This prosecution arose out of the murder of Nancy Morris Crumpler on January 16, 1978. Kevin Seward and a co-defendant,
Both Seward and Johnson, through counsel, filed pre-trial motions to suppress their confessions. The hearing on the motions took place before Judge Matthew Braniff of Section B of the Criminal District Court for the Parish of Orleans. On May 30, 1978, the motions were denied.
Evidently, either or both defense lawyers filed a motion to sever prosecution of the two cases. That motion to sever was apparently granted.
Seward, aided by new trial counsel,
Seward's trial commenced on March 12, 1979. His confession was introduced at trial, over objection of defense counsel. On March 14, 1979, the jury unanimously found Seward guilty of first degree murder. After a sentencing hearing, the jury recommended that Seward be sentenced to life, rather than executed. On March 23, 1979, Seward was sentenced to life imprisonment at hard labor.
For unexplained reasons, an appeal from the conviction and sentence did not reach this Court until 1986.
We now find that the State did not meet its burden of proving, beyond a reasonable doubt, that Seward's confession was freely and voluntarily given. We further hold that the trial court's error in admitting the confession cannot be deemed harmless.
Seward and Johnson were arrested for the murder of Mrs. Crumpler
Both men were taken to the New Orleans Police Department's Detective Bureau for separate interrogations. Seward was interrogated from midnight until 2:00 a.m. He contends that during this time the police, in an effort to procure his confession, repeatedly hit him in the head, kicked and hit him in the chest and back, pushed him to the floor, and placed a plastic bag over his head. The officers also allegedly threatened, swore and screamed at Seward in an effort to elicit a confession.
The police version of the facts leading to the confession was different. According to the police, Seward was initially interrogated for approximately two hours. No confession was obtained at that time. Seward was then placed in the holding cell Johnson had occupied, while Johnson was brought into the interrogation room. Johnson then allegedly confessed to the crime and implicated someone other than Seward. Seward was then informed he was free to leave.
However, the police then asked that he remain at the station until they had picked up the person whom Johnson had implicated. At that point, Seward, wishing to have his name cleared, obliged the officers and thereupon crawled up on one of the desks in the Detective Bureau and went to sleep.
After investigating Johnson's story, and finding it not believable, Detectives Dillman and Norwood returned at 7:00 a.m. and found Seward still asleep. Seward was then roused by the officers, who asked that he take a polygraph examination. Seward agreed.
At approximately 9:30 a.m., the polygraph operator testified, Seward made a statement implicating himself and Johnson. This information was relayed to Detective Dillman. Seward then reiterated the same story to Dillman. Dillman, together with Detective Steve London, then procured Seward's written confession. The officers testified unequivocally and uniformly that they had at no time used any physical or mental force or coercion in order to obtain Seward's confession.
At that point, Seward was transported to Central Lock-up, where he was booked with the murder of Mrs. Crumpler. He was booked by Ms. Edwina Penn, a Correctional Officer employed by the New Orleans Police Department. During the booking process, Penn asked Seward if he had injured himself. Seward answered in the affirmative, stating that he had bruised his chest in a fall prior to his arrest. Penn testified that when she asked Seward if he was injured, it took Seward quite some time to answer. In conjunction with this testimony, Seward testified that he made up the story out of fear of police retaliation. Since Penn was also a New Orleans
After Seward informed Penn of his injuries, Penn informed her superior, Officer George Delpedio, Jr., that Seward had complained of an injury and wanted to be taken to a hospital. Upon lifting up Seward's shirt, Delpidio noticed a bruise on Seward's chest area. Seward purportedly informed Delpedio that he had fallen off a porch prior to his arrest. Delpedio called the homicide unit. When homicide officers Hoyt and Dantagna picked Seward up and transported him to Charity Hospital, it was approximately 5:00 p.m. on January 19, 1978, some eighteen hours after Seward's arrest and seventeen hours after the police had first started interrogating Seward.
At Charity, Seward was examined by Dr. Robert Pike. At the time of the examination, Dr. Pike was interning in the emergency room of Charity Hospital.
Dr. Pike testified that he was asked by Seward not to tell the police what Seward had just told him for fear that further beatings might result and that he, Dr. Pike, respected his patient's wishes not to tell the police or to put the information in his hospital report because of his patient's request for confidentiality. During his examination, Dr. Pike discovered three or four bruises ("purpura"), profuse over his patient's back, possible injuries to the kidneys, a swollen area on the left side of his head which measured in length from 3 to 4 centimeters, a big bruise over his breast bone, and a tenderness in his right knee, but no internal bleeding. The doctor had X-rays taken, and they were negative for fractures. A urinalysis performed by Charity was also negative.
Dr. Pike could not pinpoint the time of the injuries with any amount of definiteness. The injuries were consistent with a beating, or a major fall, according to Dr. Pike.
When queried as to the type of fall necessary to produce injuries as extensive as those suffered by the defendant, Dr. Pike stated:
Defense counsel also adduced testimony from co-defendant Johnson concerning the types of steps found in the home where defendant and his co-defendant resided:
Additionally, one of the arresting detectives testified about the staircase in Johnson's home:
Before a defendant's confession may be introduced into evidence, the state must affirmatively show that the confession was offered freely and voluntarily and was not given under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises. La.Rev.Stat.Ann. 15:451 (West 1981). This statute serves to safeguard a defendant's fifth amendment protection against self-incrimination. State v. Coleman, 390 So.2d 865 (La.1980). Further, admission of a coerced confession serves to deny a defendant due process of law, in violation of the fourteenth amendment to the United States Constitution. Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). The constitutional guarantee of due process is denied an accused when he is deprived of that "fundamental fairness essential to the very concept of justice." 356 U.S. at 567, 78 S.Ct. at 850, 2 L.Ed.2d at 981 (citations omitted).
Although the burden of proof is generally on the defendant to prove the grounds recited in a motion to suppress evidence, such is not the case with the motion to suppress a confession. In the latter situation, the burden of proof is with the state to prove the confession's admissibility. La.Code Crim.Proc. art. 703(D) (West 1981). Acknowledging the affirmative duty placed on the state to prove a confession's admissibility, we have held that the state must prove "beyond a reasonable doubt" that the confession was made freely and voluntarily. State v. Smith, 409 So.2d 271 (La.1982). The "beyond a reasonable doubt" burden insures that the state cannot obtain a verdict against a criminal defendant "without convincing a proper factfinder of his guilt with utmost certainty." In Re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In Winship, the United States Supreme Court recognized the reasonable doubt standard as "impress[ing] on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue." 397 U.S. at 364, 90 S.Ct. at 1072, 25 L.Ed.2d at 375 (citation omitted). As applied to the situation before us, the evidence presented by the state must persuade a rational trier of fact "beyond a reasonable doubt" that the defendant sustained his injuries from a fall, rather than by a beating from the police. Our review of the record in this case indicates that the lower court was simply wrong in finding that the state met that burden of proof.
Doubt concerning the cause of Seward's injuries arises from the following factors gleaned from the motions to suppress and the evidence introduced thereon:
If the issue in this case were to be resolved purely on credibility, defendant and Johnson versus the police officers, deference to the trial judge might prompt a decision against the defendant, Seward. That is not the case, however. There is the apparently reliable testimony of Dr. Robert Pike. Dr. Pike testified that the defendant had objective signs of injury consistent with a police beating. Further, Doctor Pike's description of the type of fall necessary to produce such objective signs of injury makes the police version of the cause of Seward's injuries improbable. At the least, the evidence preponderately establishes that Seward was beaten. In all events the state did not prove, beyond a reasonable doubt, that Seward sustained his injuries in a fall, or in some other way. Nor did they prove, beyond a reasonable doubt, that Seward's confession was given freely and voluntarily, and "not under the influence of fear, duress, intimidation, menaces, threats, inducements, or promises." La.Rev.Stat.Ann. 15:451 (West 1981).
However, this does not end our inquiry. The state contends that, irrespective of Seward's confession, more than enough evidence existed to convict Seward. In essence, the state contends the admission of the confession constituted "harmless error."
In Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the United States Supreme Court noted that some errors, although of constitutional dimension, are so unimportant and insignificant that they may, consistent with the federal Constitution, be deemed harmless so as not to require the automatic reversal of a given conviction. In Chapman, the Supreme Court noted that before a federal constitutional error can be held harmless, a court "must be able to declare a belief that [the error] was harmless beyond a reasonable doubt." 386 U.S. at 24, 87 S.Ct. at 828. In analyzing the nature of the error in question, the Chapman court adopted its prior reasoning in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). In Fahy the court held that the query which must be answered in determining whether an error can be considered harmless is "whether there is a reasonable possibility that the evidence might have contributed to the conviction." 375 U.S. at 86-87, 84 S.Ct. at 230, 11 L.Ed.2d at 173 (emphasis supplied). In State v. Gibson, 391 So.2d 421, 427 (La.1980), we adopted the federal harmless error standard of appellate review, since the standard is "most compatible with this Court's view of its own criminal appellate jurisdiction."
It may ultimately be found that the admission of a coerced confession can never be treated as harmless error. In Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958), the petitioner, a 19 year old black man, argued that his confession was impermissibly introduced into evidence, as the confession was the product of coercion. The United States Supreme Court, after noting that the totality of circumstances indicated the confession was coerced, reversed the Arkansas state court judgment, notwithstanding the fact that
356 U.S. at 567-68, 78 S.Ct. at 850, 2 L.Ed.2d at 981 (citations omitted). The Supreme Court in dicta in Chapman cited the coerced confession in Payne as evidence of the type of constitutional infraction that could never be treated as harmless error. Chapman, 386 U.S. at 23, 87 S.Ct, at 827-28. See also, Rose v. Clark, ___ U.S. ___, ___, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986); Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Arthur v. Bordenkircher, 715 F.2d 118 (4th Cir.1983); but see, 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). Admittedly, the Supreme Court has not squarely addressed the issue following Chapman.
We pretermit the question of whether introduction of a coerced confession can ever be deemed harmless, however, since our review of this record indicates that the confession may have contributed to the jury's verdict of guilty. In all events we are unable to conclude that the error was harmless beyond a reasonable doubt.
The state's case, besides Seward's confession, consisted of circumstantial evidence coupled with eye witness identification, the latter attacked by defense counsel, who argued to the jury (and tried to prove) that the in-court identifications were tainted by earlier improperly suggestive photographic line-ups. Of course, Seward's confession was emphasized in the state's closing argument, as counsel for the state repeatedly compared Seward's version of the facts surrounding the confession with the uniform version offered by the police. Without the benefit of Seward's confession, the state, without question, had a weaker case.
In Stein v. New York, 346 U.S. 156, 192, 73 S.Ct. 1077, 1096, 97 L.Ed. 1522, 1547 (1953), the United States Supreme Court noted that "reliance on a coerced confession vitiates a conviction because such a confession combines the persuasiveness of apparent conclusiveness with what judicial experience shows to be illusory and deceptive evidence." It is exactly the conclusiveness of such evidence which renders its admission rarely, if ever, harmless. In effect, the introduction of such evidence necessarily renders the trial fundamentally unfair. Rose v. Clark, 106 S.Ct. at 3106. Certainly for jurors who may otherwise have harbored a reasonable doubt concerning defendant's guilt, the introduction of the confession won their vote. Although we cannot with any certainty quantify the weight given by the jury to Seward's confession, we simply cannot conclude that the introduction of the confession played no part in the jury's verdict.
Defendant Kevin Seward's conviction and sentence are reversed; the case is remanded to the Criminal District Court for the Parish of Orleans for retrial.
REVERSED AND REMANDED.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
The issue of whether defendant sustained his injuries from a fall prior to his arrest or by a beating from the police is a factual one depending primarily on the credibility of the witnesses. Two judges who heard and saw the witnesses denied defendant's motions to suppress his confession. Obviously, they believed the testimony of the police officers and rejected that