Petitioners Brief — Nelson v. O'NEIL

The Sixth Amendment right to confrontation is satisfied

if there is an opportunity to cross-examine.......... 12

II

Any possible error in admitting Runnels’ confession was

DD sicnsheshweeedadsessnaebeeseknabeae esis 24

Ill

Failure to adhere to the exhaustion doctrine undermines

federal-state relationships and unduly burdens federal

Table of Authorities Cited

Cases Pages

Ashley v. California, 397 F.2d 270 (9th Cir. 1968)........ 99

Baker v. Wainwright, 422 F.2d 145 (5th Cir. 1970)......,

POPES eT TTT eT TTT TT CTT TCT Oe ee TCT ee 20, 22, 23, 24,

Blair v. California, 340 F.2d 741 (9th Cir. 1965)......... 9

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

Byrd v. Comstock, 430 F.2d 937 (9th Cir. 1970).......... %

California v. Green, 395 U.S. 149 (1970)................ passim

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

eee Lok wh dekeana bas heaseu one 10, 12, 13, 14, 15, 16, 17,19

Dutton v. Evans, ........ US. ......, 91 S.Ct. 210 (1970)...... 25,27

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

hides cues c4kcdRED TOGA SS ALES OROA Cees 22, 24, 25, 26, 28, 30

Hawkins v. United States, 417 F.2d 1271 (5th Cir. 1969),

cert. denied 397 U.S. 914 (1970)....... cece eeceeenees 93

Ignacio v. Guam, 413 F.2d 513 (9th Cir. 1969)........... %

In re Whitehorn, 1 Cal.3d 504, 82 Cal.Rptr. 609 (1969)... 29

James v. United States, 416 F.2d 467 (5th Cir. 1969)..... 8

McHenry v. United States, 420 F.2d 927 (10th Cir. 1970) 2

Mendez v. United States, 429 F.2d 124 (9th Cir. 1970).... 2%

Parker v. United States, 404 F.2d 1193 (9th Cir. 1968)

pine be ben Get etn sks 06440080 en bas eeeeeuseeascuuawes 19, 23, 28

Rios-Ramirez v. United States, 403 F.2d 1016 (9th Cir.

SED 446.04 Kaceecedenaeeaeneeenebebeelecanaseccetanes 23

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

Santoro v. United States, 402 F.2d 920 (9th Cir. 1968)

ik vanGe Cau MER LIMEEER a Tee aes 19, 23, 25

Townsend v. Henderson, 405 F.2d 324 (6th Cir. 1968)

PEST TT eT TT ee ee ee ee ee ree 12, 15, 20

Trigg v. United States, 480 F.2d 372 (7th Cir. 1970)

inc bho 14S CREMEDOREDSERKADEREEANEMAL ALORS OREEEECanS 19, 21, 22

United States v. Bujese, 378 F.2d 719 (2d Cir. 1967).... 21

United States v. Bujese, 405 F.2d 888 (2d Cir. 1969).... 2

we S| SS

Tasie or Autuorities CITED iii

Pages

United States v. Cale, 418 F.2d 897 (6th Cir. 1969)...... 2

United States v. Carlson, 423 F.2d 431 (9th Cir. 1970).. 25

United States v. Catino, 403 F.2d 491 (2d Cir. 1968). .19, “20, 28

United States v. Eide, 427 F.2d 543 (9th Cir, 1970)...... 23

United States v. Guajardo-Melendez, 401 F.2d 35 (7th Cir.

OR ene 20, 21

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

cated on other grounds sub nom. Giordano v. United

EE TE MD CUD a cab avcencenscedecccracsncs 23

United States v. Insana, 423 F.2d 1165 (2d Cir. 1970)

eco ec L ed eAbhaeeaned Ghbbseewteahbanan’ 21, 22, 23

United States v. Jones, 402 F.2d 851 (2d Cir. 1968)...... 25, 27

United States v. Levinson, 405 F.2d 971 (6th Cir. 1968) 25

United States v. Marine, 413 F.2d 214 (7th Cir. 1969)... 22

United States v. Panepinto, 430 F.2d 613 (3d Cir. 1970) 28

United States v. Sims, 430 F.2d 1089 (6th Cir. 1970)..

DCL S Ghee eceekcabaunkudkkeesseenwese 19, 20, 22, > 23, 28

United States v. Weston, 417 F.2d 181 (4th Cir. 1969),

cert. denied 396 U.S. 1062 (1970)................00005 22

United States ex rel. Cheeks v. Russell, 424 F.2d 647 (3d

ic. Schick eg eGhakkk VLeCNecheshbnhe cad bhacds 22

United States ex rel. LaBelle v. Mancusi, 404 F.2d 690

DE Ltscciteheserentkeakaness sna seekcshues 25, 27

United States ex rel. Long v. Pate, 418 F.2d 1028 (7th Cir.

DP dihpaiti cine cecnnGaaeneadekeeuhecnek has Cal 22, 23

United States ex rel. Walker v. Fogliani, 343 F.2d 43 (9th

PE i. cache neds peskssab ieee keRb0C Ue eek bes nee 29

Wapnick v. United States, 406 F.2d 741 (2d Cir. 1969)... 25

West v. Henderson, 409 F.2d 95 (6th Cir. 1969)......... 20

Constitutions

United States Constitution :

i ee is ne CkaWheeheh bbuk ene 8

in: chhine seas ebahasansekinecueed 12, 13, 22

Statutes

Title 28, United States Code, Section 2254(b)............. 3, 29

5

;

cf

Iu the Supreme Court

OF THE

Anited States

OcToBER TERM, 1970

No. 336

Louts 8. NELson, Warden, California State |

Prison at San Quentin,

Petitioner,

vs. >

Joe J. B. O’NEt,

Respondent. :

On Writ of Certiorari to the United States Court of Appeals

for the Ninth Circuit

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Ninth Circuit, issued January 26, 1970, is

reported at 422 F.2d 319 (1970), and is also included

in the Appendix at pp. 111-26. The opinion of the

United States District Court for the Northern

District of California, issued July 12, 1968, is unre-

ported and is included in the Appendix at pp. 103-07.

2

JURISDICTION

On January 26, 1970, the United States Court of

Appeals for the Ninth Circuit affirmed the order of

the United States District Court for the Northem

District of California granting Joe J. B. O’Neil’s

petition for a writ of habeas corpus and ordering

him released from state custody. A petition for

rehearing was denied, with one judge dissenting, on

April 23, 1970. This Court granted certiorari on

November 9, 1970.

QUESTIONS PRESENTED

1. Whether Bruton v. United States, 391 U.S. 133

(1968), is violated when a confessing codefendant

testifies on the stand, but denies making the statement

implicating his codefendant.

2. Whether, under the circumstances of this case,

admission of the codefendant’s confession was harn-

ful.

3. Whether the doctrine of comity between federal

and state jurisdictions and the burden of habeas

corpus petitions upon the federal judiciary oblige a

federal district court to require a state prisoner to

exhaust state remedies made available by newly

announced constitutional standards.

3

STATUTE INVOLVED

The case involves Title 28, United States Code,

Section 2254(b), which provides:

“An application for a writ of habeas corpus

in behalf of a person in state custody pursuant

to the judgment of a state court shall not be

granted unless it appears that the applicant has

exhausted the remedies available in the courts

of the State, or that there is either an abuse of

available State corrective process or the existence

of circumstances rendering such process ineffec-

tive to protect the rights of the prisoner.”

STATEMENT OF THE CASE

A Proceedings in the State Courts

Joe J. B. O'Neil, the petitioner for a writ of habeas

corpus below and the respondent herein, was sen-

tenced to state prison by the Los Angeles County

Superior Court on July 17, 1965, after a jury had

found him guilty of kidnapping for purposes of

robbery, robbery in the first degree, and vehicle theft.

He appealed to the California Court of Appeal,

Second Appellate District, which affirmed his convic-

tion in an opinion filed on March 30, 1967 (certified

for non-publication). A petition for rehearing was

denied on April 26, 1967. He did not file a petition

for hearing with the California Supreme Court. An

application to recall the remittitur was denied by the

California Court of Appeal on February 7, 1967.

O’Neil filed a petition for a writ of habeas corpus

with the California Supreme Court on March 7, 1968,

4

which was denied without written opinion on March

20, 1968.

B. Proceedings in the Federal Courts

On April 25, 1968, O’Neil filed an application for

a writ of habeas corpus in the United States District

Court for the Northern District of California. An

order to show cause was issued and petitioner filed a

return thereto on May 17, 1968. A supplemental

return was filed on June 10, 1968, and a second sup-

plemental return was filed on June 13, 1968.' O’Neil’s

traverse was filed on June 21, 1968.

On July 12, 1968, the District Court granted the

writ and ordered O’Neil discharged from custody. It

also provided that execution thereof was to-be stayed

ten days to permit filing by petitioner of a notice of

appeal and, in the event an appeal was taken, custody

was not to be disturbed until further order of the

court. On the merits of the case, the District Court

concluded that there was harmful Bruton error.

Petitioner’s notice of appeal was filed on July 22,

1968, and a certificate of probable cause was issued

the same day.

On January 26, 1970, a panel of the United States

Court of Appeals for the Ninth Circuit, with one

judge dissenting, affirmed the order of the District

Court. A petition for rehearing, received one day late,

was ordered filed but on April 23, 1970, the petition

1The first supplement became necessary when this Court over-

ruled Delli Paoli in Bruton v. United States, 391 U.S. 123 (1968):

the second became necessary when, in Roberts v. Russell, 392 US.

293 (1968), this Court held the Bruton rule fully retroactive.

5

was denied with one judge dissenting. The Ninth

Circuit held that there was Bruton error because

there could be no ‘‘meaningful” cross-examination of

the respondent’s codefendant, and that this error was

harmful. It also determined that O’Neil was not

obliged to exhaust state remedies.

STATEMENT OF FACTS

On February 8, 1965, at approximately 10:30 p.m.,

Mr. Vance Collins was seated in his 1956 two-door,

white Cadillac which was parked in the lot of a

supermarket located at 3993 South Western Avenue

in the City of Los Angeles. He was awaiting his wife’s

return from grocery shopping. (RT 10-12.)?

Respondent O’Neil approached the passenger door

of the Collins’ automobile, opened it, and got in.

Respondent had a silver-plated gun and was pointing

it at Mr. Collins. Respondent told him, ‘“‘There is a

fellow on your other side. Would you let him in?”

The driver’s side of the door was opened, and Mr.

Collins leaned forward to let the second man in. The

second man, respondent’s codefendant Runnels, sat

down in the rear seat. (RT 12-15.)

Respondent told Mr. Collins to back the car out

of the lot. Mr. Collins, in fear, did as he was told.

Respondent continued to give him directions. As the

*As hereinafter used, “RT” refers to the reporter's transcript of

respondent’s state trial which was lodged with the District Court

— before the Court of Appeals, and is part of the record

6

victim drove, respondent told him that he ‘might get

hurt real bad” if he didn’t have money. Respondent

ordered Mr. Collins to hand over his wallet. Eight

dollars was taken, and Runnels returned the wallet

to him. (RT 16, 18-20.)

Approximately three and one-half blocks from the

market, respondent ordered the victim to stop and

exit from the car. Respondent still had the gun

pointed at him. Respondent ordered Mr. Collins to

walk to the rear of the car and then to cross the

street. Runnels got out of the back seat and stood

beside the vehicle for some time. Runnels then got

into the driver’s seat and drove away with O'Neil.

Mr. Collins returned to the market and notified the

police. (RT 17, 22-24, 42-43, 60.)

Approximately 1:00 a.m., February 9, 1965, a police

patrol unit received a radio message that a white

automobile with two male Negro occupants was sus-

piciously circling a liquor store. The officers drove

to the liquor store and talked to the manager. The

manager told the officers that the white vehicle was

first pointed out to him by a customer. The manager

then observed the vehicle circle the block two or

three times. These circumstances caused the manager

to become apprehensive and telephone the police. (RT

63, 67-68, 72, 89.)

At this point, one of the officers saw a white car

with two male Negroes approaching in an alley near

the liquor store. The vehicle was going slowly, and

the manager said, ‘‘That is the vehicle.” The auto-

mobile was a 1956 white Cadillac. (RT 69, 70, 75.)

7

Officers began following the Cadillac. O’Neil was

the passenger and Runnels was the driver. During the

pursuit, O’Neil was observed to throw what appeared

to be a shiny revolver from the car. Officers, with the

red light and siren, stopped the suspects. On the basis

of the radio call and the weapon, both occupants were

taken into custody on suspicion of armed robbery

when they alighted from the vehicle. Officers returned

to the location where the object landed and retrieved

a silver-plated .22 caliber revolver which was loaded

with four bullets. (RT 63-66, 71, 75, 78-80.)

O'Neil and Runnels were taken to the Culver City

Police station and the Cadillac was impounded. Ap-

proximately 4:00 p.m., February 9, 1965, they were

formally arrested by Los Angeles Police officers and

were taken to the University Police station. On the

evening of February 9, 1965, Mr. Collins went to the

University Police station. He was told that the

thieves may have been apprehended. Mr. Collins was

asked to view a police lineup and he positively identi-

fied O’Neil and Runnels from the lineup. (RT 26-27,

34-35, 48, 80, 96.)

The next day, February 10, 1965, at approximately

10:20 am., Officer Traphagen had a conversation with

Runnels. Runnels was advised that he did not have

to say anything; that anything he said might be used

in a later criminal prosecution; and that he had a

right to an attorney. There was no coercion nor were

there any promises of immunity. Runnels proceeded

to make a complete confession implicating O’Neil.

The court admitted the confession with an admoni-

8

tion to the jury that it was not to be considered

against O'Neil.’ (RT 92-93, 102-05; App. at 128-29,

137-40.)

The Defense

The mother and sister of O'Neil testified that he

and Runnels came to the O’Neil home at approxi-

mately 9:00 p.m. on February 8, 1965, They departed

shortly after 11:00 of that same evening. The mother

also testified that after her son’s arrest, she was told

by Mr. Collins that he was unsure of the identifica-

tion. (RT 162-63, 167, 175-77.)

Mr. Lee Brooks testified that on February 8, 1965,

at approximately midnight, he observed O’Neil and

Runnels sitting in a big white car near 61st Street

and Vermont Avenue in the City of Los Angeles. An

unknown man approached the car and began con-

versing with them. The man handed what appeared

to be keys to one of them. Runnels got into the

driver’s seat and drove off with O’Neil. (RT 145-47,

149-52, 157.)

8The trial judge gave limiting instructions when the confession

was actually introduced (RT 102; App. at 137) and gave the fol-

lowing standard instructions before the jury retired:

“Where evidence has been received against one of the de-

fendants but is not received as against the other, the jury

may consider such evidence only as against the defendant

against whom it was permitted to be received. It may not be

considered by the jury for any other purpose, or against any

other defendant.

“Where evidence has been received of a statement by one

of the defendants after his arrest and in the absence of his

co-defendant, such statement can be considered only as evi-

dence against the defendant who made such statement and

cannot be considered for any purpose as evidence against his

co-defendant.” (App. at 245-46.)

9

Runnels testified that he was with O’Neil on the

afternoon and evening of February 8, 1965. Runnels

stated that he and O’Neil left the O’Neil household

approximately 11:00 p.m. While sitting at a bus stop

around midnight, they obtained a ride from a person

known as “Gary”. Gary was driving a white 1956

Cadillac. He drove them to a night club and went

inside. They remained seated in Gary’s automobile.

Shortly thereafter, Gary returned to the car and

began conversing with O’Neil. Approximately 12:20

am. February 9, 1965, Gary gave the keys to O’Neil.

O'Neil was directed to bring the car back to the night

club around 2:00 a.m. (RT 181, 185-89, 200, 207; App.

at 143-47, 156, 162.)

Since O’Neil did not have a driver’s license, Run-

nels drove. They headed for Santa Monica, but on

the way O’Neil discovered a gun in the glove compart-

ment. They drove around the block and into an alley

to find a place to throw the gun. O’Neil threw the gun

out of the window. At this point, they were stopped

and arrested by police, Runnels denied making any

statement to police officers. (RT 189-92, 211, 213;

App. at 147-50, 165-67.)

Miss Mildred Manchester, the common law wife of

Runnels, testified that she talked with Officer Trap-

hagen on the morning of February 11, 1965. She was

informed that the officer would see that Runnels got

a life sentence if no statement was made as opposed

to a lesser sentence if the statement was forthcoming.

She was asked to see what could be done. Later that

day, Miss Manchester received a telephone call from

10

Runnels, and she relayed the officer’s message. Run-

nels informed her that he was not going to make a

statement. (RT 137-38, 140, 143.)

O’Neil testified that he spent the evening of Febru.

ary 8, 1965, in the companv of Runnels. His version

of the facts paralleled the story told by Runnels, In

addition, O’Neil was able to identify ‘‘Gary” as James

Garret. O’Neil admitted knowing the residence of

Garret, but on cross-examination indicated that no

attempt was made to subpoena him. (RT 217, 220,

238.)

SUMMARY OF ARGUMENT

The Court of Appeals concluded that when the

statement of a codefendant implicates another, non-

confessing codefendant, and the confessing codefend-

ant takes the stand and testifies, then the right of

confrontation is satisfied only if he admits making

the statement, but is not satisfied if he denies making

it. Yet, Douglas v. Alabama, 380 U.S. 415 (1965), and

other opinions of this Court demonstrate that the

right of confrontation is satisfied if there is oppor-

tunity to cross-examine. This opportunity exists re-

gardless of whether the codefendant admits or denies

the statement, for in either case he may be asked

about the content of the statement itself.

In the present case, meaningful cross-examination

was possible and in fact accomplished, albeit by the

prosecution. There is no reason why O’Neil himself

could not have made the same inquiry. Furthermore,

11

the most successful cross-examiner could not hope for

a better result; the denial that the statement was

made and the testimony favoring O’Neil. Thus the

Court of Appeals erred in concluding that meaningful

eross-examination was not possible.

In any event, the admission of the statement was

harmless. First, under California v. Green, 395 U.S.

149 (1970), the statement was admissible as sub-

stantive evidence against O’Neil. Secondly, admission

of the statement did not have a devastating impact

upon O’Neil’s defense because the other evidence was

overwhelming, and because the statement itself did

not attempt to shift the blame or serve as the only

evidence connecting O’Neil with the crime. Runnels

also denied confessing and gave testimony supporting

O’Neil’s defense, O’Neil was afforded the opportunity

to cross-examine Runnels, and limiting instructions

were given.

Lastly, petitioner suggests that it was wholly inap-

propriate for the District Court to decide the Bruton

question since the state courts had not heen given

an opportunity to consider the issue.

CD at ama!

Bera GAP A:

Ey TO RST RTT MN ot Me

THE SIXTH AMENDMENT RIGHT TO CONFRONTATION Is

SATISFIED IF THERE IS AN OPPORTUNITY TO Cross

EXAMINE.

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

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

Townsend v. Henderson, 405 F.2d 324 (6th Cir. 1968),

the majority opinion below concluded that O’Neil was

denied the right of confrontation because Runnels

denied making the confession implicating O’Neil and

thereby precluded effective cross-examination. O’Neil

v. Nelson, supra, at 321 (App. at 114-15). The ma-

jority misconstrued Douglas, misinterpreted Bruton,

and both misconeeived and failed to examine the

options available under the right of confrontation.

As a panel of the Sixth Cireuit did in Townsend

v. Henderson, supra, at 329, the majority seized upon

fortuitous Janguage found in Douglas, and quoted in

Bruton, for the proposition that only if the confessing

codefendant admits making the statement (here, Run-

nels denied making it) can the accused have effective

cross-examination, O’Neil v. Nelson, supra, at 321

(App. at 114):

“‘(E]ffective confrontation of Loyd [the code-

fendant] was possible only if Loyd affirmed the

statement as his. Loyd did not do so but relied

on his privilege to refuse to answer.” Douglas v.

Alabama, supra, at 420, quoted in Bruton v.

United States, at 127.

Yet when this Court in Douglas noted that ‘effective

confrontation of Loyd was possible only if Loyd

13

affirmed the statement as his,” the Court was merely

stating that cross-examination was impossible where

a codefendant stood fast on his right against self-

incrimination and thus did not testify at all. Obvi-

ously, as long as Loyd invoked his fifth amendment

right, he could not be cross-examined, whereas if he

waived that right and testified, then he could be fully

cross-examined. That this is indeed the proper in-

terpretation of Douglas is suggested by Caltfornia v.

Green, 399 U.S. 149, 162-63 (1970), in which this

Court stated :

“Ijn Douglas v. Alabama, .. . the defendant’s

supposed accomplice, Loyd, .. . refused to testify

on self-incrimination grounds. The confrontation

problem arose precisely because Loyd could not

be cross-examined as to his prior statement; had

such cross-examination taken place, the opinion

strongly suggests that the confrontation problem

would have been nonexistent... .”

The same language from Douglas was quoted in

Bruton because a similar conflict between fifth and

sixth amendment rights was involved. But as this

Court observed in California v. Green, ‘‘No confron-

tation problem would have existed if Bruton had been

able to cross-examine his co-defendant.” Jd. at 163

(footnote omitted).

Neither Douglas nor Bruton stands for the propo-

sition that if the codefendant takes the stand, but

denies rather than admits making the statement, an

accused is deprived of an opportunity to subject his

codefendant to effective cross-examination. This he-

comes patently clear when the options available to

14

the accused are examined. As illustrated in Figure

A, below, there are only a few possible avenues of

cross-examination available when the confession of a

codefendant is introduced at trial:

Figure A

OPTIONS AVAILABLE TO CROSS-EXAMINE

CONFESSING CODEFENDANT

TO TESTIFY (BRUTON ERROR)

TESTIFIES

CODEFENDANT REFUSES | CODEFENDANT

ADMITS MAKING DENIES MAKING

STATEMENT STATEMENT

ADMITS STATEMENT REPUDIATES

IS TRUE CONTENT

CROSS-EXAMINATION BY ACCUSED ON SUBJECT

OR DETAILS OF CONFESSION

If the codefendant does not take the stand (Bruton),

or if he is called but refuses to testify (Douglas) then

as

— Wasa tia) ;

ARERR RRRRIN EER eR STA PRET aes oN

7.

15

the accused cannot cross-examine him. However, if

the codefendant testifies, he either admits or denies

making the statement. If he admits making the state-

ment, he either admits that the statement is true or

repudiates its content and testifies that the statement

is false. But if the codefendant testifies, regardless

of whether he admits or denies making the statement,

he is always subject to cross-examination by the ac-

cused upon the subject or details of the confession.

Whether the codefendant admits or denies making

the statement, insofar as the accused’s right of con-

frontation is concerned, the result is always the same.

In its most recent opinion on this subject, which de-

clined to follow its 1968 decision in Townsend v.

Henderson, supra, the Sixth Circuit held:

‘A defendant is not denied his Sixth Amendment

right to confrontation when a_ codefendant’s

incriminating statement, which implicates the

defendant, is used against the codefendant during

trial if subsequently the codefendant takes the

stand in his own behalf. The right to confronta-

tion would then exist for the defendant regard-

less of whether the codefendan. denies or admits

making all or part of the incriminating and im-

plicating statement.” United States v. Sims, 430

F.2d 1089, 1091 (6th Cir. 1970) (emphasis added).

When that portion of the Douglas opinion upon

which the Ninth Circuit relied is taken in context,

Douglas supports the above proposition. In Douglas,

this Court observed :

‘In the circumstances of this case, petitioner’s

inability to cross-examine Loyd as to the alleged

5 . — — . . .

eee Sc a wah Weibe bet tebic tb Tar ees he 2" a Sait

Nee

16

confession plainly denied him the right to cross.

examination secured by the Confrontation Clause.

. . . Although the Solicitor’s reading of Loyd’s

alleged statement and Loyd’s refusals to answer,

were not technically testimony, the Solicitor'’s

reading may well have been the equivalent in the

jury’s mind of testimony that Loyd in fact made

the statement; and Loyd’s reliance upon the

privilege created a situation in which the jwy

might improperly infer both that the statement

had been made and that it was true. . . . Since

the Solicitor was not a witness, the inference

from his reading that Loyd made the statement

could not be tested by cross-examination. Simi-

larly, Loyd could not be cross-examined on a

statement imputed to him but not admitted by

him. Nor was the opportunity to cross-examine

the law enforcement officers adequate. ...

[Since their evidence tended to show only that

Loyd made the confession, cross-examination of

them as to its genuineness could not substitute

for cross-examination of Loyd to test the truth

of the statement itself.” Douglas v. Alabama, 380

U.S. 415, 419-20 (1965), partially quoted in Bru-

ton v. United States, 391 U.S. 123, 127 (1968).

The defect in Douglas arose because Loyd’s invocation

of his right against self-incrimination precluded any

cross-examination. Therefore Douglas could not cross-

examine Loyd as to whether ‘‘[1] the statement had

been made and that [2] it was true.” See also Bruton

v. United States, 391 U.S. 123, 127 (1968). Even if

the police officers could be examined as to whether

the statement had been made, Loyd could still not be

cross-examined ‘‘to test the truth of the statement

17

itself.” Thus, what Douglas really demonstrates is

that there are always two possible questions which can

be asked on cross-examination of any codefendant

who takes the stand: (1) Did you make the statement

[Yes? No?]; and (2) Is the content of that statement

true? See California v. Green, 399 U.S. 149, 158-59

(1970).

It is obvious that the availability of cross-exami-

nation into the substance of the statement does not

depend upon whether the codefendant admits making

the statement, for even if he does not, the accused

may still inquire into the facts contained in the pur-

ported confession ; *‘the truth of the statement itself.”

Therefore the availability and scope of inquiry re-

mains the same.

That this type of cross-examination was possible in

this case need not be the subject of speculation, for

such inquiry was actually had, albeit by the prosecu-

tion and counsel for Runnels. For example, the

prosecutor inquired as to whether Runnels had made

the statement at all:

“Q. No do you remember talking to Officer

Traphagen ?

Remember talking to him?

Yes, about this case?

Ain’t talked to him about no ease, no.

Didn’t you ever talk to him about the case?

No, I didn’t talk to him about the case.

Did he talk to you about the case?

Yeah, he talked to me about it.

Did he ask you any questions about your

whereabouts that night?

A. Yes, he asked me,

OPorPopop

18

Q. Did he ask you whether or not you had

robbed this man, Mr. Collins?

A. Yes, he asked me that.

Q. Did he ask you whether or not you had

taken his car?

A. He asked me that.

Q. Did he ask you what you were doing down

in Culver City.

A. Yes.

Q. Did you tell him that you had met O’Neil

earlier that night and talked about committing

some robberies?

A. I didn’t tell him anything. I told him I

had no comment to make.

Q. Didn’t you tell him that you went dow

to the Better Food Market?

A. Well, after he told me whatever I said

would be held against me, and I could wait to

talk to a lawyer, I decided I would wait to talk

to a lawyer, and I didn’t make no statement.

Q. None whatsoever?

A. That’s right.” (RT 210:9-211:16; App. at

164-65.)

““Q. Didn’t you tell Officer Traphagen you

went into the liquor store?

A. I told you I made no statement to Mr.

Traphagen.

Q. You refused to talk to him?

A. That’s right.

Q. Everything Officer Traphagen said you

told him, he is either mistaken or lying?

A. One of the two he is doing.” (RT 213:4

12; App. at 166-67.)

On direct examination, Runnels denied making the

statement. (RT 192:12-18; App. at 150.) He also

denied its substance.

19

“Q. Had you committed this robbery?

A. No.” (RT 192:10-11; App. at 149.)

Douglas requires that the accused be afforded an

opportunity to cross-examine the confessing codefend-

ant as to (1) whether he made the statement, and (2)

the content of the statement. Such inquiry was made

by both Runnels’ attorney and the prosecution, and

is similar to that found to remove any possibility of

Bruton error in another Ninth Circuit case, Santoro

v. United States, 402 F.2d 920, 922-23 (9th Cir. 1968).

There is, as suggested in Parker v. United States, 404

F.2d 1193, 1196-97 (9th Cir. 1968), no reason why

O'Neil could not have done so too. And furthermore,

as the Seventh Circuit observed in Trigg v. United

States, 430 F.2d 372, 375 (7th Cir. 1970), the defend-

ant’s “failure to examine his codefendant was the

product of his own inaction and not the result of

governmental improprieties.” See also United States

v. Catino, 403 F.2d 491, 496 (2d Cir. 1968).

The availability of cross-examination does not turn

on whether the codefendant admits or denies the

statement. United States v. Sims, 430 F.2d 1089, 1091

(6th Cir. 1970) ; cf. California v. Green, 399 U.S. 149,

158-59 (1970). Actually O’Neil could not have hoped

for a greater benefit from cross-examination than

when Runnels denied making the confession. As the

dissenting opinion in the court below states:

“In either case, O’Neil would be privileged

to cross-examine Runnels. The best O’Neil could

hope for would be for Runnels to testify that the

confession was false and that O’Neil did not

commit the crimes. Here, Runnels gave O’Neil

20

all that and more. He denied that he confessed

and said that O’Neil was not at the scene of the

crimes.” O’Neil v. Nelson, supra, at 325 (Arp. at

125).

The Fifth Circuit made the same analysis: that the

confessing codefendant gives the defendant the maxi-

mum benefit of cross-examination when he denies

making the statement. Baker v. Wainwright, 422 F.4d

145, 148 (5th Cir. 1970). And in California v. Green,

399 U.S. 149, 159 (1970), this Court suggested the

same conclusion :

“The most successful cross-examination at the

time the prior statement was made could hardly

hope to accomplish more than has already heen

accomplished by the fact that the witness is now

telling a different, inconsistent story, and—in

this case—one that is favorable to the defendant.”

The opinion of the Ninth Circuit herein, and of

other courts reaching the same result,‘ rather than

4The Ninth Cireuit is not the only court which has at one time,

with at least one panel of judges, decided that where the co

defendant denies making the)statement then there can be no mean-

ingful cross-examination. In West v. Henderson, 409 F.2d 95, 91

(6th Cir. 1969), and Townsend v. Henderson, 405 F.2d 324, 329

(6th Cir. 1969), several panels of the Sixth Circuit reached this

conclusion. -However, in United States v. Sims, 430 F.2d 1089,

1091 (6th Cir. 1970), after referring to West and Townsend as

an inconsistent line of cases, the Sixth Cireuit specifically held

that the right of confrontation did not depend upon whether

the statement was admitted or denied. But Sims did not over-

rule either West or Townsend. In a somewhat similar vein is

United States v. Guajardo-Melendez, 401 F.2d 35, 38-39 (7th

Cir. 1968), in which a panel of the Seventh Circuit held that

where an agent testified as to a confession by Hernandez impli-

eating Guajardo-Melendez, and Hernandez testified (he was not

cross-examined, however), there was error. The court therein

held that the Bruton rationale did not strictly apply and gave

no specific basis for the decision. Ibid. However, it would appear

21

underscoring the role of cross-examination seems to

belittle it. In California v. Green, 399 U.S. 149, 158-

59 (1970), this Court emphasized the function of con-

frontation in testing the credibility of extrajudicial

statements—if not the availability of cross-examina-

" tion when the statement is denied:

“Confronation: (1) insures that the witness will

give his statements under oath—thus impressing

him with the seriousness of the matter and guard-

ing against the lie by the possibility of a penalty

for perjury; (2) forces the witness to submit to

cross-examination, the ‘greatest legal engine ever

invented for discovering the truth’; (3) permits

the jury that is to decide the defendant’s fate to

that Guajardo-Melendez was considered by the court to be more

a case of prosecutorial misconduct than Bruton error. See id. at

39. Yet Guajardo-Melendez, insofar as it turns on Bruton, seems

inconsistent with the subsequent decision in Trigg v. United

States, 430 F.2d 372 (7th Cir. 1970). In that ease statements

of Burris were related by Turnbou in rebuttal to Burris’ testi-

mony. No Bruton error was found since Trigg could have called

Burris back to the stand for further examination. Jd. at 374-75.

Guajardo-Melendez was held inapplicable since the incriminating

statements were either neutral or necessary to prove Burris’

illegal intent, id. at 375, thus supporting our conclusion that

Guajardo-Melendez was not really a Bruton case at all. One

other case also deserves mention. In United States v. Bujese, 378

F.2d 719 (2d Cir. 1967), a codefendant took the stand and

denied guilt, but on cross-examination, when confronted with a

confession implicating Bujese, confessed. However, the code-

fendant testified that insofar as his statement implicated Bujese,

it was incorrect; Bujese had refused to take part in the crime.

The Second Circuit initially affirmed the conviction, but this

Court vacated and remanded for reconsideration in light of Bru-

ton, 392 U.S. 297 (1968). On remand, the case was reversed

without discussion of the Bruton aspect. United States v. Bujese,

4 F.2d 888, 889 (2d Cir. 1969). Bujese, however, cannot be

reconciled with a later Second Circuit case, United States v.

Insona, 423 F.2d 1165 (2d Cir. 1970). In that one, Schurman

had made extrajudicial statements implicating Insana, but took

the stand and claimed he could not remember. Without men-

timing Bujese, the court therein held that there was no Bruton

error. Jd. at 1168.

22

observe the demeanor of the witness in making

his statement, thus aiding the jury in assessing

his credibility.

“It is, of course, true that the out-of-court

statement may have been made under circum.

stances subject to none of these protections. But

if the declarant is present and testifying at trial,

the out-of-court statement for all practical pur-

poses regains most of the lost protections. If the

witness admits the prior statement is his, or if

there is other evidence to show the statement is

his, the danger of faulty reproduction is negligi-

ble and the jury can be confident that it has

before it two conflicting statements by the same

witness. Thus, as far as the oath is concerned,

the witness must now affirm, deny, or qualify the

truth of the prior statement under the penalty of

perjury. .. .” (Emphasis added.)

It is obvious from Bruton v. United States, 391

U.S. 123, 128, 132, 136 (1968), and Harrington v.

California, 395 U.S. 250, 252-53 (1969), that if the

accused is given the opportunity to cross-examine, the

sixth amendment right of confrontation has been

satisfied. This seems to be the view of the various

other courts of appeals. Even five other panels of

SU nited States v. Sims, 430 F.2d 1089, 1091 (6th Cir. 1970);

Trigg v. United States, 430 F.2d 372, 374-75 (7th Cir. 1970);

United States v. Insana, 423 F.2d 1165, 1168 (2d Cir. 1970);

Baker v. Wainwright, 422 F.2d 145, 147-48 (5th Cir. 1970);

United States v. Cale, 418 F.2d 897, 899 (6th Cir. 1969); United

States v. Weston, 417 F.2d 181, 187 (4th Cir. 1969), cert.

denied, 396 U.S. 1062 (1970); United States v. Marine, 413 F.2d

214, 217-18 (7th Cir. 1969); United States v. Catino, 403 F.2d

491, 496 (2d Cir. 1968); see United States ex rel. Cheeks ¢.

Russell, 424 F.2d 647 (3d Cir. 1970); McHenry v. United States,

420 F.2d 927, 928 (10th Cir. 1970); United States ex rel. Long

23

the Ninth Circuit have suggested as much.* It is also

the central holding of California v. Green, 199 U.S.

149, 153, 158 (1970).

That a defendant fails to cross-examine because the

eodefendant denies making the statement and hence

believes that cross-examination would be fruitless—

apparently the rationale behind the Ninth Circuit’s

conclusion that there could be no ‘‘meaningful” cross-

examination—does not render the witness unavailable

for cross-examination. United States v. Sims, 430 F.2d

1089, 1091 (6th Cir. 1970); see United States v. In-

sana, 423 F.2d 1165, 1168 (2d Cir. 1970); ef. Cali-

fornia v. Green, 399 U.S. 149, 158-59 (1970). When

he denies making the statement, the codefendant

actually diminishes its impact. See California v.

Green, supra, at 159. Thus the proper resolution of

the question now before this Court is found in United

States v. Sims, supra, and Baker v. Wainwright, 422

v, Pate, 418 F.2d 1028, 1030 (7th Cir. 1970); Hawkins v. United

States, 417 F.2d 1271, 1273 (5th Cir. 1969) cert. denied, 397

US. 914 (1970); James v. United States, 416 F.2d 467, 475 (5th

Cir. 1969); United States v. Hoffa, 402 F.2d 380, 387 (7th Cir.

1968), vacated on other grounds sub nom. Giordano v. United

States, 394 U.S. 310 (1969).

Cases which support respondent’s position, together with sub-

sequent cases casting doubt upon their continued vitality, are

diseussed in footnote 4, supra, at pp. 20-21.

*Mendez v. United States, 429 F.2d 124, 128 (9th Cir. 1970):

se Ignacio v. Guam, 413 F.2d 513, 515 (9th Cir. 1969): Parker

v. United States, 404 F.2d 1193, 1196-97 (9th Cir. 1968): Rios-

Ramirez v. United States, 403 F.2d 1016, 1017 (9th Cir. 1968):

Sentoro v. United States, 402 F.2d 920, 922-23 (9th Cir. 1968).

Two other Ninth Circuit cases are neutral: Byrd v. Comstock,

49%) F.2d 937, 938 (9th Cir. 1970): United States v. Eide, 427

P2d 543, 544 (9th Cir. 1970). No Bruton error was found in

Bide because the codefendant confirmed the statement in sub-

sance, nor in Byrd, because the codefendant admitted part of

the statement.

24

F.2d 145, 147-48 (Sth Cir, 1970). Insofar as the ma-

jority opinion below holds that O'Neil was denied the

right of confrontation, it is wrong.

il

ANY POSSIBLE BRROR IN ADMITTING RUNNELS'

OONFESSION WAS HARMLESS.

There are at least two reasons why the admission

of the codefendant’s statement was harmless, The first

of these is that the type of situation arising in

O’Neil’s case does not even give rise to error of consti-

tutional dimension. As long as the declarant (here

Runnels) is available for crossexamination, then

even the use of his statement as substantive evidence

against his codefendant is not constitutional error.

Califorma v. Green, 399 US. 149, 153-64 (1970).

O’Neil got even better than that, for the evidence was

admitted only against Runnels (RT 102; App. at

137).

Secondly, under Harrington v. California, 395 US.

250 (1969), Bruton error may be considered harmless

where the evidence presented by the prosecution was

overwhelming. Even if the disavowal of his confes-

sion by respondent’s codefendant and_ respondent's

failure to cross-examine his codefendant were con-

sidered Bruton error, since the evidence was over-

whelming, and the confessions did not have a devastat-

ing impact upon respondent’s defense, any error was

harmless,

Of

Bruton error is “harmful” error only if the eode-

fendant’s confession has a devastating impact upon

the non-confessing defendant’s defense, In Bruton v.

United States, 391 U.S. 123, 135 (1968), this Court

observed that under some cireumstances a jury eould

be expected to follow limiting instructions, while in

others ;

“T1] the risk that the jury will not, or eannot,

follow instructions is so great, and [2] the conse-

quences of failure so vital to the defendant, that

the practical and human limitations of the jury

system cannot be ignored.”

In Bruton, if the eodefendant’s confession were ex-

duded, Bruton’s involvement in’ the erime rested

wlely upon the testimony of a single witness whose

identification could not. be supported through the

testimony of the only other eyewitness, Since neither

defendant offered a defense, the eodefendant’s confes-

sion obviously had a vital effect. upon the case. The

necessity of a devastating impact before Bruton error

an be held harmful has also been suggested by

several lower courts which have applied the rule’ and

appears to be the conclusion of this Court in Dutton

rv. Evans, ........ US. cng ee OT S.Ct. 210, 219 (1970).

In Harrington v. California, 395 US. 250, 254

(1969), the Bruton error was found harmless because

Camen finding no “vital impact” include: Wapnick v. United

Mates, 406 F.2d 741, 742-43 (2d Cir. 1969); United States v.

Lainwn, 405 F.2d 971, 988 (6th Cir. 1968); see United States

r, Corlson, 423 F.2d 431, 487-38 (%h Cir. 1970); Santore v.

Tnited States, 402 F.2d 920, 923 (9th Cir. 1968). Cases finding

a “devastating effect” include: United States ex rel. LaBelle v.

Mancusi, 404 F.2d 690 (2d Cir. 1968) ; United States v. Jones,

ft F.2d 851 (2d Cir. 1968).

26

‘the case against Harrington was so overwhelming

that we conclude that this violation of Bruton was

harmless beyond a reasonable doubt. .. .” This Court

therein noted that one of the confessing codefendants

who implicated Harrington testified and was cross.

examined. 7d. at 253. Other witnesses ‘‘testified he

had a gun and was an active participant.” Ibid. Fur.

thermore, ‘‘the case against Harrington was not

woven from circumstantial evidence.” Id. at 254. Even

though the implicating confessions of two codefend-

ants who did not testify were erroneously admitted,

‘‘apart from them the case against Harrington was

. overwhelming, . . .” Ibid. (Emphasis added.)

This Court thus held that Bruton error was harmless

if overwhelming evidence apart from that erroneous

under Bruton had been offered at trial.

The majority below concluded that Runnels’ con-

fession was ‘‘harmful” to the defense because ‘‘some

doubt was raised about the victim’s identifications,”

‘*the alibi witnesses stuck to their stories,” and ‘“‘the

remarkable agreement between Runnel’s [sic] out-of-

court statement and the vietim’s testimony is very

persuasive; the statement offers 1 plausible explana-

tion of the defendant’s motives and actions before,

during and after the robbery.” O’Neil v. Nelson,

supra, at 322-23 (App. at 118). The appropriate in-

quiry, however, is not whether the confession may

have had any effect upon the trial, see Harrington v.

California, 395 U.S. 250, 254 (1969), but whether it

had a ‘‘devastating impact” upon the defense hecause

of its content, the nature of the defense, and the state

of the prosecution’s evidence absent that confession,

see Dutton v. Evans, ........ if ae Fe

219 (1970).

Under the facts of this case, the Runnels’ confes-

sion could not have had any significant effect upon

O’Neil’s defense for a number of reasons:

(1) Absent Runnels’ confession, the evidence was

overwhelming. The victim, a percipient witness, posi-

tively identified O’Neil and Runnels as the two men

who robbed him and stole his car, threatening him

with a silver-plated pistol. O’Neil and Runnels were

found driving the victim’s car, and O’Neil was seen

throwing a silver-plated pistol away.

(2) The confession did not have a devastating im-

pact upon O’Neil’s defense since:

(a) It was merely descriptive, and did not

attempt to shift the blame to O’Neil. Compare

United States ex rel. LaBelle v. Mancusi, 404 F.

2d 690 (2d Cir. 1968).*

(b) It was not the only substantial evidence

connecting O’Neil to the crime. Compare Bruton

v. United States, 391 U.S. 123, 127-28 (1968)

(which must be read in light of the facts set out

in 375 F.2d 355, 357); United States v. Jones,

402 F.2d 851 (2d Cir. 1968).

‘The majority opinion states, “Runnels’ purported statement

... gives considerable eredit to O’Neil for masterminding and

i the day’s work.” O’Neil v. Nelson, supra, at 320 (App.

at 112). The only support for such a conclusion to be found in

Runnels’ confession is where he states, “O’Neil asked him if he

wanted to make a couple of hits,” and “O’Neil had the gun... .

and) went up to the driver... .” (RT 103; App. at 137-38.)

every other case, Runnels said “they” did this or that. The

quoted passages can hardly be characterized as crediting O'Neil

with “masterminding and directing.”

28

(c) O'Neil had the opportunity to cross.

examine Runnels, but declined to do so. See Par.

ker v. United States, 404 F.2d 1193, 1196-97 (9th

Cir. 1968) ; United States v. Catino, 403 F.2d 491,

496 (2d Cir. 1968).

(d) Runnels actually took the stand, denying

having confessed and repudiating the contents of

the confession by testimony contrary thereto,

Baker v. Wainright, 422 F.2d 145, n.9 at 148 and

accompanying text (5th Cir. 1970) ; see California

v. Green, 399 U.S. 149, 159 (1970).

(e) Runnels’ testimony at trial fully sup

ported O’Neil’s defense. See United States v.

Panepinto, 430 F.2d 613, 617 (3d Cir. 1970).

(3) Limiting instructions were given. See

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

cf. United States v. Sims, 430 F.2d 1089, 1091

(6th Cir. 1970).

Insofar as the majority opinion concludes that any

error was “harmful,” it is erroneous.

III

FAILURE TO ADHERE TO THE EXHAUSTION DOCTRINE UN-

DERMINES FEDERAL-STATE RELATIONSHIPS AND UN-

DULY BURDENS FEDERAL COURTS.

As the majority opinion notes, Q’Neil v. Nelson,

supra, at 323 (App. at 119), “‘the Bruton question

was never presented to the state courts for the very

good reason that Bruton had not been decided when

29

O'Neil filed his federal petition.” Under previous

decisions of the Ninth Circuit, a federal habeas peti-

tioner is required to exhaust state remedies made

available by the announcement of new constitutional

standards before he applies to the federal courts for

relief. Ashley v. Caltfornia, 397 F.2d 270, 271 (9th

Cir. 1968) ; United States ex rel. Walker v. Fogliani,

343 F.2d 43, 46-48 (9th Cir. 1965); Blair v. Cali-

fornia, 340 F.2d 741, 744 (9th Cir. 1965).

Some court must assess the ‘“‘Bruton error” in

light of the trial record, and determine whether in

view of the evidence at trial, and the nature and

content of the confession, the admission of the con-

fession was harmless. This task should initially be

left to the state courts, which have shown their

willingness to examine Bruton claims, see, ¢.9., In re

Whitehorn, 1 Cal.3d 504, 506, 509, 82 Cal.Rptr. 609,

611-12 (1969), both in the interests of comity and to

reduce the burdens upon the federal courts; these

being the purposes of Title 28 United States Code,

section 2254(b). As this Court only recently noted in

California v. Green, 399 U.S. 149, 168-70 (1970), a

harmless-error question is more appropriately re-

solved by the state court in the first instance. Insofar

as the majority below concludes that it was proper

for the district court to pass upon the Bruton claim

without referring the petitioner to the state courts,

the majority opinion errs.

30

_ CONCLUSION

As a result of the majority opinion below, which

cannot be reconciled with Green, the sixth amend-

ment right of confrontation has been contorted be

yond recognition, the Bruton rule carried past the

pale of logic, and Harrington has suffered serious

erosion. Furthermore, delicate federal-state relations

are subjected to unnecessary strain while the federal

judiciary shoulders an even greater share of the bur.

den of collateral review. For these reasons, we respect-

fully urge that the judgment below be reversed.

Dated, San Francisco, California,

January 28, 1971.

EVELLE J. YOUNGER,

Attorney General of the State of California,

ALBERT W. Harris, JR.,

Assistant Attorney General,

JOHN T. MurPHY,

Deputy Attorney General,

Cuartes R. B. Kirk,

Deputy Attorney General,

Attorneys for Petitioner.