Petition for Writ of Certiorari — Henderson v. Favre

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IN THE MICHAEL RODAK, JR.,CL

Supreme Court of the United States

OCTOBER TERM, 1972

No. @2-151

C. MURRAY HENDERSON, Warden,

Louisiana State Penitentiary,

Petitioner,

versus

ROBERT FAVRE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Sy William J. Guste, Jr.,

Ss Attorney General Of Louisiana

Pa Jim Garrison,

istrict Attorney For [he

© District A For Th

a Parish Of Orleans

Louise Korns,

Assistant District Attorney For

The Parish Of Orleans

LORIE LAY LEME TP

—

INDEX

Page

Report of the Proceedings Below .................. 1

CO Rr rrr ere rr 1

I cee enn cenveedoceonsens 2

I OE I I nie ec ccc na ebeedvenyscneaws 2

Argument

I. Officer Williams’ Testimony Contains

Neither Hearsay Nor an Out-of-Court

ES os cy katy aan cea wrt Ree R ES 5

II. If Officer Williams’ Testimony Contains

Hearsay, It Is Not of Constitutional Di-

a AKL ea oe ee ME ec ho 9 Hs 7

III. Any Error Which Occurred Was Harm-

less Beyond a Reasonable Doubt .......... 8

Reasons for Granting the Writ .................... 11

Se snare ane yr cuir Wikkd sige Xk SH cs We OEM Cee ee 12

cco ns ithe We land ke CO ee ET § hI 14

ae Sg eee OS ewe LR Suid ea Pe Fee oe AO OR la

TABLE OF AUTHORITIES

Cases:

Cohen v. United States, 363 F. 2d 321 (5th Cir. 1966) .. 12

Dutton v. Evans, 400 U.S. 74 (1970) .................. 7

Favre v. Henderson, 318 F. Supp. 1384 .............. 4

Favre v. Henderson, 444 F.2d 127 .................... 5

Guy v. Donald, 203 U.S. 399, 406 (1906) .............. r

ii

AUTHORITIES (Continued)

Johnson v. Louisiana, ____ U.S. ____, decided May

EE cs a ae ale ae ae ee ten hot bw es

State v. Favre, 255 La. 690, 232 So. 2d 479 (1970) ..

Statutes:

Rie, Ga Ek, Gs GN as ek pecs

NE OS ee re eT Te reer e ee

ke remarry ter ee

i EE hgh cack ons SIA ee Ka CE Tes

Miscellaneous:

Doub, The Case Against Modern Federal Habeas

Corpus, 67 A.B.AJ. S26 (1971) ..............-

Friendly, Is Innocence Irrelevant? Collateral At-

tack on Criminal Judgments, 38 Chi. L. Rev.

ee eer eee ae Pn roe pions che

Wharton’s Criminal Evidence, v. I, pp. 571-577,

See. BOF CA OF. TRUE) one eee sess,

SMELT APL MEAN IE LIS SOS INI PRT NE aes tM

—

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1972

C. MURRAY HENDERSON, Warden,

Louisiana State Penitentiary,

Petitioner,

versus

ROBERT FAVRE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPORT OF THE PROCEEDINGS BELOW

Robert Favre v. C. Murray Henderson, No. 71-3294

on the docket of the United States Court of Appeals

for the Fifth Circuit, decided June 13, 1972 (unreport-

ed).

Favre v. Henderson, 444 F.2d 127 (5th Cir. 1971)

Favre v. Henderson, 318 F.Supp. 1384 (E.D. La. 1970)

JURISDICTIONAL GROUNDS

The Fifth Circuit Court of Appeals handed down its

decision in this Habeas Corpus case, affirming the Dis-

trict Court judgment, on June 13, 1972.

—

2

The Fifth Circuit Court of Appeals refused a rehear-

ing in this proceeding on June 29, 1972.

The statutory provisions relied on to confer on this

Court jurisdiction to review the judgment in question

by writ of certiorari are 28 U.S.C. § 1254 and 28 U.S.C.

§ 2101.

QUESTIONS FOR REVIEW

a

Whether Officer Williams’ testimony contains either

hearsay or an out-of-court declaration.

II.

If Officer Williams’ testimony contains hearsay,

whether this hearsay is of constitutional dimensions.

III.

Whether any error which may have occurred was

harmless.

STATEMENT OF THE CASE

Shortly after 11 p.m. on the night of November 17,

1966, Andrew P. Alfonso, Felix Ruiz, Horace Ruiz, and

the barmaid, Muriel Langston, were in the Ruiz Broth-

ers’ Barroom at 800 France Street in New Orleans

when a man walked in, ordered a beer, drank a few

sips, and walked out. A few moments later two young

LE LAN TTR INE LLY RAL NERS SAPIENS 2 RIUL I f

Pe

men entered the bar. One of these men jumped behind

the counter to get at the cash register, and the other

one advancea towards the occupants of the bar with

a drawn gun. From the cash register and the persons

present the robbers got approximately $1700.00. Tr. 39-

43. After the two holdup men left the bar the police

were Summoned and given a description of the crim-

inals — that is, that the men were around 25 years

old; that the one who jumped the counter and opened

the cash register was about 5 feet 4 inches tall, and

was very fair, with dark hair, and weighed approxi-

mately 135 pounds; and that the fellow who kept the

persons present covered with his gun had reddish hair.

Tr. 44-45.

On December 2, 1966, following a tip from 2 confi-

dential informers concerning Robert Favre, respond-

ent herein, and a Walter Holly, Officer Frederick Wil-

liams arrested Robert Favre as Favre and a woman

companion were attempting to elude the police in their

car, and advised respondent that he was under arrest

for the robbery of Ruiz’ Bar. Tr. 94-103.

On December 15, 1966, Robert Favre and Walter

Holly were charged in a bill of information with rob-

bing Muriel Langston of $2,564.00.2 Tr. 10; see Ar‘.

'The prefix Tr. precedes references to pages in the transcipt of the

Louisiana trial proceedings, which has been filed as an exhibit

in this case.

2The owner of the bar, Horace Ruiz, testified at the trial that on

the night of the robbery he had told the police that he thought

about $2,500.00 had been taken, but that when he checked the

register and his books the next day he decided that the men

had only taken about $1700.00. Tr. 42.

x

y

x eye.

7 “

——

4

64, La. Crim. Code, Both Favre and Holly pleaded not

guilty. Tr. 1.

On May 24, 1967, Walter Holly, while awaiting trial,

escaped from Parish Prison.

Robert Favre was tried separately, found to be guilty

as charged, and sentenced to serve 40 years at hard

labor in the Louisiana State Penitentiary as a multiple

offender. See La. R.S. 15:529.1 He appealed to the Lou-

isiana Supreme Court, arguing that the trial court had

erred in allowing into evidence certain allegedly inad-

missible hearsay testimony concerning informants by

Officer Frederick Williams. The Louisiana Supreme

Court affirmed the convictic.., pointing out that the

officer did not testify as to what the informants had

told him and that the rights of the accused had not

been prejudiced. State v. Favre, 255 La. 690, 232 So.2d

479 (1970).

On May 2, 1970 Favre filed a Petition For Writ of

Habeas Corpus in the United States District Court,

Eastern District of Louisiana, New Orleans Division,

based on the sole contention that he had been denied

confrontation with an adverse witness, the informant

referred to by Officer Williams. The State of Louisiana

filed an Opposition to the Petition For Writ of Habeas

Corpus and tendered to the United States District Court

the transcript of the Louisiana trial proceedings. On

November 13, 1970 the District Court granted Favre’s

Petition For Habeas Corpus, allowing Louisiana sixty

days to appeal the decision or retry the Petitioner.

Favre v. Henderson, 318 F.Supp. 1384.

mu agave tr PPL RLY ALE Gy A GN ESE IRIE NM, WET AY ETT eB .

a

5

The State of Louisiana appealed to the Fifth Circuit

Court of Appeals, which on June 11, 1971, vacated the

judgment of the district court and remanded the cause

to the district court for a determination of whether

the admission of Officer Williams’ testimony, although

erroneous, was merely cumulative and harmless.

Favre v. Henderson, 444 F.2d 127.

On the remand, in an unreported opinion, the district

court held that the admission of Officer Williams’ tes-

timony was not harmless error, The State of Louisiana

again appealed to the Fifth Circuit Court of Appeals.

The case was argued, and on June 13, 1972, the district

court's order granting Favre’s application for a Writ

of Habeas Corpus was affirmed. Judge Clark dissented

on the ground that any error which occurred from the

admission of Officer Williams’ testimony was harm-

less beyond a doubt. A rehearing was denied on June

29, 1972.

The State of Louisiana is now applying to this Honor-

able Court for a Writ of Certiorari to review the judg-

ments of the courts below.

ARGUMENT

I

Officer Williams’ Testimony Contains Neither

Hearsay Nor An Out-Of-Court Declaration.

Officer Frederick Williams’ testimony here at issue

contains no hearsay. In fact, Williams was expressly

—

warned by the State’s attorney that “I am not inter-

ested in anything that anyone may or may not have

told you. However, I do ask you what was the source

of the information which you had at that time.” R. 97.

6

In an effort to put this case into a hearsay category,

the majority opinion in the Fifth Circuit had to invent

the hearsay, by dwelling at length on the “logical in-

ference from the officer’s testimony.”

As this Court knows, hearsay evidence is testimony

a witness offers in court which is not based on his

own knowledge, but is merely a repetition of what he

has been told, and which is offered as proof of the

truth of the matter he is repeating. Wharton’s Crim-

inal Evidence, v. I, pp. 571-577, sec. 249 (12th ed. 1955).

Everything testified to by Officer Williams in the

instant case was based on his own knowledge. At no

time did this witness repeat anything that the inform-

ers had told him.

Officer Williams’ testimony herein that the informa-

tion on which he arrested Favre came from reliable

informers who had given information leading to con-

viction in the past only served to establish probable

cause for arrest before the jury.

How can evidence of probable cause for arrest con-

stitute reversible error? At the beginning of every

criminal] trial the indictment or bill of information

charging the crime is read to the jury. This alone in-

forms the jury that probable cause for arrest existed.

PEA SRST TEP TT HT TRA em

If Officer Williams’ Testimony Contains Hearsay,

It Is Not Of Constitutional Dimension

Even if we follow the example of the majority opin-

ion in the Fifth Circuit, and infer an out-of-court state-

ment by the informers of Favre’s guilt in the instant

case, such hearsay is not of constitutional dimension.

See Dutton v. Evans, 400 U.S. 74 (1970). In Dutton a

witness named Shaw testified categorically, over ob-

jection by the defense that it was hearsay, that the

co-consiprator of the accused (which co-conspira-

tor was not on trial and did not testify in the case)

had said to Shaw, “If it hadn’t been for that dirty son-

of-a-bitch Alex Evans, we wouldn’t be in this now.”

Of course, in Dutton there were more prosecution wit-

nesses than in the instant case, but also, the hearsay

in Dutton was blatant and unmistakable, and not the

product of a nebulous inference as in the present pro-

ceeding. Thus the ratio of prosecutive evidence to hear-

say in the 2 cases is about the same.

Louisiana believes that the majority opinion of the

Fifth Circuit herein is highly technical and artificial.

Mr. Justice Holmes’ warning in Guy v. Donald, 203

U.S. 399, 406 (1906), is appropriate here: “As long as

the matter to be considered is debated in artificial

terms there is danger of being led by a technical defini-

tion to apply a certain name, and then to deduce conse-

quences which have no relation to the grounds on which

the name is applied.”

Any Error Which Occurred Was Harmless Be-

yond A Reasonable Doubt

The tria] evidence relied on by the district court and

by the majority of the Fifth Circuit in the instant case

is taken out of context. The lineup picture, S-2, was

not put in the record until the State of Louisiana filed

its Application For Rehearing. This lineup had never

before been challenged.

The four victims of the robbery — Horace Ruiz, Fe-

lix Ruiz, Andrew Alfonso, and Muriel Langston — all

gave a description of one of the robbers to the police

immediately following the crime which fitted Robert

Favre. See R. 44, 58, 73, 86.

Contrary to the majority opinion of the Fifth Circuit

herein, the pretrial lineup which was conducted on De-

cember 2, 1966 (2 weeks after the crime) was fairly

held and fully satisfied due process of law.* Five white

men of similar physical characteristics, all dressed

alike, composed the lineup. See certified copy of lineup

picture, S-2. Nothing distinguishes Favre from the oth-

er men in the lineup (except the fact that he happened

to be one of the robbers, which can hardly be held

against the police). As is customary in Orleans Parish.

3The majority’s attack on the lineup was res nova. Favre himself

has never argued that his lineup violated due process, either

in the trial court, or in the Louisiana Supreme Court, or even

in the United States District Court on this Habeas Corpus pro-

ceeding.

did i i as EO Per ss

Favre was permitted by the police to choose his place,

and he took the middle position. The police officers

who conducted the lineup said nothing to any of the

four robbery victims about any particular person to

be identified. Tr. 54, 67, 74. The witnesses at lineups

in Orleans Parish are always seated some distance

from each other. At this particular lineup Felix Ruiz

picked out Favre as the robber and positively identified

Favre. (““Well, when we went to the line-up and they

paraded those suspects on the stage, I picked him out

right away.” Tr. 59) Muriel Langston also positively

identified Favre at the pretrial lineup. Tr. 90. Andrew

Alfonso and Horace Ruiz did not positively identify

Favre at the lineup, but from his general appearance,

height and hair, picked him out as one of the robbers.

Tr. 73, 52-54.

At the trial Muriel Langston testified that when

Favre was standing very close to her during the rob-

bery “the handkerchief went down in his hand and

he went into his (Horace Ruiz’) pockets and I saw

his face perfect.” Tr. 79. Mrs. Langston further tes-

tified there was no doubt in her mind, and that she

was “very positive” that Favre was one of the robbers.

Tr. 8.

In an attempt to discredit Muriel Langston’s very

strong in-court identification of Favre, the majority

opinion of the Fifth Circuit contends that Mrs. Langs-

ton’s identification was “vigorously challenged” on

cross-examination. This is not accurate. Defense coun-

sel sought to shake Mrs. Langston’s testimony, but

failed completely. See Tr. 82-94. Moreover, and signifi-

—

cantly, when Favre himself took the stand later in the

trial and contended that on the night of the instant

robbery he was at Trinity Lounge with his wife playing

cards, he was unable to produce one witness (even

his wife) to corroborate this alibi. See Tr. 124-151.

10

Furthermore, this Court’s attention is directed to the

fact that after deliberating for only thirty minutes the

jury in the instant proceeding returned a unanimous

verdict of guilty, although a vote of nine of the twelve

jurors would have been sufficient for a conviction. See

Tr. 6; Johnson v. Louisiana, US. , decided

May 22, 1972. This is striking proof of the strength of

Muriel Langston’s in court identification of the ac-

cused, and of the ineptness of Favre’s defense.

Thus a reading of the record herein, and a glance

at the pretrial lineup photograph, show that the lineup

was fairly conducted; that at the lineup Favre was

positively identified by two of the victims of the rob-

bery; that at the trial Favre was very strongly identi-

fied by Mrs. Langston, and tentatively identified by

the other three victims; that Mrs. Langston’s identifi-

cation was in no way weakened during cross-examina-

tion, nor was her credibility shaken; and that Favre

himself could bring forward no one, not even his wife,

to corroborate his flimsy alibi, and altogether made

avery unimpressive witness.

The State of Louisiana respectfully suggests that the

dissent of Judge Clark in this case is correct, and that

any error which occurred during the trial of Robert

Favre because of the testimony of Officer Williams

11

concerning the circumstances of Favre’s arrest was

harmless at most.

REASONS FOR GRANTING THE WRIT

Louisiana is of the respectful view that serious and

far reaching questions involving comity and the ad-

ministration of State criminal justice are involved in

this case, and that the questions posed herein affect

all 50 of the several States.

Crime looms ever larger as our major domestic

problem, and State criminal dockets are becoming

more congested by leaps and bounds, with the result

that the States are finding it increasingly difficult to

keep their criminal dockets current.

If the individual Federal District Court Judges

throughout the country (there are about a dozen in

Louisiana alone) are allowed to reverse a State convic-

tion and sentence for minor technicalities and harm-

less imperfections such as exist in the instant case

(as is occurring more and more every day) State crim-

inal dockets will soon bog down in chaos.

It literally takes months, and sometimes years, of

time and effort and a great deal of money, for the

State governments to catch and try a criminal — and

yet a Federal District Court Judge can in an hour’s

hearing undo all of this work and turn the criminal

free, throwing him back into the State’s already over-

loaded system with an admonition to the State to retry

him in 60 days or turn him back into society.

—_

—

It is a settled rule of law in all jurisdictions, both

civil and criminal, that the finding of the trier of fact

who hears and sees the witnesses is entitled to great

weight and will not be disturbed on appeal if there

is evidence to support it. For example, within the fed-

eral system, upon an appeal by a person convicted

in a United States District Court, the Court of Appeals

must consider the evidence in the light most favorable

to the Government. See, e. g., Cohen v. United States,

363 F.2d 321 (5th Cir. 1966). However, increasingly in

Habeas Corpus suits filed by State prisoners in Fed-

eral District Courts no weight at all is given to the

finding of the State courts. Further, a federal district

court judgment granting a Writ of Habeas Corpus to

a State prisoner is almost never reversed by the Court

of Appeals.

12

By its very nature, any system of judicial review

must of necessity proceed from a large base to one

Supreme Court, in order to ensure uniformity through-

out the system. More and more today, however, a sin-

gle Federal District Court Judge, sitting alone, revers-

es the highest court of a State according to his individ-

ual interpretation of some recent decision of this

Court. Such a procedure, if allowed to continue, will

wreck our State criminal systems.

CONCLUSION

The State of Louisiana respectfully requests that this

Honorable Court issue a Writ of Certiorari in the in-

stant case and set out guidelines to aid the Federal

Courts in Habeas Corpus cases brought by State pris-

13

oners. In this connection see Friendly, Is Innocence

Irrelevant? Collateral Attack On Criminal J udg-

ments, 38 ChiL.Rev. 142 (1970); Doub, The Case A-

gainst Modern Federal Habeas Corpus, 57 A.B.A.J. 328

(1971). There is no recent decision of this Court setting

limits on Federal Habeas Corpus jurisdiction in State

cases, as Rachel and Peacock set limits on removal

of State cases to Federal Courts. Such a decision is

urgently needed.

JIM GARRISON,

District Attorney for the

Parish of Orleans

State of Louisiana

LOUISE KORNS,

Assistant District Attorney

for the Parish of Orleans

State of Louisiana

2700 Tulane Avenue

New Orleans, Louisiana 70119

Telephone: 822-2414

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14

CERTIFICATE

I certify that a copy of this Brief has been mailed

to:

Mr. Jack C. Benjamin

Kierr and Gainsburgh

1718 National Bank of Commerce Bldg.

New Orleans, Louisiana 70119

Attorney for Robert Favre

LOUISE KORNS,

Assistant District Attorney

for the Parish of Orleans

State of Louisiana

PODER ESE ARERR JR te UMN ENR A IRS A ELE PE fi Taye

la

APPENDIX

CORRECTED

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-3294

ROBERT FAVRE,

Plaintiff-Appellee,

versus

C. MURRY HENDERSON, Warden,

Louisiana State Penitentiary,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Louisiana

(June 13, 1972)

Before WISDOM, GOLDBERG and CLARK,

Circuit Judges.

WISDOM, Circuit Judge: The State of Louisiana

appeals from District Judge Alvin B. Rubin’s judgment

granting Robert Favre’s application for a writ of ha-

beas corpus. The district court determined that the

admission of certain testimony at Favre’s state court

—

2a

trial denied Favre his right to be confronted with the

witnesses against him and that the admission of the

testimony was not harmless error. We affirm.

a

Robert Favre and Walter Holley were jointly

charged in Louisiana state court by bill of information

with armed robbery. See LSA-R.S. 14:64. Before the

trial, Holley escaped. Favre was tried separately, con-

victed and sentenced as a multiple offender to forty

years at hard labor in the Louisiana State Penitentiary.

The conviction was affirmed on appeal by the Supreme

Court of Louisiana with one justice dissenting. State

v. Favre, 255 La. 690, 232 So.2d 479 (La.S.Ct. 1970).

Favre filed an application for a writ of habeas cor-

pus in the United States District Court for the Eastern

District of Louisiana. He alleged that he had been de-

nied the right to be confronted with the witnesses a-

gainst him in violation of his Sixth and Fourteenth A-

mendment rights. Favre challenged the admission of

certain testimony at his state court trial.

The nature of the case requires extensive quotation

of testimony from the record.’ The State had called

to the stand an officer of the New Orleans Police De-

partment who had arrested Favre on December 6, 1966.

[Mr. Alford, the prosecuting attorney, questioned

the police officer. ]

1The relevant testimony is reproduced fully in the opinion of the

Louisiana Supreme Court, 232 So.2d at 480-482.

RE AAP HE PND RET SH IT Aa AUTEN ENS I

a

“Q. Officer, had you had occasion to inves-

tigate as of December 1, 1966, an armed rob-

bery which occurred at 800 France Street?

“A. I didn’t participate at the original in-

vestigation at the scene, we were conducting a

follow-up investigation of that armed robbery.

“Q. Now did you have any information.

* * *

3a

[Defense counsel objects, and the objection is

overruled. |

“Q. Did you as of December 1, 1966, have

in your possession any information relative to

any of the facets of this particular case?

“A. Yes, sir.

[Defense counsel objects and asks for a mis-

trial. The objection is overruled and the mis-

trial refused. |

“Q. Now I am not interested in anything

that anyone may or may not have told you.

However, I do ask you what was the source of

the information which you had at that time?

“A. Originally?

“Q. Yes.

“A. From a confidential informant.

[Defense counsel objects, and the objection

is overruled]

“Q. As of December 1, 1966, did you know

or were you seeking the arrest of any particu-

lar person for the armed robbery of 800 France

Street?

[Defense counsel objects, and the objection

is overruled. ]

“Q. Could you answer the question, please,

officer?

4a

“A. Yes, sir.

“Q. Whom were you seeking?

“A. The defendant, Robert Favre, as well

as the second subject, Walter Holly.

“Q. And some of your information was re-

ceived from a confidential informer?

“-. Fee.

“Q. Was it one confidential informant, two

confidential informants, three * * *

[Defense counsel objects, and asks for a mis-

trial. The objection is overruled and the mis-

trial refused. |

“Q. Would you answer the question,

please?

“A. Yes, sir. There were two separate in-

formants.

“Q. Did you know these informants?

“A. Yes, sir.

“Q. Had they ever given you any informa-

tion in the past?

“A. Yes, sir.

[Defense counsel objects, and the objection is

overruled]

“Q, Had the information which you had

previously received from these informants

been reliable.

“A. Yes.

[Defense counsel objects, and the objection

is overruled. ]

“Q. Now has the information which you

have received from these informants in the

past resulted in the convictions of persons?

“A. Yeos, sir.”

—

The district court, finding that Favre had exhausted

available state remedies, granted the application for

habeas relief. The district court stated:

5a

While the State Police Officer did not relate

the words his informants had used, he clearly

conveyed by implication that they had told him

something to incriminate Favre. He was seek-

ing to arrest Favre because of information re-

ceived from “two separate informants;” “the

information which [he] had previously re-

ceived from these informants [had] been re-

liable;” and had “in the past resulted in the

conviction of persons.”

This was testimony that inevitably implant-

ed in the jury’s mind the idea that informants

who had previously given information that led

to the conviction of other persons provided in-

formation about Favre that caused the police

to put him under surveillance and later to ar-

rest him. The only reasonable inference to be

drawn from the police officer’s testimony was

that the informers had some reason to believe

Favre guilty. These informants thus served as

out-of-court declarants against the defendant.

. .. [T]here was no opportunity for the de-

fendant to cross-examine accusers whose

statements were instrumental in securing a

conviction. ... Favre of course had no chance

to cross-examine the police officer’s inform-

ants, and was never confronted with them.

a

6a

Favre v. Henderson, E.D. La. 1970, 318 F. Supp. 1384,

1385-86.

On appeal by the State, this Court “vacate[d] the

judgment of the district court and remand[ed] the

cause to the district court for a determination of wheth-

er the admission of this evidence deprived the defend-

ant of a trial that was fundamentally fair or whether

the admission of this evidence, although erroneous,

was merely cumulative and harmless”. Favre v. Hen-

derson, 5 Cir. 1975, 444 F.2d 127, 128.

On remand, the district court held that the admis-

sion of the disputed testimony was not harmless er-

ror and that it deprived Favre of a fair trial. The State

has, once again, appealed.

II.

The disputed testimony was relevant in two distinct,

but related, ways. When read in context, the testimony

of the police officer served, first, to bolster the identi-

fication of Favre as the person who committed the

crime charged. In other words, the officer’s testimony

that information was received from two confidential

informers, that these informers had provided reliable

information in the past, and that information received

from these informers had, in the past, led to convic-

tions, served to establish that Favre was the person

who committed the crime. Also, as the district court

correctly noted, the testimony served to establish

Favre’s guilt. The logical inference from the officer’s

testimony was that the informers had given informa-

_—

7a

tion to the officer that led him to believe that Favre

was guilty and led the officer to arrest Favre. This

inference was supported by the testimony that “infor-

mation which [the officer had] received from these

informants in the past resulted in the conviction of

persons”. In short, the jury was led to infer that the

informers, who were not identified, were not present

in court, and were not subject to cross-examination,

believed that Favre was guilty of the crime charged.

Inherent in the testimony, which may have been of-

fered only to establish identification, was an assertion

by an out-of-court declarant as to guilt. By saying,

“Favre committed the crime”, the out-of-court declar-

ant said (1) “Favre committed the crime” [identifi-

cation] and, (2) “Favre committed the crime”

[guilt].

Whether offered by the prosecution to establish iden-

tification, guilt, or both, the testimony, when consid-

ered in light of its logical inferences, is hearsay.

“Hearsay evidence is testimony in court or written

evidence, of a statement made out of court, such state-

ment being offered as an assertion to show the truth

of matters asserted therein, and thus resting for its

value upon the credibility of the out-of-court asserter.”

McCormick, Evidence 460 (1954). See generally Id. pp.

455-712; Wigmore on Evidence &§1361-1769 (1940);

Wharton, Criminal Evidence pp. 569-765 (1955). Al-

though the officer never testified to the exact state-

ments made to him by the informers, the nature of

the statements as discussed above, was readily in-

ferred. The statements were offered to establish the

truth of the matters asserted therein — identification,

—

guilt, or both. The truth of the assertions depended

upon the credibility of the informers who were not iden-

tified, not present in Court, and not subject to cross-

examination.?

8a

III.

“(T]he Sixth Amendment’s right of an accused to

confront the wiinesses against him is . . . a funda-

mental right . . . made obligatory on the States by

the Fourteenth Amendment.

To say that testimony is hearsay is not, however,

to say that its admission violates the Confrontation

Clause. Nor is the converse true.

2The testimony was not an assertion as to what the witness heard

or saw; it was “proof of fact through extrajudicial statements”.

The hearsay rule does not prevent a witness from

testifying as to what he has heard; it is rather a re-

striction on the proof of fact through extrajudicial

statements. From the viewpoint of the Confrontation

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

amination, 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.

Dutton v. Evans, 1970, 400 U.S. 74, 88, 91 S.Ct. 210, 27 L.Ed.

2d 213, 226.

3Pointer v. Texas, 1965, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d

923; see Dutton v. Evans, supra; Bruton v. United States, 1968,

391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476; Barber v. Page,

1968, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Pointer v.

Texas, 1965, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923;

Douglas v. Alabama, 1965, 380 U.S. 415, 418-419, 85 S.Ct.

1074, 13 L.Ed.2d 934; Parker v. Gladden, 1966, 385 U.S. 363,

87 S.Ct. 468, 17 L.Ed.2d 420; Holman v. Washington, 5 Cir.

1966, 364 F.2d 618.

_

9a

While it may readily be conceded that hear-

say rules and the Confrontation Clause are

generally designed to protect similar values,

it is quite a different thing to suggest that the

overlap is complete and that the Confronta-

tion Clause is nothing more or less than a Codi-

fication of the rules of hearsay and their ex-

ceptions as they existed historically at com-

mon law. Our decisions have never established

such a congruence; indeed, we have more than

once found a violation of confrontation values

even though the statements in issue were ad-

mitted under an arguable recognized hearsay

exception. The converse is equally true: mere-

ly because evidence is admitted in violation of

a long-established hearsay rule does not lead

to the automatic conclusion that confrontation

rights have been denied.

Green v. California, 1970, 399 U.S. 149, 155-156, 90 S.Ct.

1930, 26 L.Ed.2d 489, 495-496. See also Dutton v. Evans,

supra, 400 U.S. at 82.4

4 This Court has recognized the admissibility against

an accused of dying declarations, Mattox v. United

States, 146 U.S. 140, 151 [36 L.Ed. 917, 921, 13 S.Ct.

50]. and of testimony of a deceased witness who has

testified at a former trial, Mattox v. United States, 156

U.S. 237, 240-244 [39 L.Ed. 409, 410, 411, 15 S.Ct. 337].

See also Dowdell v. United States, supra, 221 U.S. at

330, [55 L.Ed. at 757]; Kirby v. United States, supra,

174 U.S. at 61. . . .[43 L.Ed. at 896]. There are other

analogous situations which might not fall within the

scope of the constitutional rule requiring confronta-

tion of witnesses.

Pointer v. Texas, supra 380 U.S. at 407.

a

,

In order to determine that Favre’s right of confron-

tation was violated by the admission in state court

of the disputed testimony, we must look to the Supreme

Court’s thorough treatment of the subject in Dutton

v. Evans. The disputed testimony in that case is de-

scribed in the Supreme Court opinion as follows:

10a

One of the 20 prosecution witnesses [against

Evans] was a man named Shaw. He testified

that he and Williams [Evans’ co-conspirator]

had been fellow prisoners in the federal peni-

tentiary in Atlanta, Georgia, at the time Wil-

liams was brought to Gwinnett County to be

arraigned on the charges of murdering the po-

lice officers. Shaw said that when Williams

was returned to the penitentiary from the ar-

raignment, he had asked Williams: “How did

you make out in court?” and that Williams

had responded, “If it hadn’t been for that dirty

son-of-a-bitch Alex Evans, we wouldn’t be in

this now.” Defense counsel objected to the in-

troduction of this testimony upon the ground

that it was hearsay and thus violative of Ev-

ans’ right of confrontation. After the objection

was overruled, counsel cross-examined Shaw

at length.

400 U.S. at 78. In holding that the admission of the

testimony did not violate Evans’s Confrontation

Clause right, the Court considered numerous factors

including: (1) “[T]he statement contained no express

assertion about past fact, and consequently it carried

on its face a warning to the jury against giving the

apse SIC DOLE ERE PML TRS OIE AME, IS aa a

—

lla

statement undue weight”; (2) the out-of-court declar-

ant’s personal knowledge of the crime and its partici-

pants was “abundantly established” by other evidence

in the trial, it was “inconceivable” that cross-examina-

tion of the out-of-court declarant would have shown

a lack of personal knowledge; (3) the possibility that

the out-of-court declarant’s statement was founded on

faulty recollection was “remote in the extreme”; (4)

the circumstances under which the out-of-court declar-

ant made the statement “were such as to give reason

to suppose that [the out-of-court declarant] ... did

not misrepresent [the defendant’s] . . . role in the

crime”. 400 U.S. at 88-89. In addition, the Court stated

that (5) the evidence was not “ ‘crucial’ or ‘devastat-

ing’”’, 400 U.S. at 87; (6) there were many other (twen-

ty to be exact) witnesses for the prosecution and de-

fense counsel was given the opportunity to cross-ex-

amine all of them, 400 U.S. at 87; (7) the testimony

was admitted under an “exception to the hearsay rule

long established under state statutory law”, 400 U.S.

at 87; (8) an eye-witness “described all the details

of the [crime] ... and... was cross-examined at

great length”, 400 U.S. at 87; and (9) the out-of-court

declarant, or others who could testify that the state-

ment was not made, could have been subpoenaed by

the defense, 400 U.S. at 90, fn. 19.

A consideration of these factors convinces us that

in the present case the Confrontation Clause was vio-

lated by admission of the disputed testimony. (1) Al-

though the testimony may, by its dubious nature, have

carried on its face a warning to the jury against giving

it undue weight, it did contain an express assertion

=

12a

as to past fact, ie., the reliability of the informers,

and an implicit assertion about past fact, i.e. identifi-

Cation, guilt, or both. (2) There is absolutely no evi-

dence in the record to establish that the out-of-court

declarants had personal knowledge of the crime or its

participants, and it is entirely possible that cross-ex-

amination of the informers would have shown a lack

of personal knowledge or other indications of unreli-

ability. (3) The possibility that the informers’ state-

ments were founded on faulty recollection is entire]

possible. (4) There is nothing in the record to show

the circumstances under which the informers made

their statements much less to show that they did not

misrepresent Favre’s role in the crime. (5) The evi-

dence, as discussed below, is although not “devastat-

ing” extremely important if not “crucial”. (6) Other

witnesses, as discussed below, did not serve to estab-

lish a strong caSe against Favre. (7) The testimony

was not admitted under an exception to the hearsay

rule. (8) There were eye-witnesses to the crime, but,

as discussed below, they were by no means as con-

vincing as the witnesses in Dutton v. Evans. (9) Fi-

nally, Favre could not have subpoenaed the informers

because their identities were not disclosed and could

not have subpoenaed witnesses whose testimony could

show that the statement was not made.

[T]he mission of the Confrontation Clause is to ad-

vance a practical concern for the accuracy of the truth-

determining process in criminal trials by assuring that

“the trier of fact [has] a satisfactory basis for eval-

uating the truth of the prior statement’. California

v. Green, 399 U.S. at 161, 26 L.Ed.2d at 499. Dutton

So PREM IY ee a

-

l3a

v. Evans, supra, 400 U.S. at 89. In the present case,

testimony was admitted which led to the clear and

logical inference that out-of-court declarants believed

and said that Favre was guilty of the crime charged.

The informers were not identified and were not sub-

ject to cross-examination. The trier of fact had abso-

lutely no “satisfactory basis for evaluating the truth

of the prior statement”.

IV.

Our prior remand in this case was for the purpose

of determining whether the admission of the disputed

testimony, although erroneous, was harmless error.

“[Blefore a federal constitutional error can be held

harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt”.

Chapman v. California, 1967, 386 U.S. 18, 24, 87 S.Ct.

824, 17 L.Ed.2d 705, 710. See also Harrington v. Cali-

fornia, 1969, 395 U.S. 250, 29 S.Ct. 1726, 23 L.Ed.2d 284.

The district court held that the admission of the testi-

mony was not harmless error. We agree.

We quote from the opinion of the district court:

Conviction of the accused rested entirely on his

identification by four . . . witnesses who saw

the robbery. None of the witnesses claimed to

know the accused before the robbery. Each

had given a physical description of him to the

police. All of them had identified him in a po-

lice lineup 15 days after the robbery. Defense

counsel had suggested that the lineup was ar-

a

l4a

ranged so as to point to the accused by placing

him in line with other persons whose physical

description manifestly did not fit those the wit-

nesses had given. Thus defense counsel had

created some doubt about the Validity of the

lineup identification.

At the trial, Horace Ruiz, the bar owner,

Said he could not make a positive identifica-

tion.> He thought the accused was the robber

based on the color of his hair and his com-

plexion.© He never saw the robber without a

handkerchief over his face.” Felix Ruiz, Hor-

ace’s uncle, made a positive identification. But

he also testified that the handkerchief obscur-

8 Q. Now then in accord with your conscience and

before your God, son, you can’t say that in all truth-

fulness, positively that the man behind that man

was not one or more, was not one of those men that

you’ve seen with the same size, black hair and fair

complexion, other than this defendant. Isn’t that

correct? You can’t swear positively, isn’t that right?

A. I can’t swear positive, but in my opinion he looks

very much like the man behind my counter.

Tr. 51-52 (footnote from original).

6 A. I couldn’t make a positive identification because

the man behind my counter was holding a handker-

chief over his face, like this. But there is someone

from the color of his hair and his complexion, in my

opinion, I believe I see one man in here that was be-

hind my counter.

Tr. 46 (footnote from original).

7 Q. With his left hand, I see. Now did you at any

time see the person without the handkerchief over

his face?

A. No, I didn’t.

Tr. 47 (footnote from original).

LAGI LOPE SEIN BIG BRET HON

15a

ed the robber’s nose and mouth,® he never

saw the culprit without the mask,® and he re-

membered no identifying marks.'° Andrew P.

Alfonso made an identification but he “couldn’t

see his face completely to make a real positive

identification ...”'" He based the identification

on general physical build and hair.'2

Finally, there was Muriel Langston, the bar

maid. She did see the entire face of the rob-

ber “when he went to get in his pockets (and)

8 Q. Now were you able to see this person’s face

clearly, the one that went behind the bar?

A. He held a handkerchief to his face partially ob-

securing it.

Q. Partially obscuring it?

A. Obscuring the nose and the mouth.

Tr. 58-59 (footnote from original).

9 Q. Mr. Ruiz, did you at any time see this person

without the handkerchief over his face?

A. At the show-up.

Q. No, I mean at the time of the robbery.

A. No.

Tr. 67 (footnote from original).

10 Q. Was there any other identifying mark such as a

scar or anything that made you remember this man?

A. No.

Tr. 62 (footnote from original).

Tr, 74,

12 Q. Let the record reflect the witness has pointed

to the defendant at the bar. Now, Mr. Alfonso, would

you please explain upon what you base this identi-

fication and on how strong you feel about this identifi-

cation?

A. Well, he looked similar to the man that was in

the bar, like I said I couldn’t see his face completely

to make a real positive identification but the general

physical build and what I saw of his hair and he just

seemed like that was the person.

Tr. 74 (footnote from original).

ie

the handkerchief went down in his hand and

he went into his pockets and I saw his face

perfect.”'? She identified the accused as the

robber without doubt.'4 The cross-examina-

léa

13 Q. Would you please tell the gentlemen of the

jury the circumstances surrounding the robbery,

what happened?

A. At around five to eleven a fellow come in and

ordered a draft beer. He drank two swallows out of

the beer and he left. Not even five minutes later, I

didn’t even have time to sit down, he come back in

and when he came back in another guy came right

with him. The redhead had a gun and he come to us

and the other guy jumped over the bar. The one with

the gun said, this is a stickup. Don’t do anything and

no bloodshed, or something like that and nobody will

get hurt. The other one was behind the bar and the

redhead told me to go get the other guy the money.

He got the money really you know, he got the money.

And the other guy said open the top register. And

I couldn’t open it. I was too nervous. So I told my

boss, you’d better come back here and open it. When

my boss got behind there and opened, the redhead

said while you’re back there, get his pockets and

when he went to dig in his pockets the other guy

had a handkerchief over his face all the time. And

when he went to get in his pockets the handkerchief

went down in his hand and he went into his pockets

and I saw his face perfect.

Tr. 78-79 (footnote from original).

Q. Now Mrs. Langston, I want you to think about

this question and I want you to answer it as precise-

ly as you can. Do you see the person in this courtroom

today who was one of the persons who robbed you

on November 17, 1966?

14

A. Yes, I do.

Q. Would you please point this person out?

A. Yes.

Q. Let the record reflect that the witness has

pointed to the defendant at the bar. Mrs. Langston,

is there any doubt in your mind as to whether or not

this is the man?

A. No, there’s no doubt. That is him.

OMORE MESH. RI ORT THN REFER ML LN GF OIE

_——

l7a

tion of Mrs, Langston was vigorous, and both

prosecution and defense might well have con-

cluded that the jury would have reasonable

doubt of her accuracy and veracity.

Considering the disputed testimony in context, we

cannot conclude that its admission was harmless “be-

yond a reasonable doubt”. The testimony, with its in-

ference on the issues of identification and guilt, may

well have tipped the scales toward a guilty verdict.

Without the disputed testimony, the prosecution had

a questionable case, based as it was on two tentative

identifications based on build, hair color, and complex-

ion, one dubious positive identification, and one vigor-

ously challenged positive identification.'5 With the dis-

puted testimony, the prosecution’s case was far strong-

er. The testimony added two inferred “reliable” identi-

fications and, inherently, two assertions as to guilt.

It cannot be said “I am at a loss to understand how

any normal jury, as we must assume this one to have

been, could be led to believe, let alone be influenced

by [the witness’ testimony as to the out-of-court de-

clarants’ statements]”. Dutton v. Evans, supra, 400

U.S. at 91. (Blackmun, J., with whom the Chief Justice

joins, concurring). The testimony does not “fade into

practical and legal insignificance”. Id., 400 U.S. at 93.

Nor are we dealing here with “gossamer possibilities

of prejudice to a defendant [which serve to] ... nul-

Q. Are you positive?

A. Very positive.

Tr. 81 (footnote from original).

18The in-court identifications must also be considered in the con-

text of a questionable lineup procedure.

18a

lify a sentence ... and set the guilty free”. Snyder

v. Massachusetts, 1934, 291 U.S. 97, 122, 54 S.Ct. 330,

78 L.Ed. 674, 687, quoted in Dutton v. Evans, supra,

400 U.S. at 89-90. The error is not “harmless beyond

a reasonable doubt”.

The district court’s order granting Favre’s applica-

tion for a writ of habeas corpus is affirmed.'s

'6As the district court’s original opinion points out the decision in

this case does not preclude the use of informers’ statements.

In some situations the Supreme Cout has held that

the Sixth Amendment does not require the disclosure

of the identity of informants. Thus, the states seem

not to be constitutionally required to disclose to the

accused the name of an informer. McCray v. Illinois,

386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967). But

the state may not both introduce an unidentified in-

formant’s statement at a trial on the merits and at the

same time maintain his anonymity. If the state does

not wish to disclose the identity of the informant and

produce him, it must forego his testimony, else the

accused is denied “the right of confrontation * * * an

essential and fundamental requirement for the kind

of fair trial which is this country’s constitutional

goal.” Pointer v. State of Texas, supra, 380 U.S. at 405,

85 S. Ct. at 1068: see also Douglas v. State of Ala-

bama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934

(1965).

318 F.Supp. at 1386. Nor does our decision affect the deter-

mination of probable cause.

In McCray [v. Illinois, 1967, 386 U.S. 300, 87 S.Ct.

1056, 19 L.Ed.2d 72] the court approved the use of

testimony of an unidéntified informant as a basis for

issuance of a search warrant. Hearsay may, and fre-

quently does, establish probable cause. But this does

not mean it is admissible as proof of guilt.

What is adequate to justify an arrest or a search

for evidence while a charge is under investigation

may not be admissible at the time of trial. It is nec-

essary in many instances to distinguish between the

rights of the suspect before he is brought to trial and

”

es — PIE RAG Fy Dean

CUD) Oe tae a ae ee URE eR Sy id

.

—

19a

CLARK, Circuit Judge, dissenting:

From a technical legal view, the opinion of Judge

Rubin and Judge Wisdom’s affirmance are antisepti-

cally sound. With all due deference to their scholar-

ship, I am compelled to dissent by my sense that this

evidentiary error was beyond a doubt harmless.

At the outset I would not that we are not involved

with the clearly erroneous rule. The normal deference

due to a district court’s resolution of a fact or mixed

fact-law issue is not apropos here; for he, as we, view

only the same cold record.

Perhaps my dissent is provoked because I give too

great a deference to the inherent intelligence of the

jury and the independent review by the state trial

judge who heard the proof, or perhaps I perceive a

different legal standard for our federal review from

Dutton v. Evans, supra, and Schneble v. Florida,

U.S. (1972) [No. 68-5009, Mar. 21, 1972, 40 L.W.

4299]. In either event, my concern as to the magnitude

of the error does not go just to its effect on Louisiana’s

his rights after he is arraigned and trial commences.

The right to confrontation is basically a trial right,

whose strictures have often been found inapplicable to

earlier stages in the criminal process. Costello v.

United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed.

397; cf. Barber v. Page, supra; 390 U.S. at 725-726, 88

S.Ct. 1318. The McCray opinion recognized this dis-

tinction, and it is, indeed, implicit in the Constitution

itself. For the rights preserved in the Fourth Amend-

ment are different from those safeguarded by the

Sixth.

318 F. Supp. at 1386-1387.

20a

system of justice, although that would be enough. Rath-

er, my anxiety is for witnesses, such as Muriel Lang-

ston, everywhere; who must endure yet another ju-

dicial ordeal they really want no part of in the first

instance, I greatly fear that her devastating identifica-

tion testimony (set out in footnotes 13 and 14 above)

about this terrifying armed robbery which was perpe-

trated almost six years ago will be lost or rendered

substantially ineffectual by old age in the retrial] that

must now be held.

If it is lost or debilitated, the search for truth will

be the loser. Ironically, it is that same essence — truth

— which is supposedly at the heart of Favre’s enjoy-

ment of the right of confrontation so zealously pro-

tected today.

Finally, it is altogether anomalous to assert that the

due process clause of the Fourteenth Amendment can-

not be invoked to invalidate a conviction in which the

only identification testimony consists of a single in-

consistent statement of one witness' and at the same

time say in the present case that because the eviden-

tiary complaint is cast in terms of Sixth Amendment

confrontation, it must result in vacating a jury verdict

based on a much more solid foundation.

I would reverse the grant of habeas corpus relief.

‘See Edwards v. Wainwright, __.__. F.2d ______ (5th Cir. 1972 [No

71-3177, June 8, 1972}.

Mer eg RET Tt

—

2la

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 71-3294

ROBERT FAVRE,

Plaintiff-Appellee,

versus

C. MURRAY HENDERSON, Warden,

Louisiana State Penitentiary,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Louisiana

(June 29, 1972)

ON PETITION FOR REHEARING

Before WISDOM, GOLDBERG and CLARK,

Circuit Judges.

PER CURIAM: IT IS ORDERED that the petition

for rehearing filed in the above entitled and numbered

cause be and the same is hereby denied.

CLARK, Circuit Judge, dissenting:

For the reasons set out in my dissent to the panel’s

original opinion, I dissent from the court’s refusal to

=

grant rehearing. As to the harmlessness of the error

presented here, see also Milton v. Wainwright, ___

US. —— (1972) [40 L.W. 4782, June 22, 1972], decided

since the panel opinion was released.

22a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 1971

No. 71-3294

D. C. Docket No. 1722

ROBERT FAVRE,

Plaintiff-Appellee,

versus

€. MURRAY HENDERSON, Warden,

Louisiana State Penitentiary,

Defendant-Appellant.

Appeal from the United States District Court for the

Eastern District of Louisiana |

—

23a

Before WISDOM, GOLDBERG and CLARK,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript

of the record from the United States District Court

for the Eastern District of Louisiana, and was argued

by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the order of

the District Court appealed from, in this cause be, and

the same is hereby, affirmed.

June 13, 1972

CLARK, Circuit Judge, dissenting:

Issued as Mandate: