Rogers v. McMackin

Decision Date28 August 1989
Docket NumberNo. 88-4092,88-4092
Citation884 F.2d 252
PartiesDarrick A. ROGERS, Petitioner-Appellee, v. Norris W. McMACKIN, Superintendent, Respondent-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

J. Dean Carro (argued), University of Akron School of Law, Appellate Review Office, Akron, Ohio, for petitioner-appellee.

Donald G. Keyser, Asst. Atty. Gen. (argued), Office of the Atty. Gen. of Ohio, Columbus, Ohio, for respondent-appellant.

Philip D. Bogdanoff, Asst. Pros. Atty., Akron, Ohio, amicus curiae.

Before MILBURN and NELSON, Circuit Judges, and BERTELSMAN, District Judge. *

DAVID A. NELSON, Circuit Judge.

This is a habeas corpus case brought by a man who was convicted, in a state court bench trial, of aggravated robbery and involuntary manslaughter. The question presented is whether the petitioner's constitutional right to be confronted with the witnesses against him was violated by the receipt into evidence of a nontestifying co-defendant's confession. On the strength of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986), the federal district court concluded that the use of the confession constituted error of constitutional magnitude. Finding that the error was not harmless, the court granted the writ.

We think the district court erred in applying Bruton and Lee to this case. Bruton was concerned with jury trials, and rested on the proposition that juries cannot be trusted to consider a nontestifying co-defendant's confession solely in relation to that defendant's case. Bruton was not concerned with bench trials, and Lee did not hold that the rule in Bruton should be applied automatically to bench trials. The record in the present case does not suggest that the state trial judge relied on the co-defendant's confession in determining petitioner's guilt, and the state court's decision to let the confession be introduced as evidence of the guilt of the person making the confession was constitutionally permissible, in our view.

I

Darrick A. Rogers, the petitioner herein, was charged with participation in the robbery of an Akron, Ohio, restaurant and the fatal shooting of its proprietor. The evidence against Mr. Rogers consisted primarily of his own confession--a confession that varied substantially from what he told the police initially.

On the day after the shooting, it appears, Mr. Rogers sought out a cousin, who was an Akron police officer, to say that an acquaintance named Mimi Cash was falsely implicating him (Rogers) in the crime. The officer took Rogers to the police station, gave him a Miranda warning, and obtained a written statement from him. Mr. Rogers said at this point that he had been in the vicinity of the robbery because he was visiting his girlfriend, who lived nearby. She asked him to get her some cigarettes, the statement continued, and while driving to the store on this errand he was hailed by two men whom he identified as "Andre" and "Ricky." He stopped, and the men jumped in his car and asked him to drive them away because they had just robbed a restaurant with Mimi Cash and had shot a woman. That was the substance of the first statement.

After Mr. Rogers had left the police station, Mimi Cash, Ricardo Forney and Andre Robinson were arrested on unrelated charges. Andre Robinson confessed to the robbery and shooting, and implicated Messrs. Rogers and Forney as well. The police then picked up Mr. Rogers and took him back to the police station for questioning. Told that Robinson had implicated him, Rogers now confessed to a much more active role in the crime.

In his confession, which was tape-recorded, Mr. Rogers said that he and Robinson and Forney had engaged in several discussions about robbing Canova's Restaurant. On a prior day they had driven past the restaurant with the intent to rob it, but had refrained from doing so because the restaurant was crowded. On the day the robbery was actually committed, the three men drove to the restaurant after obtaining a gun that belonged to Robinson's mother. Mr. Rogers, who was at the wheel of the car, parked on a side street around the corner from the restaurant. He then told his companions "I ain't going in the joint to rob no joint." Robinson and Forney entered the restaurant without Mr. Rogers. While they were gone, Rogers got out of his car and walked to a nearby "smokehouse" to obtain illegal drugs. He found that the house was closed. Returning to the car, he found that Robinson and Forney were hunched down in the back seat. They told Rogers to drive away, saying "Rick just shot a lady." Rogers then drove the men to several places in the city.

Robinson gave a confession that largely paralleled Rogers' insofar as the latter's role in the robbery was concerned. The only significant differences between the confessions were that (1) Robinson attributed the initial idea of the robbery to Rogers, while Rogers attributed it to Robinson and Forney, and (2) Robinson said Rogers was waiting in the car with the motor running when Robinson and Forney returned from the restaurant.

Rogers and Robinson were scheduled to be tried together before a judge of the Court of Common Pleas of Summit County, Ohio. The defendants moved for separate trials, each arguing that his constitutional right of confrontation would be violated if the other's confession were introduced after a refusal to testify. See Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (regardless of limiting instruction to jury, out-of-court confession of nontestifying co-defendant may not be introduced in jury trial in federal court, where confession implicates defendant).

The common pleas court declined to grant Rogers and Robinson separate trials, reasoning that Bruton was not applicable to bench trials and that Bruton does not apply where co-defendants have given consistent statements. The court expressed confidence in its ability to keep Robinson's and Rogers' statements separate.

When the confession that had been given by Robinson was introduced at trial as evidence of his guilt, petitioner Rogers moved for a mistrial. The court overruled the motion. At the conclusion of the evidence, the court rendered a general verdict finding both defendants guilty of aggravated robbery. Robinson was found guilty of aggravated murder as well, and Petitioner Rogers was found guilty of the lesser included offense of involuntary manslaughter. The present habeas corpus proceeding was initiated by Rogers after the exhaustion of his state court remedies.

II

In Bruton v. United States, 391 U.S. 123, 124-25, 88 S.Ct. 1620, 1621-22, 20 L.Ed.2d 476 (1968), the Supreme Court revisited the question whether, notwithstanding limiting instructions by the trial court, the conviction of a defendant at a joint trial before a jury in a federal court should be set aside where a nontestifying co-defendant's confession inculpating the defendant had been received in evidence. The Court had answered that question in the negative in the earlier case of Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). The Delli Paoli Court concluded "that it is 'reasonably possible for the jury to follow' sufficiently clear instructions to disregard the confessor's extrajudicial statement that his co-defendant participated with him in committing the crime." Bruton, 391 U.S. at 126, 88 S.Ct. at 1622 (quoting Delli Paoli, 352 U.S. at 239, 77 S.Ct. at 298). The Bruton Court recognized that "[i]f it were true that the jury disregarded the reference to the co-defendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor." Id.

The Bruton decision rested on the belief that regardless of what instructions they received, jurors could not be counted on to blot a co-defendant's confession out of their minds when considering the guilt or innocence of the fellow defendant. Believing that Delli Paoli 's basic premise had been repudiated in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), the Bruton Court decided that "in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination." Bruton, 391 U.S. at 137, 88 S.Ct. at 1628. The court explained that

"there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a co-defendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination."

Id. at 135-36, 88 S.Ct. at 1627-28 (citations and footnote omitted).

In light of Bruton's emphasis on the limitations of the jury system, it is not surprising that at least three courts of appeals subsequently held Bruton to be inapplicable to bench trials. United States ex rel. Faulisi v. Pinkney, 611 F.2d 176, 178 (7th Cir.1979) (the Bruton "holding is simply inapplicable in the case of a bench trial"); United States v. Castro, 413 F.2d 891, 894-95 & n. 7 (1st Cir.1969) ("A jury may have difficulty in disregarding extrajudicial statements implicating a defendant. We will not presume...

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