# Schneble v. Florida/Dissent Marshall

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Marshall
MR. JUSTICE MARSHALL, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE BRENNAN join, dissenting.
This is a capital case in which the petitioner was convicted of murder. When the case was last before us, we vacated the conviction and remanded for further consideration in light of Bruton v. United States, 391 U.S. 123 (1968). See Schneble v. Florida, 392 U.S. 298 (1968). On remand, the Supreme Court of Florida reaffirmed [p433] the conviction, holding that it was not "inconsistent with Bruton." While Bruton itself received an extensive factual analysis by the State Supreme Court, little attention was paid to the facts of the instant case and no reasons were proffered in support of the holding that Bruton was not violated. In today's opinion the Court rejects the Florida Supreme Court's conclusion that this case can be squared with Bruton and concludes that Bruton was violated when the statement of a nontestifying codefendant implicating petitioner in the crime charged was introduced at trial. Yet, the conviction is permitted to stand because the Bruton violation is viewed as "harmless error" within the meaning of Chapman v. California, 386 U.S. 18, 24 (1967). I dissent.
Determining whether or not a constitutional infirmity at trial is harmless error is ordinarily a difficult task. This case is easier than most, because it is impossible to read the record and to conclude that the evidence so "overwhelmingly" establishes petitioner's guilt that the admission of the codefendant's statement made no difference to the outcome.
The Court relies on Harrington v. California, 395 U.S. 250 (1969), to support its conclusion, but that case is inapposite. In Harrington, the Court found harmless error where statements of two nontestifying codefendants were introduced at trial to demonstrate Harrington's presence at the scene of the crime. That decision was limited to a factual setting in which the defendant admits being at the scene, and the improperly admitted statements of the codefendants are merely cumulative evidence. I most urgently protest the extension of that case to these facts.
It is true that prior to trial petitioner confessed to murdering the victim. But, it is also true that when he was first arrested, petitioner denied his guilt and [p434] placed the full blame on his codefendant. He also denied being present when the murder was committed. Only after he was subjected to a series of bizarre acts by the police designed to frighten him into making incriminating statements did petitioner "confess." The full spectrum of events leading up to the confession is set out in detail in the first opinion of the Supreme Court of Florida, 201 So. 2d 881, 884-885 (1967).
Petitioner moved to suppress the statements that he made to the police on the ground that they were the direct result of police coercion. Recognizing that the police acted improperly in attempting to obtain a statement from Schneble, the Florida Supreme Court upheld the trial court's finding that the incriminating statements were made in circumstances sufficiently attenuated from the coercive activities as to remove the taint. Out limited grant of certiorari does not permit review of this ruling. But, the limited nature of the grant does not bar us from looking at the entire record in the case in order to dispose of the one issue presented.
Before the trial judge permitted the jury to hear testimony regarding petitioner's incriminating statements, he made the initial determination that those statements were voluntary as required by Jackson v. Denno, 378 U.S. 368 (1964). He subsequently instructed the jury in the following manner:
   "Should you find from the evidence that any alleged statement or confession as to any defendant was not freely and voluntarily made, or if you have a reasonable doubt in this regard, then you must disregard the same, as well as any other item of evidence that may have been discovered by the State by reason of such alleged statement of [sic] confession." (Tr. 561.)
We have no way of knowing what judgment the jury made with respect to the voluntariness of petitioner's [p435] statements. In my opinion, there is clearly enough evidence to support either a finding of voluntariness or one of coercion. Since an error cannot be harmless if there is a reasonable possibility that it contributed to a finding of guilt, all reasonable inferences that might be drawn from the evidence must be drawn in favor of the defendant, since the jury may very well have made just these inferences. Thus, we can assume that the jury found petitioner's incriminating statements to be involuntary.
We must also assume that the jury followed the instructions of the court and disregarded not only the statements themselves, but all the evidence "that may have been discovered by the State by reason of such... statement[s]...." It is possible that the jury may have found the statements to be involuntary and still relied on them. See Jackson v. Denno, supra. But, it is by no means certain that the jury did not meticulously follow the instructions of the trial judge. See Lego v. Twomey, 404 U.S. 477 (1972). Since either assumption may be made, we must again choose the assumption favorable to the defendant in order to insure that any error was harmless.
Assuming, then, that the jury completely disregarded petitioner's incriminating statements and all evidence derived therefrom, little evidence remains to support the verdict. Only the statement of the codefendant places petitioner at the scene of the crime at the relevant time. Without this statement, it is difficult to believe that anyone could be convinced of petitioner's guilt beyond a reasonable doubt.
The Court asserts, however, that "we must determine on the basis of 'our own reading of the record and on what seems to us to have been the probable impact... on the minds of an average jury,'... whether Snell's [the codefendant's] admissions were sufficiently [p436] prejudicial to petitioner as to require reversal." The Court concludes that "the 'minds of an average jury' would not have found the State's case significantly less persuasive had the testimony as to Snell's admissions been excluded."
The mistake the Court makes is in assuming that the jury accepted as true all of the other evidence. The case turns on this assumption, and as demonstrated above, it is clearly erroneous. The jury was given the duty of making an independent determination of the admissibility of petitioner's incriminating statements and their fruits. In light of the evidence with respect to coercive police activities, we cannot stay with even a minimal degree of certainty that the jury did not find the statements involuntary and that it did not choose to disregard them and almost all of the other evidence in the case which was derived from those statements. We also cannot be certain that the jury did not base its verdict primarily on the statement of the codefendant. See Malinski v. New York, 324 U.S. 401, 404 (1945); cf. Rogers v. Richmond, 365 U.S. 534 (1961) (Frankfurter, J.).
The Court would assume that the jury must have found petitioner's statements to be voluntary and therefore admissible along with their fruits, because the other evidence was insufficient to support a conviction. This assumption is erroneous for several reasons. First, the jury may have found that some of petitioner's statements were involuntary and some were voluntary. The "voluntary" statements may have been connected with the codefendant's statement to support the conviction, while standing alone they may have been insufficient to support a guilty verdict. Second, the jury may have found that the statements were all involuntary but that some evidence remained free from any taint. Whereas the Court indicates that if the statements were involuntary, [p437] then all the other evidence in the case except the codefendant's statement must be suppressed as a matter of law, the jury was given only a general instruction on suppression and may, incorrectly and unwittingly, have more narrowly circumscribed the taint. The codefendant's statement bolstered any other evidence considered by the jury. Third, the jury may have found the statements to be involuntary and ignored all the evidence that the Court says should have been ignored. The jury may then have convicted on insufficient circumstantial evidence, including the codefendant's statement. We need ascribe no malevolence here; we need only recognize that humans err. Indeed, the very notion of "harmless error" should constantly remind us of that. Any one of these things is a reasonable possibility, and despite the apparent certainty with which the Court affirms the decision below, there remains a deep and haunting doubt as to whether a constitutional violation contributed to the conviction.
In light of these uncertainties I find it impossible to perceive how the Court can conclude that the violation of Bruton was harmless error. It is significant that the Florida Supreme Court did not find harmless error in this case. Unless the Court intends to emasculate Bruton, supra, or to overrule Chapman v. California, supra, sub silentio, then I submit that its decision is clearly wrong.

## Notes

* ↑ Rogers v. Missouri Pacific R. Co., 352 U.S. 500 (1957), cited by the Court to support the proposition that we do not lightly infer irrational jury behavior had nothing whatever to do with a criminal case generally or with "harmless error" in particular. That case dealt with the proper function of judge and jury in Federal Employers' Liability Act cases. It never considered whether reversal was required when evidence was admitted in violation of the Constitution. Rogers was, in short, a case involving the sufficiency of the evidence. In such cases we draw precisely the opposite inferences as drawn in "harmless error" cases.