilty of murder in the first degree, without speci-

fying premeditated or felony murder, and sentenced Street to

life imprisonment, the only possible punishment for the offense.

(J.A. 8.)

After first finding that Street’s Septermber 17, 1981 confession

was properly admitted into evidence, the Tennessee Court of

Criminal Appeals reversed the conviction, finding constitu-

tional error in the introduction of Peele’s confession. (Pet.

App. A-1 - A-12.) The court agreed that the confession was not

hearsay, but found that the trial court’s limiting instructions

were ‘‘ineffective to correct denial of defendant’s right to con-

frontation’”’ of Peele. In response to the State’s argument that

the two confessions ‘‘interlocked,’’ the court indicated doubt as

to whether the ‘‘Interlocking Confessions Doctrine’ applied to

severed trials, and in any event held that the confessions did not

‘*interlock”’ since Peele’s confession made Street ‘‘much more a

principal actor in the burglary and hanging’’ than had Street's

own confession. Finally, the court refused to find harmless er-

ror.

SUMMARY OF ARGUMENT

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

held that a codefendant’s confession incriminating a non-

confessing defendant cannot be introduced into evidence at a

joint trial without violating the defendant’s right to confronta-

tion. Even though the damaging confession had not been

technically introduced against the defendant, and the jury had

been instructed to consider it only against the codefendant, the

Court found that the jury could not be presumed to have ig-

nored the confession in determining the defendant’s guilt or in-

nocence.

The Court had faced a similar situation in Douglas v.

Alabama, 380 U.S. 415 (1965), in which the highly in-

criminating statement of the previously-convicted accomplice

was read to the jury in the guise of cross-examination of the ac-

complice, who had refused to testify. Even though the state-

ment was technically not in evidence, the Court found the

danger of consideration of the confession by the jury to be too

great to permit such a procedure without cross-examination of

the declarant.

Bruton and Douglas do not establish a rigid rule under the

Confrontation Clause which bars introduction of a codefen-

dant’s confession. Instead, the cases should be read to hold on-

ly that, under the factual circumstances presented, a jury is

unable to ignore the codefendant’s implication of the defen-

dant. Those factual circumstances included a codefendant’s

confession wholly inadmissible against the defendant for any

evidentiary reason; a defendant who had not confessed and did

not testify at trial, maintaining innocence throughout the pro-

ceedings; and a codefendant’s confession which was

**devastating’’ to the defendant’s case and added ‘“‘critical

weight’’ to the prosecution.

The instant case presents very different factual circumstances

from either Bruton or Douglas, and the holdings of those cases

simply do not apply here.

aw th on

First, the accomplice’s confession in the instant case was ad-

missible against the respondent as a matter of state law, because

it was relevant and was not hearsay, as it was not admitted to

prove the truth of the matters asserted therein. Thus it was far

easier for the jury to limit its consideration of the confession as

instructed by the trial judge than for the juries in Bruton and

Douglas to completely ignore the confessions spread before

them. Furthermore, because the wording and contents of the

accomplice’s confession, and not its truth, had become the rele-

vant inquiry, there would have been no utility in cross-

examining the accomplice himself.

Second, the respondent ‘‘opened the door’’ to introduction

of the accomplice’s confession by testifying that he had been

forced to imitate it when he made his own statement. By doing

so, the respondent seriously challenged the truth-finding func-

tion of the trial, and the State’s interest in presenting contrary

evidence increased in relation to the danger that the jury would

wrongfully consider the accomplice’s confession for its truth.

Third, the accomplice’s confession ‘‘interlocked’’ with the

respondent’s own admissions in such a manner that the ac-

complice’s confession was no longer ‘‘devastating’’ to the

respondent’s case. The respondent had given statements to the

authorities admitting that he had willingly planned and par-

ticipated in the burglary of the victim’s house. He had also ad-

mitted that he gagged the victim, accompanied the other

burglars as the victim was carried out to a pick-up truck, and

got up in the truck and assisted by placing at least one loop of

rope over the victim’s head. These admissions certainly

established the respondent’s guilt of felony murder, aiding and

abetting premeditated murder, or being a principal to

premeditated murder, all of which constitute first-degree

murder in Tennessee, with life imprisonment the only possible

punishment.

=

ARGUMENT

THE INTRODUCTION OF THE ACCOMPLICE’S CON-

FESSION, TO IMPEACH AND REBUT THE RESPON-

DENT’S TESTIMONY THAT HE HAD BEEN FORCED TO

IMITATE IT, DID NOT VIOLATE THE RESPONDENT'S

RIGHT TO CONFRONTATION.

In Bruton v. United States, 391 U.S. 123 (1968), Bruton and

codefendant Evans were jointly tried on a charge of armed

postal robbery. The government’s case in chief included

evidence of Evans’ oral confession to the crime, which im-

plicated Bruton. Because the confession was hearsay and

therefore inadmissible as to Bruton, the jury was instructed to

consider it only against Evans. Neither defendant testified, and

both were convicted. The Court of Appeals for the Eighth Cir-

cuit affirmed Bruton’s conviction, relying on the holding of

Delli Paoli v. United States, 352 U.S. 232 (1957), that jurors

could be presumed to have followed the limiting instruction in

such cases.

This Court reversed Bruton’s conviction, overruling Delli

Paoli, in an opinion grounded not on an interpretation of the

Confrontation Clause, but rather on an analysis of the jurors’

ability to follaw the limiting instruction.‘ Relying on the more

recent decision in Jackson v. Denno, 378 U.S. 368 (1964), the

Court held that a jury cannot be relied upon to ignore a confes-

sion of guilt, even if the confession is made by a codefendant.

391 U.S. at 128-131. The Court conceded that there are ‘‘many

circumstances”’ in which reliance on the jury’s ability to follow

a limiting instruction is justified, but held that in the factual

context of Bruton’s trial, ‘‘the risk that the jury will not, or can-

* “If it were true that the jury disregarded the reference to the

codefendant, no question would arise under the Confrontation

Clause, because by hypothesis the case is treated as if the confessor

made no statement inculpating the nonconfessor.’’ 391 U.S. ai 126.

eC

= Po

not, follow insifuctions 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.’’ 391 U.S. at

135.

In reviewing that factual context, the Court stressed that

Evans’ confession was ‘‘powerfuily incriminating’’ in a manner

**devastating’’ to Bruton, and that any accomplice’s attempt to

shift blame to others renders his or her statements intolerably

unreliable in the absence of testing by cross-examination. 391

U.S. at 135-136.° Subsequent cases suggesting that violations of

Bruton may be harmless also stressed the weight of the codefen-

dant’s statements in relation to the weight of independent

evidence of the defendant’s guilt. See Harrington v. California,

395 U.S. 250 (1969); Schneble v. Florida, 405 U.S. 427 (1972).

Three years prior to Bruton the Court had faced a similar prob-

lem in Douglas v. Alabama, 380 U.S. 415 (1965), in which

codefendant Loyd’s highly incriminatory confession was read

aloud in the form of cross-examination of Loyd, who had

already been found guilty in a separate trial but was refusing to

answer questions at Douglas’ trial. Loyd’s confession was not

admitted into evidence, and apparently no limiting instructions

were given to the jury. Foreshadowing Bruton, the Court noted

* Justice Stewart restated the majority’s holding:

[T]he underlying rationale of the Sixth Amendment’s Confron-

tation Ciause precludes reliance upon cautionary instructions

when the highly damaging out-of-court statement of a codefen-

dant, who is not subject to cross-examination, is deliberately

placed before the jury at a joint trial. A basic premise of the

Confrontation Ciause, it seems to me, is that certain kinds of

hearsay . . . are at once so damaging, so suspect, and yet so dif-

ficult to discount, that jurors cannot be trusted to give such

evidence the minimal weight it logically deserves, whatever in-

structions the trial judge might give.

391 U.S. at 137-138 (Stewart, J. concurring).

Re

—*

that Loyd’s statements were ‘‘of crucial importance’’ in that

they named Douglas as the person who fired the gunshot which

wounded the victim, 380 U.S. at 417, and that Loyd’s refusal to

answer ‘‘added critical weight to the prosecution’s case in a

form not subject to cross-examination,’’ 380 U.S. at 420,

quoting from Namet v. United States, 373 U.S. i79, 187 (1963).

The Douglas Court was also concerned about the jurors’

ability to ignore Loyd’s confession, even though it had not been

placed in evidence. The reading of the statement and Loyd’s

refusals to answer ‘‘may well have been the equivalent in the

jury’s mind of testimony that Loyd in fact made the

statement;’’ and Loyd’s use of the privilege against self-

incrimination ‘‘created a situation in which the jury might im-

properly infer both that the statement had been made and that it

was true.’”’ 380 U.S. at 419. Testimony of law enforcement of-

ficers at trial ‘‘enhanced the danger that the jury would treat the

Solicitor’s questioning of Loyd and Loyd’s refusal to answer as

proving the truth of Loyd’s alleged confession.”’ 380 U.S. at

420.

A careful reading of Bruton and Douglas belies the conclu-

sion that either case established a rigid rule barring the introduc-

tion of a codefendant’s confession which implicates the defen-

dant. Instead, Bruton and Douglas should be read to establish

only that, under the factual circumstances presented, a jury is

unable to follow instructions that a confession not in evidence

against a defendant is not to be considered as to that

defendant.* The factual circumstances of Bruton and Douglas

¢ In other words, as noted by the plurality opinion in Parker v. Ran-

dolph, 442 U.S. 62, 75 n. 7 (1979), Bruton is more accurately viewed

not as setting out a rule concerning confrontation, but as establishing

an exception to the long-established presumption that jurors hear and

obey limiting instructions. See Opper v. United States, 348 U.S. 84,

95 (1954); Blumenthal v. United States, 332 U.S. 539, 552-553 (1948).

This important presumption was recently reaffirmed in Marshall v.

Lonberger, 459 U.S. 422, 438 n. 6 (1983).

included a defendant who had not confessed and did not testify

at trial, maintaining innocence throughout the proceedings; and

the introduction or use of a codefendant’s confession wholly in-

admissible against the defendant for any evidentiary reason,

and which was ‘‘devastating’’ to the defendant or added

‘critical weight’’ to the prosecution.

Each case, however, presents a different set of circumstances

that requires a reweighing of the principles set forth in Bruton.

The instant case presents such distinct factual differences from

Bruton and Douglas that it cannot be said to fall within the

scope of their holdings. In other words, in this case there clearly

was no “‘Bruton violation.’’’ The primary factual differences

between Bruton and Douglas and the instant case are: a) Clif-

ford Peele’s confession was admissible against respondent

Street as a matter of state evidentiary law, and the jury was not

required to completely ignore it; b) the respondent ‘‘opened the

door’’ by bringing into issue the terms of Peele’s confession;

and c) Peele’s confession ‘‘interlocked’’ with the respondent’s

confession, added no material weight to the State’s case, and

was hardly ‘‘devastating.’’

’ As the opinions in Parker v. Randolph, supra, make clear, the dif-

ference between a ‘‘nonviolation of Bruton’’ and a ‘‘harmles: viola-

tion of Bruton’’ may be no more than a semantical tempest in a

teapot. The plurality in Parker v. Randolph noted that while the

Court has said that a Bruton violation may be found harmless, it has

never actually done so. 442 U.S. at 71 n. 5.

If Bruton is limited to its factual context, which the opinion does by

its own terms, then a true ‘“‘violation’’ of Bruton might never be

‘“*tharmless.’’ If, on the other hand, Bruton established a broad con-

stitutional rule of evidence to which there are innumerable exceptions,

then the appropriate approach to each case is to make a harmless error

determination. Cf. Parker v. Randolph, 442 U.S. at 77-82

(Blackmun, J. concurring).

=

A. Peele’s Confession Was Admissible Against the Respon-

dent as a Matter of State Evidentiary Law, and Was Pro-

perly Before the Jury for its Consideration.

In both Bruton and Douglas, the highly damaging confes-

sions of the codefendants were placed before the jury, but the

jurors were expected to wholly ignore the confessions when con-

sidering the guilt or innocence of the defendants. This is a par-

ticularly difficult mental ¢ <ercise.

‘‘In joint trials, . .. when the admissible confession of one

defendant inculpates another defendant, the confession is

never deleted from the case and the jury is expected to per-

form the overwhelming task of considering it in determin-

ing the guilt or innocence of the declarant and then of ig-

noring it in determining the guilt or innocence of any

codefendants of the declarant. A jury cannot ‘segregate

evidence into separate intellectual boxes.’ ”’

Bruton, 391 U.S. at 131, quoting with approval People v. Aran-

da, 63 Cal.2d 518, 529, 47 Cal. Rptr. 353, 359-360, 407 P.2d

265, 271-272 (1965).

The jurors in the instant case, however, were not faced with

that overwhelming task. Peele’s confession became relevant

when Street claimed that he had been forced to imitate it, and its

admission did not violate the rule against hearsay because it was

not admitted to prove the truth of the matters asserted therein.*

The jury was therefore not required to ignore the accomplice’s

confession, but simply to consider it for a limited purpose, im-

peachment and rebuttal of the respondent’s claims.

Jurors are routinely and frequently called upon to consider

evidence for a limited purpose. For example, when the defen-

dant in a criminal case places his or her character in issue,

* The Tennessee Court of Criminal Appeals so held as a matter of

state evidentiary law. (Pet. App. A-7.) Cf. Fed. R. Evid. 801(c).

= ro

evidence of prior criminal activity is relevant only to character

and not to guilt or innocence, and it is an important premise of

the jury system that jurors will so limit their consideration of the

evidence. Spencer v. Texas, 385 U.S. 554, 562 (1967); Michelson

v. United States, 335 U.S. 469, 484-485 (1948). In both Harris

v. New York, 401 U.S. 222, 223 (1971), and Oregon v. Hass,

420 U.S. 714, 717 (1975), the juries were instructed and ap-

parently entrusted to consider otherwise inadmissible in-

criminatory statements by the defendants only as the statements

bore on their credibility as witnesses, and not as proof of guilt

or innocence. To nold, therefore, that the jury in the instant

case cannot be presunied to liave properly limited its considera-

tion of Peele’s confession wou!d have a much broader and more

damaging impact on the jury system than Bruton’s rejection of

the presumption on the limited facts of that case.

Furthermore, the legal admissibility of Peele’s confession

demonstrates clearly why there is no true ‘‘confrontation’’ prob-

lem in this case. Because the wording and contents of the con-

fession, and not its truth, had become the relevant inquiry,

there would have been no utility in cross-examining Peele on the

confession’s reliability. Even if the confession had been shown

to be completely false or involuntarily made, its relevance and

evidentiary weight would have been just as strong on the issue of

whether Street was forced to imitate it at the time of his own

statement. A similar distinction was made in Dutton v. Evans,

400 U.S. 74, 88 (1970):

[The defendant] was not deprived of any right of con-

frontation on the issue of whether [his coconspirator] ac-

tually made the statement related by [witness] Shaw.

Neither a hearsay nor a confrontation question would arise

had Shaw’s testimony been used to prove merely that the

statement had been made. The hearsay rule does not pre-

vent a witness from testifying as to what he has heard; it is

rather a restriction on the proof of fact through extra-

judicial statements. From the viewpoint of the Confronta-

tion Clause, a witness under oath, subject to cross-

examination, and whose demeanor can be observed by the

trier of fact, is a reliable informant not only as to what he

has seen but also as to what he has heard. [Footnote omit-

ted.]

B. The Respondent ‘‘Opened the Door’ to Introduction of

Peele’s Confession by Bringing Into Issue the Terms of the

Confession.

Unlike the defendants in Bruton and Douglas, the respondent

in the instant case chose to testify and recant his September 17,

1981 confession. His unique claim was that he had been coerced

by the sheriff to imitate portions of the confession given by Clif-

ford Peele on the previous day,’ which explained how he had

been able to so accurately describe the burglary and murder

without having been there.

With this theory of defense, the respondent affirmatively

brought into issue the terms of Peele’s confession. Only by

reviewing Peele’s confession itself could the jurors evaluate the

credibility of Street’s claim. Since it was the terms of the cor-

fession, and not its truthfulness or reliability, which was

brought into issue, Peele’s testimony would have been irrele-

vant, and cross-examination of Peele would have shed no light

on the issue raised by the respondent.

By defending himself in this manner, the respondent

significantly shifted the balance of interests involved, and in

fact threatened the reliability of the result of the trial. Until

Street took the stand, the State’s interest in presenting Peele’s

confession for any purpose would have been far outweighed by

the ‘‘substantial threat,’’ recognized in Bruton, that the jury

would consider the confession for its truthfulness without the

* This claim pertained to certain portions of his confession. Street

testified that he had also deliberately misstated various facts and had

simply concocted some portions of the confession.

benefit of testing by cross-examination. When Street made his

coerced-imitation claim, which could be credibly disproved only

by reviewing Peele’s confession, the State’s interest in present-

ing that contrary evidence greatly increased.

“We are, after all, always engaged in a search for truth in a

criminal case so long as the search is surrounded with the

safeguards provided by our Constitution.’’ Oregon v. Hass,

420 U.S. 714, 722 (1975). Yhe ultimate goal of the Confronta-

tion Clause itself is ‘‘to advance a practical concern for the ac-

curacy of the truth-determining process in criminal trials... ..’’

Dutton v. Evans, 400 U.S. 74, 89 (1970); California v. Green,

399 U.S. 149, 161 (1970). Therefore when a defendant ‘‘affir-

matively resorts to [false] testimony in reliance on the [prosecu-

tion’s} disability to challenge his credibility,’’ Walder v. United

States, 347 U.S. 62, 65 (1954), ‘‘[t}he interests of the other party

and regard for the function of courts of justice to ascertain the

truth become relevant, and prevail in the balance of considera-

tions determining the scope fof the constitutional right involv-

ed].’’ Brown v. United States, 356 U.S. 148, 156 (1958); Jenkins

v. Anderson, 447 U.S. 231, 236-238 (1980).

Based on this balancing of interests, the Court in several other

cases has held that Miranda-violated'® statements and prearrest

silence may be used by the prosecution on cross-examination to

impeach a defendant who has testified contrary to those

statements or to the inference of guilt that may be drawn from

that silence. Harris v. New York, 401 U.S. 222 (1971); Oregon

v. Hass, 420 U.S. 714 (1975); Jenkins v. Anderson, supra. The

petitioner does not argue here for a broad rule that the defen-

dant who testifies always ‘‘waives’’ confrontation of codefen-

dants who have made incriminatory statements,'' or that the

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

'' Again, the petitioner notes that confrontation of Peele was irrele-

vant in this case, since it was the contents of Peele’s confession, and

not his assertions of fact, which were at issue.

— =

prosecution should be permitted to ‘‘impeach’’ a testifying

defendant in every case with a codefendant’s confession.

However, ‘‘[t]he shield provided by [the decisions of this Court]

cannot be perverted into a license to use perjury by way of a

defense, free from the risk of confrontation with’’ evidence of

the true facts. Harris, 401 U.S. at 226.

C. The Respondent’s Alibi Defense Had Already Been

‘‘Devastated’’ by His Own Confessions and Statements,

and Introduction of Peele’s “‘Interlocking’’ Confession

Was Not So Damaging as to Invoke Bruton.

A four-Justice plurality’? of this Court opined in Parker v.

Randolph, 442 U.S. 62 (1979), that Bruton can fairly be limited

to the situaticn in which it arose, and that when the defendant’s

own confession is before the jury and ‘‘interlocks’’ with the co-

defendant’s confession, ‘‘the constitutional scales tip the other

way.’ 442 U.S. at 74-75 &n. 7. Justice Blackmun concurred in

the result, but chose to hold only that if Bruton had been

violated the violation was harmless error. 442 U.S. at 77-82.

Three Justices dissented, 442 U.S. at 81, and Justice Powell did

not participate, 442 U.S. at 77. Therefore the Court was unable

to resolve the split among the Courts of Appeals on the issue of

‘‘interlocking” confessions. 442 U.S. at 68 & n. 4.

Resolution of the Parker v. Randolph split is not necessary to

a finding that Bruton was not violated in the instant case; this

case presents facts which remove it even further from Bruton

than the straight ‘‘interlocking’’ confession situation presented

in Parker v. Randolph. But the instant case could also serve to

clarify Parker v. Randolph, since the respondent here had con-

fessed and Peele’s confession ‘‘interlocked’’ in such a way that

it was no longer ‘‘devastating’’ to the respondent’s defense and

did not add ‘‘critical weight’’ to the State’s case.

'2 Justice Rehnquist was joined by Chief Justice Burger, Justice

Stewart, and Justice White.

21

The United States Court of Appeals for the Second Circuit

was among the earliest courts to recognize that ‘‘interlocking’’

confessions do not fall within Bruron. That court recently sum-

marized the doctrine in Tamilio v. Fogg, 713 F.2d 18, 20-21 (2d

Cir. 1983), cert. denied ___. U.S. ___, 104 S.Ct. 706 (1984).

This doctrine does not require identity in statements.

United States ex rel. Ortiz v. Fritz, 476 F.2d 37, 39 (2d

Cir.), cert. denied, 414 U.S. 1075 . . . (1973). It is suffi-

cient if the confessions are ‘‘substantially the same and

consistent on the major elements of the crime involved.”

United States ex rel. Stanbridge v. Zelker, 514 F.2d 45, 49

(2d Cir.), cert. denied, 423 U.S. 872. . .(1975). Essentially,

to be interlocking, the statements must describe the same

crime. United States v. Fleming, 594 F.2d 598, 604 (7th

Cir.), cert. denied, 442 U.S. 931... .(1979). The fact that a

defendant takes the stand and denies his guilt, thus im-

plicitly repudiating his inculpatory admissions, does not

preclude application of the doctrine. United States ex rel.

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

The court in 7amilio further noted that in a felony-murder

situation, a lack of ‘‘interlock’’ on the issue of who actually did

the killing is irrelevant, since proof of a defendant’s participa-

tion in the underlying felony is sufficient to establish his or her

guilt. 713 F.2d at 21.

Street’s September 17, 1981 confession included admissions

that he had helped to plan the burglary of the victim’s house

(J.A. 353-354), that he knew of the possibility that the victim

would be killed (J.A. 354), that he enlisted accomplices (J.A.

355), and that he arranged for the purchase of a rope to be used

in connection with the crime (J.A. 356). The confession detailed

Street’s willing involvement in the burglary, and described how

Street had fashioned and tied onto the victim a cloth gag. (J.A.

357-358.) Finally, Street admitted in the confession that he ac-

companied the other burglars to the tree, and was up in the

truck while the hanging took place. (J.A. 358.) Street’s June

—_— pe —=

27, 1982 confession added that Street had placed the rope, or at CONCLUSION

least the second loop, around the victim’s neck. (J.A. 75, 281, Neliieeectenc sii

305.) Pe ny anno ourt of Criminal Appeals of Tennessee

Peele’s confession added nothing of substance to the respon-

dent’s own admissions.'’ Peele also related that he and Street Respectfully submitted,

had conceived of and planned the burglary, and that Street

enlisted help and bought the rope. (J.A. 295-298.) Peele’s con- pine onine rs

fession described Street’s participation in the burglary and his 7 ES GY CURNNNEES

gagging of the victim, adding only that Street had briefly par- ROBERT A. GRUNOW

ticipated in the initial ambush of the victim before running out Associate Chief Deputy Attorney

of the house. (J.A. 300-301.) Peeie’s confession also described General

Street’s participation in the hanging, including the fact that

Peele and Street placed the loops of rope around the victim’s WAYNE E. UHL

neck. Peele added only minor details such as Street helping to Assistant Attorney General

carry the victim from the house to the truck and Street helping J. ANDREW HOYAL II

to lift the victim off the tailgate. (J.A. 302.) Assistant Attorney General

Even if the jury based its verdict on premeditated rather than 450 James Robertson Parkway

felony murder, therefore, Peele’s confession ‘‘interlocked”’ Nashville, Tennessee 37219-5025

with Street’s statements in a manner precluding any substantial (615) 741-7087

prejudice to Street’s defense. Nothing could have been more Attorneys for Petitioner

damning than Street’s admissions that he was in the truck and

placed at least one loop of rope over the victim’s head.