Harrington v. California
395 U.S. 250 (1969)
 

Mr. Justice DOUGLAS delivered the opinion of the Court.

We held in Chapman v. California, 386 U.S. 18, 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." Id., at 24. We said that, although "there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error" (id., at 23), not all "trial errors which violate the Constitution automatically call for reversal." Ibid.

The question whether the alleged error in the present case was "harmless" under the rule of Chapman arose in a state trial for attempted robbery and first-degree murder. Four men were tried together--Harrington, a Caucasian, and Bosby, Rhone, and Cooper, Negroes--over an objection by Harrington that his trial should be severed. Each of his three codefendants confessed and their confessions were introduced at the trial with limiting instructions that the jury was to consider each confession only against the confessor. Rhone took the stand and Harrington's counsel cross-examined him. The other two did not take the stand.(1)1

In Bruton v. United States, 391 U.S. 123, a confession of a codefendant who did not take the stand was used against Bruton in a federal prosecution. We held that Bruton had been denied his rights under the Confrontation Clause of the Sixth Amendment. Since the Confrontation Clause is applicable as well in state trials by reason of the Due Process Clause of the Fourteenth Amendment (Pointer v. Texas, 380 U.S. 400), the rule of Bruton applies here.

The California Court of Appeal affirmed the convictions, 256 Cal. App. 2d 209, 64 Cal. Rptr. 159, and the Supreme Court denied a petition for a hearing. We granted the petition for certiorari to consider whether the violation of Bruton was on these special facts harmless error under Chapman.

Petitioner made statements which fell short of a confession but which placed him at the scene of the crime. He admitted that Bosby was the trigger man; that he fled with the other three; and that after the murder he dyed his hair black and shaved off his moustache. Several eyewitnesses placed petitioner at the scene of the crime. But two of them had previously told the police that four Negroes committed the crime. Rhone's confession, however, placed Harrington inside the store with a gun at the time of the attempted robbery and murder.

Cooper's confession did not refer to Harrington by name. He referred to the fourth man as "the white boy" or "this white guy." And he described him by age, height, and weight.

Bosby's confession likewise did not mention Harrington by name but referred to him as a blond-headed fellow or "the white guy" or "the Patty."

Both Cooper and Bosby said in their confessions that they did not see "the white guy" with a gun, which is at variance with the testimony of the prosecution witnesses.

Petitioner argues that it is irrelevant that he was not named in Cooper's and Bosby's confessions, that reference to "the white guy" made it as clear as pointing and shouting that the person referred to was the white man in the dock with the three Negroes. We make the same assumption. But we conclude that on these special facts the lack of opportunity to cross-examine Cooper and Bosby constituted harmless error under the rule of Chapman.

Rhone, whom Harrington's counsel cross-examined, placed him in the store with a gun at the time of the murder. Harrington himself agreed he was there. Others testified he had a gun and was an active participant. Cooper and Bosby did not put a gun in his hands when he denied it. They did place him at the scene of the crime. But others, including Harrington himself, did the same. Their evidence, supplied through their confessions, was of course cumulative. But apart from them the case against Harrington was so overwhelming that we conclude that this violation of Bruton was harmless beyond a reasonable doubt, unless we adopt the minority view in Chapman (386 U.S., at 42-45) that a departure from constitutional procedures should result in an automatic reversal, regardless of the weight of the evidence.

It is argued that we must reverse if we can imagine a single juror whose mind might have been made up because of Cooper's and Bosby's confessions and who otherwise would have remained in doubt and unconvinced. We of course do not know the jurors who sat. Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two confessions on the minds of an average jury. We admonished in Chapman, 386 U.S., at 23, against giving too much emphasis to "overwhelming evidence" of guilt, stating that constitutional errors affecting the substantial rights of the aggrieved party could not be considered to be harmless. By that test we cannot impute reversible weight to the two confessions.

We do not depart from Chapman; nor do we dilute it by inference. We reaffirm it. We do not suggest that, if evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on the evidence in this record. The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this state conviction undisturbed.

Affirmed.



Despite the Court's disclaimer in the last paragraph of the opinion, has the Court effectively announced a sufficiency rule? Is harmless error really error at all?

Suppose that the Harrington case is reversed on another ground and sent back for retrial, and that at the retrial the state once again offers Cooper's and Bosby's confessions. Should the judge exclude them because their introduction would violate Bruton? Or is it permissible for a judge to purposely commit "harmless error"?

1. 1. All four were found to have participated in an attempted robbery in the course of which a store employee was killed. Each was found guilty of felony murder and sentenced to life imprisonment.

 


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