Connor v. State

OPINION ON STATE’S PETITION FOR DISCRETIONARY REVIEW

TEAGUE, Judge.

“We have learned the lesson of history, ancient and modern, that a system of criminal law enforcement which comes to depend on the ‘confession’ will, in the long run, be less reliable and more subject to abuses than a system which depends on extrinsic evidence independently secured through skillful investigation.” Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964).

The record of this cause reflects that Walter Gilbert Conner, henceforth appellant, was convicted by the jury of committing the offense of felony theft of an automobile. The trial judge assessed punishment, enhanced, at life imprisonment.

On direct appeal, appellant asserted, inter alia, that the trial judge erred in not granting his motion to suppress two oral statements that he made, one to a civilian legal intern and one to the intern’s supervisor, a certified Live Oak police officer. The intern obtained his oral statement after he had chased and captured appellant, and then forced him to lie on the ground in a spread-eagle position with his face down on the ground. The intern then put one of his knees in appellant’s back. The intern then used a simulated act of threatened physical violence, by causing the first finger on his right hand to resemble the barrel of a loaded pistol and thereafter pointing his finger to the back of appellant’s head, first telling appellant not to move or “I’ll kill you,” and then asking appellant why he had fled, with appellant stating that “the vehicle was stolen.” Thereafter, appellant became ill and vomited. When appellant was later questioned by the regular police officer, he again admitted that he had stolen the vehicle that he had previously been driving. The basis of the charge in this cause is the theft of that vehicle.

The District Attorney, in his response brief, argued that appellant’s oral statement to the intern was res gestae, and thus admissible evidence; that his second oral statement to the regular police officer was admissible evidence; and that because the trial judge had found that the statements were admissible evidence no further review of that decision should occur. The District Attorney never argued that the doctrine of harmless error was applicable to either confession.

The San Antonio Court of Appeals reversed the trial court's judgment of conviction, finding that “appellant’s statement [to the intern] was involuntary and thus inadmissible, and the trial court erred in admitting the statement into evidence.” Connor v. State, 640 S.W.2d 374 (Tex.App.-4th 1982). Relying upon Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), the court of appeals then held that the subsequent actions of the regular police officer, by giving appellant the “Miranda” warnings, did not “operate to excuse what had happened before.” The court of appeals thus held that the error relating to admitting the oral confession obtained by the intern was incurable error and was not subject to the doctrine of harmless error.

In ruling that appellant’s first oral statement was inadmissible evidence, and so tainted the entire trial that the error was incurable error, the court of appeals obviously relied upon the following principles of law that the Supreme Court of the United States had previously enunciated: “The use in a state criminal trial of a defendant’s confession obtained by coercion — whether physical or mental — is forbidden by the Fourteenth Amendment ... [Ejven though there may have been sufficient evidence, apart from the coerced confession, to support a judgment of conviction, the admission in evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.” Payne v. Arkansas, 356 U.S. 560, 563, 567, 78 S.Ct. 844, 847, 850, 2 L.Ed.2d 975 (1958). Thus, under Payne v. Arkansas, if a coerced confession is found to exist, and same was admitted into evidence over objection during appellant’s trial, the admission into evidence of the coerced confession constitutes automatic reversible error.

Other state courts, such as the Colorado Supreme Court, see Hunter v. People, 655 P.2d 374 (Colo.1982), have fairly subscribed to what the court of appeals held in this cause:

The United States Supreme Court has repeatedly held that the harmless error rule does not apply where an issue of voluntariness of a confession is involved. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Also see Ringel, Searches & Seizures: Arrests and Confessions, § 30.2(e), at page 30-12; and see and compare Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (Held, violation of the right to counsel can never be harmless); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (Held, error in depriving a defendant of counsel at his trial is so fundamental that such error cannot be cured); Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (Held, trial before a judge who is not impartial is so fundamentally erroneous that the error cannot be cured); and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (Held, invalid prior conviction is inherently prejudicial and instructions to disregard same does not make the error harmless.)

However, the Supreme Court of the United States in more recent times has announced that state courts, when considering the effect of a federal constitutional violation, can apply the federally defined harmless error rule of law, see post, in most instances.

Of course, although a state appellate court can construe its comparable state constitutional provisions in a broader fashion than the Supreme Court does, it cannot impinge on decisions of the Supreme Court that concern federally protected rights. In this instance, the State does not argue that the court of appeals erred in holding the first oral statement was inadmissible evidence because it was obtained by the intern through simulated physically coercive tactics; it only argues in its petition for discretionary review that was filed on behalf of the State Prosecuting Attorney that we granted that given what the Supreme Court held in Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), error in admitting a simulated threatened physically coerced confession may be rendered harmless.

We are unable to agree with the State’s argument. Our research to date has not yet revealed a single valid authority that holds that error in admitting into evidence over objection a physically coerced confession of the defendant can become harmless.

The holding in Milton v. Wainwright does not support the State’s argument that error in admitting into evidence over objection a simulated physically coerced oral confession of a defendant may become harmless. In Milton v. Wainwright, the Supreme Court was not confronted with error relating to a physically coerced confession. The defendant’s statement that was challenged in that cause was obtained through fraud, not through physical coercion. The facts set out in the opinion reflect that after the defendant had been indicted, and who was then represented by counsel, the police planted in the defendant’s jail cell an undercover police officer who thereafter obtained incriminating statements from the defendant. The Supreme Court, however, did not pass on whether the statements had been unlawfully obtained, but merely assumed for argument purposes that the challenged testimony should have been excluded. It held that because of the overwhelming evidence of the defendant’s guilt, which included three full confessions that had been obtained before he was indicted, if there was error, the error was harmless to the defendant. Four justices dissented, contending first, that under Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), and Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), the trial court erred in admitting into evidence the planted undercover police officer’s testimony, and secondly, under the harmless error rule laid down in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967), i.e., that if it can be stated beyond a reasonable doubt that the error made no contribution to the jury’s verdict the error will be deemed harmless, the error was not harmless, but instead was harmful to the defendant.

We, of course, do not and cannot question the Supreme Court’s decision that when it comes to federal constitutional violations, “There may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.” Chapman v. California, 386 U.S. at 22, 87 S.Ct. at 827.

However, did the Supreme Court in Chapman v. California, when it stated that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error,” and then by citing in a footnote immediately following that statement its cases of Payne v. Arkansas, Gideon v. Wainwright, and Tumey v. Ohio, as well as its like statement that is set out in footnote 6 in United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983), with the same citations, not reaffirm what it had stated and held in Payne v. Arkansas, that error in admitting a physically coerced confession can never he harmless error? We find that the question should be answered in the affirmative. Also see and compare Satterwhite v. Texas, 486 U.S. 249, 108 S.Ct. 1792, 100 L.Ed.2d 284 (1988).

Compulsion by torture, either actual or simulated, has long been offensive to the ordinary person’s sense of justice, and a confession obtained by physically coercive means has long been condemned by the Supreme Court of the United States. See Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Lisenba v. California, 314 U.S. 219, 62 S.Ct. 280, 86 L.Ed. 166 (1941); and Ashcraft v. Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192 (1944). Although these cases involve actual torture, whereas here the oral confession that the intern obtained from appellant was obtained, not by actual physical torture, but was obtained through simulated threatened physical torture, Payne v. Arkansas actually involved a simulated physical torture situation. In Payne v. Arkansas, the Chief of Police threatened the defendant that if he did not confess he would be released into the hands of a lynch mob. However, no lynch mob ever existed.

Therefore, we agree with the holding of the court of appeals that error in admitting an oral confession obtained by threatened physically coercive tactics on the part of an agent of the police is not subject to a harmless error analysis. The judgment of the court of appeals, reversing the trial court’s judgment of conviction, is affirmed.

CAMPBELL and DUNCAN, JJ., concur in the result. WHITE, J., not participating.