Lynnwell Smith v. W. J. Estelle, Director, Texas Department of Corrections
527 F.2d 430
5th Cir.
1976
Check Treatment

*1 SMITH, Appellee, Lynnwell Director, ESTELLE, Texas

W. J. Corrections, Department of

Appellant.

No. 74-1188. Appeals, Court of

United States Fifth Circuit. 20, 1976.

Feb. Gen., Griffin, Atty. Asst.

John Pierce Austin, Tex., appellant. (court Houston, Tex. Renfro,

Phillip M. appointed), appellee.

431 previous our guilt to warrant evidence REHEARING FOR PETITION ON of the un- finding that the introduction REHEAR- FOR PETITION AND harmless error. confession was lawful BANC EN ING cases, cites an avalanche Petitioner 1975, 1975, 26, 5 Sept. (Opinion 1963, Washington, including Haynes v. 1267). 519 1336, 503, 83 10 373 U.S. S.Ct. Judge, AINS- BROWN, Chief Before 1963, 513; Illinois, 372 U.S. Lynumn v. DYER, Judges. Circuit and WORTH 922; 528, 917, 9 L.Ed.2d Cu 568, Connecticut, 1961, 367 U.S. lombe v. BROWN, Judge: Chief R. JOHN 1037; Payne 1860, 81 6 L.Ed.2d S.Ct. vigorous thoroughly a and re- By 560, Arkansas, 1958, 356 U.S. petition rehearing which searched for v. New 844, Malinski 2 L.Ed.2d experi- great credit to the most would do 401, 781, York, 1945, 65 89 324 S.Ct. U.S. practitioners, of criminal law enced Oklahoma, 1944, 1029; Lyons L.Ed. (whose counsel normal court-appointed 596, L.Ed. 322 64 S.Ct. challenges litigation) field is that of civil States, 1897, 168 Bram v. United at holding our that the introduction 568, 183, 532, 42 L.Ed. 18 S.Ct. pre-trial, pre-in- state trial of his Smith’s involuntary that an or proposition confession, which was obtained dictment is so violative coerced confession 1964, Illinois, in violation of Escobedo process of due and concepts fundamental 1758, 378 84 12 L.Ed.2d S.Ct. into evidence play fair that its admission 977, was harmless error. Smith contends error, can never be considered (i) rule that is never overwhelming how be the oth no matter applicable rectify involuntary confes- guilt.1 evidence of properly er admitted evidence, erroneously sions admitted into peti of cases with which The blizzard (ii) testimony and that his trial —which invoking this strict tioner confronts us in this Court’s find- was a crucial factor however, all involved proposition, ing of harmless error —was induced confes coerced truly involuntary or erroneously confes- proposition applied sions—none has testimony sion so that his trial confession, such as to a mere unlawful proper inde- thereby tainted and was not of defendant’s one in violation obtained pendent guilt, evidence of and without counsel, or his right Escobedo his trial the admission into right against Miranda2 self-incrimina unlawfully pre- evidence of the obtained tion. trial confession cannot be considered arguments harmless. Both of these are

made to the Court for the first time on ge distinction between the petition rehearing, and we nus of and spe unlawful confessions responsive brief from the state. We cies of involuntary or coerced hold that erroneously rule that ad- confessions is without a difference. not mitted can involuntary confessions never Although very types both constitute is not accused, considered harmless damaging against evidence petitioner an agree to this but we not be near unlawful confession remand, if, ly determining to the extent that as untrustworthy in innocence, that nearly District Court finds Smith’s or guilt defendant’s was in induced as shocking fact of fundamen our notions involuntary tal process, introduction his unlawful due confes as an sion certainly independent there is.3 would be insufficient Wainwright, 1. But see Milton v. 407 U.S. of course con- 3. A Jackson is v. Denno (alleged invol S.Ct. stitutionally who a defendant mandated for untary police posing confession to officer as timely urges inadmissible confession is light cell mate would be harmless in of three voluntarily given. 378 U.S. because not 368, previous confessions). valid 12 L.Ed.2d S.Ct. Arizona, 1966, 2. Miranda v. 384 U.S. S.Ct. 16 L.Ed.2d 694. But harmless). not tion but confession the distinction importantly, More N.D.Ohio, Perini, see Brooks con involuntary between aff’d, F.Supp. by cases buttressed fessions denied, cert. con principle woven the now (Miranda violation involuntary- fessions —unlawful reversal). compelled” “constitutionally obtained into evidence *3 re warnings the having given without 1965, the 10, to subject August are Smith was tried by Miranda quired v. Wain between during Null the 24-month interlude error rule.4 harmless 340, cert. is thus F.2d case Cir., 1975, Miranda. Our 508 Escobedo and wright, 5 1964, 44 reach 970, dwindling S.Ct. of number to 95 one a denied, 421 U.S. Hill, 5 v. 459; by Escobedo States courts controlled United L.Ed.2d v. 129; States Miranda, United further elaborated Cir., 1970, which 430 F.2d 270, 435 U.S.App.D.C. Escobedo, apply. 1970, Harris, holding 140 does 1971, denied, 402 1966, 384 n.21, Jersey, 74, cert. Johnson v. New 83 See F.2d 152; 1675, 1772, L.Ed.2d 882. 719, 29 L.Ed.2d 986, 16 91 S.Ct. U.S. 86 S.Ct. U.S. 1970, Cir., Jackson, 7 his state contend at v. Petitioner did not States United Sutt, 7 v. 1368; trial, any of States not contended at United has Harring thereafter,5 See 1969, proceedings 1305. several Cir., 415 review F.2d 255, 250, 1969, pre U.S. California, 395 and contend that does not now v. ton 284, involuntary 288 or 1726, 1729, L.Ed.2d trial was 23 confession 89 S.Ct. error v. (harmless Jackson J., request coerced. a dissenting) He did not (Brennan, Thus, Miranda); Unit Denno his state trial. hearing at will undermine doctrine 1972, F.2d Cir., 470 Blair, was unlawful v. 5 Smith’s confession ed States nom., v. by Crews 331, sub sole it was obtained cert. denied reason 908, 93 1973, were States, 411 U.S. requests for counsel police after his United er (harmless as we denied, 197 1536, violation 36 L.Ed.2d a clear Escobedo S.Ct. viola- to Miranda held.6 applicable previously ror doctrine ap petitioner long So has also been far has road. error rule traveled The harmless 4. plied types hearing confessions. unlawful District to other of Court on remand now or- 1974, Cir., Wilson, post-conviction F.2d pro- 500 dered 5 will be the ninth United States 977, 1975, 715, denied, last, ceeding. limited, 95 S.Ct. 420 U.S. cert. This drama- success 1403, (introduction of defend tizes 43 L.Ed.2d 658 the value of able counsel. exculpatory by excised ant’s confession tainted 6. Dicta in Miranda that custodial error); United States was statements harmless elicited after the accused has and 788, 1973, Cir., Hayles, F.2d cert. 471 5 se, been per denied counsel are coerced 384 2159, denied, 969, 36 L.Ed.2d 411 U.S. 93 S.Ct. 457-58, 474, 1618-1619, 1627, U.S. at 86 S.Ct. incriminating tapes (playing of 690 713-714, 723, 16 contrary L.Ed.2d is not to our error); by was statements defendant purposes invoking view that for of the harm- (en Beto, 1972, Cir., 467 F.2d 516 Hoover 5 rule, only less dealing we are here 1086, denied, banc), S.Ct. 93 cert. 409 U.S. an anti-Escobedo inherent confession. The (erroneous introduction 34 L.Ed.2d 673 pressures to confess discussed in Miranda accomplice’s principal’s hearsay at confession interroga- faced an accused alone with his States, Posey 5 harmless); v. United was trial tors do high not rise to the same of coer- level denied, 397 416 cert. F.2d present cion cases, involuntary in those confession denied, reh. L.Ed.2d above, cited which hold the harmless inapplicable. rule If all confes- anti-Miranda (assumed of co- in introduction Bruton error equally involuntary sions were in fact to those harmless). was defendant’s confession coerced, physically psychologically or it would cases, justify be difficult indeed to those also above, applying cited error rule See, g., petitioner’s closing 5. e. statement Furthermore, be- to anti-Miranda confessions. low: “Petitioner here claim doesn’t that he retroactively applicable Miranda is not to our denied a on the voluntariness and compelled and we are thus not its why rights that is denied. were He is bas- sponte dicta to sua Escobe- transform Smith’s ing taking his claim on the of the confession allegation do attack on his confession an into rights and the denial of his under Wainwright, Escobedo of involuntariness. Cf. Milton v. * * *." Tr. at supra 74. (admission pre-Miranda of 1958 unlaw- We have cases which found no S.Ct. Wong squarely application consider the Sun States, 1963, 371 harmless error rule to an anti-Escobedo view, however, Estelle, In an Alberti v. Cir., confession.7 ; analo anti-Escobedo confession is more Randall v. 1268 Estelle, 1974, 492 F.2d to an than gous anti-Miranda confession If Smith would not have taken involuntary an operationally stand but for the admission warranting coerced of his thus pre-trial confession, application of the harmless error rule. introduced through the testimony Escobedo, Miranda re-ex Officer Rippey, evolved from then his testimony was amining, reaffirming extending its tainted thereby and cannot holding. incongruous It would be considered as independent evi dence guilt make the rule purposes harmless error of applying *4 the predeces to the harmless progeny and not to the error rule. sor. Both Miranda Escobedo and involve but not confessions which are unlawful Smith’s trial testimony —Smith involuntary in sense. operational the in essence corroborated damaging the Thus, our original testimony error anal- harmless of only the two witnesses to

ysis petitioner’s withstands initial attack. the killing asserted that he “whacked at” the victim in self-de It cannot survive Peti the second. fense —was crucial to our finding of tioner by contends that we includ erred harmless it, error. Without indepen the did, ing, prior as our we opinion reflects dent evidence of guilt basically the tes his trial testimony in our calculation of — timony of Green and Hawkins —is insuf error, harmless since he was induced to ficient to warrant the conclusion that take the stand of his the introduction the introduction of pre Smith’s unlawful pre-trial confession.8 trial confession was beyond harmless principle prohib “The same that reasonable doubt: Florida, Schneble v. [unlawfully] its use of confessions 1972, 405 92 S.Ct. any of prohibits also the use procured Harrington California, thereby fruit of testimony impelled —the 1969, 395 tree, a time poisonous to invoke * * * Chapman California, metaphor. worn If he [took the im in order to overcome stand] L.Ed.2d 705. pact illegally of obtained and introduced, then hence his improperly Whether Smith would not have taken by the same ille testimony was tainted the stand but admission, for the through that the confessions gality rendered Officer Rippey’s testimony, of his unlaw- Harrison v. themselves inadmissible.” ful pre-trial confession question is a of States, 1968, 222- fact on which the District Court has made no findings, and on which the Connecticut, Fahy 1051—1052. See record is inconclusive. The unexplained Perini, er- N.D.Ohio, 1973, harmless ful custodial confession deemed F.Supp. ror). any supra, And in we do not decide event the Miranda violation which “constitu- any holding tionally what compelled” under intimate on when or reversal was the denial of permissi- request error is not circumstances defendant’s to consult counsel. ble in an anti-Miranda situation. argues if his trial even that 8. Petitioner also pointed 7. But the Court out in United States v. indepen- testimony weighed along is Blair, Cir., 1972, 331, supra, that, 470 F.2d his guilt, the admission dent evidence of although the Miranda, confession violated meet the confession does holding in governed Escobedo also the case. However, adhere to we error. test of harmless given defendant had been the Miranda when original calculation of warnings, subsequent request for coun- testimony on the included Smith’s sel was denied. The Court considered but did scales. not find the error to be harmless. In Brooks in this opinion nal apparently record indicates that Smith facts considered 1267, adequately plan testify, did not originally since predi- we upon and circumstances charge sheriff taken already had habeas petition denial cated our jury reopened when the case reluc- considerable corpus. It is with allow Tr. him to take the stand. at 135. herein the result I in concur tance But Rippey’s even without testi- Officer supple- further remanding this case mony, Smith considered the have we I doubt of the record. ment testimony of witnesses and Haw- Green brief excellence reward the kins to should damaging enough itself to evi- with another counsel petitioner’s of dentiary hearing compelled upon him embark when, as we self-disclosure, strategy. self-defense bewill order out, now what we pointed We question leave the of the link be proceeding. post-conviction the ninth tween Smith’s trial and his unlawfully admitted pre-trial confession

to be remand, answered the District Court on after a full will —-which hopefully L. include the of L. Scott, Smith’s trial counsel.9 Lo state v. Capps,

gan

and the the respec cases it cites out set tive burdens analytical proce *5 and the America, STATES UNITED dures guidance for the of the District Plaintiff-Appellee, Court in determining how the causal re lationship between the unlawful confession and Smith’s trial GRIFFIN, Raymond Stanley to be determined. Defendant-Appellant. Except as to the we on which issue No. 74-3033. remand Court, to the Peti- District Appeals, United States Court tion no Rehearing is denied Fifth Circuit. Judge regu- member panel of this nor in having lar active service on the Court 23, 1976. Feb. polled be on Court rehearing (Rule en banc 35 Federal Procedure;

Rules Appellate Local

Fifth 12), Circuit Rule the Petition for

Rehearing En Banc is denied.

AINSWORTH, Judge (specially Circuit

concurring):

I fully concur of Chief opinion

Judge responds it Brown insofar as

appellant’s that harmless miscontention rectify

error is invol- never

untary erroneously admitted

into evidence. point,

As to that his appellant’s second errone- is induced

ously it is pretrial

my view Judge origi- Brown’s that Chief post-con- privilege in a ney-client remand deci- Notwithstanding counsel’s the fact Woodall, 5 States case. See viction the stand sion to his client take banc). (en client, 1324-26 438. F.2d with his communication involved attor- invoke the Smith would not able