KC Framed 5 | Firefighters Case | Analysis of 8th U.S. Circuit Court of Appeals Opinion

5 Innocent People Were Convicted

Analysis of 8th U.S. Circuit Court of Appeals Opinion

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II. Confrontation Clause Issues.

Prior to trial, the district court denied defendants' motions to sever the joint trial based on their contention that introduction of their numerous out-of-court admissions would violate the Sixth Amendment's Confrontation Clause as construed in Bruton. Instead, the court ordered Darlene Edwards's statement redacted to replace inculpatory references to her codefendants with neutral pronouns such as "we," "they," "someone," and "others."

The court also approved the government's plan to instruct its witnesses not to mention the names of codefendants when testifying to each defendant's out-of-court admissions. During the trial, the court repeatedly instructed the jury to consider each admission only against the declarant. On appeal, defendants argue their Confrontation Clause rights were seriously compromised by the government's reliance on some fifty-nine witnesses who testified to defendants' various out-of-court admissions. No defendant testified at the trial.

The principles that frame this issue were summarized in Richardson v. Marsh, 481 U.S. 200, 206-07 (1987): The right of confrontation includes the right to cross-examine witnesses. Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.

Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness "against" a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of the law that jurors follow their instructions. . . . In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant.

In Bruton, a nontestifying codefendant's confession to a postal inspector specifically named petitioner Bruton. The Court held that a jury instruction to consider the confession only against the codefendant was inadequate to protect Bruton's Confrontation Clause rights. "[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial." 391 U.S. at 135-36. The Court left open the question whether a confession or admission would be admissible against the declarant in a joint trial if it was redacted to eliminate references to codefendants. See 391 U.S. at 133-34 & n.10.

In Richardson, the codefendant's written confession to police was redacted to eliminate all references to respondent Marsh. Observing that the jury is more likely to obey a limiting instruction when the confession is linked to a codefendant only by other trial evidence, the Court held "that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." 481 U.S. at 211.

Richardson did not involve the common situation we face here -- redactions that refer to joint activity with other culprits but eliminate any specific identification of the declarant's codefendants. The Supreme Court recently considered a variation of this problem in Gray v. Maryland, 118 S. Ct. 1151 (1998). The codefendant's written confession to police was redacted by replacing specific references to petitioner Gray with a blank space or the word "deleted" or "deletion." A police officer read the redacted confession and then testified that after receiving it, he was able to arrest Gray. Distinguishing Richardson, a closely divided Court held that this confession falls within the class of statements to which Bruton's protections apply. "The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.

Moreover, the redacted confession with the blank prominent on its face, in Richardson's words, `facially incriminat[es]' the codefendant." 118 S. Ct. at 1157 (emphasis in original). The Court also emphasized the practical aspects of the redaction process:

Additional redaction of a confession that uses a blank space, the word "delete," or a symbol, however, normally is possible. Consider as an example a portion of the confession before us: The witness who read the confession told the jury that the confession (among other things) said,

"Question: Who was in the group that beat Stacy?

"Answer: Me, deleted, deleted, and a few other guys." App. 11.

Why could the witness not, instead, have said:

"Question: Who was in the group that beat Stacey?

"Answer: Me and a few other guys." 118 S. Ct. at 1157.

Defendants argue the government's repeated use of out-of-court admissions that "we" or "they" went to the site to steal, and "we" or "they" set the fire, violated Bruton as construed in Gray.(4) Neither Richardson nor Gray discussed the admissibility of confessions in which codefendants' names are replaced with a pronoun or similarly neutral word, as in this case. This court and other circuit courts have consistently upheld such evidence so long as the redacted confession or admission does not facially incriminate or lead the jury directly to a nontestifying declarant's codefendant. See United States v. Jones, 101 F.3d 1263, 1270 & n.5 (8th Cir. 1996) (use of "we" and "they"); United States v. Williams, 936 F.2d 698, 700-01 (2d Cir. 1991) ("another guy"); United States v. Briscoe, 896 F.2d 1476, 1502 (7th Cir. 1990) ("we"); United States v. Garcia, 836 F.2d 385, 390-91 (8th Cir. 1987) ("someone"). We conclude the district court's decision to admit nontestifying defendant admissions, redacted as to codefendants by the use of pronouns and other neutral words, and accompanied by appropriate limiting instructions, was consistent with this court's decisions in Jones and Garcia and the Supreme Court's recent decision in Gray.

(4) Defendants' contention on appeal is that the district court erred in denying motions for severance, separate trials, and mistrials. These issues are reviewed under an abuse of discretion standard. See United States v. Donohue, 948 F.2d 438, 444 (8th Cir. 1991). However, the Supreme Court in Gray treated the threshold question whether the trial court properly construed Bruton and its progeny in admitting redacted out-of-court declarations as an issue of law, and we do likewise.

Unlike use of the word "deleted," which directs the jury's attention to an obvious redaction, referring to joint activity by use of the pronouns "we" and "they," or by use of indefinite words such as "someone," does not draw attention to the redaction and thus, in most situations, will not be incriminating unless linked to a codefendant by other trial evidence. See Jones, 101 F.3d at 1270. Here, for example, the evidence included references to a large cast of characters from the Marlborough neighborhood who were connected in various ways to the defendants. Some of the admissions inculpated nondefendants, thereby weakening any inference that words such as "they" and "someone" referred to the declarant's codefendants.(5) With improper inferences thus weakened, it was appropriate to rely upon the normal rule that juries are presumed to obey instructions to disregard the evidence as to codefendants. In addition, this is

(5) This is illustrated by the key admissions in the videotaped statement of Darlene Edwards, the only transcribed statement to authorities introduced at trial and therefore potentially the most incriminating of the many out-of-court declarations:

Frank and I had come home. . . . Someone come up and said they'd run out of gas. Wanted to know, could I take them down to get some gas, right? . . . .Okay, and I took them down to Quik Trip. . . . The Quik Trip at 85th and 71 Highway. Yeah, they went around. They got some gas. They got in the car. They said the car was up the road. I said, what are you doing up there? They said, well, we're just doing 4-wheeling up in the hills, right? So, we get up there. Like, we're going to go over here and over there, and I said, what are you doing? Well, we're going to steal something. We're going, we're gonna take care of something. I said, well, look, I'm not staying here and playing if you are playing with gasoline. I'm not getting my funky ass blown up . . . .and I left them there, period! And then after I had gotten home and gotten in bed. . . . is probably what must have woke Frank up, you know, when I'd gotten undressed and got back in bed.

As in Jones, the use of "they" and "someone" did not violate Bruton because "the manner of presenting the confession and the context [did] not lead the jury directly to the [co]defendant[s]." 101 F.3d at 1271 n.5.

not a situation, like the Court faced in Gray, in which additional redaction is normally possible. When an admission refers to joint activity, it is often impossible to eliminate all references to the existence of other people without distorting the declarant's statement. This was recognized in Gray, where the additional redaction favored -- "Me and a few other guys" -- has precisely the same effect as the redactions used in this case. Because joint trials "play a vital role in the criminal justice system," it is important to adopt workable redaction standards. Richardson, 481 U.S. at 209.

Having concluded that the district court's approach to the overall joint trial and redaction issues was not infected with legal error, we must consider whether the court in implementing that approach abused its discretion in a way that requires a new joint trial or separate trials. First, defendants argue that the government's opening statement and closing argument require a new trial because the prosecutor undid the effect of the limiting instructions by urging the jury to use each defendant's admissions in evaluating codefendants' cases. See Richardson, 481 U.S. at 211; compare Jones, 101 F.3d at 1270 n.4, with United States v. Bennett, 848 F.2d 1134, 1142 (11th Cir. 1988). We disagree. The prosecutor's opening accurately emphasized that each defendant had made out-of-court admissions -- "Each of these defendants told multiple persons on multiple occasions that they did it." In closing, the prosecutor summarized the testimony in the same manner it was presented to the jury -- using neutral pronouns. There was no argument that any out-of-court admission facially incriminated a codefendant, and no argument that was inconsistent with the court's cautionary instructions to consider admissions only against the declarant.

Second, invoking the rule of completeness, defendants argue the district court erred in prohibiting cross-examination to establish that an out-of-court admission was exculpatory as to one or more codefendants. For example, one witness testified Richard Brown said "him and a group of people was there at the explosion."

The phrase "group of people" was a redaction to avoid incriminating Bryan Sheppard and Skip Sheppard. The court ruled that counsel for Frank Sheppard could not ask the witness if Brown had mentioned him. This ruling was correct for two reasons. First, the rule of completeness protects only the nontestifying declarant. The rule is violated "only when the [out-of-court] statement in its edited form, while protecting the sixth amendment rights of the co-defendant, effectively distorts the meaning of the statement or excludes information substantially exculpatory of the nontestifying defendant." United States v. Smith, 794 F.2d 1333, 1335 (8th Cir.) (emphasis added), cert. denied, 479 U.S. 938 (1986). Second, the rule of completeness does not help Frank Sheppard here because the only reference to him (by omission) was exculpatory, and exculpatory out-of-court declarations are not admissible hearsay, even if they include a statement against the declarant's penal interest. See Williamson v. United States, 512 U.S. 594 (1994); United States v. Ramsey, 999 F.2d 348, 351 (8th Cir. 1993).(6)

There are also practical reasons why codefendants should not be able to invoke the rule of completeness to introduce otherwise inadmissible exculpatory hearsay. Enforcing the rule rigorously often runs the risk of violating an inculpated codefendant's Confrontation Clause rights by leading the jury straight to the conclusion that a redaction referred to him. See United States v. Long, 900 F.2d 1270, 1280 (8th Cir. 1990). Thus, the district court in this multi-defendant trial was appropriately cautious in permitting cross-exam seeking to differentiate among the declarant's codefendants. Defendants were allowed to elicit that nondefendants were named in an admission to support the defense theory that others were responsible for the fire, and to clarify the number of people referred to by a plural pronoun, to negate any inference

(6) Darlene Edwards, who as declarant may invoke the rule of completeness, argues the district court violated the rule by excluding a prior statement she gave police in which she denied any involvement in or knowledge of the arson. We disagree. The rule of completeness is limited to writings and only encompasses additional portions of the same statement. Moreover, the rule does not empower a court "to admit unrelated hearsay in the interest of fairness and completeness when that hearsay does not come within a defined hearsay exception." United States v. Woolbright, 831 F.2d 1390, 1395 (8th Cir. 1987).

it might refer to all defendants. Some defendants received the benefit of directly exculpatory statements, such as Darlene Edwards's statement that she left Frank Sheppard at home asleep when she took others to get gasoline, and they were permitted to argue the significance of omissions in the out-of-court declarations. We conclude the district court did not abuse its discretion in the balance it struck between the nontestifying declarants' right to completeness and the nonconfessing defendants' Confrontation Clause rights.

Defendants next argue the district court erred in denying their motions for mistrial on the few occasions when lay witnesses forgot their Bruton instructions and blurted out a codefendant's name instead of replacing it with a neutral pronoun.(7) The government concedes these were mistakes. The district court immediately instructed the jury to disregard the blurted testimony, and it twice ordered the testimony stricken from the record. We have reviewed these instances, individually and cumulatively, and conclude the district court did not abuse its discretion in denying a mistrial.

Finally, it is well-settled that Bruton errors are subject to harmless error analysis. See United States v. Miller, 995 F.2d 865, 867 (8th Cir. 1993); Long, 900 F.2d at 1280; Garcia, 836 F.2d at 391. Darlene Edwards, Richard Brown, and Bryan Sheppard were virtually unaffected by Bruton issues.

(7) One witness testified that Darlene Edwards said "at one time Frank had made plans" to steal from the construction site, and that Edwards "would tell us about the gas, how she went to get the gas and different things that she did with the other defendants." Another witness testified when asked why he had not reported certain admissions to the police, "it was after me and Richard [Brown] had had a conversation. I didn't believe him. I didn't believe him for one second but he told me at one point that Bryan Sheppard was in on it." Another witness testified that Skip Sheppard said "he and a brother were" at the construction site on the night of the explosion. Another said that when she asked Frank Sheppard why he had not called the police, he said, "I can't turn in my family, my friends." (Emphasis added.)

named Edwards or Brown, and only references to "my family, my friends" and "other defendants" touched on them at all. No defendant objected to the "my family, my friends" mistake, and the district court struck the reference to "other defendants" and reminded the jury to only consider the evidence against the confessing defendant. The one blurted reference to Bryan Sheppard only said he was "in on it," a relatively innocuous error in light of his numerous admissions of involvement. None of these defendants was affected by the district court's limitations on cross-exam, whereas the evidence against these defendants was overwhelming. We conclude any Bruton error was clearly harmless to these three defendants.

First of all, the Court is wrong in its analysis: the repetitious use of "we" and "they", where the defense cannot bring out exactly who "we" and "they" is, casts a pall of guilt over the defendants on trial. You had witnesses who testified that they were told not to name any names – other than the declarant of the statement. That is directly on point with Grey, where it was held that blank spaces drew attention directly to the defendant.

The jury gets the point – because of the "rules" the witness cannot name other names (why? Because, obviously, it would harm the other people on trial).

In ruling that Darlene was not affected by the court’s limitations on cross, the court misses the underlying point of the Bruton impact in this case: Had the defendants been allowed to bring out exactly what the witness had said in their statements, the jury would have realized that no two witnesses were testifying to the same set of facts.

At no time did any two of these many witnesses name the same set of defendants doing the same thing. Where the 8th Circuit rules the statements were "consistent", that is absolutely untrue. If you read the actual statements of the witnesses, you realize that they have a large number of non-defendants involved in the crime, and that the stories of what happened, and who did what, wildly conflicting. Because of the limitations on cross, the appellate record does not reflect what these witnesses said in their statements.

Although Frank and Skip Sheppard were more directly affected by the Bruton issues, we conclude any error was harmless to them as well. Two redaction failures arguably affected Frank, but the district court's prompt curative actions reduced any prejudicial impact. Frank and Skip were most affected by the district court's limits on cross-exam, but any prejudice from the restrictions was minor in contrast to the properly admitted evidence. Twelve witnesses testified to admissions by Frank Sheppard, and seven witnesses testified to admissions by Skip. As to each, the admissions were specific, detailed, and consistent.

This is remarkable, since no two witnesses testified to the same set of facts, and no witness testified to a statement that included all five of the defendants.

For all the foregoing reasons, we conclude the district court did not abuse its discretion in denying defendants' various motions for mistrial, new trial, and severance.

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