Loftis v. Beto

• Decision Date: 10 November 1971
• Docket Number: No. 30899.,30899.
• Citation: 450 F.2d 599
• Parties: Edwin Lowell LOFTIS, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

450 F.2d 599 (1971)

Edwin Lowell LOFTIS, Petitioner-Appellant, v. Dr. George J. BETO, Director, Texas Department of Corrections, Respondent-Appellee.

No. 30899.

United States Court of Appeals, Fifth Circuit.

October 8, 1971.

Rehearing Denied November 10, 1971.

Peter S. Chamberlain (Court Appointed), Dallas, Tex., for petitioner-appellant.

Crawford C. Martin, Atty. Gen., Robert Darden, Asst. Atty. Gen., Nola White, First Asst. Atty. Gen., Alfred Walker, Executive Asst. Atty. Gen., Robert C. Flowers, Asst. Atty. Gen., for respondent-appellee.

Before AINSWORTH, INGRAHAM and RONEY, Circuit Judges.

RONEY, Circuit Judge:

This is an appeal from a denial of a petition for writ of habeas corpus brought by a Texas state prisoner. The petitioner's primary complaint is that his co-defendant wife was allowed to plead guilty in the presence of the jury which tried petitioner. He contends that he was thereby deprived of his right of confrontation under the Sixth Amendment and that this procedure was fundamentally unfair in violation of the due process clause of the Fourteenth Amendment. The district court denied relief on the ground that any such error was harmless in view of the overwhelming evidence of guilt. We affirm.

The indictment charged that Loftis and his apparent common-law wife Rosemary Servance "acting together" did unlawfully possess heroin. Represented by an attorney, they both appeared for trial after a motion for continuance and motion for severance were denied.¹ At that time Servance pled guilty. Her punishment was assessed by the jury at the same time that it was determining whether Loftis was guilty or innocent.²

Petitioner argues that Servance's plea of guilty amounts to an extrajudicial confession implicating Loftis and admitted in evidence contrary to his right of cross-examination secured by the confrontation clause under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), thus creating a fundamentally unfair trial in violation of the Fourteenth Amendment. Without deciding the Bruton problems, the district court held that under Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), any Bruton error was harmless because of the overwhelming weight of the evidence.³

The fundamental question on this appeal is whether the alleged flaws in the state proceeding are of the constitutional variety which are not cured by a finding that the error, if any, was harmless beyond a reasonable doubt. The Supreme Court has stated that some constitutional rights are so basic to a fair trial that their infraction can never be treated as harmless error. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).⁴ On the other hand, it has been held that not all such transgressions require automatic reversal and that the introduction of a plea of guilty into the trial of a co-defendant falls within the latter category. Harrington v. California, supra. In Harrington, the court held that a violation of the confrontation clause, as interpreted in Bruton v. United States, supra, and applicable to state trials through the due process clause of the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), does not require the setting aside of the state conviction if the evidence of guilt is so overwhelming as to make the error harmless beyond a reasonable doubt. Although this standard is not spelled out, we assume that at the very least it means that an error is harmless beyond a reasonable doubt if the evidence which was properly received leaves no room for the jury to entertain any reasonable doubt as to guilt. Such a case we have here.

Only four witnesses testified in the guilt phase of the petitioner's trial: two United States Bureau of Narcotics Agents; a Dallas County deputy sheriff, who was present at the search and who corroborated the narcotic agent's testimony; and a chemist for the United States Treasury Department, who identified the heroin. The testimony of these witnesses was clear and uncontradicted. The defendant produced neither evidence nor the indication of any possible defense.

The testimony showed that based upon information obtained from an informant and from a surveillance two United States Bureau of Narcotics Agents, along with Dallas County sheriff's deputies, obtained a warrant to search petitioner's house. Upon entering the house, one agent saw Servance attempting to dispose of three heroin capsules in the toilet. These capsules were successfully recovered. Other items of narcotic paraphernalia were also seized from the house.

While the search was continuing one agent noticed Loftis, who was not home when the search began, walking toward the house. Apparently becoming aware that something was wrong, Loftis turned and fled with the awaiting agent in hot pursuit. A second agent, seeing the activity, joined the chase. The first agent caught Loftis, and as he did so, both agents saw Loftis throw down two match boxes. One match box contained seven capsules of heroin. Loftis told the agents, "You don't have to look any more, that's all there is, you've got it." Then turning to the agent who caught him, Loftis said, "I was hoping that I could throw it before you caught me."

Without regard to any evidence found in the house or associated with Servance, the direct testimony about the seven capsules of heroin which Loftis attempted to throw away and his subsequent statements are so clear and overwhelming that not the slightest doubt could be entertained as to his guilt, and neither the admission of the "confession" nor the refusal to sever under the Bruton doctrine could be considered anything other than harmless in their effect upon the outcome of this trial.

The motion to continue and the motion to sever had the same thrust and are matters which are consigned to the sound discretion...