Appeal from the United States District Court for the Southern District of Indiana, Evansville Division. No. 79-168-C -- Gene E. Brooks, Judge.
Bauer, Posner, Circuit Judges, and Robert A. Grant, Senior District Judge.*fn*
GRANT, Senior District Judge.
This is an appeal from the denial of a habeas corpus petition which alleges that statements made by Harrison and admitted into evidence at trial were obtained by false promises and misrepresentations by police officers and in violation of Miranda. Harrison was found guilty of first-degree felony murder and sentenced to life imprisonment for the brutal and senseless slaying of a cab driver during a robbery. His conviction was affirmed by the Supreme Court of Indiana, 269 Ind. 677, 382 N.E.2d 920 (1978), and certiorari was denied by the United States Supreme Court on April 16, 1979. 441 U.S. 912, 99 S. Ct. 2010, 60 L. Ed. 2d 384 (1979).
The facts surrounding Harrison's statements to the police are set forth in the opinion of the Supreme Court of Indiana at 269 Ind. 677, 382 N.E.2d 920, 922-24. As Harrison's recitation of facts in his brief do not significantly differ, we will not include a separate statement in this Opinion. There are, however, several factual assertions made by Harrison that do merit recognition.
On the night of the murder, Harrison called his friend Charles Lilly, informed him that someone had been shot and possibly killed and that he needed to talk to him. Meeting several days later, Harrison told Lilly of his involvement in the killing and asked for advice.
During what then can be characterized as Lilly's negotiations with the police, Lilly stated that the police promised "considerations and leniencies" if the then unidentified individual would come forward and surrender. Lilly apparently understood that some type of deal had been made, lesser charges in exchange for the individual's surrender, and communicated this understanding to Harrison. Another fact asserted by Harrison in his brief is that immediately prior to his signing the confession, Lilly told him, based upon alleged representations made by the police to Lilly, that the police could not come right out with a deal but that consideration would be given to him later. Harrison contends these facts further support his claim that his confession was induced by false promises and misrepresentations.
After discussing the circumstances surrounding Harrison's statements and quoting the decision of the Indiana Supreme Court on this issue, the district court elected not to decide whether or not Harrison's oral statements were obtained by promises of leniency or influence. Rather, it denied Harrison's petition on harmless error grounds, stating:
Even if it is determined, from the total record of circumstances, that his oral statement was obtained in such a manner and therefore inadmissible petitioner's full statement of his participation in the alleged crime to his neighbor Charles Lilly testified to at trial, would render any error harmless because if the oral statement to the police was removed his full and nearly identical confession given to Lilly would be properly in the record. Brinlee v. Crisp, 608 F.2d 839, 851 (10th Cir., 1979).
In analyzing state court proceedings by way of § 2254 review, federal courts must distinguish between error which is so prejudicial as to deny the petitioner fundamental due process of law and that which does not. Guzzardo v. Bengston, et al., 643 F.2d 1300 (7th Cir., 1981).
Our review, therefore, will be limited solely to the propriety and justification of a harmless error finding under the presumption that Harrison's statements were obtained by false promises and misrepresentations.
In order to find an error of constitutional magnitude harmless the reviewing court "must be able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967). See also Alicea v. Gagnon, 675 F.2d 913, 925 (7th Cir. 1982); United States v. Posey, 663 F.2d 37, 42 (7th Cir. 1981). Harrison essentially argues that the admission at trial of an involuntary or coerced confession can never be held to constitute harmless error. He cites in support the Supreme Court's decisions in Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964), Payne v. Arkansas, 356 U.S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844 (1958) and Haley v. Ohio, 332 U.S. 596, 92 L. Ed. 224, 68 S. Ct. 302 (1948). He particularly highlights the decision in Stroble v. California, 343 U.S. 181, 96 L. Ed. 872, 72 S. Ct. 599 (1952). None of these cases, however, establish any per se rule prohibiting a harmless error finding in the context of inadmissible confessions. Moreover, subsequent decisions by the Supreme Court refute the existence of any blanket prohibition. Milton v. Wainwright, 407 U.S. 371, 33 L. Ed. 2d 1, 92 S. Ct. 2174 (1972); Schneble v. Florida, 405 U.S. 427, 31 L. Ed. 2d 340, 92 S. Ct. 1056 (1972); Chapman, supra. See also United States ex rel. Robert Gorham v. Franzen, 675 F.2d 932, slip op. at 13 (7th Cir. 1982); Harryman v. Estelle, 616 ...