United States Court of Appeals Third Circuit
Uploaded by
Scribd Government DocsUnited States Court of Appeals Third Circuit
Uploaded by
Scribd Government Docs399 F.
2d 508
UNITED STATES of America ex rel. Sylvester JOHNSON and
Stanley Cassidy
v.
Howard YEAGER, Principal Keeper of the New Jersey State
Prison.
Sylvester Johnson, Appellant in No. 16307.
Stanley Cassidy, Appellant in No. 16308.
Nos. 16307, 16308.
United States Court of Appeals Third Circuit.
Argued Nov. 21, 1967, Reargued Aug. 1, 1968.
Decided Aug. 23, 1968, Certiorari Denied Jan. 13, 1969, See
89 S.Ct. 620.
Stanford Shmukler, Curtis R. Reitz, Philadelphia, Pa., for appellants.
Rudolph J. Rossetti, Asst. Prosecutor, County of Camden, N.J. (A. Donald
Bigley, Camden County Prosecutor, on the brief), for appellee.
Before HASTIE, Chief Judge, and FREEDMAN and VAN DUSEN,
Circuit judges.
OPINION OF THE COURT
VAN DUSEN, Circuit Judge.
This case is before the court on appeal from a November 22, 1966, District
Court order denying a petition for a writ of habeas corpus filed by appellants
(two New Jersey state prisoners under sentence of death for first degree
murder). We have concluded that, due to the admission of the confessions of all
defendants in a joint trial under the circumstances stated below, such 1966
District Court order denying the jointly-filed petition, must be set aside and the
writ granted unless a new trial of further state court proceedings consistent with
this opinion take place within a reasonable time.
The relevant facts were summarized as follows by this court in United States ex
The relevant facts were summarized as follows by this court in United States ex
rel. Johnson v. Yeager, 327 F.2d 311, 312-313 (3rd Cir. 1963), rehearing denied
(1964), cert. den. 377 U.S. 984, 84 S.Ct. 1890, 12 L.Ed.2d 751 (1964), in which
opinion the confession of a co-defendant (Godfrey) was found to be involuntary
but the confessions of appellants were found to 'satisfy the constitutional
standard of voluntariness' on the record then before this court:
'The district court resolved this issue against the appellants on the basis of the
evidence that was before the New Jersey courts. On this appeal we shall
consider only those facts which have been found judicially or cannot reasonably
be disputed in the light of the showing in the record.
'At the trial the prosecution undertook to prove that the three appellants drove
in appellant Godfrey's car to a store operated by the decedent with a common
purpose to commit robbery; that Godfrey remained in the car while the other
two entered the store; and that in the course of the attempted robbery Johnson
fatally shot the storekeeper. Thus, under the prosecution's case, as presented, it
was essential to a conviction of first-degree murder that robbery be established
as the objective of the enterprise. All three appellants had signed confessions
admitting that their purpose was to rob the storekeeper. These confessions were
essential items of proof on this issue.
'In this habeas corpus proceeding, the appellants, who do not deny the killing,
contend that they were coerced into admitting that they were engaged in
robbery, when in fact their purpose in going to the store was to collect a debt
owed by the storekeeper to appellant Johnson.
'None of the appellants testified at the trial, either as to the manner in which the
confessions were obtained or for any other purpose. The only testimony given
at the trial concerning the confessions was that of the officers and
stenographers who were present during the initial detention and interrogation of
the prisoners or when the formal statements of the prisoners were made and
transcribed. The appellants did testify, more than a year later, at a hearing on
their motion, for a new trial. The New Jersey courts have a considered this
testimony on the issue of alleged coercion, and it was properly considered by
the district court in this habeas corpus proceeding.'
In that opinion this court, agreeing with the District Court,1 found the evidence
did not require finding that the confessions of the appellants were coerced,
which conclusion had been reached by the trial judge in 1959, the judge
conducting the hearing on the motion for a new trial for the alleged afterdiscovered evidence (see footnote 1) and the New Jersey Supreme Court on
affirming such findings and conclusions. See State v. Johnson, supra. After
extensive litigation in the state and federal courts, some of which has been
mentioned above,2 the most recent state court 'application for post conviction
relief, accompanied by a fresh set of factual allegations' (Johnson v. State of
New Jersey, supra, footnote 2, at 726, 86 S.Ct. at 1777) was filed in 1964 and
resulted in refusal by the trial court of a full evidentiary hearing and its denial
of relief after hearing oral argument only. On appeal to the Supreme Court of
New Jersey, appellants submitted for the first time affidavits alleging denial of
access to attorneys and families in support of their grounds for relief, which
affidavits were treated by that court as if they had been offered for the trial
court's consideration3 (see State v. Johnson, supra, 206 A.2d at 739-740), and
the state trial court judgment denying this application for post-conviction relief
was affirmed.4 The Supreme Court of the United States affirmed this judgment
of the Supreme Court of New Jersey, Johnson v. State of New Jersey, supra
(footnote 2) in June 1966.
8
In view of the recent decisions of the Supreme Court of the United States in
Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968),
and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968),
specifically overruling Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294,
1 L.Ed.2d 278 (1957), relied on by the District Court, the order of November
22, 1966, must be set aside and these cases remanded to the District Court with
directions to grant the writs of habeas corpus unless, within a reasonable time,
appellants are granted new trials in the state courts, in accordance with the rules
set forth in those cases, or further proceedings are taken not inconsistent with
this opinion. In paragraphs 6 and 7 of their petitions, appellants alleged that the
admission at their joint trial of 'the cross-implicating statements in these
confessions,' as well as of the involuntary confession of their co-defendant
Godfrey, violated their federal constitutional rights, in spite of the concededly
careful limiting instructions of the trial judge that each confession was to be
considered only in the case against the maker of such confession. The Roberts
case, supra, contains this language at page 1921 of 88 S.Ct.:
'In Bruton v. United States * * *, we * * * held that, despite instructions to the
jury to disregard the implicating statements in determining the codefendant's
guilt or innocence, admission at a joint trial of a defendant's extrajudicial
confession implicating a codefendant violated the codefendant's right of crossexamination secured by the Confrontation Clause of the Sixth Amendment.
This case presents the question whether Bruton is to be applied retroactively.
We hold that it is.'
10
In this case, the confessions varied materially on the extent of the participation
of the co-defendants in the planning and execution of the crime. Johnson stated
that Godfrey first gave him a gun en route to the store and that gun went off
during a struggle with the proprietor. He knew Cassidy was armed and they all
planned the robbery. Cassidy stated that he advised Godfrey that Johnson
should not be given a gun, that Johnson shot the proprietor independently of
any struggle, and that the robbery scheme was suggested by Johnson and
Godfrey. Godfrey stated that the two appellants asked his advice an a 'good
place' to rob (G7 and 11) and that Johnson emphasized his need of money 'most'
(G11) After the robbery, Godfrey stated that he said to Johnson concerning the
shooting, 'Man, you did not have to do that' and Johnson replied, 'It is one of
those things' (G9). Under these circumstances, the constitutional error of
admitting these confessions in evidence during a joint trial 'presents a serious
risk that the issue of guilt or innocence may not have been reliably determined.'
Roberts v. Russell, supra, at 1922. Also, the confessions of Godfrey and
Cassidy recited hearsay statements of the appellants bearing on their degree of
guilt.5 Applying the language in Bruton v. United States, supra, at 1623 of 88
S.Ct., 'Plainly the introduction of (these) confessions added substantial, perhaps
even critical, weight to the Government's case in a form not subject to crossexamination, since (the defendants) did not take the stand. (Appellants) thus
(were) denied (their) right of confrontation.'
11
We have considered carefully appellee's argument that the use of these
confessions was harmless error, since the similarity in their description of the
homicide itself precluded any prejudice to appellants. Cf. Chapman v. State of
California, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). However, the
above-described differences in the confessions6 were very material to the jury's
decision not to recommend life imprisonment and we are unable to say that the
limiting instructions of the trial judge made this constitutional error harmless
beyond a reasonable doubt. Cf. Burgett v. State of Texas, 389 U.S. 109, 115, 88
S.Ct. 258, 262, 19 L.Ed.2d 319 (1968), where the court said:
12
'The admission of a prior criminal conviction which is constitutionally infirm
under the standards of Gideon v. Wainwright (372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799) is inherently prejudicial and we are unable to say that the
instructions to disregard it made the constitutional error 'harmless beyond a
reasonable doubt' within the meaning of Chapman v. State of California, 386
U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705.'
13
For the foregoing reasons, the order of the District Court, dismissing the
November 1966 petition for a writ of habeas corpus, will be vacated and the
case will be remanded for proceedings in accordance with the foregoing
opinion.
The findings and conclusions in the opinion after the hearing on the motion for
new trial on the ground of newly discovered evidence are reported in State v.
Johnson, 63 N.J.Super. 16, 163 A.2d 593 (1960), aff'd 34 N.J. 212, 168 A.2d 1
(1961)-- which opinion also discusses the evidence at that hearing--, cert. den.
368 U.S. 933, 82 S.Ct. 370, 7 L.Ed.2d 195 (1961)
For the principal prior decisions involving appellants (called 'a battery of
collateral attacks' by the Supreme Court of the United States in Johnson v. State
of New Jersey, 384 U.S. 719, 726, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966)), see
State v. Johnson, 43 N.J. 572, 573, 206 A.2d 737 (1965), at footnote 1 on p.
739
The affidavits appear at pp. 365-385 of the Transcript of Record in Johnson v.
State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882, Oct. Term
1965, Supreme Court of the United States
The court held that further consideration on that appeal of the issue of the
voluntariness of appellants' confessions by it was precluded by a state
procedural rule
The appellants made consistent objection to the use of the confessions as a
whole (310a, 378a, 403a, 428a & 606a of Joint Appendix, Supreme Court of
New Jersey, Docket 2839-- State of New Jersey v. Johnson et al.) and
particularly to the parts of such confessions of the co-defendants that were
hearsay (378a-380a, 405a-407a, 409a-452a and 606a of abovementioned Joint
Appendix). It is noted that, as suggested in the Bruton case, supra, 88 S.Ct. at
1626, the appellants applied during the trial to have deleted the hearsay
references to them in the confessions of their co-defendants, but such
applications were denied (N.T. 409a-452a of such Joint Appendix)
The wording of the confessions does not support the allegation of appellee at p.
9 of its supplemental brief that 'The participation of each defendant is identical
* * *. The confession of each co-defendant added nothing to the statement of
the other.'
