Minimizing confrontation: the Eighth Circuit uses Crawford to avoid Bruton for non-testimonial statements.

• Author: Buffaloe, Samuel
• Position: NOTE

United States v. Dale, 614 F.3d 942 (8th Cir. 2010), cert. denied, 131 S. Ct. 1814 (2011).

1. INTRODUCTION

   Holding a joint trial for multiple co-defendants presents numerous advantages. Joint trials are efficient in that they save time and resources by requiring witnesses to testify once instead of multiple times. (1) They also avoid the "scandal and inequity of inconsistent verdicts." (2) It is no wonder, then, that courts have a preference for joint trials over separate trials. (3)

   Despite this preference, the Supreme Court has recognized that joint trials can sometimes interfere with the constitutional rights of at least one of the co-defendants. (4) In Bruton v. United States, the Supreme Court determined that a non-testifying defendant's incriminating statement which implicates a co-defendant but is not in furtherance of a conspiracy is inadmissible at a joint trial for two reasons: first, it violates that co-defendant's Sixth Amendment right to confront the witnesses against him; and second, asking juries to use the statement as evidence against one defendant and disregard it for the other is asking them to perform an impossible task. (5)

   The Supreme Court reexamined the right to confrontation in the landmark decision Crawford v. Washington. (6) In that case, the Court determined that the right to confrontation applied to statements made in court as well as "testimonial" statements made outside of it. (7) Several Circuit Courts have ironically used this expansion of the Confrontation Clause against defendants wishing to invoke Bruton to avoid joint trials. (8) The Eighth Circuit recently did just that with its decision in United States v. Dale. (9) In Dale, one defendant made a statement that incriminated both himself and a co-defendant to a police informant wearing a wire. (10) The Eighth Circuit determined that because the defendant's incriminating statement was not "testimonial," Bruton's protections did not apply to his co-defendant, and thus a joint trial was still appropriate. (11)

   Outside of the Bruton context, this Note also examines the implications of defining "testimonial" statements entirely from the point of view of the speaker as the Eighth Circuit did in Dale. This Note will argue that to ignore the motives of the examiner encourages the police to use unethical and deceptive interrogation techniques. This Note additionally argues that applying Bruton only to testimonial statements ignores Bruton's Due Process concerns in that it allows juries to do what the Supreme Court considers to be an "impossible" task. (12) Finally, this Note questions whether, after Crawford, any remaining constitutional limits remain on the admission of unreliable yet non-testimonial hearsay statements.

2. FACTS AND HOLDING

   Anthony Rios and Olivia Raya were found murdered in their Kansas City home on December 21, 2002. (13) After a search of the home, police found several bricks of marijuana and cocaine. (14) This was explained, in part, by Paul Lupercio, one of the last people to see or speak to the victims while they were alive. (15) Lupercio testified that on December 20, the night before Rios and Raya were found murdered, he had given Rios twenty-thousand dollars for cocaine. (16) Lupercio further testified that he had planned to pick up the cocaine later that evening but was unable to because Rios never answered his phone or called him back. (17)

   A search of Rios's phone records revealed that the last person he had talked to on the phone was a man named Dyshawn Johnson. (18) A search of Johnson's home resulted in the discovery of "scales, kilo wrappers and tape with cocaine residue, and ammunition." (19) Several witnesses testified that Johnson was Michael Dale's "source" for cocaine and the two sold drugs together. (20) Furthermore, several witnesses with connections to Dale through the cocaine business testified that Dale had admitted to murdering "the Mexicans." (21) Based on this information, a federal grand jury in the Western District of Missouri indicted Dale and Johnson, and a jury later convicted them in a joint trial on two counts of first-degree murder and conspiracy to distribute cocaine. (22)

   Dale and Johnson had both asked the court to sever the proceedings, but the district court denied their motions. (23) Johnson's main argument to sever the trials was the fact that the government introduced recorded statements that Dale had made to a fellow prisoner named Anthony Smith. (24) Law enforcement officials had persuaded Smith to wear a wire "and probe Dale for information relating to the Rios/Raya murders." (25) While talking with Smith, Dale admitted involvement in the murders, incriminating both himself and Johnson. (26)

   Johnson argued that because Dale did not testify at their joint trial, admitting this statement would violate his Sixth Amendment right to cross examine Dale. (27) Instead of removing the statements entirely or severing the trial, the district court ordered the prosecution to redact all references to Johnson in the transcript. (28) Additionally, "the district court instructed the jury that the tape-recorded conversation was not admissible against Johnson." (29) To accomplish the necessary redactions, the prosecution played the tape to the jury while simultaneously showing them a written transcript. (30) The tape replaced Johnson's name with 30 blank spaces, while the transcript replaced his name with the phrase "another person." (31) on the tape, Dale admitted to shooting Rios but claimed to have shot Raya only after "the other person" said "kill the bitch." (32) Johnson's attorney argued that it was clear that Johnson was this other person because the thirty blank spaces on the tape made it obvious that the tape had been edited and the transcript's references to "another person" emphasized these redactions. (33)

   On appeal, Johnson renewed his argument that the introduction of Dale's statement ran afoul of Bruton, and thus the district court should have severed the trial. (34) The government countered as follows: first, Bruton did not apply because the statements were non-testimonial; second, even if the statements were testimonial, the district court complied with Bruton by omitting Johnson's name from the transcript; and third, even if Bruton was violated, Johnson was not prejudiced by the error. (35) The Eighth Circuit agreed with the government's first contention and held that because Dale did not believe his statements would later be used at trial, they were non-testimonial, and therefore Bruton did not apply. (36)

3. LEGAL BACKGROUND

   1. Testimonial Statements and the Right to Confrontation

      The Sixth Amendment to the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." (37) The Supreme Court in Ohio v. Roberts attempted to formulate a workable test for the admissibility of hearsay testimony. (38) Under Roberts, hearsay was only admissible in a criminal trial if the declarant was unavailable and the statement bore sufficient "indicia of reliability." (39)

      In 2004, the Supreme Court overruled this test in Crawford v. Washington. (40) In that case, Michael Crawford was arrested for stabbing a man named Kenneth Lee. (41) Both Crawford and his wife Sylvia were interrogated by the police about the stabbing, and both confessed to seeking out Lee because Lee had allegedly tried to rape Sylvia earlier that day. (42) However, their stories differed in that Crawford claimed to have seen a weapon in Lee's hands before assaulting him, while Sylvia claimed not to have seen one. (43) Crawford claimed self-defense at his trial and also used the state's marital privilege to prevent Sylvia from testifying. (44) Still wanting to use Sylvia's statement, the state invoked Washington's "hearsay exception for statements against penal interest." (45) The state then used a portion of the wife's tape-recorded statements as evidence that the stabbing was not in self-defense. (46) Crawford argued to the Supreme Court that playing this statement violated his right to be "confronted with the witnesses against him." (47) The Supreme Court agreed, and it determined that this right to confrontation not only applied to statements made in court, but also to "testimonial" statements outside of it. (48)

      The Supreme Court admitted that it did not comprehensively define "testimonial" in Crawford. (49) The court did determine, though, that at a minimum, "testimonial" statements included "prior testimony at a preliminary hearing, before a grand jury, or at a former trial," as well as to "police interrogations." (50) For a statement deemed "testimonial" to be admitted, the declarant must be unavailable and the defendant must have had a right to cross examine that declarant on another occasion. (51)

      The Supreme Court shed further light on what it meant by testimonial statements in two 2006 cases. (52) In Davis v. Washington, decided jointly with Hammon v. Indiana, the court considered "when statements made to law enforcement personnel during a 911 call or at a crime scene are 'testimonial.'" (53) In Hammon, police responded to a "reported domestic disturbance at the home of" Mr. and Mrs. Hammon. (54) When the police arrived, Mrs. Hammon was standing on her porch, and Mr. Hammon was inside the house. (55) Mrs. Hammon seemed "somewhat frightened," but she told the officers that "nothing was the matter." (56) After further questioning, Mrs. Hammon told the police that Mr. Hammon broke their furnace, shoved Mrs. Hammon down on the floor into broken glass, hit Mrs. Hammon in the chest, and tore up her van so she could not leave the house. (57) After considering the nature of these statements, the court held that because there was no ongoing emergency when the statements were made, because there was no immediate threat to Mrs. Hammon's person, and because the officers were seeking to determine "what...