Respondents Brief — Nelson v. O'NEIL

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TABLE OF CONTENTS

ENT:

Police testimony as to an unrecorded oral

> statement made by a suspect during custodial

| interrogation accusing another of participation

in a crime is inherently unreliable, yet devastating,

| evidence of the guilt of the accused person........... 8

Unless the reported accusatory statement is

: sffirmed in court by the suspect who allegedly

' made it, police testimony as to its contents cannot

be spread before the jury determining the accused’s

guilt without unconstitutionally denying the

accused his right to cross-examine his accusers as

guaranteed by the Confrontation and Due Process 13

: | The constitutional error of laying the police

- officer’s evidence of Runnels’ unaffirmed accusation

' of O'Neil before the jury charged with determining

| ONeil’s guilt cannot, on this record, be said to

i have been harmless beyond a reasonable doubt;

: nor would any policy underlying the doctrine of

> exhaustion of remedies be served by requiring

» O'Neil to present this claim of error to the

© state courts yet another time .........----+--+++: 22

TABLE OF AUTHORITIES

fed v. United States, 282 U.S. 687 (1931) ......... 10, 11, 12

iy v. United States, 426 F.2d 877 (8th Cir. 1970) ....... 23

mn v. Nelson, 390 U.S. 523 (1968) ..........-006- 25

v. Wixon, 326 U.S. 135 (1945) ...... 2.0 eee eee 9

(it)

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

California v. Green, 399 U.S. 149 (1970) .............. é

Cash v. Culver, 358 U.S. 633 (1959) ........- 00sec eeee, oe

Chapman v. California, 386 U.S. 18 (1967)............0.. oe

Crawford v. United States, 212 U.S. 183 (1909) ........... Te

Delli Paoli v. United States, 352 U.S. 232 (1957)........... rh

District of Columbia v. Clawans, 300 U.S. 617 (1937) ....... If

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

Dutton v. Evans, 400 U.S. 74 (Dec. 15, 1970) ...... 9, 13, 20,23

Frazier v. Cupp, 394 U.S. 731 (1969) .... eee e eee eee ee I}

Gordon v. United States, 344 U.S. 414 (1953) ........... Il

Government of Virgin Islands v. Aquino, 378 F.2d

RRS nee pei nara 18

Harrington v. California, 395 U.S. 250 (1969).......... 22, 23,4

Harris v. New York, __ U.S. ___ (Feb. 24, 1971)......... 2

In re Groban, 352 U.S. 330 (1957)... cee eee eas 4

Jackson v. Denno, 378 U.S. 368 (1964) ................ 14, 25

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

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

Mitchell v. United States, 213 F.2d 951 (9th Cir. 1954),

cert. denied 348 U.S. 912 (1955) ......... ccc cece 19

On Lee v. United States, 343 U.S. 747(1952) ........... 10

People v. Aranda, 63 Cal.2d 518, 407 P.2d 265,

CP SID execs cta sens dennsscer sve Ms

Phelps v. United States, 252 F.2d 49 (Sth Cir. 1958) ....... I

Pointer v. Texas, 380 U.S. 400 (1965) ..............-.- x

Pope v. Harper, 407 F.2d 1303 (9th Cir. 1969) ........... 4

Regina v. Pipe, 51 Crim. App. R. 17 (C.A. 1966)

Roberts v. LaVallee, 389 U.S. 40 (1967) ...........0005

Roberts v. Russell, 392 U.S. 293 (1968).............0055

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

cert. denied 400 U.S. 847 (1970) 0... ce ees

(iti)

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

| cert. denied 395 U.S. 958 (1969), reh. denied 396

@ | J Beeeerererrrrrrrrr rrr rr rere eee 23

> United States ex rel. Walker v. Fogliani, 343 F.2d 43

(9th Cir. EPS re Ter Teer rere Tee 24

’ Constitution, statutes and rules:

_ Sixth Amendment, Confrontation Clause ............. passim

_ Fourteenth Amendment, Due Process Clause ...... 6, 7, 8, 13, 25

Miscellaneous:

ABA Standards, Joinder and Severance, §2.3(a)

NG, DED occ ccecvccncesessscsees 21

5 Se ls ay RUDE bi crc cewaseecovcene ss 10

Archbold, Criminal Pleading (37th ed. 1969):

Pt LeCuSES Ewha ae hh ae een eM e's ewasee¥ eae 10

el Beer rere ery ee ee 11

_ Brief for the U.S. as Amicus Curiae, California v. Green,

SE TOL DET Sc bvcenevescdveces vensene 20

Brief for the U.S. as Amicus Curiae, Dutton v. Evans,

TOE dcuccneicuuec creer nae eean 10

Busch, Law and Tactics in Jury Trials (1949):

DCCL CCRORLE OC FEOE RE TOSS SOSA ODE Sake OSES 16

_ SACRE POPE Tere eC EET TS Cre ee eT ee rere 17

PE Mcee ene n tag vs bene hee ee ehe ed beees ene 19

Driver, Confessions and the Social Psychology of Coercion,

re 12

McCormick, Evidence (1954):

eee Oe he a Ob) eG a 18

EEL Eee hE NAE RRA CRETE ARRON CO UES 16

ES Ee er er ee aa 16, 18

Ps ioe ke kee ak aw dee eee se wo ee aa 17

CLS Aint 6S sak hake oe ae Reb eee ae oe 12

IE eg ee armas Es 11

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Note, Developments In the Law—Federal Habeas Corpus,

} SS METTLE TET

.. Note, Harmless Constitutional Error: A Reappraisal,

| Be RPT TT Tere eee eee

Record, Harrington v. California, Oct. Term 1968, No. 750 ...

Wigmore, Evidence, §967 (Chadbourn rev. ed. 1970) .......

Wigmore, Evidence (3d ed. 1940):

J a een sr eee gre eee

seme PE SR

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1970

No. 336

LOUIS S. NELSON, WARDEN, CALIFORNIA STATE

PRISON AT SAN QUENTIN,

Petitioner,

¥.

JOE J. B. O’NEIL

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR RESPONDENT

QUESTIONS PRESENTED

In a joint criminal trial before a jury the prosecution was

allowed to introduce into evidence testimony by a police

officer that during custodial interrogation of one of the

accused, Runnels, he obtained from him an oral statement

which, as reported in court by the officer, incriminated not

only Runnels but also the other accused, respondent O’Neil.

The questions presented are:

—_

PELE SG EMT AERA ARUT ATTA

2

1. Whether the fact that Runnels took the stand and

denied having made any statement removes the case from

the rule of Douglas v. Alabama, 380 U.S. 415 (1965) and

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

2. Whether, in light of the evidence properly admitted,

the case against O’Neil was so overwhelming that a review.

ing court should conclude that admission of the evidence

of Runnels’ statement was harmless beyond a reasonable

doubt.

3. Whether, after the state courts have reviewed O’Neil’s

claim on both direct and collateral review, any policy under.

lying the doctrine of exhaustion of remedies would be served

by requiring O’Neil to return to the state courts yet another

time.

STATEMENT

A. THE TRYAL

Respondent O’Neil and a co-defendant, Runnels, were

jointly tried and convicted by a California jury on charges

of kidnapping for purposes of robbery, armed robbery and

vehicle theft. (A. 103)! The prosecution’s case was pre-

sented through the testimony of the victim and two police-

men.

The victim testified that two men entered his parked car

at gunpoint at 10:30 p.m. on the night of February 8, 1965,

in the city of Los Angeles. According to the victim, they

forced him to drive several blocks, and after taking about

eight dollars from him and making him get out of the car,

they drove off. (R.T. 10-22) The victim at once reported

the crime to the police. (R.T. 23) Subsequently, at a line

'“A.” refers to the printed Appendix herein. “R.T.” refers to the

Reporters’ Transcript of the State trial proceedings, on file with the

Clerk. “Pet. Br.” refers to the Brief for the Petitioner herein. It

should be noted that the excerpts from the Reporters’ Transcript

printed in the Appendix do not always appear in order.

nmoeowagcove Renesas Ss S5

3

E wp (RT. 27) and at trial (R.T. 13, 15), he identified O’Neil

- and Runnels as the two men who had committed the crime.

’ One of the two policemen, a Culver City patrol officer,

testified that in the early morning hours of February 9 he

_ had responded to a call from a liquor store manager con-

_ cerning a “suspicious white vehicle with two male Negro

occupants” circling the store. (R.T. 63, 67-68) When he

- followed the vehicle in his squad car, one of the occupants

threw a gun from the vehicle. (R.T. 64) Thereupon, he

stopped the vehicle and arrested its occupants. (R.T. 65-66)

The vehicle belonged to the victim (R.T. 11, 63), and its

occupants were O’Neil and Runnels. (R.T. 65) At the time

of the arrest, the patrol officer had no knowledge of the

robbery of the victim. (R.T. 84)

The second policeman, a City of Los Angeles investigating

officer, stated that on the morning of February 10, after

having obtained custody of O’Neil and Runnels (A. 131), he

had a “conversation” with Runnels at the jail where he was

being held. (A. 128) The officer testified that he advised

- Runnels of his rights (A. 129) and “stated to Mr. Runnels

that his wife had told me that O’Neil was putting all the

blame on him.” (A. 137) According to the officer, Run-

nels then made an oral statement which, as reported by the

officer, incriminated Runnels himself and identified O’Neil

as the instigator and principal actor in the robbery. (A.

137-39)? The officer testified that no one other than Run-

nels and himself was present at the time of this statement

(A. 129), and that no recording of the staterient was made.

(A. 142) (The officer testified that a second officer was

present during a subsequent conversation with Runnels “to

the same effect,” but that no recording was made of this

conversation either (A. 142).)

In anticipation of the officer’s testimony, O’Neil’s counsel

had moved for a severance at the beginning of the trial (A.

ee

*The officer's testimony as to the substance of this statement is

teproduced as an appendix to this brief, infra, p. 27.

4

174-176), and he objected to the admission of the testimony

at the time it was offered. (A. 130-31) The court reject

both of these efforts to exclude the testimony, relying

instead on instructions to the jury that the evidence of a

statement by Runnels was not to be considered agains

O’Neil. (A. 137, 245-46)

Six witnesses appeared for the defense, including O'Neil

and Runnels, each of whom took the stand on his own

behalf. (R.T. 184, 216) The first witness, who identified

herself as the common-law wife of Runnels, stated that the

investigating officer informed her on February 11 (the day

after the confession was supposed to have been made) that

Runnels had as yet given no statement and that he would

see that Runnels got only “five to ten” instead of “‘one to

life” if she were to persuade Runnels to make a statement.

(R.T. 137)

On both direct examination by his own counsel and cross

examination by the prosecutor, Runnels flatly denied mak-

ing any statement of any kind to the investigating officer.

(A. 150, 164-67) O’Neil’s counsel did not examine Runnels.

(A. 150)

O’Neil’s mother and sister (as well as O’Neil and Runnels

themselves) testified that between 9:00 p.m. and 11:00 on

the night of February 8, 1965, O’Neil and Runnels were

dancing and drinking in the O’Neil home. (R.T. 163, 175-

76) O’Neil’s mother further testified that the victim of the

robbery had subsequently stated to her on the phone that

“the wasn’t for sure that he had the right boys.” (R.T. 176

77)

O’Neil and Runnels both testified that at 11 p.m. on

February 8 (one-half hour after the robbery had occurred),

they left tre O’Neil home together and hitch-hiked a ride

in what later turned out to be the victim’s car, which was

then being driven by a man known to Runnels as “Gary”

(A. 146) and to O’Neil as “James.Garrett.” (R.T. 220)?

30’Neil later testified on cross-examination that while he knew

how to get to where Garrett lived and had told the police about him,

he didn’t know the exact address of Garrett’s abode and had not tried

5

' according to their testimony, they were driven to the Top

- Cat Club, where Garrett consented to turn the keys of the

car over to O’Neil and Runnels, instructing them to return

the vehicle and park it near the Top Cat later that night.

(A. 144-49; R.T. 216-24) The defendants’ testimony as to

the transfer of the car to their possession was corroborated

by testimony from a patron of the Top Cat. (R.T. 144-51)

After securing the use of the car, O’Neil and Runnels

drove off for Sarita Monica, according to their testimony,

to visit some girls. (A. 147; R.T. 225) O’Neil and Runnels

testified that as they passed through Culver City, O’Neil dis-

covered a gun in the glove compartment of the car while

looking for a match. (A. 148, 164; R.T. 225-26) Accord-

~ ing to their testimony, they at once became “very uneasy”

over having a gun for which they had no permit; hence,

they turned around to go back to the Top Cat Club, drove

into an alley to throw away the gun, and were immediately

arested by the Culver City patrol. (A. 148, 164; R.T. 226-

29)

In his argument to the jury, the prosecutor relied on the

circumstances of the arrest (A. 183-85) and on the officer’s

evidence of the Runnels statement (A. 184-86, 219-20) to

corroborate the victim’s identification (A. 184-86, 219-20).

He invited the jury to weigh Runnels’ obvious motivation

to deny making the stateshent against the officer’s asserted

lack of motivation to claim falsely that a statement had

been given. (A. 188-89, 223-24) Defense counsel stressed

the possibility of a mistaken identification (A. 197-200,

208-11, 216) and relied on the substantial alibi evidence.

(A. 206-07, 213-16) As noted above, the jury convicted

both defendants on three counts of kidnapping for purposes

of robbery, armed robbery and vehicle theft. (A. 103)

f

to subpoena him as a witness. (R:T. 238-39) O’Neil further stated

that he had been incarcerated since the night of his arrest and had

had no opportunity to go by Garrett's residence. (R.T. 251)

6

B. SUBSEQUENT PROCEEDINGS

After the judgment of conviction was entered on June

17, 1965, respondent O’Neil appealed to the District

Court of Appeals. (A. 103) On March 30, 1967, that court

rejected his claim that the trial court had erred in failing to

grant him a separate trial free of the prejudice arising from

the State’s introduction of the officer’s testimony about a

statement by Runnels. (A. 39-47) Following denials of a

petition for rehearing and an application to recall the remit.

titur, O’Neil sought a writ of habeas corpus from the Cal-

fornia Supreme Court on March 7, 1968, urging that the use

in his trial of the evidence of a statement by Runnels was

constitutional error. (A. 48-65) He expressly relied on the

Sixth and Fourteenth Amendments in support of his claim.

(A. 60) O’Neil’s petition was denied on March 20, 1968.

(A. 66)

Thereafter, on April 25, 1968, O’Neil petitioned for a

writ of habeas corpus from the U.S. District Court for the

Northern District of California. (A. 28) The District Court

granted the writ, rejecting California’s arguments that the

error of admitting evidence of a statement by Runnels was

harmless beyond a reasonable doubt and that federal habeas

relief should be withheld because O’Neil might have a

remedy in the state courts under Bruton v. United States,

391 U.S. 123 (1968), which came down during the pend-

ency of the Federal habeas proceeding. (A. 103-07)

The Court of Appeals for the Ninth Circuit affirmed, one

judge dissenting (A. 111-26; 422 F.2d 319), and this Court

granted California’s petition for a writ of certiorari, 400 US.

901 (Nov. 9, 1970), appointing the undersigned attorney to

represent O’Neil in this Court. (In both the District Court

and the Court of Appeals, as in the California Supreme

Court, O’Neil appeared in propria persona. (A. 2, 5, 65))

7

SUMMARY OF ARGUMENT

_ This case involves a joint criminal trial before a jury in

- which the State put into evidence a police officer’s testi-

' mony that an oral staternent was made during custodial

interrogation by one of the accused, Runnels. As reported

in court by the officer, this statement incriminated both

Runnels and the other accused, respondent O’Neil. Police

testimony as to unrecorded oral accusations by suspected

accomplices during in-custody questioning has long been

recognized by courts to be at once powerfully damaging

and extremely unreliable. Yet California asks this Court to

hold that O’Neil’s rights under the Confrontation and Due

Process Clauses were not violated when such evidence was

spread before the jury determining O’Neil’s guilt, for the

season that Runnels took the stand and denied having made

the statement attributed to him.

The position advanced by California is contrary to Douglas

y, Alabama, 380 U.S. 415 (1965) and Bruton v. United

States, 391 U.S. 123 (1968). In those cases the accused’s

right to be confronted with the witnesses against him was

held to be denied not, as California would have it, simply

because the allegedly accusing accomplice did not testify,

but rather because he did not affirm the accusatory state-

ment in open court before the jury and* thereby expose

himself to cross-examination by the accused.

Without such an affirmation of the accusation by the per-

son allegedly making it, the accused cannot cross-examine

his accuser. Analysis of the nature of the cross-examination

demonstrates that if the alleged accuser will not affirm his

accusation in court, the accused has at most an opportunity

to rebut the evidence of the accusation. Thus, he may be

able to offer the witness’s present statement that he did not

make the prior statement attributed to him, just as he can

offer his own alibi testimony or any other type of evidence

in denial that is available to him. But where an accused is

incriminated by police testimony as to unrecorded oral

accusatory statements reportedly made by a suspected

8

accomplice during custodial interrogation, the mere oppor.

tunity to rebut so inherently unreliable—yet devastating-

an accusation is not an adequate substitute for the oppor.

tunity to cross-examine one’s accusers that is guaranteed by

the Sixth and Fourteenth Amendments.

The constitutional error of admitting the police officer’;

evidence of an accusation of O’Neil by Runnels cannot be

said to have been harmless beyond a reasonable doubt.

Through the testimony of six different witnesses, O’Neil

established a consistent, unshaken alibi defense that placed

him and Runnels away from the scene at the time of the

offense and provided as explanation for his subsequent

arrest in the victim’s car. In view of this evidence, and

the evidence of circumstances raising the possibility of a

mistaken identification, the Court of Appeals correctly held

it “more likely than not that Runnels’ statement dispelled

the doubts of the jury.” 422 F.2d at 323.

Finally, since the California courts have had an oppor-

tunity on both direct and collateral reivew to pass on O’Neil’s

constitutional objections to the evidence of an accusation

by Runnels, no basis exists in the doctrine of exhaustion of

state remedies for requiring O’Neil to return to the Califor-

nia courts yet another time.

I. POLICE TESTIMONY AS TO AN UNRECORDED ORAL

STATEMENT MADE BY A SUSPECT DURING CUS

TODIAL INTERROGATION ACCUSING ANOTHER OF

PARTICIPATION IN A CRIME IS INHERENTLY UNRE-

LIABLE, YET DEVASTATING, EVIDENCE OF THE

GUILT OF THE ACCUSED PERSON.

The kind of evidence challenged by respondent O’Neil in

this case is one of the most unreliable known to the law:

yet it is also one of the most devastating in its impact on

the accused. As Justice Harlan has recently noted, English

and American courts have for three centuries consistently

refused to admit proof of “‘a confession of an accomplice

9

é resulting from formal police interrogation” as evidence of

the guilt of an accused, and such exclusion is “universally

accepted.” Dutton v. Evans, 400 U.S. 74 (Dec. 15, 1970)

' (opinion of Harlan, J.); see Bruton v. United States, 391

YS. 123, 128 n. 3 (1968); id. at 138 (concurring opinion

of Stewart, J.); id. at 141-42 (dissenting opinion of White,

J). The untrustworthiness and devastating effect of such

evidence are the necessary starting point for a realistic asses-

ment of whether O’Neil was accorded a constitutionally

adequate opportunity to confront and cross-examine his

alleged accuser.

The indicia of untrustworthiness attaching to the account

of Runnels’ reported statement are numerous. First, the

alleged statement was admittedly an oral one that was not

recorded or otherwise transcribed by the police. The risks

of fabrication, distortion or simple error in reporting are

manifestly greater in the case of alleged oral statements by

suspects than when the statements are recorded or put in

writing and signed by the suspect. See McCormick, Evidence,

* 225 n. 2, 238 (1954); also Bridges v. Wixon, 326 U.S. 135,

150-51, 153 (1945).

Second, the alleged statement was secured and testified to

by a police officer charged with the duty of investigating the

offense. Contrary to the assertion of the prosecutor in his

argument to the jury, the officer was obviously not a totally

objective medium of transmission, since he had a special

interest in producing a solution for the reported offense.

See Dist. of Columbia v. Clawans, 300 U.S. 617, 630-31

(1937); In re Groban, 352 U.S. 330, 340-41 (1957) (dis-

senting opinion of Black, J.). Moreover, only this officer

was present when the statement was reportedly given, and

only one other officer, who did not testify, was present

when it was reportedly repeated.‘

‘The United States, in an amicus brief urging that States have the

power to dispense with “‘strict confrontation” where reliable out-of-

court statements are involved, has nonetheless stated that it “‘would

have grave difficulty with a statute or judicially created rule of evi-

dence which sought to authorize the admission into evidence in the

10 °

Third, the reported statement about the crime was made

by one who was, according to the officer’s testimony, an

accomplice in the commission of the offense. The extreme

unreliability even of in-court accomplice testimony has long

been recognized, and this perception underlies the various

special rules relating to accomplice testimony that courts

and legislatures have from time to time adopted.> The

recognition in law of the untrustworthiness of accomplice

testimony has been well expressed in the following Passage

from an opinion of the Court of Appeals for the Fifth

Circuit:

“A skeptical approach to accomplice testimony is a

mark of the fair administration of justice. From

Crown political prosecutions, and before, to recent

prison camp inquisitions, a long history of human

frailty and governmental overreaching for conviction

justifies distrust in accomplice testimony. Cobham’s

misplaced hope for immunity that helped send

Raleigh to the Tower is on the same level with the

hope of some narcotic peddler or some other poor

trial of one conspirator of a confession made to the police by another

after the conspiracy had terminated.” Brief for the United States as

Amicus Curiae, Dutton v. Evans, Oct. Term 1970, No. 10, p. 32 n.

24 (emphasis in original).

Sit has long been the custom, both in England and in the United

States, for the court not only to caution the jury as to the unusual

untrustworthiness of the testimony of an accomplice, but to advise

them not to convict on such testimony in the absence of some corro-

borating evidence. 7 Wigmore, Evidence, §2056 (3d ed. 1940); Arch-

bold, Criminal Pleading, §1293 (37th ed. 1969); 30 Am. Jur.2d,

Evidence, §1151; see Crawford v. United States, 212 U.S. 183, 204

(1909). In many jurisdictions these rules of practice have been con-

verted into rules of law. 7 Wigmore, op. cit.; Archbold, op. cit.; see

Cash v. Culver, 358 U.S. 633, 637 (1959). Many cases are reported

in which convictions based on accomplice testimony were reversed for

undue restriction of the accused’s right to bring out, on cross-exami-

nation, facts bearing on the credibility of the accomplice. 3A Wig-

more, §967 (Chadbourn rev. ed. 1970); cf. Alford v. United States,

282 U.S. 687 (1931). See On Lee v. United States, 343 U.S. 747,

757 (1952).

wretch to save his skin by laying the entire blame

on a friend or close associate.” Phelps v. United

States, 252 F.2d 49 (Sth Cir. 1958).

As the foregoing quotation suggests, a fourth indication

of the unreliability of Runnels’ reported statement about

O’Neil is that Runnels was under arrest and facing prosecu-

tion at the time he allegedly gave the statement. Under

such circumstances, the hope for leniency in return for aid-

ing the state provides the accomplice with a special “‘incen-

tive to involve others,” regardless of the fact or degree of

their true involvement. See Gordon v. United States, 344

US. 414, 421-22 (1953); Alford v. United States, 282 U.S.

687, 693 (1931). Indeed, in England the normal suspicion

of accomplice testimony incriminating an accused is deci-

sively heightened when the accomplice is, at the time he

gives his testimony, subject to criminal proceedings for

the offense in question. In such a case it has been lately

held that the admission of such testimony, though given in

open court by the accomplice himself, requires that the

conviction be quashed, notwithstanding the existence of

other “overwhelming evidence” against the accused. Regina

v. Pipe, 51 Crim. App. R. 17 (C.A. 1966); see Archbold,

Criminal Pleading, $1297 (37th ed. 1969). -

A fifth factor bearing on the unreliability of the alleged

statement by Runnels is the extent to which it is, as reportéd, :

a self-serving effort by Runnels, not merely to share, but to

shift blame for the crime from Runnels and to O’Neil.

Although the statement incriminates Runnels, it credits

O'Neil with first suggesting the crime and with playing the

major role in its execution. See Appendix, infra, p. 27. The

unreliability of a blame-shifting statement of this type is

reflected in the rule of evidence excluding any self-serving

parts of an out-of-court statement admitted as a declaration

against interest. See McCormick, Evidence, $256 at 553

(1954).

A sixth factor making Runnels’ reported statement unre-

liable evidence of O’Neil’s guilt is the fact that it was reported

12

to have been given during custodial interrogation. In the

past this Court has been keenly aware of the danger that

incriminating statements may be unreliable when made in

“the compelling atmosphere inherent in the process of

in-custody interrogation.” Miranda v. Arizona, 384 US.

436, 478 (1966). See, e.g., Alford v. United States, 28)

U.S. 687, 693 (1931). While it has been urged that “the

insistent and ever-present force of self-interest” (McCormick,

op. cit. supra, $109, at 226) can be expected to minimize

the dangers of mistake and falsehood in confessions, this

observation obviously has no application to in-custody

statements that accuse other persons of crime.

Nor is there need to speculate in this case as to the psy-

chological pressures that might have been brought to bear

on Runnels during his interrogation. A seventh index of

unreliability is the officer’s testimony that Runnels’ state-

ment was obtained when he was informed that his wife had

said that “O'Neil was putting all the blame on him.” (A.

137) This testimony indicates that the officer was resort-

ing to a common interrogation technique,® one that has

received the approval of this Court even when the interro-

gator’s statements about the suspected accomplice’s confes-

sion or accusation are admittedly false. See Frazier v. Cupp,

394 U.S. 731 (1969). Manifestly, however, resort to such

a strategem creates the gravest risk of unreliability insofar

as it evokes statements from the suspect incriminating others.

for the suspect’s natural tendency to share or shift blame

will be accentuated by his anger at his-supposed betrayer.

Finally, it must be borne in mind that Runnels did deny

having made the statement attributed to him, or any other

statement, and there was some evidence corroborating this

denial. (R.T. 137)

Notwithstanding the unreliability of police testimony as

to oral accusations allegedly made by suspects during cus-

©See Driver, Confessions and the Social Psychology of Coercion,

82 Harv. L. Rev. 42, 50-51 (1968).

Tn ee ee ee ee ee Oe ee eee

13

E odial interrogation, it is clear that such testimony is “‘power-

» fully incriminating” in the eyes of the jury, Bruton v. United

> States, 391 U.S. 123, 135 (1968), and does “inevitable harm”

» to the defendant named in the accusation. Delli Paoli v.

United States, 352 U.S. 232, 248 (1957) (dissenting opinion

of Frankfurter, J.). Juries of laymen, unfamiliar with the

dangers Of such evidence, unaware of the centuries

- of judicial hostility to it, cannot be expected to give it only

the small weight it deserves; instead they vastly overvalue it.

- Thus, the rule excluding such evidence from the jury’s con-

sideration is “universally accepted.” Dutton v. Evans, 400

_ US. 74 (Dec. 15, 1970) (opinion of Harlan, J.); see Bruton

y United States, 391 U.S. 123, 138 (1968) (concurring

opinion of Stewart, J.). California now urges, however, that

the Constitution places no bar in the way of the abandon-

ment of this salutary rule where the suspect is in court to

deny having made the accusations attributed to him by the

police. See Pet. Br. at 11, 24.

I. UNLESS THE REPORTED ACCUSATORY STATEMENT

IS AFFIRMED IN COURT BY THE SUSPECT WHO

ALLEGEDLY MADE IT, POLICE TESTIMONY AS TO

ITS CONTENTS CANNOT BE SPREAD BEFORE THE

JURY DETERMINING THE ACCUSED'S GUILT WITH-

OUT UNCONSTITUTIONALLY DENYING THE AC

CUSED HIS RIGHT TO CROSS-EXAMINE HIS AC-

CUSERS AS GUARANTEED BY THE CONFRONTA-

TION AND DUE PROCESS CLAUSES.

Notwithstanding the inherent unreliability and devastating

impact of the police testimony as to Runnels’ alleged accusa-

tory statement, California urges that because Runnels took

the stand and denied making any statement, “even the use

of his statement as substantive evidence against his co-

defendant [O’Neil] is not constitutional error.” Pet. Br.

at 24; also 11.7 In California’s view, the fact that the

"California is forced to this position. Bruton v. United States, 391

US. 123 (1968) indisputably held that limiting instructions to the

_ jury, such as were given in the instant case, are insufficient to protect

BEST COPY

AVAILABLE =

PUBLISHER’S NOTICE

14

alleged accuser took the stand and denied making any sta.

ment means that the accused had an adequate opportunity §

to confront and cross-examine his accuser. This positions — nat

however, contrary to the rationale of this Court’s Confron. | ™

ation Clause decisions and will not stand analysis.

The holding of the Court in Douglas v. Alabama, 380

U.S. 415 (1965) controls this case, as the court below

recognized. (422 F.2d at 321; A. 114) There the petitioner

and an alleged accomplice, one Loyd, were tried separately JF

on charges arising out of the same incident. Loyd was tried

first and convicted. He was planning to appeai his convic-

tion, however, when he was called as a prosecution witness

at the petitioner’s trial. Loyd took the stand, but relying

on the privilege against self-incrimination, he refused to

testify concerning the alleged crime. The State was then

allowed to “refresh Loyd’s recollection” by reading, in the

presence of the jury, Loyd’s purported confession incrimi-

nating the petitioner as the triggerman in the crime. This

Court reversed the petitioner’s conviction on the ground

that spreading Loyd’s out-of-court accusations before the

jury denied petitioner his right to cross-examination secured

by the Controntation Clause. In the words of ti> Court, |

“Loyd could not be cross-examined on a statement imputed

to but not admitted by him. ... [E]ffective confrontation

of Loyd was possible only if Loyd affirmed the statement

as his.” 380 U.S. at 419-20.

The principles of Douglas were followed three years later

in Bruton v. United States, 391 U.S. 123 (1968).° That

decision, like the case at bar, involved a joint trial in which

the prosecution spread before the jury testimony by an

investigative officer that during custodial interrogation of

~ wtinwenmmmeonw Sans 2S oS

an accused against the possibility that the jury will consider evidence

of his co-defendant’s incriminating statements in determining his guilt.

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

® Douglas was decided before O'Neil stood trial, and while Bruton

was decided after his conviction had become final, it was held retro-

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

15

+ one of the accused, Evans, he ovtained from him an oral

® statement which, as reported in court by the officer, incrimi-

S nated not only Evans but also the other accused, Bruton.

Evans, by not taking the stand, failed to affirm the state-

; ment attributed to him, and relying on Douglas, this Court

b held that Bruton was therefore denied his constitutional

right of confrontation because of the introduction of Evans’

' accusations “in a form not subject to cross-examination.”

391 U.S. at 127-28.

The case at bar is indistinguishable in principle from

Douglas and Bruton.? Runnels, like Loyd and Evans, was

' injeopardy for the same offense as his alleged accomplice,

respondent O’Neil, and could not affirm his purported ear-

fier statement without gravely endangering his own interests.

F While Loyd refused to affirm the purported statement by

- refusing to testify regarding the alleged crime, and Evans

failed to admit the statement imputed to him by not taking

f the stand at all, Runnels refused to affirm the statement

attributed to him by unequivocally denying that he had

| made any statement. The effect on O’Neil stemming from

this denial was precisely the same as the effect on the peti-

tioners in Douglas and Bruton: he was unable adequately to

cross-examine his accuser.

It is only by misunderstanding the essential nature of

cross-exainination that one can assert that O’Neil had an

adequate opportunity to cross-examine Runnels on the

accusations attributed to him. The effectiveness of cross-

examination as a truth-discovering technique may be said

to depend upon at least two unique attributes of this means

of developing evidence. First is the opportunity which

cross-examination affords to elicit further evidence from the

witness that qualifies or diminishes the credit of the testi-

*The evidence of Loyd’s accusations was somewhat more reliable

than that involved here because Loyd’s statements were embodied in

awritten document identified as having been signed by Loyd. (380

US. at 416-17)

16

mony given on direct examination.'® The second relemg bs

attribute of cross-examination is the critical fact that the

evidence elicited on cross-examination has, generally, the

same probative value as the evidence developed through tk

witness on direct examination."

O’Neil’s opportunity to question Runnels had neither of

these attributes and hence did not amount to an opportunity

to cross-examine him on the alleged statement. When

Runnels denies having made any statement at all, O’Nei!’s

counsel cannot effectively pursue lines of questioning

designed to qualify or impeach the accusatory portions of

the reported statement. To develop through Runnels ev-

dence that the accusations in the statement stemmed from,

e.g., his anger at O’Neil for apparently “putting all the

blame on him” (supra, p. 3) is extremely difficult, at best,

when Runnels is resistant to any suggestion that he might

See 5 Wigmore, Evidence, § 1368, at 33-34 (3d ed. 1940); Busch,

Law and Tactics in Jury Trials, §285 at 460 (1949). To the extent

that such qualifying or impeaching evidence can as a practical matter

be developed only from the witness himself (as where the matters to

be explored are peculiarly within his knowledge), “‘cross-examination

is vital, i.e., it does what must be done and what nothing else can do.”

5 Wigmore, op. cit. supra, at 34.

‘If the witness’s testimony on direct examination (e.g., his accus-

tion of the defendant) is to be credited by the jury, so ordinarily

must his testimony on cross-examination (e.g., his recantation, his

testimony as to circumstances casting doubt on the truth of the accus-

ation), for both come out of the mouth of the same witness. See 5

Wigmore, Evidence, §1368, at 34 (3d ed. 1940): “[C]hiefly, the

advantage is that the cross-examined witness supplies his own refute

tion. ... If we believed the answers on direct examination, we mus

also believe the answers on cross-examination.” (Emphasis in original.)

Likewise, if the witness’s testimony on cross-examination is discredited

(e.g., by inconsistencies, or by contradiction through other, more

credible evidence), then the testimony on direct examination is dis-

credited too, for the same witness affirmed the truth of both. See

McCormick, Evidence, §33, §47 at 102 & n. 17 (1954). Compare

the instruction given to the jury in the instant case: “A witness wil-

fully false in one material part of his or her testimony is to be dis

trusted in others.” (A. 242.)

. ae “2

oe ai Pee ae

2eee8

17

» pave said anything at all to his interrogators. More critically,

it is quite impossible to probe the reported statement for

damaging omissions, errors or inconsistencies when its alleged

maker will not admit having made it.'? If, but only if, the

datement had been affirmed by Runnels in direct examina-

tion, none of these difficulties would have stood in the way

of a true cross-examination by O’Neil’s counsel.

The fact that O’Neil could not cross-examine Runnels on

> the alleged statement is seen even more vividly when one

- considers the total lack of any connection between the pro-

- bative value of the reported accusation and the probative

- value of Runnels’ denial that he made the accusation. The

: jury can and will readily discount the defendant Runnels’

- denial that he made a statement that incriminates himself .

- as well as O’Neil, yet at the same time the jury can and will

- credit what he reportedly said in that statement about O’Neil.

ne

at this distance it is obviously impossible to imagine all the

myriad ways in which genuine cross-examination could have tested

the alleged Runnels’ statement and perhaps diminished its credibility.

' One concrete example may be suggestive, however. As reported, the

- statement says that O’Neil and Runnels went into the Culver City

liquor store for the purpose of robbing it but did not do so because

too many people were in it. See Appendix, infra. Yet the undisputed

evidence in the case placed O’Neil and Runnels in the vicinity of the

liquor store at approximately 1:00 A.M. on a Tuesday morning, when

_ the store was hardly likely to be crowded, and the liquor store owner,

who was reportedly alarmed by O’Neil and Runnels as they drove by

in a car, said nothing about them ever entering the store. Supra, p. 3.

Crossexamination of a witness affirming the alleged statement could

have nailed down the details as to how long they were supposedly in

the store, who saw them there, what they did in the store, how many

other people were in the store, etc. Then, with the witness firmly

committed to his story, he might have been dramatically impeached—

and his accusation seriously undermined—by defense proof through

other witnesses that, e.g., there was only one customer in the liquor

store after 12:30 A.M., O’Neil and Runnels never entered the store,

etc. See McCormick, Evidence, § 47, at 102-03 (1954). (For an

account of an equivalent use of cross-examination by Abraham Lin-

coln in the famous Duff Armstrong case, and for other illustrations,

se Busch, Law and Tactics in Jury Trials, §303, at 493-94 (1949).)

Nee

18

‘

The credibility of the reported accusatory statement is —

equally independent of the credibility of any alibi or othe Bn

contradictory testimony elicited from Runnels on the stay | ¢

Because Runnels does not affirm the accusatory statement § is

attributed to him, it is mot true (as it would be ina req § ff

cross-examination situation) that if we believed the accus- if

tory statements, we must also believe the denial, the alibi a

and the other in-court testimony of Runnels. Cf. 5 Wig.

more, Evidence, $1368 at 34 (3d ed. 1940). Because Run

nels has not placed his credibility behind the reported

accusatory statements, it is mot true (as it would be ina

true cross-examination situation) that a successful impeach

ment of his testimony given in response to O’Neil’s coun

sel’s questions will also impeach the accusation. (Cf

McCormick, Evidence, 847 at 102 & n. 17 (1954). There-

fore, the opportunity which O’Neil had to question Runneks

was not an opportunity to cross-examine him on the alleged

accusation.

ell lt

13Two additional factors may be briefly mentioned, further indi-

cating that O’Neil’s opportunity to question Runnels was not an

opportunity to cross-examine him on his alleged accusation.

(1) The demeanor of a witness is unquestionably important in

determining whether his testimony is worthy of belief. E.g., Mattox

v. United States, 156 U.S. 237, 242-43 (1895). One important func-

tion of cross-examination is that it not infrequently succeeds in mak-

ing a witness “reveal by his demeanor—his tone of voice, the evidence

of fear which grips him at the height of cross-examination, or even

his defiance—that his evidence is not to be accepted as true, either

because of partiality or overzealousness or inaccuracy, as well as out-

5 right untruthfulness.” Government of Virgin Islands v. Aquino, 378

q F.2d 540, 548 (3d Cir. 1967). To the extent that Runnels’ demeanor

; was poor, and were it to have been revealed as such under question-

ing by O’Neil’s counsel, it would not be the reported accusation that

the jury would regard as having been undermined, but rather Runnels

denial of that accusation.

(2) Leading questions to a witness are normally forbidden on

direct examination but permitted on cross. McCormick, Evidence,

§6 at 10 (1954). The nature of the examination which O’Neil’s coun-

sel could have made of Runnels is revealed by the authorities support:

ing the proposition that in the instant case the court could properly

have prohibited O’Neil’s counsel from asking Runnels leading questions,

19

i Runnels on the stand, before the jury in open court, is

: not the accuser, and for O’Neil to examine him is not to

qoss-examine his accuser. O’Neil’s accuser—if one there be—

> is Runnels under custodial interrogation, forever removed

* from the possibility of cross-examination, forever cloaked

in the impenetrable mantle of the police officer’s testimony

as to what was said and not said at that secret time. The

- opportunity which O'Neil had to elicit testimony from

Runnels contradicting the accusations attributed to him by

the police officer was, at most, an opportunity to rebut

those accusations. This rebuttal opportunity which O’Neil

gad through Runnels was no substitute for his right to

cross-examine his accuser. That is painfully apparent when

one considers Runnels’ credibility in the case: he stands

before the jury “‘accused side-by-side with the defendant”

(Bruton v. United States, 391 U.S. 123, 136 (1968)), with

every apparent reason of self-interest to deny a statement

that incriminates him as well as O’Neil.'*

California v. Green, 399 U.S. 149 (1970) affords no con-

stitutional sanction for the position that an opportunity to

rebut an accuser’s evidence can, on the facts of the case at

bar, substitute for an opportunity to cross-examine the

accuser. In Green the evidence of out-of-court accusatory

statements which this Court held to have been properly

admitted was the transcript of a witness’ testimony given

at a preliminary hearing, subject to full cross-examination

by the accused—not a police officer’s testimony as to an

unrecorded oral accusation made by a suspect during cus-

at least so long as Runnels was unwilling to affirm his accusation of

O'Neil. See Busch, Law and Tactics in Jury Trials, § 306 (1949); also

Mitchell v. United States, 213 F.2d 951, 954-56 (9th Cir. 1954), cert.

denied, 348 U.S. 912 (1955).

*The prosecutor in the instant case knew well that he was on

safe ground when he addressed the jury in closing argument (A. 223):

“When you say who is telling the truth, you are going to

have judge between Officer Traphagen and this defendant,

because they both can’t be telling you the truth about that

statement, whether there was one made or not, and you are

going to have to consider who has got the most reason to

ccs

20

Ss

—

todial interrogation.'* To the extent that the Court foun

that the out-of-court statements were admissible because th

declarant testified as a witness at the trial, its conclusion |

was that “the Confrontation Clause does not require exclyj.

ing from evidence the prior statements of a witness who

concedes making the statements” and thus opens himself

to cross-examination on those statements. 399 US. at 164

(emphasis supplied).'®

Nor is the result in Dutton v. Evans, 400 U.S. 74 (Dec.

15, 1970) any support for California’s position in the instant

case. There the out-of-court statement was not a detailed,

blame-shifting accusation allegedly made in the coercive

atmosphere of official interrogation and reported in court

by the police interrogator; rather, it was only a single spon

taneous remark of doubtful import reported by a fellow

prisoner. Lacking the indicia of untrustworthiness and the

devastating impact of the accusation in the case at bar, the

remark in Evans obviously posed a far less serious Confroa-

tation Clause question.

oerg eseaé

na me

'SSuch police testimony had also been admitted in Green, but this

Court did not reach the question of whether that was proper under

the Confrontation Clause. See 399 US. at 169-70. Even if it had,

however, the holding would not have controlled the case at bar, since

the witness-suspect “admitted making the statement . . . and insisted

that he had been telling the truth as he then believed it ....” Id.

at 152.

‘©The significance in Green of the witness’s affirming the out-of-

court statements was emphasized in a brief submitted by the United

States as amicus curiae, which concluded that where the witness

denied making the statement, the accused is unable effectively to

test the truth of the allegations that concern him. See Brief for the

United States as Amicus Curiae, California v. Green, Oct. Term 1969,

No. 387, p. 30 & n. 15. (Although the issue was not there discussed,

Harrington v. California, 395 U.S. 250 (1969) is similarly distinguish-

able from the case at bar in that the codefendant Rhone affirmed the

incriminating statement attributed to him and gave detailed testimony

about the contents of transcript of the statement. Record, Harrington

v. California, Oct. Term 1968, No. 750, at 410-11, 413-16 ef seq.)

21

Finally, it may be appropriate to observe that adherence

F to the principles of Douglas and Bruton in the instant case

- will not disrupt or unduly complicate procedures for criminal

# trials. If in a joint trial situation the state wishes to safeguard

| its ability to use, whether as part of its case in chief or for

"impeachment or rebuttal of the defense’s evidence, police

evidence of a defendant’s oral, unrecorded custodial state-

F ment involving elements both of confession and of accusa-

tion of a co-defendant, then the state can explore with the

court whether omitting reference to the accusatory portions

of the alleged statement is feasible without prejudicing either

defendant, or whether, as is more likely, the defendants

S should be severed and tried separately.'7

In the separate trial of the defendant who reportedly

made the statement, the evidence of his statement can, if

otherwise admissible, be offered to incriminate him. In the

separate trial of the defendant who was reportedly accused

in that statement, evidence of the statement would be inad-

missible, uniess it was affirmed in court by its maker,

t Douglas v. Alabama, supra, or, perhaps, its maker gave testi-

- mony inconsistent with the alleged statement as a witness

called by the defense!® (in which case evidence of the state-

ment, notwithstanding its untrustworthiness, could arguably

be used by the prosecution for impeachment). Compare

Harris v. New York, ___._ U.S. ___ (Feb. 24, 1971).

"This is the procedure already required by Bruton (see 391 U.S.

at 143-44 (dissenting opinion of White, J.)) and recommended by the

American Bar Association Project on Minimum Standards for Criminal

Justice. See ABA Standards, Joinder and Severance, §2.3(a) (Approved

Draft, 1968). (indeed, the A.B.A. Adivsory Committee on the Crimi-

nal Trial recommended this procedure in the interests of fairness even

before Bruton was decided. See id. (Tentative Draft, Nov. 1967).)

81m the typical joint trial situation, as in the case at bar (supra, p.

4), the allegedly accusing codefendant takes the stand on his own

pany for his own purposes, and not at the behest of the accused

e a

22 ~

Ill. THE CONSTITUTIONAL ERROR OF LAYING THE & Hari

POLICE OFFICER’S EVIDENCE OF RUNNELS’ UNAF. F front

FIRMED ACCUSATION OF O'NEIL BEFORE THE JURY be st

CHARGED WITH DETERMINING O’NEIL’S GUILT CAN. deva

NOT, ON THIS RECORD, BE SAID TO HAVE BEEN

HARMLESS BEYOND A REASONABLE DOUBT: Non

WOULD ANY POLICY UNDERLYING THE DOCTRINE — “™

OF EXHAUSTION OF REMEDIES BE SERVED By ff

REQUIRING O’NEIL TO PRESENT THIS CLAIM OF & th:

ERROR TO THE STATE COURTS YET ANOTHER & kng

TIME. ON

A. Harmless Error botl

time

California’s efforts to secure reversal of the decision below & sud!

on grounds of harmless error or lack of exhaustion are not ovel

convincing. The argument that admitting the police testi- bilit

mony as to Runnels’ purported accusation of O’Neil was his

harmless error is predicated upon the erroneous premise —

that such error can be harmful “only if the co-defendant’s aut

confession has a devastating impact upon the non-confessing

defendant’s defense.” (Pet. Br. at 25) But to require the "

victim of constitutional error to show that it had a “devas Ho

tating impact” on his defense is to stand the test of harm- da

less error exactly on its head. ern

The proper standard of harmless error is the one announced a

by this Court in Chapman »v. California, 386 U.S. 18 (1967), a

and applied in Harrington v. California, 395 U.S. 250 (1969). y,

In Harrington, the Court reaffirmed the Chapman standard § :

that:

(6

“(BJefore 2 federal constitutional error can be held

harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.”

395 US. at 251, citing 386 U.S. at 24.

While it may be that Harrington also approved a substan-

tially similar ‘“‘overwhelming evidence” test,'® it is clear that

'9 at the end of its opinion in Harrington, the Court noted that

the evidence of guilt separate from that admitted in error was “so

overwhelming that unless we say that no violation of Bruton can con-

<«gsgseernsreesesc

23

‘Harrington established no rule that a violation of the Con-

frontation Clause must be considered harmless uniess it can

be shown that the erroneously admitted evidence had “a

devastating impact” upon the defendant’s case.”

| Under the proper harmless error standard, the erroneous

ximission of the police testimony as to Runnels’ alleged

- ¢atement cannot be said to have been harmless. No part of

the State’s case against O’Nei! had escaped substantial chal-

kenge. Through the testimony of six different witnesses,

O'Neil established a consistent, unshaken alibi defense that

both placed him and Runnels away from the scene at the

time of the offense and provided an explanation for his

subsequent arrest in the victim’s car. Supra, pp. 4-5. More-

over, there was evidence of circumstances raising the possi-

bility of a mistaken identification by the victim,”' and in

his dosing argument to the jury the prosecutor relied heavily

stitute harmless error, we must leave this state conviction undisturbed.”

95 US. at 254. See Note, Harmless Constitutional Error: A

Reappraisal, 83 Harv. L. Rev. 814, 819 (1970).

| Of the nearly two dozen Court of Appeals cases subsequent to

- Harrington that have applied the harmless error doctrine to Bruton

claims, respondent has not found a single decision holding that Bruton

_ enor is harmful only if a “devastating impact” is shown. Without

_ exception these decisions have read Harrington as reaffirming the

_ Oupman “beyond a reasonable doubt” standard, or, at the ieast, as

- sanctioning the equivalent “‘overwhelming evidence” test. E.g., Alley

: v. United States, 426 F.2d 877, 880-81 (8th Cir. 1970). The Court

of Appeals cases cited by petitioner are, with one exception, pre-

Harrington; only one, United States v. Levinson, 405 F.2d 971, 988

| (6th Cir. 1968), cert. denied 395 U.S. 958 (1969), reh. denied 396

US. 869 (1969), even begins to suggest a “devastating impact” test,

_ and only then in an elliptic alternative holding. The one post-Harring-

_ ton Court of Appeals case cited by petitioner, United States v. Carl-

_ son, 423 F.2d 431 (9th Cir.), cert. denied 400 U.S. 847 (1970), like ©

the plurality opinion in Dutton v. Evans, 400 U.S. 74 (Dec. 15, 1970)

and most of the remainder of petitioner’s Court of Appeals cases,

deals with the scope of the Bruton principle in the first instance, not

with the appropriate harmless error standard to apply once a Bruton

Violation has been found.

"This evidence was summarized in closing argument by O’Neil’s

lat A. 208-11.

24

upon the evidence of the alleged Runnels statement to a &

roborate the victim’s identification. Supra, p. 5). (By cp

trast, in Harrington the improperly admitted confessions §

two co-defendants added nothing to the overwhelming ey.

dence of the other witnesses, including Harrington himself

See 395 US. at 253-54.)

With the evidentiary record in this condition, the Cour

of Appeals correctly concluded that it was “more likely

than not that Runnels’ statement dispeiled the doubts of

the jury.” (422 F.2d at 323; A. 118)

—=~ogeers*ebe es

B. Exhaustion .

California’s exhaustion argument (Pet. Br. at 28-29)

appears to be largely pro forma, perhaps because petitione

would like to have a definitive resolution of the recurring

practical question which it has brought to this Court. 'n

any event, there is no basis for quarreling with the conch

sion of the Court of Appeals herein that the interests of

comity between state and federal judicial systems, as well

as fairness to the prisoner O’Neil, are best served by passing

upon his claim and not requiring him to take it once again

to the state courts. (422 F.2d at 323-24; A. 119-21) Cal

fornia’s contrary view is evidently based on the notion that

Bruton v. United States, 391 U.S. 123 (1968) created “new

constitutional standards” (Pet. Br. at 29), thus requiring the

termination of O’Neil’s on-going federal habeas proceeding

and a further application by him to the state courts.”

Passing the question of whether any such Procrustean rule

of further exhaustion is in fact applied in the federal courts

(compare Pope v. Harper, 407 F.2d 1303 (9th Cir. 1969)

with United States ex rel. Walker v. Fogliani, 343 F.2d 43

2p oe a ee

22 Bruton was decided on May 20, 1968, and Roberts v. Russell, —

392 US. 293, holding Bruton retroactive, came down on June 10,

1968. O’Neil’s federal habeas proceeding had commenced on April

25, 1968. (A. 28)

ss a2 # F

25

Toth Cir. 1965)), or if such a rule is applied, whether it

sht to be (see Note, Developments In the Law—Federal

tigbeas Corpus, 83 Harv. L. Rev. 1038, 1101-02 (1970)), it

is dear that it has no application to the instant case. Bru-

on did not give O'Neil a “new” federal ground for relief—

it merely furnished additionai authority in support of the

caim under the Sixth and Fourteenth Amendments that he

‘had already presented to the state courts. Supra, p. 6.

‘O'Neil stood trial after Pointer v. Texas, 380 U.S. 400

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

had established his rights under the Confrontation Clause,”*

‘and after Jackson v. Denno, 378 U.S. 368 (1964) had

made it clear that limiting instructions to the jury would

be insufficient to prevent invasion of those rights.”

The fact that it subsequently became possible for O’Neil to

cite Bruton as additional support for his objection to the

police evidence of Runnels’ alleged statement is no reason

for sending him back to the state courts to present exactly

the same constitutional claim yet another time. See Ander-

= sony. Nelson, 390 U.S. 523 (1968); Roberts v. LaVallee,

389 U.S. 40 (1967).

“Douglas and Pointer came down on April 5, 1965; O’Neil’s trial

commenced on May 13, 1965. (A. 170)

*The California Supreme Court first considered the relevance of

§ Jackson, Pointer and Douglas to cases such as O’Neil’s more than two

years before it denied O’Neil’s habeas petition. See People v. Aranda,

63 Cal2d 518, 407 P.2d 265, 47 Cal. Rptr. 353 (1965), cited in

Bruton v. United States, supra, at 130-31.

—_—— aan

26

CONCLUSION

For the reasons stated herein, the judgment of the Cou,

of Appeals should be affirmed.

Respectfully submitted,

James S. Campbell

900 17th Street, N.W.

Washington, D.C. 20006

He

Attorney for Respondent He

Of C 3

if Counsel. Mark

Jack B. Owens i He

900 17th Street, N.W.

Washington, D.C. 20006

27

APPENDIX

© Testimony of Officer Russell M. Traphagen relating the

s nctance of the conversation which he testified to having

ith Runnels, A. 137-139:]

| He stated that O’Neil had came to his place on the after-

‘goon of the 9th. [*]

He stated O’Neil asked him if he wanted to make a couple

of hits.

He stated that he told O’Neil yes, he would.

He stated that they then went down to the Better Foods

Market at the corner of Santa Barbara and Western Avenue.

He stated that O’Neil gave him $16.

He stated they went inside the market.

| asked him if they had attempted to hold up the market.

He stated they had not.

He stated they then went outside to the parking lot of

the market where they observed this man in a white Cadillac.

He stated that O’Neil had the gun; that O’Neil went up

to the driver on the passenger side of the vehicle, ordered

the man in the car to sit where he was; that he got in the

back of the vehicle—referring to Runnels.

He stated that they made this man drive them over on

St. Andrews Place to a certain location; that they then made

the man get out of the vehicle after robbing him.

He stated that he then drove the vehicle, the Cadillac,

and that they then went to Culver City.

He stated that they had gotten out of the vehicie in

Culver City and gone to this liquor store.

He stated they went into the liquor store.

* * * * *

t

"The witness subsequently amended this date to the 8th of Febru-

ay. (A. 140)

28

He stated that they then left the liquor store decaus

there were too Many people there.

They went back on down to the front of the ji

Store. There were still too many people in there.

He stated that they then circled the block a few tj

at which time the Culver City Police Department arrested

them.

- * . * a

He stated there were too many people in the liquor store ¥

at the time, and they we

less people to be in the

to go back and rob it.

re waiting for less Customers and

liquor store,.and they were going

saw ueaeuHpaeenxretaeare@RWenmsareeeszsegesb & Bs.