Appeal from the United States District Court for the Northern District of Indiana, South Bend Division No. S 76-C-108 -- Allen Sharp, Judge .
Before Sprecher and Bauer, Circuit Judges, and Campbell, Senior District Judge.*fn*
This appeal from the district court's denial of petitioner Luis Antonio Montes' habeas corpus petition poses two issues: The first is whether Montes was denied his Sixth Amendment right to confront adverse witnesses in his state trial when the prosecution introduced the joint confession of Montes and his codefendant, and when the trial court did not, sua sponte give a limiting instruction stating that the confession of the codefendant could not be used as evidence of Montes' guilt; the second issue is whether Montes' confession was unconstitutionally used in evidence either because it was involuntary or because it was obtained as the result of Montes' allegedly illegal detention by police. The district court found no violation of Montes' constitutional rights. We affirm.
This case arose out of the fatal beating of David Doty, the houseman at an Indiana Department of Corrections work release center located in a residential part of Indianapolis. Montes and his state trial codefendant John Farrar were on work release programs at the center when Doty's body was discovered shortly after 5:00 a.m. on March 13, 1973. After arriving at the scene, police briefly questioned Montes, Farrar, and the other thirteen work releasees; they then moved all fifteen to a local police station. Although suspicion had not focused on any of the fifteen when the questioning at the center was conducted, remarks made by Montes and by a fellow work releasee caused police to suspect Montes.*fn1 After reaching the station, and prior to further questioning, police advised Montes of his Miranda rights. Montes signed a form indicating that he waived those rights.
Beginning at about noon, police questioned Montes; he repeatedly denied involvement in the killing. He was given a lunch and was, it appears from the record, questioned by one or two officers at a time. Sometime during the afternoon, police asked him if he would be willing to take a polygraph examination. He was informed of the nature of the examination and agreed. Questioning of Montes resumed after the examination, and shortly thereafter, at about 5:00 p.m., police read to Montes the waiver of rights form he had earlier signed. Montes then confessed that he and Farrar had killed Doty. At about 6:00 p.m. Montes was formally arrested on the murder charge.
The interrogation of Farrar followed a similar pattern. Farrar was advised of his Miranda rights, executed a written waiver of rights form at about 4:00 p.m., was questioned, and denied any involvement in the killing. In response to a police request, Farrar agreed to take a polygraph examination. After the test, Farrar confessed that he and Montes had killed Doty.
At about 7:30 p.m., Montes and Farrar were brought together in a room with Police Detective Robert Hoke and Police Sergeant James Strode. Montes' confession was read to Farrar,*fn2 who stated several times during the reading that what Montes had said was true. Afterwards, Montes and Farrar were incarcerated for the night. Early the next morning they were taken before a magistrate and formally charged with Doty's murder.
Montes' confession and the fact that Farrar adopted it were introduced in their joint trial by Sergeant Strode's oral testimony. Farrar's independent confession was not introduced. The jury found Montes guilty of second degree murder and Farrar guilty of first degree murder. Both were sentenced to life imprisonment.
On appeal, the Indiana Supreme Court held, inter alia, that Montes' confession was neither involuntary nor the fruit of an illegal detention and that introduction of Farrar's adoption of Montes' confession did not violate Montes' confrontation rights. Montes v. State, 263 Ind. 390, 332 N.E.2d 786 (1975). Montes then filed this habeas corpus action. An earlier ruling by the district court denying Montes' petition was reversed by this Court and remanded for a review of the state court record and a determination of whether an evidentiary hearing was necessary. Montes v. Jenkins, 581 F.2d 609 (7th Cir. 1978). After examining the state court record, the district court again ruled against Montes, and this appeal followed.
As the district court recognized, Montes' contention that his confrontation rights were infringed must be considered in light of the recent decision in Parker v. Randolph, 442 U.S. 62, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979). In Parker, a four-member plurality found that the rule against introduction of a nontestifying defendant's confession in a joint trial in which a codefendant has not confessed, see Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), does not apply where the interlocking confessions of both defendants are introduced with the cautionary instruction that the confession of one defendant cannot be considered as evidence of the guilt of his codefendant. The plurality reasoned that when both codefendants have confessed and both confessions are otherwise admissible in a joint trial, a limiting instruction is sufficient to cure any potential prejudice from introduction of the confessions or from an inability to cross-examine a codefendant concerning his confession. 442 U.S. at 74-75 & n. 7, 99 S. Ct. at 2139-40 & n.7, 60 L. Ed. 2d 713 (plurality opinion).
Concurring in Parker, Justice Blackmun took the position that the Bruton prohibition is applicable to interlocking confessions, that admission of the confessions into evidence was therefore error, but that any error in the case had been harmless beyond a reasonable doubt. Id. at 76-82, 99 S. Ct. at 2141-43 (Blackmun, J., concurring). The three dissenting Justices agreed that Bruton and the harmless error rule were applicable, but disagreed concerning the ultimate conclusion that the error had been harmless. Id. at 80-83, 99 S. Ct. at 2143-44 (Stevens, J., joined by Brennan & Marshall, JJ., dissenting). The eight Justices who participated in Parker were, thus, evenly divided over which analytical approach to take to the interlocking confession situation.
We need not decide which of the two approaches in Parker should govern this case: under either approach, Montes' conviction was constitutionally sound. Accepting for present purposes the validity of the Parker plurality's approach, it was not error to admit the confessions into evidence. Accordingly, Montes' only complaint would be that the failure of the trial court to give a limiting instruction on its own motion rendered his conviction constitutionally infirm. We think, however, that Montes waived his right to a limiting instruction when he failed to request one. Although he argues to the contrary, the law at the time Montes was tried gave ample notice to his counsel that the joint confessions may have been admissible,*fn3 and that, in the event that they were, Montes' confrontation rights could be protected only by an instruction to the jury that Farrar's adoption of Montes' confession was not evidence of Montes' guilt. In the face of this and of the state ...