James E. Cunningham, Petitioner-appellant, v. Jim Rose, Warden, Defendant-appellee, 476 F.2d 1285 (6th Cir. 1973)

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U.S. Court of Appeals for the Sixth Circuit - 476 F.2d 1285 (6th Cir. 1973) Argued April 20, 1973. Decided May 17, 1973

Marvin Berke, Chattanooga, Tenn. (Court-appointed), for petitioner-appellant.

R. Jackson Rose, Asst. Atty. Gen., Nashville, Tenn., for defendant-appellee; David M. Pack, Atty. Gen., of counsel.

Before CELEBREZZE, PECK and KENT, Circuit Judges.


This is an appeal from the denial of a writ of habeas corpus. The appellant was convicted of rape. The jury imposed the death sentence which was commuted to a 99-year term by the Governor of Tennessee.

All the issues presented were carefully considered by District Judge Frank W. Wilson, and disposed of in a carefully prepared opinion. Judge Wilson concluded in his opinion that the admission of the confessions of each of the four defendants was error within the meaning of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), but that such error was harmless. Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340 (1972).

We are not satisfied that the use of the confessions under the circumstances of this case was in fact error within the meaning of Bruton, but conclude that if there was such error the District Judge was eminently correct in concluding that on this trial record the error was harmless.

Judgment affirmed.