On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 82-1450)
Before: GIBBONS, SLOVITER and STAPLETON, Circuit Judges
Appellant Claude Holland was convicted of multiple counts including armed robbery and assault with intent to kill in the New Jersey Superior Court. The Appellate Division of the New Jersey Superior Court affirmed the conviction and the New Jersey Supreme Court refused his petition for certification. Having exhausted his state remedies. Holland filed a petition for a writ of habeas corpus in the District Court for the District of New Jersey, where he claimed a violation of the federal constitutional rights due him under the doctrine enunciated in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). The district court denied the writ on the ground that the error was harmless. We cannot agree and therefore reverse the judgment of the district court.
Facts and Procedural History
Shortly after midnight on May 1, 1974, three masked black men broke into a home in Short Hills, New Jersey, tied up the occupants, threatened them with a shotgun and ice pick, and stole about $10,000 worth of valuables. None of the occupants was able to identify any of the intruders.
Police Officer Wade of the Millburn Police Department was on patrol duty near the Short Hills railroad station watching traffic, about three-quarters of a mile from the scene of the robbery. At 1:07 a.m. he noticed a white Volvo with a missing headlight, and followed it. A green Buick in front of it then drove through a red light in making a right turn. Officer noticed two people in the front seat and walked to within four to five feet of the car on the driver's side. As Officer Wade waited for the occupants to respond to his request for license and registration, a third occupant in the back seat, whom he had seen before, thrust the muzzle of a sawed-off shotgun out the back window, and told Officer Wade to freeze. Officer Wade ducked and ran back toward his squad car. After he heard a shot, he fired two shots at the Buick. The car sped away, and Officer Wade followed. Shortly thereafter he found the car abandoned. Among the items found near or in the Buick were a shotgun, items stolen during the robbery, a wallet containing the driver's license of Clifford English, and various pieces of clothing used in the robbery. No suspects were apprehended at the scene.
Later that morning, Officer Wade accompanied New York City police officers to Brooklyn. They located Clifford English, and after Officer Wade identified English as the car's driver. English was taken into custody. Three or four days later, Officer Wade viewed several hundred pictures in the I.D. Bureau in New York City, but made no identification of any other suspect.
Two years later, in the summer of 1976, Shirley Payton, who was living in Chicago, called the New York City Police Department and implicated her husband, Richard Payton, in various crimes in the New York and New Jersey area. Payton was arrested by the Chicago police at New York's request, and Payton confessed a number of crimes, including the Short Hills robbery, to Detective John Daly of the New York City Police Department. Payton implicated Claude Holland as well as Clifford English in the Short Hills robbery.
In August 1976, Officer Wade went to New York to view a lineup containing suspects of the robbery, but the lineup was not held. Instead, it was arranged to have the New York police send photographs. In October 1976, Officer Wade viewed a four-photograph spread and identified the pictures of Holland and Payton as the front seat and back seat passengers respectively of the green Buick he had stopped on May 1, 1974.
Holland and Payton were scheduled to be tried together. Prior to trial, Holland's attorney moved for a severance, and contended that admission against Payton of Payton's confessions to his wife and to Detective Daly which inculpated Holland would contravene the holding in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). In Bruton, the Supreme Court held that a defendant's Sixth Amendment right to confrontation is violated by the admission of a co-defendant's extra-judicial confession implicating the defendant. The trial judge denied the motion to sever. Before trial, the court held a Burton hearing, and ruled that references to Holland could be effectively excised.
A Burton error occurred during the trial when Detective Daly, in response to a question by Payton's defense counsel, testified that "[Shirley Payton] had told me that Richard Payton and Claude Holland and . . . Clifford English were involved in a house robbery in New Jersey." App. at 954A. Since Shirley Payton's statement was based on Richard Payton's confession to her, and Richard Payton was unavailable for cross-examination because he did not testify, this testimony contravened both the letter and spirit of the Bruton decision.
Holland objected immediately. After a brief side bar discussion, the trial court dismissed the jury and held further discussions on the issue that afternoon and the next morning. Thereafter, the trial court denied Holland's motion for a mistrial. The court stated it was satisfied that the testimony by Detective Daly was due to inadvertence and that there was no intention to violate the court's order. The court also stated that it could give an appropriate instruction to the jury to disregard the testimony, and the jury would follow that instruction. It reserved to Holland the right to reapply for a mistrial at the trial's end.
After lunch, the jury was recalled and, with consent of counsel, was told that:
Now, it appears that Officer Daly was confused about the last question asked him yesterday by Mr. Clancy and as a result there was some confusion concerning Officer Daly's answer that to that question.
Therefore, I instruct you that you, ladies and gentlemen, are to completely disregard for any purpose whatsoever Officer Daly's confused answer.
App. at 1011A-12A. The trial, which had been recessed for 24 hours beginning immediately after Detective Daly's testimony that Shirley Payton had implicated Holland, then resumed.
A week later, during the prosecutor's summation, Holland held a note stating, "God is my judge, I've done no wrong," in the direction of the jury. App. at 1351A. The court questioned each juror separately about whether the juror saw the note, whether the note would affect the juror's consideration of the case, and whether the juror would be able to decide the case only upon the evidence heard in the courtroom. The court concluded that the jurors had not been affected by the note and that they would be able to decide the case solely on the evidence before them.
The jury convicted both Holland and Payton. Holland's motion for a new trial was denied by the trial judge. The New Jersey Appellate Court affirmed the convictions, holding, inter alia, that the Bruton error was "at most harmless error." In denying the petition for a writ of habeas corpus on the basis of the Bruton error, the district court also ruled that the error was harmless beyond a reasonable ...