Connor v. State

¶1concurring.

¶2The court of appeals found from undisputed testimony that law enforcement intern Edward Niland extracted the inculpa-tory statement from appellant by coercive means. Connor v. State, 640 S.W.2d 374, 376 (Tex.App.— San Antonio 1982).1 Accordingly, it concluded: “The trial court thus erred in holding that appellant’s statement made in response to Niland’s question was voluntarily given, and the evidence was erroneously admitted before the jury.” Ibid.

¶3In rejecting the State’s contention that a similar statement later made to Officer Gary Selman rendered the first one harmless, the San Antonio Court stated, “Admission of an involuntary statement can never constitute harmless error.” Ibid.Conceding its PDR was drafted without benefit of the record, the State presented its first question: “(1) Is it true that the admission into evidence of an involuntary statement can never constitute harmless error?” PDR at 2.2

¶4*17Had both more accurately used the descriptive term “coerced” instead of “involuntary,” surely we would have refused the State’s petition. That admitting a coerced confession is constitutional error was then and still is the law.

¶5In Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), the Supreme Court expressly rejected propriety of looking for harm, explaining that “the admission in evidence, over objection, of a coerced confession vitiates the judgment because it violates the Due Process Clause of the Fourteenth Amendment.” Id., at 568, 78 S.Ct., at 850. Only by characterizing as “involuntary” an inculpatory statement coercively extracted from an arrested citizen does the dissent surmise that permitting a jury to consider that statement might be “harmless.”

¶6The Supreme Court of the United States has never recanted or overruled Payne v. Arkansas, supra. The best the dissent can do is seize on use of the word “involuntary” to exaggerate out of all reasonable proportion the meaning and significance of Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), and then conjure circumstantial indications that the decision in Payneis no longer viable. Slip opinion, e.g., 6, n. 1, and 7 (“no such distinction was made in Milton”). Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978), refutes the notion and that kind of appellate adjudication.

¶7Because the opinion of the San Antonio Court of Appeals is ultimately correct in its application of law to the facts, I join the judgment of this Court.

¶11dissenting.

¶12Appellant, Walter Gilbert Connor, was convicted by a jury for the offense of theft. The trial court, after finding two enhancement paragraphs to the indictment to be true, sentenced appellant to life imprisonment.

¶13Appellant appealed to the San Antonio Court of Appeals. That court reversed appellant’s conviction and remanded the case for a new trial. Connor v. State, 640 S.W.2d 374 (Tex.App.—San Antonio 1982). We granted the State’s petition for discretionary review to determine the correctness of the lower appellate court’s determination that the admission of an involuntary statement at a defendant’s trial can never constitute harmless error.

¶14On the afternoon of July 4,1979, Officer Gary Selman of the Live Oak Police Department was on routine patrol. He was accompanied by a college student, Edward Niland, who was serving in a police internship program. Niland would receive academic credit for accompanying police officers while they performed their duties. He was to observe police procedures and assist the officers when appropriate.

¶15While patrolling together, Niland and Selman observed an oncoming car that was exceeding the speed limit. They pursued the vehicle in a chase that reached speeds of almost 100 miles per hour. The driver, later identified as the appellant, finally stopped, abandoned the car, and fled into a wooded area. Selman and Niland pursued him on foot. Niland reached the appellant first. He ordered appellant to lie face down on the ground. Appellant complied. After appellant was in a prone position on the ground, Niland held him to the ground with his knee pressed to appellant’s back. Although Niland was unarmed, he pressed his finger to the back of appellant’s head and told him not to move or, “I’ll kill you.” Niland asked appellant why he had fled. Appellant responded that the car he was driving was stolen. Niland then ordered appellant to not make any further statements. Later, Officer Selman arrived. Appellant was handcuffed and taken to the patrol car.

¶16According to Niland’s and Selman’s testimony at trial, appellant, after he told Ni-land that the car had been stolen, was given his warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and Article 38.22, V.A.C.C.P. Thereafter, while still at *18the scene, appellant again stated that the car was stolen and also that the trunk contained stolen weapons.

¶17Appellant alleged on appeal that his first oral statement to Niland was made involuntarily and, as such, was improperly admitted into evidence at trial. The Court of Appeals agreed and in reversing appellant’s conviction held:

“The State contends that appellant’s admitting, after having been given art. 38.-22 warnings, that the car was stolen, operated to excuse what had happened before. We must disagree. Under Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), the admission into evidence on an involuntary statement made by the accused requires reversal. Admission of an involuntary statement can never constitute harmless error.”

¶18Connor, 640 S.W.2d at 376, citing Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) and Goodnough v. State, 627 S.W.2d 841, 845 n. 4 (Tex.App.-San Antonio 1982, pet. ref’d).

¶19A majority of this Court now affirms the holding of the Court of Appeals and, in my opinion, erroneously concludes that the admission of the statement of appellant herein is not subject to a harmless error analysis.

¶20In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the Supreme Court was called upon to decide whether there could be harmless constitutional error. In so finding, the Court wrote “that 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, 386 U.S. at 21-21, 87 S.Ct. at 826-27 (footnote omitted).

¶21Although the Supreme Court has yet to explicate precisely which constitutional errors would be subject to automatic reversal and which would receive harmless error treatment, the Court has indicated that some constitutional violations, “by their very nature cast so much doubt on the fairness of the trial process itself that, as a matter of law, they can never be considered harmless.” Satterwhite v. Texas, 486 U.S. 249, -, 108 S.Ct. 1792, 1797, 100 L.Ed.2d 284, 293 (1988). The Satter-white Court listed examples of what it considered to be that type of constitutional deprivation, in a Sixth Amendment context, that would not be subject to a harmless error analysis: Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978) (conflict of interest in representation throughout entire proceeding); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (total deprivation of counsel throughout entire proceeding); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (absence of counsel from arraignment proceeding that affected entire trial because defenses not asserted were irretrievably lost). The Court, nevertheless, indicated that constitutional infractions that merely result in the improper introduction of evidence would be subject to a harm analysis. Justice O’Con-nor, writing for the majority in Satter-white, explained:

"Satterwhite urges us to adopt an automatic rule of reversal for violations of the Sixth Amendment.... He relies heavily upon the statement in Hollowaythat “when a defendant is deprived of his attorney, either throughout the prosecution or during a critical stage in, at least the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792, 9 L.Ed.2d 799] (1963); Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114] (1961); White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193] (1963).” 435 U.S., at 489, 98 S.Ct. at 1181. His reliance is misplaced, however, for Holloway, Gideon, Hamilton, and Whitewere all cases in which the deprivation of the right to counsel affect ed — and contaminated — the entire criminal proceeding. In this case the affect of the Sixth Amendment violation is limited to the admission into evidence of Dr. Grigson’s testimony. We have permitted harmless error analysis in both capital and noncapital cases where the *19evil caused by a Sixth Amendment violation is limited to the erroneous admission of particular evidence at trial.” (emphasis added). Satterwhite, 486 U.S. at -, 108 S.Ct. at 1797-98, 100 L.Ed.2d at 294.

¶22Apparently, when the error is such that it either pervades the entire proceedings (or is of such a nature that it is impossible for the appellate court to determine its affect on the proceedings), the error will require reversal without regard to the other evidence introduced during the trial of the case. If, on the other hand as is in this case, the constitutional error merely results in the improper introduction of evidence, the Supreme Court will apply a harmless error analysis.

¶23The Supreme Court has not squarely addressed the issue of whether the admission of an involuntary confession may be harmless since its landmark holding in Chapman. Several earlier decisions by the Court held that the admission of an involuntary confession requires reversal regardless of other evidence indicating guilt. See, e.g., Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961). See generally Shapiro, Comment Note — Supreme Court Cases Determining Whether Admission of Evidence at Criminal Trial in Violation of Federal Constitutional Rule is Prejudicial Error or Harmless Error, 31 L.Ed.2d 921, 930-932 (1972). And after Chapman, coerced confessions are routinely included when the Court lists constitutional infractions that can never be harmless. See, e.g., Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3105, 92 L.Ed.2d 460 (1986); Connecticut v. Johnson, 460 U.S. 73, 81-82, 103 S.Ct. 969, 974-75, 74 L.Ed.2d 823 (1983) (plurality opinion); Chapman, 386 U.S. at 23 n. 8, 87 S.Ct. at 828 n. 8. But see Delaware v. Van Arsdall, 475 U.S. 673, 681-682, 106 S.Ct. 1431, 1436-37, 89 L.Ed.2d 674 (1986) (listing only the denial of counsel and trial before a partial trier of fact as constitutional errors requiring automatic reversal). The case after Chapman, most often cited to support the proposition that the introduction of a coerced confession can never be harmless is Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). In Payne, the Supreme Court held the “even 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.” 356 U.S. at 568, 78 S.Ct. at 850.

¶24Subsequent to Payneand Chapman, however, at least one Supreme Court case has applied the harmless error rule in the context of an alleged involuntary confession. In Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972), the prosecution introduced a confession made by the defendant to a police officer posing as a cell mate. The defendant, who was then represented by counsel, confessed to murder. Before the Supreme Court, the defendant argued that the confession should have been suppressed at trial because it was involuntary under the Fifth Amendment and was obtained in violation of his right to counsel under the Sixth Amendment. The Court affirmed the conviction, writing:

“On the basis of the argument in the case and our examination of the extensive record of petitioner’s 1958 trial, we have concluded that the judgment under review must be affirmed without reaching the merits of petitioner’s claim. Assuming, arguendo, that the challenged testimony should have been excluded, the record clearly reveals that any error was harmless beyond a reasonable doubt. [Citations omitted.] The jury in addition to hearing the challenged testimony, was presented with overwhelming evidence of petitioner’s guilt, including no less than three full confessions that were made by petitioner prior to his indictment.” Milton, 407 U.S. at 372-373, 92 S.Ct. at 2175-76.

¶25In short, the Supreme Court applied a harmless error rule to a confession it as*20sumed to be involuntary.1

¶26Appellant, in his brief before this Court, insists that an involuntary confession, made involuntary through coercion, is to be treated differently than an involuntary confession obtained through deception or in violation of Miranda. He asserts that coerced confessions should never be subject to a harmless error analysis whereas those confessions obtained through deception or in violation of Mirandawould be subject to such analysis. He relies upon Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 2416, 57 L.Ed.2d 290 (1978), a post-Chapman and post-Milton case stating that “any criminal trial use against a defendant of his involuntary statement is a denial of due process of law, ‘even if there is ample evidence aside from the confession to support the conviction.’ ” 437 U.S. at 398, 98 S.Ct. at 2416 (emphasis in the original), quoting Jackson v. Denno, 378 U.S. at 376, 84 S.Ct. at 1780 which relied upon Payne.

¶27Although there is support for appellant’s position, see United States v. Carter, 804 F.2d 487, 489 n. 3 (8th Cir.1986) (writing that “[o]nly if the word ‘coerced’ is read to include deception, as opposed to physical and mental compulsion, would the harmless-error analysis be inappropriate in the present case”), most cases that have applied a harm analysis to an involuntary confession, have not made the distinction that appellant wants this Court to make. United States v. Murphy, 763 F.2d 202 (6th Cir.1985) cert. denied, 474 U.S. 1063, 106 S.Ct. 812, 88 L.Ed.2d 786 (1986); Harrison v. Owen, 682 F.2d 138 (7th Cir.1982); Meade v. Cox, 438 F.2d 323 (4th Cir.) cert. denied, 404 U.S. 910, 92 S.Ct. 234, 30 L.Ed.2d 182 (1971); United States ex rel. Moore v. Follette, 425 F.2d 925 (2nd Cir.) cert. denied, 398 U.S. 966, 90 S.Ct. 2180, 26 L.Ed.2d 550 (1970); Bush v. State, 523 So.2d 538 (Ala.Crim.App.1988); State v. Dean, 363 S.E.2d 467 (W.Va.1987); State v. Castaneda, 150 Ariz. 382, 724 P.2d 1 (1986); State v. Johnson, 35 Wash.App. 380, 666 P.2d 950 (1983). Indeed, no such distinction was made in Milton.

¶28As appellant’s argument presupposes, the degree of trustworthiness attending an involuntary confession will necessarily depend upon the circumstances surrounding procurement of that confession — a confession obtained through deception will be more reliable than a confession obtained through excessive coercive techniques and, accordingly, the coerced confession’s use at trial will be far more likely to have prejudiced the defendant against whom it was used — -but appellant’s argument fails to consider how the confession will have been utilized at a defendant’s trial. For example, if a prosecutor inadvertently refers to a coerced confession in a question posed to the defendant during cross-examination, we, under appellant’s reasoning, would have to reverse the conviction no matter that an instruction to disregard was given to the jury. On the other hand, a full written confession obtained through deception, introduced into evidence during the State’s case-in-chief, could be affirmed under the harmless error analysis. This would be unreasonable and expose the justice system to the public ridicule sought to be alleviated by creation of the harmless error doctrine. “The harmless-error doctrine recognizes that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, United States v. Nobles, 422 U.S. 225, 230 [95 S.Ct. 2160, 2166, 45 L.Ed.2d 141] (1975), and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather on the virtually inevitable presence of immaterial error.” Delaware v. Van Arsdall, 475 U.S. at 681,106 S.Ct. at 1436-37. See also Taynor, The Riddle of Harmless Error 50 (1970) (writing that “reversal for error, re*21gardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it”).

¶29After Chapman, the Supreme Court has consistently made clear that it is the duty of a reviewing court to consider the trial record as a whole and “to ignore errors that are harmless, including most constitutional violations.” United States v. Hasting, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983) (emphasis added). In the twenty-three years after Chapman, this principle has been applied to a wide variety of constitutional errors, such that applicability of the harmless error doctrine to constitutional error has become the rule rather than the exception. See, e.g., Satterwhite, 486 U.S. at-, 108 S.Ct. at 1792, 100 L.Ed.2d at 284 (confession obtained in violation of the Sixth Amendment right to counsel); Van Arsdall, 475 U.S. at 684, 106 S.Ct. at 1438 (failure to permit cross-examination); Rushen v. Spain, 464 U.S. 114,118,104 S.Ct. 453, 455, 78 L.Ed.2d 267 (1983) (denial of right to be present at trial); Hasting, 461 U.S. at 508-509, 103 S.Ct. at 1980 (improper comment on defendant’s failure to testify); Moore v. Illinois, 434 U.S. 220, 232, 98 S.Ct. 458, 466, 54 L.Ed.2d 424 (1977) (admission of witness identification obtained in violation of the right to counsel); Chambers v. Maroney, 399 U.S. 42, 52-53, 90 S.Ct. 1975, 1981-82, 26 L.Ed.2d 419 (1970) (admission of evidence obtained in violation of the Fourth Amendment). The majority errs in failing to do so here. By couching appellant’s confession in terms of “a physically coerced confession” and referring to “[cjompulsion by torture,” the majority opinion conjurs up visions of the rack and rubber hoses. Such was clearly not the case reflected in this record. Appellant’s “res gestae” excited utterance was not “obtained through simulated physical torture” and is not, in my view, the kind of statement which, if admitted, requires the automatic reversal rule to apply.

¶30In light of the overwhelming evidence of appellant’s guilt, and for the other reasons expressed herein, I respectfully dissent.

¶31WHITE, J., not participating.