Hill v. Hofbauer

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hill v. Hofbauer No. 01-2667 ELECTRONIC CITATION: 2003 FED App. 0253P (6th Cir.) File Name: 03a0253p.06 Corbett E. O’Meara, O’MEARA & O’MEARA, Grosse Pointe Farms, Michigan, for Appellee. ON BRIEF: Laura Graves Moody, OFFICE OF THE ATTORNEY GENERAL, UNITED STATES COURT OF APPEALS Lansing, Michigan, for Appellant. Corbett E. O’Meara, O’MEARA & O’MEARA, Grosse Pointe Farms, Michigan, FOR THE SIXTH CIRCUIT for Appellee. _________________ _________________ TERRANCE LESEAN HILL, X Petitioner-Appellee, - OPINION - _________________ - No. 01-2667 v. - SUHRHEINRICH, Circuit Judge. Respondent-Appellant > Gerald Hofbauer, in his official capacity as Warden of the , Marquette Correctional Facility in Marquette, Michigan (“the GERALD HOFBAUER, Warden, - Respondent-Appellant. - State”), appeals from the district court’s conditional grant of a writ of habeas corpus under 28 U.S.C. § 2254, as amended N by the Anti-Terrorism and Effective Death Penalty Act of Appeal from the United States District Court 1996 (AEDPA), in favor of Petitioner-Appellee Terrance for the Eastern District of Michigan at Detroit. Lesean Hill. No. 00-70960—Arthur J. Tarnow, District Judge. The district court found that the state trial court denied Hill Argued: May 6, 2003 his Sixth Amendment Confrontation Clause rights. Specifically, the district court found that the Michigan court Decided and Filed: July 28, 2003 erred by allowing into evidence a statement made by Hill’s non-testifying co-defendant. The State claims on appeal that Before: SUHRHEINRICH and GILMAN, Circuit Judges; the writ should not have been granted because the state CARR, District Judge.* court’s admission of the co-defendant’s statement was not “contrary to,” or an “unreasonable application” of, “clearly _________________ established Federal law.” The State asserts that Ohio v. Roberts, 448 U.S. 56 (1980), provides for the admission of COUNSEL hearsay statements where the statements contain significant indicia of reliability. The State argues that the co-defendant’s ARGUED: Laura Graves Moody, OFFICE OF THE statement is reliable because it was made against the ATTORNEY GENERAL, Lansing, Michigan, for Appellant. declarant’s penal interest. We reject the State’s arguments and affirm the grant of the * writ. We find that the trial court’s admission of the co- The Hon orable Ja mes G . Carr, United States District Judge for the defendant’s statement over Hill’s objection was contrary to Northern District of Ohio, sitting by designation.

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the precedent clearly established by the Supreme Court in Lee real quick [sic] and get paid. I told him we could go and stick v. Illinois, 476 U.S. 530 (1986); Bruton v. United States, 391 up the fag; and after I told him that, then I told [Hill].” U.S. 123 (1968); and Douglas v. Alabama, 380 U.S. 415 Moreover, Bulls asked Matthews to bring a gun. In response, (1965). We also find the error not harmless because the co- Matthews went upstairs and retrieved a shotgun. Bulls stated defendant’s statement indicates that Hill possessed the that Hill also agreed to the plan to rob Johnson, and the three requisite malice to be guilty of second-degree murder. men left Matthews’ house, walking together. At Johnson’s house, Bulls went to the back door, while Hill “stayed . . . on I. the side of the house, and [Matthews] . . . was on the other side of the door. And when [Bulls] knocked on the door, Hill’s petition for a writ of habeas corpus arises from his [Johnson] opened the door. And as soon as [Johnson] opened arrest and conviction following the robbery and murder of the door, [Matthews] rushed and he pointed the shotgun in his Jermaine Johnson on August 24, 1995. On that date, Johnson face.” Only Bulls and Matthews entered Johnson’s house, was shot and killed inside his residence in Flint, Michigan by while Hill “[s]tood outside as a lookout.” As Bulls and then-unknown assailants. Matthews were rummaging through the house, Johnson attempted to flee, and then Bulls “heard a blast.” Matthews Sometime in 1996, Mekia Randle informed Flint police that had shot Johnson, killing him. Immediately, Bulls asked her ex-boyfriend, Jabbar Priest Bulls, had told her he had Matthews why he had shot Johnson, to which Matthews participated in Johnson’s murder. Randle gave recorded responded: “He tried to run.” Bulls then sprinted down the statements to the police describing Bulls’ role in the murder. steps, exited the house, and ran to Randle’s house. Flint police arrested Bulls and confronted him with Randle’s tape-recorded statements. Bulls gave a statement confessing After his arrest, Hill also gave a statement to police, to the crime, and inculpating Hill and another co-defendant, likewise giving his account of the events. He stated that Bulls Deonte Matthews, as well. Hill and Matthews were came to him to solicit his help in robbing Johnson. Bulls subsequently arrested. proposed a plan, under which he expected Hill to stand outside and “[w]ait for [Bulls] to let [him] inside the house In his statement, Bulls gave his account of the events [to] take . . . items from the house.” Hill initially agreed to do surrounding Johnson’s murder. He stated that on August 24, so. As Hill and Bulls were walking toward Johnson’s house, 1995, Johnson approached him on the street and offered him Matthews met the two of them and then subsequently left. money in exchange for allowing Johnson to perform oral sex Bulls told Hill that Matthews was leaving to get a gun on him. Bulls verbally accepted the offer and accompanied because “it would be easier for him to rob” Johnson. Johnson to Johnson’s home. Bulls claimed he had no interest Matthews returned, but was not visibly carrying a weapon. in Johnson’s sexual advances, but he accompanied Johnson Upon reaching Johnson’s house, Hill followed Bulls and because he thought “[t]hat [he] could beat him up and take his Matthews up the driveway, went behind the house, and money.” Upon arriving at Johnson’s home, Bulls quickly listened while Bulls and Matthews stood at the back door. excused himself but promised to return. After he left Hill stated that, at this time, he “didn’t have [his] mind made Johnson’s house, Bulls went to Matthews’ house to recruit up” whether he was going to enter the house. Bulls knocked Matthews and Hill to aid him in robbing Johnson. on the door, and had a brief conversation with the resident, Specifically, Bulls stated “I told [Matthews] about the fag presumably Johnson. At this time, Hill decided to abandon around the corner; and I told him we could go and rob him

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the plot and left. He said he heard a shot as he was walking this Court. This appeal is timely under Fed. R. App. P. away. 4(b)(1)(B). Subsequently, neighbors apparently saw some men running Bulls was also found guilty at his joint trial with Hill. In from the house, and described a person who resembled Hill. his case, the Michigan Court of Appeals had ruled that the The Flint police stopped and questioned Hill later that night, introduction of Hill’s statement was a violation of Bulls’ but initially determined he was not involved and released him. Sixth Amendment rights. State Appeal, 1998 WL 1989786, at *2. The Michigan court found that Hill’s statement did not In 1997, Hill and Bulls were tried together in Genessee fit into the hearsay exception for statements against the County, Michigan, Circuit Court.1 During the trial, neither declarant’s penal interest because Hill, in his statement, had defendant testified. However, both Hill’s and Bulls’ shifted most of the blame to Bulls. Id. at *2. However, the statements were entered into evidence. Hill was convicted of court found the error harmless because Bulls had admitted second-degree murder under Mich. Comp. Laws § 750.317; that he knew Matthews was carrying a shotgun, and the jury and assault with intent to rob while armed under Mich. Comp. could therefore infer Bulls’ malice from his own statement. Laws § 750.89. Hill received a sentence of life imprisonment Id. Bulls filed a habeas petition and challenged the harmless for the murder charge, and fifteen to thirty years’ error ruling in the district court below. The district court imprisonment for the assault charge. He appealed to the found the error not harmless and granted the writ. Bulls v. Michigan Court of Appeals, claiming, inter alia, that his Jones, 86 F.Supp. 2d 746, 754 (E.D.Mich. 2000). We Sixth Amendment Confrontation Clause rights were violated affirmed, finding the error not harmless because the by the introduction of Bulls’ statements. On September 25, admission of Hill’s statement tended to show that Bulls knew 1998, the court affirmed Hill’s convictions and sentence. there “was a high likelihood that Matthews would kill People v. Bulls, Nos. 202149 & 202849, 1998 WL 1989786 Johnson,” more so than did Bulls’ own statement. Bulls v. (Mich. App. Sept. 25, 1998) (per curiam) (“State Appeal”). Jones, 274 F.3d 329, 336 (6th Cir. 2001). The Michigan Supreme Court denied Hill’s application for leave to appeal on June 29, 1999. People v. Bulls, 598 II. N.W.2d 341 (Mich. 1999). We review a district court’s legal conclusions in a habeas Pursuant to 28 U.S.C. § 2254, Hill filed a petition for a writ proceeding de novo, and its factual findings for clear error. of habeas corpus with the district court. The court Vincent v. Seabold, 226 F.3d 681, 684 (6th Cir. 2000). conditionally granted the petition on November 1, 2001. Hill v. Hofbauer, 195 F. Supp.2d 871 (E.D. Mich. 2001) (“Hill I”). Because Hill filed his petition in November 2001, his case On November 27, 2001, the State filed a notice of appeal with is governed by 28 U.S.C. § 2254(d), as amended by the AEDPA of 1996. See Vincent, 226 F.3d at 684; see also Lindh v. Murphy, 521 U.S. 320, 326 (1997). Section 2254(d), as amended, provides that a petition for writ of habeas corpus 1 Deonte Matthews, the purported trigger man, was arrested and shall fail before the district court unless the state trial court’s charged, but never bro ught to trial. The state dismissed Ma tthews’ decision: charges because the only evidence against him was the statem ents of H ill and Bulls. See Hill v. Hofbauer, 195 F.Supp.2d 87 1, 875 n.3 (E.D. M ich. 2001) (“Hill I”).

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(1) resulted in a decision that was contrary to, or III. involved an unreasonable application of, clearly established Federal law, as determined by the Supreme In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court Court of the United States; or held that a hearsay statement is nonetheless admissible against a defendant if it falls within a “firmly rooted” hearsay (2) resulted in a decision that was based upon an exception. The Court defined a “firmly rooted” exception as unreasonable determination of the facts in light of the one that assures the court that there are “indicia of reliability evidence presented in the State court proceeding. which have been widely viewed as determinative of whether a statement may be placed before the jury though there is no In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme confrontation of the declarant, and [that affords] ‘the trier of Court analyzed the AEDPA, and clarified what constitutes a fact a satisfactory basis for evaluating the truth of the prior decision “contrary to,” or an “unreasonable application” of statement.’” Id. at 65 (quoting Mancusi v. Stubbs, 408 U.S. “clearly established” Supreme Court law. The “contrary to” 204, 213 (1972) (citations omitted)). Where the hearsay and “unreasonable application” clauses of the AEDPA are statement does not fall within a “firmly rooted” hearsay independent tests and must be analyzed separately. Id. at 407. exception, it is admissible only upon a showing of other A state court decision can be “contrary to” Supreme Court “particularized guarantees of trustworthiness.” Roberts, 448 case law in two ways. First, the decision is contrary if the U.S. at 66. state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law. Also, a decision is In this case, the Michigan Court of Appeals recognized the contrary if the state court considers facts that are materially existence of Hill’s federal constitutional rights, and indistinguishable from a relevant Supreme Court case and acknowledged Roberts as the leading case law in the area. See arrives at an opposite result. Id. at 405. A state court State Appeal, 1998 WL 1989786, at *1. Relying on Roberts, decision involves an “unreasonable application” of Supreme the court found that Bulls’ statements were reliable because Court law if “the state court identifies the correct governing they fell within the “firmly rooted” hearsay exception for legal rules from the Court’s cases but unreasonably applies it statements against penal interest.2 Specifically, the court to the facts of the particular state prisoner’s case.” It is also stated: an “unreasonable application” of Supreme Court precedent where a state court invokes a Supreme Court case and Although Bulls made his statements concerning Hill unreasonably extends its legal principle to a new context while in custody, the record is devoid of any indication where it should not apply, or fails to extend it where it should apply. Id. at 407. Moreover, “clearly established Federal 2 law, as determined by the Supreme Court of the United The M ichigan Court of Appe als also relied o n M ich. R. E vid. States” “refers to the holdings, as opposed to the dicta, of [the 804(b)(3) to determine that there exists a hearsay exception for statem ents against penal interest. See State Appeal, 1998 W L 1989 786, at *2. Mich. Supreme] Court’s decisions as of the time of the relevant R. Evid . 804 (b)(3 ) provides that “[a] statement which was at the time of state-court decision.” Id. at 412. its making so far co ntrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant’s position would not have mad e the statement unless believing it to be true” is not excluded under the hearsay rule if the d eclarant is unavailable to testify. See also Fed. R. Evid. 804(b)(3) (stating same).

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that Bulls was motivated to make the statements by a time, the admission of Bulls’ statement against Hill cannot desire to curry favor from the authorities. Further, Bulls’ have been “contrary to . . . clearly established Federal law, as statements have several indicia of reliability in that they determined by the Supreme Court of the United States,” 28 do not minimize his role or responsibility in the crime, U.S.C. § 2254(d)(1), because the Supreme Court had not yet they were voluntarily given, and they were not motivated decided the issue in Lilly. by a desire to lie or distort the truth regarding Hill’s involvement in the crime. Accordingly, we conclude that The State is correct that any new law in Lilly cannot be the carry-over portions of Bulls’ statements implicating considered under the AEDPA, but the State misreads, first, Hill fall within the penal interest exception to the hearsay the district court opinion as relying solely on Lilly, and, rule and have sufficient indicia of reliability to satisfy second, Lilly as creating a new rule rather than stating one Confrontation Clause concerns. Thus, the trial court did mandated from earlier precedent.3 not err in admitting the statements against Hill. State Appeal, 1998 WL 1989786, at *2. 3 The district co urt partially rejected the State’s argume nt that Lilly could not apply here, stating: Hill petitioned the district court below for a writ of habeas Lilly is not being applied in this instance to give the petitioner corpus. The district court determined that the Michigan the advantage of a new constitutional rule of criminal procedure. court’s decision was “objectively unreasonable and contrary On the contrary, Lilly is relied upon merely to dem onstrate that at the time o f Petitioner’s trial in 1997, the against penal interest to” Lilly v. Virginia, 527 U.S. 116 (1999), and Lee v. Illinois, exception to the hearsay rule had not been determined to be a 476 U.S. 530 (1986). Hill I, 195 F.Supp.2d at 881. The “firmly rooted” exception under the mode of analysis established district court found that those cases stand for the proposition by Oh io v. Ro berts in 1980 , and, in fact, has now been so that “a co-defendant’s confession inculpating the accused is rejected as manifested by Lilly. It should also be rememb ered in inherently unreliable, and . . . convictions supported by such this context that Petitioner had no burden to demon strate anything; it was the burden of the State, as the proponent of the evidence violate the constitutional right of confrontation.” Id. evidence, to show that the against pena l interest exception to the (quoting Lee, 476 U.S. at 546). Accordingly, the court held hearsay rule was an acceptable reason to admit the evidence that Bulls’ statements were outside any “firmly rooted” notwithstanding the Confrontation Clause. It could no t do so exception under Roberts. Hill I, 195 F.Supp.2d at 882. The then and, even in the ab sence of Lilly, it can not do so now. district court continued its analysis, and independently Hill I, 195 F.Supp.2d at 880 n. 6. Accordingly, the district court placed examined Bulls’ statement under the second prong of the the burd en on the State to present Supreme Court case law allowing for Roberts test to determine whether it nonetheless bore the adm ission of Bulls’ statement, rather than requiring Hill to present “guarantees of trustworthiness” to justify its admission. Id. Supreme Court c ase law disallowing it. This is the wrong standard. At at 882-84. The district court found none and granted the writ. the federal stage, the habeas petitioner, not the State, has the burden of Id. at 884. proving that the state courts were in error, not the other way around. Under the AE DP A, a writ is properly granted only if the petitioner can demo nstrate that the Supreme Court has provided “clearly established” The State argues that the district court erred to the extent it precedent deeming the trial court’s actions unconstitutional. The Supreme relied on Lilly. The State contends that we should disregard Court’s silence on a particular issue cannot constitute “clearly Lilly in its entirety because that case was not decided until established” Federal law. Therefore, the district court erred in rejecting 1999, a year after Hill’s conviction was affirmed by the the State’s argume nt that any new rule espoused in Lilly cannot be Michigan Court of Appeals. The State asserts that, at the considered on habe as review. See also Teague v. Lane, 489 U.S. 288, 301 (1989) (prohibiting reliance on a case that “breaks new ground” after state

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Although the decision in Lilly drove the district court’s that “[i]t is clear that our cases consistently have viewed an opinion, the court nonetheless cited the earlier Supreme Court accomplice’s statements that shift or spread the blame to a cases of Lee and Bruton v. United States, 391 U.S. 123 criminal defendant as falling outside the realm of those (1968), to stand for the same proposition as Lilly, and to ‘hearsay exception[s] [that are] so trustworthy that adversarial demonstrate that the principles espoused in Lilly were testing can be expected to add little to [the statements’] previously established. See Hill I, 195 F.Supp.2d at 879; see reliability.’” Id. at 133 (quoting White v. Illinois, 502 U.S. also Teague v. Lane, 489 U.S. 288, 301 (1989) (stating that, 346, 357 (1992)) (emphasis added) (alterations in original); in regard to habeas cases, a subsequently decided case does see also Lilly, id. at 131 (citing Douglas v. Alabama, 380 U.S. not present new law if it is “dictated by precedent existing at 415 (1965)). the time the defendant’s conviction became final”). In our opinion in Bulls’ case, we spoke to whether Lilly was In Lilly, a plurality unequivocally stated that confessions mandated by earlier precedent, and addressed substantially made by a co-defendant inculpating not only himself but his the same cases referenced by the Lilly Court: co-criminals are “inherently unreliable” and not within a “firmly rooted” hearsay exception for statements against The Sixth Amendment provides that “[i]n all criminal penal interest. Lilly, 527 U.S. at 131. Accordingly, the Court prosecutions, the accused shall enjoy the right . . . to be ruled that under the framework discussed in Roberts, a co- confronted with the witnesses against him.” That defendant’s custodial confession cannot be entered into guarantee includes the right to cross-examine witnesses. evidence absent additional “guarantees of trustworthiness.” See Pointer v. Texas, 380 U.S. 400, 404 (1965). The The Court “distinguishe[d] accomplices’ confessions that Supreme Court has repeatedly held that a non-testifying inculpate themselves and the accused as beyond a proper co-defendant’s statements that implicate a defendant are understanding of the against penal-interest exception because presumptively unreliable and their admission violates the an accomplice often has a considerable interest in ‘confessing Confrontation Clause. See Douglas v. Alabama, 380 and betraying his cocriminals.’” Id. at 131 (citing 5 J. U.S. 415, 419 (1965); see also Bruton v. United States, Wigmore, EVIDENCE § 1477, at 358, n. 1 (J. Chadbourn rev. 391 U.S. 123, 126 (1968) (holding that the admission of 1974)). The Court further distinguished the confessions of non-testifying co-defendant’s confession incriminating accomplices from the statements of co-conspirators made in defendant, even with jury instructions to consider furtherance of a conspiracy, which have traditionally been confession only against the co-defendant, violates the held trustworthy, because in the case of custodial confessions, Confrontation Clause). The Supreme Court has noted the government is typically “involved in the statements’ that since Douglas, it “has spoken with one voice in production.” Therefore such statements do not bear the same declaring presumptively unreliable accomplices’ indicia of reliability as is present in statements made of the confessions that incriminate defendants.” Lee v. Illinois, declarant’s own accord. See id. at 137. 476 U.S. 530, 541 (1986); see also Lilly, 527 U.S. at 131; Cruz v. New York, 481 U.S. 186, 193 (1987). To Moreover, the Supreme Court expressly referenced past overcome this presumption of unreliability and introduce Supreme Court cases in achieving its result in Lilly, stating such statements into evidence, the prosecution must show that the statements bear “adequate indicia of reliability.” Roberts, 448 U.S. at 66; United States v. court proceedings in habeas cases). McCleskey, 228 F.3d 640, 644 (6th Cir. 2000) (“[I]t is

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clear that Supreme Court Confrontation Clause would “plainly den[y the defendant] the right of cross- jurisprudence does not permit the introduction of hearsay examination secured by the Confrontation Clause.” Id. declarations uttered by accomplices in law enforcement custody that inculpate a defendant, absent further In Bruton v. United States, 391 U.S. 123 (1968), a non- ‘particularized guarantees’ of the declaration’s testifying co-defendant had made a statement inculpating not trustworthiness.”). only himself but the defendant, George Bruton, as well. At a joint trial, prosecutors sought to enter the statement, which Bulls v. Jones, 274 F.3d 329, 333-34 (6th Cir. 2001). In was admittedly hearsay, under the exception for the Bulls, the State had conceded it was constitutional error for admissions of a party-opponent. The trial court admitted the the trial court to enter Hill’s statement against Bulls because statement against the declarant and instructed the jury that the Hill’s statement shifted a greater portion of the blame to statement could not be considered against Bruton. The Bulls, and thus was not against Hill’s penal interest. The only Supreme Court ruled that the limiting instruction was not issue before us in Bulls was whether the error was harmless. sufficient. The Court found that the Sixth Amendment right Accordingly, our discussion in Bulls of whether the principles to cross-examination is absolute, and admission of the co- espoused in Lilly were previously clearly established was defendant’s statement therefore violated Bruton’s right to dicta. confront the evidence against him. There was no presumption of veracity in the statement because the credibility of such Today, we squarely face the issue whether Lilly was pre- statements is “inevitably suspect.” 391 U.S. at 136. ordained by earlier clearly established Supreme Court law for the first time.4 Therefore, we find it necessary to discuss the In Lee v. Illinois, 476 U.S. 530 (1986), the Court again held facts of the Supreme Court cases cited in Lilly and Bulls in a co-defendant’s confession not within a hearsay exception further detail. and inadmissible. There, Millie Lee’s co-defendant, Edwin Thomas, gave a statement inculpating both himself and Lee In Douglas v. Alabama, 380 U.S. 415 (1965), the Court in a plot to kill Lee’s aunt. Notwithstanding that Thomas’ found that a statement wherein a declarant places any blame statement was voluntary and also incriminated himself, the at all on his co-defendant is unreliable and inadmissible Court held the statement unreliable and stated: hearsay. Id. at 419. In a joint trial, the prosecutor was not permitted to refresh the memory of the uncooperative Although . . . the confession was found to be voluntary declarant with his statement because it implicated the for Fifth Amendment purposes, such a finding does not defendant as well as himself. The Court found that such use bear on the question of whether the confession was also free from any desire, motive, or impulse Thomas may have had either to mitigate the appearance of his own 4 culpability by spreading the blame or to overstate Lee’s In another case, United States v. McCleskey, 228 F.3d 64 0 (6th Cir. involvement in retaliation for [Lee] having implicated 2000), we likewise held that a co-defendant’s custodial confession does not fall within a “firmly rooted” hearsay exception. Id. at 643-45. him in the murders. However, McCleskey was no t a habeas case, but a federal drug case . Therefore, our analysis was not bound by the strictures of the AEDPA. Id. at 544. Moreover, the Court in Lee recognized even then Accordingly, although we relied on the decision in Lee, we did not that its rule was not new law, stating that “there is no perform a thorough analysis of whether the principle was “clearly occasion to depart from the time-honored teaching that a co- established” by the Supreme C ourt, as that term is used in the AE DP A.

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defendant’s confession inculpating the accused is inherently law interpreting Douglas, Bruton, and Lee may be unreliable, and that convictions supported by such evidence informative. violate the constitutional right of confrontation.” Id. at 546 (emphasis added). In United States v. York, 933 F.2d 1343 (7th Cir. 1991), the Seventh Circuit affirmed the admission of a co-conspirator’s In Cruz v. New York, 481 U.S. 186 (1987), the defendant, statement against the defendant at his insurance fraud trial. Eulogio Cruz, sought to suppress his co-defendant’s The co-conspirator, Gail Maher, had made statements to two confession under Bruton. However, Cruz had also made a associates claiming that she and the defendant, Tom York, confession which mirrored his co-defendant’s statement in all had planned to blow up the lounge York owned in order to relevant aspects. The trial court admitted the co-defendant’s collect the insurance proceeds. Id. at 1360. Maher, having confession against Cruz, finding it reliable because of the two died, did not testify. The court affirmed the admission of statements’ “interlocking” nature. Cruz, 481 U.S. at 189. Maher’s statement, noting that it tended to subject her to such The Supreme Court reversed, and held that the existence of criminal liability that she would not have made the statement Cruz’s own corroborating confession did not automatically had it not been true. Id. render the co-defendant’s statement reliable, and its admission constituted Sixth Amendment error. Id. at 193. In United States v. Seeley, 892 F.2d 1 (1st Cir. 1989), The Court held, however, that the defendant’s corroborating authored by then-Circuit Judge Stephen Breyer, the First confession could be used on appeal to determine whether the Circuit likewise upheld the admission of a co-conspirator’s error was harmless. Id. at 194. statement as against his penal interest. There, the defendant, Edward Seeley, was charged in connection with two As the foregoing discussion indicates, the Supreme Court Massachusetts bank robberies. A fellow bank robber, Robert had provided a line of cases holding that a co-defendant’s Wayne, made statements to his girlfriend that inculpated custodial confession is inherently unreliable. However, the himself, Seeley, and three other men in the bank heists. Id. at State nonetheless contends that the Lilly rule cannot be said 1. Wayne was found dead a month after the robberies, and to have been previously “clearly established” by the Supreme was therefore not charged in the crimes and unable to testify Court because several federal circuits had held such at Seeley’s trial. The trial court allowed Wayne’s girlfriend statements admissible in the face of the above-cited Supreme to testify to his statements, and the First Circuit upheld their Court precedent. Although only Supreme Court case law is admission, finding that the statements bore sufficient indicia relevant under the AEDPA in examining what Federal law is of reliability because Wayne would not have made such “clearly established,” the decisions of the United States statements to his girlfriend had they not been true. Id. at 4; Courts of Appeals may be informative to the extent we have see also United States v. Fields, 871 F.2d 188 (1st Cir. 1989) already reviewed and interpreted the relevant Supreme Court (affirming admission of Wayne’s statements against another case law to determine whether a legal principle or right had accomplice for same reasons). been clearly established by the Supreme Court. See, e.g., O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998), overruled In United States v. Katsougrakis, 715 F.2d 769 (2d Cir. on other grounds, McCambridge v. Hall, 303 F.3d 24, 36-37 1983), one of the co-conspirators, Kyriakos Chrisanthou, was (1st Cir. 2002) (en banc). Because we had examined this badly burned while setting fire to the defendant’s restaurant, issue only in dicta, a review of other circuits’ pre-Lilly case and subsequently died from his injuries. The trial court allowed Chrisanthou’s wife and his friend, Fitos Vasilou, to

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testify at Katsougrakis’s fraud trial about statements that disregarded by the Supreme Court in situations where the Chrisanthou had made to each of them implicating himself, as declarant’s custodial confession at all implicates somebody well as Katsougrakis and other co-conspirators, in a scheme else. Such statements are never truly against the declarant’s to defraud Katsougrakis’s insurers by setting fire to his penal interest because a defendant in custody always has a business. The Second Circuit affirmed the admissions, motivation to implicate and pass the blame to another, even finding sufficient indicia of reliability in Chrisanthou’s if in the slightest. See Lee, 476 U.S. at 541. As the Supreme statements because they were sufficiently against his penal Court stated in Williamson v. United States, 512 U.S. 594, interest. Id. at 775-76. 599-600 (1994), such statements are inherently unreliable because “[o]ne of the most effective ways to lie is to mix However, each of these circuit cases is distinguishable from falsehood with truth, especially truth that seems particularly the case sub judice.5 The defendant in each case made his persuasive because of its self-inculpatory nature.” statement, not to police, but to an acquaintance or a fellow accomplice. Therefore, at the time of the statement, none of Therefore, what was dicta in Bulls we make explicit today. the defendants was motivated by a desire to curry the favor of We hold that Douglas, Bruton, and Lee evidence that the law enforcement officials. See, e.g., Katsougrakis, 715 F.2d Supreme Court had clearly established the principle that a co- at 775 (stating that Chrisanthou’s statements bore adequate defendant’s custodial confessions are unreliable and not indicia of reliability only because they were made while within a “firmly rooted” hearsay exception prior to Lilly. “talking privately with his friend” and not to police). Here, Bulls’ custodial statements are no different than those Douglas, Bruton, and Lee indicate that the Supreme Court has statements held inadmissible in Douglas, Bruton, and Lee. held statements made to police to closer scrutiny. Although We therefore conclude that the trial court’s admission of Rule 804(b)(3) provides a hearsay exception for statements Bulls’ statement was “contrary to” the law of those against the declarant’s interest, this rule has been consistently indistinguishable Supreme Court cases. We also hold that the trial court’s admission of Bulls’ statement was an “unreasonable application” of the legal 5 The State also raises two Sixth Circuit cases to support its principles espoused in Roberts, the only Supreme Court case proposition that the Supreme Court had not previously clearly established identified by the state court of appeals. The Michigan court the rule of Lilly. However, neither case is applicable here. In Neuman v. attempted to extend the list of “firmly rooted” hearsay Rivers, 125 F.3d 315 (6th C ir. 199 7), we held that statements against penal interest fell within a “firmly rooted” hearsay exception. But in that exceptions to include a co-defendant’s custodial confession case, the adm itted statem ent did not incu lpate the declarant’s accomplice, inculpating his cohorts. In light of Bruton and the other but only spoke to the decla rant’s role in the crime. See id. at 319-20. In above-cited Supreme Court precedent, we find this action Gilliam v. Mitchell, 179 F.3d 990 (6th Cir. 1999), we relied on Neuman objectively unreasonable under the “extension theory” of the and likewise held an acco mplice’s con fession admissible. We did not, “unreasonable application” standard of the AEDPA. See however, perform an analysis of whether the declarant’s statement spoke only to his ow n role in the crime or inc ulpated his co horts as well. Williams, 529 U.S. at 407. Rather, in light of Lilly pend ing at the tim e in front of the Supreme Court, we gave only a cursory review of the “firmly rooted” exception issue, and The State also argues that the district court erred in finding rested our holding alternatively on two other gro unds. See id. at 994 n. that Bulls’ statement did not otherwise contain significant 1. First, we found that the declarant’s statement contained additional “guarantees of trustworthiness.” However, the State has particularized guarantees of trustwo rthiness. Id. at 994. And second, we proposed no “guarantees of trustworthiness” beyond the fact found that any error wa s none theless ha rmless. Id. at 994-95.

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that Bulls’ statement was a self-inculpatory confession. As doubt. Otherwise, we must find that the introduction of stated above, this is insufficient to establish “significant Bulls’ statement actually prejudiced Hill, had a “substantial indicia of reliability.” and injurious effect” under Brecht, and was an “unreasonable application” of Chapman. IV. The State argues that “Bulls’[] statement completely Nonetheless, the trial error in this case is subject to mirrors, in relevant aspects, Hill’s own statement about his harmless error analysis. See Chapman v. California, 386 U.S. participation in the robbery and subsequent murder,” Brief 18, 24 (1967). On direct review, we employ a reasonable for Appellant, at 37, and therefore its introduction was doubt standard to determine whether a constitutional error is harmless error, if error at all. Cf. Cruz, 481 U.S. at 194 harmless. Id. But a constitutional error is cause for federal (holding error may be harmless where co-defendant’s habeas relief only if it has “a substantial and injurious effect statement is duplicative of defendant’s). The State is correct or influence in determining the jury’s verdict.” Brecht v. that Hill’s statement is consistent with Bulls’ in several Abrahamson, 507 U.S. 619, 623 (1993). The Brecht standard respects. Hill indicated that he had originally agreed to the has survived the enactment of the AEDPA. We have held plan to rob Johnson, that he voluntarily went to Johnson’s that if a petitioner can pass Brecht analysis, “he will surely house, and that his role was to be a lookout and wait for have demonstrated that the state court’s finding that the error Matthews and Bulls to return. However, Bulls’ and Hill’s was harmless beyond a reasonable doubt . . . resulted from an statements are not entirely identical. Bulls stated that Hill and unreasonable application of Chapman.” See Nevers v. Matthews were together at Matthews’ home when Bulls first Killinger, 169 F.3d 352, 371-72 (6th Cir. 1999); see also approached them. This is significant because Bulls stated that Bulls, 274 F.3d at 335. In determining whether Confrontation Matthews retrieved a shotgun while all three men were Clause error is harmless under Chapman, the reviewing court together in Matthews’ home, thereby implying that Hill was should consider: “the importance of the witness’ testimony in aware that Matthews had a gun.6 By contrast, Hill stated that the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, 6 . . . and, of course, the overall strength of the prosecution’s Bulls’ statement went as follows: case.” Delaware v. van Arsdall, 475 U.S. 673, 684 (1986); cf. Q: Did you ask [M atthews] if he had anything? A: Yes. Idaho v. Wright, 497 U.S. 805, 822 (1990) (stating that Q: A nd wh at was tha t? existence of corroborating evidence informs the question of A: I asked him if he had a gun— some heat. harmless error). If the reviewing judge is in “grave doubt” Q: And did he? about whether constitutional error is harmless, it is not. A: Yes. O’Neal v. McAninch, 513 U.S. 432, 445 (1995). Q: What kind? A: Shotgun. Q: Where did he get the shotgun from? In determining whether the error in this particular case is A: He went upstairs. harmless, we must decide whether the other evidence, Q: Now you said you told [Hill] something. including Hill’s own statement, is overwhelming and A: Yes. sufficient to establish the elements of second-degree murder Q: W hat was that? and armed assault with intent to rob beyond a reasonable A: I told him the same thing that I told [Matthews] about the fag and robbing.

No. 01-2667 Hill v. Hofbauer 21 22 Hill v. Hofbauer No. 01-2667

Bulls first approached Hill when Hill was alone, and that “Malice,” in Michigan, is defined as “the intent to kill, the Matthews met Hill and Bulls later, as they were already intent to cause great bodily harm, or the intent to do an act in walking toward the victim’s house unarmed. Hill contended wanton and wilful disregard of the likelihood that the natural that Matthews and Bulls had a conversation, and Matthews tendency of such behavior is to cause death or great bodily subsequently left. Hill said Bulls told him that Matthews was harm.” Goecke, 579 N.W.2d at 878-79. However, malice leaving to get a gun. However, Hill claimed that when cannot be inferred from Hill’s complicity in the robbery plot Matthews returned, he did not see Matthews carrying a gun. alone. See People v. Aaron, 299 N.W.2d 304, 326 (Mich. In fact, Hill unequivocally stated that he did not know 1980) (stating that the commission of an underlying felony Matthews had a gun.7 does not alone satisfy requirement of malice). Rather, a factual examination is necessary to determine whether Hill In order to find Hill guilty of second-degree murder in possessed an intent to kill or cause great bodily harm beyond Michigan, the State must prove that there was: (1) a death; his intent to rob. See People v. Harris, 476 N.W.2d 767, 771 (2) caused by an act of the defendant; (3) with malice; and (Mich. App. 1991); see also People v. Kelly, 378 N.W.2d (4) without justification or excuse. See People v. Goecke, 579 365, 381 (Mich. 1985). N.W.2d 868, 878 (Mich. 1998). Moreover, under Michigan law, an aider and abettor can be charged as a principle if he Under an aiding and abetting theory, the State must prove “procures, counsels, aids, or abets” in the commission of the either that Hill held the requisite intent for second-degree crime. See Mich. Comp. Laws Annot. § 767.39; see also murder or had knowledge that Bulls and Matthews held that People v. Palmer, 220 N.W.2d 393, 396-97 (Mich. 1974). intent. See People v. King, 534 N.W.2d 534, 538 (Mich. App. 1995). An aider and abettor of a robbery must know of his cohort’s intent to kill the victim, or at least his intent to Q: So the three of you made a plan to go rob him? physically harm the victim, before he can be found to have A: Right. aided and abetted the murder as well. Such intent can be Q: Did the three of you leave the house together? inferred from the aider and abettor’s knowledge that his A: Yes. cohort possesses a weapon. See, e.g., People v. Feldmann, Q: Where did you go? 449 N.W.2d 692, 697 (Mich. App. 1989); see also People v. A: To the fag’s house. Q: How was the gun concealed as you walked there? Turner, 540 N.W.2d 728, 733 (Mich. App. 1995), overruled A: M atthews had it in his pants. in part on other grounds, People v. Mass, 628 N.W.2d 540, 548 (Mich. 2001). However, “[i]t is fundamentally unfair and 7 Hill and the police had the following exchange concerning his in violation of basic principles of individual criminal knowledge that Matthews was carrying a gun: culpability to hold one felon liable for an unforeseen death Q: Did [M atthews] catch up with you? that did not result from actions agreed upon by the A: Yes. participants.” Turner, 540 N.W.2d at 548. Q: W here at? A: O n Ha milton a nd Forest H ill. Q: Did he have a weap on? Therefore, a determination of whether Hill knew that A: Not that I know of, no. Matthews was carrying a gun is relevant to the jury’s Q: You didn’t see one? determination of whether Hill is guilty of second-degree A: No. murder. Hill’s statement presents little question that he Q: Did you ask him if he had one? A: No. originally possessed the requisite intent to rob Johnson, but

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leaves open whether he knew Matthews had a gun, and therefore whether Hill possessed the requisite malice necessary for second-degree murder. Bulls’ statement removes any doubt by implying that Hill knew of the existence of the gun and acquiesced to its role in the robbery. Accordingly, Bulls’ statement is more damaging to Hill than his own. We find, therefore, that the Sixth Amendment error had “a substantial and injurious effect or influence in determining the jury’s verdict.” See Brecht, 507 U.S. at 623. Hill is entitled to a new trial on both charges.8 V. For the foregoing reasons, we uphold the grant of the writ by the district court. The order by the district court to the State of Michigan to retry Hill or release him from penal custody within 120 days of the date of the district court order (November 1, 2001), plus time stayed pending this appeal, is hereby AFFIRMED.

8 As one o f its elemen ts, the armed assault with intent to rob charge requires a finding that the perpetrator was armed with a dangerous weapon. Therefore, because Hill was charged under an aiding and abetting theory, whether Hill knew Matthews was armed is relevant to the analysis o f this charge as well. See Mich. Comp. Laws § 750.89.