Warren E. Burger: We'll hear argument next in Parker against Randolph. Mr. Terry, I think you may proceed now whenever you're ready.
Michael E. Terry: Mr. Chief Justice, may it please the Court. The case which I have the privilege of presenting to this Court began in Memphis, Tennessee in 1970. As the Sixth Circuit opinion states, “This matter involves a sequence of events which have the flavor of the old West before the law crossed the Pecos. The difference is that here, as the Sixth Circuit stated there are no real heroes and there was a trial.” It seems that in July of 1970, a Las Vegas gambler by the name of William Douglas came to Memphis with a gun, an alias, and a device for marking cards. Douglas sought through some local connections in Memphis, a card game. He was introduced eventually to a Memphis gambler by the name of Robert Wood. Wood apparently felt that through his skill at poker he would be relieved Douglas of his money. However, Douglas opted for the advantages of marking the cards rather than the uncertainties of skill and in three head to head matches he relieved Wood, Robert Wood, of approximately $5,000.00. And Wood apparently had some confidence in himself and in his game because he didn't blame the losses on his own incompetence and began to suspect that he was being cheated. He became convinced that he was being cheated and together with his brother, Joe Wood, had formed a plan to recoup his losses. That plan involved using Joe Wood and three respondents in this matter to rob a fourth poker game between Mr. Douglas and Robert Wood. Thus, Robert Wood's plan in a nutshell was to recoup his gambling losses by the robbery proceeds. Prior to the night of the fourth game, Mr. Joe Wood, his brother and two of the respondents here, Hamilton and Pickens, went to the scene of the fourth game, looked it over, plan their strategy and according to the evidence there was some discussion on how the proceeds would be split. On that night of the game, there were four people in the room when the game began, Robert Wood, Joe Wood, Mr. Douglas, and an individual, by the name Tommy Thomas, who said to be a mutual acquaintance of Douglas and Robert Wood. About 9 o'clock of that evening, Joe Wood began to unfold the robbery plan. He got up and said he was going to the store to buy some beer. He went outside and he met with the three respondents. They did go to the store. They did buy some beer but apparently they station their cars some place suitable to their plan. And they approach the apartment together and Mr. Douglas became suspicious. He heard noise outside. He armed himself with a shotgun. Now Joe Wood removed the three respondents from right outside the door of the apartment. Before Douglas could see him and he was allowed to crawl backed into the apartment while being watched with Douglas who was on with a shotgun. Once Joe Wood was back inside, the game continued. The three respondents were outside. Joe Wood then, short time later telling the people inside that he had to use the bathroom, entered the bathroom of the apartment and came out armed with a gun. He apparently was a little nervous at that time because he gave the gun to his brother, Robert Wood, who was seated at the table playing cards with Douglas and Joe Wood left leaving the door to the apartment open. Tommy Thomas at that time was lying on floor. He got up, closed the door and attempted to mediate between Douglas and Robert Wood. As the evidence shows, Douglas apparently reached for a gun that was in his belt at that time and Robert Wood killed by --
Potter Stewart: Where was this in a private residence or --
Michael E. Terry: This was in an apartment house in Memphis. It was in --
Potter Stewart: In an apartment, is it?
Michael E. Terry: Yes, sir. Within seconds from the shot that eventually killed Mr. Douglas. The door flew open and the three respondents came running in to carry out their plan of robbery. They fired two shots within the apartment. Rob Thomas of some $50.00 to $80.00, took the proceeds off the table, took a knife and then the five eventual defendants in this case, the two Wood brothers and the three respondents here, Hamilton, Pickens, and Randolph left. Subsequently, they went from there according to the evidence over the Hamilton's apartment where they hid the weapons, divided up the money and went there separate ways. Douglas of course died. Subsequently, they were all either arrested or they turned themselves within to the Memphis Police Department. Prior to their trial, four of these individuals gave statements to the Memphis Police Department. Joe Wood never gave a statement and he did not testify at trial. Robert Wood gave a detailed lengthy statement that was later introduced in a trial in a redacted form. Robert Wood also testified at trial. Mr. Hamilton --
John Paul Stevens: What is the state's position on redaction? Somewhere in the briefs, I had the impression the state conceded the redaction was not effectives, do you agree to that?
Michael E. Terry: Mr. -- Mr. Justice, I think that the redaction process was admirable. I do not concede that it wasn't effective. What I -- what I mean by that is I don't think that redaction when there's two defendants sitting there and the references are the two others is ever a substitution for cross-examination or confrontation. But I do think it's a factor to be considered when you get to the issue of the devastating effect of the co-defendants' statement. In other words, I think it's better in this case that there was an attempted redaction. For instance, in some of the cases here where this Court has found harmless error like Schneble and Brown. There was no redaction so --
John Paul Stevens: So -- so it isn't a question of erroneous redaction where some words that should have gone off or left in?
Michael E. Terry: No, sir. I perceive a redaction as a fact to be considered --
John Paul Stevens: I understand you.
Michael E. Terry: -- in reaching the -- in reaching the final question.
Potter Stewart: Now in this trial, there were how many co-defendants?
Michael E. Terry: There was five, sir.
Potter Stewart: Five co-defendants --
Michael E. Terry: Yes, sir.
Potter Stewart: -- the charges were murder and robbery?
Michael E. Terry: They were charged under the felony murder statute, murder and perpetration of robbery.
Potter Stewart: All charged with murder and some of most so if not all of them charged with robbery as well?
Michael E. Terry: They were charged. I don't believe they were charge with armed robbery.
Potter Stewart: It's not a matter of belief. It's what happened with what --
Michael E. Terry: I -- I know. I -- it is my understanding of the record that they were charged with murder and perpetuation of robbery and were convicted of that offense.
Potter Stewart: Five co-defendants.
Michael E. Terry: Yes, sir.
Potter Stewart: In one trial.
Michael E. Terry: Yes, Your Honor. Now, Hamilton gave two confessions. One oral which was immediately reduce to writing and admitted in a redacted form. He gave -- he went through a question and answer routine with the police department that was transcribed but not admitted. Randolph gave two all statements was later admitted. Both redacted and admitted. Pickens went through the same question and answer, routine with the police department. His question -- the questions and the answers were transcribed -- there was redaction and performed and there were admitted. In Pickens case, he signed the transcription and initialed each page also. The redaction process reduced any references to the -- to the other defendants either eliminated them, deleted them or changed them to they references, two other party references, we or guy. The guy reference is the only indication of the sex of the people who were involved. There is no indication of any other physical characteristics, no indication of race. Now, it's the position of State of Tennessee here that the question before this Court is a Sixth Amendment question involving a right to confrontation? We maintain that the error in this matter below stems from an inappropriate application of Bruton to the facts in this case. We believe it is impossible to draw a logical analogy between these facts and the facts in the Bruton case. To do that -- to draw that analogy ignores some very real distinctions in this case and also ignores the decisions of this Court in Schneble, Harrington, and more recently in Brown. We think the most important distinction between this case and Bruton is that in this case the parties raising the Bruton objection had confess themselves that their confessions are internally consistent, that they corroborate each other and then they have been redacted. We think that this -- these factors have an impact -- have an effect on the question of devastation. The question that concern this Court very much in Bruton. We think that the risk of prejudice to these people is eliminated because of the internal consistency, because of the redaction. We think that the overall effect of the confession is simply cumulative. I think another important distinction between this case and Bruton is a testimony of Robert Wood and the testimony of Tommy Thomas. Robert --
John Paul Stevens: Mr. Terry, are you basically making a harmless error argument?
Michael E. Terry: Mr. Justice, I think that it's fair to say that but I think that --
John Paul Stevens: The reason I'm asking. Supposing one of these confessions had been very, very brief and really didn't -- didn't -- wasn't enough to cast a proof beyond a reasonable doubt as to him or just some kind of an inculpatory statement attended to hurt him in the trial. Would he be disabled from making a Bruton objection if he didn't have enough -- if -- if there were not proof beyond reasonable doubt apart from the other confessions? Now, as a -- you are -- as a matter of law that whenever you confess here. You don't have the Bruton objection or you argue in this case it's harmless error?
Michael E. Terry: The problem I have of that Mr. Justice Stevens is -- is starting with Bruton as a starting point when you have more than one confession or when the objector is also a confessor. I think at that point, you should go back to the Sixth Amendment and the question should be confrontation. And what does confrontation require and whether the remedy has to be what occurred in Bruton. In Bruton, I think under the facts of Bruton, George Bruton was convicted on hearsay. There was very little else there. Here, that's a different situation and that's why, I don't like to say harmless error because harmless error assumes a Bruton violation. And I don't think there was a Bruton violation here. If there's a violation, it's a Sixth Amendment --
John Paul Stevens: Or is it because the -- each defendant confessed or because the confession of each defendant was very, very probative against him?
Michael E. Terry: I think the most important distinction is that they confessed. They incriminated themselves.
John Paul Stevens: You would make the same argument even if you didn't have -- what's the other Wood -- if you didn't have a confession from Robert Wood and if you didn't have a lot of detail in each of confession -- in -- just say -- say that for example, Pickens had a very short confession in which he just said, “Well, I met with these people but then I went home.” He didn't really say for that. And that's all he confessed to. Would he be disqualified from raising the Bruton objection? And you don't have a Wood's confession in there. On the basically your proof consist of the -- what's in the Randolph confession and the Pickens confession?
Michael E. Terry: Our -- no, I think that Mr. Pickens would be in much better situation because --
John Paul Stevens: Well as a matter of law, would he be able to make a Bruton con -- Bruton objection? He would have made a confession?
Michael E. Terry: Again and I, you know, I don't want to appear to argue with you. I think he should make a Sixth Amendment confession because a Sixth Amendment objection. A right to confrontation objection --
John Paul Stevens: Well, yes.
Michael E. Terry: -- no cross-examination.
John Paul Stevens: Unless --
Michael E. Terry: I am being convicted on hearsay. He would be saying. Not Bruton, it's just not Bruton because Bruton there's one confession and it is in -- and the person raising it is sitting there silently. Not testifying and not confessing. And I think that you have different situation where you have corroborative confessions.
John Paul Stevens: You see, what I'm trying to find out is whether you're making a legal argument or factual argument? Now, you make a very strong factual argument in your brief that the evidence is overwhelming against each of these people. But is that because of this particular record or because as a matter of law. None of them has the right to make this --
Michael E. Terry: I think it's because of this particular record and I think that under harmless error. I'm saying harmless error under Sixth Amendment. Not harmless error under Bruton and that that -- I know its confusing but I'm not the only one confused if you read the circuits in this situation, a very much split and they -- and they go through a process of trying to figure out exactly what they're saying and some of them in the end say it doesn't make any difference what we're saying. But I think the important thing is to go back to the right of confrontation and not stop it Bruton. Go all the way back and say, what is confrontation require. If confrontation requires cross-examination, then and there is no cross-examination. Then what is the remedy? In Bruton situation, he's convicted on hearsay, in this situation. They're not. So the remedy does not have to be reversal. The remedy here it can be affirmance, even if -- even if you say that there is a technical violation of a right to cross-examine that is secured by the Sixth Amendment. There's still does not have to be the drastic remedy that was necessary for Bruton.
Byron R. White: Well, Mr. Terry, tell me. Mr. Pickens, the holding below is of his confession was improperly admitted against him, isn't it?
Michael E. Terry: Because of Miranda.
Byron R. White: So there's no interlocking confession issue as to him under Bruton, is still here? Is the case considered?
Michael E. Terry: I'll be less than candid to tell you that we're in as good position with Mr. Pickens as we are with Randolph and Hamilton.
Byron R. White: If it is improper -- it was improperly admitted then it's obviously no interlocking confession issue at all as to him, is it?
Michael E. Terry: Well --
Byron R. White: Then Bruton has violated as to him?
Michael E. Terry: It --
Byron R. White: As what -- what you have suggested it. And in his situation, he may have been the victim of a conviction on hearsay evidence.
Michael E. Terry: That's correct. Except what --
Byron R. White: When Mr. -- at least as to -- as to Pickens, isn't he entitled a little affirmance here?
Michael E. Terry: Pickens was positive -- he was identified by Robert Wood.
Byron R. White: I -- I know but you said yourself, as I understand it, the three confessions were introduced afforded for.
Michael E. Terry: Because Robert Wood was in --
Byron R. White: And it's been held now that Pickens was improperly introduced.
Potter Stewart: Right.
Michael E. Terry: Yes, sir. Yes.
Byron R. White: Well then, if -- if his conviction rests on the three confessions that were introduced, why isn't that a Bruton situation?
Michael E. Terry: It's not a Bruton situation because --
Byron R. White: A -- as to him?
Michael E. Terry: As to him is not because --
Byron R. White: If -- if conviction rests only on the convict -- on the confessions of the others that were introduced.
Michael E. Terry: Because Robert Wood testified at trial and he said Pickens was one of those people who came through that door and he was cross-examined and he was -- and in cross-examination, Pickens' counsel asked one question. He said to Robert Wood, “Did Robert Pickens worked for your brother?” He never contested the identification and Robert Wood had just identified his man as coming to --
Byron R. White: What you're -- what you're telling me is this evidence other than --
Michael E. Terry: Yes.
Byron R. White: -- the confessions?
Michael E. Terry: Yes.
Byron R. White: So with evidence of Robert Wood.
Michael E. Terry: Yes. And that's different in Bruton.
Potter Stewart: Which of these defendants if any or maybe all of them, testified at the trial?
Michael E. Terry: Robert Wood. Robert Wood testified the other three did not testified.
Potter Stewart: Well, you told us there were five co-defendants?
Michael E. Terry: Joe Wood did not either. Joe Wood, the reason I'm treating him different because he has made no statement either. He just --
Potter Stewart: But he was a co-defendant?
Michael E. Terry: He was co-defendant --
Potter Stewart: Only one of the five testified that it was Robert Wood?
Michael E. Terry: Yes, sir.
Potter Stewart: In the Bruton case, there was Evans whose confession was the critical document or the critical fact. I guess it was an oral confession testified to by some police with him. And Evans didn't testify at Bruton neither the co-defendants --
Michael E. Terry: No.
Potter Stewart: -- testified.
Michael E. Terry: No.
Potter Stewart: All I had was the confession of evident -- of Evans as reported by a third party. And the court --
Michael E. Terry: Posts comes back --
Potter Stewart: The trial court say, you can't use that except against Evans and this court held that despite those instructions that was so damaging with respect to Bruton and violated so greatly his Sixth Amendment right to confrontation that that conviction was reverse, is that it? But --
Michael E. Terry: That's accurate.
Potter Stewart: -- neither of them would testify.
Michael E. Terry: Neither one testified and there was no redaction.
Potter Stewart: Right.
Michael E. Terry: And in an examination with this Court found in rendering the opinion that Evans confessing was just about it against Bruton. As a matter of fact, later on Evans was -- Evans' conviction was reversed because --
Potter Stewart: What happened before the case got here --
Michael E. Terry: Right.
Potter Stewart: -- if you remember?
Michael E. Terry: Correct, before it got here. So --
Potter Stewart: We must have Bruton's case here.
Michael E. Terry: That's correct. And Bruton, the weight of the weight of the evidence in the record against Bruton was Evans' confession which was hearsay.
Potter Stewart: Although, it says right until by the trial judge to disregard with respect to Bruton.
Michael E. Terry: Yes, they had. And that's – that's what this Court said.
Potter Stewart: So the judge must have considered there was an evidence other than that confession to go -- to take a case to the jury.
Michael E. Terry: I don't think so. But I don't think that there was much and in reading this Court's opinion. I think this Court found that there wasn't much other than that.
William H. Rehnquist: Bruton was federal prosecution, wasn't he?
Michael E. Terry: Yes, it was.
Potter Stewart: Yes.
Michael E. Terry: Yes, it was. I think that if you go through the testimony in this record other than the confessions. Put the confession aside and go through everything else. Go through Robert Wood's testimony. Go through Tommy Thomas' testimony. Go through the police officers' ballistics report. Go through the finding of the weapons at Hamilton. At the end of that review, you -- there was also a number of witnesses outside the apartment who could not positively identify the people but could relate physical characteristics. At the end of that review, there's only one question that you -- that is left and that is who were those three people who broke down that door and came in there, what was there names? Who were they? That's only thing left unanswered by the competent, admissible evidence in this record. That question is answered by the people who broke down the door themselves. They came in then one by one and say, “I did it. That was me.” And that's the only value, that's the only value of their confession. That's the only thing that you get from there confession that you don't already have and you sort of have that, although you don't have it as well as any prosecutor would like to have it in Robert Wood's identification of them.
Byron R. White: Mr. Terry, may I come back a moment with these Pickens and Wood's testimony. I'm looking at Footnote 27 of your brief at page 19. Petitioner's cognition of this Court's finding that Pickens' confession was admitted in violation of Randolph. The Court of Appeals decision affirmed that this finding in the last sentence of the opinion. This Court remembered the writ of certiorari to the Bruton issue and how is the running Bruton issue here as to Pickens?
Warren E. Burger: What argument?
Michael E. Terry: How is there a Bruton issue?
Byron R. White: Yes.
Michael E. Terry: Well, there is a Bruton issue. He's here complaining?
Byron R. White: He's not here complaining. You're complaining.
Michael E. Terry: He's --
Byron R. White: He is satisfied with what happen below.
Michael E. Terry: But I'm complaining that the writ of habeas corpus was issued because he has been successful with the Bruton argument in the Sixth Amendment. The Sixth Amendment opinion says that Pickens' rights were violated according to Bruton. And they talked about Miranda in about two sentences and I -- and I --
Byron R. White: Well, if his -- if his confession was improperly admitted. Then I don't see how -- is anything about his confession of the facts. The holding was to Bruton in his favor. The pro se was then convicted only on the testimony of the --
Michael E. Terry: I agree with you. I agree --
Potter Stewart: With the event -- whether or not there might also be a Bruton issue with respect to him. His conviction has been reversed because of a Miranda violation.
Byron R. White: Yes.
Michael E. Terry: No.
Potter Stewart: Isn't that correct?
Michael E. Terry: No. His confession has been struck from this record because of a Miranda --
Potter Stewart: Well, before his conviction may be reversed for a new trial, that's generally the result.
Michael E. Terry: No, Your Honor.
Potter Stewart: If a confession is improperly admitted.
Michael E. Terry: Not if you can say that there's still enough evidence in this record to convict --
Potter Stewart: No. No -- no. That's says no to me. If a confession is wrongfully admitted at trial against a defendant in a criminal case regardless of the error there or other evidence that conviction is reversed for a new trial, isn't it?
Michael E. Terry: Well, I --
Potter Stewart: Well, isn't it?
Michael E. Terry: -- I think that has been holding of this Court in the past.
Potter Stewart: In many times? In what other courts?
Michael E. Terry: What I -- what I urged with regard to Pickens is and I mean to emphasize this. I don't mean to give you the impression that I think that we're as well off with regard to Pickens as we are with Hamilton and Randolph.
Potter Stewart: Well, all of these convictions are --- convictions were reversed by the Court of Appeals, were they not?
Michael E. Terry: Yes.
Potter Stewart: And Pickens was reversed because of among other maybe two reasons but one of them was that his himself incriminatory statement was admitted against him in violation of the Miranda rule. And that would alone lead to the reversal of this conviction, would it not?
Michael E. Terry: About the only thing the Court of Appeals said about that was it they were reversed under Bruton and they went through pages and pages --
Byron R. White: Wny what -- what's your second question in the petition for cert which we refuse to review. Does this apply to Pickens?
Michael E. Terry: It has to do with --
Byron R. White: What the Court of Appeals and District Court violated 2254 (d) by finding out one of the respondents was denied of his right to counsel, is that Pickens?
Michael E. Terry: Yes.
Byron R. White: Well, we refuse to review that.
Michael E. Terry: I know and I'm not asking you to review it. Not again. I already have asked you but I'm not asking you now? I'm not asking you to review that.
Potter Stewart: Well, I -- so if Pickens conviction was reversed for that reason alone, if -- if for no other.
Michael E. Terry: Pickens conviction by reading the Court of Appeals opinion was reversed for a violation of Bruton in the bottom line of their opinion they say, we do not have to reach the Miranda issue or discuss it but we have looked at it and we agree with the District Court and that's about it.
William H. Rehnquist: Even that isn't technically accurate, federal habeas courts of appeals don't reverse convictions, do they? They either affirm or reverse the grant or denial of the writ by the District Court.
Potter Stewart: That's right.
Michael E. Terry: They issue the writ of habeas corpus and in this case that meant that we had -- a reasonable time to retry them or let them go. I would like to reserve some time to rebut Mr. --
John Paul Stevens: Do you mean Pickens, isn't either one that didn't get anything out of this whole thing. The others get $50.00 a piece --
Michael E. Terry: I -- I think the only place you can make that finding is in his own confession. If you read everybody else's version, Pickens got as much as everybody else.
John Paul Stevens: He got $50.00 too?
Michael E. Terry: $50.00.
Potter Stewart: Each claimed but he was the one who didn't get anything?
Michael E. Terry: He is the one.
Warren E. Burger: Mr. Evans.
Walter L. Evans: Mr. Chief Justice --
Byron R. White: You're going to deal with Mr. Pickens' case, differently from the other two or not?
Walter L. Evans: Yes.
Byron R. White: Alright.
Walter L. Evans: Yes, if Your Honor please. On the one hand and no in the other for purposes of clearing the error as far as the Bruton rule is concerned, I think that the Court should consider the whole picture of all the confessions. But we would contend that the finding below that the Pickens' confession was inadmissible because of violation of rule of Miranda. The Constitution file adjudication on that issue and his confession should be or his conviction should be reversed on that reason -- for that reason alone. But in considering the whole Bruton issue and the question of harmless error, I think that it would be good to consider Pickens' confession along with the other three and this would support our contention that all three of these defendants including Pickens would not the right to confrontation and cross-examination based upon the Sixth Amendment to the U.S. Constitution and the past decision of this Court was has been rendered since the Bruton rule. Now, the first issue involved in the matter of coming up from the Sixth Circuit was that involving the interpretation of Bruton, Schneble, and Harrington. We maintain in our original response file in our position to the state's petition that the state has erroneously characterized the facts of this case to Schneble and Harrington, and more or less overlooked the significance of the Bruton Rule. If you would notice in their briefs, they discount the importance of Bruton. I think that in every decision of this Court has some constitutional significance and Bruton certainly stands as a landmark on the question of violation of right to a confrontation and right to a cross-examination. As Mr. Chief Justice Burger stated and Davis versus Alaska, and also this Court in Pointer v. Texas and Douglas versus Alabama that the right to cross-examination is very much apart of the right of confrontation as stated in our Sixth Amendment to the United States Constitution. This case in our opinion will present somewhat of a precedent in the sense it would clear the air on the question of harmless error. The cases of Harrington and Schneble did not overrule Bruton which Mr. Justice Brennan wrote his rare reason argument on. This case is a case as Mr. Justice Stevens indicated involving the question of harmless error. Now, we talk about harmless error. We must look at Chapman v. California, Fahy versus Connecticut, Schneble v. Florida, Harrington v. California, and the Court has consistently stated that harmless error means harmless error beyond a reasonable doubt. And it is the federal standard which this Court should consider as indicated in the case of Fahy versus Connecticut. Now, the crucial facts of this case as they relate to the respondent's convictions are probably to two basic theories. The one promoted by the state and the theory of possible theories supported by us in our brief. And the state has made a sum conclusory statements throughout these proceedings which have indicated the facts of this case show very clearly that these respondents were part of the plan to rob. But a close examination and the view of the record in our opinion could lead this Court to conclude to the contrary are certain that lead this Court to conclude that the facts are not clear as to the respondents' involvement in these whole proceeding. Now, the District Court and the Sixth Circuit Court of Appeals for purposes of ruling on Bruton accepted the theory most favorable to the state on the question of the respondents' involvement in these whole proceedings.
Potter Stewart: All five respondents? There were two Wood brothers and then there were three others, weren't they?
Walter L. Evans: That's correct, Your Honor.
Potter Stewart: Is there any question about the involvement of the Wood brothers?
Walter L. Evans: No, there is no question as I understand it.
Potter Stewart: I mean in your mind or after reading the record?
Walter L. Evans: There's no question in my mind as to the Wood involvement.
Potter Stewart: Yes.
Walter L. Evans: In fact, we contend that the Wood brothers possibly along with Tommy Thomas, the supposedly impartial observer --
Potter Stewart: He was the fellow lying on the floor?
Walter L. Evans: Right. That the three -- the two or maybe three of them concocted the plan to and we deny that there was even in the plan to rob the poker game. This is a theory promoted by the state. But a close reading of the record that even a close examination of Robert Wood's testimony, of course the state relies upon so heavily, does not really support the theory in our contention about a plan to rob?
Potter Stewart: Why do you think those three others came there at all?
Walter L. Evans: If you would -- if the Court would examine the --
Potter Stewart: They did come there and the evidence was that they swept a lot of the money off the table, didn't they?
Walter L. Evans: That is not the evidence, if Your Honor please. The evidence shows that Robert Wood took all the money off the table. Some of which was his own. In fact the theory of the robbery is contained in the latter part of Robert Wood statement where he stated that, “If I caught the game of cheating, then I may -- I was going to ask for my money back.” He didn't say he was going to get any of the victim's money. He says, I'm going to ask for my money back, if I caught him cheating.
Potter Stewart: What is the -- what do you suppose the reasonable fact finder could have found as to the reason that those three others were came there all that night?
Walter L. Evans: Well, it's a -- Mr. Justice Stewart if would consider the confession of the statement, the all statement of Hamilton --
Potter Stewart: Uh-huh.
Walter L. Evans: -- which was presented to the jury. A reasonable conclusion could be drawn that Hamilton worked for Joe Wood. He was asked to bring a couple or bring some of his friends by this particular apartment. He may not have even indicated the purpose of their coming back. But assuming he indicated that my brother was involved in the poker game and that he felt that this other fellow was cheating him, and he might just need some physical bodies present when we asked for his money back. And this why they went there because his boss had told him --
Potter Stewart: Yes.
Walter L. Evans: -- “I want you to come and may you bring some of your friends.” But we deny and the record would support our contention that these three respondents possibly did not even have any weapons.
Potter Stewart: Where the Wood brothers white man and the three respondents Negroes?
Walter L. Evans: That is correct, Your Honor.
Potter Stewart: The three others. That is my impression.
Walter L. Evans: And the -- the entire episode carries a very interesting scenario and we have a situation here where the -- the evidence that was presented. If you really examine the evidence presented before the jury and the state's theory is contained to a great extent of Justice Stevens' in that evidence which was not admitted into evidence before the jury. And one of the questions of harmless error, the Court must consider what evidence was presented before the jury. There were the facts --
Thurgood Marshall: Didn't we take this on one point only?
Walter L. Evans: Yes, if Your Honor please.
Thurgood Marshall: But how do we get to harmless error?
Walter L. Evans: Involved in the Harrington case. Harrington the specific issue in the Harrington and Schneble assumed a violation of Bruton. And the question was, was there harmless error in those cases? In this particular case, the first issue or the only issue before the Court as framed by the state is whether the United States Court of Appeals for the Sixth Circuit has correctly interpreted the law as stated by this Court in Bruton versus United States, Schneble v. Florida, and Harrington versus California. So, Harrington and Schneble were cases dealing specifically with or deal only with the question --
Thurgood Marshall: But why do you think Bruton is in there? Bruton didn't have anything to harmless error, did it?
Walter L. Evans: Bruton stood for the proposition that the admission into evidence of statements of co-defendants which implicate each other and where these co-defendants do not take the stand to testify and be available for cross-examination violates the co-defendants right to confrontation and cross-examination.
Thurgood Marshall: But in this case -- in this case, going to the state's argument, the only people that didn't confess were those that weren't arrested?
Walter L. Evans: The only ones who did not confess --
Thurgood Marshall: No. All of them did confess?
Walter L. Evans: All confessed except --
Thurgood Marshall: Right.
Walter L. Evans: -- in our opinion the crucial man.
Thurgood Marshall: Except one.
Walter L. Evans: Joe Wood was the link between these three respondents and the one who actually fired the fatal blow. Now, there are certain facts --
Byron R. White: Trying to finish.
Walter L. Evans: -- there are certain facts in this case that are undisputed without any question. Number one, Robert Wood was the person who fired the fatal shot. The state does not contend to the contrary.
Potter Stewart: And he was the card player, wasn't he?
Walter L. Evans: Yes. He was the card player. Secondly, neither of these respondents participated in the game nor had they been in the room at anytime prior to the shooting. The state does not contend to the contrary. Neither of these respondents took any money from the game at all. In their brief in fact they had -- they state that Robert Wood took all of the money. Well, a closer reading of the record, in the case that he took some money from the table and stuffed it in his pocket. Another theory might be Tommy Thomas took the rest after everybody had left. But nevertheless the state admits that Robert Wood took all the money on the table and stuffed it in his pocket.
Potter Stewart: Some of which he considered his anyway?
Walter L. Evans: Right. Some of these considered rightfully his.
William H. Rehnquist: But taking money isn't essential to the crime of robbery under Tennessee law, is it?
Walter L. Evans: No, but these respondents were convicted of murder in the perpetration of a robbery. And --
William H. Rehnquist: It doesn't or -- doesn't robbery simple require the --
Walter L. Evans: Forcible taking.
William H. Rehnquist: -- or in attempt to take with the threat to use great bodily force?
Walter L. Evans: If there was an attempt which was not consummated, I believe and you can correct me that that would be an offense of attempted robbery. But in this case they were charged with murder in effect during a robbery.
William H. Rehnquist: So you have to actually succeed under Tennessee law in getting the money in order for it to be robbery?
Walter L. Evans: Oh, I understand -- we will not -- we will not go there far if you please Mr. Justice Rehnquist and saying that the robbery had to be consummated at the time of the murder in order for that to be a violation of the statute. But what we would say is that at the time of the murder, there had been no attempted robbery. And the murder took place and if you would read these Tennessee Court of Criminal Appeals which is has a very interesting analysis of the felony murder doctrine. The murder took place before, before any attempted robbery if there was in fact a robbery and before these three respondents came into the room, if they came into the room. Now the state contends of the theory of harmless error that there is other evidence in the record of placing these particular respondents at the scene of the robbery or at the scene of the crime. Assuming --
Thurgood Marshall: Didn't George testify to that?
Walter L. Evans: Who is that?
Thurgood Marshall: Didn't the man who testified, did he say that they were there?
Walter L. Evans: But if the Court --
Thurgood Marshall: Didn't he?
Walter L. Evans: Not -- not --
Thurgood Marshall: Without evidence, wasn't it?
Walter L. Evans: No, if Your Honor please.
Thurgood Marshall: What?
Walter L. Evans: Did -- the testimony was assumed that they were there and the record will show that three out Robert Wood's testimony. When he was asked directly whether these respondents, where those three blacks who came into the room after the robbery, his statements were specifically, “I assume they were because I met them for a second after the robbery.”
Thurgood Marshall: If he -- if he met them for a second isn't that testimony that they were there?
Walter L. Evans: No, if Your Honor please.
Thurgood Marshall: Well, how long does that mean, two seconds?
Walter L. Evans: I -- he - he did not testify that they were there. He testified -- I assume that they were there which in our opinion is far different. He did not positively identify these three respondents as those three blacks who came into the room after the murder was committed. But assuming he did. The -- the only evidence that would be presented at that point is that these defendants came into a room after a murder. But in order to convict them of murder in a perpetuates of a robbery, where it is quite clear that they did not do the shooting and they did not even do the robbery. There must be a link and a plan, and that's what the Supreme Court of Tennessee considered in reversing the Court of Criminal Appeals. The Court of Supreme Court of Tennessee felt that they will nevertheless a part of the plan to rob. And as our contention that this part -- this plan in only contained in the confessions of these three respondents and a close examination of the record would present serious questions even considering all the evidence of this Court is not considering you know, the sufficiency of the evidence but --
Thurgood Marshall: You don't want us to reverse the Supreme Court, do you?
Walter L. Evans: If Your Honor please, we would like for this Court to support the opinions of the Court of Criminal Appeals of Tennessee the United States District Court for the Western District of Tennessee and the Sixth Circuit puts all three of these courts in reviewing the whole record. Not only --
Byron R. White: Actually, all you want is an affirmance of the Court of Appeals.
Walter L. Evans: That is correct. We are not seeking to a request of this Court to make any drastic in rules into the law. We're not seeking to overrule any of this Court's past decisions since Bruton. We are merely asking this Court to affirm the decision of three courts.
Harry A. Blackmun: No, one court.
Walter L. Evans: I'm sorry. One court if Your Honor please. That's the Sixth Circuit Court of Appeals --
Byron R. White: Where you in the state proceedings?
Walter L. Evans: No, I was not If Your Honor please.
Byron R. White: Do you know if the intermediate Court of Appeals of the state dealt with the Miranda issue at all?
Walter L. Evans: The -- the Tennessee Court of Criminal Appeals dealt with the sufficiency of the conviction on felony murder or murder in the perpetration of robbery in the Bruton rule.
Byron R. White: But it did not reach the Miranda issue?
Walter L. Evans: No, it did not.
Byron R. White: And neither that the Court of -- neither the Supreme Court of Tennessee, I take it?
Walter L. Evans: No, it did not.
Byron R. White: It just reversed?
Walter L. Evans: Right
Byron R. White: So, what this -- what the highest courts of the state think of the Miranda issue, we have no idea at all?
Walter L. Evans: No.
Byron R. White: And so the issue has never been exhausted in the Tennessee Courts?
Walter L. Evans: The issue was raised in the -- it was raised in the Court of Appeals --
Byron R. White: If it was though presented -- never presented in the state Supreme Court, was it?
Walter L. Evans: I believe it was, if Your Honor please, but the Court did not address itself to those issue. It disposed of the case on Bruton and also on the sufficiency of felony murder rule as I recall the record.
William H. Rehnquist: But if a state Supreme Court has present three federal constitutional claims. Ordinarily, it doesn't feel obligated to dispose of all three of them or just all three of them rather than saying, we will talk about this one and we won't talk about the other two?
Walter L. Evans: Well, the Court of Criminal Appeals felt that the reversal on the grounds of insufficiency of the felony murder and Bruton was --
Byron R. White: That would be true -- that would be true, the Bruton issue would dispose of the case but the -- that decision got reversed by the Court of -- by the Supreme Court of Tennessee.
Walter L. Evans: That is correct. So the Supreme Court of Tennessee only dealt with those two issues presented in --
Byron R. White: Yes, but the question then remains, what about the Miranda issue, was that ever decided by Tennessee courts? And I think that depends on whether is presented to the --
Walter L. Evans: The Miranda issue as I recall was not --
Byron R. White: Because the convictions were affirmed by the Tennessee Supreme Court and if the Miranda issue was presented, I suppose it was rejected.
Walter L. Evans: It would not have been. If Your Honor please. It would not have been considered by the Tennessee Supreme Court because the Court of -- the Tennessee Court of Criminal Appeals did not address itself to that issue. And the Tennessee Court of -- the Supreme Court, merely address itself to those issues contained in the Court of Criminal Appeals decision.
John Paul Stevens: Yes, but the question is when did the -- these respondents raised the Miranda issue in the state courts and then one of the state courts.
Walter L. Evans: It was raised initially in the trial court.
John Paul Stevens: And was it also raised in the Court of Criminal Appeals?
Walter L. Evans: I believe so if Your Honor please.
John Paul Stevens: Well, I know. Do you know so or not?
Walter L. Evans: It was raised to the best of my recollection that the records are pretty faked and I came in at the District Court, U.S. District Court Level. And in trying to review the entire record below, it did appear that the issue was raised before the Court of Criminal Appeals.
Thurgood Marshall: What -- did various in every state it seems the jurisdiction of the Supreme Court of Tennessee over the intermediary court. Did they take the whole case or part of the case or certiorari or how?
Walter L. Evans: The respondents appeal that conviction from -- on the trial court decision to the Court of Criminal Appeal.
Thurgood Marshall: Right.
Walter L. Evans: It was on appeal and after the Court of Criminal Appeals reversed all the term of the convictions on the basis of Bruton and insufficiency of the evidence on the state of Tennessee's felony murder rule, the state appeal that decision to the Tennessee Supreme Court.
Thurgood Marshall: Well under the law of Tennessee, does the whole thing go up or does just the constitutional part of it all?
Walter L. Evans: Those issues that were raised in the court below would go up.
Thurgood Marshall: Now, all of it. So if it was raised in the lower court, if went to the Supreme Court?
Walter L. Evans: It went -- it would go to the Court of Criminal Appeals.
Thurgood Marshall: Then after that, will it go to the Supreme Court?
Walter L. Evans: That was decided by the Court of Appeals will go to the Supreme Court.
Thurgood Marshall: Yes, that's --
Potter Stewart: That was -- that was decided or everything that was right?
Walter L. Evans: That was decided if Your Honor please --
Potter Stewart: Because all the Criminal Court of Appeals decided was that the conviction should be reversed for two reasons insufficiency of the evidence to prove a felony murder and secondly a violence of Bruton. And the -- that's all decided and that was sufficient and in fact, neither one of those was sufficient to --
Walter L. Evans: Right.
Potter Stewart: -- reverse the convictions. And then the state appealed to the Supreme Court of Tennessee at Jackson and according to appendix, page 227, where the opinion of that court appears. They say, this case presents two principle issues. They don't say it presents only two issues, two principal issues, i.e. the sufficiency of the evidence under the felony murder and secondly, the Bruton point. And then they proceed to discuss those two issues separately and reversed the Court of Criminal Appeals on both without ever discussing any Miranda claim.
Walter L. Evans: Right. That's true.
Potter Stewart: And therefore my brother Marshall's question, I guess is some importance, was there before them the Miranda claim?
Walter L. Evans: It was -- not before --
Potter Stewart: Which should not been dealt with by the Court of Criminal Appeals eventhough it raised there.
Walter L. Evans: Right. It was not before the Tennessee Supreme Court and it was not dealt with --
Potter Stewart: It was -- certainly, it wasn't surely wasn't dealt with and --
Walter L. Evans: It wasn't dealt with but presented on appeal from the trial court.
Potter Stewart: Uh-huh.
Byron R. White: You say it wasn't presented to the Tennessee Supreme Court?
Walter L. Evans: No, Your Honor. It was presented to the Court of Criminal Appeals.
Byron R. White: Yes, but not to the Tennessee Supreme Court.
Walter L. Evans: Right. That is correct.
Harry A. Blackmun: The only way you --
Walter L. Evans: The state was the appellant there.
Harry A. Blackmun: Sure, the only way you would present it --
Walter L. Evans: If we have lost --
Harry A. Blackmun: -- would be on the ground, look we raise this other question and even if we're going to lose on these two, we are entitled to hear that one. But you didn't have to present it there --
Walter L. Evans: No, they really -- respondents did not have to present or raise a new issue before this --
Potter Stewart: Before the appellant?
Walter L. Evans: Right. The state was one who appeal to the state --
Byron R. White: I'm just inquiring whether there's been exhaustion in terms of federal habeas corpus of the Miranda issue, exhaustion in the state court?
William J. Brennan, Jr.: Well, were you in the habeas proceedings?
Walter L. Evans: I was in the District Court--
William J. Brennan, Jr.: In the --
Walter L. Evans: Right, in the habeas --
William J. Brennan, Jr.: And did the state ever raised any to failure to exhaust as a reason for denying --
Walter L. Evans: Not on --
William J. Brennan, Jr.: -- in having habeas?
Walter L. Evans: Not on these issues, if the Court please --
William J. Brennan, Jr.: Well, in any issue?
Walter L. Evans: Yes, if Your Honor please. The District Court denied in a pretrial order certain issues raised by the respondents because they have not been exhausted in the court below.
William J. Brennan, Jr.: But this -- but the Miranda obviously was not one them because --
Walter L. Evans: No, it was not.
William J. Brennan, Jr.: -- at least the court decided the Miranda.
Walter L. Evans: That is correct.
William J. Brennan, Jr.: Well, certainly the Tennessee Supreme Court went so far as to affirm the convictions.
Walter L. Evans: That is correct.
William J. Brennan, Jr.: They did send the case back for consideration of the Miranda case.
Walter L. Evans: They did not.
William J. Brennan, Jr.: Which would indicate, it was not raise or if it was not raised or if it was raised, they decided they rejected it?
Walter L. Evans: Right. For whatever reason, the court did not address that issue. We can only speculate because it was not raised in the state's petition for appeal from the Court of Criminal Appeals.
John Paul Stevens: Of course, when we granted certiorari. We did not grant certiorari under Miranda issue --
Walter L. Evans: That is correct. The issue that was before this Court is whether the Bruton rule was violated and more importantly in our position or opinion. Whether the violation of the Bruton rule was harmless error beyond a reasonable doubt and in considering the question of harmless error, the evidence presented before the Court is very much important. The only evidence introduced were the testimonies of five supposedly impartial witnesses whose only test among was limited to their statements that they saw three blacks outside the door of the apartment. One witness says they saw two blacks coming outside. Another with two witnesses said, a white and three blacks but no way in the record could we find any testimony of these supposed impartial witnesses that these respondents had any weapons in their hands that they did anything of then either appear at the door and/or kicked the door in. The crucial testimony in this case comes from Robert Wood, who gave an initial statement to the police before his indictment. In which he stated very clearly, I cannot -- I cannot identify these blacks that came in and consistent with the original plan of Robert Wood, Joe Wood and Tommy Thomas to place all the blame on three unidentified blacks. And the record will show in reading the statements of Tommy Thomas and also of Robert Wood that Joe Wood, Robert Wood and Tommy Thomas met after this incident to concoct the plan. To put this whole murder on three unidentified blacks who supposedly came into the room, shot the victim, and left with all the money. But after some investigation apparently the police did not believe that version and subsequently, indicted the Wood brothers along with three respondents. Now I think that in considering the question of harmless error, the Court cannot turn his head to the complaint of coercion and as the Sixth Circuit said, that was a very vivid complaint of coercion and physical abuse as it relates to these three confessions. And it would be our contention that this -- the existence of this kind of abuse, a word create a sort of tainted character to these confessions and we're not dealing with unchallenged confessions. We're not --
Warren E. Burger: Is that really before us Mr. Evans, on the petition that was granted?
Walter L. Evans: It -- in considering the tainted evidence against the untainted evidence. And I think that Mr. Justice Brennan in Harrington raised the question about in weighing the harmless -- in fact in weighing harmless error, you must consider the quality of the evidence of both sides, the quality of the untainted evidence, the quality of the tainted and it's our position that there is very little untainted evidence in this case. If there's any untainted evidence, it would be the testimony of the five witnesses outside the apartment who could not identify either of these three respondents as the three blacks or the three Negroes or the three colored men who are at the door. And the testimony of Robert Wood is tainted.
Thurgood Marshall: Did the testimony show that this five people heard the shot? Did any of them go run in that room?
Walter L. Evans: The --
Thurgood Marshall: When they heard the shot?
Walter L. Evans: The -- the -- as I read the record, Mr. Justice --
Thurgood Marshall: The witnesses, those five witnesses?
Walter L. Evans: As I read the record Mr. Justice Marshall, the witnesses merely testified to what they observed outside the apartment. They did not go inside the apartment.
Thurgood Marshall: Well, that turned me again to wonder why these three went in. All have heard the shot.
Potter Stewart: As curious.
Thurgood Marshall: They just – these three were more curious than the five?
Walter L. Evans: Of which three are you referring to?
Potter Stewart: Your client.
Thurgood Marshall: Your client.
Walter L. Evans: The state contends they went in and of course the Court could -- couldn't possibly conclude that they did or some of them did go into the apartment. But the testimony of the confession of Hamilton which was admitted before the Court until -- it shows that he did not go into the apartment. And that this consists of what the respondent's theory that once the door was kicked in primarily by Joe Wood. They looked inside the door and saw a white figure lying on the floor. They turned and went away. But because Tommy Thomas, and Robert Wood, and Joe Wood had concocted this theory about the blacks' involvement, in order to maintain some credibility at court, it's our contention that Robert Wood, Tommy Thomas consisted to maintain that these blacks did in fact come into the apartment and they in fact fired some shots and robbed him and so forth. But the record it very clear that the evidence of these three respondents involvement is very shady and that without these confessions. There's no reasonable way these respondents could have been convicted of murder in the perpetuation of a robbery.
Warren E. Burger: Do you have anything further counsel?
Michael E. Terry: Yes. May it please the Court. On the issue of the Miranda, the rob that went, it was considered by the trial court outside the presence of the jury down in the states favor assigned as Error No. 5 to the Court of Criminal Appeals by the defendants considered by the Court of Criminal Appeals and found to be without merit. Then the state appealed from that position --
Potter Stewart: Right.
Michael E. Terry: -- and it wasn't before the Supreme Court of Tennessee. But we did not raise exhaustion. We relied on 28 -- 2254 (d) and in the District Court, we figured there had been a fair hearing. That issue is not here but that is throughout that it went. The one important point I'd like to make and that is that Mr. -- as Mr. Evans says “untainted evidence”, very little untainted evidence. It's very important to note in deciding this case in considering this record that each of these confessions is untainted evidence as to the confessor. And when you are getting into a weighing of the proof that can make up that quantum of proof necessary to find harmless error, the confessor's confession should be considered against himself. It is untainted in that respect.
John Paul Stevens: But Mr. Evans -- isn't his argument if I understood it correctly that some confessions are more probative than others. And one factor that tends to make a jury sometimes disbelieve a confession is if they think that there was some brutality attached to coercing the conviction. But and I think his argument is that arguably this confession should not be -- would not have not been taken it face value if it stood alone. But it was much more likely to believe when there were three or four confessions on the same offer.
Michael E. Terry: Well --
John Paul Stevens: Isn't that -- isn't that a valid argument?
Michael E. Terry: I think I have to reflect that one.
John Paul Stevens: Because he did argue did he not that the confessions were not voluntary?
Michael E. Terry: He did but that point was not before the Sixth Circuit. Then it was not before --
John Paul Stevens: No, but it close to the – at this point it goes to the quality of that evidence.
Michael E. Terry: That issue was -- all was decided outside the presence of the jury. It wasn't in front of him.
John Paul Stevens: Oh, I see. They did not have -- they did not again have a chance to pass on voluntary?
William J. Brennan, Jr.: Well, didn't the District Court say it was one of them?
Michael E. Terry: One of them. The District Court -- it is not coerced. They didn't find coerce --
Potter Stewart: Violation of Miranda?
Michael E. Terry: Violation of access to counsel.
Warren E. Burger: Pickens?
Michael E. Terry: Access to counsel. I thank you for listening.
Warren E. Burger: Thank you gentlemen. The case is submitted.