Appeal from an order of the United States District Court for the Eastern District of New York denying a writ of habeas corpus, Edward R. Neaher, J. Reversed.
Before Feinberg, Chief Judge, Kearse, Circuit Judge, and Metzner, District Judge.*fn*
Elroy Hendrix appeals from an order of the United States District Court for the Eastern District of New York, 494 F. Supp. 314, denying his application for a writ of habeas corpus. He contends that the clearly inadmissible confession of a codefendant inculpating the appellant violated his rights of confrontation under Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). He further contends that this error was not harmless beyond a reasonable doubt.
Appellant was convicted in the Suffolk County Court of attempted murder, robbery in the first degree, and two counts of robbery in the second degree. On appeal the conviction for attempted murder was reversed and that charge dismissed. 56 A.D.2d 581, 391 N.Y.S.2d 186. The court affirmed the convictions on the remaining counts stating:
"The judgment of conviction should otherwise be affirmed, although there was error in the admission of a former codefendant's extrajudicial statements which inculpated defendant. In the context of this case, that error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787)."
On appeal to the New York State Court of Appeals that court held:
"While the trial court erred in allowing the officer to testify as to the former codefendant's extrajudicial statements, which inculpated defendant, the error was harmless beyond a reasonable doubt in view of the overwhelming proof of guilt. (People v. Crimmins, 36 N.Y.2d 230, 367 N.Y.S.2d 213, 326 N.E.2d 787.)" 44 N.Y.2d 658, 405 N.Y.S.2d 31, 376 N.E.2d 192.
Appellant's codefendant had previously pled guilty to second degree robbery and was not present at appellant's trial. The admission in evidence of the extrajudicial statement of the codefendant clearly violated the confrontation clause of the Sixth Amendment which is applicable to the states by reason of the due process clause of the Fourteenth Amendment. The Bruton rule comes into play, but as has been held on many occasions, the improper admission of such evidence is subject to the harmless error rule.
The definition of harmless error in the context of a Bruton situation is set forth in Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967) and Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972). In Chapman, the Court held:
"There is little, if any, difference between our statement in Fahy v. Connecticut (375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171) about "whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction' and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We, therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." (368 U.S. at 24, 87 S. Ct. at 828).
In Schneble, the Court said:
"Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required. See Chapman v. California, 386 U.S. 18, 24 (87 S. Ct. 824, 828, 17 L. Ed. 2d 705) (1967). In this case, we conclude that the "minds of an average jury' would not have found the State's case significantly less persuasive had the testimony as to Snell's admissions been excluded. The admission into evidence of these statements, therefore, was at most harmless error." 405 U.S. at 432, 92 S. Ct. at 1060.
It is therefore incumbent upon us to review the record in this case to determine whether the error was harmless when weighed against the totality of the proof offered against appellant.
On May 4, 1974, William J. Barner was tendered a surprise birthday party at his home. Among the people present were the codefendant John Anthony, Clinton Anthony, Henry Jefferson and the appellant. Jefferson had been convicted and served eight years in jail for killing a policeman. During the course of the evening Barner, Jefferson and the appellant left to purchase beer. On the way back to Barner's home, appellant showed Barner a small gun. Sometime thereafter Jefferson left the party with John Anthony. A short time later appellant also left the party. Jefferson then returned to Barner's home where he told the assembled guests that he had been robbed by the appellant and John Anthony. Jefferson was bleeding. He said that he had been shot by the appellant and that ...