State v. Zakaria

2007 SD 27 Dakota,

STATE of South Plaintiff Appellee, ZAKARIA,

Fadi Omar Defendant Appellant.

No. 24051.

Supreme Court South Dakota.

Argued Nov. March

Decided General, Attorney Long, E.

Lawrence Attorney Gen- Geaghan, Assistant Frank Dakota, Pierre, Attorneys for eral, South plaintiff appellee. Hofer, County Public Minnehaha

Julie Falls, Office, Da- South Sioux Advocate’s kota, Attorney for and appel- registered defendant Autumn Shortly Hooker. af- robbery lant. ter found the car white about away a block from Hooker’s house. ZINTER, Justice. Footprints consistent with Zakaria’s shoes led from the car to the Hooker house. Fadi Zakaria was convicted boyfriend, Zakaria was Hooker’s and he degree robbery first and committing lived at that residence. There was also felony a attempting commit with a fire- testimony that it was normal for Zakaria appeals arm. claiming: He the introduc- to use Hooker’s car. taped police tion of a interview of a co- defendant violated Sixth his Amendment William Reath appre- was also confrontation; right of the trial court shortly robbery. hended after the He was admitting in gun erred a found after the Avenue, found on Cliff approximately robbery; and questioning taped police in three blocks east and six blocks south of impermissibly interviews commented the white car. a through Cliff Avenue is credibility. his affirm. providing street a direct route to Hooker’s residence. Reath also lived at the Hooker History

Facts and Procedural residence. March an employee [¶2.] On [¶ Police obtained a search 5.] warrant and one customer were inside the Royal for the house and the car. Inside the car Falls, in Flush Casino Sioux South Dakota. they found a black ski mask and a blue At approximately p.m. two men entered pillowcase that contained In the $256. wearing the casino ski masks. One house, basement under the sheets of men holding pillowcase. was a One of the bed, they a found a cigar box containing pointed men a pistol employee at the and $1,260. money. gun demanded The was described black, small, the witnesses as silver or day, The next a yellow coat shiny, nickel-plated. employee The matching a description of that worn one gave pillowcase man with the of the robbers was found about two and a $1,556.25. The customer observed half blocks northeast of the casino. On men leave in easterly an direction and May a little over two months alley. enter an stopped The customer a robbery, pistol after a was found about passing occupants car and told the what three blocks northeast of the casino a happened. had occupants The of the car yard. man cleaning gun The was running observed two men in the al- deep about one inch mud. It was load- ley. they north, proceeded As the two ed and was a extending found on line from men ran passing out in front of the car. place where one man entered the white One of men got into white car located car to the place yellow jacket where the approximately one and half north- and, blocks finally, yard discarded casino, east while the other contin- pistol which the was found. Reath was running. ued Witnesses recorded the li- approximately found seven blocks east and plate cense number of the white car. pistol south of the on Cliff Avenue. eventually [¶ 3.] Two men were linked [¶ 7.] Zakaria Reath were tried to- to this crime. Footprints gether.1 consistent with recordings Video inter- Zakaria’s shoes were found views of both Zakaria and Reath .between admitted, car. casino and white The car was but neither defendant testified. appellate repre- Zakaria's counsel did not him at sent trial. prove it slightest doubt that would Zakaria was guilty. found not Reath incriminating.” Id. “powerfully raising the follow- appeals He convicted. contrast, By in this at 1627. 88 S.Ct. ing issues: incrimina- was not case the confession committed the trial court 1. Whether face, only so and became ting on its joint conducting Bruton error evidence introduced when linked with taped police Reath’s which later at trial.... without an was admitted Marsh, to cross-ex- Richardson v. for Zakaria opportunity 1702, 1707, 95 L.Ed.2d Reath. amine (1987). recognized this dis- have also erred ad- the trial court 2. Whether Johnson, 509 State v. tinction. See into mitting gun evidence. (S.D.1993) 681, no (concluding 686 N.W.2d in ad- court erred the trial 3. Whether sever, the state- to because error refusal police inter- mitting taped inculpatory); compare not ments were contained statements view that 868, N.W.2d 870 Leapley, Iron Shell 503 credibility. his police questioning Bruton, (S.D.1993) that under (concluding inculpatory statements the admission Decision Amendment). violates Sixth Right Bruton and the of Confrontation In Reath’s statements this [¶ 10.] alleges that Zakaria first [¶8.] The implicate Zakaria. expressly did not videotape of co-defendant playing incriminatory in- matter only arguably right violated Zakaria’s Reath’s the two of whether question volved United Bruton v. confrontation under on that day. And together that States, 20 88 S.Ct. statement was each defendant’s question, violations Alleged 476 L.Ed.2d internally inconsistent. de novo. rights are reviewed constitutional Reath, in his specifically, More Carothers,

State v. statement, initially going out stat- denied 544, 546. he day today.” Then home all ing: “I was limiting that instruc- held Bruton for work go looking did out that he stated violation not cure confrontation tions do he But p.m. and 3 a.m. between evidence, a co- given by hearsay accompany when he not that did initially insisted defendant, defen- the other incriminates Fadi “I with go didn’t nowhere Zakaria: at at 88 S.Ct. dant. Id. in the car.” Fadi was not ... me and However, Bruton is at 485-486. however, L.Ed.2d and Fadi Later, that “me he said of co-de- when statements applicable compar- his In get girlfriend.” to we went The inculpatory. Su- are not fendants ison, that Reath was admitted Zakaria has noted: preme Court around day. just “I drove him with I ... can’t my house ... I friend’s went distinction be- important There an me.” ... with Bruton, name say [Reath] his which case and tween this However, concern later indicated ex- fall the narrow it to outside causes if alibi wit- happen Bruton, would about what ception we have created. doing they had been im- ness indicated “expressly confession codefendant’s said, “Alright wrong. He then something as his accom- plieat[ed]” the defendant nobody.” A man, man, I wasn’t with I lied 124, n. at plice. [391 U.S.] does videotaped interview of the (1968). Thus, review at the time that 1621, n. he Zakaria meant whether not reflect introduced there was confession Mend, being (S.D. lied about with his Jenner, or about being Reath, 1988) (citations omitted). with Ultimately, both. “The defendant however, both men’s statements consis- an establishes abuse of discretion show tently any denied involvement the rob- ing prejudice substantial which constitutes bery, and neither Zakaria nor Reath ever a denial (emphasis fair trial.” Id. “ implicated the in the robbery.2 other (citations omitted). original) ‘A certain prejudice amount defendant is re Therefore, this case falls within garded acceptable given as judicial the rule of Richardson rather than Bru- joinder.’ economies result from Id. ton. Bruton involved a confession co- (quoting Carpentier, United States v. directly implicated defendant that Bruton “ (2d Cir.1982)). F.2d ‘The [trial] “powerfully incriminating” with evidence. court must only possible prej consider not Richardson, 481 U.S. at 107 S.Ct. at udice to the possi defendant ... but also contrast, L.Ed.2d 186. In nei- prejudice ble government because of ther Reath nor Zakaria impli- confessed or two time-consuming, expensive, duplic cated the other. Because Reath’s state- Johnson, itous trials.’” State v. ments were not inculpatory, and certainly ¶ 691 N.W.2d (quoting were not powerfully incriminating, the trial Andrews, (S.D. State 393 N.W.2d court did not by refusing violate Bruton 1986)). utilizing sever and a limiting instruction.3 In Zakaria argues considering that the analo gous he was entitled to Federal Rules severance under of Criminal SDCL Proced ure,4 23A-11-2, Supreme Rule 14 of the of the Rules Criminal Court held that sever considering Procedure. When ance is required simply severance because there Rules, under the trial conflicting “[t]he are court’s refusal defenses. v. United Zafiro grant States, a severance will 534, 538-539, motion re be 113 S.Ct. appeal versed on if only 937-938, the defendant 122 L.Ed.2d (1993). demonstrates an abuse of discretion.” Instead “when proper- defendants 2. Although argues interviews, that Reath’s state- gave the following trial court the defense, damaged ment Zalearías alibi Zaka- instruction: give ria did not notice of an Questions alibi defense as by and statements the are 23A-9-l(Rule required 12.1(a)). SDCL not evidence. Statements made the de- only may fendant are evidence but be con- gave 3. limiting The trial court instructions your regarding sidered in deliberation the statements, concerning the use of the which charges against person. In this trial categorized be inferentially can best as in- defendants, with you two must amake dis- "[Wjith criminating. regard to inferential in- only tinction and consider this evidence judge's may crimination instruction well regard with to the defendant who made the dissuading jury be successful in from en- statements. tering path onto the of inference in the first An given almost verbatim instruction was place, so that there is no incrimination to again Richardson, published. after Reath’s forget.” interview was at U.S. S.Ct. at at L.Ed.2d 8(b) 4. Federal Rules of Criminal Procedure preliminary jury this a instruction and 14. The same rules are found in SDCL jury particular told the "a item of evi- (Rule 8(b)) (Joinder 23A-6-24 of two dence or more is sometimes received for a limited purpose. judge defendants same or you [The will] tell indictment informa when that tion), occurs, (Rule 14) you (Relief purposes and instruct and SDCL for 23A-11-2 prejudicial which the item can joinder and cannot be from used.” of offenses or defen Then, dants). publishing taped before first refusing to sever under a ... should its discretion joined ... ly have been if only under Rule 14 23A-11-2. a SDCL grant severance joint trial serious risk that is a there Zakaria, however, argues right of specific compromise would required if that even severance was defendants, jury prevent or one of the or under the Rules Criminal Procedure making judgment a reliable about from Bruton, the admission of Reath’s state at Zafiro, 506 U.S. guilt or innocence.” opportunity ment to cross-examine without 938, 122 at at L.Ed.2d 113 S.Ct. right Amendment violated Zakaria’s Sixth have stated that: In this context we of confrontation under Wash Crawford prejudice pre- type To cause ington, 541 U.S. obtaining co-defendants from vents this involving L.Ed.2d Issues trial, must the defenses be more fair de right constitutional are reviewed novo. They must merely antagonistic. than Carothers, SD 16 at being irreconcil- point conflict at 546. mutually so ac- exclusive able will ceptance of one defendant’s defense [the of] “Where admission acquittal de- other preclude issue,[] [hearsay] at testimonial fendant. what com Sixth Amendment demands (citations Jenner, omit- at 80 required: unavailability pri- mon-law ted). “one desire Even defendant’s for cross-examination.” opportunity inculpating a co-de- exculpate himself 68, 124 Crawford, 541 U.S. S.Ct. necessarily the render fendant does 177. Reath was unavailable 158 L.Ed.2d mutually and ex- irreconcilable defenses co- for because he was a cross-examination Shape, clusive.” defendant, not previously he was but Jenner, (S.D.1994) (citing 656 concerning his statement. cross-examined 81). Therefore, asserts a vio Crawford (and In this the defenses 15.] [¶ lation. statements) were not so irreconcilable However, we need not address of mutually acceptance exclusive that and because, as this issue even the merits of of precluded acquittal Reath’s statements error, it was suming there was a noted, Reath’s previously Crawford Zakaria. As accepted It is now well harmless. implicate Zakaria. statement did not statement co-defendant’s admission Furthermore, state- both defendants’ is to cross-examine opportunity without in that internally inconsistent ments were subject analysis. error Unit to harmless alternately admitted and both defendants McClain, 219, 222- v. 377 F.3d ed States with the other at some being denied Cir.2004) (2d (stating 223 finally, the during day. the And point Crawford error review change does not harmless of Reath’s acceptance of either version violations). also See United confrontation precluded not have statement would (6th 390 Cir. Pugh, v. 405 F.3d of Zakaria. these cir- States acquittal Under Summers, 414 cumstances, 2005);5 v. United States the trial court did abuse See was a harmless error. Jordan violation The Sixth Circuit stated: Cir.2005) (6th Hurley, F.3d 363 v. firmly dis we are convinced that the While (“Confrontation violations are sub- Clause and violat trict court abused its discretion review.”). ject "In deter- to harmless error ed in and the rule established Crawford harmless, Cromer, (6th mining an error whether Cir. v. 389 F.3d 662 [U.S. what 2004)], reviewing 'must take account of court must also whether this we address (10th Cir.2005); F.3d 1287 United States v. leading as from the car to white Hooker’s (1st Rodriguez-Marrero, 390 F.3d 1 Cir. A pillowcase car, home. in found 2004); Nguyen, v. 281 Kan. State money an and amount of consistent with applied P.3d have pil- taken was found secreted analysis error harmless similar circum lowcase and at Zakaria’s residence. Addi- Herrmann, stances. See State 2004 SD tionally, pistol appeared ¶53, 23, 510 (finding N.W.2d shortly room robbery before the dis- any Sixth Amendment violation was harm appeared Finally, after incident. Za- error); Frazier, less State highly incriminatory karia made admis- ¶¶ 27-33, (finding N.W.2d 257-259 videotaped sions conversations with that confrontation error in the admission conversation, During Hooker. one Zaka- harmless). hearsay was not ria stated: “I shouldn’ta it.” did Hooker him, you thinking?” asked “What were “The harmless error Zakaria responded, you told I “[I] wasn’t preserves doctrine purpose essential thinking.” said, He also “I wanted to see criminal trials: decide a defendant’s if I get away.” could Zakaria told Hooker guilt or innocence. The rule ‘promotes what he detectives, wanted her to tell public respect for process by the criminal get jacket instructed her to and “Take focusing on underlying fairness it somewhere.” trial rather than virtually on the inevitable presence Frazier, of immaterial error.’ [¶ 21.] Considering the nature of these ¶19, 30, SD (quot statements, physical evidence, and Za- Arsdall, ing Delaware v. Van scene, karia’s ties to the crime we believe 89 L.Ed.2d beyond a reasonable doubt that the admis- (1986)). “The harmless error rule sion of Reath’s statement did not contrib- ... governs provided is able to ute verdict obtained. beyond declare a belief a reasonable doubt The Gun that the error was harmless and did not contribute to the verdict obtained.” State next contends Michalek, (S.D. 815, v. 407 N.W.2d 819 that there was no evidence connecting the “ 1987) (citations omitted). ‘[HJarmless gun him, Reath, to robbery. to or to the ness ... must be determined on the basis He argues therefore that admission of the ” Frazier, of the remaining evidence.’ 2001 gun evidentiary was error. Evidentiary SD 19 at 622 N.W.2d (quoting 258 rulings presumed are correct and are re Iowa, Coy 1012, 1021-1022, 108 v. 487 U.S. viewed under the abuse discretion stan 2798, 2803, 857, S.Ct. 101 L.Ed.2d 867 ¶ Krebs, 43, 19, dard. State v. (1988)). 91, 99. In remaining this evi- dence at trial footprints included [¶ 23.] This record reflects sufficient consistent with those of Zakaria found be- evidence connecting the gun the rob- tween car, the casino and the white as well bery. The gun pistol issue was a jury], singled the error to [the meant must find probable "that it was more than alone, standing out and but relation to all materially not that the error affected the happened.' else that United States v. Har Trujillo, verdict.” v. United States 376 F.3d 745, (6th Cir.2000) dy, 228 F.3d 751 (citing Cir.2004). (6th States,

Kotteakos v. United (6th Pugh, U.S. 405 F.3d 400-401 (1946)) 90 L.Ed. 1557 Cir.2005). (alteration words, original). In other we Statements handle, except for a black silver was Officers’ descriptions given matching the roughly The interviews of Reath and customer. employee casino by the and Zakaria contained a number accu on a route Further, was found gun by police that Reath and Zaka- sations length four blocks approximately Zakaria contends that the lying. ria were casino, first from the ran northeast constituted admission of these interviews running, men observed two place the his impermissible opinion testimony on men ap- two location where the to the videotaped of such character. Admission car, place where the white proached is evidence reviewed under the abuse found, was and to the jacket the discarded Running discretion standard. State v. found. gun was later where the place Bird, ¶34, SD testimony by There was [If24.] days before” couple that “a Hooker It must first be noted that in her closet robbery gun she observed argument, Zakaria relies on making this Although put there. she had not that she they not applicable cases that are because (other gun than unable to describe the testimony either involve trial police small) she also testified that saying it was veracity6 directly impugning defendant’s it thereafter. Con- she had observed In applied a rule of law.7 they different pis- of the appearance the similar sidering crime, this were not case accusations tol, to the scene of proximity its testimony concerning trial Zakaria’s char- testimony, there was suffi- and Hooker’s Instead, acter. the accusations were made gun to make the relevant cient connection shortly taped in a after court did not The trial and admissible. importantly, the accusations crime. Most its discretion. abuse is, however, Allen, authority on split People There A.D.2d 54-57, Elnicki, (1995), "a prosecutor asked See 279 Kan. at N.Y.S.2d 40 this issue. opinion on the truth of defen (discussing detective’s P.3d at 1227-1229 the hold statement, of which was to dant’s the effect allowing jurisdictions ings of on various credibili opinion his of the defendant's solicit containing videotape evidence assertions Engesser, ty.” Similarly, in SD police). ad The Ninth Circuit holds that tape [of “[a]fter error; taped interviews is not mission of played, the interview] defendant’s error, if it it can be cured and even express trooper] [the allowed Smith, limiting Dubria v. instructions. opinion in the truthfulness [defendant’s] (9th Cir.2000). Idaho F.3d ¶ 30, Id. 661 N.W.2d at 749. interview.” analysis. State v. applies error harmless cases, opin trial both the statements involved 639-642, Cordova, 635, 51 P.3d 137 Idaho testimony credibility ion that later 449, (Idaho App.2002). Missouri 453-456 35, ¶ Id. to be harmless error. determined interroga police that statements on holds 442, 751; Allen, 222 A.D.2d at Palmes, v. are not error. State tion videos 40. 635 N.Y.S.2d (Mo.App. S.D. S.W.2d 1998). split Washington con opinion, aIn Pennsylvania categorically requires redac not of videos was cluded that admission recorded inter tion of such statements from error, was, subject it it was to harmless or if v. Kitch used at trial. Commonwealth views Demery, analysis. State error 521-522, en, Super 1999 PA 730 A.2d (2001). P.3d Wash.2d 100, ¶¶ Kansas also bars such state 30-31. apply categorical to We have declined ments, reasoning they inappropriate are that Running therefore, of exclusion. See witnesses, rule are in through live and ¶¶ Bird, 31-35, Elnicki, SD appropriate on video. State Therefore, authorities 105 P.3d Kan. inapposite. are opinion jury “Questions untruthfulness were not testimo- the that: and statements ny Instead, they by police on Zakaria’s character. the are evidence.... After part seeing interview, police were a of the officers’ Reath’s psycho- jury was logical again to instructed police tactics used to elicit statements attempt during interrogation. statements In- were evidence. deed, the tape interview rather This [¶ 27.] Court considered a similar clearly juror reflects that reasonable Bird, Running situation in 2002 SD 86 at

would have discerned difference be- ¶¶ 31-35, 649 at 616. We conclud- interrogation opin- tween these tactics and ed that it was not an abuse discretion to testimony. ion understanding sup- This videotaped admit a interview in which a , ported by explanation the officer’s of those credibility questioned defendhnt’s be- techniques jury prior showing to the cause the officer’s statements were not of the videos. testimony,” “direct gave

Q. interview, During your course of a limiting instruction. Id. you any

do employ investigative tech- N.W.2d at 616. Because same situa- interview, niques particular in this Ser- here, present tion is we find no abuse of geant? discretion in admitting videotape con- taining the officers’ accusations. A. employ have been to several —I Reid, I schools. use the ad- [¶ 28.] Affirmed. vanced Reid some other interview techniques pick up along we GILBERTSON, Justice, Chief way. MEIERHENRY, and KONENKAMP and Q. you When talk about the Reid tech- Justices, concur. nique, technique? what is the Reid SABERS, Justice, concurs in

A. you The one I think talking are result. you about is the advanced Reid where give people options. try You lessen SABERS, to result). (concurring Justice degree of seriousness their mind I concur in result because I am get they them to admit to what did. unwilling approve police conduct of offi- you Sometimes things tell them they cers where suspects lie to get necessarily aren’t true. you Not so that them to make against admissions them- get would person an innocent to confess companions. Here, or their selves “the something but that would make person untruthful,” falsely stating, guilty you that is realize that know we in separate with Reath interviews and Za- had him he and would talk.8 karia, “that each had incriminated the oth- Q. inSo the course of this interview er.” This majority is conceded you saying things are to Mr. Zakaria opinion and constitutes unworthy conduct that aren’t true? of approval this Court. sure, A. That yes. we don’t know for

This conclusion is also supported

fact that before the tape Zakaria’s inter-

view, specifically the trial court instructed views,

8. The were untruthful with Reath and that each had incriminated the other. by falsely stating, separate inter-

Case Details

Case Name: State v. Zakaria

Court Name: South Dakota Supreme Court

Date Published: Mar 14, 2007

Citation: 730 N.W.2d 140

Docket Number: 24051

Court Abbreviation: S.D.