Denny, Jeffrey C. v. Gudmanson, Donald W.

In the

United States Court of Appeals

For the Seventh Circuit

No. 98-4275

Jeffrey C. Denny,

Petitioner-Appellant,

v.

Donald Gudmanson,

Respondent-Appellee.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 97 C 405--Charles N. Clevert, Judge.

Argued March 30, 2001--Decided May 18, 2001

Before Flaum, Chief Judge, and Posner and

Evans, Circuit Judges.

Flaum, Chief Judge. After the Supreme

Court handed down its decision in Cruz v.

New York, 481 U.S. 186 (1987), Jeffrey

Denny sought to have his 1982 murder

conviction overturned. Jeffrey argued

that, according to Cruz, the admission of

his brother’s inculpatory statements at

their joint trial in 1982 constituted a

violation of the Confrontation Clause of

the Sixth Amendment. The Wisconsin trial

court denied Jeffrey’s motion, and the

Court of Appeals of Wisconsin affirmed

that decision. State v. Denny, 163 Wis.

2d 352 (Ct. App. 1991). When the Supreme

Court of Wisconsin denied Jeffrey’s

appeal, State v. Denny, 474 N.W.2d 107

(Wis. 1991), he sought habeas relief in

the District Court for the Eastern

District of Wisconsin. While the district

court concluded that there has been a

violation of Cruz, it agreed with the

state court of appeals that any error was

harmless. Thus, the court denied

Jeffrey’s petition for habeas relief. We

granted a certificate of appealability to

resolve the issues of whether the

admission of Jeffrey’s brother’s

inculpatory statements at their joint

trial violated Cruz, and, if so, whether

that violation was harmless. For the

reasons stated herein, we affirm the

district court’s denial of habeas relief.

I. BACKGROUND

On January 16, 1982, Christopher Mohr

was found dead, the victim of fifty-seven

stab wounds and multiple head traumas.

Though there were no eyewitnesses to the

murder, the police investigation

ultimately centered on Jeffrey Denny and

his brother Kent Denny. Subsequent to

Mohr’s slaying, both Jeffrey and his

brother made numerous inculpatory

statements, vaunting about the murder to

family members, friends, and

acquaintances. In due time, those

statements caught up with the pair, as

they were arrested and scheduled to be

tried jointly for first degree murder.

On August 27, 1982, at a pretrial

hearing, Jeffrey objected to the

admission of statements made by Kent

which implicated Jeffrey in the crime,

and further moved to sever his trial from

that of his brother. The trial court,

relying on the plurality opinion of the

Supreme Court in Parker v. Randolph, 442

U.S. 62 (1979) denied the motion, finding

that the prosecution intended to present

testimony of "interlocking" inculpatory

statements by both co-defendants. At

their joint trial, neither co-defendant

testified, though numerous witnesses

testified as to Kent and Jeffrey’s

confessions. The trial culminated on

November 16, 1982, with a judgment of

conviction being entered against Jeffrey

on one count of first degree murder under

Wis. Stat sec. 940.01./1 On December 5,

1984, in an unpublished order, the

Wisconsin Court of Appeals affirmed

Jeffrey’s conviction.

In 1987, the Supreme Court revisited the

issue of interlocking confessions in the

case of Cruz, 481 U.S. 186. Contrary to

the plurality decision in Parker--which

the Wisconsin courts had relied on in

denying Jeffrey’s motion--a majority of

the Court in Cruz determined that, in a

joint trial, the interlocking nature of

confessions did not preclude a

Confrontation Clause violation.

Thereafter, Jeffrey filed a motion for a

new trial under Wis. Stat. sec. 974.06,

arguing that the admission of Kent

Denny’s confessions violated his rights

under the Confrontation Clause of the

Sixth Amendment as interpreted in the

Supreme Court’s decision of Cruz. A

hearing was held on the matter, and on

April 24, 1990, the trial court denied

Jeffrey’s motion. That decision was

affirmed by the Wisconsin Court of

Appeals on May 15, 1991. See Denny, 163

Wis.2d. at 352. The court noted in its

decision that Cruz would require reversal

only if Kent Denny’s statements which

incriminated Jeffrey were not directly

admissible against Jeffrey at their joint

trial. However, because the court

concluded that the statements were

directly admissible against Jeffrey--as

falling within the "firmly-rooted"

hearsay exception of statements against

interest--the court found that the

Confrontation Clause posed no bar to the

admission of those declarations. See id.

at 358. Additionally, the court stated

that because of the overwhelming evidence

of guilt, any error in admitting the

statements of Kent Denny would be

considered harmless. See id. at 359-60.

Thereafter, the Wisconsin Supreme Court

denied Jeffrey’s appeal. State v. Denny,

474 N.W.2d at 107.

On April 18, 1997, Jeffrey filed a

petition for a writ of habeas corpus with

the United States District Court for the

Eastern District of Wisconsin,

challenging the admission of the

inculpatory statements made by Kent Denny

on the ground that the admission violated

the Confrontation Clause. On December 2,

1998, the district court denied

Jeffrey’s habeas petition. In doing so,

the district court first noted that

admission of Kent Denny’s statement

through third parties did in fact violate

Jeffrey’s rights under the Confrontation

Clause. Specifically, the court ruled

that the out-of-court statements did not

come within a firmly-rooted exception to

the hearsay rule, and were therefore

admitted in violation of Jeffrey’s right

of confrontation. However, because the

court was convinced beyond a reasonable

doubt that the jury would have convicted

Jeffrey absent Kent Denny’s statement,

the court found the error to be harmless.

This Court issued a Certificate of

Appealability on March 29, 2000, on the

following issues:

1. Whether the introduction of Denny’s

non-testifying co-defendant’s confession

through the testimony of third-party

witnesses violated Cruz v. New York, 481

U.S. 186 (1987)?

2. If Cruz was violated, was the error

harmless?

Because the district court found that

there had been a Cruz violation, Jeffrey

does not contest that ruling. Jeffrey

does challenge, however, the district

court’s finding that any error in

admitting Kent’s statements constituted

harmless error. Specifically, Jeffrey

asserts that the district court

improperly analyzed the harmlessness

question under an inappropriate

standard.

II. DISCUSSION

A. Standard of Review

Because the habeas petition in this case

was filed after the effective date of the

Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), 28 U.S.C. sec.

2254, the standard of review contained in

the Act governs Jeffrey’s claims. See

Lindh v. Murphy, 521 U.S. 320, 322-23

(1997). AEDPA provides, in relevant part,

that habeas relief may be granted only if

the adjudication of the claim by the

state court "resulted in a decision that

was contrary to, or involved an

unreasonable application of, clearly

established Federal law, as determined by

the Supreme Court of the United States."

28 U.S.C. sec. 2254(d)(1). In Williams v.

Taylor, 529 U.S. 362 (2000), the Supreme

Court expounded on this standard,

asserting that a state court decision is

"contrary to" Supreme Court precedent "if

the state court applies a rule that

contradicts the governing law set forth

in [Supreme Court] cases," or "if the

state court confronts a set of facts that

are materially indistinguishable from a

decision of [the Supreme] Court and

nevertheless arrives at a result

different from [Supreme Court]

precedent." Id. at 405; see also Anderson

v. Cowan, 227 F.3d 893, 896 (7th Cir.

2000). As for the "unreasonable

application" portion of the statute, the

Court interpreted the phrase to encompass

the situations where "the state court

identifies the correct governing legal

rule from [the Supreme Court’s] cases but

unreasonably applies it to the facts of

the particular state prisoner’s case," or

"the state court either unreasonably

extends a legal principle from [Supreme

Court] precedent to a new context where

it should not apply or unreasonably

refuses to extend that principle to a new

context where it should apply." Williams,

529 U.S. at 407.

In an appeal from a ruling on a petition

for habeas relief, we review the district

court’s findings of fact for clear error

and its rulings on issues of law de novo.

See Foster v. Schomig, 223 F.3d 626, 634

(7th Cir. 2000), cert. denied, Foster v.

Neal, 121 S.Ct. 1407 (2001). When the

case falls under sec. 2254(d)(1)’s

"contrary to" clause, we review the state

court decision de novo to determine the

legal question of what is clearly

established law as determined by the

Supreme Court and whether the state court

decision is "contrary to" that precedent.

See Anderson, 227 F.3d at 896; see also

Schaff v. Snyder, 190 F.3d 513, 522 (7th

Cir. 1999). However, when the case fits

within the "unreasonable application"

provision of sec. 2254(d)(1), we defer to

a reasonable state court decision. See

Anderson, 227 F.3d at 896-97. State court

factual findings that are reasonably

based on the record are accorded a

presumption of correctness. See 28 U.S.C.

sec. 2254(e)(1); Kurzawa v. Jordan, 146

F.3d 435, 440 (7th Cir. 1998).

B. Confrontation Clause Violation

The Confrontation Clause of the Sixth

Amendment guarantees the right of a

criminal defendant "to be confronted with

the witnesses against him." The Supreme

Court has held that the guarantee, which

is extended against the states by the

Fourteenth Amendment, includes the right

to cross-examine witnesses. See Pointer

v. Texas, 380 U.S. 400, 404 (1965).

Therefore, in Bruton v. United States,

the Court found that where two or more

defendants are tried jointly, the

pretrial confession of one of them that

implicates the other is not admissible

against the other unless the confessing

defendant waives his Fifth Amendment

right so as to permit cross-examination.

391 U.S. 123, 12-28 (1968). In Parker,

the Supreme Court decided a case which

resembled Bruton, save one large wrinkle:

each of the jointly tried defendants had

himself confessed, his own confession was

introduced against him, and his

confession recited essentially the same

facts as those of his nontestifying code

fendant. A plurality of the Court

determined that the admission of

interlocking confessions,/2 with proper

limiting jury instructions, did not

violate the Confrontation Clause. In so

deciding, the plurality understood Bruton

to hold that the Confrontation Clause is

violated only when the introduction of a

codefendant’s confession is "devastating"

to the defendant’s case. However, when

the defendant has himself confessed, his

"case has already been devastated," 442

U.S. at 75 n.7, so that the codefendant’s

confession "will seldom, if ever, be of

the ’devastating’ character referred to

in Bruton," and impeaching that

confession on cross-examination "would

likely yield small advantage." Id. at 73.

At the time of Denny’s trial, Parker

represented the extent of the Supreme

Court’s guidance on the issue. Thus, when

Jeffrey first raised his Confrontation

Clause challenge to the admission of Kent

Denny’s statements, the Wisconsin courts

examined whether this case contained

interlocking confessions. Finding that

the statements made by Jeffrey and Kent

constituted interlocking confessions, the

courts concluded that there had been no

Confrontation Clause violation.

However, in 1987, the Supreme Court

revisited the issue of interlocking

confessions. In Cruz, the Court held that

"where a nontestifying codefendant’s

confession incriminating the defendant is

not directly admissible against the

defendant . . . the Confrontation Clause

bars its admission at their joint trial,

even if the jury is instructed not

toconsider it against the defendant, and

even if the defendant’s own confession is

admitted against him." 481 U.S. at 193.

Because the Court of Appeals had analyzed

the petitioner’s Confrontation Clause

claim under the Parker approach which the

Court rejected, the Court reversed and

remanded Cruz’s case. See id.

1. Hearsay Exception

Based on the Court’s decision in Cruz,

Jeffrey filed a motion for a new trial.

After the Wisconsin trial court denied

Jeffrey’s motion, the case, once again,

was before the Court of Appeals of

Wisconsin. The court concluded that

while, generally, a new rule should not

be applied retroactively to cases on

collateral review, the rule enunciated in

Cruz fell within one of the established

exceptions to that prescript. See Denny,

163 Wis.2d. at 357. However, the court

did not believe that application of Cruz

mandated reversal of Jeffrey’s

conviction. "Cruz would require reversal

only if Kent’s statements--which

incriminate Jeffrey--were not directly

admissible against Jeffrey at their joint

trial. We conclude that Kent’s statements

were directly admissible against his

brother Jeffrey and, therefore, were not

barred by the confrontation clause." Id.

As the basis of its determination that

the statements were directly admissible

against Jeffrey, the court of appeals

focused on the hearsay exception of

"statements against interest," which it

considered to be "firmly-rooted." See id.

In reviewing the petition for habeas

relief, the district court did not agree

with the Wisconsin Supreme Court’s

interpretation that Kent Denny’s

statements were directly admissible

against Jeffrey. The court noted that

although the confessions did in fact

constitute statements against interest,

that particular hearsay exception

"defines too large a class [of

statements] for meaningful Confrontation

Clause analysis, Lee v. Illinois, 476

U.S. at 544 n.5." Therefore, the court

determined that, in line with Lee, the

statements were presumptively unreliable.

See id. at 543.

We find that district court was correct

in its determination that Kent Denny’s

statements were not directly admissible

against Jeffrey merely because they

constituted "statements against

interest." As the Supreme Court has

commented, "[r]eflecting its underlying

purpose to augment accuracy in the

factfinding process by ensuring the

defendant an effective means to test

adverse evidence, the [Confrontation]

Clause countenances only hearsay marked

with such trustworthiness that there is

no material departure from the reason of

the general rule." Ohio v. Roberts, 448

U.S. 56, 65 (1980) (internal citation

omitted). It is true that hearsay rules

and the Confrontation Clause are

generally designed to protect similar

values, see California v. Green, 399 U.S.

149, 155 (1970), and stem from the same

roots, see Dutton v. Evans, 400 U.S. 74,

86 (1970). However, simply because a

statement falls within a hearsay

exception does not necessitate a finding

that there has been no Confrontation

Clause violation. "The Court has applied

this ’indicia of reliability’ requirement

principally by concluding that certain

hearsay exceptions rest upon such solid

foundations that admission of virtually

any evidence within them comports with

the ’substance of the constitutional

protection.’" Roberts, 448 U.S. at 66

(quoting Mattox v. United States, 156

U.S. 237, 244 (1895)) (emphasis added).

While Wisconsin law has established that

the "statement against interest" is a

firmly-rooted hearsay exception, see

State v. Buelow, 122 Wis.2d 465, 479 (Ct.

App. 1984), the Supreme Court has

concluded that, for Confrontation Clause

purposes, this particular hearsay

exception defines a class so broad that

the exception may not always comport with

the substance of the constitutional

protection. See Lee, 476 U.S. at 544 n.5;

see also Lilly v. Virginia, 527 U.S. 116,

127 (1999) ("We have previously noted

that, due to the sweeping scope of the

label, a simple categorization of a

statement as a ’declaration against penal

interest’ . . . defines too large a class

for meaningful Confrontation Clause

analysis.")./3 Therefore, the district

court rightly held that Kent’s statements

were presumptively unreliable.

2. Indicia of Reliability

In Confrontation Clause analysis, a

firmly-rooted hearsay exception operates

as a proxy for reliability.

Thus,"[r]eliability can be inferred

without more in a case where the evidence

falls within a firmly-rooted hearsay

exception." Roberts, 448 U.S. at 66.

However, simply because a statement does

not fall within such a hearsay exception

does not mean that it must be excluded

under the Confrontation Clause. Roberts

recognized that even if hearsay evidence

does not fall within a firmly-rooted

hearsay exception, and is thus

presumptively unreliable and inadmissible

for Confrontation Clause purposes, it may

nonetheless meet Confrontation Clause

reliability standards if it is supported

by a showing of particularized guarantees

of trustworthiness. See id.; see also

Lilly, 527 U.S. at 136 ("The residual

’trustworthiness’ test credits the axiom

that a rigid application of the Clause’s

standard for admissibility might in an

exceptional case exclude a statement of

an unavailable witness that is

incontestably probative, competent, and

reliable, yet nonetheless outside of any

firmly-rooted hearsay exception.").

However, that is a presumption that is

not easily overcome. See Lee, 476 U.S. at

543-46.

After concluding that the statements

attributed to Kent Denny did not fall

within a firmly-rooted exception to the

hearsay rule for Confrontation Clause

analysis, and were thus presumptively

unreliable, the district court did not

analyze the statements to assess whether

the presumption of unreliability was

overcome. Rather, the district court

simply moved on to discuss the Court of

Appeals of Wisconsin’s analysis of

harmlessness. Because the Supreme Court

has determined that "when deciding

whether the admission of a declarant’s

out-of-court statements violates the Con

frontation Clause, courts should

independently review whether the

[states]’s proffered guarantees of

trustworthiness satisfy the demands of

the Clause," Lilly, 527 U.S. at 137, we

find the district court’s decision to

delve directly into harmlessness poses no

problem to our review.

We believe that the statements in

question possess sufficient indicia of

reliability to warrant their admission.

We are satisfied that these statements

are not of the type whose reliability is

particularly suspect--such as a

confession that shifts or spreads blame

from the declarant to incriminate co-

criminals, or a custodial confession made

to law enforcement authorities, where the

declarant responds to the leading

questions of officers without any

opportunity for contemporaneous cross-

examination. See id. at 137-38; United

States v. Robbins, 197 F.3d 829, 839 (7th

Cir. 1999). Rather, we believe that

Kent’s statements had sufficient indicia

of reliability at the time they were made

to deem them trustworthy. Kent’s

confessions were made in the course of

noncustodial conversations with trusted

friends and relatives. Furthermore, the

statements were not of a blame-shifting

nature; rather, they were equally

inculpatory. The circumstances under

which they were made offer no reason to

suspect coercion, ulterior motive, or

desire to curry favor with law

enforcement authorities. See Robbins, 197

F.3d at 840.

In Cruz, the Court held that the

Confrontation Clause barred the admission

of a codefendant’s confession

incriminating the defendant if that

confession was not directly admissible

against the defendant, even if the

defendant’s own confession is admitted

against himself. 481 U.S. at 193.

However, the Court noted that "[o]f

course, the defendant’s confession may be

considered at trial in assessing whether

his codefendant’s statements are

supported by sufficient ’indicia of

reliability’ to be directly admissible

against him . . . despite the lack of

opportunity for cross-examination." Id.

at 193-94. In this instance, an

examination of the statements made by

Jeffrey further confirms the reliability

of Kent’s statements. Both brothers

described the murder of Mohr in specific

details to different parties. In

different statements, they both boasted

that Kent had begun the stabbing of Mohr

and that Jeffrey took over. Furthermore,

both brothers mentioned hitting the

victim over the head with a bong pipe.

In sum, while we are mindful of "the

time-honored teaching that a

codefendant’s confession inculpating the

accused is inherently unreliable, and

that convictions supported by such

evidence violate the constitutional right

of confrontation," Lee, 476 U.S. at 546,

we find that the specific nature of the

statements in this instance requires a

departure from that principle. We cannot

conclude that the state court’s

determination that Kent Denny’s

statements were directly admissible

against Jeffrey is contrary to or an

unreasonable application of clearly

established Supreme Court precedent.

C. Harmless Error

Though we granted a certificate of

appealability and requested that the

parties address the issue of

harmlessness, because the state court’s

determination that there was no Cruz

violation is not contrary to or an

unreasonable application of Supreme Court

precedent, we need consider the question.

However, assuming arguendo that there was

error in admitting Kent’s statements, we

agree with the Court of Appeals of

Wisconsin and the district court that any

such error was harmless.

It is well established that a violation

of the Confrontation Clause may be deemed

harmless error if there is overwhelming

evidence of the defendant’s guilt. See

Harrington v. California, 395 U.S. 250,

253 (1969). "In some cases the properly

admitted evidence of guilt is so

overwhelming, and the prejudicial effect

of the codefendant’s admission is so

insignificant by comparison, that it is

clear beyond a reasonable doubt that the

improper use of the admission was

harmless error." Schneble v. Florida, 405

U.S. 427, 430 (1972). Furthermore,

"unless there is a reasonable possibility

that the improperly admitted evidence

contributed to the conviction, reversal

is not required." Id. at 432.

In Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986), the Supreme Court set

forth factors for determining whether a

violation of the Confrontation Clause was

harmless error. The Court stated that:

Whether such an error is harmless in a

particular case depends upon a host of

factors, all readily accessible to

reviewing courts. These factors include

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.

Additionally, while the Supreme Court

held in Cruz that the interlocking nature

of confessions does not preclude a

Confrontation Clause violation, the

interlocking nature of confessions could

operate to render the violation harmless.

481 U.S. at 191.

Despite the fact that the district court

did not concur with the Wisconsin

appellate court’s determination that

there had been no violation of the

Confrontation Clause in this case, both

courts were in agreement that any error

in admission was harmless.

As the Wisconsin Court of Appeals noted,

five different people testified that

Jeffrey Denny confessed to them his

direct participation in the murder of

Mohr. Another individual testified that

Jeffrey had stated that a bag he was

carrying contained the shoes he had worn

when he committed the murder. When those

shoes were recovered and examined, it was

revealed that the treads matched a shoe

print found at the murder scene. One

person also testified that Jeffrey had

said that, in addition to stabbing Mohr,

he had hit the victim on the head with a

bong pipe. At the murder scene, police

discovered fragments from a bong pipe.

All of the statements were consistent,

made at different times and places, in

some instances corroborated by physical

evidence, and were found to be credible

by the jury. Furthermore, these

statements were independent from any made

by Kent. Thus, the Wisconsin court

ultimately determined that "even if

Kent’s statements were not directly

admissible as to Jeffrey, it was harmless

error to admit them."/4

In light of all the evidence against

Jeffrey Denny, we cannot conclude that

the state court’s determination that the

admission of Kent Denny’s confessions

against Jeffrey was harmless, if it was

error at all, is "contrary to or an

unreasonable application of" the clearly

established Supreme Court precedent of

Bruton and its progeny.

III. CONCLUSION

For the foregoing reasons, we Affirm the

decision of the district court.

FOOTNOTES

/1 Though not relevant to these proceedings, Kent

Denny was also found guilty of one count of first

degree murder.

/2 Interlocking inculpatory statements are those

that clearly demonstrate the involvement of each

defendant as to crucial facts such as time, place

and activity and an awareness of an overall plan

or scheme. See Parker, 442 U.S. at 67-68.

/3 In Lilly, the Court distinguished the three

principal situations in which a statement against

penal interest would be offered into evidence.

See Lilly, 527 U.S. at 127. The state’s introduc-

tion of Kent Denny’s statements would be consid-

ered to fall under the Court’s first articulated

justification, "as voluntary admissions against

the declarant." Id. While the Court noted that

such statements "are routinely offered into

evidence against the maker of the statement and

carry a distinguished heritage confirming their

admissibility when so used," the mere fact that

"one accomplice’s confession qualified as a

statement against his penal interest did not

justify its use as evidence against another

person." Id. at 127-28.

/4 Jeffrey argues that the district court erred in

relying on the state court’s determination of

harmlessness, and furthermore applied the incor-

rect standard of harmless error in denying the

writ. In addressing harmlessness, both the Wis-

consin court and the district court appeared to

have relied on the standard set forth in Chapman

v. United States, 386 U.S. 18 (1967), examining

whether the jury would have convicted Jeffrey

absent Kent’s statements.

As we noted in Anderson, the standard to be

employed, post-AEDPA, in assessing whether a

constitutional error is harmless is an open

question. See Anderson, 227 F.3d at 898 n.3.

Prior to AEDPA, federal courts analyzed questions

of harmlessness, on habeas review, under the rule

articulated in Brecht v. Abrahamson--inquiring

whether the error had a substantial and injurious

effect or influence in determining the jury’s

verdict. 507 U.S. 619, 637 (1993). However,

whether that holding has survived the passage of

AEDPA is unclear. See Anderson, 227 F.3d at 898

n.3 (examining the Sixth and Eighth Circuit’s

decisions on the issue). As in Anderson, we need

not weigh in on the debate at this juncture. Even

assuming that the Brecht standard--a standard

more generous than the standard employed in this

case--has survived the passage of AEDPA, given

the overwhelming evidence of Jeffrey’s guilt,

under Brecht this error would be considered

harmless.