Burley Clifton Harryman v. W. J. Estelle, Jr., Director, Texas Department of Corrections

INGRAHAM, Circuit Judge:

This habeas corpus appeal arose out of a state trial court’s failure to apply the prophylactic rule of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), to admissions regarding the contents of a condom. The district court denied habeas relief on the ground that the Miranda violation was harmless constitutional error. We reverse and remand to the district court with instructions to grant the writ.

In late August 1972, petitioner Burley Clifton Harryman checked into the Oak Cliff Travel Lodge in Dallas, Texas, under an assumed name, Chuck Walker. On the evening of September 7, 1972, after petitioner had failed to pay rent for eight consecutive days, Miss Sandra Wood, Assistant Manager of the Lodge, entered petitioner’s room in his absence to remove his personal belongings. Upon discovering a high-powered rifle with a telescopic sight and a syringe, Miss Wood called the police. The police officers inspected the room and confiscated the rifle, syringe and several spoons which were burned on the bottom.

At approximately 4:30 A.M. on the following day, September 8, 1972, Miss Wood called the police again to inform them that petitioner had returned to the Lodge. Officers Jerry Raz and T. W. Conway of the Dallas Police Department were dispatched to the Lodge to arrest the petitioner for suspected burglary. In searching petitioner, Officer Conway discovered a condom containing a powdered substance concealed under the waist band of his trousers. Rather than recite the Miranda warnings, Officer Conway asked petitioner: “What is this?” Petitioner responded: “Oh, you know what it is. It is heroin.”

At petitioner’s trial for knowing or intentional possession of heroin,¹ defense counsel filed a motion to suppress petitioner’s incriminating statement, on grounds that the statement was the fruit of an unlawful search and violated the Miranda rule.² The trial court denied the motion, holding the statement admissible as the res gestae of the offense under Tex.Code Crim.Proc. art. 38.22, § 1(f) (1967) [current version at Tex. Code Crim.Proc. art 38.22 § 5 (1979)].³ Officers Raz and Conway testified to petitioner’s incriminating statement. The prosecutor adverted to the admission three times in closing argument.

Nothing contained herein shall preclude the admissibility of any statement made by the defendant in open court at his trial or at his examining trial in compliance with Articles 16.03 and 16.04 or of any statement that is the res gestae of the arrest or of the offense.

The contraband itself was also introduced into evidence. Various employees of the Dallas Police Department testified that the powder admitted into evidence was the same powder that was in petitioner’s condom and the same powder that was analyzed by the Criminal Investigation Lab.⁴ A police chemist testified that a laboratory analysis of the powder revealed heroin, morphine and procaine.

The jury returned a guilty verdict and sentenced petitioner as a habitual offender to life imprisonment. The Texas Court of Criminal Appeals affirmed the conviction. Harryman v. State, 522 S.W.2d 512 (Tex.Cr. App.1975).

On June 7, 1976, petitioner filed an application for writ of habeas corpus, pursuant to 28 U.S.C. § 2254 (1976), alleging that the Miranda violation rendered his conviction void. In reliance upon the findings, conclusions and recommendation of the magistrate, the district court, on June 2, 1978, entered a memorandum opinion denying habeas relief. The court conceded that petitioner’s constitutional rights were abridged by the admission into evidence of petitioner’s incriminating statement elicited during custodial interrogation without the protection of the Miranda warnings. Nonetheless, the court concluded that the Miranda violation was a harmless constitutional error, because other evidence established that the condom found on petitioner contained heroin.

Since the state does not dispute the district court’s holding that introduction into evidence of the incriminating statement was a constitutional error, the sole issue is whether the constitutional error was harmless.⁵ A constitutional error is harmless, if there is no “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). The test is not “whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of,” id., but whether the evidence complained of may have influenced the fact-finder’s deliberations, see Harrington v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The beneficiary of the error, the government, bears the burden of proving beyond a reasonable doubt that such a possibility is excluded. Zilka v. Estelle, 529 F.2d 388, 390 (5th Cir. 1976); Vaccaro v. United States, 461 F.2d 626, 637-38 (5th Cir. 1972); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

The state insists that the instant case is controlled by our prior decisions holding that Miranda violations were harmless errors in bench trials, e. g., United States v. Hill, 430 F.2d 129 (5th Cir. 1970), and Null v. Wainwright, 508 F.2d 340 (5th Cir. 1975). However, jury trials are subject to greater scrutiny for harmless constitutional error than bench trials. “Strict evidence] rules of admissibility are generally relaxed in bench trials, as appellate courts assume that trial judges rely upon properly admitted and relevant evidence.” Id. at 344.

Likewise, the state places undue reliance upon cases in which lawfully admitted confessions rendered constitutional errors harmless, e. g., Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), and Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). This line of cases is inapposite, because the lawfully admitted confessions corroborated by other evidence provided overwhelming evidence of the defendant’s guilt, negating the possibility that the constitutional error contributed to the conviction. Milton, 407 U.S. at 377, 92 S.Ct. 2174; Schneble, 405 U.S. at 430, 92 S.Ct. 1056.

Where a valid confession is not offered, however, an unlawful confession may be so persuasive that it negates the possibility of harmless error. Such is the teaching of United States v. Hernandez, 574 F.2d 1362, 1372 (5th Cir. 1978). Hernandez was convicted by a jury of knowing or intentional possession of marijuana in violation of 21 U.S.C. § 841(a)(1) (1976). At Hernandez’s trial, the prosecution admitted into evidence the defendant’s confession that he had been hired to drive a truckload of marijuana. The district court erred in denying defense counsel’s motion to suppress the confession, because the confession was elicited after the recitation of Miranda warnings and the suspect’s invocation of the Miranda rights to remain silent and receive the advice of counsel. Although the prosecution also admitted samples of the marijuana found in the truck and a chemist’s testimony that the substance was indeed marijuana, we held that the constitutional error in admitting the unlawful confession was not harmless. The court reasoned:

Because these statements carried extreme probative weight in relation to the crimes for which Hernandez was convicted, we cannot find their admission to be harmless beyond a reasonable doubt. Although there appears to be an ample basis to sustain the conviction, we recognize that these incriminating statements may have represented overpowering, inescapable evidence for the jury.

Id. at 1372 (footnote omitted).

The instant case is controlled by Hernandez. Petitioner’s incriminating admission that the condom contained heroin was of high probative value in establishing that his possession was “knowing or intentional.” Cf. Null v. Wainwright, 508 F.2d at 344. In view of the potential impact of the prosecution’s repetition of the admission in closing argument, petitioner’s statement “may have represented overpowering, inescapable evidence for the jury.” Hernandez, 574 F.2d at 1372. The state has not proven beyond a reasonable doubt the absence of a “reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. at 86-87, 84 S.Ct. at 230.

We hold that the state trial court’s admission into evidence of an unlawfully obtained incriminating statement was not harmless constitutional error, given the possible impact of the statement upon the jury. Accordingly, we reverse the decision of the district court and remand with instructions to grant petitioner’s application for the writ of habeas corpus.

REVERSED and REMANDED.

1 . Unlawful possession of heroin was a violation of article 725f of the former Texas Penal Code. In 1973, the Texas Legislature transferred this provision to the Texas Controlled Substances Act, 12C Tex.Rev.Civ.Stat.Ann. art. 4476-15, § 4.04 (1976).

2 . The state’s argument that petitioner waived the Miranda error at trial is, therefore, frivolous.

3 . Art. 38.22, § 1(f) of the former Texas Code of Criminal Procedure provided:

4 . Through cross-examination, defense counsel attempted to cast doubt on the chain of custody of the heroin. Miss Mary Peck, supervisor of the evidence room at the Crime Scene Search Section of the Dallas Police Department, testified that she had failed to mark the evidence upon receipt and was unable to recall the dates on which the condom was received by her and transferred to the lab. She further testified that other police personnel had access to the evidence room.

5 . There are some constitutional errors which can never be harmless, including the admission into evidence of coerced confessions. Chapman v. California, 386 U.S. 18, 23 n.8, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). See Smith v. Estelle, 527 F.2d 430, 433 (5th Cir. 1976); Alberti v. Estelle, 524 F.2d 1265, 1268 (5th Cir. 1975); Brown v. Beto, 468 F.2d 1284, 1285 (5th Cir. 1972). However, the harmless error rule does apply to the admission of unlawful though uncoerced confessions. Id.