Henry Brown v. Richard L. Dugger, as Secretary, Department of Corrections, State of Florida

831 F.2d 1547, 1987 U.S. App. LEXIS 15139

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 13, 1987
• Docket: 85-6082
• Status: Published

Opinions

KEITH, Circuit Judge:

Richard L. Dugger, Secretary of the Florida Department of Corrections (hereinafter referred to as “the state”), appeals the district court’s grant of habeas corpus relief to petitioner Henry Brown (“petitioner”). We affirm.

I.

PROCEDURAL HISTORY

On October 10, 1973, petitioner was charged with first degree murder. The first trial ended in mistrial after the jury was unable to reach a verdict. At the end of the second trial, the jury found petitioner guilty of first degree murder and recommended a life sentence. The trial court imposed the death sentence. The Florida Supreme Court affirmed petitioner’s conviction, but ordered the sentence reduced to life imprisonment with a minimum mandatory term of 25 years.

Pursuant to 28 U.S.C. § 2254, petitioner petitioned for a writ of habeas corpus in the United States District Court for the Southern Division of Florida. The magistrate recommended denial of the petition noting that the trial court only committed harmless error. Although the district court initially denied petitioner’s habeas petition, it later granted the writ in response to a motion for reconsideration finding that the petitioner’s claims were of constitutional magnitude. After the state appealed the grant of the writ, an initial panel of this circuit vacated the district court's order and remanded. The Honorable Walter E. Hoffman, writing for the court, stated “that a federal court, in granting a writ of habeas corpus, must explain why the statutory presumption of correctness of State Supreme Court findings does not apply in the light of the factors listed in 28 U.S.C.' § 2254(d).”¹ Brown v. Wainwright, 772 F.2d 780, 781 (11th Cir.1985). On remand, the district. court again granted the writ: this time, however, the court fully explained its holding and reasoning.

II.

FACTS

The Supreme Court of Florida fully sets forth the facts:

On August 3, 1973 Abraham Goldstone drove to a shopping mall to cash a social security check. When he failed to return, his wife reported him missing. That evening a police officer saw five young men pushing a car later identified as belonging to Goldstone. All fled when the officer approached, but he caught up with two and they in some manner implicated Brown [petitioner]. The car was impounded, and an examination disclosed Goldstone’s bankbook in the trunk, scuff marks on the interior of the trunk, bloodstains and bloodstained towels in the car, and at least one fingerprint later idéntified as Brown’s. In the early morning hours of August 4, officers went to Brown’s home, informed his father of their purpose, told Brown his rights, and questioned him. He admitted possession of the car and said he got it from Steve Benyard. Brown was then arrested for possession of a stolen car. After Brown was released, officers developed additional data linking Brown to Goldstone’s disappearance and, after again informing Brown of his rights, they questioned him further. He amplified his earlier statement by revealing that he had come across Benyard and Mack Simmons with the car in a school parking lot and that Benyard had said he obtained it at the Sky Lake shopping mall in North Miami Beach.

In the due course of investigation officers discovered Goldstone’s body at a small lake near the shopping mall. Gold-stone had died from drowning, but his body showed that he also had been shot in the shoulder and hit about the head.

The state’s chief witness was homicide detective Dallas. He testified at trial that he had arranged for a confrontation between Mack Simmons and petitioner. Dallas stated that he told both youths about their Miranda rights and that they indicated that they understood those rights. Dallas further stated that when Simmons was asked whether petitioner was involved in Goldstone’s murder, he answered “Yes.”² Dallas also testified that immediately following the accusation, he had had Simmons removed from the room approximately two minutes after Simmons made the accusation; and that during this time petitioner remained silent.

Dallas further testified about an oral inculpatory statement which petitioner made after the confrontation with Simmons. Specifically, Dallas stated that after a further period of silence, Simmons was taken from the interrogation room and petitioner was again informed of his right to remain silent. Petitioner then confessed to his role in the murder. Petitioner’s admission was received into evidence over the objection of defense counsel who questioned the voluntariness of the statement.

During the closing, argument, the prosecution summarized the confrontation for the jury.³ Although defense counsel objected and moved for a mistrial, noting Simmons’ absence at trial, the trial court responded that either side could have subpoenaed any witnesses. The defense objection to this comment was overruled, as was the repeated request for a mistrial.

As a basis for his federal habeas petition, petitioner argued that the introduction of inculpatory hearsay testimony at his state trial, as well as comments made by the prosecutor and the trial court regarding the testimony, violated the confrontation clause of the Sixth Amendment, the self-incrimination clause of the Fifth Amendment and the due process clause of the Fourteenth Amendment.

III.

DISCUSSION

At the outset, we note that this is the second time that a panel of this circuit has analyzed the issues in this case. The initial panel found that the district court did not supply adequate reasoning for its decision. Brown v. Wainwright, 772 F.2d 780, 782 (11th Cir.1985) (citing Sumner v. Mata, 449 U.S. 539, 551-52, 101 S.Ct. 764, 771, 66 L.Ed.2d 722 (1981) (holding that a habeas court should include in its opinion granting the writ the reasoning which led it to conclude that any of the first seven factors were present)). Consequently, Judge Hoffman, writing for this court stated:

Brown assigned five specific errors in objecting to the magistrate’s recommendation, but the court does not address these objections. We cannot determine how the district court arrived at its conelusion. Two especially critical omissions require attention. First, the district court should supply reasons supporting a determination of whether the prosecution’s remarks in closing argument were invited by defense counsel’s remarks. Second, the court should provide a rationale supporting its finding of no harmless error by the trial court. Finally, the court may wish to examine recent Supreme Court decisions for their potential applicability to the issues presented in this case.

Brown, 772 F.2d at 783. Although the initial panel held that the district court did not follow the clear mandate in Summer, we believe the district court on remand correctly analyzed the issues in this case.

A. Petitioner’s Assignment of Error

The initial panel in this case noted that it could not determine how the district court arrived at its conclusion to grant the writ because Judge Hastings did not, in his first opinion, address petitioner’s objections.⁴ The district court on remand once again granted the writ. The district court found that Detective Dallas’ testimony concerning the Simmons accusation was hearsay and violative of the confrontation clause. The district court also held that all other claims must be viewed in light of the initial hearsay error. Upon independent review of the record, the district court found that the trial court errors were of constitutional magnitude.

The constitutional claims argued by petitioner were predicated upon five interrelated, but distinct parts.⁵ We believe the district court correctly analyzed petitioner’s constitutional claims.

The district court first held that the admission of hearsay testimony regarding the accusation of petitioner by the alleged accomplice, Mack Simmons, violated petitioner’s right of confrontation.⁶ The court ruled that the trial court’s admission of the hearsay testimony of Detective Dallas, on the ground of petitioner’s presence at the accusation, was untenable, for “the concept of silent adoptive admissions is contradictory to the right to remain silent guaranteed by Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966).” The court noted that the state supreme court had also found “that the trial court had erroneously admitted the Simmons accusation in contravention of Miranda, Brown v. State, 367 So.2d 616, 624 (Fla. 1979).” However, the state supreme court held that the accusation testimony was admissible under the theory of “relevant operative fact.” The district court explained:

The state court’s admissibility finding is a determination of law and fact as to which no statutory presumption of correctness attaches. See, Cuyler [v. Sullivan, 446 U.S. 335, 341-42, 100 S.Ct. 1708, 1714, 64 L.Ed.2d 333 (1980) ]. This Court found that retroactive admissibility of the evidence of a non-hearsay purpose, when the trial judge admitted the testimony for its truth was effectively unfair. United States v. Kaplan, 510 F.2d 606, 612 (2d Cir.1974).

The jury was permitted to consider the Simmons accusation for its truth, the prosecutor was permitted to argue its truth, and no limiting instruction regarding the purpose of the accusation was ever given. None of these prejudicial occurrences would have been allowed had the testimony been admitted only for the non-hearsay purpose upon which the state supreme court retroactively found it admissible. Cf. Tennessee v. Street, [471 U.S. 409, 413-14, 105 S.Ct. 2078, 2081, 85 L.Ed.2d 425] (1985)....

In Tennessee v. Street, the Supreme Court held that the nonhearsay aspect of the accomplice’s confession raised no Confrontation Clause concerns. The Court indicated that no confrontation violation was posed where a co-defendant’s statement was allowed into evidence for a non-hearsay purpose and the jury was amply instructed about the limited purpose of the statement and the prosecutor never asserted its truth. Id. However, in the present case the state injected the error into the trial proceedings, and the accusation was admitted and argued for its truth.

Generally, in order to avoid a confrontation problem by the introduction of hearsay testimony, the prosecutor must either produce or demonstrate the unavailability of the declarant whose statement he wishes to use against the defendant. Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 2538-39, 65 L.Ed.2d 597 (1980). In the instant case, the district court aptly found a violation of the confrontation clause because: (1) the record failed to demonstrate that the prosecution made the required good faith effort to secure the presence of Simmons at trial. Id. at 74, 100 S.Ct. at 2543, (2) even if the declarant was unavailable, the state never demonstrated the declarant’s reliability as required by Ohio v. Roberts; or “the custodial interrogation and inculpation of a co-defendant was one where reliability should be questioned. See United States v. Sarmineto-Perez, 633 F.2d 1092, 1102 (5th Cir. 1980).”⁷ Thus, we agree that the introduction of the hearsay testimony constituted a constitutional violation of petitioner’s right to confrontation.⁸

The district court next addressed the limitation of the defense’s cross-examination regarding Simmons’ motive for implicating petitioner and the exacerbating remarks of the trial judge before the jury. Since the state supreme court, due to its failure to find a confrontation violation, had failed to consider the merits of petitioner’s claim, the district court found no statutory presumption of correctness applicable:

Where, as in this case, “the decision of the state trier of fact may rest upon an error of law rather than an adverse determination of the facts,” it cannot be presumed that the merits of the dispute were resolved in the state court proceedings. Townsend v. Sain, 372 U.S. 293, 314 [83 S.Ct. 745, 757, 9 L.Ed.2d 770] (1963). Where the state court did not apply the proper standard, the statutory presumption of correctness does not attach. See Harris v. Oliver, 645 F.2d 327, 330-31 (5th Cir.1981), cert. denied, 454 U.S. 1109 [102 S.Ct. 687, 70 L.Ed.2d 650] (1981).

The district court held that the limitation of defense counsel’s cross-examination was a violation of the rule of Davis v. Alaska, 415 U.S. 308, 317-18, 94 S.Ct. 1105, 1110-11, 39 L.Ed.2d 347 (1974) (holding when cross-examination is unduly restricted, a constitutional error results). Specifically, the district court found that the cross-examination of Simmons was especially important because Simmons’ testimony may have been biased by his efforts to obtain favorable treatment by the authorities. United States v. Crumley, 565 F.2d 945, 949 (5th Cir.1978). Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Bruton v. United States, 391 U.S. 123, 126-27, 88 S.Ct. 1620, 1622-23, 20 L.Ed.2d 476 (1968). The district court thus correctly concluded:

By limiting defense counsel’s cross-examination into any motive Simmons may have had to implicate Petitioner, the trial judge denied Petitioner the only means of challenging the reliability of the accusation.

The district court then found that the above errors were compounded by statements by the trial judge. First, the trial judge exacerbated the prejudice from the erroneous introduction of the hearsay accusation by stating in the presence of the jury that the accusation was admissible because petitioner was present when it was made. The district court correctly held that “[t]his comment could have suggested to the jury that some special probative significance could or should be inferred from petitioner’s presence at the out-of-court confrontation.” Second, the district court held that the trial judge’s instruction, that the jury should disregard the defense closing argument in which counsel had pointed out that Simmons was not called as a witness, intimated that the defense could have called Simmons to refute the accusation, and provided the state with “the benefit of Simmons’ testimony while insulating him from cross-examination.” We believe, as the district court held, that the prejudicial defect in disallowing the defense closing argument is not satisfactorily remedied by asserting that petitioner could have called Simmons as his own witness. See United States v. Check, 582 F.2d 668, 683 (2nd Cir.1978). Consequently, we agree with the district court that the trial judge’s instruction was premised on an erroneous standard of law and is not entitled to any presumption of correctness.

B. Prosecutor’s Closing Argument

On remand, the district court was specifically required to “supply reasons supporting a determination of whether the prosecutor’s remarks in closing argument were invited error by defense counsel’s remarks.” The district court found that the invited error doctrine was not available to the state. It, therefore, concluded that petitioner’s fifth amendment rights were violated when the prosecutor’s closing argument included comments on petitioner’s silence after Simmons’ accusation.⁹ The court then analyzed the finding of the state supreme court that the fifth amendment violation had been invited: The district court explained that the state court finding that petitioner’s counsel had first elicited testimony regarding silence was not fairly supported by the record. According to the district court’s own reading of the record, it had been the prosecutor who elicited testimony about petitioner’s silence, eliciting from Detective Dallas the response that he did not recall whether petitioner had said anything after the accusation. The district court thus found that once the initial evidence was improperly admitted, petitioner was entitled to offset the prejudicial effect. See United States v. Puco, 453 F.2d 539, 541 n. 4 (2nd Cir.1971), cert. denied, 414 U.S. 844, 94 S.Ct. 106, 38 L.Ed.2d 82 (1973).

The initial error in petitioner’s trial occurred when the prosecutor elicited the hearsay accusation. Any subsequent cross-examination and argument by defense counsel must be seen as an attempt to ameliorate the prejudice stemming from the constitutional violation. The state court’s finding of invited error was tainted by the erroneous standard used in determining who first committed constitutional error at trial and therefore the presumption of correctness is not operative. See Rogers v. Richmond, 365 U.S. 534, 545-47 [81 S.Ct. 735, 741-43, 5 L.Ed.2d 760] (1961); Harris v. Oliver, 645 F.2d 327, 330-31 (5th Cir.), cert. denied, 454 U.S. 1109 [102 S.Ct. 687, 70 L.Ed.2d 650] (1981).

We believe the record and case law support the district court’s rationale that the prosecutor’s remarks in closing argument were not invited by the defense counsel. Defense counsel’s immediate objection to the closing argument was overruled, and the prosecutor was permitted to culminate his closing argument with the depiction of the confrontation scene, and to buttress the admissible evidence of guilt with the constitutionally inadmissible evidence of both the Simmons accusation and the assertion of petitioner’s silence in the face of that accusation as the equivalent of an additional confession. Thus, the district court adequately supplied reasons for its determination that the prosecutor’s argument that petitioner, by remaining silent, had not acted as an innocent person “is violative of petitioner’s Fifth Amendment right against self-incrimination.”

C. Harmless Error

The district court was also specifically required to provide a rationale supporting its finding of no harmless error by the trial court. On remand the district court noted that the pertinent state court finding was tainted by virtue of that court’s operative-fact and invited error analysis,¹⁰ and that the determination whether the constitutional violations were harmless raised a mixed question of law and fact. The court then found that state had failed to demonstrate beyond a reasonable doubt that the errors had not contributed to the jury’s verdict by influencing it to accredit petitioner’s inculpatory statements. The court, therefore, concluded that the constitutional violations were not harmless errors.

The “harmless beyond a reasonable doubt” standard, elucidated in Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967), presumes prejudice and places the burden, as did the district court, on the beneficiary of the errors to prove beyond a reasonable doubt that the errors did not contribute to the verdict. Id. at 24, 87 S.Ct. at 828; Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171 (1963); Hutchins v. Wainwright, 715 F.2d 512, 517 (11th Cir.1983), cert. denied, 465 U.S. 1071, 104 S.Ct. 1427, 79 L.Ed.2d 751 (1984); Grizzell v. Wainwright, 692 F.2d 722 at 726. If there remains a possibility that the constitutionally-proscribed evidence impacted on the ultímate decisional process of the jury, if the beneficiary of the error cannot refute that possibility beyond all reasonable doubt, constitutional errors can never be deemed harmless. Hutchins v. Wainwright, 715 F.2d at 517.

As the district court correctly stated, the relevant inquiry for testing harmless error is set forth in Grizzell v. Wainwright:

[I]f upon reading of the trial record, the court is firmly convinced the evidence of guilty was overwhelming and the jury would have reached the same verdict without the tainted evidence and there is no reasonable possibility the constitutionally infirm evidence might have contributed to the conviction, then the error is deemed harmless, (citation omitted), (emphasis added).

Id. at 726. The district court, in applying the Grizzell standard found:

[TJhat it was entirely possible that the hearsay accusation of Simmons, compounded by the curtailment of defense counsel’s cross-examination regarding the declarant’s motive, and further exacerbated by the prosecutor’s assault on petitioner’s right to remain silent during closing argument and the trial judge’s comments and instructions regarding the accusation, could have influenced the jury to give credence to petitioner’s two oral statements, which petitioner contended were not voluntarily given.¹¹

After reading the record we are not persuaded that evidence of guilt was overwhelming or that the jury would have reached the same verdict without the above “tainted” evidence. Furthermore, since there is a reasonable possibility that the impermissible evidence contributed to the conviction, we do not believe the errors were harmless. Thus, we hold that the district court correctly applied the Grizzell test in finding no harmless error.

Accordingly, we affirm the order of Honorable Alcee L. Hastings granting petitioner’s habeas relief.

1 . 28 U.S.C. § 2254(d) outlines eight factors which give federal courts guidance as to criteria which should be examined when habeas relief is granted. § 2254(d) provides:

(d) In any proceeding instituted in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of the State court, a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction in a proceeding to which the applicant for the writ and the State or an officer or agent thereof were parties, evidenced by a written finding, written opinion, or other reliable and adequate written indicia, shall be presumed to be correct, unless the applicant shall establish or it shall otherwise appear, or the respondent shall admit—

(1) that the merits of the factual dispute were not resolved in the State court hearing;

(2) that the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing;

(3) that the material facts were not adequately developed at the State court hearing;

(4) that the State court lacked jurisdiction of the subject matter or over the person of the applicant in the State court proceeding;

(5) that the applicant was an indigent and the State court, in deprivation of his constitutional right, failed to appoint counsel to represent him in the State court proceeding;

(6) that the applicant did not receive a full, fair, and adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due process of law in the State court proceeding;

(8) or unless that part of the record of the State court proceeding in which the determination of such factual issue was made, pertinent to a determination, is produced as provided for hereinafter, and the Federal court on a consideration of such part of the record as a whole concludes tht such factual determination is not fairly supported by the record; And in an evidentiary hearing in the proceeding in the Federal court, when due proof of such factual determination has been made, unless the existence of one or more of the circumstances respectively set forth in paragraphs (1) to (7), inclusive, is shown by the applicant, otherwise appears, or is admitted by the respondent, or unless the court concludes pursuant to the provisions of paragraph numbered (8) that the record in the State court proceeding, considered as a whole, does not fairly support such factual determination, the burden shall rest upon the applicant to establish by convincing evidence that the factual determination by the State court was erroneous.

(Emphasis added.)

2 . At trial, this statement was introduced by interrogating Officer Dallas, over objection by the defense on the ground that the statement was inadmissible hearsay. The trial court admitted Simmon’s statement as an exception to the hearsay rule, because petitioner was present when Simmons spoke. Although the Florida Supreme Court found that the testimony was not hearsay, the court affirmed the conviction because it held that the accusation testimony was admissible as an operational fact.

3 . The prosecution stated that petitioner’s silence, after Simmons implicated him, was just as much an admission of guilt as everything else he said.

4 . Petitioner assigned five specific errors in objecting to the magistrate's recommendation, but the district court in its first opinion did not address these objections. Petitioner’s claims were:

First, the state elicited hearsay testimony regarding a police-staged confrontation between petitioner and an alleged accomplice, Mack Simmons, during which Simmons implicated petitioner in the homicide. Second, the trial court thereafter stated, in the presence of the jury, that the hearsay accusation was admissible, over defense counsel’s confrontation objection, since petitioner had been present at the time it was made. Third, defense counsel’s cross-examination of Detective Dallas regarding the motive for the Simmons accusation, and most specifically, the fact that petitioner had been inculpated in an attempt by Simmons to negotiate a plea bargain was subsequently limited by the trial court. Fourth, the prosecutor, in closing argument, utilized the Simmons confrontation and accusation of petitioner as substantive evidence of petitioner's guilt and further asserted that petitioner’s silence in response to that accusation was the equivalent of an additional confession by petitioner. And finally, the trial court delivered a "curative" instruction, when defense counsel in closing argument asserted the significance of Simmons’ absence at trial, that such argument should be disregarded since the defense as well as the state could have subpoenaed any desired witness.

Although the district court did not analyze the above claims in the same order, the court did address each of petitioner's issues.

5 . Petitioner alleged that he was denied the right of confrontation, the right to be free from self-incrimination and the right to due process of law. The focal point of the constitutional errors was the initial confrontation violation by the prosecutor during the direct examination of state witness Detective Wesley Dallas.

6 . This testimony was ruled admissible by the trial court, over hearsay and confrontation objections, as an exception to the hearsay rule since petitioner had been present when the accusation was made. The Florida Supreme Court recognized the error of this ruling, but also missed the confrontation question by holding that the testimony was not admitted for truth, but to prove the operative fact of why petitioner thereafter confessed.

7 . In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this Court adopted as precedent all decisions of the former Fifth Circuit Court of Appeals decided prior to October 1, 1981.

8 . We note that the state concedes for the first time on appeal the confrontation violation — that the admission of Simmons accusation for its truth through the testimony of Detective Dallas violated the hearsay rule and petitioner’s right of confrontation. The state now argues that the violation was not preserved by timely objection and is therefore waived. We disagree. First, there is authority in this circuit that it is the state’s claim of waiver which has not been preserved by timely assertion, since it was never presented to the district court. See Boykins v. Wainwright, 737 F.2d 1539, 1545 (11th Cir. 1984), cert. denied, 470 U.S. 1059, 105 S.Ct. 1775, 84 L.Ed.2d 834 (1985) (holding state’s failure to raise in district court arguments that petitioner had both failed to exhaust State remedies with regard to constitutional claim and waived that claim through procedural default barred state from prevailing on that claim in the Court of Appeals). Second, the trial transcript reflects that defense counsel injected a specific objection predicated upon hearsay and confrontation grounds prior to the introduction of the Simmons accusation, and that the trial judge ruled on the merits of the objection. Thus, it was proper for the district court to consider the substance of petitioner’s federal claim.

9 . The prosecutor had argued in closing argument that petitioner’s silence in the face of the accusation was inconsistent with innocence. Based on the prosecutor’s argument, the district court concluded that the prosecutor’s assignment violated petitioner’s fifth amendment right against self-incrimination. We believe the district court was correct in holding that "the state court's finding that petitioner's counsel first elicited testimony regarding petitioner’s silence is not fairly supported by the record and thus outside the statutory presumption of correctness, pursuant to 28 U.S.C. § 2254(d)(8).”

10 . Because the state court found no constitutional violations by virtue of its operative-fact admissibility and invited error analyses, the state court never addressed the issue of harmlessness. Thus, the district court held that no state presumption of correctness is relevant here since the state court never fully addressed the harmless error issue.

11 . The state’s case was comprised mainly of petitioner’s statements to the police, the voluntariness of which was a pivotal issue at trial. The evidence presented established that the statements were elicited on the sixth interrogation of the 16 year old petitioner, after he had been removed from school by a detective and questioned without the presence of his attorney. Cross-examination of Dallas revealed that the initial oral statement to which Dallas testified was taken during a 30 tó 45 minute interrogation session following the confrontation. During closing argument, defense counsel emphasized the repeated coercive interrogation sessions, petitioner’s consistent cooperation, the opportunities petitioner had to learn the facts from Benyard and Detective Dallas, and the pressures exerted by Dallas upon the petitioner during the repeated questioning sessions without counsel. Counsel further argued the inconsistencies between the first oral statement to which Dallas testified and the transcribed statement, and between the statements and the physical evidence.

The crux of petitioner’s defense was that the statements obtained were involuntary and unworthy of belief. Consistent with this theme, the jury was instructed that the statements should be received with “great caution,” the jury could "believe any part of such a statement which you find to be true and reject those parts which you find to be untrue,” that a “statement voluntarily made should be given fair and unprejudiced consideration with due regard to the time and circumstances under which it was made," and that a statement should not be considered "unless it was freely and voluntarily made." Consequently, we believe the likelihood that the jury would follow these instructions and consider the petitioner’s defense at trial was undermined by the constitutional errors committed by the prosecutor and the trial court.