Bond v. State of Okl.

• Decision Date: 20 December 1976
• Docket Number: No. 75-1321,75-1321
• Citation: 546 F.2d 1369
• Parties: Lloyd Stevenson BOND, Petitioner-Appellant, v. STATE OF OKLAHOMA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1369

546 F.2d 1369

Lloyd Stevenson BOND, Petitioner-Appellant, v. STATE OF OKLAHOMA, Respondent-Appellee.

No. 75-1321.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Jan. 27, 1976.

Decided Dec. 20, 1976.

Joseph L. Hull, III, Tulsa, Okl., for petitioner-appellant.

Kay Karen Kennedy, Asst. Atty. Gen., Oklahoma City, Okl. (Larry Derryberry, Atty. Gen. of Oklahoma, Oklahoma City, Okl., on the brief), for respondent-appellee.

Before HOLLOWAY, BARRETT and DOYLE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Petitioner Bond appeals from the denial of relief in a habeas proceeding challenging an Oklahoma conviction for kidnapping under 21 O.S.A. § 741. ¹

The essential facts are that Bond, his co-defendant Jenkins (not a party herein) and one Michael Wyatt were involved in an apparent attempted burglary of a combination apartment and office building in Collinsville, Oklahoma. The kidnapping charge against Jenkins and Bond arose from the alleged confinement of Mrs. Bess Keith during the incident. See § 741(1), n. 1. The three men fled after a shooting occurred nearby and they were stopped shortly at a roadblock in Tulsa, where Wyatt was shot and killed. Jenkins and Bond were jointly tried and convicted on the kidnapping charge.

Bond received a 15-year sentence under the Oklahoma recidivist law, 21 O.S.A. § 51(1), a prior conviction for uttering a forged instrument being proved. The judgment and sentence were affirmed on direct appeal. Jenkins et al. v. State of Oklahoma, 508 P.2d 660 (Okl.Cr.).

This federal habeas proceeding was prosecuted in the Northern District of Oklahoma. Bond asserted grounds as set out in a brief attached to his habeas petition, which were essentially that: (1) he was improperly tried and convicted for kidnapping as it was so concurrent and incidental to other acts of the defendant as to constitute an unnatural elevation of the true crime to be charged; (2) the State court erred in refusing to exclude an admission by co-defendant Jenkins as against Bond, said admission or confession having been made outside the presence of Bond, citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and thus arguing denial of the right of confrontation; (3) the court erred in overruling Bond's motion for a severance; and (4) the court erred in allowing prejudicial statements by the prosecutor and admission of evidence of violence, immaterial and unrelated to the elements of the crime charged.

The district court reviewed the transcripts of the State court criminal proceedings. It found that there were no material issues of unresolved facts and that a hearing was not required. The court rendered its decision by an opinion and order denying relief and dismissing the action.

In this opinion the district court agreed that admission of the confession of co-defendant Jenkins was constitutional error in violation of the confrontation clause, citing Bruton, and said that this error had given the court a great deal of concern. However, it was concluded that the error was harmless beyond a reasonable doubt under Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340, so that the conviction need not be held invalid. This and all other grounds for challenging the conviction were rejected.

On appeal the same four issues presented to the district court are argued, along with one additional point. We will discuss all these primary appellate contentions.

First, we consider the confrontation issue and the claim that the admission of co-defendant Jenkins's confession violated the Sixth Amendment confrontation rights of Bond, the most serious problem in the case.

The right of such cross-examination as an element of confrontation and due process has been clear for some time. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923. Furthermore the attempt to protect against proof of a confession of one not subject to cross-examination by a limiting instruction has not been constitutionally permissible since Bruton was decided. Such a procedure was followed in this trial, well after Bruton, but it was clearly constitutional error and the State does not contend otherwise. ²

The State argues, however, that properly admitted proof of guilt was so overwhelming, and the prejudicial effect of the confession of codefendant Jenkins was so insignificant by comparison, that it is clear beyond a reasonable doubt that improper use of the confession was harmless error, citing Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340. Bond vigorously argues that the error was not harmless beyond a reasonable doubt under the strict standard of Chapman v. California,, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. These conflicting contentions require careful examination of the trial transcript, which we have considered.

The prosecution's evidence

There was substantial evidence for the prosecution tending to show the following On January 2, 1972, a Sunday, Mrs. Bess Keith was living in a second story apartment of a building in Collinsville, Oklahoma. Collinsville is a community of some 3,000 persons located just north of Tulsa. ³ The downstairs of the building contained a drug store and the offices of a dentist and two doctors. Upstairs the building was partly vacant. Mrs. Keith was in her apartment that morning at about 11:30 and her son, James, was visiting her.

Mrs. Keith testified that she heard noise for 15 or 20 minutes from an empty apartment in the north part of the building. She walked up and pushed the door open and went in. This was between 11:30 and 12:00. She walked in and saw two boys under a lavatory. This was in a kitchen of the two room apartment, the other room being a combination bedroom and living room (R.V, 133, 158).

When she walked around the lavatory and saw the two boys, she said "(w) hat's going on here?" The boys had some kind of tools and they were down pulling up the floor boards. After her comment, someone came from behind the door she had pushed open, stuck a gun in her arm and said to "get your hands up and shut your mouth." She said the fellow had a pistol, he shoved her over to two chairs sitting there in the living room, which was quite large, and told her to sit down and get her head down (R.V, 133-35).

The fellow who had set her down in the chair asked who else was in her apartment and she told him her son, James Keith, was there. He went to look for the son but returned and said he wasn't there. He then left the apartment again and was gone four or five minutes. One of the other boys then stood over her with a gun and the other boy was down under the lavatory working, pulling up boards (R.V, 138-39).

The individual who had left never came back and the two boys in the apartment came to her, took hold of her arms and said "we'll have to tie you up . . ." (R.V, 140). At the trial Mrs. Keith was asked if she could identify any of the persons that were in the apartment on January 2. She said "I think so" and after an objection, remarked that she had identified them once. She said that after four months they looked a little different. After the court said that she still had not identified anyone, and after being asked by counsel to point them out, she said: "Well, those two right over there." (R.V, 142-43).

Mrs. Keith described clothing being worn by two individuals in court. The court declined a request that the record should reflect that she had identified defendants Bond and Jenkins. Counsel objected to such a statement in the record. He said that any such notation should be stricken unless the record showed that she had not said she was sure; he argued further that she appeared unsure and had incorrectly described the color of one shirt (R.V, 143-44). The court said that in closing arguments counsel could explain their positions "(b)ut that's a question for the jury to decide." Mrs. Keith remarked that she had not said she was not sure and further testified that there was not any question in her mind but that these individuals were the ones in the apartment that day (id. at 144). On cross-examination she testified she saw the faces of the men under the lavatory and they were the two defendants. She said both of them tied up her feet (R.V, 167).

Mrs. Keith testified that the two individuals "(t)ore up the floor and tied me up." After testimony by her indicating the position in court of the defendant who held a gun on her after the other man left, and after an objection by Bond's counsel to the prosecuting attorney pointing at either defendant, Mrs. Keith remarked: "I can't see too good." (R.V, 145-46). ⁴ She then testified that they took her and told her to lie down on the bed and tied her legs, told her to turn over and they tied her arms. They had her arms behind her tying her when she heard a shot (R.V, 146-47). She was asked whether she was with anyone at that time and said: "No, the boys were tying my hands, these two boys." (id. at 148).

Mrs. Keith identified two pieces of cord taken off of a venetian blind which were used to tie her up. While they were tying her up, the third boy was gone. The window shades in the room were shut. She said she was in the room being tied up for about five minutes. They were just tying her hands when the shot went off, she screamed and they ran out the door and left it open. She thought they had about two loops around her hands and they pulled loose (R.V, 151-52).

Mrs. Keith testified that anyone coming up the stairs could not have seen her on the bed, but could have heard her (R.V, 173-74). She laid there because her legs were tied and she couldn't get off the bed. Two ladies came up and untied her. All together she had laid in the room maybe 10 or 12 or maybe 15 minutes; further, she said that when she was seated earlier she had her head down for around 20 minutes. After she was untied, she went back to her apartment, saw that her son was shot, and sent him to the hospital (id....