Sam Hoover v. Dr. George J. Beto, Director, Texas Department of Corrections

have not cases taken so narrow a view Chambers,

of Windsor. Neither Lathers upon

nor Atwell relies the “affirmative argument. misleading” judgment of the District Court is

reversed and the cause is remanded with grant discharging

directions to petitioner the writ custody unless the state elects, within a reasonable time to set Court, retry the District him on

the indictment.

ON PETITION FOR REHEARING

AND PETITION FOR RE-

HEARING EN BANC

PER CURIAM. Rehearing

The Petition for is denied panel Judge and no member of this nor regular active service on the Court having requested polled that the Court be rehearing (Rule banc, en 35 Federal Appellate Procedure; Rules Local 12) Fifth Circuit Rule the Petition for

Rehearing En Banc is denied. HOOVER, Petitioner-Appellant,

Sam George BETO, Director,

Dr. J. Texas De partment Corrections, Respondent- Appellee.

No. 29587. Appeals,

United States Fifth Circuit.

Aug.

Certiorari Denied Dec. See 93 S.Ct. 703. Burnet, Odessa, Tex., Warren Raeburn Norris, Houston, Tex., Jones, Luther E.

Jr., Christi, Tex., Corpus petitioner- for appellant. Lonny Zwiener, Atty. Gen., Asst. Aus-

tin, Tex., respondent-appellee. for RIVES, WISDOM, GEWIN, Before BELL, COLEMAN, THORNBERRY, GOLDBERG, AINSWORTH, GOD- . BOLD, MORGAN, DYER, SIMPSON, CLARK, RONEY, INGRAHAM and Cir Judges.* cuit AINSWORTH, Judge. Circuit a has considered Seldom this Court spectacular or case than more bizarre corpus petition of an ex- this habeas perienced lawyer, former Texas criminal Texas, City mayor Pasadena, of guilty in who was found State Texas being ac- Court of the mastermind and complice especially brutal and hor- robbery, rible assault but who invalidly that he convicted tends rights. of federal constitutional violation serving presently a Sam Hoover by sixty-year imposed sentence Crim- County, of inal District Court Harris guilty A him Texas. found accomplice separate trial as an robbery by firearms,1 conmut- crime * Judge participate Payton, Cir., 1968, 261; Chief Brown did not 390 F.2d Beto, Cir., 1970, the consideration of this case. Sellars v. 430 F.2d proceeded Hoover exhaust ap by filing 1. Hoover’s conviction was affirmed on State remedies habeas State peal Ap petition pursuant 11.07, to the Texas Court of Criminal Article Ver peals. State, Tex.Cr.App. Crim.Pro., See Hoover v. non’s Ann.Tex.Code petition rehearing denied. S.W.2d was denied the State-convict petition He thereafter filed a for writ court and the Texas Court Criminal corpus Appeals appeal. habeas Hoover then filed United States District on corpus petition Court which was dismissed for a writ of habeas failure to exhaust State remedies. Cf. State of Tex in United District Court. States error, Young, on Cal- favor both claims reversed principals Oscar ted John judgment de- Sellars, Spivey.2 District Court Hoover and Samuel vin nying pe- petition for habeas appealed of his Hoover’s from the denial has corpus, di- corpus and remanded the case with the United for habeas tition discharge grant rections the writ for the Southern District States Hoover, unless the elected re- Texas, Division. State Houston District try reported opinion him time. within reasonable The District Court’s Cir., Beto, Beto, Hoover 439 F.2d as Hoover S.D.Tex. the Federal F.Supp. Rule 35 of Pursuant Appellate Procedure, Rules two appeal has asserted On placed Upon en banc Court. the denial below claims of error rehearing banc, after careful consid- en corpus petition fed- his'habeas based presented re- eration of the issues grounds. First, he eral constitutional us, view record before the entire refusing erred contends the Court opinion of is of the this Court alleged of his violations to sustain panel decision be re- should Amendment Fourth and Fourteenth versed, judgment and the District rights from unreasonable be to free denying petition Court Hoover’s for Trial search and seizure. State corpus is writ of therefore af- habeas dia- into evidence two Court admitted firmed. during home monds seized from Hoover’s nighttime by the conducted search Department. Hoover Houston Police I. argues made search was with- THE AND SEIZURE SEARCH voluntary police consent, by his offi- out ISSUE acting search war- cers color of a under Aguilar surround- and circumstances rant which was invalid under The facts Texas, home Hoover’s the search Sam State Secondly, (1964). diamonds therefrom two and seizure 12 L.Ed.2d 723 Schepps’ are residence Hoover asserts that his to con- stolen from They are stated under Sixth Four- uncontroverted. frontation Beto, infringed original opinion, panel’s Hoover v. teenth Amendments was when only 916-918, be and will Trial admitted into evi- State Court 439 F.2d alleged briefly prin- here. dence the oral confession of summarized cipal and coindictee Calvin Sellars. during Hodges Officer testified confession, implicated which also Hoover early morning March hours of during accomplice, as an admitted company other law of nine to of Officer C. V. Stone enforcement officers the Justice confessed, pursuant whom to Sellars had issued a search war- the Peace who exception well-established Texas- question, he went for the search rant hearsay rule which allows the confession home, knocked, and Hoover to Hoover’s principal of a admitted at trial Hodges announced answered door. accomplice prove principal’s of an he had a warrant and that who he was guilt, proof guilt being a neces- such told him to search his home. Hoover sary prerequisite ac- to conviction unneces- “that the search warrant was complice offense. sary, in his to come on house [him] panel original- pleased.” and look None [he] this Court which wherever uniform, ly but sev- heard the officers was in the case decided Hoover’s corpus separate Young relief in la denied habeas Texas State trials and Sellars Court, Courts, guilty principals were found Federal District Beto, Cir., 1970, us. Sellars v. and sentenced to death. Their convic See Spivey, appeal. indict- tions affirmed See F.2d Samuel granted immunity principal, Young State, Tex.Cr.App.1965, ed as a testimony against 572; State, prosecution for his S.W.2d Sellars v. Tex.Cr. App.1965, 400 Hoover. S.W.2d Sellars ceedings of them have been well known petition eral below on his for habeas corpus.3 Rather, of his criminal Hoover because law we are asked to draw Hodges practice in area. Houston inference that the statement of Offi- Hodges hand he had the warrant when cer he a warrant weak- meaning on the door. asked ens subsequent knocked Hoover of Hoover’s Hodges in- see the warrant after words of invitation and the intent which upheld Trial convey ordinary side. The State those words ground search on experience namely, “Sam course of human — necessary said it’s not a search consent. warrant, inon and search resi- come Judge Trial The State ruled that the dence.” uttered words Hoover meant dispute hap- There is no as to what inviting police Hoover was officers pened and what was said. The contro- home, to search his without reference versy concerns inferences and conclu- any they poss search warrant which sions to be drawn from a known set essed.4 The District Court felt below acknowledges Appellant facts. that the that while it was not the find bound spoke words constituted he an invitation ings Court, Trial State find those police to the theless, to enter and Never- search. ings great were nevertheless entitled to argues reply re- brief on weight. F.Supp. Independ at 987. hearing that ently, the District held that Court below appellant “The ex- invitation which the evidence was and es uncontradicted searching tended to officers only tablished that Hoover not consented being upon come into his home search, but invited it. even presented misrepresentation with that pointed Court out that Texas Court allegedly invalid search [the warrant] Appeals of Criminal that also found by, solely product was induced and a (390 there was invitation to search S.W. of, misrepresentation. 762), finding 2d at which af fact ruling. firmed the Trial State Court’s any “Therefore consent evidenced wholly that invitation could not have consent to search has Whether product appellant’s been a of the free given question is a of fact. We been only recently passed will.” question on this is no There evidence in affirmative Resnick, Cir., United v. States support the record to contention Judge 455 F.2d where Godbold actually involuntary. the invitation was noted that testify Hoover did not dire the voir Judge found, “The District on con- hearing pertaining validity flicting testimony, did that Carlton search when the matter was considered say consent. cannot that this was during We presence out of the of the Court, erroneous, scope pro- plainly his trial in or in is State our warrant, 3. The Federal District come Court noted on and search the resi- your objection. “The factual I basis for dence. overrule [Hoover’s] conten- tions is to be determined from the record parties reasoning present as both matter elected not to fur- “The Court’s on this complete hearing granted ther evidence I think there distinction is a acquiescence F.Supp. or an Court.” between submission 982-983. hand, invitation. On the other or an pertinent part this You have recited to of the Trial invitation. State many being ruling there Court’s about so officers is as follows: Court “Counsel, they what had in mind. What this witness has and testified thing proper is what thinks this was the home of Sam Hoover. upon knocking door, evi- have mind. The That did Hoover on the tes- Sam attorney timony who he is an dence reflects Sam Hoover came to the many Here is criminal cases. door. The officers informed him tries says a search had a search defendant who comes warrant Hoover Sam unnecessary, necessary in.” come said it’s not to have search warrant error to admit rifle in at a motion stitutional of review of facts found petitioner. hearing.” suppress States F.2d at See also United 1057; Gunn, Cir., 1970, at 1792. v. F.2d Montos, Cir., United States Bumper holding denied, 421 F.2d cert. undoubtedly strong circums based 1262, 25 L.Ed.2d 532 view the tances.5 Our own (1970). places much reliance on Hoover attorney told is that when Sam Carolina, Bumper of North State Hodges that his warrant Police Officer 20 L.Ed.2d 797 necessary come on into and to was not Court, (1968). Bumper, In wanted, his home and search wherever through White, Mr. Justice stated: convincing evi this constituted clear prosecutor rely upon “When a seeks to search, voluntary consent to dence justify of a consent to the lawfulness validity irrespective war of the search, proving he has the burden of voluntarily consented rant. Hoover freely was, fact, consent That consent and invited the search. given. voluntarily This burden compelled coerced was neither nor discharged by showing no cannot be argument that search warrant. The acquiescence than to a claim more express of invitation and declarations authority. lawful A search conducted here, present consent, con such as were upon in reliance cannot warrant nothing acquiescence stitute “more than justified later be on the of con- basis authority” neither to a claim of lawful sent it turns out that the warrant logic comports nor with with reason was invalid. The result can experience sense. and common human different when it turns out that the rely attempt even State does not prior to The Texas State rule law upon validity warrant, Bumper substantially different was, fact, Bumper show fails principles upon which from the State, 1942, warrant at all.” is based. Stanford 306, on S.W.2d 145 Tex.Cr.R. 548-550, at at 88 S.Ct. 1792. find court to which Texas relied the holding case, however, The was consent, of C0riminal Texas Court obviously much and narrower was based Appeals stated: particular facts, on its since Court said: frequently held that has “This court party that officers advised hold that when was

“We Mrs. Leath did not con- premises search, search had a to sent to the and that warrant it was your Bumper Carolina, Mrs. 5. In warrant to search of North house.’ State ahead,’ opened responded, and ‘Go Leath 391 U.S. L.Ed.2d (1968), S.Ct. the door.” 391 U.S. a .22 in caliber rifle was troduced at trial defendant’s which hearing allegedly on de- at a Mrs. Leath testified was used commission suppress: (rape). motion to fendant’s the crime The evidence was seized busy grand I was about them came. “Pour of from the residence of defendant’s my work, mother, into the walked and “ up 66-year-old Negro widow, walked of them house and one . . .a said, search warrant to ‘I have a search in a house located in a area at rural house,’ your walked and told mile-long and I out dirt the end of an isolated * * * just days He alleged on in. them to come Two road. after of- warrant had a prior petitioner’s in and said he on come but to the ar- fense house, didn’t and he rest, search to four white law enforcement of- just nothing. So, I county sheriff, it me or read to ficers —the two of his go in and ahead on deputies, investigator him to come told and a state —went my search, I on about went to this house and found Mrs. Leath was he what young I concerned wasn’t work. with children. some She just satisfied.” I was about. officers front door. met 546-547, at 1790. announced, T have a search One them party ply question the mere statement of the to the oc- search which right go Agui- ahead all was curred about months before three right regarded as a waiver lar on The was decided June regularity original question panel warrant held need that “Hoover * * * Aguilar retroactively rely of consent to the search. on nor since hand, party On the other where the he had not been tried and convicted when Aguilar tells the a warrant officer the decision rendered.” unnecessary, panel Subsequent search and no issue 439 F.2d at to the question, decision, however, Supreme on consent made de- Court ** * question States, turns shown. cided v. United Williams party point on as to whether 28 L.Ed.2d 388 gives search, really (1971), prior consent for the which held that a decision pur- merely acquiesces scope permissible in the officer narrows suing legal rights retroactively applied under a valid searches is not to be prior Id. at 519. the date warrant.” 167 S.W.2d to searches conducted Thus, of decision. because the [Citations omitted.] Supreme search was made Stanford, after the officer told de- Aguilar, af- it is not Court’s decision warrant, fendant defend- holding thereby. panel’s fected necessary ant stated that it was not the search of Hoover’s home consti- go any place have a warrant and “to rejected tutionally expressly invalid is go.” in the hotel Id. wanted to [he] by us. at 519. The Court held defend- ant had consented to the search and that II. operated the consent as a waiver right object validity war- THE ISSUE CONFRONTATION here, rant. That was the situation Amendment The Sixth United apparent it is differ the circumstances provides “In all States Constitution Bumper. those prosecutions, shall the accused criminal expressed As the District Court below right enjoy the confront- . . . it: against him. ...” ed witnesses Bumper party question “In in Pointer v. State year Negro patently a 66 old widow Texas, limited education who was neither (1965), sus- held 13 L.Ed.2d 923 pect at the time de- nor eventual of an that “the Amendment’s Sixth proceedings. fendant the criminal accused to confront the witnesses lawyer Petitioner here was himself a right him is a fundamental ... experience extensive in criminal obligatory is made the States practical law and its realities. While Fourteenth At Amendment.” Hoover’s controlling necessarily trial, Judge is not a Trial admitted into the State here, distinction it is a circumstance.” the oral confession of Calvin through of Houston Sellars F.Supp. 306 at 986. Police Officer The confession Stone. Furthermore, we hold that alleged part made reference accom- search of Hoover’s home was not con plice participation Hoover’s crime stitutionally Aguilar invalid of because by principals Young, Spivey, committed Texas, 108, v. State of and The admit- confession was Sellars. 1509, (1964). 12 L.Ed.2d 723 The pursuant State ted law on the basis of Texas Aguilar applies of Texas that if exception concedes well-established the hear- home, to the say search of Hoover’s contends, however, the affi Hoover that rule. supporting davit the search warrant does he was denied the to confront and probable not meet Sellars, confessor, cause standards cross-examine all prescribed by Aguilar. The ar State in violation of the Sixth and Fourteenth gues, however, Aguilar ap- that does not Amendments. After careful considera-

523 Young, Spivey as indicted record, and were that under hold we tion of the us, law, principals.6 in order Texas Under before and circumstances facts accomplice, the must Amend to convict an State and Fourteenth Sixth Hoover’s proof. It a two-fold of rights Cal sustain burden not violated. See were ment prove beyond 149, Green, first reasonable S.Ct. must 90 ifornia v. principals guilty (1970); 1930, v. doubt 489 Dutton 26 L.Ed.2d alleged Evans, the indictment.7 L. crime 91 27 400 U.S. beyond prove Moreover, Then it (1970). if there must a reasonable 213 Ed.2d alleged accomplice, proportions, doubt before of constitutional was error robbery, advised, commanded, en- it harmless or the record shows Harring couraged beyond his co-indictees commit a reasonable doubt. See present California, offense and he was not ton v. 395 (1969); Chapman time its commission. 23 L.Ed.2d 284 California, State The rule us Texas of evidence before (1967). 824, 17 L.Ed.2d S. Ct. foregoing particularly tailored to the and is rule criminal law substantive A. BACKGROUND having rule, exception hearsay an by judicial as an accom been fashioned Hoover was indicted decisions Sellars, robbery plice to the dating Texas courts at least 1881.8 charged the indictment accomplice first count of is the “An under our Code principal. accessory This count as a Hoover as an before the fact same by jury. The second very not submitted the common law with much accomplice. charged as procedure. count In same criminal order to robbery of the crime accomplice, definitions must the State convict accomplice law are Texas guilt principals under prove and and opinion. panel’s F.2d accomplice advised, set out that ed, command- Only count was encouraged principals n. 1. the second at 915 or to com- part jury. separate relevant submitted mit the offense. There are two propositions demanding it reads: and distinct full Spivey [Young, proof and Sel- principals . . “. State. day March, lars], having convicted, lltli about been tried and so State, County and in said A.D. the record of their conviction could upon Schepps make an guilt, Mair did and introduced to establish their assault, required then there said and did and establish their State putting guilt assault and violence and manner and to the same bodily injury, certainty fear of life [him] themselves same using trial; guilt and ex- upon then and hibiting for their pistol, firearm, to-wit, accomplice must be before the shown fraudulently legally will of the can be convicted.” per- Schepps take from the said Mair possession Mair. State, Tex.App. son and of the said Arnold v. Schepps property description 1880). State, Tex., [certain See also Tucker v. — being then Cr.App.1971, herein the same omitted] 461 S.W.2d 630. corporeal personal property there the [Schepps] State, 1881, Tex.App. then with the intent 8. See Simms deprive 131; State, 1893, there to of the value [him] Blumann v. 33 Tex.Cr. appropriate State, the same and to R. S.W. Bluman [Young, Spivey (on and Sel- use of them 33 Tex.Cr.R. S.W.2d 75 lars], HOOVER, 75; ; rehearing) and that on or SAM Millner v. S.W. March, day State, 1914, 22, the 11th of A.D. about 169 S.W. 75 Tex.Cr.R. 1964, prior 899; Sapp State, 1919, . . to the commis- . v. 87 Tex. Cr. 459; State, 606, sion of the aforesaid offense v. R. 223 S.W. Smith wilfully ; unlawfully advise, (1922) 15, and com- did 237 265 91 Tex.Cr.R. S.W. mand, encourage [Young, State, 1954, Longoria 159 and said v. Tex.Cr.R. State, Spivey 826; 529, to commit of- v. Sellars] said 265 S.W.2d Crook 198, 444; fense, 1889, Tex.App. 11 S.W. the said SAM HOOVER not be- 27 State, 1898, j)resent at the time of the commis- Hamlin v. 39 Tex.Cr.R. Espalin State, 656; [Young, 579, v. the aforesaid offense S.W. sion of 47 274; Spivey 625, 1921, Sellars].” Tex.Cr.R. 237 S.W. 90 State, 1934, Browney 128 Tex.Cr.R. v. 524 State, 1934, accomplice, on the trial of the for Browney Tex.Cr.R. v. 128 In 311, 314, the Court stated 81, purpose guilt proving 79 S.W.2d of of applied the cases which Texas solely accomplice, purpose but of for “ go . no further than rule . . proving guilt principal.” of the general give to the rule effect jurisdictions rule is followed courts of other princi- confessions of admissions 9 years has been over (if

pal if would be admissible trial) recognized principal on are admissible In commentators.10 admissible, 311; State, 81, prove guilt Wilkins 79 S.W.2d v. is not of 452, 1937, accomplice.”) ; 115 S.W.2d 134 Tex.Cr.R. tlie and 2 Brandi’s An- 907; parte Suger, 1946, p. 754, Ex 149 52, (2d Tex.Cr. not. Texas § Penal Code (bail ; case) 133, ed.) R. 192 S.W.2d 159 State, 1957, v. Louvier 167, 165 Tex.Cr.R. A similar Texas rule tlie allows confes State, alleged Cf. Pine v. 305 S.W.2d 574. sion of an thief to be introduced person charged Tex.Cr.R. 115 S.W.2d 134 at tlie trial of a with re ceiving property 918. purpose the stolen for tlie proving property of tlie theft of tlie See, State, g., 9. Wells v. e. 194 Ga. Donegan for that reason alone. v. See (1942), Wigmore State, 1921, noted S.E.2d 89 Tex.Cr.R. 229 S.W. jurisdictions following 857; Hoyt tlmt American State, tlie v. 88 Tex.Cr.R. liave at one time or another followed tlie 936; Ashley State, 1961, 228 S.W. v. Colorado, Georgia, Connecticut, rule: Kansas, Nebraska, 613; 171 Tex.Cr.R. 346 S.W.2d La State, 1962, Tennessee and Wash nier v. 172 Tex.Cr.R. ington. Wigmore, Evidence § See 356 S.W.2d 671. England apparently n. Schepps State, also follows the Tex.Cr.App.1988, v. Cox, (1858). rule. Rex 1 F. & F. 90 S.W.2d the Texas of Crim Turner, Moody, again Crown Appeals Cf. Cas. Rex inal had occasion to con opinion sider rule. In its on State’s rehearing (432 motion for S.W.2d at 938 Wigmore seq.), 1 0. states : et the five-man court divided three “(c) principal ways, Schepps That tlie confession conviction re admissible, is on tlie trial of tlie acces- versed and tlie ease remanded for a new sory, judges to evidence the commission of tlie trial. Two concurred the main principal, opinion crime seems clear on to tlie effect introduction present principle, supposing extrajudicial some confessions of three of tlie cooperation alleged principals Schepps’ of tlie evidence defendant’s violated con confrontation; be first furnished. But whether the stitutional tlie judgment principal judge conviction of the third concurred because of failure same, purpose hearsay is princi receivable for the de- to delete statements pends pals’ implicating tlie doctrine of the effect of written confessions judgments.” judges Schepps; [Citations omitted.] and two dissented and Wigmore, 1079(c), p. IV Evidence § adhered well-established Texas rule. (3d 1940). Ray judges ed. McCormick and state Thus “tlie were not to reach able why, tlie rule follows : n circumstances, ns as consensus or under what “Where is defendant indicted as an ac- such are not confessions complice, Steele, on liis ti'ial tlie admissible.” See Criminal Law since, principal Procedure, offender is admissible 24 Southwestern Law necessary guilt prove viability it is principal tlie of the Journal part against of the case Texas rule of law where accom accomplice. plice being separately tlie But the use of the his tried guilt any principal, fession limited tlie of tlie would be principal guilt prin and tlie in- must be admissible to show the of tlie cipal trial, structed that it is not evidence were on is admissible purpose.” accomplice pur tlie defendant on tlie for other trial tlie tlie guilt pose showing principal, [Citations omitted.] tlie of tlie Ray, subsequent 2 C. R. McCormick and Texas Law was reaffirmed in tlie case (Confession Chapman State, Tex.Cr.App.1971, of Evidence § Person Defendant), (2d p. Other Than Texas we liave ed. S.W.2d latest 1956). Tex.Jur.2d, Judge find, by Onion, See also 24 author Evidence able 069, p. Schepps. (“Where opinion jirineipal § of the main Inci tlie indictment, prior dentally, Schepps named as suoli in the tlie was ren decision confession is accomplice trial of an dered the decisions Su admissible tlie prove guilt, though preme Green, his own California v. 399

525 fragmentary, incomplete and Tex.Cr.App.1968, 432 sion State, Schepps v. may In that in evidence. received be 926, of Crimi- Texas Court the S.W.2d carefully event, should the trial court Appeals noted nal rights accomplice guard on the of the apparently exception is bottomed “This by limiting purpose of the the trial the bur- the has the fact that State on establishing princi- the confession to guilt princi- proving of the the den of guilt.” pal’s omitted.] [Citations and, therefore, pal case in such be admissible would v. Smith also 79 S.W.2d 314. See guilt principal if he the 15, State, 1922, to show 237 S.W. 91 Tex.Cr.R. the trial on on trial is admissible 265, were con- Trial Court State 267. purpose of accomplice for the permit introduction of strued the rule principal.” showing guilt of the are “interwoven” references which guilt principal.12 State, confession of Browney also v. Id. at 940. See 311, 81, 1934, 79 S.W.2d Tex.Cr.R. 128 Superimposed on the Texas 314. principle in Jack rule established is 1774, 368, Denno, v. son 378 U.S. Texas, al must In confessor (1964), 12 that “A defend L.Ed.2d 908 specifically in the indictment so named be objecting of a ant admission to the principal.11 cannot The confession as a hearing in fair confession is to a against entitled the defend be used as evidence underlying issues factual which both accomplice and as an ant on trial who is of his confession the voluntariness to connect accom admissible actually reliably are determined.” against charged plice with the offense 380, 84 S.Ct. at 1783. State, 1938, Pine v. 134 Tex.Cr. him. Cf. Texas, accomplice separately on trial 396, R. 918. 115 S.W.2d entitled defend State’s case limitation Texas has fashioned a against principal ex to the same applicable when rule of to defend the tent that he is entitled way principal’s some State, Chapman himself. v. guilt accomplice on refers Tex.Cr.App.1971, 656. Pur 470 S.W.2d Browney v. It summarized trial. Denno, supra, suant to Jackson v. when State, supra: has indicated that it intends to State confession, Court, upon use a Trial “Statements the confession timely solely request opponent of the

principal of the which relate evidence, hearing guilt accomplice, must and which hold outside light presence jury on principal’s ac- the issue of on the throw no * * * tions, voluntariness and rule on the admissibil should excluded. ity the confession. If the Court finds However, expressions if the connect- involuntary, offense, the confession accomplice must be judgment against excluded eliminated, ac- when render the confes- 149, 1930, 12. The “interwoven” test the counter- 90 26 L.Ed.2d 489 incomplete” “fragmentary part (1970) ; Evans, 74, 400 Dutton v. Browney 1934, State, developed (1970) ; 210, test v. 27 L.Ed.2d 81, Harrington California, 311. See Tex.Cr.R. 79 S.W.2d v. 15, State, 1922, 91 Tex.Cr.R. (1969). v. Smith L.Ed.2d 284 fact interwoven “The 237 S.W. expressions Sapp State, 1919, in the confession Tex.Cr.R. See necting appellant with the acts 459; 2 McCormick and 223 S.W. C. principal the statement not render Ray, Law of § R. Texas Evidence Id. S.W. the state.” p. (2d 1956) ; nonavailable n. ed. Tex.Jur. State, Walker p. See also 2d, at 267. The rule has Evidence § 308, 311-312. 227 S.W. application 88 Tex.Cr.R. is an where the confessor accomplice principal. Ex Parte Herring, 1932, 122 Tex.Cr.R. 53 S.W. 607; State, 1957, Tex. 2d Louvier Cr.R. 305 S.W.2d during investigation Chapman he had re- reversed. complice will be jar containing Tex.Cr.App.1971, covered a of State, certain items 470 S.W.2d jewelry. already proved had finds the confession State Court If the 661. jar jewelry voluntary, defend- that the had admitted. The the it is Sehepps’ course, at- ant, the stolen from the residence. retains arrest, jury. the before testified that after his voluntariness Stone tack its instance, centers had him But in attack Sellars told the items this the weight adjacent yard the admissibil- his mother’s on the and not on buried ity prosecutor the confession residence. the called the evidence. Once When confession, admitted, in- the Trial must Court for contents of oral only jury be struct can used the defense demanded and secured guilt, prove hearing presence as confessor’s outside of the sought jury and cannot considered as evidence on voluntariness and also accomplice. the defendant Hoover. have excluded references to contained As to references to Hoover used rule was on two occasions at confession, the Trial Court State first, Hoover’s trial: when the written ruled in accordance with Texas law Young confession of John was Oscar ruling, that consistent with its former introduced; secondly, when the oral ruling fession of Calvin introduced Sellars was of this Court was the “The same through testimony oral Officer C. V. if it or was written statement Only propriety testimony Stone. the use confession. If the of Sellars’ confession is before us re- for interwoven, written confession is so instance, In view. each Trial State it is even Court holds admissible carefully Court followed the rule Texas accomplice. if it is an the confes- of evidence. Young, sion of John Oscar Young’s confession was written and particular paragraph held that the Court decided to “bracket out” those sepa- so interwoven it could not be portions thereof which referred to rated as to statement make the written Hoover.13 intelligible, and it is an oral Subsequently, sought the State to in- in this instance.” troduce Calvin Sellars’ oral confession hearing An was held on extensive through of Officer Y.C. confession, at voluntariness of Sellars’ guilt prin- Stone to show Sellars’ as a cipal. end which Court ruled Stone called to the stand presence jury testify voluntary in the confession was and Sellars’ rights State’s ease chief. He testified re- were not violated.14 The According Young’s (cid:127)sleep. got confession, $1,100 part written He about for his robbery. he said that on March lie was in- Sehepps formed that a bookie named had $300,000 stashed in his home. On March The State Court also made written find- 11, 1964, Spivey he, ings voluntariness, and Sellars drove out on the issue n house, in, part record, broke and commenced were made follows: searching money. They during found . . the trial of the above money, large cause, some but not sum. numbered and entitled the State Young Texas, having proper confessed that he “twisted the wo- after laid foundation, man’s arm a little” Sellars shock- tendered into evidence an ed her with an cord. electric Just before oral statement of the co-defendant Cal- they Young left, Sehepps Sellars, shot Mrs. in vin made on or the 20th about leg. Young during robbery day March, stated that money, “Thereupon Hoover, when could not find the the defendant Sam represented by made a call find out what to do. He who was Mr. Warren deep Jones, told to look freeze. both He Burnett and Mr. Luther competent experienced attorneys, also told that he did not find money there, opportunity in a he should leave. After an unrestricted robbery, Young hearing presence separate went home and went outside lamp people. and Officer turned the courtroom and shocked some the to Young get time the stand which sent him downstairs to Stone resumed a knife, it, bring confes- he related the the heat substance to and it back. Sel- got they lars the and sion. burned Mrs. knife it, by laying Schepps knife on with the jar and first the identified Stone they her side. Sellars told Officer Stone jewelry in the recovered Sellars which looking they $300,000, were for which yard of residence. back his mother’s However, did find. told him Sellars During part his this time related Sellars approximately that each robber received robbery. Schepps’ told Sellars $1,100 $1,200 apiece robbery. or the from Young Spivey to the him that and went pieces took also several robbers Schepps’ and robbed them. Sel- home jewelry Except from house. for one the a told him that he had received lars ring, jewelry kept him Sellars the with asking phone call from him Sam Hoover jewelry jar and in in buried the Thereafter, robbery. part take to the yard. back told that when Sellars Stone Young Spivey met and house. he at his through jewelry he went the he found Young supply Spivey to and were consisting gold a necklace small a robbery, weapons. day On chain had three diamonds on a Young Spivey up picked and and Sellars brooch. told Sellars also Officer Stone proceeded Schepps’ residence Young ring. had a that stolen diamond Mercury They automobile. robbery When returned Sellars from the parked from the a distance car short jewelry, he called Hoover and through way some their and made scene that had the told him he articles and they bushes the house. While were to going away. them He throw get figure way trying a inside out away not to them advised bring throw but house, lady (Mrs. Tuck) came out so the whole lot over to Pasadena hit her door. back Sellars could it. that Hoover talking examine After shotgun pistol down. or and knocked her Hoover, for started Sellars Young Spivey house. and went into the point ap- At he was Pasadena. one or ten remained outside five Sellars by proached police about who “were got minutes. things he the house When him.” into a small arrest He went up people and were were torn grocery and hid the necklace under store said a shot scattered about. Sellars leaving store, soap As box. he was thought had fired he someone been and ques- stopped he and officers Young told him that he had been shot. custody. tioned. He was not taken into frighten them. had fired the shot to he went Sellars then told Stone brought Tuck the house Sellars Mrs. into home and called Hoover told Sam her and made sit on floor. tied He stopped. him had been He he told baby and’put Schepps’ her hands hid the Hoover he necklace in store. lap. her further testified that Stone stay away He was told Hoover to they him Sellars told had alternate- place might from the because be fol- ly torturing persons taken turns Nevertheless, lowed. went back Sellars house were unable lo- since store three or four later money. hours cate they told Stone Sellars jerked had a cord from a table recovered the He then necklace. may cerning making raise issues there of the oral state- ment, including regarding man- have been or not the the demeanor and whether voluntary develop testified, statement was ner of the who and to witnesses surrounding disputed making issues factual there were no facts found cerning of the statement. of the oral voluntariness statement; “At the conclusion of all of the evidence the oral statement was Court, freely voluntarily tendered to the absence made without jury, touching promises, coercion, the voluntariness threats mistreat- the oral statement made Sell- further Calvin ment. found ars, rights the Court considered all the evi- constitutional of Calvin Sellars surrounding way dence in the record and con- in violated.” Spivey, tending house in Pasadena went to Hoover’s said Samuel to con- through He door. let the rear nect the defendant with the commis- charged the necklace. Hoover sion in the in- showed the offense dictment; and, then, him to sit and told took the necklace all of the you beyond outside and wait. Hoover went must down believe he handed him he returned reasonable doubt that and when the defendant mounting piece guilty. wrapped in a small paper. The diamonds of blue “There has been introduced the dispose told him to of removed. in this case a statement State written way- mounting, he did on the the allegedly Young. by made John Oscar tossing Houston, by it into back to Additionally, has been intro- there pasture it not re- from which was horse by duced into oral the State evidence kept the the chain from But he covered. allegedly statements made to Officer it the other necklace and buried by C. V. Stone Calvin Con- Sellars. had stolen. items cerning evidence, two of these items you are instructed that such evidence during the told Stone Sellars also you solely was admitted before for the got they robbery after into the house and purpose showing, does, if it that the to receive its instructions the trio was Young said John and Oscar Calvin Sel- proceed and from Hoover as to how to robbery lars committed the offense of money. as to look for Sel- to where the by charged as firearms the indict- Young him that called Hoover lars told you ment. You are instructed that they and and that received instructions consider cannot this said evidence they told to look. looked where any evidence the defendant. charge jury, his “You are further instructed that limiting following instruction: made the by allegedly written statement made upon the “A cannot conviction be Young used to John Oscar cannot be testimony accomplice unless al- corroborate oral statements the accom- first believes legedly Stone made to C. Y. Officer plice’s it evidence is and that true by their, as to said Calvin Sellars guilty the defendant shows Sellars, Young Calvin John Oscar against him; charged offense robbery committing, they did, if you even cannot unless then convict question. You instructed are further accomplice’s testimony is corrobo- allegedly made that the oral statements tending by con- rated other evidence by Calvin Stone Sel- Officer C. V. nect the defendant with the commis- used to lars cannot be corroborate charged; sion of offense and the by allegedly written statement made corroboration is not if it sufficient Young their, the said John as to Oscar merely shows the commission of the Sellars, Young and John Calvin Oscar offense, connect must tend to but robbery committing, they did, if the defendant its commission. question. charged that “You are Samuel nei- “You are further instructed that witness, Spivey accomplice anis allegedly statement ther written committed, you in- offense are Young made nor John Oscar you de- structed that cannot find the allegedly to Offi- oral statements made guilty upon testimony un- fendant may cer C. Sellars V. Stone Calvin you less first believe the testi- be used corroborate the mony Spivey is true the said Samuel Spivey.” of Samuel it shows the defendant indictment; charged guilty as B. VALIDITY CONSTITUTIONAL you and even then cannot convict the THE RULE OF TEXAS you defendant further find and unless permitting The Texas rule believe that other principal’s case, oral or writ-. introduction of a outside of the evidence ten Wigmore, trial an accom- tice is favored.” VII Evi- guilt plice prove principal 2100(d), p. dence § implicate when the confession does not adopted Texas has a combina accomplice does not violate Sixth practices, deleting tion editing of both or us, question Amendment.15 before parts relying upon specific instruc however, Amend- is whether the Sixth remedy tions to the remainder. If the obligatory ment made States principal’s parts confession contains Amendment, the Fourteenth Pointer solely implicate which tend the ac Texas, State complice, parts these should excluded. (1965), L.Ed.2d is violated principal’s If the por confession contains principal’s introduction of a which, implicate tions while tend implicates the accom- fession which also accomplice are nevertheless so inter general plice. rule, of a As a the whole guilt woven with confession of the introduced, unless confession should be principal permit as not to a deletion it, reflecting parts the commission confusing obscuring without the sub crimes, example, other can be exclud- confession, portions stance of the these damaging 2 ed the whole. without See case, jury are admissible. either 361, pp. Criminal Evidence Wharton’s § must be instructed that the evidence Wigmore 1955). (12th calls 68-74 ed. against only principal, is admissible “principle completeness.” the rule against as cannot be used evidence commonly “It is said that the whole of the accused. or admission must be confession together Wig- specifically approved taken . . . .” This Court has VII more, 2100(c), p. Evidence 493. Cf. the use of otherwise confes admissible § Cir., 1962, Wenzel, United States v. 311 sions where references to codefendants 4 Wigmore However, deleted, F.2d 164. panel. parties hereto nor they did not.

Bruton held that “because of the sub short, that it was we do think jury, despite in stantial risk Judge Trial for unreasonable State contrary, looked structions to the incriminating extrajudicial conclude, reasonable to discretion, of exercise statements limiting that a instruction determining guilt, petitioner’s admission any possible of could take care joint of confession in this trial Evans’ effect, of the admission adverse because right petitioner’s violated of cross-exam confession. oral ination secured the Confrontation progeny have resulted and its Clause of the Amendment.” 391 Pointer Sixth Bruton, 126, clause chal- in numerous confrontation lenges at at 1622. U.S. 88 S.Ct. distinguishable however, evidence.16 laws of is to established unsettling ef- trial a created an situation here. Hoover’s was not The cases have However, joint of evidence.17 trial. Two defendants fect on the law hearsay Texas, 16. See Pointer State of The attack is not restricted v. 380 U.S. recently example, 400, 1065, we L.Ed.2d alone. For 85 S.Ct. 13 923 evidence ; (1965) Douglas rejected Alabama, the “Best Evidence v. 380 a under U.S. claim 415, 1074, 13 L.Ed.2d 934 “that admission of the testi- 85 S.Ct. Rule” (1965) ; 1, mony Janis, initials Brookhart v. 384 a shirt had the [that U.S. 1245, (1966) ; 86 without collar] S.Ct. 16 L.Ed.2d on the 314 D-U-F inscribed Gladden, 363, production Parker v. 385 the shirt denied U.S. 468, (1966) ; appellant right cross-examination.” 17 L.Ed.2d 420 Barber v. Page, Duffy, Cir., 1972, 719, 1318, 5 454 390 88 U.S. S.Ct. 20 United States v. (1968) ; 809, v. L.Ed.2d 255 v. also States Bruton United F.2d 813. See United States, 123, 1972, 1620, Williams, Cir., F.2d 391 88 5 U.S. S.Ct. 20 456 (1968) ; Berger L.Ed.2d 476 v. Cali fornia, 314, 540, generally Comment, 393 89 The Confronta- U.S. S.Ct. 21 See Hearsay Exceptions: (1969) ; Harrington An L.Ed.2d 508 tion Test for v. Cali fornia, 250, 1726, Standard, 395 580 U.S. 89 59 Calif.L.Rev. S.Ct. Uncertain ; (1969) Read, (1970) ; 23 284 L.Ed.2d v. New California F. The Confronta- Green, 149, tion-Hearsay Dilemma, 399 U.S. 90 L. 45 S.Ct. 26 S.Calif.L.Rev. (1970) ; Evans, ; Griswold, (1972) Ed.2d 489 Due Process Dutton v. 400 1 E. The Confrontation, 91 S.Ct. L.Ed.2d 213 119 U.Pa. 27 Revolution and (1970). Comment, (1971) ; Confronta- L.Rev. 711

531 opportunity beeause no for Green, 90 cross-exam- 399 U.S. California (1970), time ination been afforded at 489 L.Ed.2d S.Ct. Supreme the statement was made. Evans, S.Ct. Dutton Supreme (1970), Court of the States United reversed L.Ed.2d 213 working judgment. Mr. for Justice White wrote delineated has now Court majority: theory confrontation role evidence, particularly law of clause task in not to decide “Our this ease is regard validity constitu with positions, purely which these allegedly when arise tional claims evidence, matter of law admitted, hearsay either sounder. The issue us before recognized exceptions or accordance considerably narrower one of whether thereof. also Gelhaar violation See a defendant’s constitutional ‘to State, 163 N.W.2d 41 Wis.2d confronted with the witnesses denied, (1969), cert. necessarily him’ is inconsistent (1970). 2250, 26 L.Ed.2d 797 change with a its State’s decision to hearsay minority rules reflect Green, supra, Su- In California v. view described above.” preme Sixth Court was confronted (through Fourteenth) Amendment chal- lenge permit- statute to California Supreme approved the Court California prior inconsistent ted introduction appearance rule the declarant’s because just pur- witness, not of a statements subject trial to cross-examination poses impeachment, for the truth but fact a “will afford the trier of satis- still California declared. The matters factory evaluating basis for the truth in- Supreme statement Court ruled the statement.” 399 U.S. at Court, however, Amendment admissible under the Sixth at 1936. The Hearsay Rule, (1969) ; frontation, Yale L.J. and the tion A.B.A.J. 152 Com- (1966) ; ment, Testimony, Re- Prior Confrontation: (1970) 39; Seidelson, Amendment, Confessions, D. Hear- view and the Sixth say Exceptions ; (1969) Snow, Amend- Sixth 36 Tenn.L.Rev. 382 D. (1971) ; ment, Co-Conspirators Exception 40 Geo.Wash.L.Rev. 76 to the Hear- Confrontation, Supreme Implementation say Review: Procedural Rule: Criminology Requirements, Crim.L., & and Confrontation Clause 62 J. Police Jr„ ; Colvin, (1971) (1972). E. 516 63 1 Science J.Crim.L. Procedure, Evans, supra, 23 v. Criminal Law & S.W. Casenotes on Dutton ; (1971) ; Comment, (1969) 188 Hear- are found at 85 Harv.L.Rev. L. say, 232 J. ; (1971) 40 The Confrontation Guarantee 22 W.Res.L.Rev. 575 Case (1971) ; Problems, 22 Mercer L. 30 651 402 Related La.L.Rev. U.Cin.L.Rev. (1970) ; Comment, Hearsay (1971) ; 49 N.C.L.Rev. 788 Rule and the Rev. 791 ; Leeway (1971); (1971) Right 19 9 A.B.A.J. 169 State’s to Confrontation: ; Evidentiary Rules, (1971) Formulating L. in 20 Buffalo 40 Kan.L.Rev. 533 (1970). (1972) ; Rev. Casenotes California Fordham L.Rev. 595 port, D. Daven- 207 Green, supra, A.B.A.J. are found 50 Confrontation Clause and the (1970) ; Albany Co-Conspirator Exception L.Rev. 397 in 1096 35 Criminal ; Brooklyn (1970) Analysis, (1971) ; Prosecutions: A L.Rev. 207 Functional 85 37 (1970) ; (1972) ; 84 415 Harv.L.Rev. 1378 39 Geo.Wash.L.Rev. Loyola (1970) ; Term, 2 Court 1970 S5 189 Harv.L.Rev. 108 U.L. Harv.L.Rev. (1971) ; (1971) ; Comment, 188 32 Ohio S.L.J. Co-Parties: Use of J. 238 ; Against ; (1970) (1971) Admissions and Declarations In- 5 Suffolk U.L.Rev. 337 (1971) ; terest, ; (1970) 3 2 Tex.Tech.L.Rev. 299 1970 John Marshall J. 364 ; Larkin, Right (1970) M. of Confrontation: and 23 Vand. L.Rev. 688 Utah Next?, (1970). What 1 1365 Bruton United Tex.Tech.L.Rev. L.Rev. 67 (1969) ; Marer, Right States, supra, G. of Confrontation been noted at 35 Brook has (1968) lyn ; 125 and Prior in 35 Mo.L.Rev. Consistent Statements Crim- L.Rev. 139 (1969) ; View, (1970) ; inal Cases: 381 The California 45 8 Washburn L.J. (1970) ; (1970) ; Comment, 44 329 St. Calif.S.B.J. 312 Hear- 1970 Duke L.J. say Right (1969) ; in 14 Vill.L. and the of Confrontation L.Rev. 54 John’s (1968). Hearings, Administrative 48 Rev. 132 X.C.L.Rev. (1970) ; Semerjian, Right 608 E. of Con- 532 hearsay noted because the declarant ment offered than other testifying case, present that of provided the declarant himself present have no occasion in satisfactory “We the bility. basis for its admissi- theory map case to out a of the Con frontation Clause that would determine us, When Dutton was before validity hearsay ‘excep of all such Judge Gewin wrote for the Court that permitting tions’ the introduction of an “when rational substitutes for the bene absent declarant’s statements.” Id. actually exist, fits confrontation at 1937. The Mr. Jus late hearsay is no reason to exclude evidence. concurring Harlan, opinion tice Although express we view to the Green, California v. validity any exception constitutional dangers pointed S.Ct. at out the to the requirement confrontation which

indiscriminately equating “confronta upon, important has not been ruled it is tion” with “cross-examination.” point generally recognized out that ex equated “If ‘confrontation’ is to be ceptions hearsay rule have de right cross-examine, it with the veloped painful process from a ration ganglia transplant of hear alizing the denial of confrontation.” say exceptions rules and their into Cir., 400 F.2d 830. But the protections. body of constitutional process of rationalization of denial stultifying effect such a course of genesis cross-examination has as its upon aspect of evidence of the law satisfactory the substitution of systems need state and federal both evaluating basis for the truth of the labored, good hardly and it is prior statement to which Mr. Justice today, opinion, as I read its the Court referred, Stewart which is itself “con firmly eschews that course.” frontation.” it is Thus that confronta tion is broader than cross-examination. important ques- Another case on this Cross-examination, Wigmore frontation” the Sixth Amendment would two, and we decline do so now.” have been drafted to that effect. Under Rather, U.S. at “the Dutton, mission of the confrontation mission the Confrontation Clause is clause is to assure that the trier of fact practical advance concern for the ac- provided satisfactory with a for basis curacy truth-determining process of the evaluating pre truth of the evidence by assuring in criminal trials that ‘the it, sented to whether the evidence is hear satisfactory trier of fact [has] basis say non-hearsay and whether the sat evaluating for the truth of the isfactory provided by basis cross- Green, statement.’ California examination or U.S., otherwise. The Sixth S.Ct., at 1936.” 400 U.S. Dutton, Amendment is violated where at 220. In cer- reliability tain satisfactory indicia of state- basis.18 Griswold, experience Solicitor General Ernest re- the sixth amend- “Our flecting Dutton, taught writes: ment has us that it does not hearsay Neither the Sixth nor the Fourteenth Where evidence is ad hearsay mitted, affirmatively Amendment is violated when the record must evidence is admitted in accordance with show those indicia of the statement's re liability recognized exceptions hearsay and trustworthiness which in to the adequate rule because the fundamental values and turn serve as substitutes notions which are the foundation for the of cross-examination. The So exception permit sug and which its introduc- licitor General of the United States tion as a matter of the law of evidence gests basically that Dutton v. Evans "is satisfy also the Sixth Amendment's de- a decision in the realm of constitutional reliability. mand for indicia of A satis- method, specifically in the area of factory evaluating basis for the truth relationships. may fairly federal-state It hearsay statement is afforded be said that there is more chance of presumed trustworthiness which results achieving justice through Dutton v. recognition from common sense of basic through Evans than a decision which characteristics of human nature under- would have solidified the law of evidence lying exceptions hearsay most rule. in all the states into a federal mold." example, spontaneous For exclamations Griswold, assumption B. N. The Due Process Revolu are admissible on the Confrontation, grip tion and 119 U.Pa.L.Rev. "when a man is in the instant emotion, pain, (1971). Indeed, violent excitement or 727-728 in Califor ordinarily capacity Green, supra, Burger loses the for reflec- nia v. Chief Justice necessary tion to the fabrication of a (concurring) emphasized impor "the falsehood, and `the truth will out.'" 1 C. allowing experi tance of the States to Ray, McCormick and R. Texas Law of innovate, especially ment and in the area 913, pp. (2d § Evidence 683-684 ed. justice. of criminal If new standards 1956). Similarly, confessions and other procedures are tried in one State against declarations interest are admis- guide their success or failure will be a assumption sible on the that men do not Congress." to others and to the 19 399 contrary state facts to their own interest ordinary U.S. at 90 S.Ct. at 1941. course of events. Other assumptions such underlie most of the Voluntariness is the first and recognized exceptions. The trier of fact safeguard foremost and "indicia of reli judge in either case remains the ultimate ability" Here, of a confession. Sellars' reliability weight of and the voluntary confession was found to be aft be accorded to the evidence ruled admis- hearing sible. er a full on that issue.20 But California; jurisdictions says. Despite other will mean what it the con- undoubtedly experiment Provision, ap- watch the stitutional it is not the plicable interest. The circumstancesof this case demonstrate law that the accusedis entitled again originallydrafted, that neither the Con- in all circumstancesto confront the good stitution as nor witnesses constitutional him. Like all amendment, any deed, provisions, crisp nor mdccci dic- lan- tates that we must have absoluteuni- formity guageof the confrontationclauseturns cryptic. requires in the criminal law in all the out to be somewhat thoughtful It authority applica- States. Federal was never consideration and compel light origins intended to be a `ramrod' to tion in the of its historical conformity general approach to nonconstitutionalstand- and the of timecom- problems." ards." mon law to evidence 171-172, Griswold, 399 U.S. at 90 S.Ct. at 1942. E. The Due ProcessRevolution Confrontation, anti 119 IJ.Pa.L.Rev. (1971). 20. Sellars' confessionwas found to be vol untary Denno-type at timeJacksonv. hear ing 19. The Chief.Justicealso said: at Hoover'strial. The confessionwas voluntary trial, "The Californiastatute meets the tests alsofoundto be at Sellnrs' ap which determinationwas affirmedon of the Sixth and Fourteenth Amend- peal. State, Tex.Cr.App.1965, ments, accordingly, Sellars v. and the wisdomof properly 400 S.W.2d 562-563. The confession the statute is left to the State enough Sehepps’ es- to home and tried enter. is not to alone voluntariness they failed, they Hoov- competency When returned to and trustworthi- tablish the They they home. told Hoover needed The confession er’s the evidence. ness of job. do the Hoover made another man to Wharton also corroborated. must got address. a call and Calvin Sellars’ “According the overwhelm- to states that Young Spivey authority, told and Sel- weight cor- Hoover the evidence - only who on to one the streets roborating relate lars was the must confession robbing. corpus was delecti.” tend to establish the and 394, p. Evidence § Criminal Wharton’s night Spivey related that on the 1955). (12th ed. going Sehepps’ robbery, to to the Hoover tell him that home, called to trial, he At Hoover’s Sellars’ going they in and he would call implicated guilt also of his own got ready to leave. him when robbers amply corroborated Hoover was Spivey, trio, Young, Sellars and and witnesses of other Sehepps’ in residence Sel- to the traveled can There physical introduced. Mercury parked and on side lars’ “substantial doubt that there was be no parking, house. After street near the tend independent evidence which up and sneaked to robbers the house the truthworthiness to establish how Then Mrs. considered enter. States, Opper United statement.” grabbed her and Tuck out. Sellars came 158, 164, 99 L.Ed. Spivey screaming, hit when she started (1954). shotgun and with his her in the head knocked her over. Sellars remained be- BEYOND ERROR C. HARMLESS Spivey Tuck while en- hind Mrs. DOUBT A REASONABLE up- through tered door and went back amply Spivey’s tes corroborated Young Sehepps followed. Mr. stairs. against timony the heart the case coming through Spivey door as testimony together with Hoover. His Spivey hit him and entered the bedroom. evidence, apart other when considered against wall. him back knocked incriminating portions Sel up Thereafter, taped victims were confession, lars’ made State’s commenced. The robbers and the torture overwhelming. Spivey Hoover money periodically al- and searched testified that he had known Hoover since ternatively Hoov- tortured the victims. 1961. He testified that went $300,000 in them er had told night Sehepps’ of March residence on the told them Hoover had house. Young company gave suggestions a few where it was. He Sellars, robbing purpose for the them. freeze, deep look: on on where Spivey went home. He was to Hoover’s drawers, kitchen, the shelves front to Hoov let door and directed and for a safe. “dog garage apartment known er’s as the Young During crime house.” he met and Hoov the commission of the There robbery. Young telephoned plan Spivey them Hoover for er to Hoover told “get you equipment on where a car and instructions [his additional guns] get ready go money, told in.” which was never He for the search Spivey Sehepps Spivey “hard listened that Mrs. was a testified that he found. give up with Hoover on case” and would not conversations want money your Spiv- judgment gold phone on “use own in the bathroom.” “little —to Young Young Spivey ey Hoover to do.” left called what testified they Hoover look for a ear which could steal and identified first himself. robbery. They Sehepps’ phone did was. number use asked what Nevertheless, Young gave drove to number find one. him the voluntary Court, was found to be for the third which determination affirmed Cir., corpus Beto, appeal time federal habeas to us. Sellars proceedings United District States 430 F.2d recognized play Spivey voice it down to called cool there and be back back. Monday to that He had as of Hoover. talked to be in court. Hoover was phone representing Spivey on other occasions. Hoover another set on Young call, Monday. returned the for When Hoover that him wanted them look. asked where he to Schepps’ stolen from the res- Diamonds attic and num- Hoover check the a said to found in home idence were later Hoover’s Young places. Hoov- other asked ber during in a drawer dresser search to do “old he wanted er what about the previously discussed. lady,” Schepps, Mrs. because she money tell was. Hoover where the Lyon, William testified that he J. Jr. judgment, your she replied, own “Use February Hoover in Hoov- met case, a business hard she’s Building, er’s in the Scanlan office long Young he a asked time.” Hoover Houston, Lyon’s mother was Texas. now, know, you wanted them “to kill them employed Hoover man- thereafter to Spivey hung up people.” to be- scare Antonio, age apartments in San certain response. fore he heard the Texas, liv- where and his mother he Lyon ing. John he knew testified that parts Each of victims the three heard Young, in court Oscar whom he identified of the conversations. Mrs. Tuck testi- Lyon on testified that Hoover’s trial. fied that one robbers masked day following robbery, he saw placed a call and was told “whoever he sitting Young office in the outer talking phone to on the had not saw Hoover’s that he suite offices big money you found and he said do Young go Spivey, into Hoover’s office. want me to kill them now . . . .” course, Hoover told had that testified gave Subsequently, man instructions Young bring to stolen diamond to deep to sure to search Mr. freeze. Lyon to him. sent downstairs Hoover Schepps call, heard after “he one buy light lamp in his office. a bulb a giving instructions, went them Lyon Young he leave When returned saw others, ... his friends to look for again Lyon sent the office. Hoover money upstairs, not downstairs.” buy newspaper. heWhen downstairs to a Schepps, lying Mrs. near the phone, tes- him into his own returned Hoover called actually tified she in- overheard the door him to lock the be- office and asked being although given, structions she could he him Hoover hind as entered. said he identify the voice. something pro- Lyon wanted to show ring. large very duced a man’s diamond Spivey robbery, testified that after the ring probably a Hoover said it was hot They to a little three fled drive-in. Schepps’ probably from the came argued way all the over there about robbery. Lyon if knew he Hoover asked shooting. They split money up the Lyon Young told him who was. When argue. Spivey continued to went inside told him that not, Hoover that he did get cigarettes. some re- When he Ly- Young showed a thief. He then turned, Young just him told that he had Lyon on chain. on woman’s brooch spoken Young told to Hoover who yellow gold with flow- described it bring the him. five-carat diamond to pearls ery design, diamonds or Spivey The last saw time diamond it. ring gave Young, he when im- mediately days robbery. later, couple According Lyon, after A a few days robbery, Spivey apart- after Antonio saw Hoover San came restaurant, Lyon. Hoover at knew a drive-in where Hoover ments to talk given robbery. Lyon he talked with him about time had police report Hoover Depart- showed him a stat- Police Houston statement somebody Ly- else was in- under know Hoover wanted to what ment. vestigation Lyon implying police when told crime, for the on had told Spivey Spivey safe. him he told Hoover he had related the events going office, Mexico. acted Hoover said seen Hoover’s 536 annoyed. Harrington He did not rather said that he instructions. one testify. mother, Lyon Lyon’s actually

want the codefendants testified conversation, present subjected who was and was cross-examina- Harrington’s was a Hoover that she heard he tion the codefendant told pretty rough Here, course, would character and that he trial counsel. just somebody co-indictee, Spivey, not. as rub as soon out Samuel testified separate you replied “if are as a Hoover out state’s witness at the you out, subject rubbed wouldn’t to be trial and state most ” you Lyon searching would ? and his mother cross-examination desired days Lyon agreed later, Harring- to leave. Several trial Petitioner’s counsel. stopped of- and mother Hoover’s ton was followed Neal v. United money pick up States, Cir., (August fice which Hoover some 9 415 F.2d 599 13, 1969) though them if Hoov- offered leave. even the other co- typewriter joint at a er sat down his office defendant-confessor trial Lyon typed out an testify affidavit declined not cross- sign contradicting what he had told the examined. police. Lyon signed statement. After Ap “The United States Court gave $150, they his mother both peals for the Fifth Circuit United Lyon left Mrs. took the witness town. Cir., al., States Cohen et 5 418 F.2d stand and confirmed what her son had (October 30, 1969), 68 treated the stated. question tech nically hearsay but which was other The District Court below ruled on the ‘ * * * secondary wise and inci question of error in well- harmless * * * dental to admissible rebut (306 reasoned discussion as follows F. Viewing tal evidence.’ the technical 993): Supp. at hearsay as substantive evidence ra Harrington “In California, the recent case impeachment ther than as limited to 250, 1726, purposes, assuming and thus error (June 2, 1969), 23 284 L.Ed.2d only arguendo, Appeals Court applied United States hearsay found the question ‘harm Chap the ‘harmless error’ doctrine although less’ limiting were California, man v. 87 S. requested instructions below and none Ct. 824, 17 L.Ed.2d A.L.R.3d was on direct review. involving 1065 in a state criminal trial Indeed, reaching without a Confron incidental and cumulative issue, tation peals Ap Clause the Court of hearsay subject that was otherwise adopted for the Fifth Circuit has limiting instructions the trial hearsay the definition of technical ‘ * * * Harring court. The circumstances being as a statement made patently ton compelling less by an unavailable declarant and of this result than those that here. exist fered for the truth of the matter in joint It was a criminal trial and there the statement.’ Davis v. United directly fore involved the doctrine an States, Cir., 411 F.2d States, nounced in Bruton v. United (May, 1969), citing quoting 20 L.Ed.2d States, Brown v. Cir., United 476, concerning Confrontation F.2d 491. Under this tradi There, here, Clause. as the evidence tional definition hearsay, of technical of record the accused man legally as rhetorically, well as overwhelming ifest and even cir clearly —a door open would seem to- cura may per cumstance which be deemed tive appropriate instructions in an although certainly suasive disposi Campbell See case. also: v. United tive where constitutional in States, Cir., 415 F.2d for the volved. 395 atU.S. 89 S.Ct. 1726. proposition Bruton, intimated in In Harrington, here, there were U.S. at n. 88 other confessions introduced with limit- Harrington, now established in necessarily hearsay guilt technical will evidence of Hoover’s in a present a Confrontation Clause issue.” sordid and brutal crime is so manifest apart and overpowering, pos- from panel decision made short shrift sible cumulative effect of the Sellars’ holding. Inexplicably of it said implicating defy him, as to a (439 only 924) F.2d at : contrary conclusion.22 If the evidence either of the con- cannot “We hold was “tainted” admission the con- fession, though errors was within stitutional harmless no to cross-examine California, Chapman criteria Sellars, confessor, permitted, was 824, 17 386 87 S.Ct. then even more so was the conviction Harrington Harrington L.Ed.2d and v. Cali- “tainted” two confes- where fornia, 1969, Harrington implicating sions ad- were though 23 L.Ed.2d fact opportunity mitted no af- was appellee no such contention makes forded to cross-examine either declar- this Court.” upheld ant. But the Court writing conviction, Douglas Mr. Justice opinion It is the District Court’s “apart for the them from being this Court. Thus reviewed the case Har- [the confessions] why we find it difficult to understand rington overwhelming that we was so greater thought panel attention o,f Bruton issue, conclude that this violation merited the harmless error was beyond quoted was a reasonable doubt harmless the few above.21 than lines brought Schepps argument and third robber The State’s reliance on shortly Mrs. Tuck into the house no constitutional error thereafter. in the trial than reliance on the rather inquiries pre “After numerous unsuccessful “harmless error” cannot doctrine $300,000 making about the robbers’ acts clude this “harm increased, especially to com- holding, violence and torture less error” when the pel Schepps expressly to reveal the location District relied Court below Schepps’s jaw money. principle. Mrs. also on that broken, some her teeth was were and loosened; and knocked out others 22. The details violent and horrible bear repetition. opinion she across the abdomen quote was burned from the We knife; she was Appeals with a heated butcher Texas Court of Criminal body repeatedly her burned on face and appeal on Hoover’s that court fol- as repeatedly cigarettes, (390 759-760): and also lows at S.W.2d placed electric Spiv- with an wire shocked to her “The that after evidence reveals private parts; teeth, and ey, Young, by breasts had been advised and Sellars pistol fireplace poker in- appellant Schepps and a were vagina; home, into her and she was $300,000 money serted in his magnum thigh appellant shot pistol .44 encouraged among them oth- prostrate lay things, floor. ‘get equip- she on the you er a car and brutally Schepps severely ready (guns) get go in,’ Mr. beaten periods and ment and lay short unconscious for and he also for the them where look told during money of time the three-hour the house. These injuries men, wearing masks, Tuck were attack. The Mrs. three two serious, required pistols but she several so whom were one armed with Schepps’s days hospitalization. The shotgun, with a sawed-off w-ent to the threatened, baby P.M., Schepps’s ten-month old and about 7 March home baby preparing into bed shot was fired were While lay. house, Tuck, Most the fur- where the child to enter the Mrs. a nurse house, furnishings employed by Schepps, the apartment niture and left house floor, go especially nearby garage on the second to a those broken, torn, demolished, and she knocked unconscious intense violent in an one of the scattered masked men. Two of the $300,000 reportedly hid- for the search robbers entered the main house and violently den therein.” Mr. and Mrs. assaulted ” Roland, Cir., F.2d . . . . whole, (“Considering the evidence as a 1728.23 not in we are ‘sure that the error did applied “harmless has This Circuit jury.’ fluence the States, Kotteakos United principle evidence error” where 1946, 328 U.S. strong exceptionally guilt was defendant’s ; 1239, 1248, 1282) L.Ed. 1557.” Id. appeared was harm that the error Cir., 1970, Frost, United States beyond oc doubt on less a reasonable (“The hearsay F.2d admit A to mention. casions numerous too appellants trial did create sub ted examples particularly related few recent govern prejudice stantial because the Martin of evidence include matters strong equally ment’s case with was States, 1972, Cir., 453 F.2d 5 United v. 608); hearsay at out the . . . .” Id. Bruton, (errors su under asserted 1370 Posey States, 1969, Cir., v. 5 416 United all, beyond pra, “if are errors at harmless (evidence F.2d 545 contained in a con 1370); at Cir., 1972, a Id. reasonable doubt.” violation Bruton fession admitted in Herrera, United 5 States v. and, merely apart from “was it, cumulative assuming (“In any event, 455 F.2d 157 against was case co-defendants in hearsay, the that is overwhelming that we conclude so are troduction it was We harmless. any possible was violation Bruton jury judgment convinced that the beyond doubt.” harmless a reasonable was not it because the influenced Gov 551.) rule is the Id. at The same convincing inde ernment’s was See, g., United other States Circuits. e. 158); hearsay.” pendent at Id. 1969, Long Pate, Cir., 418 rel. ex v. 7 Cir., 1971, Williamson, 5 United States v. denied, 1030-1031, F.2d cert. question (“The mere 450 F.2d not is 952, 90 L.Ed.2d S.Ct. ly ap mistake was made whether a Cir., Young, (1970); United States plying the arcane and sometimes technical J. 422 F.2d also See rules that mis but whether Osborn, Harmless and When Cameron J. clearly prejudicial take error resulted Harmless, Isn’t 1971 Law and Error affecting rights of the the substantial (1971). panel’s 591); accused.” Id. at United v. Social Order States California, “Bosby’s Harrington not likewise did confession (1969), Harrington re- name but mention L.Ed.2d 284 fellow is as a blond-headed similar to this case certain material ferred to him ” Patty.’ regards: guy’ or ‘the or ‘the white togeth- “. . at 1728. . Pour men tried Id. at 89 S.Ct. Harrington, Caucasian, the references Bos- assumed that a and Court er — clearly by, Cooper, guy” Rhone, Negroes “the referred white and —over objection by petitioner. found Harrington Nevertheless, the Court that his his harmless : trial should be severed. Each of the error bo Harrington’s “Rhone, counsel three whom and their codefendants confessed cross-examined, placed him in the store confessions were at the trial introduced gun limiting murder. the time with a at instructions agreed Harrington only he was was to himself each consider confession gun against he had a testified there. Others the confessor. Rhone took Cooper participant. Harrington’s was an active stand cross- counsel put Bosby gun in á not did him. The other did not examined two They it. did when he denied take hands place the stand.” Id. of the crime. him the scene at 1727. including Harrington others, him- But evidence, self, however, confession, Their same. . did the Rhone’s . confessions, supplied through placed Harrington their inside the store apart gun attempted But of course cumulative. the time of Harrington robbery them the case and murder. overwhelming “Cooper’s we conclude so did not refer harmless Harrington Bruton was this violation of name. He referred beyond .” boy’ . . . doubt a reasonable ‘the fourth man as white 253-254, at 1728. guy.’ ‘this Id. And described white by age, height, weight. him rejection cryptic made of the “harmless error” first time in case.26 state pat- The rule to the here was crux the dissent’s circumstances o.f contention ently cannot be for a erroneous and allowed decision to be “new” it can- not a foundation in precedent, stand. proposition weight. falls own its out, pointed As we have the recent case III. States, of Williams v. United merely herein The dissent filed (1971), 28 L.Ed.2d 388 lengthy the views of the restatement of directly applicable and in that case original panel in this decision held that where a de- however, impelled, We are to make case. scope permissible cision narrowed the majority opin- further elaboration retroactively ap- searches it to be ion we consider because what plied to searches which occurred erroneous of law fact statements Riggan, date of the decision. In the dissent. Aguilar’s retroactivity issue of holding questions dissent our presented (see 3273) to the Court 34 L.W. Aguilar principles of State of and was not decided See Court. 108, 1509, Texas, 84 12 378 S.Ct. U.S. 1378, 152, 153, 384 U.S. at 86 at S.Ct. apply (1964), do not retro L.Ed.2d 723 actively 1379. Williams was much later decided ques and seizure in the search Riggan. than home. tion which occurred at Hoover’s question As to alternative of Hoov- the Aguilar announced It is contended that having voluntarily er to the consented accordingly that no “new” and doctrine having it, fact, the and, search in invited Aguilar rely on retro Hoover need not Bumper dissent State insists that ; actively Supreme also that Court the 543, Carolina, North 391 U.S. 88 S.Ct. Riggan Virginia, 384 U.S. 86 S.Ct. (1968), we 20 L.Ed.2d to which 797 (1966), has deter 16 L.Ed.2d 431 referred, expressed already have is Aguilar retroactivity ad issue mined the is absolute terms and consent search view, versely position. In our our legally impossible an invalid where reasoning is the dissent’s erroneous. Curiously, presented. is search warrant Though holding Aguilar sup the is making ap- this assertion the dissent by prior ported in Nathanson24 decisions origin- pears part that which were federal abandon and Giordenello25 Aguilar cases, pronouncement panel al decision which asserted personal knowledge States, 24. 290 matters Nathanson v. United U.S. any (1933), therein; not indicate 54 159 does S.Ct. L.Ed. tained 78 belief; complainant’s held that sources for mere affirmance belief any suspicion by enough other and not set forth the affiant is not it does upon finding However, which a to secure a to search. sufficient basis warrant requirement probable Aguilar’s could be made.” the affiant cause explicate S.Ct. at further the nature of “reliable at 78 U.S. person,” information from a credible opinion Aguilar, supported dissenting by holding su 26. The while thanson, in Na 116-122, pra, clearly at is an extension of that 378 U.S. holding. 1515-1518, numerous decisions references upholding held similar to that affidavits Indeed, States, Aguilar. not until invalid Giordenello v. United Aguilar did decision in L.Ed.2d S.Ct. principles (1958), explicitly hold that “The Court voided search inci- derived, pursuant there dent to an in Giordenello arrest announced conducted fore, Amendment, and Fourth an invalid from the warrant. The arrest warrant supervisory power.” was found our the affiant had invalid because n. recited no n. facts on which conclusions 118, 84 at 1516 Cf. Giordenello had committed crime Spinelli opinion). (dissenting and concealed See also were based: 410, 412, complaint States, “The United contains affirmative (1969). allegation spoke 584, 587, 21 L.Ed.2d the affiant ty sought give possible and later valid con- It “while it obtained. grossly improper would after existence of have been even sent to search Attorney known, District have called made State Sel- warrant convincing and evi- lars witness stand under these clear must show upon circumstances and have been vain dence the consent based fruitless, demanding possibly and was not coerced disci- and the warrant plinary against stated, prosecutor. “It is action further other factors” might give opportunity person Whatever could the State that a vol- conceivable have to untary a conviction consent to search obtain uncoerced Sel- seriously though imperiled lars would informed that have been even prejudice But at- had a search warrant. Sellars officers tempted violation Fifth burden of of his Amend- would bear show- State privilege. given fairly ment It cannot be said consent was sufficient- that the ly under the independent of the warrant to remove circumstances Sellars was available and should have been coercive nature.” called of its taint opinion panel’s State as a witness. In our F.2d at 920. regard, holding rather than this already pointed weAs out have in this correctly present dissent, states the law. Judge opinion the District State held question Resolution of the of consent trial, hearing during full out of the under such circum- search invitation to presence jury, as to the voluntari- upon dependent the facts of stances is ness of Sellars’ oral found Bumper on its each was decided case. undisputed that the that it facts substantially dissimilar facts which are given. freely (See 14, supra.) footnote case, of this we those facts finding No issue on has been made already pointed argues Yet dissent out. Voluntariness, far as find. so we can Bumper does draw “Nowhere that noted, previously is we have the fore- as distinction, case in this as the reliability. most References indicia of seemingly does, and an invitation between accomplice the to the permitted in confession were argu- acquiescence.” The answer this intertwined with the where so plain Bumper did involve ment is — it as render incom- confession itself plete invitation, such as here. occurred unintelligible. or late deci- Court, Supreme of California v. sions Green, supra, the The dissent insists that under Evans, supra, v. and Dutton no circumstances should Sellars’ confes are sufficient contentions answer sion in have been admitted evidence regard. dissenting opinion in this of the testify” since “Sellars available to charged and the with failure to State is ma- that the assertion dissent’s call and Sellars to the stand there elicit jority opinion is- not consider the does completely his confession.27 It is unreal respect to the of error with sue harmless say istic to (Young, that was available Sellars principals question whether the testify present in the and the case that Spivey) named the indict- and Sellars Attorney State robbery District should called Sehepps’ is the committed ment prove him to the stand his confession. the circumstances. incredible under try evidence, State for a Young’s was soon him inis written confession capital (through penal- offense in Officer which death oral confession the erroneously can a The dissent “in no event con that concludes that concluded Schepps State, the direct ref case of v. fession be admitted Tex.Cr. alleged 926, supports App.1968, accom made to the S.W.2d the erences are plice.” view of the that four admission of A examination Sellars’ confession close judges opinions clause, has in the violated the five the filed confrontation light solely prove Schepps case, even the latest case of admitted that Tex.Cr.App.1971, adjunct Chapman State, Sellars committed the of v. 656, crime be contrary presumably cause Sellars indicates available S.W.2d supra. testify. Moreover, the result. also footnote dissent See errone ously states that the Texas has court Judge Spivey, said to the Trial evidence, Spivey’s testi- Stone) inis you jury “you cannot admitting are instructed com- mony the trial up (Hoover) guilty find defendant robbery, in evidence. are all mitted you testimony (Spivey’s) Young unless and Sellars implicated Spivey also robbery first believe co-participants as his it Spivey true and said accomplice. There was Samuel as his charged guilty police defendant as from shows the evidence additional abundant for indictment;....” victims, physical It officers, evi- clothing credibility knife, guns, jury tape, to resolve such as dence connecting Patterson, bloodstains) directly LaBlanc (with witnesses. See D.C.Colo., 1968, F.Supp. robbery. The evi- principals with the credibility (“nor may respect victim is so voluminous in this dence unduly in Federal Habeas thereof would attacked witness be a full recital example, Corpus lengthen opinion. proceedings”). Pleas For Sel- See also this yard Cir., police Wainwright, 441 F.2d officers took lars jewelry 57; Dutton, items Fulford v. 5 Cir. where his residence Schepps’ question residence were F.2d no 17. There can be stolen dug up re- jury were believed the The items case buried. witnesses, including into police Spivey, and introduced it State’s covered through supporting guilty. testi- We not have found Hoover identified mony Hair officers. are of the mindful of what at the scene found said in recent as Sellars’ Schneble Schepps’ Cloth- robbery Florida, 427, 432, residence. such, tape Sellars, (1972), identified as 31 L.Ed.2d 340 “Judicious garbage near application can Sel- in a found the harmless error rule Obviously there is require indulge assump residence.28 does not lars’ that we portion the dissent. tions to this merit irrational behavior when perfectly explanation rational dissenting opinion on As we read the jury’s verdict, completely consistent with error, much of harmless the issue judge’s instructions, stares us credibil- up attack on taken with an face.” Spivey principal ity State witness suspect” inherently “veracity Spivey's testimony amply whose corrobo- Lyon corroborating who by witness and rated in- the direct evidence as have we age years of and “was nineteen refer- dicated and we have shown entering” breaking and opinion of and convicted ence to the the Texas Court of Appeals “incred- said be of whose Criminal it decided when willing appeal. in to leave the ible” that he was cor- Hoover’s There were other roborating Lyon. and three brothers with his mother State witnesses besides paltry Lyon’s testifying avoid “for the sum mother testified that she was Judge present of made The State Trial at the time Hoover his made $150.” arrangements quite Lyon clear have to the would and the fam- caused ily credibility pass on of As the witnesses. leave the rather than remain State corroborating physical type of evi Some the blood to be same as Mr. opin Soliepps’s. dence is recited text of Also a human hair taken State, Tex.Cr.App.1965, ion in Hoover v. shirt from the was shown be identi- 758, 760, 390 S.W.2d as follows: cal to one from Sellars. Fur- removed pair shirt, slacks, hat, thermore, recognized “A a black a officers pair gloves, a and rolls adhesive found in can as same trousers tape garbage wearing in a were found can near at the time ones Sellars was previous the home of Calvin Sellars. Fibers of a arrest. appellant’s “Upon taken from the articles were house fol- shown a search of robbers, lowing to be identical those removed the arrest of three carpet home, diamonds, Schepps from the in the two found therein the officers weighing and an examination of carats the other traces of human one 4.83 blood on some of the articles revealed carats.” 2.70 Mr. Justice court . . . .” state give the defendant. Snyder Massa- remarks from Cardozo’s corroboration additional There chusetts, Schepps victims, Schepps, Mrs. approval corroborating in Dutton directly parts Tuck, L.Ed. cited Mrs. 89-90, Evans, (400 supra testimony. Spivey’s 220), appropriate are here: this, have to all we addition “ danger criminal ‘There is testimony of heretofore commented contempt— brought into law will be Boney. When witness Elmer Jack State’s great even touch that discredit will Boney case he under testified in this Fourteenth assured immunities 20-year Texas in the sentence State gossamer possibilities Amendment—if robbery. he said Prison for At the trial prejudice are of nullify to a defendant where that he met Hoover at his office pronounced a sentence him that “he had this score Hoover told jurisdiction competent court of up interested lined I be would law, obedience to local and set gave Boney him in.” said that Hoover guilty U.S., free.’ 291 Schepps address Mair name and S.Ct., at 338.” him to look 9704 Memorial told place over, reversed; it was a panel “sizeable decision score”, hundred were several judgment is af- of the District Court thousand dollars and some furs firmed. jewelry in him the house. Hoover told deep and the bed- look freeze dissenting, Judge, RIVES, Circuit probably rooms and that he would THORNBERRY, WISDOM, with whom Schepps. Boney force on Mr. testi- use GOLDBERG, and SIMP- GODBOLD pass fied that while he did the house and Judges, join, SON, and with Circuit it, participate observe he did not GEWIN, Judge, joins in Circuit whom robbery because was arrested portion III of Part II and Part police robbery in connection with another opinion: for which incarcerated. he is now Hoover appeals denial of Boney also told did force challenging petition the validi- his habeas Schepps, work on Mr. to start on Mrs. ty Texas state his conviction Schepps possibility with a that Mr. being an ac- court of offense of give Schepps on the informa- robbery. complice commission tion. him to im- sentenced The state court This additional corroboration conclu- sixty years. prisonment for a term sively beyond establishes reasonable upon petition Hoover’s habeas is based in- doubt volume of tremendous separate constitutional two grounds: federal criminating evidence which the record (1) secure his against petitioner discloses Hoover. home from unreasonable search right seizure; (2) and to be and deciding In we are aware of this against confronted witnesses with the by principle announced Chief Justice him. Burger in the current decision of the Supreme original Wainwright, Upon hearing appeal Court Milton v. this (Rives 22, appealed panel 1972, decided June and from members of and Nichols, Circuit, 371, Simpson, Judges, 377, this Circuit 407 92 S.Ct. sitting by 2178, Judge 2174, 1, 33 L.Ed.2d that “The writ Claims designation) corpus scope; habeas unanimous their has limited re-try federal in favor of courts do decision of both issues not sit to state Beto, de cases novo but rather to review for Hoover. See Hoover v. Cir. 1971, (hereinafter violation 439 F.2d cited of federal stand- constitutional rehearing “panel opinion”). process Upon ards. we not close do eyes reality overwhelming majority our en to the banc of the en banc court guilt deciding fairly both issues evidence of now established original Aguilar applies deci- cedes that our I Hoover. adhere strongly, home, respectfully, search of dis- Hoover’s the affidavit but sion supporting the search does not sent. warrant probable pre- meet the cause standards justify of the district To affirmance by Aguilar. argues, scribed The State original court, panel must have been however, Aguilar apply does not wrong majority en and the banc question search in oc- court must as to the decision be curred about months before three of both issues. Aguilar 15, decided on 1964. June guilt While facts as to Hoover’s original panel The held that ‘Hoover always innocence have been and remain rely Aguilar retroactively need not on dispute, point at this neces is not since had not been tried sary this to discuss the evidence to decide Aguilar victed when the decision of appeal.1 That much of evidence was [quot- was rendered.’ F.2d at briefly opinion summarized 1967, Doby Beto, 5 Cir. Appeals, Court of Hoover Texas Criminal Subsequent F.2d to the 113]. Texas, 1965, and has 390 S.W.2d panel decision, Supreme however, the (1) by least retold at thrice: Court decided v. United Williams denying corpus, district court habeas States, 646, 91 401 U.S. Beto, S.D.Tex.1969, 306 F. Hoover v. (1971), 28 L.Ed.2d which held original 980; panel Supp. (2) prior decision which narrows [sic] 913; (3) appeal, on this 439 F.2d scope permissible is not searches majority opinion en banc in its on retroactively applied to be to searches ado, rehearing.2 Hence, without further prior conducted to the of deci- date sep proceed to a discussion of the two I Thus, sion. search because Hoover arate issues. Supreme was made Court’s Aguilar, decision in it is not affected Issue I. The Search Seizure thereby. panel’s holding The search of Hoover’s home was constitu- Validity A. Warrant the Search tionally rejected expressly invalid is panel held that the search of by us.” Hoover’s home was authorized valid search warrant. 439 F.2d at 916- Majority opinion sup- (emphasis at 522 majority rehearing, enOn banc plied).3 expresses a different view: light In the Court’s hold that search of “[W]e Hoover’s holding Williams, supra, relied on constitutionally

home was not invalid by hindsight majority, it must now Aguilar Texas, because v. State of panel’s conceded that reliance 12 L.Ed.2d (1964). Doby Beto, of Texas con- State F.2d Cir. disagreement making and I are Texas for false returns. income tax States, as to some of the facts and reasonable Se e Hoover v. United denied, by constitutionally inferences established 5 Cir. 358 F.2d cert. 1, 1966, admissible evidence. Such evidence and October conveniently inferences can more do not be dis- 17 L.Ed.2d 59. I know what parts opinion. presently serving, cussed in later sentence this question but I is mate do believe appeal. majority’s In connection with the state- rial ment, page opinion, on 518 of its that presently serving fallacy “Sam Hoover is 3. I in the ma- submit that sixty-year imposed by jority’s reasoning sentence self-evident becomes Crim- presently County, recognized, inal District Court of Harris when it is will Texas,” Aguilar express demonstrated, I that some is doubt because scope eiglit-year Hoover is also under an “decision which narrows sen- imj)osed by permissible tence searches.” United States Dis- trict for Court the Southern District of 544 113,4 majority, The ‘judi- a mistake. how- to the limitation of unreasonable ” ignores legislation.’ ever, Doby fact that cial United ex rel. States holding panel’s Walker, 1963, basis Linkletter v. sole 5 Cir. 323 Aguilar applies 11, (Tuttle, to the search of F.2d 14. See id. at also 20 dissenting). Supreme In addition “mis- Hoover’s house. J. Court’s takenly” relying Doby, panel opinion affirming said: on this Circuit more clearly history theory outlines the strong counsel make a “Hoover’s problem. Walker, Linkletter v. argument Aguilar no announced 1965, 622, 618, seq., 381 et U.S. 85 S.Ct. doctrine, but, new as disclosed 1731, 14 L.Ed.2d Mr. 601 Justice White’s opinion, 110-113, at 84 378 U.S. S.Ct. States, opinion in Williams v. United apply prin 1509, did no more than 1148, 1971, 659, 646, 401 U.S. 91 S.Ct. ciples in Nathanson United decided v. 388, recognizes 1156, 28 L.Ed.2d 11, States, 1933, 41, 290 U.S. S.Ct. 54 “confusing problems identifying those 159; United 78 L.Ed. Giordenello v. interpretations ‘new’ constitutional States, 1958, 480, 78 357 U.S. S.Ct. change prospectivity so the law that 1503; 1245, v. 2 L.Ed.2d and Ker arguably proper course.” 1963, California, 23, 374 U.S. 1623, Riggan L.Ed.2d v. 10 726. Aguilar announced no “new” doctrine. 1966, Virginia, 152, 86 384 S.Ct. U.S. beyond fact is That demonstrated cavil Court, 1378, 431, upon L.Ed.2d Aguilar opinion both in itself and granting certiorari, summarily re opinion Supreme in saying simply, judgment versed ‘The Riggan 1966, Virginia, 384 U.S. Aguilar Texas, is reversed. 378 U. 16 L.Ed.2d 431. 723],’ S. 108 [84 S.Ct. 12 L.Ed.2d Aguilar at in affidavit issue Aguilar applying thus to a con search remarkably sup- similar to the affidavit Virginia ducted on Janu officers porting the warrant search Hoover’s ary 22, (see Va. S. Thus, home.5 Court’s con- long 298), E.2d to the decision Aguilar demnation of affidavit Aguilar.” applies equal force this case. 439 F.2d at 917. 110-113, at 84 S.Ct. 1509. Not- course, Of are we all ably reasoning bound now wholly the Court based its

agree giving retrospec- that a choice of upon prior g., case law. E. Giordenello prospective judicial tive effect States, v. United only recog- decision arises from a 1503; frank 2 L.Ed.2d Nathanson judges nition “that States, exercise a creat- law United although, function, course, subject L.Ed. 159. There panel From quoted: which the affidavit at issue in this case read “ necessary appellant ‘It is not part: rely Aguilar “My decision retroac- belief as aforesaid based on tively since his following conviction was not final facts: Information Aguilar when the decision in was ren- a reliable source the above de- ” dered.’ property being scribed is now concealed 439 F.2d at 917. the above address.” 439 F.2d at Agxtilar 5. The Digressing affidavit in slightly read in relevant it should also be part: quoted noted that lan- “ ‘Affiants guage received reliable in- in the affidavit was not carried person formation from a warrant, only credible forward the search heroin, marijuana, do believe that bar- document handed to Hoover. To the contrary, biturates other positively narcotics and nar- that warrant stated paraphernalia kept being cotic alleged prop- are the affidavit “that said premises erty above described for the is now Sam Hoover concealed * * purpose contrary of sale and use his home located ” provisions of the law.’ F.2d at 84 S.Ct. at 1511.

545 plainant’s belief; and it not set implication a rule was does that new any upon scope permissible other sufficient making forth basis or that the finding probable dem- cause being To which a narrowed. searches [, insufficiency could be made.’ At S.Ct. constitutional onstrate the case, need 1250].” in this of the affidavit rely safely rely Aguilar, on could not but 384 U.S. at 1379. in discussed on earlier decisions majority judges pres- in When 110-113, Aguilar S.Ct. 378 U.S. “Thus, that, ent case hold because literally Thus, that true is 1509. was made Hoover search to the Su- Aguilar rely retro- not on need “Hoover preme Aguilar, in it is Court’s decision actively.” F.2d at 917. (majority thereby” opinion not affected panel Riggan (cited Next, in in 522), they undertake to overrule Supreme 917) opinion, 439 F.2d at Rig- Supreme pronouncement in Court’s (decided applied Aguilar June Court 15, gan. respectfully, That cannot I but be. 1964) Janu- a search conducted on earnestly, submit is room that there no ap- fully ary retrospective Its argument: legitimate for The search Aguilar plication could justified by Hoover’s home is retroactivity any partial on based existence of a valid search warrant. concept, in Wil- as that discussed such holding liams, a of absolute but was B. Consent unqualified retroactivity be could Having that concluded the search war- justified only by Supreme Court’s invalid, rant now turn ma- I had announced no that it “new” view jority’s that Hoover consented to view dissenting novel The four doctrine. reject theory I that on two search. Riggan complete Justices in agreement indicated grounds.6 First, one cannot consent to majority that with the on legal seemingly a a search in face of score: Second, assuming search warrant.7 even Aguilar] affidavit “[The arguendo given, a can consent be ap- inadequate found under the rule support such in this case do not facts States, plied in v. United Giordenello finding. [, 2 L.Ed.2d 357 U.S. (1) Carolina, Bumper v. North (1958), majority where 1503] L.Ed.2d complaint ‘does Court found that the squarely point.8 ma- And the is com- not indicate sources warrant, question of My expressed consent tlie searcli rationale the same plain pane): original tlie absence cannot arise the decision of the “ showing individual upon and clear ‘A in reliance search conducted subjected being re- justified has search on warrant cannot later be recognize that tlie search war- fused to tlie basis of if it turns consent out binding. [Quoting oth- Stated rant valid the warrant was invalid.’ accused, being erwise, Carolina, Bumper after unless an v. North warrant, 543, 549, un- a search served with equivocally that he believes states L.Ed.2d 797.] officer’s return ille- is unlawful and tlie search warrant is rec back search warrant gal, to the subse- consent cannot ord was con evidence that search quent search.” ducted in on the warrant. reliance approval by Naples Conceding arguendo, however, was cited with Bumper v. North justified Court search consent, on the basis of can supra. Carolina, agree we cannot Iloover voluntarily consented the search.” Bumper’s not contest does 8. Tlie 439 F.2d at 920. retroactivity. comment some Nonetheless Bumper new announced Naples Maxwell, order. As the court S.D. rule; a number cited F.Supp. 850, or novel Ohio said: authority hold- for its search, case, direct of cases as in this has “Where a explicitly ing. authority one court lias At least of a been instituted under the 546 549, narrowing (emphasis attempt hold- Id. at 88 at 1792

jority’s at S.Ct. (footnote omitted). supplied) Bumper In that ing factitious. And: is in house came to the four officers case a “When law enforcement officer woman, Negro Leath. year-old Mrs. a 66 authority claims to search a un- home a had police stated After warrant, ader he announces in effect replied, ahead.” she “Go search warrant occupant right that the has no to re- asked for or saw never Mrs. Leath sist the search. in- The situation is suppres- at the testified She warrant. colorably stinct with coercion—albeit hearing police “to that she told sion there is co- coercion. Where lawful search,” go in and ahead and come on ercion there cannot be consent.” objection mak- to them that she “had 550, (emphasis Id. at 88 at 1792 S.Ct. willing search,” a “was she say supplied). did not The Court drawer,” or look in room let them peculiar of that under circumstances them search and that she allowed there Rather its case holding was no consent. at 547 of her “own free will.” 391 U.S. expressed terms. absolute and n. Indeed, Black, dissent, com- Justice Bumper framed the issue Court clearly plained that Mrs. Leath had con- precisely: sented to the search. If a consent were might agree legally possible, I presented “The issue thus is whether justified Justice Black. But a search can be as lawful effect, held, in Court that no matter of consent that ‘con- basis when given only what words Mrs. Leath used consent sent’ has after the of- her conducting was ineffectual.9 The wisdom of that holding ficial the search has as- by strikingly possesses is demonstrated serted that he a warrant.” facts of Hoover’s case. See footnote (footnote Id. at 88 S.Ct. at 1791 p. 547, omitted). infra. Equally precise was the holding: (2) majority of this en court Court’s “We hold that banc validly can consent reasons that Hoover consented be no under such circum- because, (emphasis supplied). the search “There is no affirma- stances.” Id. Similarly: support “A evidence in record to search in re- tive conducted upon a contention that invitation was actual- liance warrant cannot later be ly involuntary.” Majority justified opinion at on the basis consent reasoning misses the mark. turns out that the warrant was invalid.” Such “ who, upon recognized significance Bumper’s of an 'One the command officer enter and search reliance on case law. See authorized to United Retolaza, warrant, opens 4 States v. F.2d and seize search Cir. 398 acquiesces (“Bumper, the door to the officer as the citations contained demonstrate, request, no mat- therein in obedience to a announced no new such ...... *.”); language ter used m sueh ac- ichat novel constitutional rule quiescence, showing regard States, see also Williams v. is but a United * * * supremacy for the for the 28 L.Ed.2d law. S.Ct. (announcing presentation of a search warrant standard of retro- charge place activity). Moreover, to those in to be v. New Overton York, 1968, searched, one to serve authorized it, Supremo tinged coercion, 21 L.Ed.2d 218 the and submis- Court re involving pre-Bumper manded a case sion thereto cannot be considered an light search invitation reconsideration that would waive consti- Bumper. The district court in this tutional unreasonable concluding Bumper seizures, erred in is not searches and but rather Beto, retroactive. See Hoover v. S.D. be considered a submission ” F.Supp. Tex.1969, law.’ n. U.S. at 549 Bumper quoted length (emphasis mine) (omission 9. The State, 16, 24, Court). from Meno v. Ind. 93, 96, support 164 N.E. of its hold- ing: clear, right, bearing abundantly search warrant has Bumper First, made duty, premises per prove to enter the upon the State the burden Hodges given.10 task. Indeed Officer The form his consent a valid that, no what Hoover testified matter majority this burden shift would said, Bumper have been con search would Second, in Court Hoover. way no dis- ducted. Hoover had conceivable be cannot noted that the “burden knowing invalid. showing of warrant ac- charged by more than no faulty af is no evidence that the There author- claim of lawful quiescence to a perusal. submitted to his 548-549, fidavit was ity.” S.Ct. knowledge in omitted). does of warrant’s (footnote Without validity, Nowhere any as distinction, reasonable basis ma- Bumper as the a draw legal training such, does, com seemingly sume Hoover’s jority be- ease in this Consequent acquiescence.12 manded his acquiescence. an invitation tween assuming ly, Bumper no Even there was consent. contrary, To arguendo may a consent to Elliott, that one D.Mass. cited United States war 357, support its search conducted under an invalid rant, F.Supp. of 1962, finding contrary said, the district court’s the defendant In Elliott view. (that consented) is in this Hoover being case a search confronted with after clearly warrant,” erroneous.13 warrant, need “You don’t Id. police into bedroom. and led sum, the search at issue warrant at 359.11 light Aguilar, supra, of was invalid precedents. And there was assuming and its since Thus, can con- that one even search, evi- not a valid consent to the upon in- an sent to a search conducted sup- alleged should have been dence seized warrant, state- Hoover’s valid Ohio, 1961, pressed. Mapp v. Hodges certainly ments to Officer 643, 1081. 6 L.Ed.2d or ac- an invitation stituted no more of did Mrs. quiescence search than II. Bumper, de- Confrontation or the Leath’s remarks majority complete It axiomatic fendant’s in Elliott. I are right, must disharmony respect one a constitutional Hoover’s waive with right. majority right Johnson first be aware of the confrontation. Zerbst, has been first reasons suggests right abridgment L.Ed. substantive Hoover’s experienced guaranteed an that because under the of confrontation rights. lawyer As a Amendment, applicable trial knew his made Sixth Amendment, policeman lawyer he did know that a the Fourteenth States prosecutor illegal 10. Said the Court: “When warrant on the words chosen rely upon justify person seeks to consent to be searched. When search, Hodges eight lawfulness of a he has the burden and the other offi- Officer proving fact, was, door, they the consent cers at Hoover’s arrived freely voluntarily given.” relying (Their reliance warrant. ultimately 88 S.Ct. at 1792. return evidenced warrant.) made on the It is doubtful Similarly, Eighth paid pre- 1 1. Circuit Court that much attention was Appeals, Sigler, 1969, McCreary acquiescence chosen cise words of Only 406 F.2d found no consent where Hoover.' after some months had said, having elapsed upon Hodges the accused had been shown to re- called warrant, Curiously, “You don’t need it. Go ahead late what Hoover had said. exactly Hodges’ corresponded and search.” Id. account language State, with the of Stanford v. paragraph See the of note final 145 Tex.Cr.R. 167 S.W.2d supra. case in the Texas court given to a search validated a consent vividly pursuant illegal allegedly 13. Hoover’s illustrates conducted to an injudicious aspect turning the exist- warrant. upon ence of a consent to a search had principal (if they catch-all and then concludes that, admis- trial) principal confronta- were on if Hoover’s sible even violated, the harmless are trial of the tion was beyond error was admissible on the ac- complice, prov- purpose I do not doubt. for the reasonable guilt agree re- accomplice, rationale. Indeed either but firmly study purpose solely proving me all has left the more origi- guilt [Citing principal. the decision of the au- convinced that panel nal thorities.] is sound. “ in the confession of ‘Statements A. Posture principal solely the relate to which again clarity, For I the three state guilt accomplice, the of the and which accomplice elements to the under crime of light principal’s no throw on the ac- prove Texas the The State must law. tions, [Citing should be excluded. beyond each existence of a reasonable However, the ex- authorities.] (1) principals That the commit- doubt: pressions connecting accomplice the crime; that, adjunct (2) ted before the eliminated, offense, the when with crime, the of the commission the accused incomplete render the confession fragmentary, encouraged accomplice advised or the may be received principals endeavors; (3) in their event, the trial in evidence. during present that the accused was not guard carefully the court should perpetration the actual crime.14 rights accomplice on trial limiting purpose the confes- proof To facilitate element first establishing principal’s to sion exception Texas say rule, an fashioned to the hear- guilt.’ permits which to in- the State missions of troduce out-of-court accomplice. for the ed.). the trial fession of the “[T]he ‘“ * give As original panel (439 effect I noted cases which ** IVSee principal to principal accomplice g0 no in Wigmore penning confessions at the trial of the general allowed the con- further to be F.2d at § rule than to used at opinion or ad- 922): (3d mouth rule, trial 81], 79 S.W.2d duce lars, relevant Stone was [Browney At Hoover’s permitted one of judge, the oral confession times, Officer in State, 1934, 128 Tex.Cr.R. reliance ^[311] trial Sellars was principals, stand, C. prosecution in state at 314.” V. upon and at all other of Calvin Stone. through available to court, the to stated While intro- Sel- testify. admissions or him have called confessions of State could accompanying See 1 and note text to the United States cisions panel opinion, (discussed infra) 439 F.2d at 915. the Texas rule constitutionally longer applicable is no panel opinion, 15. As noted confession is the declarant whose when sought F.2d at 922: himself to be intx-oduced is avail “By peculiar coincidence, testify. is, the rule the declarant to That able * * * length Moreover, discussed at in a three take the stand. must Schepps, in justices agreed which Mair the victim of event in no can a robbery, charged being this in which direct be admitted confession accomplice. accomplice alleged an of a commission are made l-eferences to Schepps State, r, light different offense. in of Bruton v. United Fo Tex.Cr.App.1968, 926, 927, States, 1968, 432 S.W.2d longer may 938-943.” be as L.Ed.2d it majority, opinion limiting pp. 524-525, will heed sumed original disregard makes reference to the such references. decision instruction Schepps opinion Notably, given but fails to note the Bruton retroactive justices Russell, 1968, concurred two of the five effect Roberts high on the Texas court L.Ed.2d answer Schepps rehearing. motion State’s fuller see For discussion of seq„ infra, S.W.2d at et Therein the court note 29. held that in consonance with certain de- sought pointed, questions the con- to elicit detailed to the stand and from the following prosecuting attorney, than as is demonstrated fession.16 Rather Appendix opinion. Appendix course, prosecution A this asked Stone Importantly, proof panel is Record A relate confession. Sellars’ pur- direct ref- correct when it “The statements contained sole stated: pose clearly indicated of most all references erences to Hoover * * * accomplice only to Hoover could have been that Hoover had been implicate robbery. Schepps’ Defense counsel Hoover.” 439 F.2d at 923. opposed confession introduction To me it seems obvious that the omis- entirety. The state court overruled its pain- sion references Hoover so alternative, In the defense that motion. stakingly extracted Stone would not sought di- the references counsel have rendered unintel- Sellars’ confession implicating rectly Hoover deleted ligible. Perforce, assuming then, testimony. judge refused Stone’s constitutional, Texas rule is was not premise would render on the that to do so complied panel case. See frag- so the remainder of opinion, 439 F.2d unintelligible. mentary as to be Texas Even under law confes- great length Sellars’ as to testified Stone implicate sion to admissible was not robbery. How- of the account only prove prin- Hoover but to that the ever, not relate the confes- did Stone robbery. uninterrupted cipals one, statement. the The sion in had committed every was elicited fact Rather each and to Hoover could have de- references been may re- way would have be that Sellars 16. It To the con confession Stone. asserting testify, Alabama, fifth Douglas 1965, his amend- trary, fused to in against privilege 934, 1074, self-inerimination ment 13 L.Ed.2d (at trial, Hoovers’ Sellars Supreme the time of in that if one Court held the may yet tried) ; be or it pleads not had Fifth Amend the Sellars’ shoes his prosecution have recanted that would Sellars cannot introduce the ment my that there is no evidence confession. But means. In other the confession actually possibilities Douglas would mind, either of these in are indistin the facts prosecution majority’s called guishable ensued if the had have that view the from him to the stand. Fifth the “would” have taken Sellars my dissenting having After received be witness can Amendment. When opinion majority aban- the has seen fit to to be “avail the stand he is said called to original might though the and make to don its rationale refuse able” even spurious majority un- testify. misinterprets was assertion that Sellars the testify. meaning Texas available to The State of used “available” as of the word argument posed right defining until this that never constitutional majority. Stubbs, ma- time neither has jority Cf. Mancusi confrontation. now that since Sellars contends 2312- 408 U.S. Fifth taken Amend- does “would” have If a witness L.Ed.2d 293. justified ment, prosecution testify, prosecution was cannot to refuse omitting only in a wit- For to call Sellars as confession. otherwise introduce his deny permitting Officer Stone to the defendant ness but also be to do so would Douglas, testify right su It as to Sellars’ confession. of confrontation. appellate judges prosecution pra. must is is not role as to con- It our consequences if would an absolute that Sellars fact Sellars suffer clude Amendment, pleaded pleaded Fifth have the Fifth Amendment. would have simply (or might Indeed he have recanted Hoover. majority perhaps affirmed) that had also reasons even his earlier con- put prosecution prosecution the stand feared Sellars fession. if the But attorney trial, testify, his own the State’s would have refused to Sellars possible guilty try mis- have been short have been to would answer would any appeals such have I heard ex- Never Sellars first. After all hausted, were conduct. majority no au- cites or law. The the Fifth no rule Amendment would Moreover, longer thority had the be for its view. available. theory first, assuming tried under Sellars Yet even State Sellars would calling privilege, follow there be misconduct asserted it does not prosecution trial. witness at Hoover’s him as a introduce could First, majority particularly re- contends even leted,17 since Stone though testify19 lating wit- Sellars was available to confession. Where an oral prove stating his person told confession was admissible what another ness him, greater principals committed latitude there should robbery. attempt portions hear- In an buttress that objectionable of the delete position majority opines, prin- say “If a a written confession than where cipal’s being makes no reference to into evidence. In conson- tendered question accomplice, no constitutional law and an effort Texas ance with p. (Majority opinion, pernicious improper ef- arises.” alleviate Quoting 15). n. Bruton v. United account confes- fect Stone’s jury 123, 127, judge States, 1968, sion, instructed the trial disregard states references Hoover. : all L.Ed.2d “ (For instruction, ma- were fact see ‘Evans’ oral confessions the text of 528.) opinion to, testified therefore evi- jority The effect legitimate later, dence. That discussed instruction against Evans and to that extent pp. 558-560. infra jury during properly its before ” B. The Law mine.) (Emphasis deliberations.’ But joint guarantees Bruton trial. All involved a Amendment The Sixth * * * that the said was every “the to be accused could Evans’ confessions in de- consider with the confronted witnesses * * termining guilt. Proof of Evans’ Its made comand was him *.” guilt through States, to the applicable was not an element crime charged. which Bruton Amendment, Pointer Fourteenth guilt proof tradistinction, Texas, (a principals this case fact which complains Hoover that 13 L.Ed.2d 923.18 show) right to confession tended Sellars’ his sixth amendment of confronta- by an element the crime with which Hoov- tion thwarted introduction the long any juror charged. confession. Sellars’ er was as So re-emphasize testimony Finally, that Texas law allows I as to what Sel- the only prin- leaving show the the to that confession the loot after the lars did with Sehepps’ robbery. cipals significantly If the had committed not does lend house organized the that Hoover had statement admission that rob- credence to Sellars’ deleted, impact plan actually bery the the were of Sel- Even if had occurred. testimony im- would not have been lars’ confession tran- the events which as to paired spired robbery subsequent as it related to the actual insofar to the were Moreover, perpetration admitted, permit of the crime. that was no reason to solely goes showing testimony being naming to that statement in- Hoover encouraged beforehand, simply the crime Hoover volved. could have said Stone accomplice offense an element of the that with “another Sellars communicated proved person” Texas law cannot be which under and followed after the crime that disposing person’s or even corroborated Sellars’ confes- as to instructions goods. sion. the stolen Similarly, Thus, majority’s the statement that Hoover view that the state telephoned during holding the crime adds court was dele- correct little, anything, testimony. At to to Hoover would tion the reference per- my fragment is, opinion, most the state court should have the remainder only mitted stated untenable. telephone calls had been made. There April Pointer, refer was no need to to Hoover as the 18. That decided party eight on the other end of the line. As criminal after Hoover’s months majority opinion (p. 529), trial, applicable is confession in on coattails of a come the application plice, of the rule but also the adjunct crime) properly not the permit Sellars, where the confession of followed, the can there be doubt witness, to used to he was available right has violated. to confrontation been principals’ prove commission of Finally, it is could no answer robbery. a defense witness. have called Sellars say refer Nor will suffice reading Supreme of relevant Court A in Sellars’ ences to Hoover contained that, when declar decisions reveals beyond a rea harmless confession were testify, hearsay ant does meaning of doubt within sonable he is inadmissible what has said as to California, Harrington 1969, 395 U.S. v. legiti (a) the declarant is unless both 1726, 250, 284 and 23 L.Ed.2d 89 S.Ct. (b) unavailable, mately there are other cases. evincing strong the truth indicia indicated, are, three as has There been hearsay.22 matters asserted inquiry in With Sel- this case. levels of supra. 20, justices 21. footnote on the Texas Court See Two of five Appeals have, deciding since Criminal adopted not contend case, State does In this case the this view Hoover's legitimátely State, Schepps unavailable. was rule. Tex. Texas Sellars See majority’s position discussed 926, Cr.App.1968, But see discussed 432 S.W.2d Moreover, supra. 16, the Texas infra, in note note States, In have been admitted since he too was Mattox v. United available. U.S. 39 L.Ed. declarant had testified at Mattox’s first Both in- Mattox and involved Barber subjected to trial and cross- had been testimony. Douglas prior troduction of subsequent At examination Mattox. Alabama, 1965, trial, owing intervening death of concerned the L.Ed.2d transcript declarant, of his earlier prior use a witness’ out-of- State’s testimony introduced into evidence. court actually State confession. In that unavailable, Obviously the declarant put declarant, Loyd, word, testify sense of questioned When Loyd con- stand. about his the second sub- trial. Since had been fession invoked the Fifth Amend- jected at the earlier to cross-examination judge privilege ment. The trial held trial, right held that Mattox’s Court inapplicable already Loyd had because of confrontation satisfied. Thus Loyd been Nonetheless convicted. Mattox involved a situation where Upon tinued in his refusal to answer. declarant was unavailable but where prosecution’s request judge the trial previous were indicia that his statements Loyd State; and declared hostile to the were reliable. guise of cross-examination “[u]nder recollection, [prose- Loyd’s to refresh Page, 1968, Barber purported to read from the cutor] [writ- L.Ed.2d the State 416, 85 ten confession].” attempted to introduce declarant Woods’ document S.Ct. at 1075. The written prior testimony given preliminary at a evidence, al- was never introduced into hearing. trial, the time At Woods was though police testified that three officers penitentiary. incarcerated a federal Loyd’s. the confession was held that Woods had Douglas’ Supreme Court held that not been shown to be unavailable because right been violated: of confrontation had “the state made authorities no effort * * * case, presence to secure Woods’ “In the circumstances of this petitioner’s petitioner’s inability trial.” 390 cross-examine though alleged Loyd S.Ct. at plain- 1322. Even there were toas ly indicia truthful, testimony that Woods’ denied him cross-exam- it could not be admitted into secured the Confrontation ination * * * Although [pros- evidence because he was not an unavail- Clause. Loyd’s alleged able reading Said the witness. Court: ecutor’s] statement, Loyd’s to ans- refusals may justifica- “While there be some technically testimony, wer, were not holding tion opportunity for that the reading [prosecutor’s] may well cross-examination a witness at equivalent jury’s preliminary hearing satisfies the de- Loyd fact mind mand of the confrontation clause where * * made the statement Since *. actually the witness shown to be un- witness, [prosecutor] was not a the * * * available, this is not such a reading the inference from that his case.” Loyd made statement could not be the by tested 725-726, cross-examination. Similar- at at S.Ct. (footnote Loyd omitted). ly, could not be cross-examined imputed to but not ad- a statement In Barber, prior the declarant’s testi- by opportu- mitted Nor the him. mony, though even it bore indicia of re- nity the law enforce- to cross-examine liability, was deemed inadmissible be- adequate ment officers redress cause the declarant was available to right tes- by denial of the essential secured * * * tify. Certainly, Sellars’ confession should Clause. the Confrontation recog- rule of Hoover, evidence here scrutinized it contains references should jury. nizes tliat Sellars’ confession insofar as not be the considered hearsay, “Hence, pre- confrontation too were Porter’s effective so But, Loyd only Loyd liminary hearing possible if af- said statements. the firmed his.” Court: the statement as 419-420, (1) the “Confrontation: 85 S.Ct. at insures give (citations omitted). witness his under will statements impressing the him with oath—thus Douglas authority for the is clear guard- matter and seriousness the

proposition that an available witness ing against possibility of lie the actually testify must ac- to afford the (2) penalty perjury; for forces (See right his of confrontation. cused cross-examina- submit to witness tion, case, supra.) In Sel- note Hoover’s legal ‘greatest engine ever testify. lars available but did not truth’; discovery invented for right- prosecution Hence could not (3) permits jury that is to decide fully introduced have Sellars’ to observe fate defendant’s Douglas, way In of Officer Stone. making demeanor of the witness put was never into evi- the confession statement, aiding jury in thus his dence, prose- held that the but assessing credibility. his enough it cutor’s restatement of was course, the out- is, “It true that violate the Amendment. Here Sixth may put into evidence. confession was of-court statement subject greater weight made under circumstances It carried than did Douglas. protections. But prosecutor’s remark in Hoo- these none of if testifying present therefore, stronger declarant is, than ver’s case trial, Douglas’ abridgment statement finding for an for out-of-court regains purposes practical most right. all confrontation protections. If the lost the witness reference Cali makes prior his [as statement is admits Green, 1970, fornia Green], there is other did or if my 26 L.Ed.2d In mind S.Ct. his, to show the statement is supports Hoo the view that danger reproduction is faulty the negligible ver’s amendment was denied. sixth jury can confi- be Green, posses Porter was arrested it it two conflict- before dent ing has as sion of marihuana and named Green witness. same statements hearing supplier. preliminary his At a concerned, Thus, far the oath as extensively. cross-examined Porter Green affirm, deny, or must now witness 1930. None prior qualify state- the truth of the theless, Porter remained steadfast perjury; penalty ment under the pointing finger guilt at Green. very indeed, fact re At trial Porter took the stand but given under simi- statement was fused reiterate earlier statement. his may the wit- become circumstance lar prosecution portions to Porter read inaccuracy— explanation for its ness’ given preliminary his at the may expected explanation hearing. juncture At that Porter admit account into and take to understand ted he had fact named Green as which, either, deciding complained supplier but that he could the truth.” represents statements longer true. remember whether was 158-159, preliminary The trial court admitted 399 U.S. at omitted) supplied). (footnote (emphasis hearing testimony evi as substantive arresting Moreover, dence. officer Por- dispositive fact was Thus prior as to Porter’s testified confes prosecution wit- ter had been called as a policeman’s testimony sion. was appear- Porter’s trial. at ness Green’s also admitted evidence. as substantive the Court convinced stand ance on the in- right Supreme was confrontation Court held that of Green’s noted, our of right “none of As Court confrontation was satisfied. tact. interpreting Confrontation policeman’s testimony decisions was Granted excluding Evans, requires the out-of- Dutton Clause of court statements a witness who is S.Ct. 27 L.Ed.2d is another case testifying support. to which the trial.” turns for available at interpretation Dutton of In Hoo involved a well- at 1936. U.S. at established, peculiar, did but case, rule of law ver’s available but Sellars Georgia. testify. Moreover, Under de that State’s law of con- not Green the spiracy, conspirator opportunity of to cross- statements one fendant had an are preliminary admissible hear examine Porter cohorts even at his during stage ing. when made no ac concealment In ease Hoover had such conspiracy. Clearly, inap cess to Sellars. Green posite to this case. Evans, Truett and were ac- Williams conspiracy cused of to commit murder sum, prevented availability In sepa- and murder. was tried Evans introducing confes- his State rately. During trial Shaw testified through Stone’s mouth. sion Officer that, jail Williams, while he was in availability Yet, even Sellars’ mere had him, Williams told “If it hadn’t been result nonethe- does not command this it dirty Evans, for that Alex son-of-a-bitch suffi- there were not less obtains. For we wouldn’t inbe this now.” 400 U.S. at reliability cient of Sellars’ indicia of complained at 214. Evans confession. that he had been denied confrontation of Texas, 1965, upheld Pointer U.S. Williams. The Court the Geor- gia 1065,13 permitting L.Ed.2d tran- introduction of rule script Phillips’ prior testimony. of declarant testi- Shaw’s hearing mony preliminary at a in- prime significance only It is troduced into Pointer’s evidence at trial. four of the Court found the members jurisdiction Phillips had left the the Georgia satisfy right rule to of con- hearing interval between the trial. Stewart, (Opinion of frontation. Justice testify. he unavailable Hence Burger, by concurred Chief Justice Nonetheless, held it Court Blackmun.) Justices White and Four “ transcript, error admit ecause [b] vigorously disagreed with that Justices transcript Phillips’ statement of- (Opinion Marshall, view. Justice against petitioner fered had trial Douglas Black, curred in Justices not taken been time and under cir- swing Brennan.) vote was cast affording petitioner through cumstances Harlan Justice who refused to test adequate opportunity counsel to Georgia rule Sixth Amendment * * Phillips cross-examine through but rather chose to scrutinize U.S. at 85 S.Ct. at In other Hence, spyglass process. of due words, petitioner had able to cross- holding clear Court. occasion, Phillips prior examine on a Justice Stewart noted that “Evans was there would have been sufficient indicia deprived of confronta- reliability to warrant introduction tion the issue of whether ac- Williams hearsay testimony. present In the tually made statement related Shaw,” opportunity competent case Hoover had no such because Shaw was testify to that fact. squarely cross-examine Pointer Sellars. Rather: that, though held even declarant legitimately unavailable, there must be confrontation issue arises be- “The strong reliability (such indicia as are being invited to cause the by cross-examination) before afforded implicitly iden- infer that Williams accept hearsay perpetrator Court will Evans tified as the murder when blamed Evans declarant’s statements. actually testifying, Douglas excluded references thus

23. In the declarant was his earlier confession. prompted view was Stewart’s we conclude Justice predicament. But his right possibility that “the cross-exami- of no denial there conceivably question nation of Williams could as confrontation to this of statement, jury First, have shown identity. con- the statement of made, though might unrelia- past have express been about assertion no tained Id. wholly on its unreal.” fact, consequently carried ble it and all, why against 220. After would Wil- warning jury a face weight. himself to liams have incriminated giving undue the statement knowledge Shaw, prisoner were a fellow he personal mere Second, Williams’ guilty? in not fact identity role of other of the triple is murder participants in the totally distinct Hoover's case abundantly Truett’s established Dutton, majority’s reli- as such the testimony con- Williams’ wholly misplaced. There thereon is ance that cross- inconceivable viction. It is reliability not indicia of were sufficient have shown that could examination respect confession. Com- with Sellars’ to position in to know a Williams was in paring those facts involved Evans was or not whether following: (1) Un- Dutton, I note the Third, possibility the murder. in Dutton Sel- statement like Williams’ founded statement was that Williams’ express asser- contained confession lars’ faulty in the is remote on recollection (including past assertions tions of fact Fourth, the circumstances extreme. respect involvement to Hoover’s the state- made under which Williams crime); (2) the declarations where give reason to as such ment were spontaneous and were made Dutton misrep- suppose that did not Williams no from whom favor to one Williams involvement resent Evans’ return, expected in Sellars’ could be go be- circumstances crime. These during cus- statements were elicited showing yond that Williams investigation it would todial where apparent His lie to Shaw. reason seek for natural the declarant spontaneous, it was statement was might possible favor and where against it. penal to make interest his his interest to admit have been his reliability which These are indicia long impli- he role in crime as own widely as determina- have been viewed breath;24 same cated may be tive whether a statement (3) statement while all Williams’ though placed jury before the against penal inter- Dutton his declarant.” no confrontation ests, portion of statement Sellars’ similarly 88-89, implicating Ad- Hoover was 219-220. singular against. interest.25 fact Sellars’ ditionally, interest, judgment importance against what a declaration fastening may says which the State attached based therein about others malice, guilt fear, pique, spite, or out on other on Hoover would be borne subsequent grant complete leading immuni- When truth. motives not exchange ty proper predicate Spivey in for laid the State has against into evi- Hoover. to authorize introduction confession, principal’s does dence of the Notably Texas of Criminal the trustworthiness this assure highest Appeals, instrument, criminal court without accused’s recently respect cross-examination, Texas, said, or test the rec- has principal principal’s and without use of a confession which ollection of alleged implicates accomplice opportunity to observe for the who is separately: principal’s I think not.- on trial demeanor? State, Tex.Cr.App.1968, speculate length Schepps as to “One could denying (Opinion why duress, people fear, State’s S.W.2d confess — jus Rehearing) (three revenge, reward, science, five im- offers of Motion light concurring). in leniency, munity, tices etc. principal’s unreliability im “While herent admissible accomplice, person plication making this Court of his the same as majority peculiar Georgia would Stew- view Justice Since Dutton involved a authorizing opinion law, rationale, in Dutton art’s as Stewart’s Justice even if hearsay testimony although incorrectly broadly major- declar- the read as as the above, ity Yet, it, apply ant is as noted would have available. does not the interpretation majority’s if the of even of this case. facts correct, opinion Justice Stewart’s were Second, I reiterate that no there was there were not sufficient liability indicia of re- majority opinion in Dutton. Justice testimony.26 to warrant Stone’s opinion opinion Stewart’s is the importantly, Marshall, Stewart’s More Justice the Court. Justice with whom broadly. opinion not be read so joined, should Justices also three orig- opinion in First, noted the the stricken as Shaw’s because Wil- panel in inal this case: liams was available the be called State. did not He draw the distinction evidentiary “Dutton held that state pecu- which Justice Stewart did on the may vary rules federal rules the Georgia’s liarity of substantive law conspirator in that a statement one conspiracy, certainly a distinction which may against used if be another the drawn cannot in case. be this during statement is made the the time during past Third, goal overt the offense but confrontation conspirators clause, in at- time which the are noted in Green and acknowl- tempting being edged Dutton, get In to avoid identified. in truth. effect, may Conceivably Georgia and federal rules the state rule of law ‘pend- differ on what in constitutes issue Dutton was aimed end. at that ency case, conspiracy.’ But even In this at least insofar as Sellars implicated Hoover, the hear- most strained construction of even realizes Texas say bring conspira- geared exception solely cannot that ing rule is not its find- penumbra confession under the truth. For tor's of Texas law ‘during ‘in furtherance of’ or commands disregard any be instructed pendency conspiracy.” implicating of’ the statements accomplice. opinion, F.2d 924 n. 6. Panel reviewing give Fourth, opin Court Dutton was gia a Geor- Justice Stewart’s reading suggest rule was rule of evidence. That ion Dutton the broad predicated majority in turn on rule ed would be to substantive overrule Georgia conspiracy holdings unquestionably continues sound through stage. supra, Page, concealment Conse- cases such as Barber during quently any statement made were cited which Justice Stewart pendency approval. of the con- furtherance spiracy against was admissible the co- sum, general would adhere to I conspirator. inYet case Sellars’ this principal the declarant is avail- the con- statement made even after testify; able, it is he who must before, stage. And, said cealment as we unavailable, that if declarant there rule of law could within the include strong reliability must indicia be be- period conspiracy of a made hearsay statements may fore intro- statements police in confession the crime. duced this defendant.27 In over-emphasized should not imbue It cannot be Sellars’ confession with Hoover. requisite reliability. indicia of case that is the im- most critical, part portant, indeed of Sellars’ majority recognizes 26. The the need for confession. (majority opinion such indicia at 532- 534) dissenting preparation and even asserts that “the of this record Since affirmatively opinion, must show United States those indicia.” two-part opinion cogently Id. at 533. Nowhere its confirmed the test does has urge. adequate Stubbs, demonstrate indicia I Mancusi v. cited is, supra, of the trustworthiness of Sellars’ confes- in order intro n. 16. That sion, hearsay particularly non-appear- implicates insofar as it duce statements of “Notwithstanding case, nor the conviction neither unavailable Sellars up- principals], relia- incumbent indicia of [the sufficient government, bility supportive in order to sus- of the truth of his con- on the against Kirby, charge es- particularly respect tain to that fession, with to its (1) beyond implicat- portion tablish a reasonable doubt of his confession which Hence, property of the ed under view that described Hoover. Clause, indictment from recital was fact stolen Confrontation Stone’s the * * *. of was the United Sellars’ confession inadmissible. States be direct admitted pals ment was As case. al in Pointer v. the the charged upon pleas Kirby the convictions an element of the three principals. had all been Kirby alleged authority required United has 85 S.Ct. 1065. guilty. Texas, receiving stolen 43 L.Ed. thieves. been cited convicted, include that States, 1899, to crime, prove supra, principals the three I my 890, appears The trial court confessions note that view two the Govern- the Kirby was of guilt approv- of princi- goods. them- them this two to of pals] proved personally testified before the erty not tion of receiver, charged mission of another and substantive alleged received ever, crime, of “ * « * guilty, present alleged be the confessed ** the to be the used ^[*] essential United nor when principals The record of the when him was to have been guiity by to ^[*] their crime establish, States. [two fact ^[*] [the could actually stolen witnesses that the with the ^[*] against third] Kirby feloniously not, by pleas convic- princi- jury.” ^[*] prop- how- com- who the not witnesses 53-54, selves were called as 174 U.S. at 19 S.Ct. at 576-577 holding Kirby. (emphasis supplied).28 In the Govern- Hoover’s case Kirby’s indistinguishable. practice sixth ment’s violative could Sellars confrontation, right called; the not. The must amendment been he was State opined: consequences.29 bear the inadmissible, declarant, entirely ing show both the must State confessions to be legitimately purpose unavailable that even for the limited establish- reliability strong ing guilt, principals’ princi- indicia of the that there are since hearsay pals nine All Jus- as statements. themselves could have been called justice approach agreed two-part A error tices such witnesses. because, third found Amendment, case, judge required the trial the Sixth as this is though Douglas required refer- Justices Marshall could have deletion accomplice alleged satisfied test had ences fragmenting without felt on the facts of case. confession. justices two of the : Said also, Elisha, made Commonwealth v. “In the case bar the See State any great pro- Gray to demonstrate no effort bative need for the evidence to show alleged actually Tex.Cr.App.1968, principals State, Schepps 29. In justices prosecution five held as wit- two of unavailable to 432 S.W.2d they merely upon ; of the sixth nesses relied the Texas rule to be violative right of confrontation where old [rule].” amendment Similarly, non-appearing declarant is available 432 S.W.2d at testify. enough, prosecution (Oddly in failed that case Hoover’s Schepps, Rooting prosecution make their hold- of Mair such efforts. volved charged Bruton, here, an victim but as rationale jus- accomplice counterfeiting supra, cigarette the two tax other cases discussed stamps.) Sohepps tices confessions continued: “Certainly may argued principals it that none the crime three available prove the admis- of these decisions involved were introduced adjunct alleged principal’s an confes- sions of crime. As committed separate case, trial of accom- references sion at plice, confessions contained accomplice around but we cannot waltz could have been continuity important destroying in- issue here constitutional excised without validly distinguish justices cases held the volved and confessions. Two (2) Limiting Instruction. rendering without slightly unintelligible.31 even er- That majority emphatically asserts ror rises to proportions constitutional Hoover’s of confrontation this case. abridged even insofar Sellars’ confes- as directly implicated sion an ac- importantly permit More Texas cannot complice. agree. Assuming I cannot ar- alleged to hear Sellars’ refer guendo that Sellars’ confession was ad- ences to Hoover even if their omission prove principals missible commit- unduly fragment the confession. robbery (which not),30 ted the In Bruton v. States, United 1968, 391 U. permit Sixth Amendment does not in- 123, 476, S. 1620, 20 L.Ed.2d troduction of Sellars’ confession to show defendants, Evans, two Bruton accomplice. that Hoover was Even jointly violating postal were tried for Schepps, supra, to the in decision laws. The oral confession of Evans was recognized impropriety Texas itself by way introduced from a utilizing confessions to end. such postal inspector. confession incrim Hence State law forbade remarks incul- inated jury Bruton as well. The patory accomplice, of the at where least only instructed to consider the confession inextricably their inclusion tied respect disregard to and to Evans remainder of the In confession. all references to Bruton. a care beyond case it clear this is cavil fully opinion reasoned state court failed to exclude references limiting to Hoover which could been deleted Court held the instruction to be have by simply matching color the facts. We The Texas court has since reaffirmed luxury adopt merely say- validity holding Schepps. cannot of the State, Tex.Cr.App.1971, this case involved the use of exam- Tucker v. See * * * ining testimony, not; (“ Schepps, trial one did 634 461 S.W.2d joint effectively trial, supra, [prior that case was a overruled this one was has * * * not. to the extent that state] cases they principal’s allow introduction State, course, accomplice required “The trial of the * * prove guilt alleged principals *.”) ; Carey State, Tex.Cr.App. v. 217, at case bar order 455 220. And con to convict S.W.2d appellant trary majority’s accomplice, as an and it to the statement foot Chapman present opinion, State, legitimate was entitled to 10 of all the note its possessed Tex.Cr.App.1971, evidence it in no sustain its bur- 470 S.W.2d way proof despite Schepps den of undermines the decision. fact the evi- already presented appeared dence clearly argue apparently established that element of charged. guilt State, the offense ever, confession of his own how- Sellars’ proof, because of its burden it an admission was admissible since was extrajudi- Nonetheless, reiterate, not entitled to I introduce the interest. alleged wholly cial confessions three of the confession is inadmissible principals testify. appel- in violation of the he was available to More- because over, although lant’s federal and state the fact that con- constitutional Sellars right certainly capital of confrontation. crime fessed to a bar, despite appel- strong “In the at to that indication he was objections, telling truth, lant’s extent it must be borne State made given appellant effort previously to show that that his confession was mind adequate been afforded an And while con- custodial environment. opportunity fessing, implicated be confronted mas- Hoover as the bargain principals termind, perhaps hoping cross-examine the three for a whose Spivey— approaching confessions were used and that that accorded presently immunity exchange complete unavailable to for his the State bring recog- testimony against so as to the case within the Hoover. exception nized to the constitutional right discussion, supra pp.. of confrontation. See Barber v. at 548-550 See supra.” Page, Appendix & A. (emphasis supplied). at 943 S.W.2d proposition jury, ed the determining when guilt, to confront Bruton’s no avail. abridged.32 the confessor’s Evans was ignore could relied on to had adhered Bruton Court Prior to guilt find fession of should it the con- upon in philosophy expounded 388-389, Id., involuntary. fession States, Paoli v. United Delli S.Ct., 1786-1788.” 294, 1 L.Ed.2d U.S. Said was that instructions sor’s tion could be avoided 239 77 committing croachment on the tion to the codefendant missible “The basic “ “Delli Paoli ^[*] jury [, extrajudicial ^[*] hearsay S.Ct., at to follow’ ^[*] jury the crime. 352 participated in Bruton: premise ‘reasonably possible for assumed that [the] disregard to evidence. 299], disregard right to confronta- statement sufficiently by the instruc- of Delli ** But, we the inad- that his U.S., at * confes- him in as Paoli clear en- jury resolute: prejudicial concurring). Clearly in United practicing lawyers gated fiction,’ instructions it would Sellars’ Ct. at Court). which (footnote States, references to Hoover. “ convicted Hoover effects can be overcome ‘The wrong quoting 126-129, The command Bruton 93 L.Ed. 790 ” omitted) naive to conclude know from Krulewitch assumption light S.Ct. at to be unmiti (omissions * * * (Jackson, disregarded of Bruton that the 1622- all J., S. said, assumption suggests has since majority sedulously True, effectively repudiated. the distinguishable, since Bruton is first repudiation joint context of trial Bruton involved whereas inculpat- separately. the admission of a confession de- tried Hoover was escapes but the context me. a codefendant cisiveness of factor damag- to a New rule submitted York no less statements Sellars’ ing jury question the the of the voluntari- on trial. We because was not ness of confession itself. Jackson on inflicted must look to harm Denno, [, injury 378 U.S. 368 suf- Hoover. It is identical to Next, says L.Ed.2d 908]. Nonetheless ma- fered Bruton. message Jackson for Delli Paoli jority, coconspirators co- are “While there held clear. defendant equals We crime as a matter substan- constitutionally law, to is entitled at least principals and accom- tive criminal judge determine have the trial first plices Majority opinion are not.” whether made volun- may, jury’s a confession was collective Be that as tarily submitting jury owing it to before to mind infected a subtle less credibility. for an assessment of its substantive law distinction between the expressly reject- specifically, More we conspiracy crime of accom- and the Although empha- in Bruton the Court said that there is no well-estab- could be hearsay exception sized that it was not with a chal- faced to lished rule lenge any exception to well-established issue this case since references hearsay rule, denunciation its Hoover contained Sellars’ efficacy limiting- actually of a instruction none- into evi- admissible were not equal theless on this bears force. dence. looking Furthermore, high We are at the effect of testi- as Texas court mony jurors, application on the minds of the has said of Bruton’s they prejudiced very scrutiny: are no less because some re here under “The rule * * * upon rule evidence is at issue. Further- [a] liance instruc more, any under the Texas rule direct tion the harmful effect to remove [s] alleged accomplice references are in the now the same reliance utilized (They [by inadmissible. can be heard Delli Paoli case.” overruled Bruton] (three Schepps supra, delete them would render remainder at 941 S.W.2d unintelligible, justices concurring). of the confession but of five inadmissible.) are nonetheless Thus Finally, plice. notes that impugned Hence, insofar as Bruton required “in this case the State was limiting effectiveness instruc guilt prove prerequisite as a impli tion in the context of confession the conviction of as an accom- cating crime, participation another’s in a plice; prerequisite there was no such pay proper Court must the case its Bruton.” Id. Bruton at 530. Yet in sought say heed. Texas has that on prosecution equally, had an if not any balance harm inflicted on Hoover more, compelling reason to introduce Sellars’ references to him is offset Evans’ confession. The Government was limiting assuming instruction. Even duty just conviction, bound to seek his arguendo that Sellars’ confession was obliged prove State was prove admissible to his role in the rob principals’ guilt in this case. bery, it is clear that Texas’ effort at balancing fails to withstand even the majority seemingly avers that redounding meekest breeze from Brut rule Bruton is not absolute—that on.34 judge may the trial in his discretion particular jury clude that the him before (3) Right Hoover’s to Call Sellars actually disregard will inadmissible the Stand statements like the one here at issue: Sellars could have been called to the examination of “[A]n Although majority stand Hoover. during taken the voir dire examina- rely theory, does not on such I am jurors prospective tion certain re-emphasize constrained to what was which the defendant took a bill of ex- opinion original panel said ception questioning shows extensive in this ease: virtually every juror as to his abil- ity “That Sellars was available to be consider confessions as mitigate called as a only witness does not in accordance in- Court’s prosecution’s Nothing misconduct here. structions. record sought The State de- to shift to the convinces us that did not. calling fendant the risk of Sellars to short, “In do not think that it we accept the stand. To State’s ar- was unreasonable for the State Trial gument availability of Sel- Judge to conclude, in the exercise of equivalent putting lars is the him discretion, limiting reasonable that a jury subjecting instruction to could care the stand and take him to any effect, possible adverse because severely cross-examination would alter of the admission of Sellars’ oral con- presumptions of innocence and fession.” proof protect the burdens Majority opinion p. at Yet 530. nowhere right to accused. Hoover’s undoubted opinion Supreme in the Bruton does the call as a in his behalf Sellars witness suggest, imply Court intimate or cannot substituted for his Sixth judge the trial is to be afforded right Sellars Amendment to confront majority’s such discretion.33 The view against as a him.” witness respectfully entirely is, I submit, errone- ous. 439 F.2d at 924.35 impossi- 33. discussion, supra, Indeed the Court noted “the view of Bruton. See bility determining whether in fact Evans, supra. present. Dutton Cf. said that to avoid reversal the benefici- ary In ade- this case there were other “prove beyond a the must error Hence, right quate to indicia.36 the the error com- reasonable doubt cross-examine Sellars was constitutional- plained ver- of did not contribute to the ly mandated in this case. Hoover’s obtained.” U.S. at dict simply turn to confront cannot Sellars sum, be con- the court must power discretionary the trial court’s be- that the “was harmless vinced error Moreover, to declare Sellars hostile. yond a reasonable doubt.” Id. permitted even if cross- Hoover were to Sellars, appears it that Hoover majority examine recount undertakes to The impeach would not have been allowed to of the Spivey’s detailed, account sordid law, im- including him. to robbery Under Texas order to its references peach witness, his own Hoover would ma- Somehow, I the suppose, Hoover. surprise. gains testimony have to demonstrate See Spivey’s jority believes not through Hoover could repetition. Tex.Jur.2d 327-28. course §§ Of credence credibility. He singularly surprise Spivey lacked claim had Sellars taken damaging would before to introduce without the declarant evidence duce hearsay running declarant’s evidence of trial confrontation.” admit risks statement, (Emphasis original.) And Barber see Page, supra, re- where State was supra quired good pro- discussion, at 555. faith to make a effort to 36. See immunity. given complete breaking entering. Under was convicted of Ac- cording testimony, story, his unless corrobo- Hoover Texas law had shown rated, ring it him cannot convict Hoover. Was told man’s diamond and had jury ring sufficiently Schepps’ corroborated? him from rob- might question bery. appears well have answered that There no reason for Hoov- negative. engage er to make the statement and Lyon the conduct testified. lengthy majority’s Interspersed in the Lyon’s Even more incredible is testi- testimony Spivey’s three narration of are mony paltry that for the sum of $150 excerpts submitted at from evidence he, his mother and his three brothers trial, views Hoover’s which the testifying. Finally, left Texas to avoid Lyon “overwhelming.” Tuck First, as Mrs. only testified said “[Hoover] during Schepps testified that probably ring prob- it it hot robbery three masked assailants ably robbery.” Schepps’ came from the phoned seemingly party, unidentified (R. 718) (emphasis supplied). That At advice. most support statement does not an inference telephone firms that the robbers made encouraged robbery that Hoover be- during calls the crime. And should be fore it was hand, other committed. On the jury in mind that had the borne right repre- it is clear that Hoover was conjecture Spivey, as senting Lyon probate in a matter and prosecution may witness, have been Lyon any money never received other witnesses were aware what the property under the will at issue. That going say. similarity versions might jury’s mind fact weaken might be less than fortuitous. weight Lyon’stestimony. Though posses- Second, Hoover was found in appellate judges it is for us as jeweler sion of certain diamonds which a Lyon’s pass upon credibility, we belonging hazily rather identified as ignoring jury’s prerog- be remiss in jurors Schepps.37 Even ac- ative do so. they might identification, cepted the tending Hoover that since to show that believed urged robbery attorney Spivey’s into scant. he somehow came Hoover had directly Only Spivey possession stones after the rob- testified having played bery point. and without role Yet the court allowed trial planning inculpatory To crime. convict hear remarks similar accomplice, prove prosecution must as an the State extracted Stone encouraged adjunct during that he crime be- account confes- Stone’s of Sellars’ truly the act. fore Possession diamonds sion. Can it be said that there Finally, imply possibility” does not such a role. al- a “reasonable demonstrated, “might leged has been diamonds have contrib- statements Chapman, should not evi- have been introduced into su- uted to the conviction”? all, having dence at in vio- I pra, seized U.S., Fourth lation of the Amendment. think not. Third, great majority heavily puts em- on de- relies phasis Lyon’s testimony. Harrington on California, William J. cision in jury might have disbelieved or L.Ed.2d all 89 S.Ct.

part Lyon’s testimony. introduced The witness In that case the State 284. years age nontestifying was nineteen had and been the of two confessions CO- largest weighing 37. “He cut diamond carats testified that stone was omerald cut, weigh- points a round fine white diamond and was similar an and 70 points and emerald cut diamond of that identical carats and looked cut, weight pendant the same had as a round fine white in a on which he Schepps.” previously previously for Mrs. diamond he had done work mounted Schepps; opinion, Mr. F.2d at and that the smaller Panel stone introduced evidence Harrington placed at defendants which tion Stone’s account of Sellars’ con- important- scene of crime. But fession in the ly, Harrington violation Hoover’s sixth and his admitted himself fourteenth amendment rights, and that though scene, presence he dis- neither one of these constitutional er- puted participation It in the crime. rors can held The district harmless. peti- that confessions two court’s obvious denial of Hoover’s habeas merely respectfully codefendants were tion cumulative should be reversed. I Harrington’s my own admission. dissent. clearly prej- mind Sellars’ confession was jury

udicial. its Without benefit compelled

would have been to draw infer- upon ence to find cor- inference APPENDIX “A” testimony.38 Spivey's roborative following colloquy: Note the Thus, assuming arguendo even it “A. stated that and [Sellars] was harmless error to admit Sellars’ con- Young Oscar John Samuel prove principals’ fession to commis- Spivey were the individuals who robbery, sion of the admission of the ref- Schepps’ Mrs. went into Mr. and erences sary. makes to Hoover reversal neces- house. “Q. you Do recall whether Chapman in At most this case is like during stated that time Sellars “reasonably strong involved a ‘cir that it the three the conversation how ” cumstantial web of evidence.’ together? got of them But, Chap as “A. Yes Sir. man, absent constitutional error “Q. ? How was might very jurors “honest, fair-minded brought well have verdict not- [a of] he received told me that “A. Sellars circumstances, guilty. Under these telephone call from Sam say completely impossible for us asking part in this him to take ** demonstrated, beyond a State has robbery reasonable doubt that the [constitution (R. 535-36.) apparent It is infirmity] did not contribute to” al to let Stone prosecution not content 26, 87 Hoover’s Id. at conviction. robbery); beginning (of begin at the at 829.39 rather, prosecution Stone wanted go foregoing original in time. back

For reasons holding panel clearly correct in recounting the details of After Hoover’s conviction had been obtained describing items robbery after of the fruits of the introduction sought stolen, prosecution a detailed nighttime home, of his made search description to what Sel- Stone following of his fourth and fourteenth violation events had said lars re- rights, robbery. the introduc- account was amendment actual Stone’s 1788, 1793, was instructed n. course the Of repeating: to Hoover con- bear the references 20 L.Ed.2d consider light suggestion error was Yet [that confession. “This tained supra, the ‘hor- iáchepps, seems rest this Court harmless] Bruton assump- case, believing justified fol- rible’ facts is not petitioner guilty. But tion that the instruction. lowed to this Court function it guilt, much less innocence determine viola- hold that the constitutional 39. To subjective apply notions our own harmless error to this case tions uphold duty jurisprudence. justice. is to great Our do harm to States.” the United Constitution The words Carolina, Bumper North permeated píete and references the necklace was still there where with placed he it. then took the to Hoover: He and necklace went to Sam all told me that he took “A. [Sellars] and Hoover’s house in Pasadena jar with the articles in home through was let rear door him and he later called Sam he and stated time he at that he told him had Hoover and him showed the necklace. going throw and to articles “Q. away. who the necklace? them He stated Showed he away advised not throw them “A. Hoover. showed Sam Sam He away and all not to above throw Hoover necklace. bring necklace, the whole “Q. else? What loot let over to Pasadena and “A. stated that Hoover told He Sam Mr. it over. Hoover look he him sit down and wait and you “Q. What did tell he did Sellars left the house itself and walked to that? with reference yard and was out the back talked to him “A. He stated after he gone period fif- a ten or for he started to Pasadena— and teen minutes came back and mounting “Q. him handed back Talked ? whom had been and that the diamonds Hoover, and he started “A. Mr. removed. thought he some Pasadena and “Q. What, anything, did Sellars City ar- about to Detectives were mounting say he did rest and he went into him store, re- after grocery diamonds were small Chinese grocery ? moved store on Edwards Street going to and in like he was went gave said He when “A. Sam buy something and he took mounting it him back soap it necklace and hid under wrapped piece of in a blue small bought said box. I think he he paper. him told Sam Hoover pocket some or a comb hair oil mounting. dispose of the gro- and cery out of started back “Q. say not? he so or Did he did he and either while store did, he dis- he stated He “A. grocery inwas store or after way posed back of it stepped out, he had he was Houston, it into a that he threw City stopped some Officers pasture, stated horse and he questioned. and away he it he me threw before “Q. custody taken into Was he he and it in mouth carried his that time? it it and had chewed bit “A. No sir. compress small into a teeth to “Q. according passed horse did he What he then do item and story? in the to his it out pasture he tossed driv- still pasture he was while “A. He then told me he went back thirty ing mile about home called and Sam Hoover speed limit.” hour again told him he had been (R. 541-44.) stopped and told him he hid ques- having thoroughly store, Only and he told after necklace subsequent stay away me Sam him about told tioned the events Stone robbery place go (remember, confes- and not back prove solely may followed, because he be- sion admitted robbery it- watched, principals’ he commission of said self) prosecution waited three or backtrack about four hours did “* * * [make] and went back to the ask: Sellars store [Did] phone or two soap call to a looked under the reference box 565 robbery] during grand- petitioner fol- “The ?” The with his lived [made lowing mother, Leath, colloquy 66-year- Mrs. ensued: a Hattie Negro widow, old in a house located sir, “A. he did. Yes in a area at end rural of an iso- you in re- “Q. did tell What mile-long days lated dirt road. Two gard? alleged after to offense but in- They were to receive their “A. petitioner’s arrest, four law white aft- Hoover structions Sam county enforcement officers—the got they er into the house sheriff, deputies, two of his and proceed as where how to investigator state to this house —went money. to look for the and found Mrs. Leath there with some they “Q. in- those did follow And young children. She met the officers ? structions at the front door. of them an- One they nounced, receive told me did Calvin T “A. search warrant They your phone made one call. search sponded, re- house.’ Mrs. Leath They ahead,’ opened Hoover. and talked Sam ‘Go they instructions and did receive door. In kitchen the found officers they were told look where did rifle that was later introduced petitioner’s look. evidence at the trial after suppress a motion de- “Q. you or not Sel- recall Do whether nied.” actually you called lars told who 546, 1790, Hoover? defendant 391 U.S. at 88 20 S.Ct. L.Ed.2d at 801. my knowl- “A. I believe the best of Young edge Oscar he stated John prosecutor’s held Court that the him.” called proving the consent burden voluntarily freely search in fact 544-45.) (R. showing given discharged by cannot be concurring in Judge, acquiescence GEWIN, to a claim no more than Circuit dissenting authority. (with part whom here part lawful But the record Judges, GODBOLD, discloses that Hoover a well trained Circuit RIVES join lawyer experience prac- opinion deal- portion with wide in that of the offi- er- tice of criminal law invited the and harmless who confrontation simply I can- cers to his home. ror) search : equate two the circumstances in the fully opinion I concur cases. that Hoover consented to agree conclu- my I do with the However his home. In view search II Part the dissent in home. reached sions invited officers to search his regarding disagree lack of confrontation. dis- portion I Particularly Supreme Bumper in view of the v. hold that sent which would Carolina, in Mancusi Court’s recent decision North 391 U.S. S.Ct. 88 Stubbs, 33 (1968) 408 U.S. L.Ed.2d establishes 20 797 (June 26, 1972) is clear per L.Ed.2d 293 se rule that there can be no consent Evans, Dutton v. dis- search once the officers have (1970) possess L.Ed.2d 213 war- S.Ct. closed that a search de- represent a radical Judge not intended to much of rant. Rives makes Bumper parture traditional from the Court’s did fact specifically Douglas holding analysis pe- of confrontation. its limit Alabama, 1074, culiar circumstances to that case. Texas, (Rives, dissenting, (1965); 546). Pointer v. p. L.Ed.2d 934 J. However 13 L.Ed.2d clearly influ- Court was Page, substantially (1965); Barber v. enced the facts Bumper. graphical- 20 L.Ed.2d Justice Mr. Stewart States, setting ly (1968); Bruton United factual : summarized the

566 1620, 123, press 20 476 past L.Ed.2d 88 S.Ct. assertions about extensive Green, 88, (1968); 219, v. 399 U.S. facts. California 400 U.S. at 91 at S.Ct.

149, 1930, 489 L.Ed.2d 27 S.Ct. 26 L.Ed.2d at Unlike Dutton (1970). given was not in circum here give sup stances which would reason to here the record In the first instance pose truthfully repre that Sellars would showing predicate of “the discloses sent Hoover’s involvement in crime. 212, Mancusi, unavailability”, at 408 U.S. 219, 89, at S.Ct. at L.Ed. with L.Ed.2d at at S.Ct. 2d at 227. Unlike Dutton con majority’s regard con- Sellars. spontaneous. fession was not 400 U.S. presumed may un- be tention Sellars at 91 S.Ct. at 27 L.Ed.2d at 227. possible invoca- available because rights leaves tion of his 5th Amendment fully distinguishable This case position prosecution in the same other Court decisions Douglas Alabama, supra, in which which no violation of confrontation has where the the court reversed a conviction Green, been found. In California su- prosecution al- record an read into the pra, provided confrontation was at leged sup- defendant’s confession of the of trial in time the cross examination posed accomplice, Loyd, refused to who the declarant about his unsworn state- grounds. testify on self-incrimination Stubbs, supra, ment. In Mancusi v. problem precise- arose The confrontation provided by opportu- frontation was ly Loyd not be cross-exam- because could nity for cross examination first at the ined as to statement. Cali- any trial. never at Here was Green, fornia v. at 399 U.S. given opportunity time confront at 26 L.Ed.2d at 499-500. Sellars his unsworn confession to confes- If the recitation of Sellars’ police. jury Instead the invited nothing more than sion amounted to in the believe truth of the confession hearsay rule then mere violation of the of the unseen and unsworn as it Sellars as a de- I the confession view came from the far more mouth credible Evans, nial of confrontation. Dutton supra. regard of Officer Stone. Without confession, if whol- But the even hearsay rule, this lack of confrontation jury ly voluntary, did not afford the denied Hoover a fair trial. evaluating satisfactory basis respect Finally, to the claim of truth The confession statement. join I “harmless error” in Part III given acknowledged nor un- was neither Judge Rives’ dissent the extent oath; never at time der Sellars that the introduction indicates of Sel- subjected as to to cross examination lars’ confession er- “harmless confession, accuracy or truth or ror.” I feel the court heed the should in fact made a state- whether he had ment; such admonition of Frankfurter Justice given jury and the never States, Bollenbach v. 607, 326 U.S. United opportunity to observe Sellars (1946) 90 L.Ed. 350 : any judgment credibility. form as to his presuming all er- “From too often Moreover this judicial confession did not con- ‘prejudicial,’ rors to be reliability swing tain the indicia of pendulum presum- need not supra. Evans, only Court found Dutton v. all to be ‘harmless’ if errors Unlike Dutton this case does involve evi- appellate court is left without dence which is “crucial” or “devastat- doubt that one who claims correc- its ing.” all, at process is, guilty. tive after Dutton this place importance L.Ed.2d 226. Unlike view of ,of does a confession by jury Rights, involve use trial has in our Bill of atmosphere Congress made in the offi- supposed coercive it is not to interrogation. cial ap- intended substitute the belief guilt pellate judges 27 L.Ed.2d at 226. Unlike of an ac- engendered Dutton this ex- cused, justifiably confession does contain however record, dead for ascertainment guilt by appropriate under judicial guidance, however cumber- may process be.”

some that 90 L.Ed.

326 U.S. at

at 356.

UNITED STATES America MALLIS, Appellant.

Abraham

No. 72-1218. Appeals,

United States Court

Third Circuit. Aug.

Submitted Under Third 12(6). Circuit Rule Sept.

Decided Devito, Bregg Alongi, Alongi, & Paul J., appellant.

Bloomfield, for N. Atty., Barry, S. Asst. U. J. John Stern, Trenton, J., U. S. Herbert J. N. Newark, J., appellee. Atty., N. ROSEN, and JAMES Before ADAMS Judges, LUONGO, District Circuit Judge. notes have been for the situation ordinarily incriminating because confessions if no are as state same against persons, initially. Posey third “the admissible existed v. United ments States, Cir., 1969, 545, names other co-indictees mentioned 5 416 F.2d against Cir., in a Sims, confession used and read also v. See United States 5 party making it, by English 1970, 258, 259; were most 434 F.2d Menendez v. judges by States, 1968, Cir., ordered to omitted. But United 5 393 F.2d judges Cir., 312; States, other the names were ordered Barton v. United 5 jury 1959, 894; read and Calloway instructed not to use F.2d 263 v. United against States, 1968, 273, the confession U.S.App.D.C. them. In Cana- 130 399 prac- 1006, 1008, da and the denied, United States the latter cert. F.2d Brennan, writing States, Cir., 1969, 292, 15. Mr. Justice tlie 5 415 F.2d cert. States, denied, 993, 1128, in Bruton v. United 391 U.S. L. 90 S.Ct. 25 397 123, 1020, (1970), 88 S.Ct. 20 L.Ed.2d 476 an Ed.2d oral confession 400 (1968), noted that “If it were true codefendant Metz was introduced jury disregarded joint tlie the reference We trial of Metz and White. found co-defendant, question no would arise un im Metz’s confession did not that “Since plicate by Clause, inculpate White, der the Confrontation because it follows that or hypothesis the case is treated if the as denied con White was not his inculpating confessor made no statement at 294. also frontation.” 415 F.2d See States, Cir., 1969, the nonconfessor.” 391 88 S. 416 Brooks v. United 5 principal’s 1044, 1051; Wapnick Ct. at 1622. If a confession F.2d v. United accomplice, 742; States, Cir., makes no reference to an 2 406 F.2d question Cir., 1969, Lipowitz, constitutional arises. Later United States opinion, 597, 601-603; Mr. Justice Brennan wrote United F.2d States Levinson, Cir., 1968, that “Evans’ oral confessions were fact 405 F.2d 987- to, Cir., actually States, 988; testified and were therefore v. United Slawek legitimate (per evidence. That 960-964 413 F.2d against Blackmun) Judge, ; evidence Evans and to that extent United now Justice properly jury Santos, Cir., 1970, during before the its 430 F.2d States deliberations.” Id. at Similarly, in White v. United being (1968); tried side side as L.Ed.2d 448 trial, Only on hav- Hearsay, Bruton. Hoover was Comment, The Confrontation granted Problems, La. severance and Related Guarantee however, principals principals. ac- Texas, Trial of (1970). 651, 665 L.Rev. inherently against complices different from inculpatory references permits coconspirators jury, trial eodefendants. accomplice heard to be an subject coconspirators coequals in limiting are the While instructions as a matter criminal regard as crime of substantive the whole court to law, principals accomplices not. only are the declarant Further, re- admission this case State was whether fessor. issue guilt pre- quired prove as violated oral confession of Sellars’ requisite as to the conviction Hoover Amend- and Fourteenth Hoover’s Sixth pre- accomplice; no such rights. did not. that it ment hold We requisite in Bruton. panel concluded that Finally, an of the testi- examination instructions to the could “No mony during taken the voir dire exami- damaging prejudicial eliminated the jurors prospective nation of certain F.2d at 923. effect on the defense.” 439 which the defendant took a bill ex- authority panel for the hold cited no ception questioning shows extensive only ing. Indeed, holding is valid virtually every juror ability States, Bruton v. United only in consider as evidence confessions (1968), is L.Ed.2d 476 accordance instructions. Court’s applicable. Bruton was not cited Nothing in record convinces us

Notes

notes in an Evans, tion later Dutton arose oft-quoted beyond statement, “is L.Ed.2d greatest legal engine doubt the in ever (1970), emanated from this Cir- discovery vented for the of truth.” V Dutton, cuit. Mr. Justice Stewart’s Wigmore, 1367, p. (3d Evidence § plurality stage opinion marked a new 1940). ed. But to hold that it is the theory development only method to discover the truth would frontation clause relation to rules create an absolute barrier to admis recog- evidence. Mr. Stewart Justice any hearsay sion of evidence. It is obvi nized “that the Con- Sixth Amendment’s ous that if the framers of the Constitu evidentiary frontation Clause protect tion had desired to hearsay rule stem from the same roots. “cross-examination” rather than “con equated But this Court has never

notes Texas to this case not part, adopted, English (majority opin- majority has at least contested practice blanking panel 528) out names of sustained ion at and is Wigmore, opinion (439 923). VII coindictees. See Evidence F.2d (3d 2100(d) ed.). § 16, supra. see But note testify, doubt that lars available could the entertained a reasonable State constitutionally principals Schepps, had robbed introduce his confession jury robbery Hoover. Yet had show that the com- could not convict been jurors Evans inno- in Bruton found mitted? Does Texas violate rule have con- in that cent could the Sixth Amendment it nonetheless allows majority’s incriminating accomplice Hence, the re- victed Bruton. statements support its ration- admitted deletion liance on Bruton to be fragment where their And, specious. is the ale is confession? right abridged of confrontation where argues Second, Hoov accomplice could have references rights not er’s amendment were sixth Texas deleted in consonance with jury was allowed violated when rendering the law and without remainder confes hear the Sellars’ references unintelligible, confession but tending implicate him as an ac sion not so deleted? my view, applying complice. Texas (1) Validity Application rule confession of so as to admit the the Constitu Rule an Available witness violates the Texas available tion, although solely to it admitted Declarant. (the present prove but that he witness law, in Under case one Texas ele- testifying) adjunct not committed proof accomplice ment of the crime of declarant-prin crime.20 Even where cipal beyond prin- that the reasonable doubt unavailable, legitimately his con underlying cipals robbery. committed the unless there are is not fession adequate admissible every Hoover had himself defend indicia that out-of-court showing a reasonable doubt as Assuming arguendo are true. statements Schepps’ principals’ commission could intro confession be Sellars’ confession, robbery. prove the rob Hence even duced to bery, his commission of employed im it could in the limited tended to sense plicate if excision of even robbery, served wit- establish the bear inculpatory render the references would Accordingly, ness Hoover. Hoov- Moreover, fragmentary.21 portion only er attacks the Texas rule where as this ease to hear Texas rule which allows (allowing to Hoover to the references implicating as an accom- him references

notes ignore” objection- did or did not testimony. 13G, able 301 T.N. at 88 35. To similar effect see the remarks of S.Ct. 1G2S. Mr. Marshall Justice his dissent Dutton, supra, at 102 n. “ Schepps State, Tex.Cr.App. And v. S.Ct. at 226: t remains [I] (three jus duty 432 S.W.2d 926 of five confront criminal defendant concurring), against upon tices the Texas court over the witnesses him falls prior position adopting State, ruled its the stated here the State was allowed Moreover, all it clear wheth- stand and affirmed his confes- is not earlier had would have testified sion. er Sellars At the time called Hoover him. yet trial, Hoover’s Sellars III. Harmless Error might assert- Hence well have tried. original states against privilege fifth amendment ed his “panel’s cryptic rejection of the ‘harm- Douglas Ala- self-incrimination. *** patently error’ less rule bama, supra, held Court (opinion 539); p. I erroneous” must that, takes the stand where witness similarly spurn majority’s inade- Amendment, prose- pleads the Fifth quately supported statement even introduce, obliquely, cution cannot even from evi- aside Sellars’ confession the To allow the witness’ confession. dence was “overwhelm- to introduce the State ing” 533) as as “manifest {id. well subvert in this case indirection overpowering” 537). It is {id. at Douglas. the rule necessary to consider “harmless er- respect question ror” with wheth- vein, In that same even Sellars principals er the testified, named the indict- would have it not clear robbery. Schepps’ ment given right committed the Hoover would have been It is sufficient to demonstrate that the Ordinarily, one of cross-examination. error was not harmless insofar as Sel- cannot Only his witness. cross-examine own implicated lars’ confession Hoover. judge, trial discre- when the tion, declares the witness hostile does error” “harmless rule as relates right of Of cross-examination inure. expounded error constitutional majority points course, out, cross- Chapman upon California, synonymous examination is not with con- L.Ed.2d S.Ct. frontation. Rather confrontation question 705: “‘The is whether there broader. It includes the of cross- possibility is a reasonable evi- that the Texas, g., examination. Pointer v. E. complained might dence have con- supra, U.S. at ” conviction,’ quoting tributed And if afford- cross-examination is not Fahy Connecticut, 1964, reliability ed, some other indicia 85, 86-87, 84 L.Ed.2d must be declarant’s statements mine). Continuing, (emphasis

Case Details

Case Name: Sam Hoover v. Dr. George J. Beto, Director, Texas Department of Corrections

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Dec 18, 1972

Citation: 467 F.2d 516

Docket Number: 29587

Court Abbreviation: 5th Cir.