Jones v. Basinger

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3577

A NTONIO D. JONES,

Petitioner-Appellant,

v.

JAMES B ASINGER,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 2:09-cv-00052-RLY-WGH—Richard L. Young, Chief Judge.

A RGUED F EBRUARY 8, 2011 — D ECIDED M ARCH 31, 2011

Before SYKES, T INDER, and H AMILTON, Circuit Judges.

H AMILTON, Circuit Judge. In 2004, petitioner Antonio

Jones was convicted in an Indiana state court for his in-

volvement in a horrific robbery that culminated in four

murders. At his trial, two police detectives testified in

detail about an informant’s double-hearsay statement

accusing Jones as the leader of the robbery and murders.

That testimony was allowed on the theory that it was

offered not to show the truth of the informant’s statement

but for the purpose of showing the course of the police

2 No. 09-3577

investigation that led to Jones’ arrest. A divided Indiana

Court of Appeals affirmed Jones’ conviction, and the state

courts denied relief on post-conviction review. Jones

petitioned for a writ of habeas corpus under 28 U.S.C.

§ 2254, alleging that this testimony violated his Sixth

Amendment right to confront the witnesses against him.

The district court denied the petition without reaching

the merits of Jones’ Sixth Amendment claim.

The trial record makes unmistakably clear that the

informant’s double-hearsay against Jones was in fact used

as substantive evidence to prove Jones’ guilt, in violation

of his Sixth Amendment rights. The Indiana Court of

Appeals’ failure to recognize this fact was an unreasonable

failure to apply the Supreme Court’s decision in Crawford

v. Washington, 541 U.S. 36 (2004), to this case. Accordingly,

we reverse and remand with instructions to grant the

petition.

I. The Murders and the Trial

Shortly after midnight on January 17, 2004, Ronyale

Hearne arrived at Anthony McClendon’s apartment in

Gary, Indiana, to pick up her two-year-old son A.M.

Jones v. State, No. 45A03-0407-CR-339, at 3 (Ind. App.

June 30, 2005) (unpublished opinion) (“Jones I”). Inside,

Hearne discovered that the apartment had been the site of

a brutal home invasion that had left three of the apart-

ment’s occupants dead—McClendon, Jimmie Jones, and

Laurice Jones. Young A.M. was alive but mortally

wounded. Hearne rushed him to the hospital, but he

died there of multiple gunshot wounds.

No. 09-3577 3

Two days later, law enforcement officers received a tip

that James Parks, Lenzo Aaron, and petitioner Antonio

Jones had killed A.M. and the others in the course of a

robbery. The informant claimed to have received this

information directly from Parks himself. Based on that

tip, Gary police arrested Jones and charged him with

four counts of murder.

A. The Prosecution’s Case

When the case was tried, the prosecution’s star witness

was Lenzo Aaron, who testified pursuant to a plea agree-

ment in which he admitted participating in the robbery

and murders, but under which all murder charges against

him were dropped. On the night of the murders, Aaron

explained, he, Parks, and Jones were at a party when

McClendon called to ask Jones for help in buying a quan-

tity of cocaine for $6,000. According to Aaron, Jones

needed that cash himself and decided to rob McClendon.

Aaron and Parks agreed to help, expecting that they would

receive equal shares of the proceeds.

According to Aaron, the three men then traveled to

McClendon’s apartment, where Jones knocked at the front

door and asked to be let in. When someone answered,

Jones rushed into the apartment, firing his weapon and

demanding to know where the money was. Jones and

Parks then went into the rear area of the apartment, where,

still according to Aaron, they killed McClendon and

Jimmie Jones. Afterwards, Aaron said, Parks demanded

that he kill Laurice Jones, but Aaron claimed that he left

4 No. 09-3577

the apartment rather than hurt anyone. (Aaron insisted

that, although he brought the AK-47 to McClendon’s

apartment, he never shot anybody the entire time he was

there.) Laurice and A.M. were both still alive when Aaron

last saw them. Aaron said he heard two final gunshots as

he walked away from the apartment. The three men then

went their separate ways. For his part in the crimes, Aaron

claimed he received only $230.

Jones’ defense vigorously challenged Aaron’s credibility.

In her opening statement, Jones’ attorney noted that Aaron

was the only witness who placed Jones at the scene of the

crime. She asserted that Aaron did so only “in order to get

the deal he got.” “They have no evidence,” the attorney

claimed, “other than a man who made a tremendous deal.

A tremendous deal to be able to sit here and tell you

anything that they need him to say.” As a parting shot at

Aaron’s credibility, Jones’ attorney described Aaron as

“someone who has a whole lot to lose,” someone willing to

say, “ ‘Oh, you want me to say [Jones] did it? Okay, [Jones]

did it.’ ”

B. The Double-Hearsay Accusation—Jeffrey Lewis’ State-

ment to Law Enforcement

In an attempt to counter Jones’ attack on the foundations

of its case, the prosecution requested and received the trial

court’s permission to present testimony detailing the tip

that had led to Jones’ arrest. The prosecution argued that

Jones had “opened the door” to such testimony by repeat-

edly implying that Aaron’s testimony was the only evi-

No. 09-3577 5

dence of Jones’ guilt. Tr. 590-93. Over Jones’ objection, the

court agreed to allow the prosecution to discuss the infor-

mant’s tip, reasoning that “one implication of [Jones’]

questioning could be that the police are all over God’s

creation looking for evidence and they found nothing to

connect your client to this [crime].” Tr. 594. As a result, the

court explained, it would allow testimony about the

informant’s tip “for the limited purpose of showing course

of investigation, which takes it outside of the hearsay rule.”

Id.

The prosecution then questioned Gary police detectives

Lorenzo Davis and Michael Jackson regarding the tip that

initially led them to suspect Jones’ involvement in the

murders. Their extensive testimony went far beyond any

arguably legitimate “course of investigation” use and

provided a detailed but double-hearsay account of the

crimes. The prosecution was even allowed to bolster the

credibility of the non-testifying tipster, a point that would

have been completely irrelevant if the tip were not being

used to prove the truth of its contents.

According to Detective Jackson, a man had contacted

police two days after the murders and claimed to have

information about them. The man refused to identify

himself or provide any information but said he would call

back later. When the man called back the next day, he

identified himself as Jeffrey Lewis and said that he wanted

to talk about what had happened at McClendon’s apart-

ment.

Detective Jackson met with Lewis the next day, and

Lewis told Jackson “who committed the [shooting], what

6 No. 09-3577

took place, the type of weapons that they used, and where

all of these individuals were or lived.” Specifically, Lewis

claimed that his brother James Parks had confessed to

Lewis that he, Aaron, and Jones had committed the four

murders. According to Lewis, Parks had told him that the

three men were at a party together before going to rob

McClendon’s apartment. Lewis also said that his brother

had supposedly told him the motive for the robbery: Jones

“needed the money to pay his rent.”

Lewis also told the police that Parks had provided a

number of specific details about the shootings. The men

had gained entry into McClendon’s apartment, Lewis

said, by simply knocking and asking to be let in. Once

inside, Lewis told the detectives, Jones declared that “they

couldn’t leave any witnesses,” and Parks told Aaron to

“finish off” Laurice Jones. Lewis also said that his brother

had told him that Jones and the others had made off

with “a large sum of money [from] the residence.”

Lewis said the murder weapons were a .22-caliber

handgun, a .45-caliber handgun, and an AK-47 assault rifle,

and he provided descriptions of the .45-caliber and the AK-

47. A man named Shawn Dixon had purchased the AK-47

for Parks, and Lewis had seen Jones with the .45-caliber “a

lot of times.” According to Lewis, Parks still had the AK-

47, but the handguns had been discarded in a “swampy

area” or waterway near Chase Street in Gary. This detailed

and damning double-hearsay was allowed despite re-

peated objections by the defense, always on the theory

that it was showing only the “course of the investigation”

and responding to Jones’ defense that the only (admissible)

No. 09-3577 7

evidence linking him to the crimes came from Aaron

pursuant to his generous plea agreement.

Despite these objections, the trial court made no effective

effort to caution the jury not to consider Lewis’ statement

for its truth, though such instructions should have been

given if there were any merit to the rationale for allowing

the testimony in the first place. The court never instructed

the jury that Detective Davis’ testimony about the Lewis

statement could not be considered for the truth of its

contents. During Detective Jackson’s lengthy and detailed

testimony about the Lewis statement, the court told the

jury that responses to only three specific questions

about the Lewis statement should not be considered

for their truth.

In closing arguments, the prosecution further bolstered

its case with the double-hearsay from Lewis. The prosecu-

tor reminded the jury that it was Lewis’ information that

had initially caused the police to investigate Jones:

They were already looking for Shawn Dixon and the

AK-47 purchase. They were already going up and

down . . . trying to find the guns that were thrown.

And Lenzo Aaron was not arrested until January 26.

They were already, already looking for three people.

Three different guns and those three people were

[Parks, Aaron, and Jones], long before Lenzo Aaron

talked to the police.

Tr. 1898-99. In its rebuttal closing argument, the prosecu-

tion continued:

You now know that Aaron is not the only reason that

we’ve been here for the last two weeks. He is not. They

8 No. 09-3577

followed their investigation . . . the information that

[they] received was to go after Aaron first, because

Aaron is the weakest link. And that is just what they

did. As far as some reward, [Lewis] never asked for it.

He said from the beginning, it’s not about the money.

It’s about the baby. That’s what it’s about.

Tr. 1954. Following closing arguments, the trial court

issued its final jury instructions, none of which imposed

any limits on treatment of the Lewis statement. The case

then went to the jury, which convicted Jones on all four

counts of murder. The trial court sentenced Jones to a total

of 240 years in prison.

II. Direct and Collateral Review

On direct appeal from his conviction, Jones argued that

the testimony about what Lewis told the detectives vio-

lated his Sixth Amendment right to confront the witnesses

against him. A majority of the Indiana Court of Appeals

rejected this claim. The majority acknowledged Jones’

attempt to “establish that Aaron was the only source of

evidence” against him and acknowledged that this attack

may have “weakened the State’s case since Aaron testified

in the trial pursuant to the terms of a plea agreement.”

Jones I, No. 45A03-0407-CR-339, at 6-7. Although the

majority admitted that the testimony about Lewis’ state-

ment “pointed toward [Jones’] guilt” and “had great

prejudicial impact since it suggested that Jones committed

the quadruple homicide,” the majority said that the

prosecution had to “introduce[ ] the police detectives’

testimony to prove that there was a great deal of evidence

No. 09-3577 9

that was developed prior to [Aaron’s] statement that was

based upon evidence given to them by [Lewis].” Id. at 7

(quotation marks omitted). It was “necessary,” the majority

declared, “to explain to the jury why the police started

investigating Jones because Jones sought to prove that

Aaron, whose credibility was in question, was the only

source of evidence against him.” Id. at 9. Because “the

testimony of the police detectives regarding [Lewis’]

statement about his brother’s confession was [proffered

only] to show the course of police investigation . . . the

testimony did not constitute hearsay, and [Jones’] right to

confront the witnesses against him was not violated.” Id. at

10-11. The Court of Appeals majority also said that admis-

sion of the Lewis statement was harmless because “the

judge instructed the jury every time that the statement was

only offered to prove the course of the police investigation

and not the truth of the matter.” Id. at 7.

In a dissenting opinion, Chief Judge Kirsch argued that

“the purpose of the hearsay evidence was clearly to bolster

the State’s case against Jones, not to show the conduct of

the police investigation.” Id. at 17. “Jones’ counsel made no

comment about the police investigation,” he pointed out,

but merely “noted that the only evidence which the jury

would hear would come from [Aaron], who had struck a

favorable plea bargain with the State.” Id. Given this fact,

“the State’s claim that the challenged evidence was being

admitted for a purpose other than to prove the truth of the

matter asserted strains credulity.” Id. Judge Kirsch wrote

that “the majority seems to say that because the admissible

evidence against Jones was weak, and Jones’ counsel noted

such fact, it was proper to admit otherwise inadmissible

10 No. 09-3577

evidence.” Id. at 16. Under that rationale, he feared, “any

hearsay statement to police during the course of their

investigation would be admissible whenever a defendant

makes any comment on the evidence.” Id. at 17.

The Indiana Supreme Court declined to hear the case,

and Jones’ conviction was later upheld on state collateral

review. Having exhausted his state post-conviction reme-

dies, Jones petitioned for a writ of habeas corpus in federal

district court, again asserting that the introduction of

Lewis’ statement violated his Sixth Amendment rights. The

district court disagreed, determining that the admissibility

of Lewis’ statement was merely an “issue of state eviden-

tiary law,” so that habeas relief could be granted only if

that statement’s admission violated either due process or

the Sixth Amendment’s Confrontation Clause. Jones v.

Finnan, No. 09-cv-052, at 4 (S.D. Ind. Sept. 24, 2009),

quoting Johnson v. Bett, 349 F.3d 1030, 1037 (7th Cir. 2003).

The district court did not reach the merits of Jones’ Sixth

Amendment claim, however. Rather, the district court

framed the issue in terms of whether Lewis’ statement

violated Jones’ right to due process of law. Even if a

constitutional violation had occurred, the district court

added, any error was harmless because the detectives’

“ ‘testimony was not the only testimony that pointed

toward [Jones’] guilt’ ” and because “ ‘the [trial] judge

instructed the jury every time that [Lewis’] statement was

only offered to prove the course of police investigation and

not the truth of the matter asserted.’ ” Id. at 4, quoting Jones

I, No. 45A03-0407-CR-339, at 7. As we will see, on this key

point, both the state appellate court and the district

No. 09-3577 11

court erroneously described the trial record and applied

the wrong legal standard.

After denying Jones’ habeas petition, the district court

also denied Jones’ request for a certificate of appealability,

see 28 U.S.C. § 2253(c)(1)(A), on the grounds that no

reasonable jurist could disagree with its resolution of

Jones’ constitutional claims. The district court went on to

say that Jones’ appeal was “not taken in good faith”

because there was “no objectively reasonable argument

which [Jones] could present to argue that the disposition

of [his petition] was erroneous.” This court granted a

certificate of appealability on the sole issue of whether

the admission of out-of-court statements at trial violated

Jones’ Sixth Amendment right of confrontation.

III. Appellate Jurisdiction and Standards of Review

We have appellate jurisdiction over Jones’ Sixth Amend-

ment claim pursuant to our grant of a certificate of

appealability. 28 U.S.C. § 2253(c)(1)(A) (prohibiting

appeals from final orders in habeas proceedings absent a

certificate of appealability); Miller-El v. Cockrell, 537

U.S. 322, 336 (2003) (“[U]ntil a [certificate of appealability]

has been issued federal courts of appeals lack jurisdiction

to rule on the merits of appeals from habeas petitioners.”).

Our appellate jurisdiction extends only to the Sixth

Amendment claim described in that certificate. See

28 U.S.C. § 2253(c)(3); Rittenhouse v. Battles, 263 F.3d

689, 693 (7th Cir. 2001) (noting that “a habeas petitioner

may appeal only those issues for which a certificate of

appealability has been granted”).

12 No. 09-3577

We pause briefly to note the district court’s error in

denying a certificate of appealability in this case. The

statute provides that a certificate of appealability may issue

“only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

The Supreme Court has interpreted this language to

require a showing that “reasonable jurists could debate

whether (or, for that matter, agree that) the petition

should have been resolved in a different manner or that

the issues presented were adequate to deserve encourage-

ment to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000), following Barefoot v. Estelle, 463 U.S. 880,

893 (1983).

When a state appellate court is divided on the merits of

the constitutional question, issuance of a certificate of

appealability should ordinarily be routine. A district court

could deny a certificate of appealability on the issue that

divided the state court only in the unlikely event that the

views of the dissenting judge(s) are erroneous beyond any

reasonable debate. See Slack, 529 U.S. at 484. That prospect

is likely rare enough to call for some explanation in the

order denying the certificate of appealability, an explana-

tion that was lacking here.

Under the Antiterrorism and Effective Death Penalty Act

(“AEDPA”), Jones must first show that “he is in custody in

violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran,

131 S. Ct. 13, 16 (2010) (per curiam) (“[I]t is only noncom-

pliance with federal law that renders a State’s criminal

judgment susceptible to collateral attack in the federal

No. 09-3577 13

courts.”). Second, Jones must also show that his detention

was the result of a state court decision (1) “contrary to, or

involv[ing] an unreasonable application of, clearly estab-

lished Federal law, as determined by the Supreme Court of

the United States;” or (2) “based on an unreasonable

determination of the facts in light of the evidence pre-

sented in the State court proceeding.” 28 U.S.C. § 2254(d).

We review the district court’s legal conclusions de novo.

Milone v. Camp, 22 F.3d 693, 698 (7th Cir. 1994). The district

court made no independent findings of fact (which would

have been reviewed for clear error, Reeves v. Battles,

272 F.3d 918, 920 (7th Cir. 2001)), so our review is limited

to the state courts’ findings of fact, which are presumed

to be correct unless rebutted by clear and convincing

evidence. 28 U.S.C. § 2254(e)(1).

IV. The Sixth Amendment Violation

The first issue we address on the merits is whether the

introduction of the double-hearsay statement by Lewis

violated Jones’ Sixth Amendment right to confront wit-

nesses against him, as set forth by the Supreme Court in

Crawford. The record makes clear that Jones in fact suffered

repeated violations of his Sixth Amendment right to

confront Lewis and Parks.

The Confrontation Clause guarantees criminal defen-

dants the benefit of “the principal means by which the

believability of a witness and the truth of his testimony are

tested,” Davis v. Alaska, 415 U.S. 308, 317 (1974)—subjecting

that testimony to “the crucible of cross-examination,”

14 No. 09-3577

Crawford, 541 U.S. at 61. In the American legal system,

the role of cross-examination has paramount importance to

a criminal trial’s core truth-seeking function. See California

v. Green, 399 U.S. 149, 158 (1970) (calling cross-examination

“the greatest legal engine ever invented for the discovery

of truth” (quotation omitted)). A rigorous cross-examina-

tion may bring to light a variety of reasons to doubt a

witness’s testimony, ranging from innocent failures in

perceptions and memory to biases, prejudices, or ulterior

motives, or outright inconsistencies and falsehoods. See

Davis, 415 U.S. at 317. The Confrontation Clause also

advances the pursuit of truth by “insur[ing] that the

witness will give his statements under oath—thus im-

pressing him with the seriousness of the matter and

guarding against the lie by the possibility of a penalty

for perjury,” and by “permit[ting] the jury that is to

decide the defendant’s fate to observe the demeanor of

the witness in making his statement, thus aiding the jury

in assessing his credibility.” Green, 399 U.S. at 158.

To ensure these benefits of cross-examination, the Sixth

Amendment bars the admission of “testimonial hearsay”

against a criminal defendant unless (1) the declarant was

unavailable at trial; and (2) the defendant had a prior

opportunity to cross-examine that declarant. Crawford, 541

U.S. at 68. Neither of these requirements was satisfied

here. Lewis was clearly available—the prosecution had

Lewis under subpoena but simply chose not to call him as

a witness. (T. 1249, 1452). Jones never had a prior opportu-

nity to cross-examine Lewis about his statement. See id.

at 54 (“[T]he common law in 1791 conditioned admissibil-

ity of an absent witness’s examination on unavailability

No. 09-3577 15

and a prior opportunity to cross-examine. The Sixth

Amendment therefore incorporates those limitations.”).

Therefore, Jones’ right to confrontation was violated if

Lewis’ statement (1) was testimonial; and (2) was hearsay.

See id. at 68. It was both.

As to the first element, the State concedes with good

reason that Lewis’ statement was testimonial. Crawford

declined to “spell out a comprehensive definition of

‘testimonial,’ ” id., but the term clearly pertains to state-

ments made “in anticipation of or with an eye toward a

criminal prosecution.” E.g., United States v. Tolliver,

454 F.3d 660, 665 (7th Cir. 2006); see Davis v. Washington,

547 U.S. 813, 822 (2006) (asking whether “primary pur-

pose” of a statement was “to establish or prove past events

potentially relevant to later criminal prosecutions”). Lewis’

statement to the police, supposedly made for the purpose

of helping bring to justice the people responsible for the

murders in the McClendon home invasion, certainly

qualifies as testimonial.

Lewis’ statement was also hearsay—double-hearsay, to

be precise, because the detectives testified about what

Lewis claimed his brother Parks had told him—but this

conclusion requires some explanation in light of the

state courts’ treatment of this evidence. The identical

Indiana and federal evidentiary rules define hearsay as “a

statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to

prove the truth of the matter asserted.” Ind. R. Evid. 801(c);

16 No. 09-3577

Fed. R. Evid. 801(c).1 Under this definition, “[w]hether a

statement is hearsay . . . will most often hinge on the

purpose for which it is offered.” E.g., United States v.

Linwood, 142 F.3d 418, 425 (7th Cir. 1998). Crawford adopted

this purpose-based definition of hearsay for the purposes

of the Confrontation Clause. See 541 U.S. at 59 n.9 (noting

that the Confrontation Clause does not apply to statements

offered “for purposes other than establishing the truth of

the matter asserted”); United States v. York, 572 F.3d 415,

427 (7th Cir. 2009) (“Crawford applies only to hearsay,

which must be a statement offered for the truth of the

matter asserted.”), citing Crawford, 541 U.S. at 59 n.9.

The ultimate question, then, is whether the prosecution

offered Lewis’ statement for the purpose of establishing the

truth of its contents. See United States v. Mancillas, 580 F.2d

1301, 1309 (7th Cir. 1978) (“Even if a tip with a direct

charge of specific criminality cannot practically be

[r]eceived in evidence only to prove something other than

its truth, it can be nevertheless [o]ffered for that purpose,

and it is by the offer that [hearsay is defined].”). The State

concedes this point, admitting that, “had the [officers’]

testimony . . . been admitted as substantive evidence,

1

The district court characterized Jones’ Sixth Amendment claim

as an “issue of state evidentiary law” governed by Indiana law.

Jones v. Finnan, No. 09-cv-052, at 4. That characterization cannot

be reconciled with Crawford, which made clear that the only

hearsay definition relevant to Sixth Amendment analysis

derives from the Constitution itself, not from the “vagaries

of the rules of evidence” adopted by the states. See 541 U.S.

at 61. See, infra, note 4.

No. 09-3577 17

Crawford’s requirement of adversarial testing would have

been violated.” Undoubtedly, the purpose for which

Lewis’ statement was put before the jury is generally a

question of fact, not law. See, e.g., United States v. Rea,

621 F.3d 595, 604 (7th Cir. 2010) (applying clear error

standard when reviewing factual predicates to district

court’s hearsay ruling). We are therefore bound by the state

courts’ conclusion that Lewis’ statement was offered not

for its truth, but for a permissible non-hearsay purpose,

Jones I, No. 45A03-0407-CR-339, at 10-11, unless there

is clear and convincing evidence to the contrary. 28 U.S.C.

§ 2254(e)(1).2

The record of Jones’ trial shows beyond reasonable

dispute that the Lewis statement was offered for the

purpose of showing its truth, and that the trial court

actually allowed its use to prove its truth. Time and again,

the prosecution admitted that it wanted “to get into” the

statement to show that “other independent evidence”

linked Jones to the killings. Tr. 590. In contesting Jones’

motion to strike Detective Davis’ testimony regarding

Lewis’ statement, for example, the prosecution argued that,

2

We are not suggesting that a court should engage in a purely

subjective inquiry into the prosecutor’s motives, such that a

prosecutor could be called as a witness at an evidentiary hearing

to testify as to the “real” reasons for offering an out-of-court

statement into evidence. We mean only that the inquiry is an

objective one, based on all of the circumstances attendant to the

offer of a particular statement into evidence — i.e., the prosecu-

tor’s statements in open court, the actual use to which that

statement was put at trial, etc.

18 No. 09-3577

because Jones had argued that there was “no evidence

linking [him] to this case except for Lenzo Aaron,” it was

entitled to show that “there was independent evidence that

said that [Jones] was in that apartment with [Aaron and

Parks]. And that information came from . . . Jeffrey Lewis.”

Tr. 1132-33. Later, in regard to that same motion, the

prosecution claimed that, because Lewis had provided his

hearsay tip against Jones, “the jury cannot be left with [the]

impression” that “the only evidence against Antonio

Jones . . . came from Lenzo Aaron.” Tr. 1268. “[Jones] said

that there was no evidence that linked [him] to that crime

scene other than Lenzo Aaron. . . . And now we should

be allowed to defend ourselves because the impression

that [Jones] has left this jury with is not the correct impres-

sion.” Tr. 1270. By asserting it was using Lewis’ statement

to serve as “independent evidence” of Jones’ guilt, the

prosecution effectively admitted that Lewis’ statement

was inadmissible hearsay being offered to prove the

truth of the matters asserted. See, e.g., United States v.

Harris, 542 F.2d 1283, 1300 (7th Cir. 1976) (noting that the

hearsay rule “precludes the introduction of out of court

statements made by one person as evidence against

another”). That admission belies any contention that

Lewis’ statement was used purely for a permissible

collateral purpose.

As if that were not enough, the prosecution was allowed

to go to some lengths to convince the jury that Lewis was

a credible source of evidence. During its direct examination

of Detective Jackson, for example, the prosecution asked

whether Lewis had requested any reward for his informa-

No. 09-3577 19

tion.3 He had not. He had come forward, he had told the

police, because of “what happened to the little baby.” Tr.

1395. On redirect, the prosecution went on to ask questions

designed to show that Lewis’ statement was credible

because it was consistent with Aaron’s trial testimony, Tr.

1446, and because it contained information about the

shootings that had never been released to the public. Tr.

1449. During its closing argument, the prosecution re-

minded the jury that Lewis’ statement could be believed

because he had “said from the beginning, it’s not about the

money. It’s about the baby. That’s what it’s about.” Tr.

1954.

The prosecution thought it imperative for the jury to find

that the absent Lewis was credible. But why did Lewis’

credibility matter if his statement was, as the prosecution

insisted, offered only to show that the initial information

about the case came not from Aaron but from Lewis? If

that really was the reason the prosecution wanted the jury

to know about Lewis’ statement, the only individuals

whose credibility should have been at issue were Detec-

tives Davis and Jackson. Lewis’ credibility was important

only if the prosecution was using his statement to prove

the truth of its contents—in other words, his credibility

mattered only if his statement was in fact inadmissible

hearsay. See, e.g., In re Sawyer’s Petition, 229 F.2d 805,

809 (7th Cir. 1956) (“Evidence is hearsay when its probative

3

The parties stipulated that a $100,000 reward for information

regarding the killings was made public before Lewis came

forward with his information.

20 No. 09-3577

force depends on the competency and credibility of some

person other than the witness.”) (quotation omitted); see

Black’s Law Dictionary 739 (8th ed. 2004) (defining hearsay

as “testimony . . . dependent on the credibility of someone

other than the witness”).

The record of Jones’ trial leaves no reasonable room for

doubt. Lewis’ statement was used to establish the truth

of his out-of-court declarations. Jones has easily carried

his burden to show that the state courts’ conclusions to the

contrary were erroneous, see 28 U.S.C. § 2254(e)(1), leaving

us free to conclude that Lewis’ statement was in fact

hearsay as the Supreme Court defined that term in

Crawford. See 541 U.S. at 59 n.9. Because Lewis’ statement

was hearsay, because that statement was testimonial

in nature, and because Jones never had the opportunity

to cross-examine Lewis or Parks, Detectives Davis’ and

Jackson’s extensive testimony regarding that statement

violated Jones’ Sixth Amendment right to confront Lewis

and Parks. See Crawford, 541 U.S. at 68.

V. Unreasonable Application of Clearly Established Federal Law

Jones has met his threshold burden to show a violation of

his constitutional rights. 28 U.S.C. § 2254(a). We may not

grant habeas relief, however, unless that violation

resulted from the state courts’ “unreasonable applica-

tion” of “clearly established Federal law” to Jones’ claim.

28 U.S.C. § 2254(d)(1). We focus here on the decision of the

Indiana Court of Appeals. See Garth v. Davis, 470 F.3d

702, 710 (7th Cir. 2006) (“The relevant state court decision

is that of the last state court to address the claim on

No. 09-3577 21

the merits.”). Our next step under AEDPA, then, is to

determine whether Jones’ right to confront Lewis or Parks

was “clearly established” under the circumstances. See

Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999) (quotation

omitted).

A right is “clearly established” if that right was set forth

in the “holdings, as opposed to the dicta, of [the] Court’s

decisions as of the time of the relevant state-court deci-

sion.” Williams v. Taylor, 529 U.S. 362, 412 (2000); see

Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir. 1997) (noting

that circuit courts of appeal may not rely on rights estab-

lished solely by their own precedent to meet this prelimi-

nary requirement). Under this standard, the constitutional

right at issue here was clearly established for purposes of

AEDPA. The Supreme Court decided Crawford just a few

months before Jones’ trial.

A. Crawford’s Clear Prohibition

An unreasonable application of federal law is different

from a merely incorrect application of federal law. See

Williams, 529 U.S. at 410. Generally, a state court unreason-

ably misapplies controlling Supreme Court precedent

when it “identifies the correct governing legal rule from

[the] Court’s cases but unreasonably applies it to the facts

of the particular state prisoner’s case.” Id. at 407. An

unreasonable application of Supreme Court precedent may

also occur when a state court unreasonably refuses

to extend a governing legal principle to a context in which

it should have controlled, Ramdass v. Angelone, 530 U.S.

22 No. 09-3577

156, 166 (2000) (plurality), or unreasonably extends a

principle to a situation in which it should not have con-

trolled, see Williams, 529 U.S. at 408 (noting that latter

formulation “may perhaps be correct”). In applying this

formulation of the “unreasonable application” standard, a

court should be mindful of the Supreme Court’s warning

that this formulation has “problems of precision” that may

make it difficult to apply. Williams, 529 U.S. at 408.

We must consider “whether the state court’s application of

clearly established federal law was objectively unreason-

able.” Id. at 409; see Harrington v. Richter, 131 S. Ct. 770,

786-87 (2011) (“As a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the

state court’s ruling on the claim being presented in federal

court was so lacking in justification that there was an error

well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.”).

Here, the state court of appeals correctly identified the

governing legal rules in Crawford but unreasonably applied

those rules to the facts of Jones’ case. The state court

applied a “course of investigation” exception to Jones’ case

so excessively broad as to allow the admission of testimo-

nial hearsay whenever a defendant attempts to challenge

the strength of the evidence or the veracity of the prosecu-

tion’s witnesses against him. In doing so, the state court of

appeals also failed to follow the limitations that Bruton

v. United States, 391 U.S. 123 (1968), and Tennessee v. Street,

471 U.S. 409 (1985), place on the admissibility of statements

such as Lewis’, the substance of which was Parks’ confes-

sion of his own involvement in the murders, a confession

that also directly implicated Jones in the crimes.

No. 09-3577 23

1. The “Course of Investigation” Exception

In an attempt to justify the state appellate court’s treat-

ment of the Lewis statement, the State notes our decisions

holding that an informant’s out-of-court statement to law

enforcement is not hearsay if that statement is offered into

evidence “as an explanation of why the [subsequent]

investigation proceeded as it did.” E.g., United States v.

Eberhart, 434 F.3d 935, 939 (7th Cir. 2009). Applying

this exception, we have rejected Sixth Amendment claims

premised on such statements on the grounds that non-

hearsay use of such statements does not violate the Con-

frontation Clause. See id.; United States v. Akinrinade,

61 F.3d 1279, 1283 (7th Cir. 1995). From these decisions, the

State argues, the state appellate court could reasonably (if

erroneously) have inferred that the introduction of Lewis’

statement into evidence to show the course of the investi-

gation did not violate Jones’ Confrontation Clause rights.4

4

In an attempt to preclude meaningful analysis of this issue,

the State argues that there is no “rule binding upon states

in interpreting their own rules of evidence in determining

whether . . . statements are or are not hearsay” for purposes of

the Sixth Amendment. In other words, the State argues that if it

adopted a rule narrowly defining hearsay — for example, by

excluding certain crimes from the hearsay rule as a matter of

public policy — the Confrontation Clause would not apply to any

out-of-court statements admitted under that rule because they

are not hearsay under state law. Cf. State v. Moua Her, 750

N.W.2d 258 (Minn. 2008) (adopting a short-lived “murder

exception” to the Confrontation Clause), vacated and remanded,

(continued...)

24 No. 09-3577

In making this argument, the State “has displayed so

egregious a misunderstanding” of our cases “that the

subject requires some explanation.” United States v. Reyes,

18 F.3d 65, 70 (2d Cir. 1994) (reversing convictions after

district court allowed hearsay confessions implicating

defendants on trial). Although an out-of-court statement

offered to show the reason a police investigation proceeded

as it did “could be said not to be [inadmissible] hearsay,”

the “reasons for [an] investigation [are] most assuredly

not something the Government [has] to prove to carry

its burden” of proof in a criminal trial. Mancillas, 580 F.2d

at 1309-10. Aside from those limited details necessary

to show “that the evidence [found] is actually relevant,”

United States v. Tanner, 628 F.3d 890, 903 n.5 (7th Cir. 2010),

the details of an investigation are generally “of only

minimal consequence to the determination of the action.”

Mancillas, 580 F.2d at 1310 (quotation marks omitted); see

4

(...continued)

Moua Her v. Minnesota, 129 S. Ct. 929 (2009). Not only would this

run directly counter to Crawford, which made clear that the Sixth

Amendment is not constrained by the “vagaries of the rules of

evidence” adopted by the states, see 541 U.S. at 61, but it would

also effectively nullify the Confrontation Clause in the state

courts, see id. at 51 (“Leaving the regulation of out-of-court

statements to the law of evidence would render the Confronta-

tion Clause powerless to prevent even the most flagrant inquisi-

torial practices.”). In other words, whether a statement is

hearsay for purposes of the Confrontation Clause is a matter of

federal law, not a matter of state evidentiary law. It is only

sensible then, that we look to our own interpretation of the

“course of investigation” rule to resolve the issues in this case.

No. 09-3577 25

United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998)

(questioning relevance of such testimony); Reyes, 18 F.3d

at 71 (noting that the “history of [an] investigation” is a

useful narrative device, but is “not relevant to the guilt or

innocence of the defendant”); Teague v. State, 314 S.E.2d

910, 912 (Ga. 1984) (“At heart, a criminal prosecution is

designed to find the truth of what a defendant did and, on

occasion, of why he did it. It is most unusual that a prose-

cution will properly concern itself with why an investigat-

ing officer did something.”); 2 McCormick on Evidence

§ 249 (6th ed.) (“The need for this evidence is slight . . . .”).

By the same token, the probative value of a tip on which

an investigation was based is “marginal, at best,” absent

perhaps a (relevant) allegation of police impropriety.

United States v. Lovelace, 123 F.3d 650, 653 (7th Cir. 1997);

see also United States v. Silva, 380 F.3d 1018, 1020 (7th

Cir. 2004) (noting in dicta that such a tip may perhaps be

relevant to “dispel an accusation that the officers were

officious intermeddlers staking out [a defendant] for

nefarious purposes”); Reyes, 18 F.3d at 70 (observing that

such evidence might “constitute appropriate rebuttal to

initiatives launched by the defendant”). Even when

the police have been accused of acting improperly, how-

ever, the relevance of law enforcement’s “reasons for

investigation” remains questionable. See Mancillas,

580 F.2d at 1310.

While such “course of investigation” evidence usually

has little or no probative value, the dangers of prejudice

and abuse posed by the “course of investigation” tactic are

significant. More than thirty years ago, we cautioned that

26 No. 09-3577

the “testimonial repetition of a declarant’s out-of-court

charge that the defendant would engage or was engaged

in specific criminality would seem to create too great a

risk” of prejudice and confusion than can be “justified

simply to set forth the background of the investigation.”

Mancillas, 580 F.2d at 1310. More recently, we pointed out

that an unthinking, expansive application of the “course of

investigation” exception would effectively undermine the

Confrontation Clause: “Allowing agents to narrate the

course of their investigations, and thus spread before juries

damning information that is not subject to cross-examina-

tion, would go far toward abrogating the defendant’s

rights under the sixth amendment and the hearsay rule.”

Silva, 380 F.3d at 1020. Consistent with these observations,

then, “the use of out-of-court statements to show back-

ground has been identified as an area of ‘widespread

abuse.’ ” United States v. Sallins, 993 F.2d 344, 346 (3d Cir.

1993); see 2 McCormick on Evidence § 249 (“One area

where abuse may be a particular problem involves state-

ments by arresting or investigating officers regarding the

reason for their presence at the scene of a crime.”).

Such statements offered to show “background” or “the

course of the investigation” can easily violate a core

constitutional right, are easily misused, and are usually no

more than minimally relevant. Courts asked to admit such

statements for supposed non-hearsay purposes must be on

the alert for such misuse. See Lovelace, 123 F.3d at 653. A

trial court should not “accept without scrutiny an offering

party’s representation that an out-of-court statement

is being introduced for a material non-hearsay purpose.”

Sallins, 993 F.2d at 346 (reversing conviction). Our col-

No. 09-3577 27

leagues on the Second Circuit have explained in reversing

a conviction on these grounds:

the mere identification of a relevant non-hearsay use of

such evidence is insufficient to justify its admission if

the jury is likely to consider the statement for the truth

of what was stated with significant resultant prejudice.

The greater the likelihood of prejudice resulting from

the jury’s misuse of the statement, the greater the

justification needed to introduce the “background”

evidence for its non-hearsay uses.

Reyes, 18 F.3d at 70.

For this reason, the “course of investigation” exception is

most readily applied to admit only those brief out-of-court

statements that bridge gaps in the trial testimony that

would otherwise substantially confuse or mislead the

jury. See Silva, 380 F.3d at 1020 (noting that this exception

may apply if “a jury would not otherwise understand why

an investigation targeted a particular defendant”). In

Eberhart, for example, we allowed DEA agents to testify

that an informant had identified his cocaine supplier as a

man known only as “E.” 434 F.3d at 937. Otherwise, it

would have been largely unclear why the agents had asked

that informant to call “E,” who turned out to be defendant

Eberhart. Id. at 939 & 940 n.1. Similarly, in Akinrinade,

we allowed testimony regarding an informant’s unsuccess-

ful attempt to telephone his accomplices because that

testimony helped explain why that informant had

been “directed . . . to place [additional] telephone calls to

Nigeria and Chicago.” 61 F.3d at 1283.

28 No. 09-3577

For such limited purposes, however, only a small amount

of information is legitimately needed in all but the rarest

cases. Under the “course of investigation” exception, we

typically allow only the briefest out-of-court statements.

See, e.g., United States v. Taylor, 569 F.3d 742, 748 (7th

Cir. 2009) (finding no plain error in admitting, without any

objection, witness’ statement that defendant “just took a

gun across the street” to explain officers’ actions);

United States v. Breland, 356 F.3d 787, 791-92 (7th Cir.

2004) (informant’s statement that “a ‘black male with

a bald head’ [was] dealing drugs from the residence

under surveillance”); United States v. Martinez, 939 F.2d

412, 415 (7th Cir. 1991) (government agent’s statement that

he “had information that ‘a man’ had offered to sell an

informant one-half kilogram of cocaine”).

A legitimate non-hearsay purpose most certainly does

not open the door for law enforcement officers to “narrate

the course of their investigations, and thus spread before

juries damning information that is not subject to

cross-examination.” Silva, 380 F.3d at 1020. Nor is it

necessary to put before the jury extensive “eyewitness

accounts of bad acts by the defendant that the jury would

not otherwise have heard.” United States v. Price,

458 F.3d 202, 210 (3d Cir. 2006). Unless the testimony at

issue “clarif[ies] noncontroversial matter without causing

unfair prejudice on significant disputed matters,” Reyes,

18 F.3d at 70, the best course of action is to exclude the

evidence altogether. If some brief item is truly necessary,

the court should redact a lengthy out-of-court statement to

the extent needed to ensure that its actual evidentiary

function is only the legitimate one for which it is being

No. 09-3577 29

admitted. Price, 458 F.3d at 210; see 2 McCormick on

Evidence § 249 (“[A] statement that an officer acted ‘upon

information received,’ or words to that effect, should be

sufficient.”).

Although the Indiana Court of Appeals invoked the

“course of investigation” exception to reject Jones’ Con-

frontation Clause claim, it took none of these consider-

ations into account. Certainly, none of the incriminating

substance of Lewis’ statement was necessary to bridge an

otherwise-inexplicable gap in the trial testimony or to

prevent the jury from being confused about some material

issue. See, e.g., Silva, 380 F.3d at 1020. To whatever extent

the prosecution feared that the jury would be confused if

it did not know exactly why the police started investigating

Jones, that fear could have been assuaged by as little as

a bare-boned statement that the police acted “on informa-

tion received from Jeffrey Lewis.” See 2 McCormick on

Evidence § 249. Yet the trial court made no effort to

exclude or redact any incriminatory details of Lewis’

double-hearsay statement. See Silva, 380 F.3d at 1020;

Price, 458 F.3d at 210.

The Indiana Court of Appeals also failed to appreciate

that, although it invoked the “course of investigation”

theory, its stated reasons for allowing Lewis’ statement

into evidence make sense only if that statement was

considered for the truth of its contents. As the appellate

court majority explained, it felt that Lewis’ statement was

necessary to prevent the jury from believing Jones’ claim

that “Aaron, whose credibility was in question, was the

only source of evidence against him.” Jones I, No. 45A03-

30 No. 09-3577

0407-CR-339, at 9. As Chief Judge Kirsch said so well in his

dissent, the majority essentially concluded that “because

the admissible evidence against Jones was weak, and Jones’

counsel noted such fact, it was proper to admit otherwise

inadmissible evidence.” Id. at 16. If the majority’s rea-

soning were correct, Judge Kirsch continued, “any

hearsay statement to police during the course of their

investigation would be admissible whenever a defendant

makes any comment on the evidence.” Id. at 17. For all

of these reasons, the “course of investigation” exception

could not be reasonably applied to admit the detectives’

detailed testimony about what Lewis told them he had

heard from Parks.

2. The Sixth Amendment, Bruton, and Accomplice Hear-

say

The Indiana Court of Appeals also failed to recognize the

significant Sixth Amendment interests implicated when, as

here, the out-of-court statement offered under the “course

of investigation” exception (or for any other purported

non-hearsay purpose, for that matter) is the confession of

a non-testifying accomplice. The Supreme Court’s jurispru-

dence on this subject reveals that the Sixth Amendment

imposes important limits on a court’s ability to admit such

a statement even when it can be introduced for a non-

hearsay purpose.

The hearsay evidence here was very similar to the

accomplice confession in Bruton v. United States, 391 U.S.

123 (1968). (The difference here is that there is one extra

layer of hearsay, since Parks, who supposedly confessed to

No. 09-3577 31

Lewis, did not talk directly with the detectives who

testified.) In Bruton, the Supreme Court showed just how

difficult it is to offer at trial a non-testifying accomplice’s

confession accusing the defendant of wrongdoing. In that

case, Bruton and his accomplice Evans were convicted of

armed postal robbery. Id. at 124. At their joint trial on that

charge, a postal inspector testified that Evans had con-

fessed that he and Bruton had committed the robbery. Id.

On appeal, the appellate court set aside Evans’ conviction

because his confession had been obtained without proper

Miranda warnings, but affirmed Bruton’s conviction

because the trial court had “instructed the jury that

although Evans’ confession was competent evidence

against Evans it was inadmissible hearsay against [Bruton]

and therefore had to be disregarded in determining

[Bruton’s] guilt or innocence,” id. at 125.5

5

The State argues that Jones waived any reliance on Bruton by

failing to invoke that case in state court or in his habeas petition.

In other words, while the State concedes that we may address

Jones’ Confrontation Clause claim, it argues that we may weigh

that claim only in light of the cases Jones has previously

mentioned by name. This argument is without merit. Although

a constitutional claim may be considered on habeas review only

if it was first fairly presented to the state courts, that rule “does

not require a hypertechnical congruence between the claims

made in the federal and state courts; it merely requires that the

factual and legal substance remain the same.” Anderson v. Benik,

471 F.3d 811, 814-15 (7th Cir. 2006) (citations omitted). The

substance of Jones’ Sixth Amendment claim has remained

unchanged, though the additional support from Bruton is new.

32 No. 09-3577

The Supreme Court reversed Bruton’s conviction because

the introduction of Evans’ confession into evidence vio-

lated Bruton’s own Sixth Amendment right to confront

Evans regarding the substance of that confession. The

Court pointed out that Evans’ confession was “legitimate

evidence against Evans and . . . was properly before the

jury during its deliberations.” Id. at 127. As a result, there

existed a substantial likelihood that the jury believed

that Evans had “made the statements and that they were

true—not just the self-incriminating portions but those

implicating [Bruton] as well.” Id. “Plainly,” the Court

concluded, “the introduction of Evans’ confession added

substantial, perhaps even critical, weight to the Govern-

ment’s case in a form not subject to cross-examination,

since Evans did not take the stand.” Id. at 127-28.

In reversing Bruton’s conviction, the Court made clear

the extraordinary dangers posed when an accomplice’s

confession—one directly implicating the accused in

wrongdoing—is put before a jury without affording the

accused an opportunity to cross-examine that accomplice.

“Not only are [such] incriminations devastating to the

defendant but their credibility is inevitably suspect, a fact

recognized when accomplices do take the stand and the

jury is instructed to weigh their testimony carefully given

the recognized motivation to shift blame to others.” Id.

at 136. That inherent unreliability “is intolerably com-

pounded when the alleged accomplice . . . does not testify

and cannot be tested by cross-examination. It was against

such threats to a fair trial that the Confrontation Clause

was directed.” Id. Bruton makes clear that the protections

of the Confrontation Clause are at their zenith whenever,

No. 09-3577 33

as is the case here, the prosecution offers into evidence a

non-testifying hearsay declarant’s confession that names

the accused as his partner in crime.6

The Supreme Court’s decision in Tennessee v. Street,

471 U.S. 409 (1985), illustrates the point and shows just

how difficult it is to introduce such a confession into

evidence without running afoul of the Confrontation

Clause. In that case, the prosecution had relied heavily on

Street’s “detailed confession” as evidence that he had

murdered his neighbor in the course of a robbery. Id.

at 411. At trial, Street testified that his so-called confession

was not his own, but had been derived from a written

statement that alleged accomplice Peele had previously

given to law enforcement. Id. To rebut this specific accusa-

tion, the prosecution had one of its witnesses read Peele’s

statement to the jury to illustrate the differences between

that statement and Street’s confession. Id. at 411-12.

In rejecting Street’s claim that the testimony concerning

Peele’s statement had violated his constitutional right to

confront Peele, the Supreme Court noted that the

“nonhearsay aspect of Peele’s confession—not to prove what

happened at the murder scene but to prove what happened

when [Street] confessed—raises no Confrontation Clause

concerns.” Id. at 414. (Street is most commonly cited for this

principle. See, e.g., Crawford, 541 U.S. at 59 n.9.) The

6

The use of a non-testifying accomplice’s confession against Sir

Walter Raleigh in seventeenth century England set in motion the

series of legal reforms eventually resulting in the Confrontation

Clause itself. See Crawford, 541 U.S. at 44-46.

34 No. 09-3577

Court acknowledged that Peele’s statement “could have

been misused by the jury” as hearsay evidence, but the

Court rejected this possibility because the jury had been

“pointedly instructed by the trial court ‘not to consider the

truthfulness of [Peele’s] statement in any way whatso-

ever.’” Id. at 414-15 (alteration in original).

This conclusion was in obvious tension with the Court’s

decision in Bruton, which Street distinguished on the

grounds that, “unlike the situation in [that case], there

were no alternatives [here] that would have both assured

the integrity of the trial’s truth-seeking function and

eliminated the risk of the jury’s improper use of evidence.”

Street, 471 U.S. at 415. In particular, the Court noted that it

simply was not possible to have “edited [Peele’s confes-

sion] to reduce the risk of jury misuse without detracting

from the alleged purpose for which the confession was

introduced.” Id. (quotation omitted). By editing that

statement, the Court noted, the trial court “would have

undercut the theory of defense by creating artificial

differences between [Street’s] and Peele’s confessions.” Id.

at 416.

Street teaches that the non-hearsay use of a statement

generally does not implicate the protections of the Con-

frontation Clause, but that another person’s out-of-court

confession directly implicating the accused is nevertheless

so inherently prejudicial that its misuse as hearsay remains

a strong possibility. To negate that possibility, a court

admitting such a statement should always “pointedly

instruct” the jury that the confession is to be used not for

its truth, but only for a non-hearsay purpose. See id. at 414-

No. 09-3577 35

15. Before admitting the confession for a non-hearsay

purpose, the court must exclude or redact the confession to

whatever extent it is possible to do so “without detracting

from the alleged [non-hearsay] purpose for which the

confession was introduced.” See id. at 415 (quotation

omitted); Gray v. Maryland, 523 U.S. 185, 192 (1998) (“Un-

less the prosecutor wishes . . . to abandon use of the

confession, he must redact the confession to reduce

significantly or to eliminate the special prejudice that the

Bruton Court found.”). Such exclusion or redaction, if

possible, can go a long way to ensure that a confession’s

irrelevant or inflammatory details do not distract the jury

from the narrow purpose for which it might legitimately

consider that confession and to ensure that the jury will

follow a limiting instruction. See Richardson v. Marsh,

481 U.S. 200, 211 (1987) (holding that the Confrontation

Clause is not violated by the admission of a non-testifying

accomplice’s confession if a proper limiting instruction has

been given and “the confession is redacted to eliminate not

only the defendant’s name, but any reference to his or her

existence”).

Street also teaches that a non-testifying accomplice’s

confession can be admitted only if, in light of the inherent

unreliability of accomplice confessions implicating the

accused, see Bruton, 391 U.S. at 136, the asserted non-

hearsay purpose actually advances the compelling interests

at the heart of the Court’s analysis in that case: “the

integrity of the trial’s truth-seeking function” and the

“accuracy of the truth-determining process.” See Street,

471 U.S. at 415 (quotation omitted). This final consideration

is easily the most important. Under the very unusual

36 No. 09-3577

circumstances in Street, the only way to rebut Street’s (false)

allegations of fabrication was to introduce the substance

of the accomplice’s confession that implicated Street in

the murder to show the differences.

Bruton and Street help demonstrate that the Indiana

Court of Appeals unreasonably applied Crawford to the

facts of Jones’ case. Lewis’ statement—the recitation of a

confession he purportedly received from his brother—was

actually offered into evidence to prove the truth of its

contents. Bruton makes clear that Jones’ right to confront

Lewis and Parks about that confession was violated by

Lewis’ and Parks’ failure to testify at trial and to subject

their testimony to the “crucible of cross-examination.”

Crawford, 541 U.S. at 61; see United States v. Souffront,

338 F.3d 809, 828 (7th Cir. 2003). The need for cross-exami-

nation was compelling here. The already inherent unreli-

ability of a confession casting blame on another, see Bruton,

391 U.S. at 136, is only magnified when, as here, the

confession is filtered through two layers of hearsay: Parks

to Lewis, Lewis to Detectives Jackson and Davis, and then

Jackson and Davis to the jury.

Even if Lewis’ statement had actually been offered by the

prosecution to prove only a collateral issue, not as direct

evidence of Jones’ guilt, that statement was clearly inad-

missible under Street. First, the trial court’s meager instruc-

tions to the jury were lacking. Limiting instructions were

given in regard to only three specific answers by Jackson.

Tr. 1334, 1353, 1390. None were given at all regarding

Davis’ testimony. Tr. 571- 607. Such a halfhearted effort

to instruct the jury properly could not be construed as

No. 09-3577 37

a “pointed instruction” that the jury not consider Lewis’

statement for its truth. See Street, 471 U.S. at 414-15.7

More fundamental, unlike the trial court in Street, the

court here did not face a rare circumstance in which

testimony regarding the substance of Lewis’ statement was

needed to preserve the integrity of the trial’s truth-seeking

function. See id. at 415. As explained above, the reasons the

police began investigating Jones were not relevant to the

issue of Jones’ guilt or innocence. Even if they were

somehow relevant, those reasons could have been ade-

quately explained by as little as a brief statement that the

officers had acted on “information received from an

informant.”

The trial court simply made no effort to limit the testi-

mony about Lewis’ statement to prevent the jury from

considering that statement as substantive evidence of

Jones’ guilt. See id.; Richardson, 481 U.S. at 211. Rather, it

allowed the prosecution free rein to introduce as much of

Lewis’ statement as it saw fit, even going so far as to give

Jones’ attorney the shocking warning that, if she continued

7

We find no merit in the State’s claim that the fault for this

failure to instruct the jury properly rests with Jones for not

immediately suggesting a limiting instruction. The prosecution

told the trial court that it offered Lewis’ statement only to show

the course of the police investigation — certainly, that was

enough to make the court aware of the necessity of a limiting

instruction. The much wider actual uses of Lewis’ statement also

belie the State’s claims regarding the effectiveness of the very

few limiting instructions actually given.

38 No. 09-3577

“asking questions that call [the police] investigation into

question . . . pretty soon all of the information they arrived

at . . . in the course of [that] investigation is going to end up

coming in.” Tr. 1434 (emphasis added).

In deeming Crawford inapplicable, the Indiana Court of

Appeals rested its analysis on a profound misunderstand-

ing of both the record and the “course of investigation”

exception it purported to apply. As a result of that misun-

derstanding, the state court so broadened that exception

as to effectively allow inadmissible hearsay into evidence

whenever a defendant challenges the weight or credibility

of the admissible evidence against him. The state court also

disregarded the teachings of Bruton, which flatly bars the

admission of accomplice confessions such as Parks’ absent

an opportunity for cross-examination, and of Street,

which sharply limits the circumstances in which such a

confession may be introduced into evidence for a non-

hearsay purpose. The state court’s failure to apply Crawford

to the facts of this case was “so lacking in justification” as

to constitute an “error well understood and comprehended

in existing law beyond any possibility for fairminded

disagreement,” as required for habeas relief under AEDPA.

See Harrington, 131 S. Ct. at 786-87.

VI. Harmless Error?

Finally, the State argues that any violation of Jones’ Sixth

Amendment rights was harmless. On habeas review, a

constitutional error is considered harmless unless it can be

shown to have “ ‘had substantial and injurious effect or

influence in determining the jury’s verdict.’ ” Brecht v.

No. 09-3577 39

Abrahamson, 507 U.S. 619, 622 (1993), quoting Kotteakos

v. United States, 328 U.S. 750, 776 (1946); see O’Neal

v. McAninch, 513 U.S. 432, 439 (1995) (affirming

that Kotteakos standard applies “in its entirety” to harmless

error analysis on habeas review). We apply this “actual

prejudice” standard regardless of whether the state

appellate court determined that the error was harmless

beyond a reasonable doubt under Chapman v. California,

386 U.S. 18 (1967). Fry v. Pliler, 551 U.S. 112, 121-22 (2007).8

Under Brecht, if a habeas court has so much as a “grave

8

Technically, if the state courts have conducted their own

harmless-error analysis on direct review, “the federal court must

decide whether that analysis was a reasonable application of the

Chapman standard” under AEDPA before applying the

Brecht standard. Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir.

2009); see Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam)

(“[H]abeas relief is appropriate only if the [state court] applied

harmless-error review in an ‘objectively unreasonable’ man-

ner.”). As the Supreme Court has explained, however, “it

certainly makes no sense to require formal application of both

tests (AEDPA/Chapman and Brecht) when the latter obviously

subsumes the former.” Fry, 551 U.S. at 120. This is because the

AEDPA/Chapman standard is “more liberal” than the Brecht

standard — in other words, any error sufficiently harmful to

satisfy the Brecht “actual prejudice” standard could be deemed

harmless beyond a reasonable doubt only by unreasonably

applying Chapman. See id. at 119-20. Because we conclude below

that the placement of Lewis’ statement before the jury caused

Jones “actual prejudice” under Brecht, the state court of appeals’

application of Chapman harmless error analysis was clearly

unreasonable as well.

40 No. 09-3577

doubt as to the harmlessness of [a constitutional error], it

should grant relief.” O’Neal, 513 U.S. at 445. In conducting

this analysis, we look to“a host of factors,” such as “the

importance of the witness’ testimony in 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, the extent of

cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.” Delaware v.

Van Arsdall, 475 U.S. 673, 684 (1986).

From the outset, we have little doubt that Detectives

Davis’ and Jackson’s testimony regarding Lewis’ statement

had a particularly “substantial and injurious effect” on the

jury’s verdict. Brecht, 507 U.S. at 622. At its core, that

testimony was nothing but a thinly-veiled introduction of

additional, but inadmissible, evidence of Jones’ guilt. As

the prosecution explained to the trial court, the detectives

would testify that:

Jeffrey Lewis is the brother of James Parks. James

Parks told his brother, on the 19th, what happened,

who did what, and why they were there. Whose idea it

was to go and what they expected to find and exactly

what happened. Also he then tells who shot the lady

and the baby and that there was a bullet that went

through the lady, through the baby and through the

couch and on the floor. Mr. Lewis was so overcome by

his emotion after hearing what he heard from his

brother on the 19th, just two days [after] the killings,

that he contacted the Gary Police Department and told

them that it was—were it not for the baby and the

No. 09-3577 41

lady—that he just had to inform the police. . . . Detec-

tive Jackson takes the information, follows up with the

information, it is verified. Mr. Lewis also told about

Shawn Dixon purchasing the AK . . . in December. That

information is verified. The detectives then followed

the trail that lead them to the defendants . . . .

Tr. 1250-51. It therefore comes as no surprise that the

appellate court concluded that this testimony “pointed

toward [Jones’] guilt” and “had great prejudicial impact

since it suggested that Jones committed the quadruple

homicide.” Jones I, No. 45A03-0407-CR-339, at 7. In fact,

our only complaint with that characterization is that it

understates the prejudicial impact of Lewis’ statement,

which essentially served as a roadmap to the prosecution’s

entire case against Jones:

This is not a case in which [a defendant] seeks reversal

of his convictions on the basis of one or two inconse-

quential pieces of hearsay, perhaps inadvertently

elicited by the government. On the contrary, [this]

hearsay testimony was deliberately elicited, it was

extensive, and [it] graphically portrayed [the defen-

dant] as a despicable character . . . .

United States v. Check, 582 F.2d 668, 683 (2d Cir. 1978).

Given that Detectives Davis and Jackson conveyed to the

jury “the substance, indeed, the minutiae” of Lewis’

statement, it is obvious that Jones was prejudiced by the

prosecution’s “unabashed use” of their testimony. Id.

Despite this, the district court and the state appellate

court both concluded that any error was harmless because

“ ‘Detective Jackson’s testimony was not the only testimony

42 No. 09-3577

that pointed toward [Jones’] guilt.’ ” Jones v. Finnan, No. 09-

cv-052, at 4, quoting Jones I, No. 45A03-0407-CR-339, at 7.

Both courts failed to apply the correct legal standard.

Both seem to have simply imagined what the record would

have shown without Lewis’ statement and asked whether

the remaining evidence was legally sufficient to sustain a

finding of guilt. That analysis ignores the significant

prejudicial effect the error can have on a jury’s ability

to evaluate fairly the remaining evidence. That analysis

also offers prosecutors no real incentive to comply with the

Constitution so long as any evidence not admitted in error

is legally sufficient to sustain a conviction. For that reason,

under Brecht, the harmless-error “inquiry cannot be merely

whether there was enough [evidence] to support the result,

apart from the phase affected by the error. It is rather, even

so, whether the error had substantial influence” in light of

the entire record. Kotteakos, 328 U.S. at 765; Brecht, 507

U.S. at 638. This principle holds true under the Chapman

analytical framework as well. See Sullivan v. Louisiana,

508 U.S. 275, 279 (1993) (“The inquiry [under Chapman] is

not whether, in a trial that occurred without the error,

a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial

was surely unattributable to the error.”).

If the district court and the state appellate court had not

overlooked this principle, they would likely have recog-

nized Lewis’ statement’s substantial effect on the jury’s

evaluation of Aaron’s credibility. There was no physical

evidence—blood, ballistics evidence, DNA, etc.—or other

testimony directly placing Jones at the scene of the killings.

No eyewitness other than Aaron testified that Jones was

No. 09-3577 43

even at the scene that night. Aaron’s testimony was central

to the case against Jones. Jones had to convince the jury

that Aaron could not be trusted.

And Aaron’s credibility was indeed questionable. Aaron

had agreed to testify in exchange for an extraordinarily

favorable plea agreement that took off the table all four

murder charges against him. Parts of Aaron’s story were

either arguably inconsistent with the other evidence, or

inherently unbelievable, such as his claim that A.M. never

cried despite the gunfire in the residence. Aaron’s self-

serving attempts to minimize his role in the shoot-

ings—particularly his claim that, despite bringing an AK-

47 assault rifle to McClendon’s apartment, he never fired

a single shot—cast his credibility even further into doubt.

By allowing the jury to hear the substance of Lewis’

statement (actually, the substance of Parks’ purported

confession to Lewis, as relayed to the detectives) to

bolster Aaron’s credibility, and by bolstering Lewis’ own

credibility (which should have been irrelevant, if his

statement was offered only to explain the “course of the

investigation”) with his self-proclaimed motive for going

to the police, the prosecution made it much more likely

that the jury would resolve any doubts about Aaron’s

credibility in favor of a conviction. Lewis’ statement and

Aaron’s testimony were similar in a number of significant

details. Both placed Jones at a party with Aaron and Parks

the night of the shooting, Tr. 1041-44, 1354-55; both de-

scribed the shootings as financially-motivated, Tr. 1049,

1355-56, 1394, 1448; both said that Jones had knocked on

the door of McClendon’s apartment to gain entry, Tr. 1060,

44 No. 09-3577

1447; both said that an AK-47 had been used during the

shootings, Tr 1053, 1341-42, 1445; and both said that Parks

had taken the AK-47 away from Aaron while they were in

the apartment. Tr. 1061, 1086, 1445-46.

The prosecution made sure that the jury was aware of

these similarities. During its redirect examination of

Detective Jackson, the prosecutor asked if Jackson had

heard Aaron’s testimony regarding “some words ex-

changed between [Aaron] and Parks at the time” Parks

took the AK-47 from Aaron. Jackson confirmed that he had

heard this testimony and informed the jury that he had

received the same information from Lewis. Tr. 1446. The

prosecution then tried to reinforce Lewis’ credibility by

eliciting testimony that his statement contained informa-

tion known only to law enforcement and the people who

were actually in McClendon’s apartment. Tr. 1341, 1449.

“[B]y incorporating [this] hearsay into [its] testimony, the

government received the benefit of having, in effect, an

additional witness . . . while simultaneously insulating

from cross-examination that witness, a witness [who]

we can safely assume would have been subjected to a

scathing, and perhaps effective cross-examination

by defense counsel.” Check, 582 F.2d at 683. Given

the obvious importance of Aaron’s testimony, it is

simply impossible to believe that this improper use of

Lewis’ statement to bolster Aaron’s credibility was harm-

less, given the lack of other direct evidence of Jones’

involvement in the killings. See, e.g., United States

v. Williams, 133 F.3d 1048, 1053 (7th Cir. 1998) (holding

that “actual prejudice” had been shown where govern-

ment’s evidence “was bolstered by inadmissible hearsay”).

No. 09-3577 45

In a final attempt to prove that Lewis’ statement was

harmless, the State argues that the trial court’s limiting

instructions were sufficient to render any error here

harmless. This argument is meritless. It is based on the

clear misreading of the trial record that is evident in both

the state appellate opinion and the district court opinion.

Contrary to those courts’ statements, the trial court made

only a minimal effort to instruct the jury about the proper

use of Lewis’ statement. When Detective Davis was

testifying, the trial court never gave a limiting instruction.

See Tr. 571- 607. During Detective Jackson’s testimony, the

court gave a limiting instruction only three times, and each

of those instructions addressed only Jackson’s answers to

specific questions. Tr. 1334, 1353, 1390. The court’s final

jury instructions made no mention of either Lewis’ state-

ment or the detectives’ testimony. The few instructions that

were given during Jackson’s testimony were not sufficient

to inform the jury that it could consider the extensive and

detailed testimony regarding Lewis’ statement only for a

collateral purpose rather than for its truth.

And even if the court had given repeated instructions

on the subject, they would not have rendered harmless

such a seriously prejudicial error. As we said in Lovelace, a

jury is unlikely to heed a limiting instruction that asks the

jury to disregard a hearsay statement that is “overwhelm-

ingly incriminating.” 123 F.3d at 654; see United States v.

Ochoa-Zarate, 540 F.3d 613, 620 (7th Cir. 2008) (stating that

the presumption that a jury will follow instructions

is overcome when there is an “overwhelming probabil-

ity” that the jury was unable to follow that instruction).

And Bruton makes clear that the prejudice caused by the

46 No. 09-3577

recitation of an accomplice’s out-of-court confession

implicating the accused cannot be cured by a mere jury

instruction. Bruton, 391 U.S. at 135-36 (deeming the

“powerfully incriminating extrajudicial statements of”

an accomplice a circumstance in which “the risk that the

jury will not, or cannot, follow instructions is so great, and

the consequences of failure to vital to the defendant, that

the practical and human limitations of the jury system

cannot be ignored”); see Gray, 523 U.S. at 192 (“Bruton . . .

holds that certain powerfully incriminating extrajudicial

statements of a codefendant—those naming another

defendant—considered as a class, are so prejudicial that

limiting instructions cannot work.”) (quotations omitted).

To think that any amount of instruction would enable a

jury to disregard the damning substance of an out-of-court

statement like the one at issue here—a lengthy statement

setting forth a detailed account of an accomplice’s confes-

sion implicating Jones in a particularly heinous crime—

and to consider that statement only for some marginally-

relevant collateral purpose simply defies human nature,

particularly if the jury had any doubts about the suffi-

ciency of the other evidence against Jones. Cf. Jackson v.

Denno, 378 U.S. 368, 388 (1964) (“If there are lingering

doubts about the sufficiency of the other evidence, does the

jury unconsciously lay them to rest by resort to the confes-

sion? Will uncertainty about the sufficiency of the other

evidence to prove guilt beyond a reasonable doubt actually

result in acquittal . . . ?”). As Justice Cardozo once aptly

said, “Discrimination so subtle is a feat beyond the com-

pass of ordinary minds. The reverberating clang of those

No. 09-3577 47

accusatory words would drown all weaker sounds.”

Shepard v. United States, 290 U.S. 96, 104 (1933).9

In sum, we conclude that the testimony regarding Lewis’

statement had a substantial influence on the jury’s guilty

verdict, as required to grant habeas relief under Brecht.

VII. Conclusion

Perhaps Jones is guilty of the crimes with which he has

been charged. From the evidence presented at trial, that is

a distinct possibility. “We may not, however, vitiate

constitutional guarantees when they have the effect

of allowing the guilty to go free.” Davis, 547 U.S. at 833.

In this case, the Constitution demands that Jones have

an opportunity to confront Parks if his statements to

Lewis, as reported to the police detectives, are to be

used as evidence against Jones. The Constitution makes

no exception for Jones because the prosecution’s star

witness was unsavory, because the prosecution’s case

was otherwise weak, or because Jones was accused of

especially heinous crimes.

9

This is perhaps best illustrated by the jury’s demonstrated

interest in the substance of Lewis’ statement. Under Indiana

procedure, the jury was allowed to ask Detective Jackson ques-

tions at trial, a number of which involved Lewis’ statement. The

jury asked Jackson, among other things, how much money

Lewis said Jones had taken from McClendon’s apartment, Tr.

1455, and whom Lewis said that Parks had told to “finish off”

Laurice Jones. The jury also showed a decided interest in Lewis’

credibility, asking who Lewis had received his information

from and whether Lewis was friends with Aaron. Tr. 1459.

48 No. 09-3577

We R EVERSE and R EMAND this matter with instructions

to the district court to grant Jones’ habeas petition pursu-

ant to 28 U.S.C. § 2254, directing the State of Indiana to

release Jones within 120 days of the issuance of the man-

date unless the State elects to retry Jones within that time.

3-31-11