Holland v. Henderson

• Decision Date: 13 July 1972
• Docket Number: No. 30770.,30770.
• Citation: 460 F.2d 978
• Parties: Arthur HOLLAND, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

460 F.2d 978 (1972)

Arthur HOLLAND, Petitioner-Appellee, v. C. Murray HENDERSON, Warden, Respondent-Appellant.

No. 30770.

United States Court of Appeals, Fifth Circuit.

May 8, 1972.

Rehearing Denied July 13, 1972.

Louise Korns, Asst. Dist. Atty., New Orleans, La., for respondent-appellant.

John V. Baus, James R. Murrell, III, New Orleans, La., for petitioner-appellee.

Before TUTTLE, BELL and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

This appeal is from a statistically rare event—the granting of a writ of habeas corpus on behalf of a state prisoner. It presents some of the grave problems arising out of joint trials and an attorney's dual representation of criminal defendants whose interests are potentially in conflict.

The district court, Holland v. Henderson, 317 F.Supp. 438 (E.D., La., 1970), found that Holland and a co-defendant Wallace were jointly tried for the armed robbery of Hilda's Jazz Bar. By the date of the trial Wallace, who had been involved in a separate robbery at the National Bank of Commerce of New Orleans, had confessed to the bank robbery and implicated Holland in that affair. Wallace and Holland were jointly represented by the same attorney. Wallace, who had retained the attorney, asserted an alibi defense to the robbery of Hilda's Jazz Bar. His attorney, in opening argument, to the jury, stated that both Wallace and Holland would rely solely on alibi defenses. The record of the state court proceeding reveals that the entire defense consisted of Wallace and another testifying to Wallace's alibi.

The district court found appellee Holland had been deprived of the effective representation by counsel, when at his trial for the Hilda robbery his attorney elected to establish Wallace's alibi to his detriment. Relying on Baker v. Wainwright, 422 F.2d 145 (5th Cir., 1970), cert. den. 399 U.S. 927, 90 S.Ct. 2243, 26 L.Ed.2d 794, the district court held:

"Clearly, petitioner Holland was similarly deprived of his right to effective assistance of counsel in this case. His attorney knew that codefendant Wallace had made a prior statement which implicated Holland in the N.B.C. robbery. He also surely knew that if he put Wallace on the stand to establish an alibi, the prosecution was certain to use that prior statement to impeach Wallace\'s credibility. Trial counsel was placed on the horns of a dilemma, i. e., whether to put Wallace on the stand in an attempt to establish an alibi, allegedly his only defense, or whether to keep Wallace off the stand in order to protect Holland against implication in another crime. Once the decision to place Wallace on the stand was made, Holland was prejudiced. Baker v. Wainwright, supra, 422 F.2d at 148.

"Additionally, there is other evidence that Holland was denied effective assistance of counsel. Once Wallace was placed on the stand and subjected to cross-examination by the State through the use of a prior statement relating to another crime, trial counsel did not and could not effectively act to protect Holland\'s rights. Also, in his opening statement trial counsel stated that the defense of all three defendants was that `they were at home in bed at the time of this robbery.\' Yet only Wallace was placed on the stand to establish such an alibi. No effort was made to establish an alibi for Holland even though it was supposedly his ownly defense. Indeed, a reading of the state court trancript convincingly shows that trial counsel\'s efforts were directed principally toward defense of Wallace."

Appellant and the State of Louisiana submit that as long as joint trials are permitted there was no constitutional infirmity committed in Holland's trial. The state argues that Wallace's only defense was that he was in bed asleep at the time the Hilda robbery was committed. Even with separate counsel for Holland, they argue, Wallace would have taken the stand to claim an alibi and would have admitted possession of the pistols used in the bank robbery and, therefore, implicated Holland on cross-examination. The record reveals that Wallace was cross-examined about prior inconsistent accounts of the bank robbery which did implicate Holland in that crime, but that from the stand Wallace recanted that portion of his prior statements which implicated Holland.

Appellant's statement of the case attempts to invoke the first part of our Baker opinion holding that under similar circumstances Baker had not been denied the right to confront a witness against him when a portion of his co-defendant's confession inculpating him was denied by its maker. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that a nonconfessing co-defendant's conviction must be set aside when the jury considering his and his co-defendant's fate was permitted to hear an account of the co-defendant's confession implicating him. The holding there was presaged upon the defendant's rights to confront witnesses against him. Speaking of Bruton, the Supreme Court in Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), further refined its holding:

"The Constitution as construed in Bruton, in other words, is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for `full and effective\' cross-examination." 402 U. S. at 627, 91 S.Ct. at 1726.

Here, as in O'Neil, the declarant took the stand and denied the statement inculpating Holland. The Supreme Court in O'Neil phrased the...