Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S CV 75-143 - Allen Sharp, Judge.
Pell, Tone, and Bauer, Circuit Judges.
This is an appeal from the district court's grant of Prophet's petition for writ of habeas corpus. The district court granted the writ because in Prophet's state court trial the prosecutor introduced evidence of a 1947 conviction in which Prophet was not given the right to a court-appointed counsel.*fn1 Although we agree with the district court that the introduction of the uncounseled prior conviction constitutes error under Burgett v. Texas, 389 U.S. 109, 19 L. Ed. 2d 319, 88 S. Ct. 258 (1967), we reverse because we are of the opinion that the error was harmless beyond a reasonable doubt.
In Prophet's 1958 state court trial he was convicted under Count 1 of inflicting injury during the commission of a robbery and under Count 2 of robbery and being an habitual criminal. His convictions on both counts were affirmed by the Indiana Supreme Court in 1960. Prophet v. State, 241 Ind. 57, 168 N.E.2d 189 (1960). The conviction on Count 2 was voided in 1972 pursuant to a post-conviction relief petition, but no relief was granted as to the conviction on Count 1. This action was affirmed by the Indiana Supreme Court. Prophet v. State, 262 Ind. 312, 315 N.E.2d 699 (1974). One year later Prophet filed his habeas petition which the district court granted in 1977.
During the 1958 trial the prosecutor introduced evidence of a 1947 conviction in which Prophet was without benefit of counsel and was not given adequate advice as to his right to court-appointed counsel. This evidence was introduced in support of the habitual criminal charge and before the jury deliberated on both counts. In Burgett v. Texas, supra, the Supreme Court held that the admission into evidence of a prior conviction obtained in violation of Gideon v. Wainwright, supra note 1, used to support guilt or enhance punishment was constitutional error. The prior conviction in the present case was introduced initially to support the habitual criminal charge which was voided by a post-conviction order. The prosecution, however, also raised the prior conviction in an attempt to impeach Prophet during cross-examination.*fn2
The use of constitutionally invalid prior convictions for impeachment purposes was addressed by the Court in Loper v. Beto, 405 U.S. 473, 31 L. Ed. 2d 374, 92 S. Ct. 1014 (1972). The plurality opinion concluded that Burgett applied to such a use.
Unless Burgett is to be forsaken, the conclusion is inescapable that the use of convictions constitutionally invalid under Gideon v. Wainwright to impeach a defendant's credibility deprives him of due process of law.
405 U.S. at 483. This conclusion follows from Burgett that use of a prior uncounseled conviction to impeach the defendant would be using it to support his guilt. The use of the prior conviction in the present case was, therefore, error. The critical issue, however, is whether the harmless error doctrine applies, and if it does, whether the error in this case was harmless. *fn3 The plurality opinion in Loper stated that "in the circumstances of this case there is little room for a finding of harmless error, . . ." but did not foreclose the application of the harmless error doctrine to a different factual situation. Id. at 483 n.12. Furthermore, Justice White's concurring opinion specifically suggested that on remand the lower court should consider harmless error. Id. at 485. See also Burgett v. Texas, supra 389 U.S. at 115; Agee v. Wyrick, 546 F.2d 1324, 1326 (8th Cir. 1976); Gilday v. Scafati, 428 F.2d 1027, 1029 (1st Cir. 1970).*fn4 Because the application of the harmless error doctrine depends on the circumstances of the particular case, we must turn to the facts in the present case.
Before doing so, however, we note that under Chapman v. California, supra note 3, the error cannot be harmless if there is a reasonable possibility that the evidence may have contributed to the defendant's conviction. In the present case, therefore, the error would be harmless if: (1) the jury would have had to find Prophet guilty even if they believed his testimony in toto ; or (2) because of the overwhelming nature of the evidence against him, the jury could not have reasonably reached a different verdict even if the prior conviction were not used. The second test is a formidable one because of the difficulty in determining how much weight a jury would give the defendant's testimony. We need not make that determination in the present case because the facts in this case satisfy the first test.
On March 5, 1958, the sheriff of Carroll County, Indiana, went to the State Police barracks in West Lafayette, Indiana to talk to Prophet and others regarding a burglary that had occurred in Carroll County the night before. Prophet admitted taking part in the burglary. The money was being held by the State Police in West Lafayette. The sheriff and his deputy obtained the money from the State Police in bags marked "Farmers State Bank of Frankfort" and "Attica Bank" and placed these bags in the trunk of the sheriff's car. The sheriff and his deputy then drove to the Tippecanoe County Jail where they took custody of Prophet, his accomplice Delk, and their wives, for return to the Carroll County Jail.
The sheriff's deputy drove the car. Prophet was seated in the front seat between the deputy and the sheriff. The others sat in the rear seat. Both Prophet and Delk were handcuffed with their hands in front of them. During the trip, Prophet and Delk overpowered the sheriff and the deputy, took the sheriff's gun, and drove off in the car.*fn5
At about 4:25 p.m. that day, the State Police found the sheriff's car abandoned in a rock quarry. They also found Prophet and the two women and arrested all three. Prophet had the sheriff's gun, three wallets, eighty-one dollars in bills, and several loaded cartridges. Two or three days later, the bag marked "Farmers Bank of Frankfort" was found at the place where the car had been abandoned.
Prophet was convicted of robbery, infliction of physical injury while engaged in the commission of a robbery, and being an habitual criminal. The only conviction remaining after the 1972 post-conviction relief was that for infliction of physical injury during a robbery. We, therefore, look to the relevant portion of Prophet's testimony ...