159 F.3d 1117 (8th Cir. 1998), 97-2935, United States v. Edwards

Docket Nº:97-2935, 97-2943, 97-3019, 97-3022 and 97-3028.
Citation:159 F.3d 1117
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Darlene M. EDWARDS, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Richard W. BROWN, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Earl D. SHEPPARD, also known as Skip Sheppard, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Bryan
Case Date:October 30, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 1117

159 F.3d 1117 (8th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Darlene M. EDWARDS, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Richard W. BROWN, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Earl D. SHEPPARD, also known as Skip Sheppard, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Bryan E. SHEPPARD, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

George Frank SHEPPARD, also known as Frank Sheppard,

Defendant-Appellant.

Nos. 97-2935, 97-2943, 97-3019, 97-3022 and 97-3028.

United States Court of Appeals, Eighth Circuit

October 30, 1998

        Submitted April 15, 1998.

        Rehearing and Suggestion for Rehearing En Banc Denied Dec.

        18, and Dec. 21, 1998.

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        Paul S. Becker, Kansas City, MO, argued, for appellee.

        Will Bunch, North Kansas City, MO, argued, for appellant Darlene M. Edwards.

        John R. Osgood, Lees Summit, MO, argued, for appellant Richard W. Brown.

        Susan M. Hunt, Kansas City, MO, argued, for appellant Earl D. Sheppard.

        John O'Connor, Kansas City, MO, argued, for appellant Bryan E. Sheppard.

        Patrick W. Peters, Kansas City, MO, argued, for appellant George Frank Sheppard.

        Before LOKEN and LAY, Circuit Judges, and PRATT, [*] District Judge.

        LOKEN, Circuit Judge.

        Early in the morning on November 29, 1988, two Kansas City Fire Department pumpers arrived to fight two fires at a highway construction site in southeast Kansas City. The first pumper extinguished a burning pickup truck on the west side of the site and joined the second pumper on the east side, where an aluminum storage trailer containing 25,000 pounds of explosives was on fire. The trailer exploded, instantly killing

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six firefighters and igniting a second trailer filled with 30,000 pounds of explosives, which also exploded. Over seven years later, Darlene Edwards, Richard Brown, Earl (Skip) Sheppard, Bryan Sheppard, and Frank Sheppard were indicted and convicted of the capital offense of aiding and abetting arson that caused the deaths of the firefighters. They appeal their convictions and life sentences. The primary issue is whether their Confrontation Clause rights as defined in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and its progeny were violated by the government's reliance on testimony by numerous witnesses relating each defendant's out-of-court admissions of complicity, and by the district court's 1 refusal to grant either their motions for severance or mistrial. The court instead allowed government witnesses to replace references in the admissions to codefendants with neutral pronouns and then instructed the jury to consider each admission only against the declarant. We affirm.

       I. Sufficiency of the Evidence.

        The highway construction site was patrolled by two security guards. At 3:15 a.m., one guard thought she saw two people walking down the highway. The guards looked for trespassers, leaving one of their vehicles, a pickup truck, parked on the west side. They drove to a nearby convenience store, the Quik Trip, and learned the store manager had not seen anyone. As the guards were leaving the store, a car pulled up and the driver yelled there was a fire at the construction site. The guards returned and reported their pickup truck was on fire and a second fire could be seen on the east side. At 4:08 a.m., the first trailer exploded, killing the six firefighters.

        Investigators concluded the pickup truck fire started when gasoline was poured into the driver's side of the cab and ignited, and the trailer fire began in the tire area and became so hot that the walls of the trailer ignited and caused the ANFO explosives to explode. The investigation into who caused the fires was frustrated by a lack of witnesses and surviving physical evidence. After years of dead ends, the explosions were reenacted on a national television program, Unsolved Mysteries, accompanied by a well-publicized $50,000 reward, extensive local publicity, and a phone number for reporting tips. Defendants lived in Marlborough, a neighborhood adjacent to the construction site. Frank and Skip Sheppard are brothers, Bryan Sheppard is their nephew, Richard Brown is Bryan Sheppard's best friend, and Darlene Edwards was living with Frank Sheppard at the time of the explosion. Many callers reported that defendants had repeatedly boasted of starting the fires. These indictments followed.

        The government's evidence at trial included Darlene Edwards's 1995 tape-recorded statement. 2 Edwards told investigators that sometime between 1:30 and 2:30 a.m. Bryan Sheppard came to her house and asked if she would take Bryan and Richard Brown to get gas because their car had run out. Leaving Frank Sheppard asleep, Edwards drove Bryan and Brown to the nearby Quik Trip where they filled a gas can. They told Edwards their car was near the construction site, but when she neared the site her companions explained they planned to set a fire with the gasoline to divert security guards while they stole from the site. Edwards refused to go with them but agreed to drop them off. Over defense objections, the district court admitted a redacted version of this statement against Edwards. Additional evidence against her included three inmates who testified that Edwards told them, while she was incarcerated with them on other charges, that she and others had planned to steal tools and equipment from the construction site to sell or trade for drugs, and that

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she had driven the others to get gas to start a diversionary fire and cover up the thefts.

        Fifteen witnesses testified to admissions by Richard Brown, for example, that "he went down there to steal and on the way down there they were out of gas and had to get some gas," that he got mad trying to get into the trailer and lit a fire with gas, and that they set a pickup truck and then a trailer on fire. Seven witnesses testified to admissions by Skip Sheppard, for example, that he and others had been at the site to steal, that "they were stealing tools from the construction site," that they "set fire to cover up the stuff they had taken," and that the "gas came from the Quik Trip station on 71 Highway." Thirteen witnesses testified to admissions by Bryan Sheppard, for example, that "they went to steal batteries and they set the fire to cover their tracks and they saw two security guards and they ran," and that "he set a fire as a diversion to go steal some explosives." One witness overheard Bryan Sheppard say to Frank, "I'm not like you and the other guys. I can't live with myself because of the death of them firemen, and it's eating me up." Twelve witnesses testified to admissions by Frank Sheppard, for example, that "the fire was set as a diversion and that they didn't know explosives were in the dump truck," that "someone had drove him and someone else to get some gas that they had used to start the fire," and that "they were down there trying to get into the trucks and they weren't able to get anything and decided to pour gasoline on them and get them on fire."

        Defendants argue the evidence was insufficient because the government did not introduce substantial independent evidence corroborating their out-of-court admissions. It is well-settled that "a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused." Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, "[w]here the crime involves physical damage to person or property, the prosecution must [only] show that the injury for which the accused confesses responsibility did in fact occur, and that some person was criminally culpable.... There need in such a case be no link, outside the confession, between the injury and the accused who admits having inflicted it." Id. at 489-90 n. 15, 83 S.Ct. 407 (citations omitted); see also United States v. Jacobs, 97 F.3d 275, 283 (8th Cir.1996); United States v. Opdahl, 610 F.2d 490 (8th Cir.1979). Here, there was physical evidence that arson caused the pickup truck fire and circumstantial evidence that arson caused the trailer fire. Therefore, independent corroboration of the admissions was not required.

        Moreover, we reject defendants' premise that the government's case lacked corroborating evidence. Becky Edwards, Darlene's daughter, testified that she heard all five defendants planning to steal from the construction site about one week before the explosion. Investigators found a gas can on the site that did not belong to the construction contractors, and a witness testified that Frank and Skip Sheppard had many gas cans as part of their lawn mowing business. A number of witnesses saw the defendants in various groups in the Marlborough neighborhood before and after the explosions. One saw Richard Brown's car driving at high speed a short distance from the construction site three to five minutes after the first trailer exploded. Another saw Frank and Skip Sheppard and two others pull up to their mother's house near the construction site five to ten minutes after the explosion. Another saw Bryan Sheppard and Richard Brown around 7:30 a.m., after the explosion; Bryan smelled of gasoline and smoke and had numerous scratches and abrasions. Taken as a whole, the evidence tends to establish the trustworthiness of defendants' many admissions.

        Defendants further argue the government failed to prove that fire can cause ANFO to explode because its opinion evidence to this effect did not meet the standards of Daubert...

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