Burley Clifton Harryman v. W. J. Estelle, Jr., Director, Texas Department of Corrections
597 F.2d 927
5th Cir.
1979
Check Treatment

*1 HARRYMAN, Burley Clifton

Petitioner-Appellant, ESTELLE, Jr., Director, Texas

W. J. Corrections,

Department

Respondent-Appellee.

No. 78-2459. Appeals, Court of

Fifth Circuit. 25, 1979.

June Maness, Houston, Tex., Anthony

Michael petitioner-appellant. Gen., Atty. Douglas M. John L. Kendall, Jr., Becker, M. Joe B. Dib- David rell, Jr., Drewett, Barbara M. Randy E. Gen., Austin, Tex., Barron, Attys. Asst. respondent-appellee. COLEMAN, and IN- GODBOLD

Before GRAHAM, Judges. Circuit INGRAHAM, Judge: Circuit corpus appeal arose out of a This habeas apply failure to state trial court’s pro Arizona, rule of Miranda phylactic regarding the contents to admissions court denied The district of a condom. *2 was the fruit of an unlawful statement ground that the Miran- habeas relief on Miranda rule.2 The er- search and violated the da violation was harmless constitutional motion, holding denied the remand to the district trial court ror. We reverse and gestae as the res of grant to the writ. statement admissible court with instructions Crim.Proc. art. the offense under Tex.Code Burley August petitioner In late 38.22, (1967) 1(f) version at Tex. § [current checked into the Oak Harryman Clifton (1979)].3 38.22 5 Of- Code Crim.Proc. art § Dallas, Texas, in Lodge Cliff Travel under Conway petition- ficers Raz and testified to name, an assumed Chuck Walker. On the incriminating prosecu- statement. The er’s 7, 1972, peti- after evening September tor adverted to the admission three times in pay eight con- tioner had failed rent closing argument. Wood, days, secutive Miss Assistant Sandra itself Manager Lodge, petitioner’s of the entered The contraband was also introduced employees personal room in his absence to remove his into evidence. Various of the belongings. Upon discovering high-pow- Department a Dallas Police testified that the telescopic sight powder a into evidence was the ered rifle with a admitted petitioner’s in syringe, police. powder Miss Wood called the The same that was con- police inspected powder the room and con- that was ana- officers dom and same rifle, syringe lyzed by Investigation fiscated the and several Lab.4 Criminal spoons police laboratory which were burned on the bottom. A testified that a chemist heroin, powder of the analysis revealed approximately At 4:30 A.M. on the fol- morphine procaine. 8, 1972, lowing day, September Miss Wood guilty police again jury called the to inform them that returned a verdict and petitioner Lodge. petitioner had returned to the Offi- sentenced as a habitual offender Jerry Conway Raz T. W. of the imprisonment. cers to life Texas Court of Department dispatched Appeals Dallas were affirmed the conviction. Police Criminal State, Lodge petitioner (Tex.Cr. Harryman to the to arrest 522 S.W.2d suspected burglary. searching petition- App.1975). In

er, Conway Officer a discovered condom petitioner appli- On June filed an containing powdered substance concealed corpus, pursuant writ cation for of habeas under the waist band his trousers. Rath- (1976), alleging to 28 that the U.S.C. 2254 § warnings, er than recite the Miranda Offi- Miranda rendered his conviction violation cer Conway petitioner: asked “What is upon findings, void. In reliance conclu- “Oh, this?” responded: you Petitioner magis- sions and of the recommendation know what it is. It is heroin.” trate, court, June the district on opinion petitioner’s knowing denying

At trial for or inten- entered a memorandum ha- possession heroin,1 peti- tional defense counsel beas relief. The court conceded that suppress petitioner’s rights abridged filed a motion in- tioner’s constitutional statement, criminating grounds by petition- on that the the admission into evidence of possession examining compliance 1. Unlawful of heroin was a violation trial with Articles any 725f article of the former Texas Penal Code. 16.03 and 16.04 or of statement is Legislature gestae In the Texas transferred this the res of the arrest or of the offense. provision to the Substances Texas Controlled cross-examination, Through defense counsel Act, 4476-15, 12C Tex.Rev.Civ.Stat.Ann. art. attempted to cast doubt on the chain of custo- 4.04 § Peck, dy Mary supervisor of the heroin. Miss the evidence room at Crime Scene argument petitioner 2. The state’s waived Depart- of the Search Section Dallas Police is, therefore, the Miranda at trial frivo- error ment, that she had failed mark the testified lous. upon receipt and was unable to recall 38.22, 1(f) 3. Art. of the former Texas Code of § the dates on which the condom was received provided: Criminal Procedure by her and transferred to the lab. She further personnel Nothing preclude contained herein shall testified that other had access admissibility any statement made to the evidence room. open defendant court at his trial or at his judges rely upon properly trial assume that during incriminating statement elicited er’s relevant evidence.” Id. at interrogation protec- without admitted and custodial warnings. Nonethe- the Miranda tion of

less, court concluded that the Miranda Likewise, places undue reliance the state er- was a harmless constitutional violation lawfully admitted con- upon cases in which ror, other evidence established because *3 errors rendered constitutional fessions petitioner the found on contained condom harmless, Wainwright, g., v. 407 e. Milton heroin. 371, 2174, 1 92 33 L.Ed.2d U.S. S.Ct. dispute the state does 427, Since Florida, 405 92 v. U.S. Schneble holding that introduction the district court’s 1056, (1972). This line 31 L.Ed.2d 340 incriminating state into evidence of the lawfully because the inapposite, of cases is error, the constitutional sole ment was a by corroborated other admitted confessions whether the constitutional error issue is overwhelming evidence provided evidence error is A constitutional harmless.5 guilt, negating possi- the of the defendant’s harmless, possibil “reasonable if there is no error contrib- bility that the constitutional complained might ity that the evidence Milton, 407 at uted to the conviction. U.S. Fahy the conviction.” have contributed to 2174; Schneble, 377, 405 at 92 S.Ct. U.S. 85, 86-87, Connecticut, 84 v. 375 U.S. S.Ct. 430, 92 S.Ct. 1056. 230, (1963). 229, 171 The test is 11 L.Ed.2d a valid confession is not of Where sufficient

not “whether there was evidence fered, however, may an unlawful confession could have been petitioner on which the negates possibil persuasive that it the complained evidence be so convicted without the id., teaching is the of,” ity the evidence com of harmless error. Such but whether Hernandez, may have influenced the fact- 574 F.2d plained of United States deliberations, Harrington 1362, (5th 1978). see finder’s 1372 Cir. Hernandez 250, 1726, California, 254, 89 knowing 395 U.S. or inten by jury convicted (1969). beneficiary 23 L.Ed.2d 284 marijuana in violation possession tional error, government, the bears the burden the 841(a)(1) (1976). At Hernan 21of U.S.C. § proving beyond a reasonable doubt trial, prosecution admitted into dez’s the Zilka Es possibility such a is excluded. that he the defendant’s confession telle, 388, (5th 1976); 529 390 Cir. Vac F.2d mari drive a truckload of had been hired to 626, caro v. United 461 F.2d 637-38 denying erred in juana. The district court California, (5th 1972); Chapman v. 386 Cir. suppress the motion to defense counsel’s 824, 87 S.Ct. confession, was elic because the confession (1967). of Miranda warn after the recitation ited suspect’s invocation of ings and the the instant The state insists silent and receive rights Miranda to remain by prior our decisions case is controlled prose Although of counsel. the advice were harm holding that Miranda violations mari samples of the cution also admitted trials, g., less in bench e. errors juana found in the truck and a chemist’s (5th 1970), 430 F.2d 129 Cir. was indeed testimony that the substance (5th 340 and Null v. the constitutional marijuana, we held that However, subject 1975). jury trials are Cir. confession admitting the unlawful error constitu greater scrutiny for harmless harmless. The court reasoned: was not trials. evi tional error than bench “Strict carried ex Because these statements admissibility generally are rules of dence] trials, in relation to the probative weight appellate courts treme relaxed bench 1975); Estelle, 1265, (5th Cir. errors which 5. There are some constitutional Beto, (5th harmless, including Cir. the admission Brown v. can never be However, 1972). Chap- rule does harmless error into evidence of coerced confessions. though n.8, California, apply un- of unlawful to the admission man v. Es- confessions. Id. See Smith v. coerced L.Ed.2d telle, (5th 1976); Cir. Alberti indicates, innkeeper opinion As which Hernandez was convict- crimes for ed, their admission to be high- we cannot find had seen a that she police notified the Al- a reasonable doubt. beyond harmless sight and a telescopic powered rifle with a ample to be an ba- though appears there police Harryman’s room. syringe in conviction, recognize we sis to sustain and confiscated inspected the room officers may incriminating statements that these rifle, spoons which syringe, and several overpowering, inescap- represented have bottom, a dead had been burned on able evidence for they had been used give-away as to what omitted). (footnote Id. at 1372 for. controlled The instant case is Harryman returned day, The next when incriminating ad Hernandez. Petitioner’s again called lodge, to the contained heroin mission that condom suspected him for arrested thereafter establishing value in high probative was of him, pow- *4 searching While burglary. “knowing or inten possession that was his container, substance, in its unusual dered tional.” Cf. Null the waistband was concealed under found impact of potential at 344. In view of the Upon discovery, this the of his trousers. prosecution’s repetition of the admission the closing argument, petitioner’s statement in is this”? Harryman, asked “What officer overpowering, ines “may represented have “Oh, you know what Harryman responded, Hernandez, capable jury.” the evidence for it is. It is heroin”. proven state has not 574 F.2d at 1372. The indeed in the containers substance doubt the absence of a beyond a reasonable morphine pro- and with was heroin—mixed that the evidence possibility “reasonable it it. The nature of caine. No doubt about might have contributed to complained of laboratory analysis. was confirmed Connecticut, Fahy the conviction.” Moreover, posses- it in their the had officers 86-87, 84 at 230. U.S. at they found it and the moment sion from hold that the state trial court’s admis- We jot one or Harryman said added not what unlawfully sion into evidence of an obtained fact. This is remi- tittle to the unavoidable incriminating was not harmless statement a argument I once heard niscent of the error, given possible constitutional im- lawyer make—“witnesses pact upon distinguished of the statement Ac- cordingly, we the decision of the reverse lie, cannot lie”. may physical but facts district with court and remand instructions First, grounds. the ad- I dissent on two grant petitioner’s for the writ application incriminating Harryman’s state- mission of corpus. of habeas ment, which it in under the circumstances and REMANDED. REVERSED made, proscribed by Miranda v. was is Second, Arizona, (1966).1 even COLEMAN, Judge, dissenting. Circuit present, it was if a Miranda error great that cases This is another in host of a reasonable doubt. beyond harmless in which the federal courts have seen fit to does not erect an The Miranda doctrine jurisdiction exercise their to invalidate an ques- against barrier all custodial absolute outstanding, unreversed state court convic- by warnings of basic tioning unpreceded tion on what is conceived be federal rights and a of such grounds. constitutional waiver others, Circuit, rec- and have rights. This firmly I am that federal inter- convinced investigative between ognized a distinction unwarranted and I vention in this case is pur- non-investigative questioning and reasoning respectfully dissent from the the Miranda poses determining whether by my the result reached esteemed Breth- opinion. applies.2 ren in majority rule Prewitt, Cir., 1977, 1. 86 16 L.Ed.2d 694. 2. United States v. denied, 1082, 1085, 1086, cert. key” among about found around’ non-investigative question- example, For effects, was in- detainees, personal biographical as in- detainees’ ing of such stolen, car formed, response, was subject to in quiries, has found not to be been Prew- Id. at 946. Parson Court observed rule. United the Miranda Cir., 1977, legitimate non-investigative was a itt, at 1085- there supra, 7 and, further, that, 1086; inquiry for the purpose see Jackson also factors, 700, 701; Cir., 1965, among other it “relevant” that United States Cir., being held an the detainees were of- rel. Hines v. ex 1113; involving a stolen fense other than that 521 F.2d at Cir., 1977, Grant, supra, 4 549 F.2d at vehicle.

947; Cir., States, supra, 5 Farley v. United reasons, would For similar I hold that the 358; 1967, 381 F.2d at Morrison v. United question inquiry here —“What is this”?— Cir., 1973, States, supra, 8 491 F.2d at prohibited by spirit is not either or the First, non-investigato- a letter of Miranda. although During at inquiries, ry purpose present. not directed the course

Other conducting safety search subject such a innocuous a to uncover seemingly a background, any weapons, hidden discovered detainees’ identification tied a knot and there were also have been found be without “condom one, others rule where the mani- several inside of smaller reach of the Miranda larger a purpose inquiries fest such was of ones inside one”. It is no basis, knowledge hu- nature. assault on either common or non-investigative On this *5 that inquiry weapons,3 experience suggest man to men not precautionary concerning do carrying ordinarily go contracep- around inquiries concerning as well as the identifi- personal contraceptives, the tives stuffed with other cation of effects found on de- tainees,4 pro- power. requires great found mixed with It no have been not to be imagination amount of to understand the scribed Miranda. police reflex reaction of a officer when he Cir., Castellana, In v. 5 United States unexpectedly encountered such an unusual 1974, 325, we question 500 F.2d found the this package earth is mess? The on —what any weapons involved —“whether he had conducting officer the search reacted in a non-investigative within be al- reach” —to spontaneous natural manner. This is facially though apparent. was not this especially true when it is that Har- recalled the inquiry was limited to law enforcement ryman being drug was not detained for a concern, primary safety. official’s More- suspected burglary. offense related but for over, we investi- that rational found “[N]o Second, gatory prompted investigatory pur- could have such a purpose rational “[N]o agents “already question” such question” pose prompted when the could have to, search”, to, object the authorized intended and did when the officer had in his absolutely Similarly, nothing v. Id. at 326. Parson United hands there was States, 1968, 944, Cir., kept Miran- that have been from 10 387 F.2d no indicate he could finding package ac- out himself what da violation was found when a sheriff “giving actually him ‘run- cused detainees contained. States, Cir., 944, 946; Farley

840, 135, (1977); Unit v. United L.Ed.2d F.2d 5 98 54 104 S.Ct. Grant, Cir., 942, denied, 1977, 1967, 358, 357, ed States v. cert. 4 F.2d F.2d 549 381 389 U.S. denied, 946, 947, 908, 942, 303, cert. 432 97 S.Ct. Con U.S. L.Ed.2d 295 88 S.Ct. 19 States, 1969, 2955, (1976); States ex United U.S.App. 53 Proctor v. United L.Ed.2d 1081 tra 131 1975, Cir., rel. Hines 819, 2 F.2d 521 820. 404 F.2d D.C. denied, 423 1109, 1090, 1113, cert. U.S. 884, (1976); States v. United 47 101 L.Ed.2d Castellana, Cir., 1974, United 5 500 Castellana, Cir., 1974, 326, 327; 325, 500 5 326, F.2d at Menichino, Cir., 1974, 497 United States v. 5 States, 935, 940, 941; Morrison v. United Monica, Cir., 1972, 9 4. United States v. La 472 344, Cir., 347; 1973, 346, United 8 491 F.2d States, 581; Cir., Parson v. 10 F.2d at Monica, Cir., 1972, 580, States v. La 9 1968, 387 F.2d at 946. 581; 1968, Cir., Parson v. United assume, however, Only F.2d at 344. then did we take note of Even if we should that admitting Harry- court erred in special significance trial that attaches to a statement, identifying the substance man’s trial: bench heroin, altogether I am confident that

as Moreover, we note that the trial was beyond a reasonable the error was harmless sitting before the court without a held California, Chapman doubt. In Appellate courts assume . . . 18, (1967),5 the Court reaffirmed the judges rely upon properly trial ad- harmless of whether there is no error test mitted and relevant evidence. possibility “reasonable It is clear from the context and the lan- might have complained of contributed presence guage opinion used in the that the legion are the conviction”. The cases focus- regarded of a bench trial was as an addi- ing overwhelming evi- presence on the tional, necessary, factor in the but absent the tainted evidence.6 guilt, dence of harmless error calculus. majority distinguish many seeks Other the coincidence that valid con- than “overwhelming of these evidence” cases on upon establishing fessions were relied they involved a bench trial ground overwhelming evidence in Milton v. Wain- lawfully sup- or that admitted confessions 371, plied overwhelming guilt. wright, evidence of U.S. respect, majority (1972) Florida,

With all due has not L.Ed.2d 1 Schneble correctly applied the harmless error rule. example, For in both support there is no for the majority’s supra, 430 F.2d 129 and Null v. characterization of those cases. Neither the support cited in of the Milton suggested nor Schneble Court majority position, overwhelming we found counterbalancing that a valid confession guilt evidence of based on non-confessional necessary finding to a of overwhelming evidence, relying part on the fact that a evidence. bench trial was involved. There no majority Rather here must assume intimation, however, that the result would necessary quality that there is a reliabili- have been different had the error been com- *6 ty which inheres in a confession but in not contrary, mitted before a in On But, types other evidence. as the of dissent independent Null we examined evidence quickly in both pointed Milton and Schneble and, guilt great length of at without refer- out, may also fraught lawful confessions be ence to the fact a was bench trial with problems unreliability. involved, concluded that view of over- “[I]n Moreover, whelming support evidence . . . court was case law does not amply justified finding in him guilty”, majority’s requirement. 508 lawful confession 824, 974, 1978, 1071, rehearing, 5. 87 S.ct. 17 L.Ed.2d 705. aff’d 572 F.2d cert. denied,-U.S.-, 617, 99 S.Ct. 58 L.Ed.2d See, Arkansas, g., Halloway 6. e. v. 435 U.S. 680; Ayo-Gonzalez, Cir., United States v. 5 475, 488, 1173, (1978); 98 S.Ct. 55 L.Ed.2d 426 1976, 656, 652, denied, 536 F.2d cert. 429 U.S. 223, 231, Brown v. United 411 93 U.S. 1072, 808, (1977); 97 50 L.Ed.2d 789 Zilka S.Ct. 1565, (1973); S.Ct. 36 L.Ed.2d 208 v. Milton Estelle, Cir., 1976, 388, 392, v. 5 529 F.2d cert. 371, 373, 373, 407 U.S. 92 S.Ct. denied, 981, 495, 429 U.S. 97 S.Ct. 50 L.Ed.2d 2174, Florida, (1972); Schneble v. 590; United States ex rel. Hines v. 427, 430, 431, 1056, 405 U.S. 92 S.Ct. 31 Cir., 1975, supra, 1109, 1113, 2 521 F.2d cert. California, (1972); Harrington L.Ed.2d 340 v. denied, 1090, 884, 423 U.S. 96 S.Ct. 47 L.Ed.2d 250, 254, 1726, 253, 89 S.Ct. 23 Estelle, (1976); Cir., 1975, 101 Smith v. 5 519 (1969); Haynes, L.Ed.2d 284 United States v. 5 1267, 1268, 1269, rehearing granted in Cir., 1978, 236, 239, denied, 573 F.2d cert. 430, 433; Gattie, part, 527 F.2d United States v. -----U.S.----,99 154, 153; S.Ct. 58 L.Ed.2d United Cir., 1975, 608, 610; 5 511 F.2d Null v. Wain Geders, Cir., 1978, 1227, States v. 5 566 F.2d Cir., 1975, 340, 344, wright, 5 508 F.2d cert. - - 1233, denied, U.S.---, 2031, cert. denied, 970, 1964, 421 95 44 L.Ed.2d U.S. S.Ct. 396; Cir., Bynum, 60 L.Ed.2d 5 United States v. Blair, Cir., 1972, (1975); 459 v. 5 United States 1978, 914, 926, denied,--U.S. 566 F.2d cert. 338, 331, - - - 470 F.2d , 138; 99 L.Ed.2d S.Ct. 58 Estelle, 971, Wright Cir., 1977, 5 549 F.2d

933 of the has been dent evidence consisted victim’s iden- overwhelming The evidence test descrip- testimony tification as well as her applied even when a valid confession does arrest, to Hines’ rapist tion of the which led guilt. evidence of provide dispositive not testimony, ap- Hines’ California, corroborating medical Harrington supra, 395 In U.S. prehension vicinity in of the attack and 1726, 250, 284 89 23 L.Ed.2d his use of a false There was no valid alibi. him placed defendant’s confession at confession. crime did not otherwise scene of the but in the at- implicate participant him as a in nu Finally, significant I find it

tempted degree first murder robbery and merous this Circuit has found cases where Overwhelming evidence involved there. voluntary the admission of a confession to found, lawfully a was based on admitted error, be reversible we have focused on the by statement made one of the co-defend- insufficiency independent of the evidence of ants, victims, testimony of some guilt necessity on the of a and not inherent Harrington’s confession. Geders, confession. See United States 5 Cir., 1978, 1227, (independent 566 F.2d 1233 Although dispositive guilt, Har- evidence not “alone . . . sufficient to rington’s confession did counterbalance the defense); Estelle, Cir., rebut” 5 Smith v. unconstitutionally admitted confession. In 1976, 430, (independent 527 F.2d evi Gattie, Cir., 1975, “insufficient”), granting rehearing dence 608, overwhelming 511 F.2d evidence was 1267, 1268, 1269; 1975, part, Unit though lawfully found even admitted Blair, 1972, 331, Cir., ed States v. dispositive guilt confession was neither evidence), (error provided “key link” in erroneously nor counterbalanced admit- denied, rt. by ted confession. was convicted a Gattie ce Indeed, 36 L.Ed.2d jury conspiracy import possess Hernandez, Cir., 1978, marijuana, marijuana importing posses- found the ma decision sion with intent to distribute. It ar- controlling judi jority to be in the case sub gued that in denying the trial court erred ce, reasoning, we found no harmless error government Gattie’s mistrial after a motion alia, little, any, inter that “there was if repeated witness Gattie’s admission connecting direct with Hernandez imported.7 We found contraband was contents”, at truck or the Id. the error to be harmless because the evi- guilt “heavy dence of indeed”: case, however, the present In the defend- plane piloted that he was followed ant heroin was found with the concealed on sixty from miles at sea to Boca Raton person. I can think of no evidence that his Airport and he was arrested at the scene direct, compelling, and com- would be more pounds with 400 what he admitted to plete proof guilt. only theory of the *7 marijuana. be at 610. Id. custody. defense concerned the chain of magistrate The federal found this conten- majority’s require- lawful confession “completely unsupported by any tion to be precedent. ment contrary is also other allegation”. factual The district court example, For judge similarly concluded that the chain of defendant, suspected rape, ad- beyond a custody was established reasona- police, prior vised the after his arrest but question majority ble doubt. The does not warnings, receiving any Miranda that “he finding. this years had been eleven and had two married children”. An identical statement had been happens What here is that the State of available, Texas, previously rape made to the victim. Admis- is if the witnesses are still sion Hines’ going go statement to have to to the trouble and expense trying Harryman held to be harmless error because of over- the second whelming guilt. indepen- likely time when it needs that time to evidence of This most government suppressed favorable evi- also contended that it was error not to Gattie evidentiary hearing charge have held an on his dence. serious, recent, more possibly more

try convicted Harryman again

cases. will be he deny cannot had

because he person. concealed on his With

contraband

deference, just the kind of case this is review was intended to post conviction

remedy.

Again, respectfully I must dissent. GOOLSBY,

Joyce Individually and on similarly situated,

behalf of all others

Plaintiffs-Appellants, BLUMENTHAL, Secretary

W. Michael Department Treasury, et

al., Defendants-Appellees.

No. 76-2198. Tarutis, Em- Granberg, Gerald R. Steven Jr., III, Marks, Bragg, R. Alfred O. erson Appeals, Court of Macon, Georgia Legal Programs, Services Fifth Circuit. Cal., Ga., Kushner, Angeles, A. Los James June Williams, III, Greenberg, Jack E. Charles City, plaintiffs-appellants.

New York for Jr., Greg- Rampey, Atty., Denver L. U. S. Leonard, Carey, ory J. John D. Asst. U. S. Simon, Macon, Ga., Attys., Cole- man, et al. McKenna,

F. Andrew W. Raley, Robert Macon, Ga., City Thomp- for Ronnie Atty., son, et al. Staff, Kopp, Appellate Bruce

Robert E. Koslowe, Div., Forrest, Dept, G. H. Civ. Neil C., Justice, Washington, D. for defend- ants-appellees.
Stephen Christopher Chappie, Wash- C., ington, D. amici curiae. *8 Lagomarcino, Legislative P. Di- John C., Counsel, Washington, D. rector and Gen. Association, for National Governors’ amicus curiae.