*1 assigned, it is For reasons ordered appeal transferred
that this Circuit, Appeal, the record to be First appellant within
filed that court days de-
thirty date on which this final, ap-
cree become otherwise the shall
peal shall be dismissed.
STATE Louisiana
v.
John HOPPER and Joe A. Woodard. T.
No. 48170. 20,
Jan. 1969.
Rehearing 24, Feb. Denied Russell, U.S.
L.Ed.2d
decided
1968.” 392
June
Amendment
the United States Constitu-
as well
signed
neither defendant
tion.1
the statements.
quoted
These confessions are
in full in our
specifically
The Bruton decision
overrul-
original opinion.
Hopper,
See State v.
holding
ed the Court’s 1957
in Delli Paoli
La.
pages
203 So.2d
at
T03-111
States,
v. United
352 U.S.
Reports
pages
Louisiana
and at
232-
retroac-
1 L.Ed.2d
made
Reporter.
234 of the Southern
case.
Roberts
thereafter
tive
Woodard’s statement was to the effect
bar,
at
Woodard
In the case
Joe
that he and his codefendant
had
years
age re-
Hopper,
John
Club,
dancing
drinking
at the Pelican
Tech
at Louisiana
students
spectively, were
there,
deceased,
Beeson,
and while
Marksville,
They had come to
in Ruston.
young
Jimmy
man named
Nobles had
students, where
along with two other
words,
accusing
the latter
Beeson of
few
Motel
Ranch House
at the
secured
room
taking
whiskey.
some
John
arrival,
went
and then
upon their
pouring
a drink
saw Beeson
himself
Saturday night
ques-
Pelican Club on
bought
the fifth
and told
occurring at
Following
incident
tion.
whiskey.
Hopper later
to drink his
When
instant
the Pelican Club which led
*3
drink, he became
saw Beeson take another
ex-
prosecution, the
defendants were
two
stated, “By
way
angry.
Woodard then
orally
separately and
confessed to
amined
they
going
they
acting thought
were
I
were
killing
Major
of Beeson.
Henderson
they
They
fight.
left
out side
where
presence
questioned
first
Woodard in
some
and started out side.” He and
were
Bordelon,
Deputy
Chief Dubea and with
Hopper and Bee-
others followed and saw
Attorney present during part
the District
by
arguing like
“standing
the truck
son
Thereafter,
questioning.
Major
they
fight.
going
were
Just
questioned Hopper
pres-
Henderson
Johnny
hit
got
before I
there the deceased
coroner,
ence
Kaufman,
of the
Dr.
and
(Hopper) on the side of the head with
Major
Chief Dubea.
Henderson took notes
glass.
up
grabbed the de-
I then ran
and
during
questioning,
reducing the de-
holding
Johnny hit
fendants’
ceased.
I was
him and
oral confessions
writing
implicated
which each
the other
standing
in the act
him once or twice while he was
Amendment,
provides
part:
Texas,
This
which
U.S.
prosecutions,
“In all
923; Douglas
Alabama,
the accused
L.Ed.2d
enjoy
shall
934;
to be con
13 L.Ed.2d
S.Ct.
fronted with
Russell,
the witnesses
him
and Roberts v.
392 U.S.
* * * ”,
applicable
is made
to the States
each admitted Procedure, Article Code of Criminal separate con- the same criminal provides: his code- the statement of duct recited in judgment ruling “A or shall not fendant. by any appellate any reversed court on under the we view the case When ground opinion court unless presented, we find a circumstances here record, after an examination entire rights constitutional technical violation of appears complained it that the error estimation, which, injure did or in our not probably miscarriage has resulted in prejudice defendant either before justice, prejudicial to the substantial way deprive significant or either of accused, rights of the or constitutes that was all fair trial. And substantial violation constitutional were entitled. Lutwak v. Unit defendants statutory right.” (Italics ours) States, ed though the members of L.Ed. 593. Even accordingly It seen we are jury might able dis not have been required judgment of con to reverse inculpation of each confessor’s associate the trial viction unless error constitutes a determining the latter’s codefendant substantial violation of a constitutional guilt (notwithstanding instructions right or that the accused has otherwise injury judge), this caused no Here, prejudiced. as we have above rights stated, of each nonconfessor forasmuch dep opinion we are of the that the each confessed nonconfessor himself rivation defendant’s inconsequential right was insubstantial same conduct and subscribed to the factually no defendant since each defendant suffered related other con words, appears prejudice incriminating own it us in view of his fession. In other was committed overplay is an of constitutional admissions the crime *5 in the same manner and under the same culpating petitioner, in the context aof by circumstances as stated his codefendant. joint trial we accept cannot limiting in- adequate structions as an pe- substitute for
Considering then this in light case the titioner’s constitutional of cross-ex- decision, the we are directed to amination.” by Supreme Court, do we feel that the Here, however, in the context
conclusion we have reached in conform- presented, ity circumstances principle with the basic we have that the code- fendants’ pronouncement admissions standing by holding is founded. side side For in with each acknowledging that the Delli Paoli confessor in long- doctrine could no own confession the same criminal er be in conduct followed the context of cases like Bruton, by ascribed to him Supreme other. The Court hear- was concerned principally say statements are corroborated each the doubtful effectiveness cautionary extrajudicial codefendant’s statement or judge to instructions situation, jury vice versa. Under it is that a such codefendant’s confession wholly unnecessary speculate culpating the to whether codefendant had other disregarded cautionary instructions determining the latter’s may effectively prevented not have or innocence. The Court noted that had jury disassociating been recognized Denno, from confessor’s v. Jackson inculpation codefendant determin- L.Ed.2d For, it, guilt. ing latter’s see A.L.R.3d as we there are some contexts hearsay injury in which caused the risk that no did not jury not, will deprive cannot, either defendant of a substantial cautionary follow such instructions “ * * * right because, if each de- great consequences is so and the stand, fendant had taken the it is difficult defendant, failure vital so perceive what benefit either could have practical and jury human limitations of the gained cross-examining the other anent system ignored.” And, cannot be pro- the same criminal conduct which each claiming that pre- such a context was already voluntarily confessed extra- Bruton, sented in where incriminating judicially, extrajudicial statements of the codefend- standing
ant side by side with the other We have assiduously examined this case deliberately accused spread are before all aspects persuaded and are that the joint trial, in a the Court concluded trial of the defendants has been fair “ that, Despite concededly every fine, respect. defendants have clear defense; instructions no concert committed Evans’ hearsay inadmissible evidence in- separately vicious to which crime
voluntarily guilt in detailed penitentiary confessed at hard labor the' state inculpating each other. Under charging’ indictment them with murder herein, we presented hold Joseph the circumstances Beeson. matter now be ruling in Bruton States pursuant Supreme fore us to a decree of the require that defendants’ convic- States, does not vacating of the United said granted. new trial tions be reversed judgment remanding to this *6 court “for further in the consideration original assigned, the our For reasons light States, of Bruton v. United 391 U.S. opinion affirming sen- the convictions and 123, 1620, 476, 88 20 S.Ct. and L.Ed.2d judg- the final tences herein reinstated as Russell, 293, 392 88 Roberts v. U.S. S.Ct. Court. ment of this 1100, 10, 1921, 20 L.Ed.2d decided June 1968,” 392 88 U.S. 20 L.Ed. S.Ct. FOURNET, (dissenting). Chief Justice 2d 1347. assigned me originally to This case was reversing the In former case in Bruton’s approval of the failing to receive the robbery, having postal conviction for armed opinion I majority the had court Evans,1 jointly with one whose tried assigned prepared, the was then case implicating Bruton was admitted majority opinion. Inasmuch author objection and into evidence over Bruton’s presents my I opinion fully as that views stand, Supreme who did not take dissenting opinion in submit same as States, reversed Delli Court Paoli case criticism of this followed 294, 1 L.Ed.2d majority opinion. despite instructions and held that FOURNET, implicating statements Chief Justice. guilt or determining the innocence sequel is a to the case of State This co- Bruton, joint trial of at the admission Hopper and Wood Louisiana v. Joe John impli- extrajudicial confession defendant’s ard, wherein we La. 203 So.2d right of cross- cating violated Bruton’s him man affirmed defendants’ conviction of the confron- guaranteed 50 months slaughter sentence serve examination the St. a confession to were convicted followed Bruton and Evans pre- given during police postal he was trial a Louis wherein district court and warning liminary inspector the absence of and in that Evans confessed testified upheld appellate Bru- The court he committed the counsel. to him that and Bruton robbery. Appeal had the trial for the conviction because ton’s Eighth Evans’ confession Evans’ set aside conviction instructed Circuit determining disregarded ground Bru- to be that his oral confession had guilt or innocence. have been received into evidence ton’s should not tation clause of the Sixth Amendment.2 boy Jimmy named words, Nobles had a few This decision was made retroactive accusing latter taking Beeson of some Roberts case. whiskey. Hopper saw Beeson John pouring himself a drink from he at the fifth bar Woodard and Joe bought and told him not Hopper, years to drink his respectively, John whiskey. When later saw were Beeson students at Louisiana Tech in Ruston take drink, another angry. and had he became Marksville, along come to with stated, Woodard students, “By way they then two other getting a at the room were acting thought they I Ranch upon going House Motel were their arrival and fight. They outside to then left going where Pelican Club on were and Saturday started outside.” Pie night question. some Following the Plopper others followed and saw incident Bee- leading to prosecution the instant “standing son by the truck like occurred at Pelican Club the two going fight. defendants were before separately examined Just got there the Major Johnny deceased hit (Hopper) Henderson first questioning Wood- on the side of the glass. head with a presence Bordelon, ard in Deputy up then ran grabbed Chief attorney Dubea and deceased. district with.the holding present Johnny part him hit once during the questioning. or twice while Thereafter, Major standing up. We questioned Plenderson *7 then pushed Hopper him down between the con presence coroner, in the the crete slab and the truck. Then we Kaufman, Dr. both Major Chief Dubea. hit him 4 or S times each while he was during question- Henderson took notes down. Most of the on the ing, blows landed reducing the defendants’ oral confes- head. I then kicked him on the side writing to implicated sions in which each Johnny the head. couple hit him a act other investigation, as himself, well as times but after I neither defendant head kicked Then him. signed the statements. we saw lot of blood on the concrete Upon slab.” observing the blood ran
Woodard’s statement to effect was parked where the car was and immedi that he and his codefendant had been danc- ately returned to the motel ing Club, with their drinking at the Pelican there, Beeson, deceased, while and a friends.3
2. Amendment
United States Constitution
3. Woodard’s statement
was introduced
provides
part:
prose-
all
“In
exhibit
State
No. 10.
cutions,
enjoy
the accused shall
* *
to be confronted with
wit-
* *
nesses
him
House
They
the Ranch
they had
all returned to
Hopper in effect stated
Pelican
drinking
dancing
Motel.4
at
or two occa-
one
and he noticed on
Club
particulars filed
a bill of
response
after
table
returned
his
when he
sions
the State indicated
the defendants
whiskey would
dancing that
his
some of
only
defendants
made
statements
boys at
missing.
were two other
There
oral,
Major Henderson
were
friends
Hopper and
and when
the table
copies
gave
made written notes and
up,
boys got
all leav-
ready
go
got
these
the de-
unsigned
to counsel
that,
further
together.
stated
ing
filed a motion
then
Defendants
fendants.
as we
boys
talking
started
“One of
“any evi-
suppress
these statements
leaning on
an-
were
walked out. We
any
including
dence,
physical,
testimonial
boy
out
who turned
I mean
other.
confession,
statement,
admission or
kept walking toward
We
be Beeson.
kind”, which,
denied.
hearing
got
I asked
we
outside
outside and when
for sever-
filed a motion
Thereafter each
any whiskey
getting
if
him he had been
contention
ance,
alleging, in addition
stopped walking and
the table. We
off
to and
antagonistic
that his
defenses
heard
each other.
I then
facing
started
co-defend-
contradictory
with those
turned
coming up
behind.
I
someone
ant,
made
that Mover’s co-defendant
was, then Beeson
who it
around to see
presence which the
of his
statement outside
my
with a
hit me
the left side of
head
prose-
against Mover in
State will use
I
what was.
glass or bottle.
don’t know
defendant
cution
cause.” Each
of this
hitting
automatically
I
turned
started
exception following
reserved a bill of
I
happen.
all
him.
I don’t know what
also when
overruling of his motion and
me with
hitting him after he hit
remember
into evidence
statements were introduced
thing
glass.
I remember he
The next
objection. They also reserved
over their
hitting
was down and was
exception
other ad;
when certain
bills of
got up
face
fist.
When
Joe
made
allegedly
confessions
missions and/or
(Woodard) jumped
then
let’s
back.
said
over
into evidence
them were admitted
go get
get
objection.5
out
the car and
of here.”
Hopper’s
introduced
Dubea then
at
the Pelican?” Chief
boy
State Exhibit No. 11.
him the
was dead to which
formed
*8
a)
responded,
Dubea
he
“We knew
Chief
testified that when
he testified Woodard
beating
suspects
given
good
he
went to the motel to arrest
we
him a
but we
had
if
asked Woodard
his car
that
know
had killed him.”
was
didn’t
we
parked
“Tes,
b)
said,
Trooper
was
and
that he
outside
he
Bordelon testified
affirmatively
responded
Trooper
sir.” He
the motel
also
and
Lemoine
went
you
fight
him,
pick up Hopper
when he asked
“Wore
Lemoine en-
in
and that
contend,
stated
defendants
tute for their
of cross-examination
Counsel
“recipro-
brief,
accused are
that the
under
Confrontation Clause
cally aggrieved
denial
cross-examina-
Sixth Amendment.”
not
Clause
under the Confrontation
tion
hand,
On the other
counsel for the State
exhibit Number
only
Trial
as to State’s
that the
contends
Bruton
con-
statements)
also
(the unsigned
and
trolling
for the
the de-
here
statements of
extrajudicial
the other
similar,
“substantially
are
mutual-
fendants
appearing
5)
(footnote
confessions
and/or
ly inculpating
noncontradictory”
and
testimony be-
throughout
record
“precludes
therefore
the ‘substantial threat
opening
prosecution’s
jury,
fore
flaw’
the Bruton
serious
and Roberts
argument
closing
statement and
that
decisions
would otherwise
under
arise
steadfastly maintain
jury.
Defendants
Confrontation Clause
the Sixth
they
were each entitled
severance
that
Amendment of
States Constitu-
prejudicial
escape
order to
effect
alternative,
tion.” In the
urged
it is
“that
the co-defendant’s out-of-court statements
if,
ruling
Bruton
were each
maintain that
Hopper
error
exists
that
was denied the
that
denied
to the extent
cross-examination
right to cross-examine Woodard on Wood-
incriminating
confession
ard’s confessions and Woodard
denied
was
implicated
defendant.
the non-declarant
Hopper
Hop-
to cross-examine
Additionally, they
each maintain that
per’s confessions,
respectfully
it is
submit-
judge’s
trial
instructions
ted
flexibility
—not
under the
allowed
to consider the
of one
defendant
ruling
error
harmless
inadequate
rule
other' —is
substi-
should
applied
in the instant case
tered
motel room first and he heard
across
the desk
where
she
Lemoine ask him
he
been
if
had
seated and she could see Woodard seated
Club,
there,
if
Pelican
he
had
trouble
in the next room. She testified she looked
fight,
Hopper boy
said, “Why?”
and if he had
in a
to which he
at the
each,
shrugged
answered to
“Yes.” He
said,
then advised
his shoulders and
“Just
n drunk.”
him he was under arrest —the Sheriff’s
Hopper
d)
office wanted him for murder.
Reverend John Bell
testified
said,
“Oh,
God,
jail
we
what have
done.”
while in
to administer
to those need-
c)
Duncan,
ing spiritual
Mrs.
mother of
the vic-
assistance he was in the
tim,
adjacent
hallway
testified that when she reached the
to the cells and over-
radio room of the sheriff’s office there
heard a conversation between the defend-
people
party
were a number of
she did not
ants
third
unidentified
'
know, except one,
say,
and she
heard
“I
he heard Woodard
wish
brother-in-law,
stomp
form her
her,
who was with
hell
had had time to
another
“Ralph
(Beeson)
dead,
fel-
these
one to death.”
lows
him.”
killed
seated
*9
complained
-probably
(1)
Louisiana
“has
in Art. 921 of the
error
of
forth
as set
(2)
justice,”
miscarriage
a
of
Procedure.”
resulted in
of Criminal
Code
rights
“is
of
prejudicial
substantial
did
Bruton case
While the court
a sub-
accused,”
(3)
or
"constihites
in-
every
of
admission
recognize that “not
or
violation
a constitutional
stantial
of
can
hearsay
other evidence
or
admissible
statutory right.”
*”
*
error
to be reversible
be considered
“
trial
ad-
fair
a
of this case
is entitled to
Under the facts
and ‘A defendant
one’,”
respective
final conclu-
state-
perfect
in its
of the defendants’
but not a
mission
observed, “Here the introduction
ments,
were made outside of
sion
of
co-defendant,
threat
posed a substantial
presence
Evans’
of his
wit-
having taken the witness
right
neither defendant
petitioner’s
confront
we
of
him,
deprived
hazard
and this
a
against
stand,
nesses
the defendants
concededly
cross-examination,
Despite the
a
ignore.
cannot
of
clause
jury to
to the
the confrontation
guaranteed
clear instructions
state,7
in-
hearsay
evidence
of this
Evans’ inadmissible
of the Constitution
aof
Con-
the context
United States
culpating petitioner,
6th Amendment of
accept
limiting
applied
states
we cannot
trial
which is
stitution
adequate
Amendment
substitute
14th
provisions
structions as an
of
unquestionably
cross-
a
petitioner’s
thereof,
constitutional
substan-
which is
of
is the same as
right.
examination. The effect
tial
all.”
if
at
there had been no instruction
consideration, there-
poses for our
This
added.)
(Emphasis
in its
fore,
by the State
the issue raised
error,
any under
procedure in the trial
if
plea
Under our rules of
that the
alternative
harmless,
prescribed
of
case is
particular
facts
this
of
cases in
state
this
de-
of each
claiming
the statement
in Article
the Code of Criminal
921 of
version
Procedure,
simply to relate his
reproduced in full in footnote
fendant
incident
place during
re-
appellate
precluded from
took
court is
what
similar, mu-
question
“substantially
are
judgment
of a lower
versing
ruling
or
noncontradictory”
tually inculpating
opinion
-of the court
court unless
rights
accused,
or constitutes
Procedure:
Art.
Code
Criminal
judgment
ruling
re-
“A
shall not
substantial
violation of
or
any ground
statutory right.”
appellate
versed
court on
opinion
unless in the
of the court after
“
* *
ap-
record,
9, provides:
7. Art.
Sec.
the entire
an examination of
every
complained
pears
shall have
of has
accused
right
instance
the error
jus-
miscarriage
probably
with the witnesses
to be confronted
resulted
him;
tice,
prejudicial
substantial
thereby precluding the “substantial
threat
confrontation and we
say
are unable to
and serious flaw”
case.
the instructions to disregard the confession
support
Counsel cite in
decision
thereof a
of one in determining
or innocence
jurisdiction
original
court
New of the other made the constitutional error
York, People DeVine, Sup.,
v.
N.Y.S.
beyond
“harmless
a reasonable doubt” with
2d 691.
in the meaning
California,
Chapman
States and the several state added.) (Emphasis than that witnesses statements. of confrontation of conceding the rule But him. cursory A the statements examination of purposes argument, apply does immediately the two defendants will the ma- holding of agree cannot with the they are identical or that “each not show jority that we the case “When view himself confessed and nonconfessor had presented, find a we circumstances conduct the same criminal subscribed to rights technical violation in his con- by the other defendant related which, estimation, injure or in our did not in his state- fession.” Woodard relates prejudice either defendant before pouring Hopper Beeson ment when saw deprive significant way either bought and 5th he had a drink though Even a fair trial. he taking drink later saw him another jury might have been members of the way they were “by the angry became in- able each confessor’s .to disassociate thought going outside acting determining culpation codefendant in of his beginning fight,” whereas (notwithstanding the the latter’s portrays a different no judge), this caused structions re- he state when picture. While does injury rights of each nonconfessor dancing that turning his table after him- forasmuch as each nonconfessor whiskey missing, does of his some same and subscribed self confessed *11 imply fight that was con- therein a the other de- by conduct related templated left friends when he with his add- (Emphasis in fendant confession." boys (one Beeson) that had being and two ed.) according to his at their table for he) (Beeson and as out version walked appears foregoing from As it do not “leaning on one another.” were to be similar statements the innumerable it a questioned it that was think could be majority opinion to throughout found self-preservation impulse of for natural as, effect, de- that “both the same such when, warn- without to strike back happenings fendants recounted head side he on the ing, was struck state- night substantially identical fatal while by glass or bottle Beeson guilt admitted ments which way. He was looking the other he was “ ” * * * * * joint stated, reveal which do as justified self-defense to * * hitting automatically started turned and battery “I on Beeson assault and Moreover, any words fail find de- him.” readily seen that the whole it can be Hopper’s state- premise or words a false when combination of cision is based on ment be antagonistic or confession from which can fenses contradic- tory while hitting that he deduced Beeson with those co-defendant by being latter held Woodard or “Mover’s co-defendant made deceased, presence that he show struck the outside of his State by Woodard, prosecution stated after Woodard will use against Mover head, nor, my kicked Beeson in the opinion as found of this In cause.” this motion majority, there was “a should granted. have been battery Beeson”, assault and rather reasons, For respectfully the foregoing spontaneous the statement reflects it awas dissent. part being on his reaction struck BARHAM, (dissenting). a glass the deceased with or bottle. Justice here, I, presented Under situation The Louisiana Constitution1 and the therefore, agree held in the ma- cannot United States Constitution establish the opinion, wholly jority unnecessary “It of an accused to be confronted with speculate cautionary whether the witnesses him. In Delli Paoli may judge ef- structions of the not have States, v. United U.S. 77 S.Ct. prevented fectively disas- 1 L.Ed.2d it was held that in the inculpation sociating confessor’s trial jointly of those accused the admission determining his codefendant in the latter’s pretrial of one defendant’s statement or guilt.” prejudicial I have no illusions of confession did not violate the other de effect Woodard’s statement had on the confrontation, fendant’s on the considering Hopper’s case. More- theory that a jury would follow clear over, I do not that what believe does or judge instructions does not constitute a substantial violation defendant’s statement in considering the statutory right or constitutional should or innocence of other. The re jury. determined trial States, cent case of Bruton v. United opinion there can be “insub- no 20 L.Ed.2d inconsequential” stantial and violation specifically jurisprudence, overruled " * * * right. a constitutional stating: accept we cannot limiting adequate as an sub instructions apt It to observe that each defend- petitioner’s stitute for severance, ant alleging, filed a motion * * cross-examination Su in addition to the that his de- contention *12 1. 9: of Art. Sec. 2. La.Const. U.S.Const. Amend. VI: “In all criminal “ * * * every prosecutions, enjoy The accused in instance the accused shall the shall have the to bo with confronted to be confronted with the * * against against the him witnesses witnesses him codefendant, that the preme in that concluded confession of case volved one in instant case this hear judge’s instructions to accused made statements, inculpatory does say according the other accused and evidence “* * * majority from the in erase that evidence each defendant not fact voluntarily separate in jurors’ over admitted state- minds their deliberations innocence, and that ment guilt or the same criminal conduct recited that accused’s evidence is a denial in the statement of his codefendant”.3 the admission of such all witness of his to confrontation majority’s I disagree with the conclusion es him. that these two admit the same statements only two defendants criminal The reflect Bruton one of conduct. In facts, views, confessed, different dif- and that confession was different and had culpability and degrees ferent criminal- in the trial of codefendants. used Hop- ity. present gave The statement of defendants recitals of both defendants,4 standing statements, per, admitted statements were one both trial, alone, jury ex- might the trial minds used in any responsibil- him each defendant’s onerate charged the ity plea disregarded in de- under a of self-defense. Certain- statement should alone, ly, termining innocence of when statement considered or beginning apply justified at the majority refuses he was The other. upon battery repelling committed United States here fracas of Bruton v. rule contrary upon theory distinguishable are deceased cases him— statement, like majority’s finding that his Bruton upon their facts: Whereas deceased]. [the rel. turned out be Beeson States ex Catanzaro See United 1968), walking (C.C.A.2 kept Mancusi, toward the outside F.2d We got apply apparently I if he when we outside asked him refused any whiskey getting off himself confessed because Oatanzaro walking sup- stopped We and started with and table. facing interlocked his confession ported I heard some each other. then of the codefendant. the confession . ' coming up I from behind. turned that where the That court theorized only it hit con to see who was then Beeson codefendant’s around not has heard confession, my head me glass the left side with own but the defendant’s fession prejudicial, I don’t know what is not bottle. lack of tlie confrontation automatically apply. ; This I turned and started not was. hitting Bruton does hap- upon course, binding decision, I what all him. don’t know pen. hitting us, hold I remember I believe the event thing glass. contrary ing next law hit me with erroneous I I hit- remember he was down and was Bruton. ting pertinently fist. When reads: him the face 4. This “ *** jumped boys up got talk- back. [Woodard] started Joe One leaning go get get ing car and then said let’s tire out. We were wo walked boy who out of here.” mean one another. *13 “ Woodard’s, upon a weighs jurors. the minds of the reveal[s] n ” battery the de- on experience assault and The as law well as human rec- fair, that ognizes ceased. To must conclude repeated may that facts which are by Hopper’s related carry weight under the facts state- greater related than those by only. a return a ment could verdict of not pre- one witness A codefendant’s by Hopper guilty determining that used no trial greatly statement which is similar to necessary repel force than supportive more and even of the own accused’s battery. However, pretrial Woodard’s statement is inculpatory statement tends to veri- Hopper fy that he held deceased while hit weight and add inculpatory to those him, pushed both him down recitals and is additional evidence head, several struck him times the accused in Also, the minds of the jury. that Woodard then kicked him on the head an right accused pretrial has a to recant a continued strike there- does, statement and often but such a re- “ * * * after, leaving a lot of whole will cantation be of little benefit if he is deprived blood on the concrete slab”. This statement right of the effectually at- totally damning is conduct of both pretrial tack a codefendant’s statement away Hopper’s defendants and takes through confrontation and cross-examina- any exculpatory say statement effect. To Therefore, tion. even under the facts under these circumstances that the state- majority found the admission of ment reflects the same criminal conduct right codefendants’ statements without the and, particularly, more prejudice Woodard’s is obvious of confrontation prejudicial Hopper, was not is would remove this case from the harmless judgment facts. How- erroneous on the error rule. ever, later, I will discuss am of majority by applying The has erred opinion that the “harmless error” doctrine this case the Louisiana rule for harmless inap- requiring showing prejudice a is out error set in Article 921 of our Code of plicable, ground and I will therefore Criminal Procedure. areWe here con upon this dissent the above factual distinc- cerned with the violation federal as tion. guarantee, and well a state constitutional
Nevertheless,
firmly
even if the statements of
it is
established that in such cases
re-
these codefendants were similar in all
federal harmless error
rule must be
California,
spects,
applied. Chapman
we must remember that
than
386 U.S.
more
v.
S.Ct. 824,
Since doctrine Supreme enunciated the United States respectfully I therefore dissent. may not be invoked when a substan- Rehearing denied. tial federal constitutional has been denied, only necessary it determine J., BARHAM, FOURNET, J., and C. to confrontation of wit-
whether rehearing opinion a should are of the a fair nesses is so essential to trial that 'is, guarantees like such granted. as the counsel) Turney Payne (right See, example, Arkansas, ; v. L.Ed.2d Ohio, L.Ed.2d 273 U.S. 47 S.Ct. (coerced judge). confession); (impartial Gideon v. Wain L.Ed. 749 wright, 372 U.S.