Munford v. Seay

Per curiam.

We granted Munford leave to appeal in this habeas corpus action, in which he urges primarily that at his trial he was denied the right to confront a witness against him, in violation of the Sixth Amendment to the Federal Constitution.

Munford and two other men were jointly accused of robbing a store. The three were tried jointly and represented by the same attorney. One of Munford’s co-defendants confessed and implicated him, but did not take the stand at trial and was thus not available for cross examination (overlooking for the moment the single-counsel problem); the other confessed and implicated him but did take the stand and attempted to repudiate the confession and cast all the blame onto the other confessor. Munford’s conviction was affirmed on appeal in Munsford v. State, 235 Ga. 38 (218 SE2d 792)(1975) in which the trial evidence was set forth in detail. (No reason appears for the difference in spelling Munford’s name.)

At the evidentiary hearing held on Munford’s habeas petition, trial counsel testified that prior to trial he had been prepared to enter guilty pleas for all three men; that at the last minute the other two decided they wanted to be tried; that Munford just tagged along with that decision; *224that the trial began so swiftly counsel did not think of the confrontation and conflict of interest problems inherent in representing all three at trial; that he now thought he had thereby been ineffective, and Munford had been prejudiced.

1. Under Bruton v. United States, 391 U. S. 123 (1968) a defendant is denied his right to confrontation when the confession of a co-defendant implicates him and the co-defendant does not take the stand. That is what happened at Munford’s trial with respect to co-defendant Daniels whose confession implicated Munford but who did not testify. (A different problem is raised with respect to the confession of the other co-defendant.) The state does not now deny that a Bruton violation occurred. Nonetheless, the habeas court found the error to be harmless and denied relief. This appeal followed.

The habeas court in its opinion, and the state in its brief in this court, urge that there was other evidence sufficient to convict Munford, and therefore the Bruton error was harmless. That is not the proper test. To be harmless, a Bruton error must be harmless beyond a reasonable doubt. Schneble v. Florida, 405 U. S. 427 (1972); Harrington v. California, 395 U. S. 250 (1969). In both those cited cases, the United States Supreme Court found the error to be harmless; but also in both the other evidence of guilt was said by the court to be "overwhelming.” Schneble, supra, 405 U. S. at 431; Harrington, supra, 395 U. S. at 254. In Schneble the weighing process was phrased in this way: "In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” 405 U. S. at 430. Also, reversal is not required "unless there is a reasonable probability that the improperly admitted evidence contributed to the conviction.” Id. at 432.

Under that analysis, a majority of the members of this court are of the opinion that the error in Munford’s case was harmless beyond a reasonable doubt in light of the weight of the remaining evidence of his guilt.

*225Submitted February 3, 1978 Decided April 18, 1978. Dennis J. Strickland, J. Greg Wolinski, for appellant. Arthur K. Bolton, Attorney General, Daryl A. Robinson, Assistant Attorney General, Kenneth Royal, Deputy Assistant Attorney General, for appellee.

2. Munford’s second enumeration argues from Baker v. Wainwright, 422 F2d 145 (5th Cir. 1970), that Munford’s counsel had a conflict of interest in representing all three defendants. To succeed, Munford must show a conflict harmful to himself. Id. Because a majority of this court find that the Bruton error was harmless, the rationale of Baker v. Wainwright which led to the conclusion that counsel there was ineffective, does not apply here with respect to the joint representation of Munford and either of the other defendants. Therefore, no ineffectiveness of counsel harmful to himself has been shown by Munford, and this enumeration is without merit.

3. The third enumeration need not be considered, having been decided against Munford’s contention on his appeal from his conviction. Brown v. Ricketts, 233 Ga. 809, 811 (213 SE2d 672) (1975).

4. The fourth enumeration, claiming error in a one-on-one showup in which Munford was exhibited to the store operator by the arresting policeman shortly after the robbery, is without merit under Hobbs v. State, 235 Ga. 8 (218 SE2d 769) (1975).

Judgment affirmed.

All the Justices concur, except Undercofler, P. J., Hall and Hill, JJ., who dissent.