Nelson v. O'Neil/Opinion of the Court

by Potter Stewart

United States Supreme Court

402 U.S. 622

Nelson  v.  O'Neil

 Argued: March 24, 1971. --- Decided: June 1, 1971

The respondent, Joe O'Neil, was arrested along with a man named Runnels when the police of Culver City, California, answered a midnight call from a liquor store reporting that two men in a white Cadillac were suspiciously cruising about in the neighborhood. The police responded to the call, spotted the Cadillac, and followed it into an alley where a gun was thrown from one of its windows. They then stopped the car and apprehended the respondent and Runnels. Further investigation revealed that the car had been stolen about 10:30 that night in Los Angeles by two men who had forced its owner at gunpoint to drive them a distance of a few blocks and then had robbed him of $8 and driven off. The victim subsequently picked Runnels and the respondent from a lineup, positively identifying them as the men who had kidnaped and robbed him.

Arraigned on charges of kidnaping, robbery, and vehicle theft, both the respondent and Runnels pleaded not guilty, and at their joint trial they offered an alibi defense. Each told the same story: they had spent the evening at the respondent's home until about 11 p.m., when they had left together. While waiting at a bus stop they were picked up by a friend driving a white cadillac, and he offered to lend them the car for a few hours while he went into a nightclub. They accepted the offer, and once on their way discovered that there was a gun in the glove compartment. They entered an alley in search of a place to dispose of the gun, since they were afraid of being stopped with it in the car. Soon after throwing the gun out of the window they were stopped by the police and arrested. The supposed friend was not called as a witness and was not shown to be unavailable, but other witnesses corroborated parts of their alibi testimony.

The owner of the white Cadillac made a positive in-court identification of the defendants, and a police officer testified to the facts of the arrest. Another police officer testified that after the arrest Runnels had made an unsworn oral statement admitting the crimes and implicating the respondent as his confederate. The trial judge ruled the officer's testimony as to the substance of the alleged statement admissible against Runnels, but instructed the jury that it could not consider it against the respondent. When Runnels took the stand in his own defense, he was asked on direct examination whether he had made the statement, and he flatly denied having done so. He also vigorously asserted that the substance of the statement imputed to him was false. He was then intensively cross-examined by the prosecutor, but stuck to his story in every particular. The respondent's counsel did not cross-examine Runnels, although he was, of course, fully free to do so. The respondent took the stand on his own behalf and told a story identical to that of Runnels as to the activities of the two on the night in question. Both the prosecutor and Runnels' counsel discussed the alleged confession in their closing arguments to the jury, and the trial judge repeated his instruction that it could be considered only against Runnels.

The jury found both defendants guilty as charged. After unsuccessful efforts to set aside the conviction in the California courts, the respondent applied for federal habeas corpus relief in the United States District Court for the Northern District of California, and while the case was pending there this Court decided Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, and Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, holding that under certain circumstances the Confrontation Clause of the Sixth Amendment, ^[1] applicable to the States through the Fourteenth, ^[2] is violated when a codefendant's confession implicating the defendant is placed before the jury at their joint trial. ^[3] The District Court ruled that the respondent's conviction had to be set aside under Bruton and Roberts, and the Court of Appeals for the Ninth Circuit affirmed. 422 F.2d 319 (1970). Petitioner then sought a writ of certiorari in this Court, contending, first, that there was no constitutional error under Bruton and Roberts, second, that any error there might have been was harmless beyond a reasonable doubt under the doctrine of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, and, third, that the District Court should have required the respondent first to seek redress in the state courts, which had had no opportunity to consider the Bruton claim. We granted certiorari to consider these issues. 400 U.S. 901, 91 S.Ct. 136, 27 L.Ed.2d 137. Since we agree with the petitioner that there was no violation of the Constitution in this case, it is unnecessary to consider the other questions presented.

Runnels' out-of-court confession implicating the respondent was hearsay as to the latter, and therefore inadmissible against him under state evidence law. The trial judge so ruled, and instructed the jury that it must not consider any part of the statement in deciding whether or not the respondent was guilty. In Bruton, however, we held that, quite apart from the law of evidence, such a cautionary instruction to the jury is not an adequate protection for the defendant where the codefendant does not take the witness stand. We held that where the jury hears the codefendant's confession implicating the defendant, the codefendant becomes in substance, if not in form, a 'witness' against the defendant. The defendant must constitutionally have an opportunity to 'confront' such a witness. This the defendant cannot do if the codefendant refuses to take the stand.

It was clear in Bruton that the 'confrontation' guaranteed by the Sixth and Fourteenth Amendments is confrontation at trial-that is, that the absence of the defendant at the time the codefendant allegedly made the out-of-court statement is immaterial, so long as the declarant can be cross-examined on the witness stand at trial. This was confirmed in California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, where we said that '(v)iewed historically * * * there is good reason to conclude that the Confrontation Clause is not violated by admitting a declarant's out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination.' Id., at 158, 90 S.Ct., at 1935. Moreover, 'where the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admission of his out-of-court statements does not create a confrontation problem.' Id., at 162, 90 S.Ct., at 1937. This is true, of course, even though the declarant's out-of-court statement is hearsay as to the defendant, so that its admission against him, in the absence of a cautionary instruction, would be reversible error under state law. The Constitution as construed in Bruton, in other words, is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for 'full and effective' cross-examination.

The question presented by this case, then, is whether cross-examination can be full and effective where the declarant is present at the trial, takes the witness stand, testifies fully as to his activities during the period described in his alleged out-of-court statement, but denies that he made the statement and claims that its substance is false.

In affirming the District Court, the Court of Appeals relied heavily on the dictum of this Court in Douglas v. Alabama, 380 U.S. 415, 420, 85 S.Ct. 1074, 1077, 13 L.Ed.2d 934, that 'effective confrontation' of a witness who has allegedly made an out-of-court statement implicating the defendant 'was possible only if (the witness) affirmed the statement as his.' The Court in that case also remarked that the witness 'could not be cross-examined on a statement imputed to but not admitted by him.' Id., at 419, 85 S.Ct., at 1077. Of course, a witness can be cross-examined concerning a statement not 'affirmed' by him, but this dictum from Douglas was repeated in Bruton, supra, 391 U.S., at 127, 88 S.Ct., at 1623. In Douglas and Bruton (and in the other confrontation cases before Green) ^[4] there was in fact no question of the effect of an affirmance or denial of the incriminating statement, since the witness or codefendant was in each case totally unavailable at the trial for any kind of cross-examination. The specific holding of the Court in Bruton was:

'Plainly, the introduction of (the codefendant's) confession added substantial, perhaps even critical, weight to the Government's case in a form not subject to cross-examination, since (the codefendant) did not take the stand. Petitioner thus was denied his constitutional right of confrontation.' 391 U.S., at 127-128, 88 S.Ct., at 1623.

This Court has never gone beyond that holding.

In California v. Green, supra, the defendant was accused of furnishing marihuana to a minor, partly on the basis of an unsworn statement, not subject to cross-examination, made by the minor himself while he was under arrest for selling the drug. When the minor, not a codefendant, took the stand at the defendant's trial, he claimed that he could not remember any of the incriminating events described in his out-of-court statement, although he admitted having made the statement and claimed that he believed it when he made it. The earlier statement was then introduced in evidence to show the truth of the matter asserted, and this Court held it admissible for that purpose. The circumstances of Green are inverted in this case. There, the witness affirmed the out-of-court statement but was unable to testify in court as to the underlying facts; here, the witness, Runnels, denied ever making an out-of-court statement but testified at length, and favorably to the defendant, concerning the underlying facts.

Had Runnels in this case 'affirmed the statement as his,' the respondent would certainly have been in far worse straits than those in which he found himself when Runnels testified as he did. For then counsel for the respondent could only have attempted to show through cross-examination that Runnels had confessed to a crime he had not committed, or, slightly more plausibly, that those parts of the confession implicating the respondent were fabricated. This would, moreover, have required an abandonment of the joint alibi defense, and the production of a new explanation for the respondent's presence with Runnels in the white Cadillac at the time of their arrest. To be sure, Runnels might have 'affirmed the statement' but denied its truthfulness, claiming, for example, that it had been coerced, or made as part of a plea bargain. But cross-examination by the respondents' counsel would have been futile in that event as will. For once Runnels had testified that the statement was false, it could hardly have profited the respondent for his counsel through cross-examination to try to shake that testimony. If the jury were to believe that the statement was false as to Runnels, it could hardly conclude that it was not false as to the respondent as well.

The short of the matter is that, given a joint trial and a common defense, Runnels' testimony respecting his alleged out-of-court statement was more favorable to the respondent than any that cross-examination by counsel could possibly have produced, had Runnels 'affirmed the statement as his.' It would be unrealistic in the extreme in the circumstances here presented to hold that the respondent was denied either the opportunity or the benefit of full and effective cross-examination of Runnels.

We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments. Accordingly, the judgment is reversed and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion.

It is so ordered.

Reversed and remanded.

Notes

1. The Sixth Amendment to the Constitution provides that '(i)n all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *.'
2. See Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923; Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934.
3. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, held that the decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, is applicable to the States and is to be applied retroactively.
4. Brookhart v. Janies, 384 U.S. 1, 86 S.Ct. 1245, 16 L.Ed.2d 314; Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255; Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284.