Respondents Brief — Tennessee v. Street

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| Office- Supreme Court,

No. 83-2143

FILED

FEB 15 j9a5

us]

IN THE =

Supreme Court of the United States

OCTOBER TERM, 1984

STATE OF TENNESSEE,

HARVEY J. STREERT.

On Writ Of Certiorari To The Court Of

Criminal Appeals of Tennessee at Knoxville

BRIEF FOR THE RESPONDENT

STUART HAMPTON

(‘on nsel of Re cord

(Appoint d by this Court)

630 Elk Avenue

Elizabethton, Tennessee 37643

(615) 5438-6000

LANCE J. RoGers

310 Hedge Street

Charlottesville, Virginia 22901

VIVIAN BERGER

435 W. 116th Street

New York, New York 10027

Counsel for Responde

PRESS OF RAM PRINTING. HYATTSVILLE. MD 20781 (301) 664-6662

|| BEST AVAILABLE COPY

QUESTION PRESENTED

Whether the violation of respondent’s confrontation

rights arising from the introduction of an available, non-

testifying accomplice’s unredacted confession to the

police, which powerfully incriminated respondent, can be

excused either because it was ostensibly admitted to

rebut respondent’s testimony that his own confession

was, in part, a coerced “parroting” of the accomplice’s or

on the ground that the two statements were allegedly

“interlocking.”

ARGUMENT:

Tue StaTe VIOLATED RESPONDENT’s RicuHT To Con.

III.

FRONTATION WHEN IT INTRODUCED THE ENTIRE TEXT

ACCOMPLICE’S

RESPONDENT'S ACCOUNT OF THE EVENTS SURROUND-

ING THE TAKING OF His Own STATEMENT. .........

That Powerfully

Made To Law Enforcement Officials By An

comme, Se Se ee ee

dent’s Tri Although Housed In A Nearby

peepengeet > Comstetien Guanes Ee See Saas

GP GRUEENED GEUER. coceccsecoencosenenenennses

. The Admission Of The Entire Text Of A Confession

Incriminated The

Table of Contents Continued

Page

C. The Error In Admitting Peele’s Unredacted

Confession Was Not Harmless, Nor Did Peele’s

And Street’s Confession Interlock Sufficiently

To Obviate The Bruton Error. ............. 40

De. cccccceces 44

TABLE OF AUTHORITIES

CASES: Page

Barber v. Page, 390 U.S. 719 (1968) ........... 11, 16, 24

Brown v. United States, 411 U.S. 223 (1973) ... 31, 41, 48

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

GREED ceccccccodcesccctecees 6, 12, 14, 18, 20, 23, 35

California v. Green, 399 U.S. 149 (1970) ....... 11, 19, 22

Chapman v. California, 386 U.S. 18 (1967) .......... 36

Douglas v. Alabama, 380 U.S. 415 (1965) ........... 6, 14

Dutton v. Evans, 400 U.S. 74 (1970) ....... 12, 19, 20, 24

Earhart v. State, 48 Md. App. 695, 429 A.2d 557 (1981) 33

Fletcher v. Weir, 455 U.S. 603 (1982) ...........-55. 22

HarTt969). ee _ ee. > 31, 34, 36, 43

Herris v. New York, 401 U.S. 222 (1971) . 7, 19, 20, 21, 23

Jackson v. Denno, 378 U.S. 368 (1964) .............. 14

Jenkins v. Anderson, 447 U.S. 231 (1980) .......... 19, 22

Jones v. State, 227 So. 2d 326 (Fla. App. 1969) ...... 34

Jones v. United States, 342 F.2d 863 (D.C. Cir. 1964) . 25

Mancusi v. Stubbs, 408 U.S. 204 (1974) ............ 12, 22

Mapp v. Ohio, 367 U.S. 643 (1961) ..... 6... eee ee eee 21

Marshall v. Lonberger, 459 U.S. 422 (1983) .......... 13

Mattox v. United States, 156 U.S. 237 (1895) ........ ll

ney Sn eee__an

Michigan v. Long, _— U.S. —-_, 108 S.Ct. 3469 (1983) 29

Michigan v. Tucker, 417 U.S. 433 (1974) ............ 21

Mincey v. Arizona, 437 U.S. 385 (1978) ............. 20

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

Nash v. United States, 54 F.2d 1006 (2d Cir. 19382) ... 38

Nelson v. O’Neill, 402 U.S. 622 (1971) .............- 27

New Jersey v. Portash, 440 U.S. 450 (1979) .......... 20

New York v. Quarles, ___. U.S. —_, 104 S. Ct. 2626

Gy ccencecececnesnseesenenesessuaseneussece 21

Table of Authorities Continued

Page

Ohio v. Roberts, 448 U.S. 56 (1980) ................. 12

O’Neil v. State, 455 S.W.2d 597 (Tenn. Crim. App. 1970) 31

Oregon v. Hass, 420 U.S. 714 (1975) ........ 7, 19, 20, 21

Parker v. Randolph, 442 U.S. 62 (1979) .......... passim

People v. Aranda, 63 Cal. 2d 518, 47 Cal. Rptr. 353, 407

SUPE Od dein duudbdSédedcceeteesdssces 14

Rachel v. Commonwealth, 523 S.W.2d 395 (Ky. App.

BUND Sovnddbocuchdcckenedasdcadese<coscccace 31, 34

Roberts v. Russell, 392 U.S. 293 (1968) ............. 20

Schneble v. Florida, 405 U.S. 427 (1972) ........... 41, 43

Stanbridge v. Zelker, ; ir. ;

denied, 423 U.S. s12 (1975) rion icons a

State v. Burtis, 664 S.W.2d 305 (Tenn. Crim. App. 1983) 32

State v. Elliot, 524 S.W.2d 473 (Tenn. 1975) ... 31, 34, 42

State v. Jones, 598 S.W.2d 209 (Tenn. 1980) ......... 11

State v. Painter, 614 S.W.2d 86(Tenn. Crim. App. 1981) 32

State v. Robinson, 622 S.W.2d 62 (Tenn. Crim. App.

SEED Got babseweuddbedsHéucdbus duckeescocese 31, 32

State v. Rodriguez, 226 Kan. 558, 601 P.2d 686 (1979) . 33

State v. Simon, 635 S.W.2d 492 (Tenn. 1982) ........ 32

State v. Street, 674 S.W.2d 741 (Tenn. Crim. App.

GED Ruck deccsencescceetdccesesdecdéeveceses passim

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

———_ i wom = 5 ° i \eEeen 34

United States v. Havens, 446 U.S. 620 (1980) ........ 21

United States v. Inadi, 36 Crim. L. Rep. (BNA) 2158 (3d

Cir. November 13, 1984) ..................e000- 24

United States v. Kahan, 415 U.S. 241 (1974) ......... 22

United States v. Parker, 622 F.2d 298 (8th Cir.), cert.

oy sub nom. Ward v. United States, 449 U.S. 851

Seeoddedudheeseedeeseceseedonndcéebescec 33

United States v. ae 470 F.2d 64 (7th Cir.), cert.

denied, 409 U.S. 1911 (1972) ............cceeeee od

Table of Authorities Continued

Page

Walder v. United States, 347 U.S. 62 (1954) ......... 21

Ward v. United States, 449 U.S. 851 (1980) .......... 33

CONSTITUTIONS, STATUTES AND RULES:

ee Cee, Gs, Wee... cccecescoceocescoccesvece 30

De, Come, GRR, BED on ccccccccccccccccccccescoss 30

Supreme Court Rule 34.6 ............-0eeeeeeeeeees 16

MISCELLANEOUS:

1 J. STEPHEN, A HISTORY OF THE CRIMINAL

LAW OF ENGLAND 326 (1883) ............-:.

R. STERN & E. GRESSMAN, SUPREME COURT

PRACTICE (5th ed. 1974) ............000eues 16, 40

STATEMENT OF THE CASE

This case involves a (then) seventeen year-old juvenile

who was convicted of murder and sentenced to life

imprisonment. He was found guilty of having partici-

pated in a burglary in which the victim was killed.

On August 27, 1981, the Carter County Sheriff's Office

discovered the body of Ben Tester hanging by the neck

from a tree in his yard in Hampton, Tennessee. (J.A. 14)

His house had been ransacked in an apparent burglary.

(J.A. 17) During the investigation of the Tester death, the

authorities contacted and questioned Harvey J. (“Joe”)

Street, a seventeen year-old juvenile, a number of times.

(J.A. 188, 269-272)

On September 16, Clifford Peele, an adult, confessed to

the burglary and murder. His confession ‘mplicated

Street as a principal actor in both the burglary and the

murder. (J.A. 30-32)

On September 17, 1981, Joe Street signed a confession

prepared by Agent Don Collins of the Tennessee Bureau

of Investigation (TBI). (J.A. 24, 26-28, 50-58, 64-66)

Agent Preston Huckeby of the TBI and Sheriff Papan-

toniou were present and witnessed the signing of the

statement. (J.A. 25) According to the statement (J.A.

353-360), Street and Peele planned to burglarize Tester’s

house while Tester was away at church. Clifford Peele,

Eddie Montgomery, Jeff Causby, and Street went to

Tester’s house in a stolen truck and ransacked the house.

Tester returned unexpectedly but was temporarily sub-

dued by Peele. (J.A. 357)

The statement related that at this point Street ran out

of the house and urged Peele several times to flee, but

that Peele insisted that they first “string him [Tester]

up.” Montgomery agreed and threatened to “whip”

Street unle3s Street helped make a gag for Tester’s

mouth. Street complied and Peele and Montgomery

placed Tester on the truck which Peele backed against a

tree. Montgomery attached a rope to a tree limb and

Peele placed the looped end of the rope around Tester’s

neck. Peele and Montgomery lifted Tester off the tailgate

and left him hanging.' (J.A. 358)

Agent Collins testified that throughout the interroga-

tion, Street was distraught and he cried at times. (J.A.

24) The next day, Street recanted his confession, claiming

that he had been subjected to threats alternated with

promises of leniency. State v. Street, 674 S.W.2d 741, 743

(Tenn. Crim. App. 1984).

At trial, Street relied on an alibi defense. In support of

this defense, thirteen witnesses testified regarding his

whereabouts on the evening of August 27. (J.A. 86-160)

Street also testified in support in his a.ibi defense and

repudiated his September 17th confession. He stated that

Sheriff Papantoniou had, in addition to threatening and

coercing him, forced him to adopt the confession of Clif-

ford Peele. He testified that Sheriff Papantoniou showed

him photographs of the deceased and the deceased’s resi-

dence (J.A. 242, 249), read Peele’s confession to him, and

instructed him to give a statement which conformed to

Peele’s. (J.A. 190-94) Street further recounted that he

had lied repeatedly in the statement but that whenever

' At trial Ray Williams, a carpenter at the Carter County Jail,

stated that on or about November 23, 1981, Street told him that he

now wheve Hemp ctsten Sem Testers hemo conte Same CS.

86) Bobby Colbaugh, a Judicial Commissioner, testified over-

heard a conversation on June 27, 1982, between Sheriff Papantoniou

and Street wherein Street admitted placing the rope around Tester’s

neck. (J.A. 76) Sheriff Papantoniou corroborated this statement.

(J.A. 304-305) Street categorically denied making these two oral

statements. (J.A. 204)

he digressed significantly from Peele’s version of the

crime, the Sheriff would call him a liar and insist that he

recite the events consistently with Peele’s confession.

The State cross-examined Street extensively and fo-

cused upon the particulars given in Street’s confession

which were absent from Peele’s. (J.A. 239-250) Street

accounted for these discrepancies by explaining that he

had been prompted by the Sheriff to recite certain details,

that he reizted other details after viewing the photo-

graphs shown him by the Sheriff, and that he had

The State then called Sheriff Papantoniou and Agent

Huckeby as rebuttal witnesses. The Sheriff stated that,

although he had had a copy of Peele's confession and had

shown Street Peele’s signature on the confession (J.A.

309), he had not forced Street to “parrot” the Peele con-

fession. (J.A. 274-75, 309) The Sheriff's account was cor-

roborated by Agent Huckeby who testified that the Sher-

iff had not forced Street to imitate Peele’s confession.’

(J.A. 326-27)

In support of his rebuttal testimony, Sheriff Papanto-

niou also reviewed the two confessions and highlighted

the discrepancies between them. Specifically, Street’s

confession mentioned that: (1) a light was on in Tester’s

house prior to the burglary; (2) Tester’s shirt had been

ripped; (3) a nylon rope had been used to hang Tester; (4) a

gag had been made from a torn bed sheet; (5) Tester’s

wallet was located in the front bedroom; (6) money had

been taken from Tester’s wallet; and (7) shirts had been

taken from the residence. Sheriff Papantoniou observed

that these details were not to be found in the Peele

confession. (J.A. 303-304)

*T.B.I. Agent Collins had also testified during the State’s case in

chief that respondent's confession was not coerced. (J.A. 22-29, 64-

66, 74-76)

In addition to the foregoing, the State introduced

Peele’s statement and allowed Sheriff Papantoniou to

read the entire confession to the jury. The defense ob-

jected strenuously on the ground that its admission would

violate not only the hearsay say, out also Street’s right of

confrontation. (J.A. 283, 287) The State argued that the

confession was admissible because: (1) it was not being

offered for the truth of the matter asserted, and therefore

did not constitute hearsay; and (2) there was no con-

frontation violation because Street had “opened the door”

to admission of the statement by taking the stand and

contesting the validity of his own confession. (J.A. 287-

88) The court overruled the objection and instructed the

jury to consider Peele’s confession only for rebuttal pur-

poses. (J.A. 292-93, 350)

The defense suggested that the damage to Street could

be minimized if the Sheriff simply pointed out the differ

ences between the two statements. (J.A. 293) The State

references in Street’s declaration which were absent from

Peele’s. (J.A. 294) The Sheriff stated that he could not

respond without first reading through Peele’s confession.

The court then permitted him to read the statement but

cautioned him: “[{R Jead it to yourself, don’t read it aloud.”

(J.A. 294)

The State then reversed its position and informed the

court that it intended to have Sheriff Papantoniou read

the entire confession to the jury. The court reminded the

prosecution of the understanding that the Sheriff was not

going to read Peele’s whole confession to the jury but,

rather, would only highlight the differences between the

two statements. (J.A. 294) The State argued that it

“would be more coherent” if the Sheriff was allowed to

read all of Peele’s confession. (J.A. 295) The court permit-

ted the Sheriff to do so over the defense’s renewed objec-

tion.

The State made no attempt to present Peele as a wit-

ness, although Peele was present in the Unicoi County

Jail in close proximity to the courthouse. (J.A. 7) Nor was

any effort made to redact Peele’s confession.

The Tennessee Court of Criminal Appeals reversed the

conviction. State v. Street, 674 S.W.2d 741 (Tenn. Crim.

App. 1984). The court noted that although the Peele

confession “as used at trial” was not technically con-

sidered hearsay in Tennessee, id. at 744-45, the admis-

sion of the highly incriminating confession of an available

accomplice nevertheless violated Street’s confrontation

rights. The court also held that the confessions were not

sufficiently “interlocking” to invoke the interlocking con-

fession doctrine observed under Tennessee law because

Peele’s confession added significant incriminating matter

to Street’s confession, such that Street was exposed to a

greatly increased risk of conviction. Jd. at 746. Finally,

the court concluded that the error in admitting Peele’s

confession could not be considered harn.less because:

Peele’s statement not only implicated the defendant

[Street], it alone established all essential elements of

the homicide, had the chosen to believe defend-

ant’s confessions were in involuntary. Defendant

OE Eset Sie See & Cis entiation

SUMMARY OF ARGUMENT

I. The confrontation clause guarantees an accused

the right to cross-examine and otherwise test the verac-

ity of his or her accusers. This constitutional safeguard is

more than a mere codification of the local laws of

evidence—in particular, the hearsay rule. Generally, to

dispense with confrontation of an absent declarant, this

Court has required that an incriminating hearsay state-

ment introduced at trial carry adequate indicia of reliabil-

ity and that the speaker be unavailable. Because a con-

fession to the authorities by one who incriminates not

only himself but also the defendant is deemed both highly

unreliable and extremely prejudicial, the right of con-

frontation bars its introduction against the defendant

where he cannot cross-examine the declarant.

For example, in Douglas v. Alabama, 380 U.S. 415

(1965), the prosecutor read the incriminating confession

of the previously convicted accomplice to the jury under

the guise of refreshing the recalcitrant witness’s memo-

ry. In reversing Douglas’s conviction, this Court em-

ployed a practical approach noting that even though this

reading did not technically constitute testimony, a signifi-

cant danger existed that the jury would consider the

accomplice’s confession as substantive evidence.

The inevitable prejudice cannot, moreover, ~~

through a limiting jury instruction. In Bruton v. Uni

States, 391 U.S. 123 (1968), the Court again employed a

pragmatic analysis in holding the introduction at the joint

trial of a non-testifying co-defendant’s confession in-

culpating the defendant violated the defendant’s con-

frontation rights. Even though the confession had not

technically been admitted against the defendant—

indeed, the jury had expressly been instructed not to

consider it as evidence of the defendant's guilt—this

Court held that the jury could not be presumed capable of

following the limiting instructions in this situation.

In the instant case, the powerfully incriminating con-

fession of Peele, which placed Street at the scene of the

crime and assigned him an active role in the murder of

Ben Tester, was technically offered only to refute

Street’s claim that Sheriff Papantoniou had coerced him

into imitating Peele’s statement. But under Douglas, the

legal characterization of the purpose underlying introduc-

tion of this type of evidence does not remove confronta-

tion objections, and under Bruton the trial court's limit-

ing instructions could not be trusted to keep the jury from

using Peele’s statement for its truth. The danger of such

“spillover” is particularly great where, as here, the im-

peachment evidence substantively corroborates the

State’s theory of the case.

The gravity of the confrontation violation was com-

pounded by the fact that it was gratuitous. ‘lhe State

made no effort to call Peele as a witness, although he was

housed in a nearby jail. Moreover, there was no effort to

redact the significantly incriminating portions from the

confession.’ Nor did the State merely have Sheriff Papan-

toniou simply highlight the differences between the two

statements. Furthermore, Street’s version of the circum-

stances underlying his confession had been directly con-

tradicted by witnesses testifying for the State both in its

case in chief and on rebuttal.

II. Contrary to the State’s suggestion, Street did not,

by taking the stand and repudiating his confession, “open

the door” to admission of his alleged accomplice’s con-

fession, so as to forfeit his own confrontation rights.

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

420 U.S. 714 (1975), and similar decisions cited by the

State are aimed—like confrontation itself—at

the integrity of the fact-finding process. In this case,

however, the serious challenge to the truth-finding func-

tion of criminal trials originated not from Street’s testi-

mony but rather from the introduction of the “inevitably

suspect” confession of an absent accomplice which impli-

cated Street. Bruton, 391 U.S. at 123. The decisions of

this Court have never gone so far as to sanction impeach-

‘ As noted by the Tennessee Court of Criminal Appeals, redaction

could have been accomplished without detracting from the con-

fession’s purported rebuttal purpose. 674 S.W.2d at 745.

ment through evidence as inherently untrustworthy as an

accomplice’s extra-judicial confession to police. Such a

statement is not only inherently unreliable, but it is also

immune from traditional adversarial testing.

Furthermore, unlike the situation in cases permitting

impeachment by a defendant’s own prior inconsistent

statements or conduct, tangible evidence, or other

declarations containing some guarantee of veracity, the

gratuitous introduction of the damniag confession of Clif-

ford Peele did not unveil perjury. The existence of some

discrepancies between the two confessions simply sug-

gested that they were not perfectly identical: a conclusion

not inconsistent with Street’s assertions that, in addition

to being provided with certain details of the crime by the

Sheriff, he also deliberately concocted other portions of

his own statement.

Ill. Years before Parker v. Randolph, 442 U.S. 62

(1970), in which a plurality of this Court posited, but did

not define, an “interlocking confession” exception to the

Bruton rule, Tennessee had adopted its own version of

this doctrine as a matter of state law. Hence, the con-

clusion of the court below—premised entirely on Tennes-

see law—that the statements of Peele and Street did not

interlock, constitutes an adequate and independent state

ground insulating this holding from review.

For the many reasons given by Justices Blackmun,

Stevens, Brennan, and Marshall in their opinions in the

Parker case, it would be imprudent for the Court to adopt

an interlocking confession doctrine since such a course

would undermine defendants’ constitutional rights with-

out producing any corresponding benefit. Indeed, the

proposed doctrine would only create the additional risk of

' Seton aed inelidient ofeaintetention tn thin

area of law.

Moreover, the case for such an exception to Bruton is

especially weak in the present context. An “interlock”

exception clearly is unjustified outside the joint trial

situation, where, as the court below observed, the “policy

arguments favoring judicial economy and efficiency allow

admission against the confessor.” 674 S.W.2d at 746.

Further, the exception is not only unwarranted but also

beyond the contemplation of the Parker plurality where a

defendant takes the stand, presents a defense and repudi-

ates his confession, thus rendering the accomplice’s in-

culpatory extrajudicial confession as “devastating” and

inherently “suspect” as it was in Bruton.

Finally, introduction of Peele’s confession was not

harmless error. Nor did it “interlock” with Street's under

any reasonable version of that test. The full statement

increased Street’s risk of conviction of first degree mur-

der substantially by portraying Street as a much more

active and willing participant in the killing than Street's

own admissions had. Peele’s statement alone established

all the requisite elements of the crime had the jury be-

lieved that Street’s statements were not voluntary.

Analysis of this Court’s decisions which have found Bru-

ton errors harmless reveals that the Court has required

significant corroboration of the defendant's participation

in the enterprise, or other overwhelming proof of the

defendant’s guilt, independent of the tainted evidence,

such that it appears beyond a reasonable doubt that the

constitutional violation had no effect on the jury’s deci-

sion. The Tennessee Court of Criminal Appeals correctly

ARGUMENT

THE STATE VIOLATED RESPONDENT'S RIGHT TO

NEARBY; THIS VIOLATION CANNOT BE EXCUSED BY

THE FACT THAT THE CONFESSION WAS PURPORTEDLY

l. The Admission Of The Entire Text Of A Confession That

Powerfully Incriminated Respondent, Made To Law

Enforcement Officials By An Alleged Accomplice Who

Was Not Produced At Respondent's Trial, Although He

Was Housed In A Nearby Jail, Violated Respondent's Con-

stitutional Right To Confrontation.

The Tennessee Court of Criminal Appeals held correct-

ly that the admission of Peele’s unredacted confession

violated Joe Street’s confrontation rights. This extra-

judicial confession plainly devastated Street's case be-

cause it placed him at the scene of the crime, thus directly

jury accepted Street's confession as voluntary and reli-

able, Peele’s statement damaged Street by portraying

him as a more willing and active participant in the murder

Although Peele’s confession was purportedly admitted

not for the truth of the matter asserted therein, but

merely to rebut Street's claim that he had been coerced

into parroting Peele’s confession, it provided the State

with the strongest evidence corroborative of the prosecu-

tion’s theory of the case.‘ Nevertheless, the trial court's

‘No physical evidence was discovered linking Street to the crime.

UJ.A. 33)

ruling foreclosed Street from testing Peele’s recollection,

demeanor, perception, and—most importantly—veracity

through cross-examination because the State never pro-

duced Peele as a witness.

This inability to cross-examine wholly undercuts the

primary objective of the right of confrontation:

[T]o prevent depositions of ex parte affidavits, such

ae Wave Guenstiones adnctted in civil cases, being

used against the prisoner in lieu of personal examina-

Mattox v. United States, 156 U.S. 237, 242 (1895). The

clause affords a defendant the opportunity to face his or

her accusers and subject them to cross-examination. It

also permits the judge and jury to view the witness’s

as an aid to determining the reliability of the

testimony. As noted by the Mattox Court:

[Tyhe accused has an unity, not only of testing

the recollection and si the conscience of the wit-

ness, but of ing him to stand face to face with

the jury in order that ape ae pe ep! my

by his demeanor upon the stand and the manner in

which he gives his testimony whether he is worthy of

belief.

Id.

Although the confrontation clause and the rules against

admission of hearsay by and large protect analogous

values, the right of confrontation is more than a simple

codification of the laws of evidence. California v. Green,

399 U.S. 149, 155 (1970); Barber v. Page, 390 U.S. 719,

721 (1968); State v. Jones, 598 S.W.2d 209, 222 (Tenn.

1980). Although an extrajudicial statement may be

admissible pursuant to a local rule of evidence, its use at

trial may nevertheless deprive a defendant of his con-

stitutional right to confrontation. /d.

Generally, to dispense with confrontation at trial, this

Court has required that hearsay evidence introduced in

the absence of the declarant bear adequate “indicia of

reliability.” See, e.g., Ohio v. Roberts, 448 U.S. 56, 66

(1980). Ordinarily, too, the prosecution must show that

the speaker is “unavailable” as a witness, at least unless

the trustworthiness of the evidence appears unusually

great. Id. at 65-66; Mancusi v. Stubbs, 408 U.S. 204, 213

(1972); ef. Dutton v. Evans, 400 U.S. 74, 95 (1970) (Har-

lan, J., concurring in result) (discussing such excéptions

to the hearsay rule as business records, “where produc-

tion would be unduly inconvenient and of small utility toa

defendant”). In some recurring instances, however,

hard-and-fast rules have developed for determining the

constitutionality of admitting such “second-hand” proof

at trial. With respect to the facts of this case, Bruton v.

United States, 391 U.S. 123 (1968), provides a governing

rule of exclusion—one that the State clearly violated

here.°

In Bruton, the Court held that the extrajudicial con-

fession of a non-testifying co-defendant, Evans, implicat-

ing the defendant, Bruton, was inadmissible at their joint

trial notwithstanding an instruction to the jury that they

should consider the confession only against its maker.

The opinion rested on two grounds, both equally applica-

ble to Street.

First, the Court deemed an alleged accomplice’s con-

fession inculpating a defendant to be both prejudicial and

untrustworthy.

Not only are the incriminations devastating to the

defendant but their credibility is inevitably suspect,

5’ The only purportedly “blanket” exception to the Bruton rule, the

“interlocking confession” doctrine, which the State claims applies to

this case, is discussed infra at pp. 34-42.

a fact recognized when accomplices do take the stand

and the jury is instructed to weigh their testimon

carefully given the recognized motivation to shi

blame onto others. The unreliability of such evidence

is intolerably compounded when the alleged accom-

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

y cross-examination.

391 U.S. at 136.

Second, the Court held that a limiting jury instruction,

ordinarily assumed sufficiently protective of the rights of

litigants (see, e.g., Marshall v. Lonberger, 459 U.S. 422,

438 n.6 (1983)), is an inadequate substitute for cross-

examination of the confessing accomplice where the

accomplice’s incriminating statements are spread before

the jury, fairly inviting the jurors to draw improper in-

ferences from the evidence. This situation poses dangers

of juror disobedience and resulting harm of a wholly

different order than those threatened in the usual case:

[T]here are some contexts in which the risk that the

a ee, or cannot, follow instruction is so great,

the consequences of failure so vital to the defend-

ant, that the practical and human limitations of the

ury system cannot be ignored [citations omitted].

uch 2 Seater is presented here, where the

powe a extrajudicial confession of

a codefendant, who st accused side-by-side with

the defendant are deliberately spread before the jury

in a joint trial.

391 U.S. at 135-36.

Here, of course, the jury heard the whole “powerfully

incriminating” statement of the absent Peele, and the

court’s instruction to consider it only for “rebutable [sic]

purposes” (J.A. 350) could no more serve to protect

° Notably, the instructions given by the trial court were highly

streamlined. They were also unilluminating since the judge never

explained what he meant by “the purpose of rebuttal.” See, e.g., J.A.

Street from its unavoidable use on the substantive issue

of guilt than could the limiting charge in Bruton. There is,

moreover, no relevant distinction between the instant

situation and Bruton that would allow for a different

result in the two cases.

Most critically, contrary to the State’s position, the

purported non-hearsay use of Peele’s incriminating state-

ment did not obviate respondent’s sixth amendment

objection. Cf. Brief for Petitioner at 16-18. The Tennes-

see Court of Criminal Appeals correctly noted: “[DJefend-

ant’s confrontation rights are not foreclosed merely be-

cause the confession as admitted did not constitute hear-

say.” 674 S.W.2d at 745. In the area of confrontation, as in

other contexts, this Court has pierced the technical labels

and concerned itself with the practical effect of the use of

certain extrajudicial statements. For example, in Doug-

at 292; see also J.A. at 293, 350. Although the defense did not object

to the instructions below and therefore does not urge their defects as

an independent error, their inadequacy only underscores the preju-

dice resulting from the Bruton violation.

Moreover, there is no reason to credit the State’s suggestion that

the type of limiting instructions involved in this case would have

posed fewer problems for the jury than those in Bruton. Brief for

Petitioner at 11; see also Amicus Curiae Brief for the United States

at 22-23. In fact, the Bruton Court suggested in its discussion of

Jackson v. Denno, 378 U.S. 368 (1964), that in so far as one can make

generic distinctions, charges requiring jurors to consider proof for

one purpose but not another (the situation presented both here and in

Bruton) call for greater “mental gymnastic/{s]” that instructions

(such as the one in Jackson) which enjoin jurors wholly to ignore a

piece of evidence under certain circumstances. Bruton v. United

States, 391 U.S. at 130-31, quoting People v. Aranda, 68 Cal. 2d 518,

528-29, 47 Cal. Rptr. 353, 407 P.2d 265 (1965). See generally Jackson

v. Denno, 378 U.S. 368 (1964) (under then existing New York proce-

dure, which violated due process, a jury could not be presumed

capable of following an instruction to disregard a defendant's con-

fession that they found had been given involuntarily).

las v. Alabama, 380 U.S. 415 (1965), as in the instant

case, the defenc int and his accomplice, Loyd, were tried

separately. The state called Loyd to testify at the defend-

ant’s trial, but he invoked his privilege against self-

pn ae engine 8 <—e ebadin’ . -"

n, pretense of “re i

the recalcitrant Loyd’s memory, read the confession to

the jury and also called various law enforcement officers

to the stand who testified that Loyd had authored the

confession. Not surprisingly, this Court reversed, hold-

ing that although the reading of the confession and wit-

ness’s refusal to answer did not technically constitute

testimony, it might “well have been the equivalent in the

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

statement.” Jd. at 419. Furthermore, Loyd’s reliance

upon the privilege created the additional danger that the

jurors would infer that the statement was true. /d.

In the instant case, as in Douglas, the circumvention of

confrontation was sought to be justified by the fiction that

the prosecution was not offering the statement for the

truth of the matter asserted. Here too, however, the legal

rubric of the non-testifying accomplice’s confession (“re-

buttal” or “impeachment”) did not dispel the prejudice

arising from its likely use in fact: to convince the jury of

Street’s guilt.

Nor did the fact that Street and Peele, unlike Bruton

and Evans, were not being tried jointly, excuse the State

from its obligation either to produce Peele or forego in-

troducing his confession. Indeed, since an accused on trial

such as Evans can never be called by the prosecution, this

case presents an even stronger argument than did Bruton

for disallowing the statement’s use.

Moreover, even if one assumes—erroneously—that a

straightforward application of Bruton does not automat-

ically resolve the matter in Street’s favor, general princi-

ples of confrontation law clearly do. First, the State did

not demonstrate that Clifford Peele was unavailable. In-

deed, although Clifford Peele had been transfered to the

Unicoi County Jail—in close proximity to the

courthouse—during the trial, the State made no attempt

to call him as a witness.’

Furthermore, Peele’s confession bore no indicia of re-

liabiJity. To the contrary, it was “inevitably suspect,”

Bruton, 391 U.S. at 136, as the statement of an in-custody

alleged accomplice.”

The gravity of the confrontation violation is compound-

ed by the fact that it was gratuitous. The State made no

attempt to secure Peele as a witness. Furthermore, the

7In its amicus curiae brief in support of the State, the United

States, in a grossly improper excursion beyond the record seeks to

justify Peele’s absence by reporting that Peele has agreed to testify

against Street but that the State declined at the last minute to cail

Peele as a witness because he “appeared unreliable.” Amicus Curae

Brief of the United States at 3, n.1. This reference to “facts” outside

the record is not only inappropriate and unprofessional (see R.

STERN & E. GRESSMAN, SUPREME COURT PRACTICE

§ 13.11, at 716.17 (Sth ed. 1978), and authorities cited; see also

Supreme Court Rule 34.6), but constitutes an improper effort to

justify Peele’s absence by suggesting he was somehow “unavailable,”

and that any good faith effort to produce him as a witness would have

proven futile. This “justification” finds no support in the Court's

precedents. As observed in Barber v. Page, the prosecution may not

simply assume that a witness is “unavailable.” Rather, in order for

the “unavailability” standard to be met, the prosecutorial authorities

must have first made a “good faith effort” to secure the witness’

presence. 390 U.S. at 725.

* Peele made at least two confessions—one on September 16 and

one on September 11, 1981—which varied in the number of parties

implicated. (J.A. 32) The September 16 statement was the one read

to the jury.

State had handily accomplished its “rebuttal”

vigorous cross-examination of Street and through the

direct testimony of Sheriff Papantoniou and Agent Huck-

eby, who both testified that Street had not been forced to

parrot Peele’s confession. (J.A. 274-81, 326-28) Indeed,

~~ cceaaeta eee aries (J.A. 303-

Plainly, reading the entire text of Peele’s confession to

the jury added little to the impeachment of Street. The

discrepancies in the two statements had been amply dem-

onstrated to the jury. Moreover, the fact that the state-

ments lacked complete identity because they varied

regarding such details as whether a light was on or

whether the deceased’s shirt was torn is certainly not

dispositive of the parroting issue.’ A practical examina-

tion of the circumstances reveals that the true impeach-

ment value of Peele’s confession did not lie in “revealing”

these distinctions. Rather the true impeachment value

derived from the fact that it rebutted Street's alibi de-

fense by placing him at the scene of the crime and portray-

ing him as a principal actor in the murder.

In sum, this Court’s longstanding pronouncements in

Bruton and Douglas plainly barred the admission at trial

of the “inevitably suspect” and damning confession of

Peele. Neither a limiting instruction nor the purported

rationale of “rebuttal” could disguise or obviate the preju-

dice to Street from the clear violation of his right to

* Indeed th are . ti , . jin P le’ f .

that also exist in Street's statement which suggest the contrary

proposition: that’s the second confession was an imitation of the first.

For example both declarations specifically volunteer that the de-

ceased’s tongue was “not sticking out.” (J.A. 302, 358)

Il. Respondent Did Not Forfeit His Confrontation Rights By

Taking The Stand And Repudiating His Confession.

The State argues that by taking the stand and disput-

ing the voluntariness and reliability of his own confession,

respondent Street “opened the door” to the introduction

of the confession of his alleged accomplice, Clifford Peele.

Brief for Petitioner at 18. The admission, however, of a

’s confession v. hich powerfully

the defendant is precisely the type of practice

this Court expressly condemned in Bruton and Douglas.

The State reaches the remarkable conclusion that

Street invited this gross violation of his rights by reason-

ing that: (1) Street’s testimony threatened serious per-

version of the truth-seeking function of the criminal trial

and (2) his narrative could “only” be disproved by in-

troduction of Peele’s confession. Brief for Petitioner at

18-19. Not surprisingly, since both of the State’s premises

are flawed, its conclusion is equally wrong. In fact, the

true threat to the “reliability of the result of the trial”

(Brief for Petitioner at 18) derived not from Street’s

testimony but rather from the use of the “inevitably

suspect” in-custody statement of an accomplice who could

neither be viewed by the jury nor cross-examined by the

defendant. Bruton v. United States, 391 U.S. 123, 136

(1968). Furthermore, Street's veracity could be, and was,

tested by much more reliable—and legitimate—means

that Peele’s confession, the innate unreliability of which

was “intolerably compounded” by the declarant’s

unaccounted-for absence. /d.

ness of the matter against the lie by the

ponsiblity ofa penalty for perjury (2) forces the

witness to su to a ene ee the

greatest ever invented discov

of truth™ [and] @) to

truth”; the jury that is to

decide ’s to observe the demeanor

of the witness in his statement, thus aiding

the jury in assessing his credibility.

California v. Green, 399 U.S. at 158.

The assertion that the quest for truth will be assisted

by dispensing with the right of confrontation, an in-

The authority relied on by the State” stands for the

proposition that an accused ordinarily may not take the

witness stand and turn a constitutional “shield” into a

“sword,” or license to commit perjury, confident that he

cannot be contradicted. As the State necessarily acknow!-

” E.g., Jenkins v. Anderson, 447 U.S. 231 (1980); Oregon v. Hass,

420 U.S. 714 (1975); Harris v. New York, 401 U.S. 222 (1971). Brief

for Petitioner at 19-20.

of waiving his privilege against compu!sory self-

incrimination, also broadly “waives” the right to confront

testimony compelled by grant of immunity), Mincey v.

Arizona, 437 U.S. 385, 398 (1978) (classically involuntary

statement by wounded and ill suspect).

Oregon v. Hass, 420 U.S. at 722; Harris v. New York, 401

U.S. at 224. Peele’s confession was, by contrast, the

of an untrustworthy statement." See generally

Bruton v. United States, 391 U.S. at 136. Moreover, none

Cen ean ww coins poems in viole

impeachment by

tion of a constitutional safeguard that, like confrontation,

by its very nature, directly promotes the reliability of the

-innocence-determining

In the digression beyond the record (see supra at p. 17 n.7)

wherein the Solicitor General reports that Peele was not called as a

witness because the State thought him unreliable, Amicus Curae’

Brief for the United States at 3 n.1, the Solicitor General fails to

clarify the record further by proffering any explanation how Peele’s

confession could be more reliable than Peele himself. Indeed, since

Peele’s statement was anything but spontaneous and “may well (have

Russell, 392 U.S. 293, 295 (1968) (Bruton error results in

a “serious flaw” in the fact-finding process at trial).

For example, such cases as Harris and Hass, which

involved statements obtained in violation of Miranda,

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

concerned physical evidence seized in violation of the

fourth amendment,” dealt—unlike the instant case—

with prophylactic exclusionary rules. See Michigan v.

Tucker, 417 U.S. 433, 445 (1974); New York v. Quarles,

_. U.S. ——, 104 8. Ct. 2626 (1984) (O’Connor, J.,

concurring). The “shields” provided by the doctrines of

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

Ohio, 364 U.S. 643 (1961), notably do not enhance, and in

fact are frequently hostile to, the quest for truth.

Furthermore, since these protections have been laid

down primarily to deter official misconduct, they

ordinarily achieve their purpose once the evidence has

U.S. at 225. Here, however, exclusion of Peele’s con-

Cases like Harris and Hass, in addition, involved

by a defendant’s own inconsistent state-

ment, No only i the era inte hee

strongest possible proof .

on the stand or prior to trial, but also—having himself

made the previous voluntary utterances—he alone was

responsible, and hence in a poor position to complain, if

they were in fact untrustworthy. See also United States

v. Kahan, 415 U.S. 241 (1974); of. Fletcher v. Weir, 455

U.S. 608 (1982) (the defendant's post-arrest silence was,

in the absence of Miranda warnings, admissible to im-

peach his self-defense testimony); /<akins v. Anderson,

447 U.S. 231 (1980) (same, as to pre-arrest silence).

Simply put, under the pretext of advancing the search

for truth, the state unconvincingly seeks to justify the

introduction of a shoddy, inherently suspect document,

whose author’s credibility was never tested at trial, or

indeed in any forum. Cf. California v. Green, 399 U.S.

149, 166 (1970) (credibility tested at prior preliminary

hearing); Mancusi v. Stubbs, 408 U.S. 204 (1982) (verac-

ity examined at prior trial). Equally unpersuasively, the

state defends the reception of the absent Peele’s entire

statement by arguing that only this course of action could

have disproved Street's account of the circumstance sur-

rounding the making of his own confession. The record,

however, undeniably refutes that contention.

First, the prosecution assailed the credibility of

Street's claim through the testimony of Agent Collins,

given during the case in chief. (J.A. 22-29, 64-66, 74-76)

Second, Street's assertions were directly contradicted by

Sheriff Papantoniou, who testified on rebuttal that he had

not forced Street to parrot the alleged accomplice’s con-

fession. (J.A. 274-281) Third, Agent Huckeby corrobo-

rated the Sherrif’s version of what had occurred. (J.A.

326-28) Thus, the State was hardly faced with a situation

where the accused could testify without “risk of con-

frontation” by adverse facts. Cf. Harris v. New York, 401

U.S. at 226. To the contrary, as previously demon-

strated, it was the State that had the improper opportun-

ity to smuggle in a powerfully damaging account of the

events underlying the indictment—without subjecting

the unreliable author of that tale to confrontation.

It is, of course, understandable that the State pre-

ferred to introduce Peele’s confession throug) a sheriff

instead of an accused felon. No doubt Sheriff Papantoniou

was a better and more credible witness than Peele.

Nevertheless, the confrontation clause does not sanction

such use of ex parte statements in lieu of direct testimony

simply because this mode of proceeding proves con-

venient.

The State seeks to excuse its failure to call the declar-

ant on the ground that “cross-examination of Peele would

have shed no light on the issue raised by respondent”

regarding the making of the latter's confession. Brief for

Petitioner at 18. This argument is wholly beside the

point. The illegitimate prejudice to Street posed by

admitting Peele’s confession arose not from its claimed

tendency to contradict the “parroting” account but rather

from its inevitable substantive “spillover” effect, which

could not be cured by any limiting instructions. In other

words, the injury to Street derived from Peele’s version

of the crime itself, starkly laid before the jury without

possibility of confrontation. See generally Bruton v.

United States, 391 U.S. 123 (1968).

To be sure, Street's prosecutors were not obliged to call

Peele if, for whatever reason, they did not wish to do so.

But unless they chose to put Peele on the witness stand in

person, Bruton and Douglas barred them from introduc-

could not “have their cake and eat it too” provides them

with no justifiable basis for complaint. The choice they

confronted was, after all, constitutionally imposed.

The United States suggests that Street should have

called Peele to examine him about his inculpating state-

ment. Amicus Curae Brief of the United States at 23-24.

This approach is wide of the mark. First it presupposes an

extraordinary shift to the accused of the State’s obliga-

tions under the confrontation clause. See, e.g., Barber v.

Page, 390 U.S. 719, 725 (1968) (prosecution must make

good faith effort to secure deciarant’s presence). Indeed,

it is reminiscent of a time when prosecutors would con-

tions, usually in the form of “depositions, confessions of

accomplices, letters and the like,” and then challenge the

accused to prove that the statements were false. | J.

STEPHEN, A HISTORY OF THE CRIMINAL LAW

OF ENGLAND 326 (1883) (emphasis added).

Further, the Solicitor General's suggestion is utterly

disingenuous in light of his own extra-record representa-

tion that the State expected Peele, if subpoenaed, to

Amicus “uriae Brief for the United States at 3 n.1. No

reason exists to believe that Peele’s testimony would

have been any more “available,” as a practical matter, to

Street than to the State. Cf. Dutton v. Evans, 400 U.S. at

88 n.19. However, to the extent the issue of Peele’s

unwillingness to take the stand remained in doubt, the

State could not excuse its failure to produce the witness

by assuming, rather than ascertaining, that he would

claim the protection of the privilege. Barber v. Page, 390

U.S. 719, 724-25 (1968); United States v. Jnadi, 36 Crim.

L. Rep. (BNA) 2158 (3d Cir. November 13, 1984). Cy

Parker v. Randolph, 442 U.S. 62, 87 (Stevens, J., dis-

senting) (in most cases, the prosecution would be hard

pressed to make a showing of legal unavailability in light

of its ability to grant the accomplice-deciarant immunity).

In any event, even the proven unavailability of Peele as a

witness would not have permitted the State to introduce

his confession since the mandate of Bruton applies not-

withstanding the fact that the State can never call the

confessing co-defendant to the stand. Cf. Nelson v.

O’Neil, 402 U.S. 622 (1971) (Bruton poses no problem

when the confessing co-defendant chooses to testify at the

joint trial).

At the very least, the State could have minimized the

damage to Street by foregoing the use of the entire con-

fession. As the Tennessee Court of Criminal Appeals

expressly noted, redaction would have sufficed to permit

the State to show, if it could, that Peele’s confession

differed in relevant ways from Street’s and therefore,

arguably, supported its contention that Street could not

merely have “parroted” the words of Peele." Redaction,

of course, is not always an effective method of preserving

a defendant’s confrontation rights because a juror can

usually deduce at a joint trial that “blank” or “Mr. X”

refers to the declarant’s codefendant. See Jones v. United

States, 342 F.2d 863, 866-67 (D.C. Cir. 1964). Neverthe-

less, this danger is minimal where, as in the instant case,

the declarant is accompanied in the criminal enterprise by

a number of other individuals. Indeed, with this many

alleged accomplices—none of whom were on trial with

Street—, the prosecution could have substituted some-

“Nor was an effort made to limit prejudice to the defendant by

redacting incriminating portions of the confession. From an examina-

tion of the confession, this could have been done without detracting

from the alleged purpose for which the confession was introduced.”

State v. Street, 674 S.W.2d 741, 745 (Tenn. Crim. App. 1984).

thing like “another fellow” for all the names and the jury

would not have inevitably concluded that any particular

reference was to Street.

Moreover, analysis of the declared purpose underlying

admission of Peele’s confession reveals that redaction of

the portions of the statement which seriously inculpated

Street could have been accomplished without frustrating

the State’s aim. The jury did not need to be enlightened

by Peele’s detailed declarations regarding Street’s

alleged role in the crime in order to appreciate that

Peele’s confession made no reference to whether: (1) a

light had been on in Tester’s house prior to the burglary;

(2) Tester’s shirt had been ripped; (3) a nylon rope had

been used in the hanging; (4) a gag had been made from a

torn bed sheet; (5) Tester’s wallet had been located in the

front bedroom; 6) money had been taken from Tester’s

wallet; or (7) shirts had been taken from the residence.

(J.A. 303-304)

In fact, the parties began with an understanding that

the State would employ the substantial equivalent of

redaction: testimony concerning selected portions of the

Peele confession. Sheriff Papantoniou was to read Peele’s

statement to himself and then, through questioning,

highlight the differences between it and Street’s state-

ment without reading the former to the jury. (J.A. 293-

94) The prosecution later reneged, however, deciding

that it would be “more coherent” for the Sheriff to read

the full confession to the jury. (J.A. 295) Yet, after the

witness laid the whole of Peele’s statement before the

jurors, the prosecution had Sheriff Papantoniou under-

score these differences—thereby accomplishing exactly

what it could have done without such grave prejudice to

Street, simply by observing the original arrangement.

(J.A. 303-04) “One cannot help but conclude,” as the

Tennessee Court of Criminal Appeals stated, “that in-

troduction of this unedited confession was merely a trans-

parent attempt to condemn defendant from another

source without allowing the veracity of the source or the

confession to be tested by cross-examination.” 674

S.W.2d at 745-46.

In sum, the instant case presents a clear Bruton viola-

tion: introduction of an unredacted confession by an ab-

sent alleged accomplice, which gravely incriminated the

accused. The State’s assertions that Street in effect

“waived” his right to confrontation" and that only admis-

sion of Peele’s entire confession at trial could unmask

Street’s purported lies, find no support in law or in fact.

The “sword-shield” decisions of this Court have never

gone so far as to sanction impeachment through evidence

as inherently unreliable as a co-conspirator’s incriminat-

4“ The State, in passing, mentions that at one point in its case in

chief respondent sought to have Peele’s statement received in evi-

dence. Brief for Petitioner at 5; see also Amicus Curiae Brief for the

United States at 17 n.12. Clearly, Street’s unsuccessful attempt did

not “open the door” to its later admission as a matter of state law,

since the Tennessee Court of Criminal Appeals held for respondent.

Nor as a matter of federal law should that circumstance affect the

outcome here. As the Solicitor General concedes, at that stage Street

“presumably still expected ... that Peele would be called as a

prosecution witness,” id., in which event respondent had nothing to

lose by offering the statement himself, for whatever it was worth on

the “parroting” defense. For if Peele, as could be anticipated, re-

peated his incriminating story on the stand, the introduction of the

earlier confession would not have prejudiced Street. Naturally, when

it became clear ‘hat the State wanted to use only Peele’s confession,

not Peele himself, Street could reasonably decide that the balance of

advantage lay in asserting his confrontation rights so as to exclude

the devastating statement. Cf. Nelson v. O’Neil, 402 U.S. 622 (1971);

California v. Green, 399 U.S. 149 (1970) (no confrontation problem

exists where prior statement of declarant-witness is admitted at

trial).

ing extrajudicial confession to the authorities: a con-

fession immune from traditional adversarial testing. Un-

like the cases where a defendant’s perjury could be re-

vealed by exposure of his own prior inconsistent state-

ments or conduct, by tangible evidence, or by declara-

tions containing some other guarantee of veracity, here

the admission of Peele’s confession did not necessarily

unveil perjury. At best, the evidence provided the jury

with a possible alternate version of the events leading up

to Street’s statement. Indeed, the discrepancies between

Street’s and Peele’s confessions are wholly consistent

with Street’s assertion that, in addition to being forced to

parrot Peele’s declarations, he deliberately concocted

portions of his own statement. (J.A. 195, 212, 218-221)

See Brief for Petitioner at 18 n.9."

Moreover, as has been amply demonstrated (see supra

at pp. 24-28), several other viable methods of attacking

Street’s testimony would not have entailed so sweeping

an incursion on his constitutional right to confront the

witnesses against him. Armed with the favorable testi-

mony of three law enforcement officers, the State simply

had no need (assuming need could ever provide a justifica-

tion) to run roughshod over Street.

Accordingly, adoption of the State’s argument would

not advance the search for truth. Instead, it would penal-

ize this respondent’s—and also chill future defendants’ —

invocation of the right to testify by gratuitously depriving

Street, as well as others in his position, of the vital protec-

tion of confrontation.

‘5 The fact that Street never contended that the Sheriff “fed” him

Peele’s whole confession reduced the value to the State of detailing

each divergence between the two statements.

III. Respondent's Conviction Cannot Be Upheld Under

Either The Doctrines Of “Interlocking Confessions” Or

Harmless Error.

The Tennessee Court of Criminal Appeals correctly

declined to sustain Street’s conviction by applying either

the doctrine of “interlocking confessions” or the doctrine

of harmless error. The court suggested the doctrine of

interlocking confessions applies only to joint trials where

“policy arguments favoring judicial economy and efficien-

cy allow admission against the confessor.” State v. Street,

674 S.W.2d 741, 746 (1984). In any event, the court held,

the statements of Peele and Street did not, as a matter of

Tennessee law, “interlock.” Jd. Finally, the court re-

jected the argument that Street’s guilt had been so over-

whelmingly proved as to make it clear beyond a reason-

able doubt that the Bruton violation had had no effect on

the verdict, and was therefore harmless. Analysis of the

relevant authority amply confirms the conclusions of the

court below. As an initial matter, however, this Court

lacks jurisdiction to overturn that court’s interlocking

confession holding since it plainly rests on an adequate

and independent state ground.

A. Since The Tennessee Court Of Appeals Relied On Ten-

nessee Law In Finding Peele's And Street's Statements

To Be Non-Interlocking, This Court Has No Jurisdic-

tion To Review The Issue.

In the recent opinion of Michigan v. Long, —. U.S.

——., 103 S.Ct. 349 (1983), the Court established the

governing framework for analyzing claims that a state

court decision is based, either in whole or in part, on an

adequate and independent state ground. Speaking

See Parker v. Randolph, 442 U.S. 62 (1979) (plurality decision).

See infra at pp. 34-42 for discussion of that doctrine and the difficulty

of ascertaining its meaning and its limits.

through Justice O’Connor, the Court reaffirmed its com-

mitment to the basic principle that where such a ground

exists, the Court’s “jurisdiction fails.” 103 S.Ct. at 3474

n.4. The “adequate ground” doctrine does not apply, how-

ere

on federal law, or to be interwoven with

aniiiien dalelandinaiinenanaiaationeed

any possible state law ground is not clear from the face of

the record.” Id. at 3476. Thus, in Long, where the Michi-

gan court's opinion did not cite “a single state case” to

support its holding that the car search in question “was

unconstitutional” and its references to the state constitu-

tion did not indieate that the decision “rested on grounds

. .. independent from” that court’s “interpretation of

federal law,” this Court rejected the defendant’s jurisdic-

tional argument. /d. at 3477-78.

Here, by contrast, in refusing to credit the State’s

cluded application of Bruton to vitiate Street’s convic-

tion, the Tennessee Court of Criminal Appeals not only

cited but also clearly relied primarily, if not wholly, on

Tennessee law." The sole federal case mentioned by the

court in this connection (except Bruton) was this Court’s

plurality decision in Parker v. Randolph, 442 U.S. 62

(1979).

In Parker, four members of the Court, with four others

in disagreement, for the first time announced an approach

to “interlocking confessions” by co-defendants other than

the traditional inquiry into harmless error. /d. at 72-76."

‘7 In his brief to the Tennessee Court of Criminal Appeals, Street

alleged a violation of both the sixth amendment and Tennessee Con-

stitution art. 1, sec. 9 (containing, inter alia, state equivalent of

confrontation clause). Brief for Appellant, State v. Street, at 5.

“The Chief Justice as well as Justice Stewart and White joined

Justice Rehnquist's opinion for the plurality on this point. Justices

Cf. Brown v. United Staies, 411 U.S. 223 (1973); Schnebdle

v. Florida, 405 U.S. 427 (1972); Harrington v. Califor-

nia, 395 U.S. 250 (1969) (all cases dealing with Bruton

violations under the “harmless error” rubric). Tennessee,

however, like some other jurisdictions, had already

adopted its own version of an interlocking confession

exception to the Bruton rule a number of years before

Parker, beginning with the case of O'Neil v. State, 455

S.W.2d 597 (Tenn. Crim. App. 1970). See State v. Elliot,

524 S.W.2d 473, 477-78 (Tenn. 1975) (citing inter alia,

O'Neil). See generally Stanbridge v. Zelker, 514 F.2d 45,

49-50 (2d Cir. 1975), cert. denied, 423 U.S. 872 (1975);

Metropolis v. Turner, 437 F.2d 207, 208 (10th Cir. 1971);

Rachel v. Commonwealth, 523 S.W.2d 395, 399-400 (Ky.

App. 1975) (all recognizing an interlocking —

prior to Parker). Indeed, in Parker, the

eFiapemaatahesmmanbatmenedteieed tana

in reliance upon O'Neil and its progeny. Appendix to

Briefs for Petitioners and Respondents, Parker v. Ran-

dolph, at 227-46.

Significantly, althoug! ii enineniby that

the State placed heavy reliance on the doctrine “set forth

in Parker v. Randolph,” the court below prefaced its

substantive discussion of the possible applicability here of

the interlock ey re tom with the

qualifying words: “In Tennessee . . .” 674 S.W.2d at 746.

The opinion then quoted at some length from the leading

Tennessee case on the subject, State v. Elliot, 524

S.W.2d 473 (Tenn. 1975), analyzing the present facts in

terms of Elliot and another Tennessee decision, State v.

Robinson, 622 S.W.2d 62 (Tenn. Crim. App. 1980).

Stevens, Brennan and Marshall in dissent, and Justice Blackmun

concurring in the result, declined to create a separate doctrine for

confessions that “interlock.” Justice Powell took no part in the con-

sideration or discussion of the case.

With respect to the issue of interlock, Elliot cited only

state precedent. Moreover, none of the reported post-

Parker cases on this subject in Tennessee, including

Robinson, refer to any federal cases except, occasionally,

to Parker itself. These references, however, are limited

to discussion of the State’s contentions or the con-

stitutionality, in general terms, of an interlocking con-

fession exception. Furthermore, no detailed analysis of

what types of statements, in particular circumstances, do

or do not interlock is based in any way on Parker. See

State v. Simon, 635 S. W.2d 498, 504 (Tenn. 1982); State v.

Street, 674 S.W.2d 741, 746 (Tenn. Crim. App. 1984);

State v. Burtis, 664 S.W.2d 305 (Tenn. Crim. App. 1983);

State v. Painter, 614 S.W.2d 86, 89 (Tenn. Crim. App.

1981); see also State v. Robinson, 622 S.W.2d at 71.

In the language of Long, therefore, not only did the

Tennessee court’s decision not “rest primarily” (or, in-

deed, at all) on federal law, but also it was in no way

“interwoven with the federal law.” 103 S.Ct. at 3476.

Furthermore, because the interlocking confession doc-

trine qualifies a defendant’s rights, the Tennessee case

plainly have not been shaped by any perceived compul-

sion of “federal constitutional considerations.” Jd. at 3474

n.4. Rather, the opinion of the court below rests on inde-

pendent and adequate state grounds. For that reason

alone, this Court must decline to disturb the Tennessee

Court of Criminal Appeals’s holding that Peele’s state-

ment did not so “interlock” with Street’s as to bar the

application of Bruton.

B. The Court Should Decline To Adopt The Parker Plural-

ity’s Exception To Bruton For Interlocking Con-

fessions, Especially Where—As In Street’s Case And

Not In Parker—The Defendant Is Being Tried Alone

And Introduces Evidence To Attack His Confession.

Instead, The Court Should Continue To Adhere To Tra-

ditional Harmless Error Analysis.

in Parker, the non-testifying co-defendants had each

confessed to their role in the crime. In upholding their

convictions, the plurality reasoned that in the situation

where there are “interlocking confessions” the co-

defendants’ incriminating statements will seldom be so

“devastating,” nor limiting instructions so inadequate, as

to call for preclusion under Bruton. Writing for the

Court, Justice Rehnquist stated that “admission of inter-

locking confessions with proper limiting instructions con-

forms to the requirements of the Sixth and Fourteenth

Amendments to the United States Constitution.” 442

U.S. 73-76, citing Bruton. The three dissenters, in an

opinion by Justice Stevens, as well as Justice Blackmun,

who authored a separate opinion, all departed from the

plurality’s interlocking confession analysis. Agreeing

that the case should be subjected to ordinary “harmless

error” scrutiny, they differed only in their conclusions

whether any Bruton violation had in fact affected the

verdict.

Although many of the lower courts have apparently

accepted the Parker approach,” respondent urges that

the Court decline to extend majority endorsement to that

decision. The exception for interlocking confessions in-

'* Some courts have, however, rejected the plurality’s reasoning in

Parker. See United States v. Parker, 622 F.2d 298 (8th Cir.), cert.

denied sub nom. Ward v. United States, 449 U.S. 851 (1980); Earhart

v. State, 48 Md. App. 695, 429 A.2d 557 (1981); State v. Rodriguez,

226 Kan. 558, 601 P.2d 686 (1979).

troduces confusion into the law, with a consequent threat

to the safeguard embodied in Bruton. Furthermore,

there is little countervailing benefit since harmless error

analysis under cases like Harrington v. California, 395

U.S. 250 (1969), serves any legitimate purpose sought to

be achieved by an interlocking confession exception. In

fact, Justices Blackmun, Stevens, Brennan, and Mar-

shall, in their Parker opinions have already given all or

most of the reasons for refusing to create an idiosyncratic

loophole for cases, otherwise clearly governed by Bruton

and the Harrington line, where the defendant himself has

made an inculpatory statement.

For one thing, as evidenced by the wide diversity in

lower court approaches to the interlocking confession

doctrine, there exists very little agreement about the

degree to which the admission must “interlock” before

Bruton is deemed inapplicable. Some courts, for ex-

ample, have required only that the confessions be “sub-

stantially similar” (United States v. Spinks, 470 F.2d 64,

66 (7th Cir.), cert. denied, 409 U.S. 1911 (1972); see Tami-

lio v. Fogg, 713 F.2d 18, 20-21 (2d Cir. 1983), cert. denied,

___ U.S. —___, 104 S.Ct. 706 (1984)) or do not contradict

each other. See, e.g., Jones v. State, 227 So.2d 326, 328

(Fla. Dist. Ct. App. 1969).

Other courts have limited application of the doctrine to

situations in which the co-defendant’s confession does not

implicate the defendant to any greater extent than his or

her own statements. E..g., Rachel v. Commonwealth, 523

S.W.2d 395, 399-400 (Ky. App. 1975). Indeed, this is the

law in Tennessee. State v. Elliot, 524 S.W.2d 473, 477-78

(Tenn. 1975). Still other courts have required that the

confessions “dovetail in all the particulars.” Metropolis v.

Turner, 437 F.2d 207, 208 (10th Cir. 1971). The Parker

plurality, on its own part, “simply assume[d] the inter-

— eee

lock” in that case, without determining “what an ‘inter-

lock’ is.” 442 U.S. at 80 (Blackmun, J., concurring in

part); id. at 82 n.2 (Stevens, J., dissenting).

It perhaps is not surprising, therefore, that the Court

when first confronted with the “interlock” situation did

not embrace the exception by a majority or seek to define

the term “interlocking confessions.” Regardless, fashion-

ing a definition in this case would simply risk replacing a

vague and uncertain doctrine with law that, while con-

ceivably clearer, would provide a poor substitute for Bru-

ton’s protection of defendants’ confrontation rights which

is as sensibly and traditionally qualified as the harmless

error principle. On the one hand, should the Court adopt a

weak “similarity” or “substantial consistency” test like

the one apparently urged by the State (Brief for Petition-

er at 21-22), Bruton will be “seriously undercut”—and for

no good reason. 442 U.S. at 82-83 (Stevens, J., dissent-

ing). As the Parker dissent aptly pointed out, there is no

basis for believing that “the jury’s ability to disregard a

co-defendant’s inadmissible and highly prejudicial con-

fession is invariably increased by the existence of a

corroborating statement by the defendant.” Jd. at 84. If

anything, intuition suggests the very opposite is likely:

that jurors will allow the accomplice’s confession to infect

their determination of a confessing defendant’s guilt or

innocence because they will regard each set of admissions

as reinforcing each other.

Further, although in some circumstances the in-

criminating statements of a co-defendant will not “be of

the ‘devastating’ character referred to in Bruton when

the incriminated defendant has admitted his own guilt,”

in other situations the non-testifying confessor’s state-

ment may, indeed, lend “ ‘substantial, perhaps even cri-

tical, weight to the Government’s case.’ ” Parker v. Ran-

dolph, 442 U.S. at 72-73, quoting Bruton v. United

States, 391 U.S. at 128. Whatever the exact meaning of

“interlock,” common sense and experience support the

insight that few, if any, interlocking confessions will

harmonize wholly. The two confessions may interlock in

part only. Or they may cover only a portion of the events

in issue at trial. In addition, “{a]lthough two interlocking

confessions may not be internally inconsistent, one may

go far beyond the other in implicating the confessor’s

co-defendant”—as the present set of facts well illus-

trates. 442 U.S. at 79 (Blackmun, J., concurring). To the

extent that this Court permits a co-defendant’s similar

but not identical confession to be received at a confessing

defendant’s trial, that defendant will incur the very pre}j-

udice the Bruton rule was designed to avoid.

On the other hand, if the Court should espouse a strict

test of what constitutes interlocking confessions—one

that reflects more fully the letter and spirit of Bruton—it

is far from clear how the interlock issue would relate to

the question of harmless error. At best, it appears, the

inquiries would merge, thus rendering the interlock

standard superfluous. Alternatively, the trial courts

would face a two-step determination (first interlock, then

harmless error) which would only lend itself to lack of

clarity and inefficiency. 442 U.S. at 80-81 (Blackmun, J.,

concurring). At worst, to avoid such duplication, a judge

may simply “throw up his hands” and decide that the

statements interlocked where the issue was doubtful.

That result would not only curtail seriously the accused’s

right of confrontation but would also set aside the gener-

ally protective approach to constitutional safeguards

embodied in Chapman v. California, 386 U.S. 18 (1967)

(to avert reversal, constitutional error must be “harmless

beyond a reasonable doubt”), and this Court’s other

harmless error decisions. Jd. Cf. Harrington v. Califor-

nia, 395 U.S. 250 (1969) (the untainted evidence must be

“overwhelming”).

In sum, this Court should adhere to the view shared by

the dissent (Justices Stevens, Brennan, and Marshall)

and Justice Blackmun in Parker:

I would not adopt a rigid per se rule that forecloses a

court from walking all the circumstances in order to

determine whether the defendant in fact was unfair-

ly prejudiced by the admission of even an interlock-

ing confession. Where he was unfairly prejudiced,

the mere fact that prejudice was caused “ an inter-

locking confession ought not to override the impor-

tant interests that the confrontation clause protects.

442 U.S. at 79 (Blackmun, J., concurring). But regardless

of the overall approach the Court opts to follow, it plainly

should not adopt an exception to Bruton for interlocking

confessions in the case of a lone defendant, like Street,

who takes the stand in order to repudiate his own admis-

sions.

_ First, any policy considerations supporting introduc-

tion of co-defendants’ confessions incriminating other de-

fendants do not apply outside the context of joint trials:

the setting in both Bruton and Parker. As the Tennessee

Court of Criminal Appeals noted, considerations of “judi-

cial economy and efficiency” militate in favor of using such

confessions where, for these same practical reasons, the

State is proceeding against several defendants in one

proceeding and each defendant is necessarily “unavail-

able” for confrontation by the others unless he freely

chooses to testify. State v. Street, 674 S.W.2d 741, 746

(Tenn. Crim. App. 1984).

The instant case involved no joint trial dilemma. Peele

was not “unavailable” for purposes of confrontation.

Moreover, the prosecution in Street had already accom-

plished what the prosecution in Parker was seeking:

admission of the confession of the statement-maker

against the statement-maker. Street’s statements had

already been entered into evidence when the prosecution

was also allowed to read Peele’s entire confession to the

jury.

This distinction is critical when reviewing the State’s

assertion that the jury was not faced with an “overwhelm-

ing task” similar to that presented in Bruton and Douglas

regarding the ability to ignore an incriminating con-

fession. Brief for Petitioner at 16. In Bruton, Douglas,

and Parker the jury was being asked to apply an extra-

judicial confession against the statement-maker only. The

“mental gymnastic” required of the jury was obedience

of the admonition not to apply the accomplice’s confession

to the defendant. In the instant situation, though, the

jury as specifically invited to employ Peele’s confession

against Street. Indeed, they were asked to first analyze

its contents and then gauge Street’s credibility. It is

submitted that, once the jury is asked to apply the extra-

judicial statements against the non-statement maker, the

ability to “segregate evidence into separate intellectual

boxes,” Bruton, 391 U.S. at 131, is an overwhelming task

despite the issuance of cautionary limiting instructions.

This is particularly true when there is only one defendant

against whom the jury can apply the incriminating con-

fession.

Second, the Court should not broadly embrace the

Parker plurality decision so that it applies to instances,

like the present case, where the defendant introduces

evidence repudiating his earlier confession and offers a

defense to the charges. Indeed, Parker itself does not

appear to sanction application of an interlocking con-

® In Nash v. United States, 54 F.2d 1006, 1007 (2d Cir. 1932) Judge

Learned Hand criticized the proposition that a jury could engage in

the “mental gymnastic” of disregarding inadmissible hearsay simply

because they are instructed to do so.

fession exception under these circumstances. Justice

Rehnquist observed that the right to confront and cross-

examine adverse witnesses would likely prove of little

value to a person “whose own admission of guilt stands

before the jury unchallenged.” 442 U.S. at 73 (emphasis

added). Such a defendant, apparently, is unlikely to suf-

fer the type of “devastation” envisioned by Bruton from

the introduction of his alleged accomplice’s statements.

Id.

Here, in contrast to the Parker defendants, Street took

the stand and testified at length to contest the validity of

his confession and to assert an alibi defense. Different as

it is factually, this case should also be legally distin-

guished from the situation where the defendant permits

his own confession to be spread before the jury without

attacking its validity or substance, yet seeks only to

protest the admission of his accomplice’s incriminating

statements.

First, Street challenged the voluntariness and reliabil-

ity of his confession directly through his own testimony

and indirectly through the presentation of thirteen wit-

nesses who corroborated his alibi defense. (J.A. 86-160)

Therefore, Street demonstrated a need to cross-examine

the absent Peele in an effort to “shake” his accuser’s

story. Second, Street’s repudiation of his own statement

reduced Peele’s confession to its presumptively “suspect”

status since it no longer stood corroborated by the de-

fendant. Cf. Parker v. Randolph, 442 U.S. at 73. Fur-

ther, the fact that Street put on an alibi defense, coupled

with a broadside attack on his prior admissions, necessar-

ily rendered Peele’s confession much more “devastating”

than the unchallenged co-defendants’ confessions at issue

in Parker.*: As previously observed, Peele’s confession

served as a substantive rebuttal of Street’s alibi defense

and constituted significant corroboration of the State’s

theory of the case.

Accordingly, the Court should decline the State’s in-

vitation to “clarify” the interlocking confession doctrine

of the Parker plurality. Brief for Petitioner at 20. As has

been convincingly shown, the adoption of this open-ended

exception to the rule of Bruton threatens defendants’

legitimate rights of confrontation without producing any

corresponding benefit, in terms of improving or

rationalizing the law in this area or even easing its admin-

istration. The Court should, therefore, proceed to ana-

lyze the present case under the harmless error rule.

C. The Error In Admitting Peele’s Unredacted Confession

Was Not Harmless, Nor Did Peele’s And Street’s Con-

fessions Interlock Sufficiently To Obviate The Bruton

Error.

The Tennessee Court of Criminal Appeals expressly

held that the confrontation violation here did not amount

to harmless error. State v. Street, 674 S.W.2d 741, 747

(Tenn. Crim. App. 1984). Interestingly, the State does

not dispute this holding. This Court, moreover, should be

loathe to second-guess such primarily factual findings by

lower courts. See generaliy R. STERN & E. GRESS-

MAN, SUPREME COURT PRACTICE § 3.34 at 245

(5th ed. 1978); cf. id. § 5.15, at 370-73 (certiorari may be

21The dissenters in Parker disapproved the suggestion that a

defendant’s exercise of his fifth amendment privilege not to testify

strengthened the justification for adoption of an interlocking con-

fession doctrine. Respondent agrees with this approach. Neverthe-

less, if any distinctions are to be drawn, a defendant in Street’s

position presents the most compelling case for refusing to apply an

“interlock” exception.

ee oe 8 ee

deemed improvidently granted when the case turns on

questions of importance only to the litigants).

As previously noted, the Tennessee court resolved the

“interlock” issue in favor of Street on state law grounds

and therefore cannot be reversed on that issue. Even

upon independent examination, however, the Court

should conclude that neither the harmless error nor the

interlocking confession doctrine can be used to sustain

Street’s conviction. The same considerations support the

inapplicability of both doctrines.”

In reliance upon Tennessee precedent, the Court of

Criminal Appeals held that even if the interlock exception

applied outside the joint trial setting, it did not cover the

case of Street, whose alleged accomplice made him a

“much more principal actor” in the crime than did his own

admissions. 674 S.W.2d at 746. According to that court,

where the

confession of one non-testifying codefendant con-

tradicts, repudiates, or adds to material statements

in the confession of the other non-testifying

codefendant, so as to expose the latter to an increased

risk of conviction or to an increase in the degree of

the offense with correspondingly greater punish-

2 Notably, in all three cases in which this Court held that a Bruton

error was harmless, it did not overturn the opposite findings of a

lower court. See Brown v. United States, 411 U.S. 223 (1973); Har-

rington v. California, 395 U.S. 250 (1969); cf. Schneble v. Florida,

405 U.S. 427 (1972), affirming 215 So. 2d 611 (Fla. 1968) (Florida

court found no error).

*%The State urges adoption and application of the interlocking

confession doctrine herein because of the remarkable similarities

between the confessions. Curiously, however, the State concurrent-

ly maintains that the confessions are so dissimilar that admission of

Peele’s statement was necessary lest Street be allowed to perjure

himself with impunity.

ment, the latter codefendant is entitled to test the

veracity of the statements in the confession of his

codefendant. A denial to him of his right through the

failure of his codefendant to take the stand brings the

Bruton rule into play.

674 S.W.2d at 746, quoting State v. Elliot, 524 S.W.2d

473, 478 (Tenn. 1975) (emphasis added). Unquestionably,

Peele’s confession added to Street’s in a way that in-

creased the latter’s risk of being convicted of murder in

the first degree.

Peele’s confession portrayed Street as a principal actor

and as a willing participant in the killing. Street’s con-

fession, on the other hand, suggested that he was not

willing to “whip” the victim. (J.A. 354) Furthermore, as

noted by the Court of Criminal Appeals, Street stated

that he kept telling Peele to leave but that Peele insisted

on the hanging. 674 S.W.2d at 746. Street claimed not to

participate in the hanging but Peele’s confession in-

dicated that Street helped place the rope around Tester’s

neck and also helped lift the victim off the truck’s tailgate.

(J.A. 302) Plainly, Peele’s confession depicted Street

much less favorably than Street’s own contested state-

ment. Furthermore, it added significantly to the risk that

Street would be convicted because it was the most prom-

inent evidence possessed by the State which was

corroborative of Street’s declarations.

Moreover, in the words of the Tennessee Court of

Criminal Appeals:

Peele’s statement not only implicated the defendant,

it alone could establish all essential elements of the

homicide, had the jury chosen to believe defendant’s

confessions were in fact involuntary.

State v. Street, 674 S.W.2d at 747. Hence, under the

Tennessee test for interlocking confessions (which this

Court should adopt if it chooses to recognize such an

exception), the introduction of Street’s admission did not

dispense with the need to exclude Peele’s more damning

—— because the latter did not “interlock” with the

ormer.

Without Peele’s confession, the State lacked the over-

whelming evidence of guilt necessary for reversal on the

basis of harmless error. The State’s case rested primarily

on Street’s statements (Brief for Petitior.er at 3), but this

evidence was heavily contested by both the alibi witnes-

ses and Street’s own testimony. Cf. Brown v. United

States, 411 U.S. 223 (1973); Harrington v. California,

395 U.S. 250 (1969) (in both cases, eyewitnesses placed

the respective defendants at the scene of the crime); see

also Schneble v. Florida, 405 U.S. 427 (1972) (the co-

defendant’s statement was only mildly incriminating,

corroborating some of the details of the defendant’s own

confession).

Street’s claim is simple and compelling. Bruton pre-

cluded the introduction of the absent, unreliable Peele’s

confession incriminating Street. That confession did not

interlock with Street’s own admissions under Tennessee

law, a circumstance that should be dispositive in Street’s

favor on this issue. In any event, the statements should

not, in any event, be held interlocking as a federal matter

if the Court elects to adopt the plurality appraoch in

Parker v. Randolph, 442 U.S. 62 (1979). Lastly, by no

stretch of the imagination could the error in receiving

Peele’s confession be deemed harmless. On the contrary,

it served as the State’s most powerful attack on Street’s

alibi defense. Its author, however, unlike Street, was

immune from cross-examination.

CONCLUSION

The judgment of the Tennessee Court of Criminal

Appeals should be affirmed.

Respectfully submitted,

STUART HAMPTON

Counsel of Record

(Ajpointed by this Court)

630 Elk Avenue

Elizabethton, Tennessee 37643

(615) 543-6000

LANCE J. ROGERS

310 Hedge Street

Charlottesville, Virginia 22901

VIVIAN BERGER

435 W. 116th Street

New York, New York 10027

Counsel for Respondent

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