decided: March 3, 1969; September 26, 1969, Decided.
Reargued Before Original Panel May 23, 1969.
Hastie, Chief Judge, and Seitz and Aldisert, Circuit Judges.
This is an appeal from a judgment granting habeas corpus to the appellee Brown, a state prisoner. The writ was granted on the ground that the evidence upon which Brown was convicted included a gun and testimony that it had been found in Brown's car, and that this evidence had been obtained by unlawful search and seizure.
The state trial court, sitting without a jury, had found Brown guilty of the crimes of aggravated robbery, burglary, conspiracy and carrying concealed deadly weapons. Concurrent sentences were imposed, the most severe of which was a sentence of not less than five and not more than twenty years on the aggravated robbery charge.*fn1 The gun and the testimony concerning its discovery related to the crime of robbery since the gun was the only article alleged to have been stolen.
We assume for purposes of this appeal that the court below was correct in its conclusion that the gun had been illegally discovered and seized, although the evidence concerning the circumstances of its discovery and seizure is far from clear. We focus our attention upon the question whether the error in admitting evidence, though found to be of constitutional dimensions, "was harmless beyond a reasonable doubt." Chapman v. California, 1967, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705.
The alleged victim of the robbery was a bartender. According to his testimony, the appellee and two companions entered the bar, ostensibly as patrons. Somewhat later, Brown and one companion jumped over the bar and attacked him while the third member of the group held the other customers at bay. He also testified that in the struggle Brown dropped a revolver from his pocket, while the bartender managed to draw his own revolver and fire one shot. Brown succeeded in wrenching the bartender's gun from his hand, after which Brown fled, accompanied by his companions and taking the bartender's gun with him.
This and other testimony for the prosecution warranted an inference that the affray occurred in an attempted holdup. Brown's defense was that the fight resulted solely from insulting epithets by the bartender. The judge concluded that the affray was an attempted holdup and indicated from the bench that his decision was influenced by the fact that Brown was carrying a revolver.
The bartender's story about what happened to his own gun was corroborated by Brown himself when he took the stand in his own defense. He told of the bartender drawing his gun, of the ensuing struggle, of the firing of the gun and of his own flight with the gun in his hand. He explained his flight as the result of panic induced by the bartender's armed assault. He also testified that he himself was carrying two loaded revolvers.
For present purposes the important items of evidence are the bartender's testimony that Brown wrenched his gun from him and fled with it and Brown's own testimony corroborating that part of the bartender's story. With this testimonial agreement that Brown forcibly deprived the bartender of his gun and carried it away with him, the now challenged additional testimony of finding the gun in Brown's car and the introduction of the gun itself in evidence served to prove nothing of significance that was not already in evidence and soon thereafter confirmed by Brown himself. And since the bartender had been clear and explicit in his description of the affray, there is no logical basis for any claim that it was the additional introduction of the gun and the testimony as to its discovery in Brown's car that made it necessary for Brown to admit and explain his seizure of the weapon and flight with it.
We add that the trier of fact was not a lay jury but a professional judge, whose training and experience in the analysis and evaluation of evidence must have caused him to realize that any inference from the finding of the gun in Brown's car was not needed and added no weight to the decisive eyewitness testimony given by both the prosecuting witness and the accused that Brown had taken the gun.
Thus, on the trial record we find, in the language of the Chapman case, "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." 386 U.S. at 24, 87 S. Ct. 824, at 828. Cf. United States ex rel. O'Callahan v. Parker, 3d Cir. 1968, 390 F.2d 360, cert. granted on a different point, 393 U.S. 822, 89 S. Ct. 177, 21 L. Ed. 2d 93; United States v. Reed, 7th Cir. 1968, 392 F.2d 865; Lockett v. United States, 9th Cir. 1968, 390 F.2d 168.
Other grounds for habeas corpus were urged in the court below. On the record we are satisfied that none of them ...