UNITED STATES of America, Appellee, v. James Arthur PARKER, Appellant. UNITED STATES of America, Appellee, v. Melvin WARD, Appellant. UNITED STATES of America, Appellee, v. Bobby TODD, Appellant.
Nos. 79-1728, 79-1730 and 79-1746.
United States Court of Appeals, Eighth Circuit.
Decided April 14, 1980.
Rehearing in Nos. 79-1728 and 79-1746 Denied June 23, 1980.
298
Submitted Dec. 5, 1979.
These consolidated appeals come to us from the United States District Court for the Western District of Missouri. Melvin Ward, Bobby Todd and James Parker each appeal from jury verdicts of guilty on counts of robbery, felony murder and premeditated murder. We affirm the convictions of Ward and reverse the convictions of Todd and Parker.
Ray C. Conrad, Jr., Asst. Federal Public Defender, Springfield, Mo., argued, Thomas M. Bradshaw, Acting Federal Public Defender, Kansas City, Mo., on brief, for appellant, Parker.
Donald R. Cooley, Smith & Cooley, Springfield, Mo., for appellant, Ward.
Ben K. Upp, Springfield, Mo., for appellant, Todd.
Robert G. Ulrich, Asst. U. S. Atty., and Michael A. Jones, Asst. U. S. Atty., Springfield, Mo., argued, Ronald S. Reed, Jr., U. S. Atty., Kansas City, Mo., on brief, for appellee.
Before HEANEY, BRIGHT and ROSS, Circuit Judges.
I
THE FACTS
On April 30, 1977, a hunter discovered the necrotic remains of Frederick E. Williams in a remote wooded area within the confines of Fort Leonard Wood, Missouri. Williams had been a private first class in the army stationed at Fort Leonard Wood. He had returned from Christmas leave on January 2, 1977, but his whereabouts had been unknown since about January 5, 1977.1
On May 2, 1977, Dr. Gerald A. Rappe, an army pathologist, performed an autopsy and determined that Williams had been dead for at least six weeks to two months. He also discovered “a massive hole lined by a real straight line fracture” in the right side of Williams’ skull. He determined that this hole was not the result of natural decomposition but rather was the result of a “horrendous blow” struck from behind with a “long * * * * * * lean instrument, a heavy unyielding instrument, like a pipe or a tire iron or something very strong and very unyielding.” He could not positively determine, however, whether the blow had been struck before or after death and he listed the cause of death as unknown. Nevertheless, he noted that the skull fracture was “extremely suspicious, * * * most probably man made and * * * most probably a lethal fracture if made prior to death.”
Almost two years after Williams’ body was found, each of the three defendants
On June 29, 1979, the district court consolidated for trial the indictments against Ward, Todd and Parker. The defendants’ motions for severance were denied and their cases were jointly tried to a jury. All of their statements were read to the jury, each with instructions that the statement could be used as evidence only against the issuing defendant. All of the statements were partially redacted; the names of the codefendants were erased and replaced with letters. None of the defendants testified at trial. The jury returned verdicts against all three defendants on the three charges submitted.2
II
THE BRUTON-PARKER ISSUE
The principal issue raised on appeal is whether the trial court erred in refusing to sever these cases before trial and in admit-
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court established the general principle that the admission in a joint trial of the “powerfully incriminating extrajudicial statements of a codefendant” not subject to cross-examination impermissibly infringes on the constitutional rights of other defendants. Id. at 135-136, 88 S.Ct. at 1628. The protective instruction to the jury that the statement could be used only against its issuer was held insufficient to cure the defect: “[W]e cannot accept limiting instructions as an adequate substitute for petitioner‘s constitutional right of cross-examination.” Id. at 137, 88 S.Ct. at 1628.
In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), it was established that a Bruton error, the admission of the statement of a nontestifying codefendant, might nevertheless not require reversal if the error was harmless beyond a reasonable doubt. This harmless error doctrine has also been invoked in cases involving so-called “interlocking confessions.” See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972), and United States v. Walton, 538 F.2d 1348 (8th Cir.), cert. denied, 429 U.S. 1025, 97 S.Ct. 647, 50 L.Ed.2d 628 (1976).3 In such cases, we must determine, in the light of the Harrington/Schneble standard, whether “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction.” Schneble v. Florida, supra, 405 U.S. at 432, 92 S.Ct. at 1060. If so,
the conviction must be reversed. If not, the conviction may be affirmed.
In Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), the Supreme Court again faced the Sixth Amendment questions presented by interlocking confessions. Four of the Justices appeared willing to forsake the harmless error inquiry for the broader proposition that the admission of interlocking confessions with proper limiting instructions simply does not violate the Constitution. Id., at 69-75, 99 S.Ct. at 2137-2140, 60 L.Ed.2d at 721-725 (Rehnquist, J., with Burger, C. J., Stewart, J. and White, J.). They distinguished the interlocking confession situation from the Bruton case primarily on the theory that the right to cross-examination would never be of value when the defendant had admitted his own guilt. Id., at 72, 99 S.Ct. at 2139, 60 L.Ed.2d at 723. They did not, however, attempt to delineate when statements given by codefendants would be sufficiently interrelated and inculpatory to become “interlocking confessions.”
Four other Justices adhered to the harmless error analysis. Id. at 77, 99 S.Ct. at 2141, 60 L.Ed.2d at 726 (Blackmun, J., concurring in part); Id. at 80, 99 S.Ct. at 2143, 60 L.Ed.2d 728 (Stevens, J., with Brennan, J. and Marshall, J., dissenting).4 Justice Blackmun underscored the need for a flexible harmless error approach in order to protect the rights of those defendants who are unfairly prejudiced by inadmissible evidence.
The fact that confessions may interlock to some degree does not ensure, as a per se matter, that their admission will not prejudice a defendant so substantially that a limiting instruction will not be curative. The two confessions may interlock in part only. Or they may cover only a portion of the events in issue at the trial. Although two interlocking confessions may not be internally inconsistent, one may go far beyond the other in implicating the confessor‘s codefendant. In such circumstances, the admission of the confession of the codefendant who does not take the stand could very well serve to prejudice the defendant who is incriminated by the confession, notwithstanding that the defendant‘s own confession is, to an extent, interlocking. I fully recognize that in most interlocking confession cases, any error in admitting the confession of a nontestifying codefendant will be harmless beyond a reasonable doubt. Even so, I would not adopt a rigid per se rule that forecloses a court from weighing all the circumstances in order to determine whether the defendant in fact was unfairly prejudiced by the admission of even an interlocking confession. Where he was unfairly prejudiced, the mere fact that prejudice was caused by an interlocking confession ought not to override the important interests that the Confrontation Clause protects.
Id. at 79, 99 S.Ct. at 2142, 60 L.Ed.2d at 727 (Blackmun, J., concurring in part).
We continue to believe that a harmless error analysis is preferable to a rigid per se rule and, thus, adhere to the approach elucidated by Mr. Justice Blackmun in Parker.5 Here, although the statements of the defendants are mutually reinforcing in many respects, they vary in significant detail on the events necessary to establish certain elements of the crimes charged. The issue now before us, therefore, is whether admission of these statements was reversible error as to any or all of the defendants.
It is essential to the robbery, felony murder and premeditated murder charges in this case that the actions constituting these offenses took place “within the special maritime and territorial jurisdiction of the United States.”
A. The location of the events leading to death.
The determination of the location of a murder charged under
In all cases of murder or manslaughter, the offense shall be deemed to have been committed at the place where the injury was inflicted, * * * or other means employed which caused the death, without regard to the place where the death occurs.
The statements of all three defendants indicate that the blow to Williams’ head was administered at the Birdland Lounge, which is off base, and, therefore, outside of the reach of the federal government‘s murder statute. See
Unfortunately,
Defendant Ward‘s statement was both clear and damning. He admitted that: “As I was walking away from [where we left Williams in the woods] I could see that his legs were moving a little. He also mumbled when we took him from the car. I could‘nt [sic] understand what he was saying.” Later in his statement, Ward was asked how far into the woods he put Williams. He replied: “About 30 feet into the woods we sat him against a tree but he just slid down. When he slid down he moned [sic].”7
Todd‘s statement is ambiguous on this point. That statement, portions of which are in a question and answer format, reads in pertinent part as follows:
Q. When they put WILLIAMS in the /j/_BT8 did he move or did you know that he was Dead [sic]?
A. SHANNON9 said that he could be dead. I said that he was‘nt [sic] and then Ward10 said that he was‘nt [sic] dead and he just hit him soft.
Q. It was cold outside. Did you see F. WILLIAMS breathing when they put him in the woods?
A. No.
The government argued that, in the context of Todd‘s statement, “/j/ __ BT” meant “woods” and that Todd‘s response to this question indicates that Williams was alive when abandoned on the fort. The defense argues that “/j/ __ BT” is ambiguous as to location and that, in any event, Todd‘s response to both questions leaves considerable doubt as to whether Williams had survived the trip from Birdland back to the post.
Parker‘s statement is similarly open to various interpretations:
Q. Was WILLIAMS alive when they put him in the woods?
A. He was unconscious and not moving.
* * * * * *
Q. Did WILLIAMS say anything afetr [sic] he was hit?
A. No.
In light of these statements, the question is whether any or all of the defendants were unfairly prejudiced by the admission of the statements of their codefendants at trial. We conclude that both Todd and Parker were so prejudiced. We have little doubt that their statements, taken individually, were sufficiently inculpatory so that the jury may have found that exposure was the cause of death. Nevertheless, there is a reasonable possibility that Ward‘s improperly admitted statement contributed to their convictions. See Schneble v. Florida, supra. There can be little doubt that Ward‘s statement added “substantial, perhaps even critical, weight to the Government‘s case in a form not subject to cross-examination * * *.” Bruton v. United States, supra, 391 U.S. at 128, 88 S.Ct. at 1623. We, therefore, cannot say beyond a reasonable doubt that the admission of that statement was harmless. Consequently, we reverse the premeditated murder and felony murder convictions of both Todd and Parker.11
Ward also contends that he was unfairly prejudiced by the introduction of the statements of his codefendants. In particular, he contends that Parker‘s statement contributed to his conviction on premeditated murder. Parker‘s statement included the following:
Q. Was that the plan. Hit him with the tire iorn [sic].
A. Ward12 had said at the Walker Recreation Center that he was going to use the tire iorn [sic].
In our view, there is no reasonable possibility that this statement contributed to Ward‘s conviction. Ward‘s own statement
B. The location of the robbery.
Eighteen
Whoever, within the special maritime and territorial jurisdiction of the United States, by force and violence, or by intimidation, takes from the person or presence of another anything of value, shall be imprisoned not more than fifteen years.
The trial court instructed the jury that to obtain a conviction on the robbery count, the government had to prove three elements beyond a reasonable doubt: “First, on or about January 5, 1977, Frederick Williams had in his possession or on his person money; second, the defendant—this applies to each defendant—the defendant took and carried away money from Frederick Williams by force, and third, the taking14 occurred within the boundaries of Ft. Leonard Wood, Missouri.”
Again, Ward‘s statement was by far the most incriminating, both of himself and of his codefendants. As submitted to the jury, the statement read in part as follows:
Q. Did everyone plan to rob WILLIAMS?
A. Yes.
* * * * * *
Q. Who took the money off WILLIAMS?
A. SHANNON took the money out and split it up. I took the money from his walet [sic]. M. W
Q. How much money did everyone get?
A. I know that I got about $30.
Q. Where did you take the money from?
A. I took his wallet from his back pocket and the money from that.
* * * * * *
Q. Whaen [sic] did you take the wallet from his pocket?
A. When we put him in the woods.
Q. Was there any other money taken from the body of WILLIAMS?
A. I saw SHANNON with some money.
Q. Did he split this money up amoung [sic] the occupants of the car?
A. I saw him give some to TODD.15
Q. Where did this take place at?
A. When we were almost to the gate of Ft Leonard Wood.
* * * * * *
Q. Did anyone take anything else from the body of WILLIAMS?
A. I think SHANNON was going through his pockets on the * * * way back to post. I did‘nt [sic] see if he got anything.
Q. What happened to the Marihuana that TODD had sold WILLIAMS?
A. I saw SHANNON roll one joint and give the Marihuana back to TODD. This was on our way back from the club. I don‘t know where it came from. [Emphasis indicates the portion of the statement handwritten or initialed in pen by Melvin Ward.]
The statement of Bobby Todd was significantly less clear on the location of the robbery. Speaking of the group‘s return from Birdland, Todd‘s statement reads:
We went straight through the light and on to the Front Gate of Ft. Leonard Wood, MO. About the time we were at a sign which said something about driving safley [sic] * * * or total of deaths during the year that is located near the front gate the money that was taken from F. WILLIAMS started to be split up. I was asked if I wanted to have some of the money. They even handed it to me, but I told them that I did‘nt [sic] want any of it. At this time I saw money comming [sic] from the back seat of the car being passed to J. REVERE.16
The government argues that the place of transfer described by Todd is within the “special maritime and territorial jurisdiction of the United States,”17 see
Distribution of the robbery assets, however, is not an element of the crime of robbery;18 taking is. See
We now consider Parker‘s statement. It is quickly apparent that he, even more than Todd, was unfairly prejudiced by the introduction of Ward‘s statement at the trial. The following are the relevant portions of Parker‘s statement:
Q. Who got the money from the robbery?
A. I only know that I got $56.00 from WARD.20
* * * * * *
Q. Do you know how much money WILLIAMS had on his person?
A. It was so quick and they just gave me some money.
* * * * * *
Q. Did you drive directly to birdland [sic] and back to Ft Leonard Wood after the robbery of WILLIAMS?
A. Yes.
Q. Why did the robbery have to go down at Birdland Lounge instead of the Walker Recreation Center?
A. We did it out there because everyone was afraid of getting caught.
Clearly, Parker‘s statement does little to establish that the taking occurred within the boundaries of Fort Leonard Wood. The government offered no independent evidence other than the statements of Parker‘s codefendants which were, of course, inadmissible to the consideration of his case, that the robbery took place on base. Consequently, we again cannot say that the admission of the codefendants’ statements was harmless beyond a reasonable doubt. We must, therefore, also reverse Parker‘s robbery conviction.21
III
WARD‘S CONTENTIONS ON APPEAL
A. Authority to prosecute us an adult.
Ward first contends that he was improperly prosecuted as an adult. Ward was seventeen years old at the time of the events for which he was tried. He was twenty years old at the time of trial. The initial proceedings against Ward were brought under the juvenile delinquency statutes,
Eighteen
The certification, information and motion for transfer in Ward‘s case were all signed by a United States Attorney. Ward contends that all were signed without authority and that, as a consequence, the district court never attained jurisdiction over the matter. The first prong of his argument is that since the
The second prong of Ward‘s delegation argument is that since the regulation does not authorize Deputy Assistant Attorneys General to redelegate their authority to United States Attorneys, the motion to
B. Corroboration of Ward‘s statement by independent evidence.
Ward next argues that the district court erred in denying his motion for a directed verdict of acquittal on the robbery and the felony murder counts. He contends that there is insufficient corroborative evidence of the crime of robbery, independent of his statement, to support a conviction on that count.
In Wong Sun v. United States, 371 U.S. 471, 488-489, 83 S.Ct. 407, 418, 9 L.Ed.2d 441 (1963) (footnote omitted), the Supreme Court said: “It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.” The Court noted:
Where the crime involves physical damage to person or property, the prosecution must generally show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable. A notable example is the principle that an admission of homicide must be corroborated by tangible evidence of the death of the supposed victim. * * * There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it.
Id. at 490 n. 15, 83 S.Ct. at 418.
Ward contends that this body of law compels his acquittal on the robbery and related felony murder counts because, absent his confession, there is no evidence indicating that Williams either had or lost money on the night in question. We have, however, examined the record and are satisfied that there is sufficient corroborative evidence of the robbery.
C. The location of the killing.
We have noted earlier that under
Ward‘s statement, however, established that Williams’ legs were moving and that he was mumbling when taken from the car to be left in the woods. Ward thus conceded that Williams survived the car ride from Birdland to the woods, a ride of from about ten to thirty minutes. On the basis of that evidence, the government asked its expert witness, Dr. Rappe, what the effect of abandonment in the subfreezing January temperatures would be on Williams. It was Dr. Rappe‘s opinion that if Williams survived ten minutes, and especially if he survived thirty minutes, then “he could have stayed in a coma for quite a while, hours even days before he died, except that in that weather, he would have froze [sic] to death, you know, in a short period of time.” On those facts, Dr. Rappe concluded that “beyond a reasonable doubt,” the temperature would have contributed to the cause of death of Frederick Williams. This evidence is sufficient to sustain the jury‘s verdict.
D. The Miranda issue.
Ward‘s final contention is that his statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A full record was made at a pretrial hearing on Ward‘s motion to suppress. We have examined this record and Ward‘s allegations and are satisfied that his Miranda rights were not breached.
The convictions of Todd and Parker on all three counts are reversed. The convictions of Ward on all three counts are affirmed.
ROSS, Circuit Judge, dissenting:
I dissent from the opinion of the majority in this appeal.
In my view, the plurality opinion in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979) establishes the proper rule for the handling of sixth amendment issues in the context of interlocking confessions. As pointed out in that opinion, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) recognized that a limiting instruction does not suffice to remove the prejudicial impact of a nontestifying codefendant‘s confession where the defendant has maintained his innocence from the beginning of the proceedings. Under those circumstances, the confession of the codefendant is submitted to the jury without affording the defendant his constitutional right of cross examination. In a situation where all of the defendants have admitted their guilt, however, “the incriminating statements of a codefendant will seldom, if ever, be of the ‘devastating’ character referred to in Bruton * * *.” Parker v. Randolph, supra, 442 U.S. at 73, 99 S.Ct. at 2139, 60 L.Ed.2d at 723. Therefore, I agree with the plurality in Parker that the admission of interlocking confessions with proper limiting instructions is sufficient to satisfy the requirements of the sixth and fourteenth amendments.
Notes
This statement, of course, indicates Ward‘s state of mind at the time he delivered the blow to Williams’ head. The more important issue in this case is Ward‘s state of mind concerning the abandonment. Ward admitted that after he struck Williams and pushed him into the back seat of the car, they drove to a secluded wooded area on base where Ward, knowing that Williams was mumbling and moving his legs a little, left him. This abandonment occurred, according to Ward, late in the evening at a time when other evidence indicated that the temperature did not rise above freezing for many days. This evidence alone convincingly demonstrates that Ward‘s actions were deliberately death-inducing.Q. What prompted you to take the tire tool from the rear floor of the car and hit WILLIAMS?
A. [Todd] said hit him [.]
Q. When did you pick the tire tool up?
A. [Todd] was starting to pick it up. I grabbed it. [Todd] said hit him and I did.
Q. Prior to this did you have any idea that you were going to hit him?
A. Everyone thought that they would get him drunk and then roll him.
Q. Where did this plan come from.
A. While we were at Walkers [the onbase recreation center]. [Emphasis added indicates the portion of the statement handwritten by Melvin Ward.]
This is in response to your request to move the court to transfer the proceedings against [Melvin Ward] to adult prosecution. Pursuant to the authority delegated to me by the Attorney General in
28 C.F.R. § 0.57 , you are hereby authorized and directed to move the court to transfer the proceedings against Melvin Ward to adult prosecution * * *.