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ROBERTS v. RUSSELL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT. No. 920, Misc.
Decided June 10, 1968.
Bruton v. United States, 391 U.S. 123 , which overruled Delli Paoli v. United States, 352 U.S. 232 , and held that, despite instructions to the jury to disregard implicating statements in determining a codefendant's guilt or innocence, admission at a joint trial of a defendant's extrajudicial confession implicating a codefendant violates the codefendant's Sixth Amendment right to cross-examination, is to be applied retroactively, both to state and federal prosecutions.
Certiorari granted; judgment vacated and remanded.
George F. McCanless, Attorney General of Tennessee, and Paul E. Jennings, Assistant Attorney General, for respondent.
In Bruton v. United States, 391 U.S. 123 , decided May 20, 1968, we overruled Delli Paoli v. United States, 352 U.S. 232 , and held that, despite instructions to the jury to disregard the implicating statements in determining the codefendant's guilt or innocence, admission at a joint trial of a defendant's extrajudicial confession implicating a codefendant violated the codefendant's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. This case presents the question whether Bruton is to be applied retroactively. We hold that it is.
The facts parallel the facts in Bruton. The petitioner was convicted by a jury of armed robbery at a joint trial with one Rappe in Davidson County, Tennessee. A police officer testified that Rappe orally confessed to him that petitioner and Rappe committed the crime. [392 U.S. 293, 294] The trial judge instructed the jury that Rappe's confession was admissible against her but that her statements implicating petitioner were not to be considered in determining petitioner's guilt or innocence. The Tennessee Supreme Court affirmed petitioner's conviction. Petitioner filed a proceeding in federal habeas corpus in the United States District Court for the Middle District of Tennessee. That court relied on Delli Paoli and denied relief. The Court of Appeals for the Sixth Circuit affirmed.
Although Bruton involved a federal prosecution and this is a state prosecution, the right of cross-examination secured by the Confrontation Clause of the Sixth Amendment is made applicable to the States by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400 ; Douglas v. Alabama, 380 U.S. 415 .
The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeals is vacated and the case is remanded to the District Court for further consideration in light of Bruton v. United States, supra.
MR. JUSTICE HARLAN and MR. JUSTICE WHITE dissent for the reasons stated in MR. JUSTICE WHITE'S dissenting opinion in Bruton v. United States, 391 U.S. 123, 138 (1968). [392 U.S. 293, 296]