In defendant’s trial for carjacking and conspiracy to carjack with two co-defendants, admission of recording of co-defendant’s phone call with his mother indicating that the defendant was part of the charged conspiracy did not violate the Confrontation Clause because the statements were non-testimonial, in United States v. Figueroa-Cartagena, _ F.3d _ (1st Cir. July 16, 2010) (No. 08-2110)
The 2004 case of Crawford v. Washington, 541 U.S. 36 (2004) is well-recognized as a landmark Confrontation Clause case, in which the Supreme Court left unresolved a number of issues. One critical issue concerns the application of Crawford’s conclusion that “testimonial” statements of an unavailable witness violated the Confrontation Clause rights of a criminal defendant unless the defendant had a prior opportunity for cross-examination or confrontation. In a recent case, the First Circuit examined the interplay of the principles of Crawford with those articulated by the Court in Bruton v. United States, 391 U.S. 123 (1968) (a defendant’s rights under the Confrontation Clause were violated when a non-testifying co-defendant’s confession incriminating a defendant was introduced at their joint trial, despite the judge’s jury instruction that the confession was only to be considered against the co-defendant). One issue the circuit examined was how a trial court may work with the Bruton rule in a post-??Crawford?? world.
In the case, defendant Neliza Figueroa-Cartagena (“Neliza”) was charged with aiding and abetting a carjacking that resulted in death, as well as with conspiring to commit that carjacking. The carjacking and the killing were committed by two co-defendants, Gabriel Castro-Davis (“Gabriel”) and Alberto Castro-Davis (“Alberto”). The two co-defendants carjacked victim Héctor Pérez-Torres in Caguas, Puerto Rico and took him handcuffed to the house of defendant Neliza’s parents, where Gabriel had been living with Neliza. The defendant made arrangements for the two co-defendants to hold the victim as they tried to withdraw money using the victim’s ATM card. During the night of the carjacking, the two co-defendants killed the victim. The defendant and the co-defendants were arrested and tried for the crimes and were convicted. The defendant appealed contending that several evidentiary errors entitled her to a new trial.
One error that the defendant claimed in her appeal concerned the government’s admission of a recorded phone conversation between co-defendant Alberto and his mother. The defendant contended that this evidence violated her Sixth Amendment Right to Confrontation, as neither Alberto nor his mother testified at trial. The conversation to which the defendant objected included the following exchange between conspirator Alberto and his mother regarding the defendant:
Alberto: Neliza is the one who’s talking.
Mother: Really?
Alberto: I saw the sworn statement.
Mother: Yes, the police told me.
Alberto: Yeah? That bitch is going to fuck us over. We can’t talk too much through here, either.
Mother: They told me that she talked really bad-that she was talking about …
Alberto: I saw the sworn statement, that’s all I have to say. I went to court yesterday.
Figueroa-Cartagena, _ F.3d at _.
While the statements were out-of-court statements and were offered as proof of the matter asserted, the circuit concluded there was no error in admitting the conversation. The circuit explained that it was clear that the statements were not testimonial, so the Sixth Amendment Right to Confrontation was not implicated. In reaching this conclusion, the circuit explored an approach to assessing Confrontation Clause issues that might be necessary in multi-defendant trials. According to the circuit, this replaced a two-tier inquiry with a three-tiered one:
“The Supreme Court’s decisions in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), define the basic contours of the Confrontation Clause as it applies to out-of-court statements. Under those cases, ‘testimonial’ statements may not be admitted as evidence of a defendant’s guilt unless the declarant can be cross-examined on the witness stand at trial or, if the declarant is unavailable, the defendant had a prior opportunity for cross-examination. See Melendez-Diaz v. Massachusetts, —-U.S. ——, ——, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009); Whorton v. Bockting, 549 U.S. 406, 413, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). Non-testimonial statements, by contrast, do not “cause the declarant to be a ‘witness’ “ within the meaning of the Sixth Amendment and thus are “not subject to the Confrontation Clause.’ Davis, 547 U.S. at 821, 126 S.Ct. 2266.”
Figueroa-Cartagena, _ F.3d at _.
What this meant in terms of how to analyze the new post-
“Before Crawford and Davis were decided, the Supreme Court developed a two-tiered framework for determining admissibility when a non-testifying defendant’s statement is proffered at trial. Statements that facially incriminate a co-defendant are per se inadmissible under the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See also ??Gray v. Maryland, ??523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). By contrast, statements that incriminate a co-defendant “only when linked with evidence introduced later at trial” can be admitted if references to the co-defendant are redacted and the jury is instructed not to consider the statement against any defendant other than the declarant. Richardson v. Marsh, 481 U.S. 200, 208, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). We presume in the latter situation that the jury will follow instructions and consider the statement only for the proper purpose (assessing the declarant’s guilt) and not the improper purpose (assessing the co-defendant’s guilt). See id. at 206-07, 211.”
However, the circuit noted an additional step was necessary. “In multi-defendant trials like this one,” noted the circuit, “an additional layer of analysis may be necessary. When the prosecution seeks to introduce a statement made by one of the defendants, the statement will typically be admissible against that defendant (the declarant), who has no constitutional right to confront himself. But introduction of the statement may raise confrontation problems with respect to the other defendants if the declarant exercises his right not to testify at trial.” Figueroa-Cartagena, _ F.3d at __ (citing United States v. Rios Ruiz, 579 F.2d 670, 676-77 (1st Cir. 1978); United States v. Brown, 441 F.3d 1330, 1359 (11th Cir. 2006))
The First Circuit then applied this three-tiered this framework. “Applying these principles,” concluded the Circuit, “we conclude that Neliza’s confrontation argument is without merit. We considered the character of the phone conversation … holding that the statements made by Alberto and his mother were not testimonial. See Castro-Davis, Nos. 08-2108, 08-2109. As a consequence, Neliza has no constitutional right to confront Alberto. Her claim under the Confrontation Clause, whether denominated a Crawford challenge or a Bruton challenge, must be rejected.”
Figueroa-Cartagena, _ F.3d at __ .
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