Federal Evidence Review

On habeas review of state court convictions, the detective’s trial testimony about the statements of two non-testifying co-actors which implicated the defendant in the shooting and which were used to confront the defendant during his interview violated the Confrontation Clause and constituted plain error, in Ray v. Boatwright, 592 F.3d 793 (7th Cir. Jan. 14, 2010) (No. 08-2825)

Since Crawford v. Washington, 541 U.S. 36 (2004), testimonial statements are inadmissible under the Confrontation Clause unless the declarant testifies subject to cross examination. There are not many cases in which a Confrontation Clause challenge raised for the first time on appeal may result in plain error. The Seventh Circuit recently identified one case which did.

The case was considered on federal habeas review following the defendant’s state court convictions for first-degree reckless homicide, recklessly endangering safety, and possessing a firearm as a felon. During trial, a detective testified about the interview of the defendant. At one point during the interview, the detectives confronted the defendant with the statements of two co-actors implicating the defendant. In a signed statement, the defendant responded to the statements: Defendant “Ray then stated ‘those stupid niggers shouldn’t be talking and they can’t talk for me.’” The defendant was confronted with statements of others that he possessed firearms. Defendant Ray responded, “tell me which gun killed the girl and I’ll tell you everything.” State trial counsel did not object to the detective’s testimony. The individuals who were attributed to have made the statements did not testify in the state trial. For the first time on state appeal, the defendant claimed the Confrontation Clause was violated by the admission of the co-actor’s statements. The state court denied the constitutional challenge after concluding the statements were introduced as non-hearsay “to show Ray’s reaction to his co-actors’ statements placing him at the scene, shooting a gun—a reaction implicating him in the revenge-seeking conspiracy.” Ray, 592 F.3d at _. A petition for review was denied by the state supreme court. State post-conviction review as also denied in state court. The federal district court denied his claims for habeas relief but issued a certificate of appealability on the Confrontation Clause claim.

The Seventh Circuit reversed after concluding the Confrontation Clause was violated by the use of the statements which constituted plain error. The circuit rejected the government’s claim that the statements were used for the non-hearsay purpose to provide context to the defendant’s responses during the interview. As the circuit noted:

“While the method of presentation of the accusations in this case shows lively imagination on the part of the prosecution, it nevertheless runs afoul of the United States Constitution. Here, the evidence presented by the prosecution delivered to the jury statements by named coactors, not available for cross-examination, accusing Ray of the very crimes with which he stood charged. However cleverly presented, the evidence was a clear violation of Ray’s constitutional right of confrontation.”

Ray, 592 F.3d at _. The statements were not used to provide context but were substantive evidence which placed the defendant “at the scene of the shootings, with a weapon in his hand.”

The circuit found two cases advanced by the government as inapplicable:

• In Tennessee v. Street, 471 U.S. 409, 417 (1985), the Supreme Court held the non-hearsay admission of a confession used for rebuttal purposes to prove what happened when the defendant confessed, not what happened at the murder scene, did not violate Confrontation Clause. According to the circuit, Street was “factually distinguishable because there, the co-actors’ confession was introduced in rebuttal to refute the defendant’s claim of coercion, where here, the detective testified to the co-actors’ statements during the State’s case-in-chief” and the trial court in Street gave a non-hearsay limiting instruction. Ray, 592 F.3d at _.


• In Lee v. McCaughtry, 892 F.3d 1318, 1325 (7th Cir. 1990), the Seventh Circuit admitted a tape recording which included the narration by the state’s attorney of the accomplice’s accusation as non-hearsay to place into context the defendant’s changed story after hearing the accusation. Lee was distinguishable since the defendant did not change his version of events after being confronted with the statements of the co-actors, and the trial court in Lee gave a non-hearsay limiting instruction
  

After finding constitutional error, the circuit considered whether the error constituted plain error since the defendant failed to lodge a contemporaneous objection at trial. The circuit had little trouble finding plain error:

“Here, the error in admitting statements by nontestifying co-actors was plain. Ray’s substantial rights were affected because he was not able to cross-examine the only witnesses who directly implicated him to being at the scene of the shooting with a weapon in his hand, and who directly refuted Ray’s claim that he had withdrawn from the conspiracy at issue. We find this confrontation clause violation seriously affected the fairness of the judicial proceedings and reverse the district court’s opinion.”

Ray, 592 F.3d at _.

It is generally accepted that one non-hearsay purpose involving the statements of others with the defendant may be to supply context to the defendant’s responses. See, e.g., United States v. Santiago, 566 F.3d 65, 69 (in crack distribution trial involving entrapment defense, informant recordings with the defendant did not violate the Confrontation Clause, the informant statements were non-hearsay to supply “the context of Santiago’s own recorded statements arranging to ‘cook’ and supply the crack”; the defendant’s statements were non-hearsay admissions against a party opponent under Rule 801(d)(2)(A)). The Street and Lee cases are other examples of non-hearsay statements admitted without violating the Confrontation Clause. The Ray case provides one example on the other side of this non-hearsay line, where the court concluded the statements were admitted for the truth of the matter.