Dean Vincent v. Al Parke , 942 F.2d 989 ( 1991 )

BOYCE F. MARTIN, Jr., Circuit Judge.

Dean Vincent appeals the district court’s order denying his petition for a writ of habeas corpus. In his habeas petition, Vincent raised six different grounds for the issuance of the writ: (1) denial of his sixth amendment right to confront adverse witnesses; (2) denial of his right to an impartial jury; (3) denial of due process by state police detective’s opinion testimony as to Vincent’s guilt; (4) denial of due process as a result of prosecutorial misconduct; (5) denial of fair trial by improper comments made by the trial judge; and (6) his conviction violated the fifth amendment’s protection against double jeopardy. With respect to Vincent’s first argument that his sixth amendment right to confront opposing witnesses was violated, the district court found that there was in fact a violation of Vincent’s right to confront opposing witnesses as established by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), but concluded the violation was harmless. The district court rejected Vincent’s remaining grounds for ha-beas relief finding them to be meritless. For the foregoing reasons, we reverse.

Dean Vincent and two co-defendants, Leroy Kinser and Ronald Johnson, were indicted by the Butler Circuit Court in August 12, 1983, for first degree burglary, first degree robbery, capital murder, and criminal conspiracy relating to the burglary, robbery and death of Butler County, Kentucky resident, Harold Hayes. During the police investigation, Kinser had confessed to the police and implicated Vincent and Johnson. On November 5, 1984, the state court held a suppression hearing regarding Kinser’s motion to suppress his taped confession. The court denied Kin-ser’s motion to suppress the confession.

In order to prevent Kinser’s confession from unduly prejudicing his co-defendants, the prosecution moved for a bifurcated trial. The terms of the bifurcated trial procedure provided that: (1) the prosecution would introduce its case-in-chief, excluding Kinser’s confession; (2) the defendants would then present their defenses with the exception of any rebuttal evidence Kinser wished to offer regarding his confession; (3) the jury would thereafter deliberate on the guilt, or innocence, of defendants Vincent and Johnson; (4) if either Vincent or Johnson were found guilty, the jury would then hear evidence concerning Vincent’s and/or Johnson’s sentence; (5) the prosecution would then introduce Kinser’s confession; (6) Kinser would then introduce any rebuttal evidence regarding his confession; (7) the jury would then determine Kinser’s guilt or innocence; and (8) if Kinser was found guilty, the jury would then determine Kinser’s sentence. All defendants objected to procedure on the grounds that it was not provided for by the Kentucky Rules of Criminal Procedure. The court granted the motion for bifurcation over the defendants’ objections.

The defendants’ trial began on August 12, 1985, and concluded on August 23, 1985. Following the close of the evidence, the prosecution moved to dismiss the charge of conspiracy to commit robbery. Thereafter, utilizing the bifurcation procedure, the jury found all three defendants guilty of first degree robbery, first degree burglary, and murder. Defendants were sentenced to twenty years imprisonment on both the robbery and burglary convictions and life imprisonment for the murder convictions.

Vincent’s conviction, along with the other two co-defendants, was affirmed by the Kentucky Supreme Court on direct appeal. Kinser v. Commonwealth, 741 S.W.2d 648 (Ky.1987). Thereafter, Vincent filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Vincent’s habeas petition was initially referred to a United States Magistrate who recommended that the writ be issued. The district court subsequently rejected the magistrate’s recommendation and denied the petition. This appeal ensued.

Initially, Vincent argues that his sixth amendment right of confrontation was violated when the prosecution introduced testimony concerning two out-of-court statements made by co-defendant Leroy Kinser. The two statements allegedly made by Kin-ser that Vincent objects to were offered by Louise Wilson and Detective Gaddie. Wilson testified that she overheard Kinser say to Vincent and Johnson, “Well, why don’t you kill them god-damn dogs, too.” Detective Gaddie, referring to his earlier conversation with Kinser’s sister, Eva Kinser, regarding her brother’s participation in the charged crimes, confirmed that Eva Kinser had informed him that “Leroy [Kinser] told [her] that he was with Ronnie and Dean during the crime but he stood in the doorway and was too shocked to move because of what Ronnie [Johnson] and Dean [Vincent] were doing to Hayes[.]” After the admission of this statement, the trial court admonished the jury not to consider the statement as evidence against defendants Vincent and Johnson.

When the Kentucky Supreme Court reviewed Detective Gaddie’s testimony regarding Kinser’s statement to his sister on direct appeal, it found that the statement did not violate Vincent’s sixth amendment rights because the prosecution offered to redact the names of Johnson and Vincent and the defendants objected to redaction of the name of the codefendants and therefore brought about the harm for which they complain. Kinser, 741 S.W.2d at 651-52. The district court determined and we agree that the record does not support this conclusion. Instead, the record reflects that Vincent did object to the introduction of the statement in any form and when that objection was overruled, he objected to the introduction of the statement without excising his name:

THE COURT: Alright, I am still of the opinion that Bruton and these other cases apply only to confessions or statements given to law enforcement officers in the course of their investigations, and I will permit it with admonition that I have stated.

DEFENSE COUNSEL: It will not be excised, your Honor?

THE COURT: No.

PROSECUTION: Thank you, your Hon- or.

DEFENSE COUNSEL: Exception.

Vincent argues that the introduction of these out-of-court statements made by Kin-ser violated his rights under the confrontation clause of the sixth amendment pursuant to the Supreme Court’s decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Court held, inter alia, that a defendant is deprived of his rights under the confrontation clause when a co-defendant’s incriminating confession is introduced at their joint trial, even if the jury is instructed to consider that confession only against the co-defendant. The Court rested its decision on the fact that

there 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 codefend-ant, who stands side-by-side with the defendant, are deliberately spread before the jury in a joint trial.

Id. at 135-136, 88 S.Ct. at 1627-1628 (citations omitted). The Bruton rule, as it has come to be called, is applicable to the state as well as the federal courts. Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968).

With respect to the statement testified to by Louise Wilson, we reject Vincent’s argument that its introduction violated the dictates of Bruton for a number of reasons. As an initial matter, it is not entirely clear whether the Bruton analysis is even applicable to this statement. One critical element for the Court’s decision in Bruton was that the credibility of the co-defendant’s confession was “inevitably suspect” given the speaker’s clear “motivation to shift blame onto others,” and that such unreliability is “intolerably compounded when the alleged accomplice ... does not testify and cannot be tested by cross-examination.” Bruton, 391 U.S. at 136, 88 S.Ct. at 1628. See also United States v. Kendricks, 623 F.2d 1165, 1167 (6th Cir. 1980) (per curiam). The statement by Kin-ser, “Well, why don’t you kill them goddamn dogs, too,” is simply not an admission of guilt by Kinser nor is it an attempt to shift blame onto others.

Furthermore, even if the Bruton analysis is appropriate, this statement does not expressly implicate Vincent in the charged crime and thus is not “powerfully incriminating.” Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987) (quoting Bruton, 391 U.S. at 135, 88 S.Ct. at 1627). As Bruton and subsequent cases make clear, e.g., Richardson, 481 U.S. at 208, 107 S.Ct. at 1707; Cruz v. New York, 481 U.S. 186, 193, 107 S.Ct. 1714, 1719, 95 L.Ed.2d 162 (1987), the extrajudicial statement must clearly implicate the defendant in order for there to be a violation of that defendant’s sixth amendment right to confront adverse witnesses. See also Hodges v. Rose, 570 F.2d 643, 646 (6th Cir.), cert. denied, 436 U.S. 909, 98 S.Ct. 2244, 56 L.Ed.2d 408 (1978). This statement, standing alone, does not expressly implicate Vincent in the crime. Indeed, the statement does not refer specifically to Vincent nor does it make any reference to the Hayes’ murder. At most, this statement, coupled with the rest of the evidence introduced at trial against the defendants, raises the inference that sometime prior to its utterance either defendant Vincent or Johnson had been involved in a “killing.” This is not enough to constitute a violation of Bruton. Richardson, 481 U.S. at 208, 107 S.Ct. at 1707.

The situation is quite different with respect to Kinser’s statement to his sister as recounted by Detective Gaddie. That statement was, for all intents and purposes, a confession of guilt by Kinser in which he clearly implicated Vincent in the crime. In fact, Kinser’s statement to his sister is exactly the type of confession alluded to in Bruton, one in which the speaker attempts to shift the blame onto others. Therefore, the admission of this statement violated the Bruton rule as to Vincent. Having concluded that the introduction of Kinser’s statement to his sister violated the strictures of Bruton, we now face the question of whether the Bruton error was harmless beyond a reasonable doubt. See Brown v. United States, 411 U.S. 223, 231, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208 (1973) (“We reject the notion that a Bruton error can never be harmless.”). The district court, after summarizing the evidence against Vincent, concluded that the introduction of Kinser’s statement was harmless beyond a reasonable doubt. We disagree.

We make the determination as to whether the admission of Kinser’s statement was harmless error “on the basis of ‘our own reading of the record and on what seems to us to have been the probable impact ... on the minds of the average jury.’ ” Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972) (quoting Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969)). “ ‘[Before a federal constitutional error can be harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.’ ” Arizona v. Fulminante, 499 U.S.-, 111 S.Ct. 1246, 1257, 113 L.Ed.2d 302 (1991) (quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967)); see also United States v. Martin, 897 F.2d 1368, 1372 (6th Cir.1990). Error is not harmless where “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction,” or where the jury would “have found the State’s case significantly less persuasive.” Schneble, 405 U.S. at 432, 92 S.Ct. at 1060; see also Chapman, 386 U.S. at 24, 87 S.Ct. at 828 (requirement that harmlessness of federal constitutional error be clear beyond a reasonable doubt embodies standard requiring reversal if “ ‘there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ ”) (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-231, 11 L.Ed.2d 171 (1963)). The improper admission of a co-defendant’s uncross-examined statement is likely to be harmless where the statement is duplicative of other testimony in the case. Schneble, 405 U.S. at 431, 92 S.Ct. at 1059.

Admittedly, the independent evidence introduced at trial against Vincent was substantial. However, most of this evidence was circumstantial in nature, such as testimony establishing that Vincent was seen with the co-defendants in his 1977 maroon Dodge earlier on the day of the murder; that Vincent and the co-defendants got drunk at Louise Wilson’s house and talked of robbing Hayes; that Vincent on an earlier occasion talked of robbing Hayes in the presence of Sowders; that two days before the murder Vincent stated he would commit the robbery immediately and in fact drove with Sowders to the grocery store but did not commit the robbery; that around 11:30 on the night of the murder Vincent and his co-defendants paid off their debts to a bootlegger with a roll of dimes but earlier in the day had to pawn items in order to purchase liquor; Vincent and the co-defendants arrived at Louise Wilson’s house on the night of the murder around 11:00 pm or 11:30 pm, hurriedly parked Vincent’s car in the rear of the house, and asked for a bag in which to put money and change; and that the victim died around 11:00 pm. Perhaps the strongest evidence introduced against Vincent, excluding Kin-ser’s statement to his sister, was the fact that fibers found on tape which was used to tape the victim’s feet, hands and mouth matched fibers found in Vincent’s maroon Dodge.

In light of the prosecution’s lack of evidence directly linking Vincent to the crimes, Kinser’s statement to his sister, which placed all three defendants at the crime scene with Vincent and Johnson delivering the fatal blows to Hayes, takes on a particular significance. Based upon our review of the record, we are unable to conclude beyond a reasonable doubt that the probable impact of Kinser’s statement to his sister was harmless. Kinser’s statement was not merely cumulative, but rather a critical piece of the prosecution’s case against Vincent. Indeed, it was the only piece of evidence introduced which placed Vincent at Hayes’ store on the night of the murder. Although we recognize that there was a substantial amount of circumstantial evidence introduced at trial against Vincent, we cannot say that the introduction of Kinser’s statement did not render the prosecution’s case significantly more persuasive. Schneble, 405 U.S. at 432, 92 S.Ct. at 1060.

Accordingly, Vincent’s petition for habe-as corpus must be granted, and we reverse and remand this case to the district court with instructions to take such action in the event that the commonwealth does not grant Vincent a new trial within a reasonable time. Having found that Vincent is entitled to habeas relief on the ground that his sixth amendment right to confrontation was abridged, we decline to address Vincent’s remaining arguments, as doing so would be duplicative.