Staley, Freedman and Aldisert, Circuit Judges.
Opinion OF THE COURT ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
This appeal is before us on remand from the Supreme Court.
Appellant, John D. Wade, his brother, Nathaniel Wade, and one James Knox, were indicted jointly for a murder committed during the course of a robbery in Paterson, New Jersey. The State was granted a severance as to Knox, and the Wade brothers were jointly tried before a jury which found them guilty of murder in the first degree and recommended life imprisonment. They were sentenced accordingly. Knox was tried later and acquitted.
Nathaniel Wade was unsuccessful in a direct appeal from his conviction to the Supreme Court of New Jersey (State v. Wade, 40 N.J. 27, 190 A.2d 657 (1963)), and in a subsequent federal collateral attack. Wade v. Yeager, 245 F. Supp. 67 (D.N.J.1965), modified 377 F.2d 841 (3 Cir. 1967).
John Wade did not appeal from his conviction, but later sought relief under the New Jersey post-conviction law (N.J.R.R. 3:10A-1 et seq.), which was denied on May 24, 1965 by the Supreme Court of New Jersey. (No. M-230 Sept. Term 1964.) He then sought federal habeas corpus, which he pressed without success all the way to the Supreme Court of the United States.*fn1 Then on February 7, 1967, he filed the present petition for a writ of habeas corpus. The District Court denied his petition and refused a certificate of probable cause for appeal. This Court, on September 29, 1967, also denied him a certificate of probable cause. The Supreme Court, however, in a per curiam opinion on June 17, 1968, granted certiorari, vacated the judgment and remanded the case to us "for further consideration in light of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 ."*fn2 See Wade v. Yeager, 392 U.S. 661, 88 S. Ct. 2291, 20 L. Ed. 2d 1352 (1968).
On the return of the mandate to us, we granted a certificate of probable cause, appointed counsel for appellant and heard argument on the appeal.
The Bruton issue requires a consideration of the circumstances surrounding Nathaniel Wade's confession. On March 3, 1960, a tavern keeper was shot to death in front of his place of business. It is conceded that the gun had originally belonged to John Wade, although he claimed that he had delivered it to the victim and that it went off in a struggle which arose during a quarrel over the payment of the purchase price. In the course of their flight from the pursuing police, the Wade brothers abandoned their car at the George Washington Bridge and fled on foot. Nathaniel leaped from a wall and sustained multiple fractures of his leg. John was struck in the leg by a police bullet. They were captured and taken to a hospital in New York City for medical attention. Nathaniel remained at the hospital for 19 days, when a Paterson police detective removed him from the hospital and, accompanied by other police officers, took him to police headquarters in New York City where he was fingerprinted and photographed. On the advice of counsel he waived extradition and was then brought to police headquarters in Paterson, New Jersey. In the late afternoon of that day, a physician summoned by the police gave him an injection of Demerol and about an hour and one-half later two police officers began to interrogate him. The interrogation lasted for about two hours and then his statement was typed by a detective, read to him, and he signed it.
At the joint trial of the Wades, Nathaniel's confession was offered by the State and over his objection was admitted in evidence against him. The jury was instructed, however, under the doctrine of Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957), that the confession was not to be considered against John. Nathaniel later took the stand in his own defense and while admitting that the confession bore his signature, claimed that it was obtained when his mind was clouded by the effects of the Demerol, his physical injuries and the suffering imposed by the travels of the day, and that when he signed the paper he thought it was merely a consent to be photographed. On cross-examination of Nathaniel, the prosecution read his confession item-by-item, followed in each instance by his denial.*fn3 John did not cross-examine his brother.
Since Nathaniel already had denied the truthfulness as well as the voluntariness of the confession, which had made John the chief culprit, John asserts that so far as he was concerned he had in fact no opportunity for effective cross-examination of Nathaniel. There existed, he asserts, only the appearance of an opportunity for confrontation of Nathaniel because at the most John could expect no more on Nathaniel's cross-examination than a reiteration of the testimony he had given on direct examination and on cross-examination by the state that his confession implicating himself and John was not truthful or voluntary.
In Bruton, where Delli Paoli was overruled, it was held that in a joint trial the introduction against a co-defendant of his confession which also implicates the defendant deprives the defendant of his Sixth Amendment right of confrontation, where the co-defendant has not taken the witness stand, because the defendant could not cross-examine him, and a cautionary instruction to the jury to consider the confession only as against the co-defendant was held to be ineffective.*fn4 The evil at which Bruton struck was the likelihood that the co-defendant's confession might percolate into the minds of the jurors despite a cautionary instruction. The Supreme Court did not intend in Bruton to invalidate all joint trials in which a co-defendant's confession is admitted against him. Where confrontation is available it matters not that the defendant finds it unnecessary to cross-examine his co-defendant because he has already said on direct examination or on cross-examination by the prosecution all that the defendant could possibly have expected to achieve by cross-examining him. It might, of course, be said that in every joint trial, even where there is confrontation and the co-defendant can be cross-examined by the defendant regarding the co-defendant's confession which implicates the defendant, there is nevertheless inevitable prejudice to the defendant that cannot adequately be met by cross-examination. But we cannot view Bruton as expressing sub silentio a doctrine which would declare all joint trials invalid whenever a co-defendant has given a confession which implicates the other defendant, even though both defendants, as here, took the stand and there is full opportunity to cross-examine the co-defendant who made the confession. We do not feel at liberty to extend its holding to what may appear to be the logical next step of declaring all such joint trials inevitably unconstitutional for lack of due process.*fn5
John's choice not to cross-examine Nathaniel regarding the confession does not destroy the reality that Nathaniel was available for that purpose. The right of confrontation is satisfied where there is the opportunity for cross-examination and does not require that the opportunity be exercised.*fn6 If John's cross-examination of Nathaniel could not have been of any use to John, this is only because Nathaniel had already given John the benefit on his direct examination and cross-examination by the state of the disavowal of his confession which John normally might have hoped to achieve by cross-examination. That it came ...