527 F.2d 430 (5th Cir. 1976), 74--1188, Smith v. Estelle

Docket Nº:74--1188.
Citation:527 F.2d 430
Party Name:Lynnwell SMITH, Appellee, v. W. J. ESTELLE, Director, Texas Department of Corrections, Appellant.
Case Date:February 20, 1976
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 430

527 F.2d 430 (5th Cir. 1976)

Lynnwell SMITH, Appellee,

v.

W. J. ESTELLE, Director, Texas Department of Corrections, Appellant.

No. 74--1188.

United States Court of Appeals, Fifth Circuit

February 20, 1976

        John Pierce Griffin, Asst. Atty. Gen., Austin, Tex., for appellant.

        Phillip M. Renfro, Houston, Tex. (court appointed), for appellee.

        Appeal from the United States District Court for the Eastern District of Texas.

Page 431

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

(Opinion Sept. 26, 1975, 5 Cir., 1975, 519 F.2d 1267).

        Before BROWN, Chief Judge, AINSWORTH and DYER, Circuit Judges.

        JOHN R. BROWN, Chief Judge:

        By a vigorous and thoroughly researched petition for rehearing which would do great credit to the most experienced of criminal law practitioners, court-appointed counsel (whose normal field is that of civil litigation) challenges our holding that the introduction at Smith's state trial of his pre-trial, pre-indictment confession, which was obtained in violation of Escobedo v. Illinois, 1964, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, was harmless error. Smith contends (i) that the harmless error rule is never applicable to rectify involuntary confessions erroneously admitted into evidence, and (ii) that his trial testimony--which was a crucial factor in this Court's finding of harmless error--was induced by his erroneously admitted pre-trial confession so that his trial testimony was thereby tainted and was not proper independent evidence of guilt, and without his trial testimony the admission into evidence of the unlawfully obtained pretrial confession cannot be considered harmless. Both of these arguments are made to the Court for the first time on petition for rehearing, and we requested a responsive brief from the state. We hold that the rule that erroneously admitted involuntary confessions can never be considered harmless is not applicable to this case, but we agree with petitioner to the extent that if, on remand, the District Court finds that Smith's trial testimony was in fact induced by the introduction of his unlawful confession, there would be insufficient independent evidence of guilt to warrant our previous finding that the introduction of the unlawful confession was harmless error.

        Petitioner cites an avalanche of cases, including Haynes v. Washington, 1963, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513; Lynumn v. Illinois, 1963, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922; Culombe v. Connecticut, 1961, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037; Payne v. Arkansas, 1958, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975; Malinski v. New York, 1945, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Lyons v. Oklahoma, 1944, 322 U.S. 596, 64 S.Ct. 1208, 88 L.Ed. 1481; Bram v. United States, 1897, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568, for the proposition that an involuntary or coerced confession is so violative of our fundamental concepts of due process and fair play that its admission into evidence can never be considered harmless error, no matter how overwhelming be the other properly admitted evidence of guilt. 1 The blizzard of cases with which petitioner confronts us invoking this strict proposition, however, have all involved truly involuntary or coerced confessions--none has applied the proposition to a mere unlawful confession, such as one obtained in violation of defendant's Escobedo right to counsel, or his Miranda 2 right against self-incrimination.

        The distinction between the genus of unlawful confessions and the species of involuntary or coerced unlawful confessions is not without a difference. Although both types constitute very damaging evidence against the accused, an unlawful confession may not be nearly as untrustworthy in determining the defendant's guilt or innocence, or nearly as shocking to our notions of fundamental due process, as an involuntary confession certainly is. 3

Page 432

        More importantly, the distinction between unlawful and involuntary confessions is buttressed by cases which have now woven the principle that confessions--unlawful but not involuntary--admitted into evidence but obtained without having given the warnings required by Miranda are subject to the harmless error rule. 4 Null v. Wainwright, 5 Cir., 1975,508 F.2d 340, cert. denied, 421 U.S. 970, 95 S.Ct. 1964, 44 L.Ed.2d 459; United States v. Hill, 5 Cir., 1970, 430 F.2d 129; United States v. Harris, 1970, 140 U.S.App.D.C. 270, 435 F.2d 74, 83 n.21, cert. denied, 1971, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 152; United States v. Jackson, 7 Cir., 1970, 429 F.2d 1368; United States v. Sutt, 7 Cir., 1969, 415 F.2d 1305. See Harrington v. California, 1969, 395 U.S. 250, 255, 89 S.Ct. 1726, 1729, 23 L.Ed.2d 284, 288 (Brennan, J., dissenting) (harmless error doctrine will undermine Miranda); United States v. Blair, 5 Cir., 1972, 470 F.2d 331, cert. denied sub nom., Crews v. United States, 1973, 411 U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197 (harmless error doctrine applicable to Miranda violation but confession not harmless). But see Brooks v. Perini, N.D.Ohio, 1973, 384 F.Supp. 1011, aff'd, 6 Cir., 1974, 497 F.2d 923, cert. denied, 419 U.S. 998, 95 S.Ct. 312, 42 L.Ed.2d 271 (Miranda violation 'constitutionally compelled' reversal).

        Smith was tried on August 10, 1965, during the 24-month interlude between Escobedo and Miranda. Our case is thus one of a dwindling number to reach the courts controlled by Escobedo but to which Miranda, which further elaborated the holding in Escobedo, does not apply. See Johnson v. New Jersey, 1966, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. Petitioner did not contend at his state trial, has not contended at any of the several review proceedings thereafter, 5 and does not now contend that his pretrial confession was involuntary or coerced. He did not request a Jackson v. Denno hearing at his state trial. Thus, Smith's confession was unlawful for the sole reason that it was obtained by the police after his requests for counsel were denied, a clear Escobedo violation as we previously held. 6

Page 433

        We have found no cases which squarely consider the application of the harmless error rule to an anti-Escobedo confession. 7 In our view, however, an anti-Escobedo confession is more analogous to an anti-Miranda confession than to an operationally involuntary or coerced confession, thus warranting the application of the harmless error rule. Miranda evolved from Escobedo, re-examining, reaffirming and extending its holding. It would be incongruous to make the harmless error rule applicable to the progeny and not to the predecessor. Both Escobedo and Miranda involve confessions which are unlawful but not involuntary in the operational sense.

        Thus, our original harmless error analysis withstands petitioner's initial attack.

        It cannot survive the second. Petitioner contends that we erred by including, as our prior opinion reflects we did, his trial testimony in our calculation of harmless error, since he was induced to take the stand by the introduction of his unlawful pre-trial confession. 8

        ' The same principle that prohibits the use of confessions (unlawfully) procured also prohibits the use of any testimony impelled thereby--the fruit of the poisonous tree, to invoke a timeworn metaphor. * * * If he (took the stand) in order to overcome the impact of confessions illegally obtained and hence improperly introduced, then his testimony was tainted by the same illegality that rendered the confessions themselves inadmissible.' Harrison v. United States, 1968, 392 U.S. 219, 222--23, 88 S.Ct. 2008, 2010, 20 L.Ed.2d 1047, 1051--1052. See Fahy v. Connecticut, 1963, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; Wong Sun v. United States, 1963, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441; Alberti v. Estelle, 5 Cir., 1975, 524 F.2d 1265, 1268; Randall v. Estelle, 5 Cir., 1974, 492 F.2d 118. If Smith would not have taken the stand but for the admission of his unlawful pre-trial confession, introduced through the testimony of Officer Rippey, then his trial testimony was tainted thereby and cannot be considered as independent evidence of guilt for purposes of applying the harmless error rule.

        Smith's trial...

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