Respondents Brief — Harrington v. California

Supreme Court brief1969

Ask Donna

What actually matters in this document.

Text

a ad Pall

ESTE SEM OO LT LIE IE FL: EIN a a a i oe i a

' r - 3

_ SUPREME COURT. Ul, fa ;

IN THE |

Office-Supreme Court, U.S,

FILED

MAR 19 1969

- pne Court of the Unite Sales sis ae

October Term, 1968 ” {

No. 750

c .

; Fes Tae ;

GLENN MarTINn HarRINGTON,

‘ rs | Petitioner,

US...

THE PEOPLE OF THE State OF CALIFORNIA,

‘Respondent.

On Writ of Certiorari to the Court of Appeal of

California, Second Appellate District.

(/_ BRIEF FOR RESPONDENT

Tuomas.C. Lyncu,.

Attorney General,

Wit.raM E. JAMEs,

Assistant Attorney General,

‘James H. Kuri, |

Deputy Attorney General,

600 State Building,

1hs Angeles, Calif. 90012,

Tel: (213) 620-2499, —

:- Attorneys for Respondent. |

—_—

Parker & ‘Son, Inc., Law Printers, Los Angeles. Phone 685-9790

“aan

. * 2

* ~ 2

’ ° > * \

, ’ 4

4 Pe aos "

: * onl 3

_ ad x ‘ "

c 46> . *

7 4 a “6 .

ie gt '

. 72, % f

oe; i > - 4

. Pi r re

“< ~~)

ee se 2 ; aN

- 4

< % a ieee

‘ Pe .

-. *

_——_———_

Supreme Court of the United Sates

a eee October Term, 1968

L No. 750

, * ie

GLENN MarTIN HarrincTon,

Péitfioner,

| 7 THE PEOPLE oF THE STATE OF CALIFORNIA, '

Respondent.

es Piece ee

On Welt of Cortiocarh to the Court af Appedd of oe

California, Second Appellate District °« —

. BRIEF FOR-RESPONDENT +

Oplaton telow

Sees srorecdinats ¢ on certiorari arisé out of petitigsisy ;

Harrington’s 1965*conviction for ‘first degree murder.*

| The judgment of conviction was affirmed by the Court.

V _ -efe Appeal, Second Appellate District, Division Two, -

- State of California, and is reported j in People v..Bosby,

"+ ‘ef al, 256 Cal. App. 2d 209, 64 Cal. Rptr. 199 /(1967).

a | The n Sepahphsoagahe made Har-

: ) he ,

Juriadiction

rf:

( Feacspielte Te cociietved és i Omurt by Tite 28,

‘section 1257(3) of the United States Code. .

»* . “ x

"io

The Extrajudicial Statements of the Three Co-

defendant§ Do Not Fall. Within the Ban of

» @BYUton © -...n-.econstecneecesneeseesensesneeecaee ‘ .. 10

a } ae

& ‘Tesieetien of the Applicability of Bruton, ‘the

Rule in Bruton Is Subject to the a .

* Harmless Error Standard ...........1....--- - 12 —

: ; Til : < | lh.

The Admistion of the Three A le ei

judicial Statements ‘Was’Harmless to Petitioner ..18

— -..% \ IV

The Holding in Roberts v. Russell Should B

examined as to the ‘Retroactivity: of. Bruted Vv.

; United EES Te : iis 24

Conclusion Hen eA ee pe Sia titania witoaiin a

cy 2 : : = | |

Se ‘APPENDIX |

_, United ‘States Constitittion, Sixth Amendment i pa

United States Code, 28 U.S.C: S. 1257 inna al 4

«Stat. 29 ENON kceinchcusioanns ectewzasneeeneneiecpe 2

California Penal Code, Sec. 1098 . ) Secsgeneeeees 3

% _ © ~SUBJECT INDEX” piace ee

I TN ect iicisilbinetinmincmsaniinmaietn &

I seterchenmmicimdauis . higtinin At

_Statutes Involved .....................- Lebeteenacemannsctesennenengene 2

Questions Presented ................--+-0+---- selaccaihahaciineat —_—

Statement of the Case ................. jaan a oe

Statement of nee a ee stale , —

_ Summary, of a em sieihasinans chibi ihahilieiciletiias 8

Argument suslensnietctetieia Ipovsneseseceeeeeee al ve 10

TABLE OF . AUTHORITIES CITED

Cases | see

Atwell v. United, States, 398 F. 2d OF an ~~; .

Branch v:. State, 212 So. 2d 29 s.....-0i-.000 Se sasiscallhadg ae

Bruton v. United States, wre We ES ces 2, 8, 9, 10

sapgtihaiinionbini bi, aa. 13, 14, 15,6, 17; 23, 24, 25, 26

fy ieee eink 2 Oe RO

Chapman v. California, 386 U.S. 18 ...... 2, 9, 12, 13

inte Nice 15, .17, 18,°19, 20, 24, 31

eat: V. - Myers, 429 Pa. .: 239 A. 2d

I rpceniecnaincescninciicinnetsnonieesasinfon ivthaluainn Nctindiedaiin ae

De Stefano Vv Woods, 392 U 631 alecanietssiaiiaiaitons 25

' -’ -Delli Paoli v. United States, 352 U.S. 232 .............. a

(chalabinakihieateaiaaiaioiiacaidabicidisi Saitek, My ie, ak ae

Escobedo v. Illinois, 378 US 478 ....... peat 15

Evans v. Dutton, 400 F. 2d 826 20....ssseccenccene 13.

pany ©. cmmoctiont; O75 0.5.85 ....................:....... 18

Gelis v. State, 215 So. 24 86 2sceconcseseccconsncsseoseec i...

Gilbert v. California, 388 U.S. 263 11 el 6, 26,28, 29 .

Hooper v. Swenson, 401 F. 2d 352 Bete 13,14

Jackson v. Denno, Ee Sia UE eccrine tcewsvnennens 3 ae

Johnson ¥. New Jersey; 384 U.S. 719.........5, 25, 28, 29

Linkletter v. Walker, 381 U.S. 618 paeor ees 25, 29 .

Miranda 'v: Arizona, 384 U.S. 436 ............. ee eo a | an

-. Opper v. Pnited States, 348 U.S. 84 wu... 27, 28

People v. Aranda, 63 Cal. 2d 518, 47 Cal. a

'~ 353, 407 P. 2d I alae igh tags siae Nehari -26.:. -

“People v. Barrett, 267 Cal. App. 2d .. 267" A.C.A.

ms 72. Cal. Rptr. SLSR eae en 13 ..

Se a ll

~—

»*

. ‘

%s P

’

a 4

. .

x +"

ee :

: «

aes a ,

* 7 .

< *

. Z°

: é

¢ oh

- ty

People v. Boone, 22 N.Y. 2d 1 476, 293, N.Y.S. 2d

, we 2 ey ee he nee ae ee

People v. Bosby, et al., 256 Cal. App 2d 209, 64

‘Cal. Rptr. 159 ........ ..., 1, 19 20

‘ People. Burwell, 30A.D. 2d 842 292 NY.S"3 a.

965 : 11, 14

People v. Camarillo, 266 Cal. App. 2d ...., 266A&:C,A,

555, 72 Cal. ‘Rptr, 296 ...... cae 11,12, 13

People v. Charles, 66 Cal. 2d 330, 57 Cal. Rptr. 745,

ES FO FS i ct et 20,' 26 .

People v. Chavez, 50 Cal, 2d 778, 329 P. 2d 907 .. .. 28

People v. Zurry, 265.'Cal. App: 2d ...., 265:A.CA. —

894,71 Cal. ot % 573. te eD Lwin hs Ad

People v. DeVine, 57 Misc. 2d 862, 293 N.Y. S..2d

ae Oe ce ig

People v. Dorado, 62 Cal. 2d. 338, 42 Cat oe

169, 398 P. 2d 361-.. ; ae, ae

People v. Flores, 68 Cal. 2d 563, 68 Cal. Rotr. 3

. 161, 440 P. 2d-233 .. ; (12, 14

People v. Flowers, 1 NCA. 612,.162 S.E. 2d 34 ‘ian

People v. Lara, 67 Cal. 2d 365, 62 Cal. Rote. 586,

People y. McKendall, 30 A.D. 2d. 7 17, 290 N.Y. S. oe

nr AT ,

People v. Miller, 40 Ill. 2d 154, 238 N. E: 2d 407. >

_ Peoplg| v.. Ortiz, 30 A.B. 2d. 510, 294 N.Y.S. 24

| WH Rie 12

People v. Pilon/30 A.D. 2d 365, 293 N.Y.S. 24 393 . >:

iv.

; : Page

People v. ie. | 266 Cal. Ape 3 2d ...., 266

A:C.A. US Fae SOs TUNE FO oss iencineseeneniie’ 13

-People v. Scott, .... Ill. App. 2d-.. .-, 241 N.E. 2d 579... 11

People v. Willis, » 30 A.D. 2d 817, 292 N.Y.S4 2d

208 *. pectetateincencicn Hy 18; 24 15

Roberts v Russell, 392.U:S re 9, 17, 24

a é Lei slibinnian a a ae

‘Spas’ v. United States, ose 2

Spencer v: Texas, 385 U.S. $54 -ciscclccpn-- 28, 29

State v. Blanchard, 98 N. J Super. 22, 235 A. 24913

4 SRE NDR ho ae Vee Te poeenerpoecene gent aidion FON ~ f

State v. Fox, .... N.C. ..... 163 SiE, 2d 498 ....... 11, 14

State v. iu, 46 -N. Oy, 152, 215 A. 2d 352 «.:.. 27

Stovall ‘v. Denno, 388 U.S. 293 . iiaiiniigaedbai 9, 25, 26

Tehan v. Shott, 8G ee 25

United. States v. Ball, 163 U.S. 662 .................... 28

“Waited, States v. B tty, 282 F. Supp. 202 Siececabaasnieii 14

‘s United States v. & uta jardo-Melendez, 401 F.'2d 35

| 11, 13°.

United Siates-y. Hotta, 402 F. 2d 380 neces 11, 15,

United States v. Kelly, 399 F.2d, 692 ...... ~ ia 14

United States v. Lipowitz, 401 F. 2d 591 SIRENS * OB

| United States v. Lyon, 397 F. 2d 505 a 14

United States y. Wade, 388 U.S. 218°....... APPT 26

United States ex rel. Johnson v. Yeager’, 399 F. 2d.

aa ec cll ech nricnc soansce 13

= . v & ;

Statutes - : Page

California Penal Code, Sec. 1098 ...... pee 29

United States Code, Title 28, Sec. 12573) smsogentcenans Ji

—— States Constitution, Sixth Amendment ........

9, 10, 31

: ° ~ : = e ; <

° Textbook

Utah Law Review ( 199), Pp. 144, 14, 153 SE oe 15

ie GQ

‘ J '

& s

is cs

7 /

~ f -

ot —2—

Statutes Involved |

‘Relevant “statutes” and constitutional: amendments,

federal and state are set forth a

_ Questions Presented -

e- Do the cxtviinatiiles statements of the three co-

defendants fall within the ban of Bruton v. United re

States, 391 U.S. 123 (1968)? | ™

, 2. Should the harmless eryor standard agg defined

in Chapman v. Califia, 386 U.S. 18 (1967)"b made

3 applicable to a Bruton type error? : >.

3 Was the admission of the extrajudicial a

of the three codefendants harmless as to ee Har- ~

rington? >

4. Should the’ change in law effectuated by this

Court in Bruton'v. United S tates, supra, be afforded

retroactive application? _ ere

Statement of the Case Cag

On January 27, 1965, an inforimation was filed in ©

the Superior Court of Los Angeles County, charging

. Jesse" Bosby, Gilbert Cooper, George Rhone, Jr.; and

petitioner: Harrington with murdering Benjamin G,

Serna on December 11, 1964. [R. 3-4.] All the defend-

ants entered pleas of “Not Guilty.” Each defendant was

represented by separate counsel. [R. 1, 6.] Each de

_fendant made motions. to sever, which were all denied |

by the trial court. [R. 8-13, 29-30,. 34-43, 49.] After a

. murder in the first degree. [R. 1. }. Thereafter the’ same

_jury ‘fixed the penalty for each defendant as imprison-

ment in the &tate prison for life. [R. 2. ] Each. defendant

filed a notice of appeal. IR, 4 428. ]

+>.

3»

The order of ‘the Court of Appeal affirming defend-—

ants’ convictions was entered on November 21, 1967.

[R. 429.] The Court of Appeal’s denial of a rehearing

was entered on December 12, 1967. The Supreme Court

of California denied a hearing on January 17, 1968. 2 ‘

—R. 441.]

A timely petitiog for Writ of, Certiorari was filed i in

this Court. The petition for: certiorari was granted on

November. 18, 1968, in Number 750, October Term,

1968, [R: 442.]

| kel

Statement of Facts.

In the afternoon of December 11, 1964, three vile

men anda white man were observed to switch cars

two blocks from a grocery and liquor store located at

6126 South Holmes Avenue, Los-Angeles. They drove

off in. the second car. One man remained in the first .

-car with the motor running. [R. 140-142, 146-147.]

The witness who observed this. stated that the —

man had red hair. [R. 151.].

At approximately 2:15 p.m. on December 11, 1964,° .

codefendarits Jesse Bosby and Gilbert Cooper entéred

this store. Cooper asked the proprietor, Mrs. Ardis

Allison Robbins,if she would cash a payroll check She

indicated phat she would but would have to ne it

first. Cooper, after reaching into-his pocket, stated that

he must have left his check-in his ear apd went outside-

“to get it. [R. 56-59, 105-107.] In the interim,, Bosby. —

engaged Dagrell . Ashcraft, the brother of Mrs. Robbins,

“in a conversation regarding a particular size | ttle of

_ wine. [R. 108, 7?

‘When Cooper. returned, he was followed by.; a

Harrington and codefendant George Rhone, Jr., who.

Pe a ee:

ms ‘took positions ‘within the front’ of ‘the store. IR 0]

(Mrs. Robbins emembered seeing them earlier outside

her store, recalling in. particular Petitioner ae wd

2 ton’s bright red hair. [R. 58.] Mrs. Lottie Mae Wil

cs customer who observed petitioner Harringt ae

(om. eee the stdre, also-remarked about his’ bright red hair.

2 _[R. 123, 127-128, 132-133.] After examining Cooper’ s

driver’ s licenserMrs. Robbins refiised to os the “check.

cee this ott Benjamin Serna, a store employee; col-.

« lided with Bosby,’ and jboth men’ fell down, knocking

down a_potato ‘chip, rack. [R. 62, 75-77.] When. both | cas

men arose, Mr. Serna moved toward Mrs. Robbins in’ ~~

ca jerking fashion as if being prodded by. Bosby whom _

. She heard say, “Man, I told you not, to give me any

| trouble.” [R. 78-79, 98-99.]° »

While Mrs. ‘Robbins’ aitention was’ diverted in the ’

direction ‘of ‘Bosby and. Mr. Serna, Mr. Ashcraft who

could | not see them from his position nearer ‘the frogt

* ‘of the store, obseryed. petitioner: ‘Harrington first and

then Cooper draw a gun.- Petitioner Harrington told. see

' Mr. Ashcraft to “Hold it.” [R. 109-110.] When Mrs. ees

_ Robbins observed that Bosby had a gun pressed against ‘

‘Mr, Serna’ s body, she reached for her own gun which‘

was kept in a drawer benéath the cash register. As

she drew it out, Rhone ‘moved forward-and’ seized her |

' wrisf,.and either -hé or Cooper rethoved the: gyn rom :

7 “her hand. [R. 64-65, SheEie] *-. °

ccae

A shot rang out. from the area where Bosby ian Mr.

Serna were located. Serna, took a few steps forward -

¢ With blood running from, his ‘mouth a‘fi shirt and ‘then

ar fell dead upon ‘the fob. ae anes At ‘this time

hand. [R. 66.] Both*Mrs. Robbins and: Mr.. Ashcraft .

‘complied with orders, to move to the- rear of the store.

[R. 66-67, 112.] The money in the cash register was .

_ not taken as the electric. plug had been lenciched out of

‘its soeket. [R. 6869.) 8

Two bystanders on the street saw the abdisdaati

2 ruri to the caf in which they had arrived and’ drive

rapidly away. [R. °130°131, 158.] Mrs. . Lottie Mae

Williams observed petitioner Harrington get in the rear Ser

seat noting his re¢ hair. [R. 132.] Another bystander ~

testified that the white man had rethhair. [R. 158.] The

defendants, were seen ‘momerits thereafter when they

again switched cars at the spot nearby where the second

‘car waited awith ‘another ‘man behind the wheel and

_ the motor running. [R, 143, 148.1 |

" Subsequently, each , of the ‘defendants was arrested

and each gave statements after being advised 6f Its’

constitutional rights in accordance with ‘the rules enun-

ciated in. People v. Dorado; 62 Cal. 2d 338, 42 Cal.

~ "Rpt. 169, 398 P.'2d 361 (1965). In Substance, each

defendant was advised of his right to temain silent,

his right’ t counsel, and that any stateméit, he fhade

‘. could _— used against. him. ™ 173-174, 271, 327, ee

is a statement taken by a sbencigraphis reporter,

P Cooper stated that he went into a liquor store to cash

a check. [R. 202-203.]..Three people: came in behind

him. One of them hit an old man, who grabbet a bottle.

The man told the old man to. stop, and when the old.

"Since ‘this « case wa? tried before. Miranda” v. eiatin. 384

U.S. 436 (1966), the standards enunciated in People v. Dorado,

62 Cal. 2d 338 (1965), are applicable. See Johnson v. New Ne Ge

‘Jersey, 384 U.S. 719, 733 (1966). ca Bate

ip Ee,

- abbed her arm $0 it the man: “would. not shoot her.

"[R. 208-209. ] “Cooper raced to his car, and the. other

. . three jumped into the Gr. [R. 210.] A white boy said,

_* . “Get it out of here, let’s get out of here.” [R. 211.]

Ne After driving two blocks, another>man told Cooper to

1957 Ford. IR. 247.] Cooper denied “conspiring to rob

the liquor store at 6126 Holmes ‘Avenue in ‘Los Angeles

or knowing the other three men. [R. 264.] The trial

court advised the jury that this statement was only to

be received against Cooper and not as to any other de--

| ‘fendant. [R. 244-245. ] :

At a later time, Cooper admitted to the pense that he

_and Bosby discussed robbing a market; that the -four

~ of them drove to a market; that he: presented ‘his check

~ For~cashing: that he saw Bosby hit an old man; that,

he heard a gimshot; and that all four of’ them ran

* from the store and got into hig vehicle- [R: 321-323.]

~ The trial court adviséd the jury that this statement

: _was only. to be received against Cooper and not. as. to

any other defendant. [R. 321. ] {n relating both of |

_Cooper’s: statements, the officer did-not—mention— -pe- -

’ titioner Harrington’ s name but he. did refer to “this.

white guy,” “white boy” and a. “white man,” [R. 205,

‘241, 251, 259, 264, 322-323.] -

In a statemént taken by a stenographic reporter,

| Bosby indicatedythat he and Cooper discussed getting »

money. at the Robbins’ market. [R. 275.] They met two.

others who joined-jn-the plot.. [R. 276.] When they en-

~ tered.this market, | eaby went to the beer box. Cooper

attenipted to cash a check. [R. 278:] Bosby. got ifto

an argument with an old man. The old man threw-a

can of tomatoes at, Bosby. IR 280.] Adee the old man _

- tan, Bosby Heard a, pop.-[R. 281.] ‘Bosby observed two: .

_., <revolver§ in the. hands of his companions. He ran.out’ —

vs of the store and got in Cooper's. car. [R. 284- Sees

'__- Bosby- denied either possessing a gun or s the

old man..[R. 310.]. Bosby stated that-he did not know *

oA the Caucasian’s name ‘and he described him as a “blond

. headed. fellow.” [R. 286. ] The trial court advised the

jury that: this. statement was only received against

_ Bosby and not as to 9 another defendant. [R. 273.

In. a statement * taken by a’ stenographic reporter, a

Rhone admitted to the police . that he and the other three.

codefendants. discussed ~“lnocking / over” the market.

The officer reading this statement ‘mentioned the names -

of the three codefendants, which included petitioner Har-

_- rington. [R. 340-341.].They went in two separate cars”

<{. to rab the market. [R. 342.] Rhone was’ su to.

ee = watch inside the market. [R. 344.]. Rhone w@§ the last

a one’to.enter the store. _Bosby and an ald man got into

.a scuffle. ‘[R. 345.] When the lady at the cash regis:

-- . ter pulled a gun, Rhone grabbed her: arm and Cooper -

~ grabbed the gun out of her hand. ‘[R. 347.] He heard.

a shot ring out. [R. 348.} He saw an old man stumble,

fall, get up again, and staft*running. Bosby and Cooper -

“tried_to. get_into _the_cash register, but were unable -

‘to pull the drawer open: All of them ran out of the

market and got jn Cooper’ s car. [R. 351-352.] The trial

court advised the jury that this statement was orily to’

be: received against Rhone. and not as to any other de-

fendant: [R..338.] . ;

In his i ment to the ‘lice, icici Brrigtin

said that he (and three Negro companions drove to

- market; that while he stayed in the car, the three colored.

fellows entered OG, aetes that he later worn the store

ay to pike cigarettes ; ‘that he fled with ‘Ge sities the ”

“murder; and that thereafter ine had dyed his hair black |

ahd shaved off his moustache.’ [R. 363-365. ] The trial ’

&, »&

‘*

-_*

_ court advised the. jury that this statement was - ‘only to.

"| be.received against petitioner Harrington and not as.

' to any other defendant: [R. 363. ].

e Rhone wag the only defense witness. He testified that

- it was not his intention to commit a robbery when he _

‘entered the. market on December 11, 1964. He only

wanted to “case” the place. Previously, he had discussed

holding it up. TR. 387; 38.) oan

Summary of Argument |

“1. -Phe+ ‘extrajudicial statements of the three code-

| fendants do not fall within the ban of Bruton.v. United —

“States, 391 U.S. 123° (1968). Since Rhone was cross-

examined by ‘petitibner Harrington’ s trial] counsel, the

5 Harrington his constitutional right:to be confronted

_with the witnesses against him. The extrajudicial state-

af admission of Rhone’s confession did not deny” petitioner . -

ments of Bosby and ‘Cooper only refer to:a “male ©

white, ” “white guy,” etc. Such references do not neces-

“sarily implicate petitioner Harrington. In ‘fact the de-’

ba Irrespective of the applicability of Bruton, ‘*

admission into evidence of three odefendants’ extra-

judicial- statements ‘does not automatically: require. a re-

versal of pétitioner Harrington’ Ss conviction: The. vast | |

_ majority of ‘tthe cases which have discuss d this issue ©

"have ruled that the. rule in_Bruton i is 0 a-harm-

less errof standard. Both logic and, sound policy support

___scription. of the white_man_in Bosby’s-statement-does — a

not fit that of petitioner Harrington. _ oo

- the,majority view; for there are signifjcant variables Pe

Ss codefendants’ extrajudicial statements “_— respect

fig ee ee :

Se ee an ee ee

-—— =

‘

——

- ‘e their incijating effect d whether they added criti-

cal weight to ae prosecuti :

.3. Under-the harmless é

Chapman, v. California, 386 U.S\ 18, 24 (1967), pe

titioner Harrington was ‘not preju by the admis- ~

_- sion of the three codefendants’ extrajudicial statements. °

The case against Petitioner Harrington was exceedingly —

strong, for this was no circumstantial. evidence case. |

Three prosecuti n eye-witnesses were positive about pe-

titioner seahoma 2S ’s identification. Petitioner Harring-

ton admitted to the police that\he fled with three Ne-

ae groes “after ‘the murder, and. that thereafter he had .

- dyed his hair black/and shaved off his moustache, _

Petitioner Harrington was not denied, his Sixth .

Amendment right of confrontation with respect: to cO-

defendant Rhone’s confession. Rhone took the stand in —

his gwn defense and was cross-examined by. gee

Harrington’ s trial counsel.

With regard to the extrajudicial statements of Bosby

and Cooper, besides the: fact that they do not name —

. petitioner Harrington, they furnish few details of the

a _—___-ingly strong prosecution evidence and the lack of spec- ~

ificity about the white man’s .robbery role in’ Bosby’s

and Coopet’s statements, the admission of’ these state: -

ts was harmless as to petitioner Harrington. .

> 4 Respondent respectfully requests that this Court ;

reconsider the retroactivity ruling of Roberts v. Russell,

392 U.S. 293 (1968).-A-reweighing and a rebalancing ° -

- of the three relevant considerations enunciated in Sto- |

vall v. Denno, 388 U.S. 293, 296-97 (1967), leads in-

evitably to the conclusion that Bruton should be denied’

retroactive — soy oN 4:

——>

—

Ce el

white rmian’s role in the robbery,’ In view. PP a See

% on: ep ‘ARGUMENT. : . eee

Pre eA ‘are ? ed otce.

The Extrajudicial Statements of the Three Co- .

_ defendants Do Not™ ‘Fall Within the Ban of

: -“‘Bruten. s -% |

- In Bruton. v. United States, 301 U.S. 123 (1968), here ae

the confrontation clause of theSixth Amendment was gets

held violated where 53 codefediant’s confession: qwas used

against Bruton i ina federal prosectition The codefend-

‘ant who implicated Bruton was. sot # ‘witness in’ ‘the

.. trial. The Court held that an instruction that: the ton-.

‘ fession:was only to be considered as against. the maker,

+ was not an adequate substitute for Bruton’s constitu...

tional ‘right of cross-examinatiqn. The codefenda

¢ confessed that he and. Bruton had committed ; an

postal robbery which statement, _the Court said, was 4 .

eG: powerfully in ncriminating. Tt The Court ‘held ‘in Bruton, :

_ '_and-made even more clear in the concurring opinion.

of Mr.. Justice, Stewa that the rationale of the Sixth -

ing. extraj udicial s atements of a’ ‘codefendant «tio. is..

not stibject to ) cross

a .Jesse Bosby, Gilbert Cooper, George irhsseie,

Jr. and petitioner Hatrington madé statements to the

Police: which. were Ee ak into evidence at their joint

trial, Each ‘statement wilk\ge examifted in some detail

in Argument III, infra, PP. 18 through 24 a

For the purpose here, it is canoe poipt out

that codefendant Rhone’s ‘statement, which is-a confes-

_ sion, is the only one. that mentions petitioner Harring- _

ton’s riame. But in regard to Rhone’s' confession, he

took the witness stand and was cross-examined by pe-

. we :

/ . ne wat ‘

es ‘<<

SA pot SOA .

a tay “ide intringhat's trial counsel [See R. 419-420] ‘

ie Thus, it appears that the confrontation rationale of®

Bruton would not -seem to be applicable to Rhone’s con-

' fession. Since Rhone was cross-examined by petitioner

° Harrington’: s trial counsel,. the admission of Rhone’s: _.

confession did not deny petitiorier Harrington’s constitu- _ t.

tional right to be confronted with the witnesses against

’ .. him. See ni v. Willis, 30 A.D. 2d, SY, N.1 , Se

eee, a sl 298 as

+ 296, _303~(1968) ; au v. pai 265 Cal. App. 24°

265 A.C.A. 894, 899, 71 Cal. Rptr. 573; 576, n, 2

Goes); United States v: Hoffa, 402 F. 2d 380, 386-87-

(1968) ; State v. Fox, .. N.C. ...., 163 S,E/ 2d 492, 502

\ (1968) ; People v: Plewers. I NCA. 612,-162 S.E. 2d

34 (1968) ; But cf. United States v. ‘Guajardo-Melendez,

401 F. 2d 35; 38, n. 5. (7th Cir. 1968); People wv. - |

EE ses Til. App. 2d '....:... , 241. NE. 24 579, ~

_ (1968).

As to the thoes titeitaate: of, ate taah pad

(two of which’: alg confessions), they only refer to a,

“male white, » «white guy,” “Caucasian,” ete. and do not

name petitioner | Harrington. Such broad references do —

o> Not “necessarily implicate petitioner Harrington. In fact °

/ Bosby’s statement describes the white man as a “blond-

hegpied fellow” [R. 286], which does not fit the -de-

scription of petitioner Harrington’s bright red hair. Ob-

“3 viously, if the jury literally believed Bosby’s description,

‘they woul think someone other than petitioner Harring-

ton was in volyed, The situation which we are present-..-

ily considering is entirely different from the “power-

| fully incriminating statements” j in Bruton, Id. at 135,

9 KR

~*~ 3 7

a ~ igs “

In’ view ‘of the foregoing; ‘aiapiscia subsuits that .

the extrajudicial statemefits of the three codefendants :

a do not fall within the ban of Bruton |

a 3 ; II iy ;

ae leo af ‘the Acplicaidiie) of Besion: the Rule °

[A alta: ey ebleck o. Se: Caigerans acto

_lesg Error Standard’ ate ig

sy pao of the applicability of Bruton to the in-

, ‘sfant case,. respondent urges that the rile in Bruton

a is subject to the ‘harmless error standard as defined in

: Chapman v. California, 386°U.S. 18, 24 (1967). As '

. this Court pointed out in Bruton, “not every aed.

or inadmissible hearsay can be considered to be reversi-

"ble error unavoidable through limiting instructions ; . in-

= ye

"stances occur.in almost every trtal avhere inadmissible in

evidence’ creeps in, usually inadvertently: 4 defendant

is entitled to.a fair trial ‘but not a perfect one.’ (Cita-; -

tions)” Id. at 135. ee: Gaza

In discussing © this issue, Be te Supreme -

Court stated-in People v. Flores, 68 Cal.-2d 563, 568, .

68 Cal. Rptr. 161, 164, 440 «P. ‘2d 233, 236 (1968),

_ that the Chapman harmless error standard is applicable

where a codefendant’s extrajudicial statement which ifn-

; icates the defendant is ‘improperly admitted into“evi-

ence. This case specifically rejected a ‘prejudicial per se.

rule. (68 Cal. 2d at 568, 68-Cal. . at 164, 440 P.

2d af 236, n. 5. ) Other ‘state (eases hae also expressly

reached the same conclusion with regard to the dppli- °

¢ability of Chapman. People v. Ortiz, 30 A.D. 2d 510, , -

294 N.¥.S. 2d 625 (1968); People v. DeVine, 57 Misc.

2d 862, 293 N.Y.S. 2d 891 (1968); see also, People v..

Camarillo, 266 Cal: App. 2d ...., 266 A.C.A. 555, 567-" -

po pe ee ee —

ad |

901, 71 Cal. Rptr.-573, S526 ISG -but cf.?People’

~: vw. Barrett, 267 Cal. App.z2d. ..;.. , 267 ACA. 184,

rare

"that i in, the absence of a: confession from the’ defendant,

oo ae ing defe dant, if error, was necessarily prejudicial.

.. Cha is applicable i in’ a, Bruton type. of situation. °

| United States x. Lipowitz, 401 F. 24591; 593(3rd

- Cir: 1968); United States ex. gel. Johnson’ v.. Yeager,

" NLY.S. 2d 287, 239 °N.E! 2d" 885 .(1968); Unite

_ States v. ‘Guajardo-Melendez, 401 F: 2d 35; 38-39 (7th

510-11 (5th\Cir. 1968); People v. Willis; 30 A.D. 2d

- 817, 292 N-Y\S. 2d 298 (1968) ; People. v. McKendall,

_ that a Bruton type> error was federat constitutional

Ree 5 PO rota see Eee

has f Cie ; ‘ Z

8, 2 Cal. Rotr. at 303-04 (1968) ; People v.

*” Schwarteman, 266 Cal. App. 2d ...., 266°A-C.A. 948,""

_ 965-66;. 72 Cal. Rptr. §16, 627-28: (1968); People.v. .~

Curry, 265 Cal. App. 2d ....... , 265° A.C.A. 894, 899"

164; 72 Cal, Rptr.. 681, 968), “wheere. it-wak bald.

the admission. of a codefendant’ s statement incriniinat-

Two\ federal casts ave explicitly indicated ‘that |

399 F. 2d 508, 511 (3d ‘Cir. 1968) Us, appeal pend-

ing); see also, Evans v. ‘Dutton, F, 2d 826, 828;

829, nn. 4-and 15 (Sth Cir. 1958). pee

Although all but one of the following cases were re- ‘a

versed, they each cite Bruton and fairly indicate by the |

language used in the decision that a Bruton type error,

is riot ahtomatically reversible;"People v. Miller, 40 If ,

‘2d 154;, 158-59, 238 N.E. 2d 407, 409 (1968, U.S.

appeal. pending) ; People v. Boone, 22 ‘N.Y. 2d 476, m=)

Cir. 1968); Atwell v. United. States, 398 F. 2d 507,

30 A.D. 2d 717,.290 N.Y.S-2d 987 (1968) ; Pepple v:

Pilon, 30 A.D. 2d 365, 293 N.Y,S 2d 393 (1968). © eS

“Two federal cases decided before Bruton. dency hold

error which was subject te’a harmless error-rule. Hoop-

ti ‘er. ‘” ree, 401 F. 2d 352 iii Cir. 1968): United Sea ee

ES Stats v. but 282 warns i gc 16 Le Md. * . oe

‘ . 1 968). =— & 5

; in € ommonwealth v: Myers, 429 Pa. 378, 239 A. 2d - |

. 808 ¢ 1068), ‘hi f P nnsylvania noted — . |

"that ruton’s petition for gertiorari |

ae A. 2d 808, n6.): Tt held that an involuntary con- Ps |

_ fgssion of a: ‘colcfendant implicating the defendant was’ &

eA, | : “equivalent. to. an in¥oluntary- confession (by .defend- - |

ea ae ant); thus placing this errog within the ambit of the |

“ ~ "| lautomatic reversal doctrine.”(239 A. 2d 808-09,-n. 7.)

Bi as Since| this tase involved an involuntary confessiony =

- is distinguishable from the instant case. © )

t . :

Dia e | he ae

‘Some cases have ‘suinmarily reversed on the basis of.

Bruton without discussing the. applicability of any

.. harmless error. standard. £.g, United States v. Lyon,

2 - 307 F. 2d 505, 510 (7th Cir. 1968) ; United States UV. +:

oes Ry, 399 F. 2d 692 (3d Cir. 1968); People v. Fox;

a _ NAC. .:.., 163 S.E. 2a 492, 302 (1968) ; sBranch w. -

| State, 212 So. 2d 29, 32-33 (Fla. 1968) ; Gelis v. State, ©

+° 215 So. 2d 86 (Fla.. 1968); People v. Burwell, 30 A.D... *

eee 2d 842, 292 N.Y.S: — (1968). . as... ~

Thus it appears that ‘the vast majotity of the cases ,

en: beans * have discussed this issue have ruled that a Bru-

‘ error is not automatically. reversible. Res’ ond- “7

: _ent | Coorg ad and sound policy support the. i |

_ Majority view. The extrajudicial statements discussed

. in these cases reflect material variances with ‘respect to. | |

-their inculpating effect [E. g., People v. Flo. es, 68 Cal.

2d 563, 568, 68 Cal. -Rptr. 161, 164, 440 P..2d 233,

236 (1968)], and whether they added critical weight

to the prosecutor’s case. [E.g., Atwell v. United States

398 F. 2d 507, 510 (Sth Cir. 1968); People v. Willis

30 A.D. 2d 817, 292 N.Y,S. 24'298 (1968).] Be

- Cause of such ‘significant. variables, the ras in Bruton

4 7 should be mille sabject~to.a harmless error rie. To

ee _ Tule otherwise would mean that ‘convictions would ‘be

_ reversed for errorg that conceivably played no part in

\ = ee |

‘the verdicts.” ag

“Fhe effect of Bruton i is to make-certain hearsay evi- ~

. inad{nissible, despite limiting instructions. Id. at

et 128, 3. € rationale ‘given for this holding i is that

: there is a substant{al risk that a jury, despite instruc-

tions.to the contrary, looked to. the, incriminating extra-"

judicial staternents ‘in determining a petitioner’s guilt.

I d. at 126. . Yet there are individual cases where a ~

jury can follow such limiting. instructions. S ee Umted

- States v. ‘Hoffa, 402 F. 2d 380, 387 (7th Cir. 1968).

The rule in Bruton is not so basic to a. fair trial that -

an infraction: can never be treated as harmless error,

we ;

oe such as in a. coerced” confession case or a. deprivation

of the right to counsel. Cf. Chapman v. California, be

Biches was eae ior |

2See Bybee, Jr.; 4 Comment on Application of the Harwlesd

Constitutional at Rule to “Confession” Cases, 1968 Utah Law

_ Review 144, 153; wherein the applicability of.the harmless error

tule is discussed as to confessions obtained in ‘violation of

Escobedo. v. ‘Illinois, 378 U:S.°478 (1964) and Miranda v.

Arizona, 384 U.S. 436 (1966). It is. there concluded: “Without

a harmless constitutional error rule, otherwise valid convictions °

would have to be reversed due —_ to the £ cen 2 of —

might be insignificant evidence.” ”

.* ‘Sin the.instant case, all deferidants were advised of their

' - Dorado constitutiorial. rights befote they made their extfajudicial _

statements as contrasted with ‘the co-defendant i

at-124, n..1. The codefendant’s confession in

> (This footnote 1s continued’ on the next pag

Bruton. I d.

, ° : , :

« >. 7 . 2 Bed . > i.

* >

Utilization of the harmless error rule is.a reasonable

“means , of avoiding = ‘inundation of the courts “on this

; issue. -A’ fully: retroactive Bruton which is not -subject

to a harmless. €rror- rule will cause many. collateral at-

tacks on old convictions. Again, ‘such convictions could -

wa be overturned on ‘cbligseral attack for errors that played

no part in the judgment. To require a general release

"Of such prisoners would cripple the orderly administra-

tion of criminal law, since. their: cases @ould afford the

least likelihood of a successful retrial (stale evidence, .

missing witnesses, éte.). ra

‘Moreover, it is: interesting to note: the ‘language con-

tained in Gilbert vz California, 388 U.S. 263 (1967).

“There the trial court. admitted into evidence an ac-

\. complice’ Ss’ pretrial statements which referred,to petition-

‘er 159 times in .the course of reciting petitidner’ s role

in the robbery and murder. Petitioner asked this Couit

to reconsider Delli Paoli v. United States, 352 U.S. 232

Bic vIn Tesponsé to this requést, this Court stated:

en a . We have no Occasion to pass upon this con-

see Ae ae The California Stipreme Court has _re-

. jected. the Delli Paoli rationale, and relying at. least

' in part on the reasoning of the Delli Paoli dissent,

“cure. —, People v. Aranda, 63 Cal. 2d'518,

407 P. 2d 265. The California. court applied —

regards cautionary instructions as itiadequate to

| Arent 3 in ‘this case but held thats any error as to

rte | eedeble eve® against the declarant. It j is easy to see that ‘since

' the presecution’s reason for introducing the codefendant’s confes-

‘sion in Bruteg was n tived by its inadmissibility, there was

nothing “against which to ‘ balance the possible risk = ' Préjudice

; “to the non-declarant. ae

« 2 a S

Se I ek Oe ee SE at NS tae De ASS eS a eee 5 aN

¢ “< ~ a

oe alee |

‘ | Gilbert in the admission’ of - King’s statements

» - was harmless. The harmless-error. standard. ap-

’, . plied was that ‘there is’ no reasormable possibility

; that the efror in admitting King’s ‘statements and

~ testimony might have contributed to Gilbert’s con-

viction,’ a standa rd derived by the court from our

decision in Fahy’ v. Connecticut, 375.U.S. 85. (Foot-,,

note omitted.) Fahy was the tabs of our holding

o ..: °., in Chapman v, California, 386) U.S. 18,.and the -

a standard a by the. Califorstat court satisfies

- the standard as defined in Chapman.

“It maybe that the California Supreme Court

See . will review the application of its: harmless-error- 3

7 - .standard to ‘King’ s statements if on the remand

_ the State presses harmless error also in the in-

i! es troduction of the in-court and lineup identifica-_

'f A: - ‘tions. “However, this at~best implies an ultimate

Py eg application of Aranda and only confirms: that

: Pe ., Petitigner’s argument for reconsidération of Delli .

ae Paoli rieed not be considered at’ this time.’ “4 ” GS

. <s om 263, 268.) ;

The fair import of these remaske duce suggest that a

the errgneous admission of a codefendant’ s statement

which implicates a ‘defendant As not aiitomatically re-

versible: “Bhis'is especially true when viewed in. light.

of the saggiot # holding ot Roberts v. Russell, 392

U.S. 3 (1968). (See. discussion in “Argument IV,

| Anfra, pp.24 through 30.) ‘Accopdingly, it is sub-

o/ mitfa’ that the Chapman harmless. error ‘standard a

applicable toa salen type error.

nee te tal a ead

= er

III

‘4 The Midis of the Three Codelendaute Extra-

ee judicial Statements Was Harmless to. Petitioner -.

"Phe ‘next issue. to’ be determined is whether the ad-

mission of the three codefendants’ extrajudicial state-

ments may be- termed harmless error under -Fahon Vv.

Connecticut, 375 U.S. 85 (1963) as exposited by Chap-

man’ v. California, 386, U.S. 18 (1967). In speaking —

of harmless error, this Court said i in Fahy v. C ounectt-

cut, supra, “at 86-87 :

. We are not concerned _ lieve with whether

: dente was stifficient evidence on which ‘the peti- _

" tioner could have been convicted without the evi-.

dence complained of. The question is whether there

is a reasonable possibility that the evidence com-

ana of ‘might have contributed to the con-

~ ‘wittiog. .~ .” : oaks.

In Chapinan v. California, supra, at 24, this Court

said i in or Fahy:

. We, therefore, do no more than adliere to the -

meaning , of our Fahy case when we hold, as we

now do, that before a federal constitutional error

can be held harmles$, the :court- must be able to

declare a belief "cage it was os beyond a rea-_

cmalig Gout”.

The Court -also held that the burden was on the bene-

. ficiary of the error to make this showing.’

—— in Chapman, it is stated:

. And though the case ‘in which this occurred

peeseiind a reasonably str g ‘circumstantial web

O. evidence’ against petition / (citation omitted),

‘it was also a case in which, absent the constitu-

oa 3

Fee

slay: “forbidden comments, hobest, fair-minded

jurors might very 4 ell have brought in not guilty

verdicts.” (386 U.S » AN LS-26. ie

Under the foregoing criteria, it _is\ respondent’s con-

tention that any error committed i in: adifitting the three

~ ‘codefendants’ beac statements was harmless. as

to petitioner Har ington The case against petitioner

_. Harrington was exceedingly strong, for“this was no

circumstantial evidence case. Cf. Chapman v. Cali-

fornia, ‘supra. As. noted in the’ opinion of the Cali- —

fornia. Court of Appeal, codefendants Khone, Cooper

and Bosby were readily identified as Negroes while Har-

_ rington was originally described as either white or a

prery light-skinned Negro. People v. Bosby, 256 Cal. |

App. 2d 209, 212, 64 Cal. Rptr. 159, 161, n. 2 (1967).

The two victims,’ Mrs.. Robbins: and Darrell Ashcraft,

. both identified petitioner as one of the robbers who had

| drawa- a gun. [R. 66, 109.] Petitioner. Harrington or-

dered Ashcraft to “Hold it.” [R. 109-110.] Mrs. Rob-

bins mentioned petitioner Harrington’s bright red hair.

* [R. 58.] A customer who had observed petitioner Har--_ .

—, and also remarked about his bright red ‘hair.

-[R._ 123, 127-128, 132-133, 137.] These,three prosecu-

. tion witnesses. were positive in their identification of

petitioner)Harrington. Pi

In addition, another witness who had obbetved Picks. $

colored men and a white man switch cars shortly before

the robbery testified that, the white’ man had red’ hair.

[R. 151.] A bystander who had observed the escape:

“of the four robbers. 1 in an automobile testified that the

white man despots red hair. [R. 158

. J 3

J : 2

° *

; are - ; ee

' . . .

> ae ‘ /

a | .

POY INLIOS POEY EII EP

" rington enter and leave the’ store identified petitioner _“

=) “Furthermore; petitioner Harrington made some very — es

: incriminating statéments to the police. He admitted that

_ + he was the nen mai who, had entered the store

. « with his three Negro companions; that he fled with | ee

oe them after the murder ; and that thereafter he had dyed Baie? |

his hair black and shaved off his moustache., [R. 363-

'365.]° Respondent contends” that such admissions can

be’ used in the context of determining harniless error.

See People v. Charles, 66 Cal. 2d 330, 343-44, 57

Cal. Rptr. 745, 425 P. 2d 545 (1967) ; People v. Lara,

67 Cal. 2d 365, 392-93, 62 Cal. Rptr. 586, £05, 432

P. 2d 202 (1967):

As indicated in the opinion of the California Court of

Appeal,” — the constitutionally admissible evidence

is review . ft is virtually inconceivable that any

jury could. hive escaped the conclusion that Harrington

was.engaged in an attempted robbery ‘and was, answer-

e able for the murder committed by his co-conspirator’ .

in the course thereof.” People v. Bosby, 256 Cal. App. *

2d 209, 217, 64 Cal. Rptr. 159, 164-65 (1967). In the

language of Chapman, it is clear ‘that, in the absence of |

___— ‘the extrajudicial, statements. of the three codefendants,

- flo honest, fair-minded jury- could have brought 3 in any

ee other verdict other than guilty.

Petitioner Harrington has: added all the pages of the” 4

_ extrajudicial statements of the three codefendants in =

| the State Reporter’ s Transcript and has come out with =» ee

a total of 171 Pages. | But these extrajudicial statements Md

should be closely examined as to their references to

petitioner Harrington. . os ees

_ Cooper’s first statement was taken by a stenographic

. reporter. Cooper stateti that ‘ ‘this white guy” was in the

/ store when another .man hit the old man. [R. 205.]

—21— ~ ;

‘Cooper: next stated that “the white boy” got in the

front seat of his vehicle and said “Get it out of here, S

let’s get out of here.” The white boy did not have any- . |

thing in his hands while the two colored boys had .

guns. [R. 211.) “This white man” ’ anda Negro fellow

nearly by-passed Cooper’s vehicle- before entering his

car. [R. 2514] Cooper stated nae white ‘and the

+ colored guy” were. behind him while Cooper was in’ the.

store. [R. 258-259.] Cooper stated that the. -Caucasian

B no colored blood in him. In this. statement Cooper © :

denied eqnspiring to rob this store. He denied knowing _

or even seeing before the other three persons who ail |

. ticipated in the robbery. [R. 264.] Pe a

In. Cooper’s second .statement, ‘which w _a-confes-

sjon, he stated that when he ‘entered the store a second

time to attempt to-cash a pay check, Bosby, a tall white ~«~

. mafi,\and a tall Negro fellow walked in behind him. + .) -

‘Previously the four of them had driven to this store in

Cogper’s vehicle. After a gunshot, all four of them

Bice: Back to- his vehicle. Theawhite man“sat in the rear

. seat. Hélflescribed the white man as being approximate-

ly thifty years old, five eleven, and approximately 150

to 160 pounds. [R. 321 -323.] Petitioner’s Sname was not

mentioned in either statement. Seay | on

Ina statement taken. by a stenographic reporter, Bos-

by stated that he and oopér met a male Negro and a ~N

male white two blo¢ks from. the. market. [R. 276.]

Bosby was the who was supposed to get the money

while the other three were supposed to see that every-

thing was okay. [R. 277.] Bosby said that the Cauca-

sian was 2 blondsheaded fellow who was in his early *.

_ thirties and was about five nine. Bosby did. not even

know the Caucasian’s first name. [R. 286:] Later he

, unintentionally met the Caucasian while walking on Wil-

m Boulevard. Subsequently, he saw “the white

| . on 3 . .

e a Buick.c{R. 289-290.] Bosby stated he never.”

Caucasian with a gun. A person named Charles |

- told Bosby that the Caucasian was the type of person

who wanted to make money and would not welsh on a

business deal. [R. 296.] The. “patty” was one. of five

people: who got into two cars. [R. 301. ] Charles. and

_ “the patty” walked toward the store together. [R. 302.]

Bosby presumed that “the patty” entered the store with - |

Charles. [R. 304.] Bosby did not know,Avhere ‘the

“patty” was ini the store at the time of the gunshot: [R.

KS :

... In a statement taken = a stenographic asia.

Rhone stated that -he knew a.male Caucasian by. the

name of Glen. [R. 339. ] Glen was: present when the four.

defendants discussed “knocking over” a market. [R.

340-341.] They drove to the vicinity of this market in

. two cars, with Rhone /going: in Glen’s car. {k. 342. ]

&len stated that. he had a gun. [R. 343. J Petitioner

Harrington and Cooper were standing in front. of ‘the’

cash register. [R. 344-345.] Glen and Rhone egittered >

the store together. [R. 345.] At the time of Saki

between Bosby and the old man, petitioner Harrington + ~

was standing next to Rhone. [R. 346.] When Cooper

took the gun from. thé lady, petitioner. Harrington was

next to Rhone. [R. 348.] Rhone never saw Glen have

_ kiis gun. out. [R. 349.] Glen, did not go over’ to the.

cash register and attempt to open it: [R. 351. ] Glen_

got in the back seat of Cooper’s vehicle.- Gler is

white... The four: defendants went ‘three blocks an gat

into Glen’s 1952 ° Ford. [R. 353.] Glen, the river,

proceeded to Rhone’s house. [R. 355:] Rhone and Bosby

aa . aes

eric

/met Glen later that afternoon. [R. 356.] Glen was

armed. with a .22 for a* while in the market. Rhone ©

‘ took Glen’s gun when the lady went for a gun; [R.

.358.] Rhoné identified the gun that belonged to Glen.

[R. 359]. Glen had: not Seen the market before the

~ robbery, [R..360.]

Rhone’ s confession is the only. one that mentions pe-

titioner Harrington’s name and goes into detail; i:

his role in the abortive robbery. But th regard to one’s

confession, he took the witness stand in his own defense

and was cross-examined by .petitioner Harrington’ s trial 7

, counsel. [R. 419-420.} Thus Bruton does. not apply to

‘Rhone’s confession. (See discussion in Argument I,

“supra, pp. 10 through 12.) -

As to the extrajudicial statements ie Bosby and

Cooper, they do not name petitioner Harrington, al-:

— they do refer to a “male white,” “white guy,”

‘white man, ” etc. which.does not necessarily implicate

petitioner’ Harrington. In -fact, Bosby’s: statement,

which is a: cfnton describes-the white man as a

_ blond-headed fettow [R. 286], which does not fit the

description of petitioner Harrington’s bright red hair. |

Cooper’s first statement [R. 199-214, '245-265.] was

not a confession, since he denied being involved in the

robbery. [Ri 264.] It is hardly likely that the jury -

placed much credénce in Cooper’s first statement in view

of his denial of guilt and his denial of ing the’.

other defendants: Cooper’s second stat rt which is

a confession, is only three pages long. [R. 321-323. ]

The details of the white man’s role in the robbery and

‘the description. of what he exactly\did while .in the

store is extremely, limited in both of\,Cooper’s -state-- °

ments. This is also true pf Bosby’s ‘statement. In this

a .

«Oe Newnes

ésaimectigi, “both Bosby and ‘Cooper stated that they

did not see fetitioner HarringtoM@@with a gun [R. 211,.

296], which is at variance with the besifamcity of the.

i r prosecution witnesses.

In comparison with Bosby’s arid hii s statements,

® the ‘prosectition perdipient witnesses provided the. jury

‘ with many additional-facts as to petitjoyer Harring-.

‘ fon’> activities-while in the market. In view of the .

Zexceedingly strong prosecution evidence and tlie lack of -

a i! specificity about the white man’s robbery role in Bos-

_¢ by’s and Cope tens it is submitted that be-

. . yond a reasonable doubt itioner Harrington would

“have been convicted if these statements had nof been

received into evidence. . Or in other words, there is

“ no reasonable possibility that Bosby’s and Cooper’s in--

_ ¢riminating statements might have contributed to peti-

tioner Harrington’s conviction, for no honest, fair-

minded jury could have brought in another verdict other

| tanger. See Chapman v. rab a supra.”

_ P

-. es IV 7

The Holding in eer v. Russell Should Be Re-

, examined as to the Retroactivity of Bruton v.

-q United States :

. We respectfully ti e that this Court Rise Bat Rob-

erts v: Russell, 392 U:S. 293 (1968), avhere it was held”

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

was to be given Bomplete and unqualified retrospectiye

"' application. This ‘is* the first instance that we ‘ar

aware of Where a respondent has had an “opportunity

“YO present its views on this issue in a case to be for-

mally argued before this Court. ° In several recent cases

.. ° this Court has denied retroactive application to constitu-

i Bae ‘g

+ i 5 \

WS, 618 (1965)..

In Stovall u-Penno, _suprasat 297, this S csaik stated %

"the considerations ‘that affect ‘thé “judgment whether a

tional rules of criminal procedure established “by inno-.

vative decisions which overruledgcases sanctioning for-

mer practice. De Stefano v. Woods, \392 U.S. 631

(1968) ;;Stoval v. Denno, 388 U.S. 298) (1967) ; John-_

son-v,' New Jersey, 384 U.S.” 719 (1966) ; Tehan wv.

Shott,382-U.S. 406 (1966)4 Linkletter v. Walker, 381

“<

- @

casé reversing prior doctyines in the area of the crimi-

nal mont be applied 6nly prospectively: -

. (a) the ‘purpose “fo be served by the new

standards, (b) ‘the extent of the. reliance by law

enforcement authorities on-the .old standards, and

a retroactive application of the new standards.” .

Respondent strongly urges that:a reweighing and a re-

balancing of these three relevant considerations leads

inevitably tothe conclusion that .Bruton should be de-

nied retroactive application.

The purpose of this Court in. a was to enhance

the reliability of the fact-finding process.’ But this -

', conclusion in itself ,does not compel a retroactive ap-

plication of ‘the new “Goctrine.. As the. Court said .in

Johnson v. New Jersey, supra, 384 U.S; at 728-29: "

“Finally, we emphasize . that’ the question —

whether a constitutional ‘rule of criminal procedure

. -does or does not enhagce the reliability of the fact- °

_ finding process at trial ig necessarily @ matter of

tion of probabilities and must take account, among

. other faetors, of the extent to which other safe-

guards are available to protect ‘the integrity of the

. truth-determining process at trig,”

on . - -

meas

aig, ena ce terns a

‘In ‘this regard, Stovall v. Denno, supra, limited the

applicability of the new exclusionary rule afticulated in

United States v. Wade, 388 U.S. 218 (1967), and !

Gilbert v. California, 388° U.S. 263 (1967 ), to lineups ee

fs which were conducted prior to the date of those deci-

_ sions. This Court did so notwithstanding the fact that

the new rule was one “which went to the reliability of

-the eae process at trial, stating: rahe : i ira

: “

. A. conviction which rests on a mistaken

‘ identification i is a gross miscarriage of *justice.’ The |

_. Wade and Gilbert rules are aimed at minimizing

~~~.1_' that possibility by préventing the unfairness at the

_« pretrial confrontation that experience has proved ‘

can occur and assuring méaningful examination of

_ the identification witness’ testimony at trial. Does

: it follow that: as rules should be applied retroac-

‘preme Court’s reasoning _ if ting Deli Paoli it 48

People v. Aranda, 63 Cal. ‘2d 518,529, 47 Cal. Rptr.

353, 358-59, 407 P. 2d 265, 271-92 (1965)\was sound

and persuasive. Yet in Roberts, *the Court ‘ignoredthe

reasoning of that sani court in eople v. Charles, 66

a - Cal. 2d 330, 333, 57 Cal. Rptr..'745, 747, 425 P. 2d

. $45, 547 1967)" wherein Aranda was held not to be

: retroactive since the former procedure did not create aL ‘

grave risk | ‘of convicting innocent defendants. “Since |

Ses athe California Supreme Court concluded that the admis- |

on ie sion of a codéfendant’s confession did not affect the i in- | |

Bs tegrity of the fact-finding process, and because this

' Cour€ specifically relied upon’ Aranda in overruling.’

Delli Paoli, it would seem that the California Supreme

° Oe

° ‘ °

° ; Cc \

. a A

eailieg =

: p ee ‘ff a -

- Court’s conclusion as té retroactivity would be persua- _

ene.” ¢ -* BA eth ee % ,

Under the former California practice, appropriate |

limiting instructions had to be given whenever an ex-~\

trajudicial ‘statement only against the declarant was to ag

be used ina joint trial: With respect to the ability of

the jury to follow such limiting iastructions, this Court

said in.Opper v. United States, 348 U.S. 84, 95 (1954).

“, .% The trial judge here made clear and-fepéated’

admonitions to the jury at approximate times that -

* pe emilee neta statements were not to

be considered in establishing the gnilf Of the peti-

tioner. tnote omitted.) To ¢ay ate jury’.

might have been confused amounts te nothing

more than an unfounded speculation that the jurors . ;

“disregarded clear instructions of the court‘in ar-

riving at their verdict. Our theoryof trial relies

upon the ability of a jury, to follow instructions.

— : Ee :

With regard\yo the impact which the former Cali- .

“fornia practice may have had on the integrity of the »

fact-finding process at trial, it* is significant that the

use of such statements in a joint trial was carefully

circumscribed tqpavoid prejudice to non-confessing de- -

fendants. “Where, however, statements: of a code-

fendant are admitted which are irrelevant or unneces: att

sary in establishing a case. against him and are ex-

_ tremely prejudicial and inadmissible hearsay -as ‘to a

- codefendant, they should be excluded from eviderice.”

People v. Foote, 48 Cal. 2d 20, 23, 306 P. 2d 803, 805

A similar conclusion was. reached by the New Jersey. courts.

Before Bruton, Delli Paoli was rejected in State v. Young, 46

N-J. 152, 215 A. 24 352 (1965). Young was cited with approval -

in Bruton. Id., 391 .U.S.. 123, 129-30, n. 4. This new rule. .

-was. held not to be’ retroactive'in State v. Blanchard, 98 N.J:

Super. 22; 235 A. 2d 913, 916 (1967). cane :

Se ae eee ee ee ee me eked al aS Se ea a Se IES ce ee eee

. (1957 — See alsdy People Vs. Chaves, 50 Cal. 2d 778, ;

790, 329 ?. 2d 907, 914-15 (1958). :

Therefore, we submit that the fornier cig

practice was attended by ef: fective safeguards which en-

sured the integrity of the truth-determining process at -

trial. Under these circumstances, the probability that

-. this former practice resulted in any; ‘impropér convic-

tion is extremely small and furnishes=little support for

a decision imposing Bruton retroactively. Particularly

- $0, when this limiged probability is weighed against the

prior justified telidnce upon the old standards and the °

tremendous impact which retroactivity. would have upon.

- ‘the: ‘administration of justice. he a

. For over seventy years, this Court has steadfastly -ad-

hered to the proposition that. any préjudice resulting

from a todefendant’s admission or confession could be

voided by instructions’ to the jury. E.g., Sparf v.

oe?

v. Ball, 163 U.S. 662, 672 (1896); Opper v. United

States, supra; Delli Paoli v. United States, 352° U.S.

232 (1957). This same issue was presented ‘to this

Court in, such: recent cases ‘as Johnson v. New Jersey,

384'U.S. 719, 735 .(1966)* and: Gilbert v. California,

’ 388 U.S. 263, 268 (1967), where this Cou i declined to

rule on the issue. Also, this. Court ab ed the Dell

“* Paok rule in Spencer #. Texas, 385 U.S. 554, 562

(1967)..

th, ee in Roberts, this Court declared:

. The element of reliance’ is not - -persuiasive,

“ce

‘for Deli Paoli’ has been under attack from its in-

_ception, and many courts. have in fact rejected it. “

Td:, at 295.

sre v. New Jersey, Brief and appearance of Counse!

-(Brief for Petitioner), 16 L. Ed. 2d 1327, 1328 (1967). :

‘

‘ a

nk a en Coen en Re

sil

—2— f eae

s |

ie Bruton, this Court stated that the Bruton pold-

- ing was foreshadowed by Jackson v. Denno, 378 U.S. ‘

368 (1964). Id., at 128-131.) But as late as January ;

of. 1967, this Court endorsed Delli Paok in Spencer and

in June of 1967 refused to’ reconsider Delli Pao in \°

Gilbert. Certainly, in light of Gilbert and Spencer,

it would have been dif ficult to predict the: demise of

The. consequential: reliance upon these decisions by

state and federal prosecutors cannot be justly ignored:

As ‘stated in. Linklette? v. Walker, 381 U.S. 618, 636

(1965), the’ past cannot always be erased by a new ju-

dicial declaration- Because of this, respondent suggests sans

that this Court ‘adopt a ‘similar retroactivity ruling as in

. Johnson v. New Jersey, 384 U.S. 719, 733 (1966). If

" such a rule were addptéd, then the cutoff ‘time would be .

4 the date that this Court rendered 3 its decision i in Bruton, :

Ss " May 20, 1968.8 .

-. “A: failure to adopt such ‘a. rtile would have a - sub-

' California, there is a legislative policy in favor of -joint

tricls. California Penal Code ‘section. 1098: People v. -

Lara, 67 Cal. 2d 365, 394, 62 Cal. Rptr. 586,. 606 an

(1967). In Spencer v. Texas, supra, at 562, this Court | \

recognized that there was a valid governmental" interest

in joint trials. As a result, many joint-trials were tried

under the old procedure. To now apply the new con-

; stitutional ‘standard of Bruton to those cases would

a % \, cause havec i in the See eateation of justice.

"40s

°The trial in the instant case was tried in June and ‘July of *

1965. Respondent contends that in view of the state of law at -

the time of. the trial, the trial court was momeree d justi ed in-

relying’ aii Dell Paoli. :

is >

. i ° © .

= é i: ee . e s —

ry Py : -

e .

+ The: ‘beneficiaries of such a result would of nécessity

Hel those who acted in concert with other of fenders %

gang members and members of. criminal conspiracies. a

Those: persons who would derive ‘the gyeatest benefit |

from a holding: of compelled retroactivity: are those

felons under long-term sentences. who have been ee |

fined. over extended periods of time, since their cases

would afford the least likelihood of a successful retrial.

- To require a general ‘release. of such prisoners would’.

_- cripple the orderly administration: 4 crirhinal law. We

- respectfully submit that this Court should -hold that the

_ Tule established in Bruton is not available to: fetro-

- actively attack a judgment of conviction.

ee Conclusion .

_ We respectfully urge this Court to retonsider its reie- )

activity ruling in Roberts v. Russell, 392 U.S. 293 st

(1968)... It is our feeling that the former procedure «=:

. did not create a grave risk of convicting innocent de- ; |

fendants, thereby: affecting” the reliability of the fact- Pee ee :

__ finding process. State and federal prosecutors have jus-: : 4

-. tifiably’ relied. upor ‘over seventy yeags of precedent.

‘by this Court holding that any. prejudice resulting

_ from a codefendant’s statement can be- cured by in- ;

structions to the jury. To apply the new constitutional

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

: (1968) to cases tried under the old procedure would |

_, cause havoc in the administration of justice. |

The _extralucicil statements of the three codefend-

_ ants don 1 within the>ban of Bruton. Since

1 , i : = a ,’

- ‘3 1. &Q ee +28

Rhone was cross-examined by petitioner Harrington’s -

‘counsel, the admission of Rhone’s. confession does not

violate petitioner’s Sixth Amendment rights. ‘The ex--

trajudicial statements of Bosby and Cooper only refer

'; toa “male white,” “Caucasian,” etc, and do not neces--,

- sarily implicate petitioner Harrington, In fact, the

Pais description of the white man in Bosby’s statement does

~ not fit petitioner Harrington. : , cree cae

The vast-majority of the cases which tee discussed | |

the issue have held that the Bruton rule is subject_ se

harmless error standard.” Both logic and sound pol cy

support the majority view. There are significant varia-

bles in each extrajudicial statement, with respect to their

_ inculpating ef fect and whether théy added critical weight .

ge he to the. prosecution’ i. ee eee | ay

’

’ Under. the harmless error standard enunciated in

Chapman v. Bs alifornia, petitioner Harrington was not

‘prejudiced=by_ the admission of the three codefendants’ ai

extrajudicial statements. As noted before, petitioner

* Harrington was not denied his Sixth ‘Amendment right

of confrontation to codefendant Rhone’s -confession

since Rhone testified i in his own defense and was Cross-

' examined by petitioner Harrington’s trial counsel. The |

extrajudicial statements of Bosby and Cooper were ex- a

| tremely limited: in detailing the white man’s role in the é

robbery. In view. of the lack of ‘specificity i in the state-

ments of the latter two codefendants and the exceed-

ingly strong prosecution evidence, the admission of these

— was harmless: as to petitioner Harrington.

| ae

—32—

For the foregoing reasons, the judgment of. convic-

tion should be affirmed: . |

a Dated: -Los Angeles, California, cee 1, 1960,

cmncagheiatial m

P r)

’ .

;

‘ .

| Respectfully submitted,

Tuomas C. Lyncu,

Attoxney General,

ee oe

Assistant Attorney General,

R : ae Deputy Attorney General, -

Attorneys for Respondent.

‘

eet oe —

@P*-4enSnencsds

\.. \APPENDIX, - 7

| United States Constitution.

Sixth Amendment ;

In all criminal prosecutions, the actueed shall enjoy

the ‘right to a speedy and public trial, :by: an impartial

jury of the State and district wherein the crime shall

_ have been committed, which district shall have been pre-

ined by law, ‘and to be informed .of the

nature nd- cause of | ithe accusation; to be confronted Caee

_ witnesses against ‘him; to have compulsory

viously as

wit

process fot obtaining’ . witnesses - in * his favor, and to

have the assistance of counsel for his defense.

* Fourteenth AmendmeM

Section 1. All persons boris or mon in the

United States, and subject to’ ‘the jurisdictidy thereof,

Citizens of the United States and of t e state

= / po they reside. No state shall make or enforce

; any law which shall abridge the privileges or immuni-

| _ ties of citizens of the United States; nor” shall any

| state deprive any person of life, liberty, or property,

without due process of law; nor deny to any person —

‘ within ‘its jurisdiction the equal protection of the laws.

United States Code.

Tithe 28 | /

28 U.S.C. § 1257 (1964), 62 Stat. 929 (1949)

_ § 1257, State courts ; appeal ; certiorari

Final judgments or decrees rendered, by the highest

: court of a state in which a decision ‘edt be trad, “may

be reviewed by the Supreme Court as follows:

(1) By appeal, where is Seale in quéstionsthe ;

validity.of a treaty or statute of the United States .

and the décision is against its validity.

(2) “By ~apeal, where is drawn in question . the

validity of the statute of any state on the ground

of its being ‘repugnant to the Constitution, treaties -

or laws of the United States, and the dechion is, :

in favor of its vay.

(3) By writ of. certiorari, where the validity

of a treaty or statute of the United States is

drawn in-qtestion or where the validity of a State

_ Statute, is. drawn in question on the grqund. of its

being repugnant fo the/ Constitution, treaties or

laws of ‘the: United. States, or where any title,

right, privilege or immunity i¥ specially set up_or

claimed under the Constitution, treaties or statutes

of, or commission held or authority exercised un-

der, the United. States. @ :

28 U.S.C. § 2111 (1964), 63 - Stat. 105 (1949).

‘ease —St—

”y ’

Rhone was’ crosélexamined by petitioner ‘Harrington’s

counsel, the admission of Rhone’s confession “does not

violate petitioner’ 8 Sixth Amendment. rights. The ex-..

trajudicial statements of Bosby and Cooper orily refer

“to a “male white,” “Caticasian,” etc. and do not neces- -

sarily implicate, petitioner Harrington. Ine faet; the

description of the white man in Bosby’s statement does -

* not fit petitioner Harrington.

“ The vast majority of the case which mea discussed

the issue have held that the Bruton rule is subject to a

harmless error stafidard. . Both logic and sound policy

support the ° view. There are significant varia-

bles in each @xtrajudicial statement with respect to their

inculpating effect and whether they added critical weight

to the prosecution’ 8 case:

-- Under the harmless error standard enunciated in °

“. Chapman v. C alifornia, petitioner Harrington was not

prejudiced by the admission of the three codefendants’

extrajudicial statements. As noted before, petitioner

Harrington wasnat: denied his Sixth Amendment right

_ of confrontation to codefendant. Rhone’ s confession

__ since Rhone testified in higrown defense and was cross-

examined by petitioner. rrington’s trial counsel. Thé

extrajudiial statement o Bosby and Cooper were ex-

tremely limited in detailing the white man’s role in. thé ’

robbery. In: view..of the lack of specificity in the state-

ments of the latter two codefendants and the exceed- *

ingly strong prosecution evidence,. the admission of these

’ statements was harmless as to petitioner Harrington.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.