*2 GILMAN, Circuit Judges. NORRIS, J.,
ALAN E. delivered the court, MERRITT, opinion of the in which J., GILMAN, joined. 995-96), J. (pp. separate concurring delivered a opinion. OPINION NORRIS, ALAN E. Circuit Judge. prisoner Ohio appeals Gilliam petition from the denial of his for a writ of corpus, pursuant habeas filed to 28 U.S.C. § 2254. In petitioner was convicted following a bench trial part for his robbery armed of a drive-through store in Elyria, located Ohio. appeal
On
he contends that
the trial
court violated
right
his Sixth Amendment
to confront
the witnesses
him
admitting
non-testifying
the statement of a
Assuming
co-defendant.
that we find a
Confrontation Clause violation and engage
analysis,
harmless error
he then asks us
aрply
Chap-
the standard articulated in
California,
man v.
U.S.
(1967) (error
824,
(error injurious must have substantial and verdict). in determining influence I. matter, preliminary
As a petitioner prior initiated this action to the effectivе date of the Antiterrorism and Effective Penalty Death Act of Pub.L. No. (codified 104-132, 110 Stat. 1214 at 28 2254). § Consequently, the statute U.S.C. governing petitions habeas that was ef briefed), E. (argued Jill Stone David AEDPA prior passage fect Bodiker, Office, H. Public Defender’s Commission, Columbus, Murphy, to this Lindh v. case. Public Defender OH, 320, 326-27, for' Petitioner-Appellаnt. in front of the wit- parked The car was version of Under in her front made statute, of fact house and she findings ness’ court are entitled appellate from away
state trial or ten feet yard approximately 28 U.S.C. “presumption correctness.” vehicle was The four-door the vehicle. amended); 2254(d) sеe (subsequently § got into the in color. One gray *3 Mata, v. Sumner got man in behind The other front seat. (1981). 66 L.Ed.2d in, driver, getting trouble the but had hear elected to something.” Supreme leg The Ohio or he had a stiff “like and summarized appeal this case on direct the men Moore ask The witness heard as follows: the facts or, eithеr, “How you get?” did “What defendant-appel- August On you get?” much did Gilliam, a lant, made statement Elyria police, questioned When Mike Medders police. Detective ap- he had driven Moore admitted that testified Department Elyria Police Rite Nau to and pellant Treadwell August on that Gilliam admitted that he Moоre admitted “check it out.” Elyria Beverage to Rite he rode Nau they “gonna were this meant assumed Bruce Tread- and with William Moore confession, tajoed In his place.” rob the inside and ordered Appellant went well. that he had seen a admitted Moore also on employee of wine from bottle robbery, which he Joseph as before shotgun later duty, who was identified appellant that the brought, Pleban but Pleban. told Treadwell had believed handed Appellant came to $2.01. by appellant. total thought was owned $2.00, was appellant while Pleban and and Tread- appellant Moorе stated penny, for a in his digging pockets Moore waited well went inside while and shotgun with a appeared Treadwell car. and Treadwell Gilliam money. demanded with mon- together, the car returned to man who had or- Pleban testified they Moore that ey bag, in a and told surprised appear wine did not dered the got money. Both men gotten had some with the shot- appeared when Treadwell car; into the front appellant got into the that he followed explained Pleban gun. Tread- then them to seat. Moore drove orders, went to the cool- Treadwell’s carried well’s house. Treadwell Pleban money bag. As get er to home. appellant insidé and went shotgun said, cooler, Treadwell walked to the court, was tried before Appellant I’ll a hole try funny, put anything “Don’t and Treadwell. from Moore separately took the mon- back.” your Treadwell money register and the to the witness ey from the cash Thе state called Moore Pleban the cooler. bag, stand, and closed his Fifth Amend- but he exercised win- through glass Pleban watched testify. privilege ment refused He could the side the cooler. dows on offered Moore’s Consequently, he could see appellant, see but longer no ap- evidenсe over taped confession into money pants. into his stuffing Treadwell also intro- objection. The state pellant’s left, he Pleban noticed that Treadwell As statement into appellant’s taped duced shotgun. longer could no see tapes and Based on these evidence. that he and рolice Appellant stated evidence, convicted the trial court and met Moore Treadwell left together robbery with aggravated appellant of witness, A Vicki Glo- back at the car. crime of prior both a firearm and ver, had seen two black testified that she specification. violence running from the laughing males 17, 18-19, Gilliam, 70 St.3d State men ran to of Rite The direction Nau. Petitioner 635 N.E.2d Rite down from car four houses parked factual recita- (whom take issue with this does not Nau, a third in which car Moore) upon the effect of rather waiting. tion but focuses she identified as be vised taped Moore’s confession to of his before the statement permitting introduced at trial. was made. Id. denying petitioner, relief to the Ohio Petitioner initiated this action on August exclusively with the Court dealt 1, 1995, raising the same Sixth Amend- “whether the admis- issue now before us: ment issue considered the Ohio Su- taped of a co-defendant’s sion preme The initially Court. matter was after the co-defendant becomes unavailable magistrate referred to a judge report appellant’s
violated
Sixth Amendment
and recommendation.
magistrate
right to confront adverse witnesses.” Id.
judge
with
took issue
the Ohio
reformatted). The Court went on to hold
Challenge
A.
Clause
Confrontation
the statement at
fell within
issuе
a
proper place
begin analysis
firmly
hearsay
a
exception as
state-
Roberts,
of this issue is Ohio v.
ment
interest.
Id. at
(citing
N.E.2d at 1246
R.
Evid.
propri
Roberts involved “the constitutional
804(B)(3)). The
held that
Court also
ety of the
in evidence of the
introduction
challenged statement did not violate the
preliminary heаring testimony of a witness
Confrontation Clause because it came with
produced
not
the defendant’s subse
of
particularized guarantees
trustworthi-
quent
criminal trial.” Id. at
Among
ness.
Id.
it
things,
other
looked to
After
the fact that declarant did not
S.Ct. 2531.
some discussion
attempt to
shift
blame and that he had been ad- Confrontation Clause and its interaction
1997),
control the
rules,
will
outcome
summa-
Neuman
the Court
hearsay
distinguishable.
it
De
terms:
case
is
analysis
these
this
unless
proper
rized the
a
dis
petitioner’s attempts
draw
spite
hearsay declarant is
when
cases,
we conclude
tinction between
'trial, the Con-
for cross-еxamination
sufficiently similar
Neu-
they are
normally requires
frontation Clause
to control.
Even
that he is unavailable.
showing
if
then,
only
is admissible
his statement
given Moore
The statement
reliability.”
adequate
it
“indicia
bears
authorities,
in the
which was summarized
more
inferred without
Reliability can be
opin-
Supreme Court’s
passage of the Ohio
where the evidence falls
in case
earlier,
sufficiently inculpatory
ion cited
hearsay exception.
firmly rooted
requirements.
satisfy the Williamson
cases,
be ex-
the evidence must
Williamson,
600-01, 114
512 U.S. at
cluded,
showing
par-
absent a
at least
(Fed.R.Evid.804(b)(3)
ad-
allows
of trustworthi-
guarantees
ticulаrized
statements).
self-inculpatory
mission of
ness.
during a
his activities
Moore discussed
Id. at
S.Ct. 2531.
them almost
defini-
robbery, rendering
In addition to the
self-inculpatory.
tion
above,
the Ohio
As mentioned
constituting
a declaration
*5
that the statement of
statements
concluded
Court
(and thereby
falling
against
because
interest
non-testifying
proper
witness
hearsay
'to the
firmly
hearsay
firmly
exception
ex-
“within a
rooted
rooted
it fell
rule),
guar-
support
belief
particularized
factors also
our
ception” and showed
indicia
bore “sufficient
antees of trustworthiness.
statement
petitioner’s
that
reliability”
of
to ensure
roоted
respect
“firmly
to the
With
not vio-
Clause
were
Confrontation
hearsay exception” question, petitioner
his
lated:
had received
Miranda
Court has
points
out that
that his
warnings;
allegation
there is no
that
to decide
issue.
explicitly declined
and,
coerced;
he did not
statement was
States,
594,
v. United
512 U.S.
Williamson
exchange
in
favor-
make-his
statement
(1994)
605,
476
S.Ct.
L.Ed.2d
114
Accordingly, we
able treatment.
conclude
(“we
hearsay
whether the
need not decide
right to
petitioner’s
that
Sixth Amendment
for declarations
interest
exception
witnesses was
violat-
confront adverse
Clause
‘firmly
rooted’
Confrontation
by
of Moore’s
ed
the admission
statement.
court ruled
purposes”).1 Since the district
case, however, this court has held
in this
B.
Error
Harmless
hearsay exception
that
for statements
alternative,
any
In the
we hold that
firmly
interest
against penal
constitutes
in
error
the admission
statement
of
exception
purpоses
Confron
argues
Petitioner
that
issue is harmless.
v.
analysis. See Neuman
tation Clause
be
apply
court should
the “harmless
this
(6th
315,
Rivers,
Cir.
125 F.3d
319-320
doubt” standard of re
yond
reasonable
1997).2
that one
this court
panel
Given
of
by Chapman v.
view enunciated
of
may
published
decision
not overrule
Califor
18, 24,
824,
nia,
17
87 S.Ct.
see,
386 U.S.
e.g.,
v.
panеl,
another
United States
(6th
(1967),
510,
of
“sub-
L.Ed.2d
instead
Washington, 127 F.3d
517
Cir.
705
case,
recently
in
instant
Neuman involved
2. As
1. We note that the
804(b)(3).
may
argument in a case
well
counterpart
oral
that
to Fed. R. Evid
heard
Lilly Virginia,
question.
Neuman,
v.
this
resolve
we observed:
we find
"[I]f
In
- U.S. -,
443,
995 injurious effect” standard of that he left in stantial and Moore’s car. Given these Abrahamson, 619, 638, facts, any v. 507 U.S. error was Brecht harmless. 1710, 113 S.Ct. III. petitioner, the former stan
According appropriate dard is when the federal dis reasons, For the foregoing the denial of the first court to review for trict court is petition is affirmed. Lockhart, error. See v. Orndorff GILMAN, (8th Cir.1993). Judge, Circuit 1426, concurring. 998 F.2d 1430 majority rejected Omdorff, of circuits have I agree majority’s conclusion See, Smith, e.g., Sherman v. 89 however. analysis the harmless error set forth (4th Cir.1996) F.3d 1141 CBrecht Abramson, 619, 638, in Brecht v. all applies pro standard federal habeas ceedings); Davis v. Executive Director to the case. Under that Corrеctions,
Dep’t 100 F.3d 772 n. standard, error committed trial (10th Cir.1996) (same); Horsley v. Ala in admitting court Moore’s bama, (11th 1492 n. 11 Cir. entirety I was harmless. therefore concur 1995) (“Brecht all rule reaches to almost the result reached the majority. cases”); Tyson Trigg, habeas federal however, separately, I write express Cir.1995) (7th (federаl F.3d 446-47 my belief that the trial court erred when it corpus apply habeas courts should admitted Moore’s entire statement if Kotteakos standard even state courts police, admitting only por- instead of those analysis). have not conducted a Chapman tions of the statement that were self-incul- аppears While this circuit not to have States, patory. Williamson v. United issue, weighed explicitly on the we re- *6 cently applied Brecht error anal- harmless (1994), the Supreme Court ysis to a challenge Confrontation Clause defined the term “statement” Rule the fact that it despite appear doеs not 804(b)(3) of the Federal Rules of Evidence court engaged harmless single to mean “a declaration or remark” Schotten, analysis. error Norris rather than “a report or narrative.” See (6th Cir.1998). We now id. The cautioned against explicitly adopt position taken wholesale admission confessions that are majority of our sister circuits and hold partially self-inculpatory: the harmless error standard announced person making The fact that a Brecht even if a federal habeas broadly self-inculpatory confession does court is the first to review not make more credible the confеssion’s error. non-self-inculpatory parts. One ways most effective to lie is to mix false- standard, Under the Brecht even if truth, especially hood with truth that argument we assume for the sake of particularly persuasive seems because of use of Moore’s statement er constituted self-inculpatory nаture. ror, hold that not have a we error did 599-600, 114 injurious “harmful or effect” on the funda Id. at S.Ct. 2431. The Court 804(b)(3) mental fairness of trial. held that not allow the gov As the Rule does out, ernment other evidence corrob points non-self-inculpatory admission of state gener orates the conclusions drawn from Moore’s ments mаde the context of a narrative, ally inculpatory statement. A witness who lived close to because “the the store testified that she saw two males fact that a statement is collateral to a self- vehicle; says nothing at all laughing running inculpatory to Moore’s asked, you reliability.” Moore then “Hоw much did about the collateral statement’s 600-01, get?” Petitioner admitted that he drove to 2431. Trial See id. the store with Treadwell and Moore and courts must thus determine the admissibil- a narra remark within separate
ity of each
tive. See id case, attempted
In the robbery from blame for primary
shift He Treadwell. stat-
himself to Gilliam from him and plans their they kept
ed that robbery until
that he did not learn the extent that happened. it To
after had attempts assign blame
such statement fully it was neither robbery, under nor reliable
against Moore’s interest Illinois,
Lee v. (“[A] code- 90 L.Ed.2d unre- presumptively
fendant’s confession is detailing the de- passages
liable as culpability or because
fendant’s conduct product passages may well be
those or spread desire to shift
the codefendant’s favor, himself,
blame, or di- curry avenge another.”). opinion attention to Our
vert per- construed to
should therefore not be a narrative
mit wholesale admission of it contains discrete state-
simply because pe- the declarant’s
ments that are
nal interest. KEY, Plaintiff-Appellee,
David G. Advocacy
Michigan Protection *7 Intervenor-Appellee, Service, Incorporated,
v
. GRAYSON, Warden, Trusty
Henry Divi (SMT); Gary
sion, Prison Ga Jackson
bry, Michigan Chairperson, Parole McGinnis, Director,
Board; Kenneth Corrections, Department
Michigan
Defendants-Appellants.
No. 98-1471. Appeals,
United States Court
Sixth Circuit.
Argued March 1999. 9, 1999.
Decided June Rehearing
Rehearing Suggestion July
En Banc Denied