Roy v. Hall, 75-1021

• Citation: 521 F.2d 120
• Decision Date: 11 August 1975
• Docket Number: No. 75-1021,75-1021
• Parties: Charles H. ROY, Petitioner-Appellant, v. Frank A. HALL et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 120

521 F.2d 120

Charles H. ROY, Petitioner-Appellant, v. Frank A. HALL et al., Respondents-Appellees.

No. 75-1021.

United States Court of Appeals, First Circuit.

Argued April 9, 1975.

Decided, Aug. 11, 1975.

David Sonenshein, Boston, Mass., for appellant.

Barbara A. H. Smith, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., and John J. Irwin, Jr., Asst. Atty. Gen., Chief, Crim. Div., were on brief, for appellees.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

COFFIN, Chief Judge.

Appellant was tried before a jury and convicted of arson and involuntary manslaughter. After the Massachusetts Appeals Court affirmed the conviction, Commonwealth v. Roy, 1974 Mass.App.Adv.Sheets 199, 307 N.E.2d 851, and the Supreme Judicial Court denied further review, he filed a petition for federal habeas corpus. Appeal is now taken from the district court's denial of the writ.

On January 8, 1972, appellant's homosexual lover and roommate died in a fire at the apartment which they shared. When police officer John Fallon arrived on the scene, he was directed to appellant, who was standing nearby. Fallon asked, "Do you live down there?", and appellant responded affirmatively. Fallon's testimony at both the suppression hearing and trial was that he then asked what had happened and appellant responded, "We were fighting and throwing things around, so I set the curtains on fire." That this first statement, made before appellant was taken into custody, was properly admitted at trial is not here disputed.

After appellant was arrested and taken to the police station he was questioned by Lloyd Langill, a fireman attached to the arson squad. Langill testified at the trial: "He told me that he had an argument with his roommate, that he had struck him, and that the roommate had left the building and that he had set fire in the kitchen to the curtains with a match." The Appeals Court ruled that this second statement should not have been admitted, since Langill's testimony at the hearing on suppression indicated that appellant's Miranda ¹ warning was incomplete in that it did not advise of the right to have counsel appointed. The court found this error to be harmless, however, since it viewed the statement as merely cumulative.

Sergeant Francis Whalen of the homicide division testified that appellant made a third statement to him. A poor-quality tape recording of the conversation between appellant and Whalen was made, and at the hearing the tape was played. Whalen also supplied a transcript of the tape which contained the following exchanges:

"Q. Anything else you want to tell me about the fire?

A. I did it, I started it.

Q. You started it?

A. Yes, I started it.

Q. What was your intention when you started it?

A. Don't ask me, don't ask me."

The tape continued, but the trial judge suppressed the remainder of the statement, apparently on the ground that appellant had indicated that he did not wish the questioning to continue. When Whalen testified at trial, however, he did not read the portion of the transcript reproduced above. He read only statements relating generally to appellant's relationship to his roommate and the nature of their fight on the night of the fire. It is possible that the jury heard appellant's confession when excerpts from the tape were played as part of the cross-examination of Whalen, but nothing definitive can be said on this issue since the trial transcript does not indicate which portions of the tape were played.

Appellant argues that the second statement, which was made to Langill and was the subject of his testimony at trial should have been suppressed. ² The Massachusetts Appeals Court found a Miranda violation in the admission of the testimony, but nonetheless affirmed the convictions on the theory that the error was harmless. The court held that since no significant details were contained in the Langill statement that were not in the other two statements, that statement was entirely cumulative and its admission was "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The federal district court took a similar position in denying habeas corpus.

After examining the trial transcript, we are unable to agree that this is a proper case for the application of the harmless error doctrine. In ruling that there was no reasonable possibility that the introduction of Langill's testimony contributed to appellant's conviction, both the Appeals Court and the district court apparently viewed the trial as one at which testimony was presented attributing three directly inculpatory statements to appellant. If such had been the case, we also might conclude that a third statement pales into insignificance after the introduction of two others. Neither court noted, however, that there is no assurance that the most incriminating portion of the third statement (to Whalen) was ever put before the jury. Each opinion's statement of facts reports the substance of the third statement as testified to by Whalen at the pretrial hearing, but Whalen's recitation at trial ended before he reached appellant's confession that he had started the fire. The Commonwealth has called our attention to the fact that the recorded conversation between Whalen and appellant was itself played, in part, for the jury. While it is thus possible that the jurors heard the confession, ³ the record does not establish what portions of the tape were played at trial. We have no choice but to assume, for present purposes, that the presentation of the third statement at trial was limited to Whalen's recital.

The evidence which the Commonwealth presented against appellant, exclusive of the portion of the third statement not read by Whalen at trial, was far from the "overwhelming evidence of guilt" which can support the conclusion that constitutional error was harmless. See Milton v. Wainright,407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972); Harrington v. California,395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The only evidence tending to show that the fire was attributable to the commission of a crime by appellant rather than to an accident or other cause consisted of the testimony of Fallon, Langill and Whalen, each of whom purported to repeat an incriminating statement made by appellant. The relevant portion of the third statement establishes only the general nature of appellant's relationship with the deceased and the fact that they had quarreled, apparently due to sexual jealousy, on the night of the fight. While the first statement as reported by Fallon was unequivocal and damning, the jury was by no means bound to accept the testimony as accurate. Appellant took the witness stand and denied that he started the fire, and also stated that he did not recall making any of the incriminating statements attributed to him. Defense counsel argued that it was possible either that Fallon misunderstood the few words spoken by appellant or that to consider the words a confession of guilt, even if they were correctly reported, involved a misinterpretation. Appellant testified that he had been drinking heavily on the night of the fire, and his description of his conduct during and after the fire would support the conclusion that he was confused and panicky.

Given these possible grounds for discounting Fallon's testimony or drawing conclusions from it inconsistent with the prosecution's theory of the case, the corroboration provided by the statement to Langill cannot be regarded as insignificant. It added concreteness in four respects: the fight resulted in appellant's being struck; the fire was started in the kitchen; the instrumentality was a match; and the deed was done with some deliberation, i. e., after the roommate had supposedly left the building. There is undoubtedly "a reasonable possibility that the evidence complained of might have contributed to the conviction," Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963); Chapman v. California, supra, 386 U.S. at 24, 87 S.Ct. 824, 17 L.Ed.2d 705; United States ex rel. Macon v. Yeager, 476 F.2d 613 (3d Cir.), Cert. denied, 414 U.S. 855, 94 S.Ct. 154, 38 L.Ed.2d 104 (1973). Harmless error is a doctrine of dangerous elasticity. It poses a constant challenge to the judgment and restraint of reviewing courts. We have found no case where error affecting the most complete and detailed confession among those which constitute almost the entire prosecution case has been considered harmless, and we decline to expand the doctrine to reach this case.

This, however, does not end our consideration, for we also disagree with the Appeals Court's determination that appellant's second statement (to Langill) was improperly admitted. The Appeals Court's ruling on the admissibility of the second statement is short enough to be easily reproduced here in full:

"With respect to the statements made to Officer Langill of the arson squad, however, we must agree with the defendant. The judge's finding that 'the defendant was...