# Respondents Brief — Harrington v. California > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0107%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 250 ## 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 4 - 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 o “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 “ _ 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 ; . 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 - © two-week trial, the jury found each defendant guilty of . 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. ] +>. a 3» 4 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. et "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: . _., 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 ‘ 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 in Bruton. I d. 5 , ° : , : « >. 7 . 2 Bed . > i. * > oC 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 ¢ “ ae ‘ / a | . 4 POY INLIOS POEY EII EP " rington enter and leave the’ store identified petitioner _“ wg =) “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 wy iA 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- i. 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 7a 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 “ . 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 ,’ ae - ‘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 P . —32— For the foregoing reasons, the judgment of. convic- tion should be affirmed: . | a Dated: -Los Angeles, California, cee 1, 1960, Se cmncagheiatial m P r) \ ’ . : ; ‘ . | Respectfully submitted, Tuomas C. Lyncu, Attoxney General, ee oe Assistant Attorney General, : James H. King, © R : ae Deputy Attorney General, - Attorneys for Respondent. ‘ re 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 a 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0107%3A04. Public record. Not legal advice.