Foster v. U.S.

Decision Date13 October 1988
Docket NumberNo. 84-1741.,No. 84-1800.,84-1741.,84-1800.
PartiesDwight F. FOSTER, Appellant, v. UNITED STATES, Appellee. Albert H. WASHINGTON, Appellant, v. UNITED STATES, Appellee.
CourtD.C. Court of Appeals

Neal E. Kravitz, Public Defender Service, with whom James Klein, Public Defender Service, Washington, D.C., was on the brief, for appellant Foster.

Gregg Schaaf, Washington, D.C., appointed by the court, was on the brief, for appellant Washington.

Teresa L. McHenry, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, Michael W. Farrell, Mary Ellen Abrecht, and Steven C. Tabackman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before PRYOR, Chief Judge, NEWMAN and ROGERS, Associate Judges.

NEWMAN, Associate Judge:

In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), further explicating Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court held "the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name but any reference to her existence." Richardson v. Marsh, supra, 107 S.Ct. at 1709. The Court further stated: "We express no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Id. at 1709 n. 5. In this case, we must decide the question the Supreme Court explicitly left open — under what conditions may the court admit the confession of a nontestifying codefendant in which the defendant's name has been replaced by neutral references coupled with a proper limiting instruction.

In a joint trial, Foster, Washington and Gilliam were tried for murder, armed robbery and related offenses. Foster was convicted of second-degree murder, three counts of armed robbery and related offenses. Washington was convicted of three counts of armed robbery.1 Foster contends his confrontation rights were violated by the admission of Washington's redacted statement. Both Foster and Washington contend their sixth amendment rights to a speedy trial were violated. We hold the trial court committed error in admitting Washington's statement into evidence at the joint trial; we adopt the doctrine of contextual analysis. However, we find this error harmless beyond a reasonable doubt.2 We affirm.

I

On March 10, 1983, Foster, Washington and Gilliam went into an "oil joint" on U Street in the District of Columbia. An "oil joint" is a place where persons go to inject narcotics. When they entered, they drew guns and Foster announced that this was a stick-up. The robbers searched those who were present and took their property. Unfortunately for Alfred Lunsford, as it turned out, Lunsford recognized Foster and called him by his nickname "Rock." Foster angrily warned those present not to say his name again or that person would be hurt. Lunsford responded "Okay, Rock." Being true to his word, Foster shot Lunsford through the head, killing him. The foregoing summary is the version of the events given at trial by five government witnesses. Although the witnesses contradicted each other in certain respects, they all gave basically the same account implicating Foster.

When Washington was arrested on April 22, 1983, he gave a series of oral statements to Detective Corboy of the Homicide Squad. After initially denying any knowledge of or participation in the events, Washington ultimately told Corboy that he was present at the "oil joint" and did participate in the robberies, but only under duress. His account of the transaction otherwise varied from the other witnesses in his recollection that it was he who first used Foster's nickname "Rock," followed by Foster's warning, and Lunsford making the fatal mistake of using the name "Rock."

Prior to trial, Foster moved for severance on the grounds that admission of Washington's statements (which were offered by the government as confessions or admissions) would violate Foster's sixth amendment confrontation rights if Washington did not testify. Foster argued that redaction by substituting neutral terms for "Rock" in Washington's confession would be ineffective. The trial court denied the motion ruling that redaction was a sufficient protection. At trial, it was proposed that Washington's oral confessions be redacted by substituting the "two other men" where the statement referred jointly to Foster and Gilliam, and "the other man" when it referred to Foster. Foster objected, urging that, taken in context, it would be clear that he was being referred to both as one of the "two other men' and "the other man" who objected to the use of his nickname, and shot Lunsford. The trial court rejected this argument and Foster's renewed objection. The court ruled that redaction protected Foster's confrontation rights so long as Washington's statement, "standing alone" did not explicitly implicate Foster. Thereafter, Detective Corboy told the jury:

[CORBOY]: He said that he had been at work that day and was driving a Department of Transportation car and had gone up on 14th Street and bought some heroin.

[PROSECUTOR]: Did he use the word, "Heroin"?

[CORBOY]: He referred to it as "blow." He said that he went around to 15th and T Street and parked the car on the corner and walked back to the alley, paid the man at Ike's Oil Joint the $2 or whatever the charge was to get in to use the facilities. He said that he had been there for about 15 minutes when two other men entered. He said he was under the impression that these other two men were like him and wanted to use the facilities.

After they came in, however, he said that they announced they were going to rob the place. They began to do that. Once they announced they were going to rob the place, he says that he called out the name of one of these men and the man warned him not to use his name again, and if he did, he was going to blow his head off. He said he was directed by this man and the other man to assist them and that his assistance was to be that he was to search all the people there and take their drugs and money for them. He was doing this when there was a knock at the front door and he went to the door, along with one of the two men doing the robbery, and two women entered the place.

Once these two women were inside and he was searching them for any drugs and money, and at the time he heard someone else say the name that he called out earlier and that was immediately followed by a shot. At that point, everybody then started to run and that was the extent of his involvement in this.

The court then gave the following limiting instruction:

Ladies and gentlemen of the jury, you have just heard testimony about an alleged statement made by the Defendant Washington to this witness, following his arrest. This evidence is admitted solely against the Defendant Washington. It is not to be considered by you in any way, to indicate the guilt of any other codefendant and indeed, you cannot consider that evidence against any of the codefendants in this case, who are Mr. Gilliam and Mr. Foster. It may be considered only by you in connection with your determination of whether or not the Defendant Washington is guilty or not guilty of these offenses. It's limited solely to him and is admissible only against him at this trial.

II

The seminal case dealing with the Confrontation Clause and the use in a joint trial of a nontestifying codefendant's confession or admission which implicates the defendant is Bruton v. United States, supra. In Bruton, the Court pointed out the inherent prejudice resulting from the admission of such an extrajudicial statement, acknowledging that such statements are powerfully incriminating and that limiting instructions are ineffective to eliminate the prejudice. Thus, it held that the admission of such a statement by a nontestifying codefendant violated the defendant's Confrontation Clause rights. The Court noted that courts had tried to accommodate the defendant's confrontation rights and the government's desire to use the statement in a joint trial by redacting the statement. It noted, however, that such practice had been criticized. 391 U.S. at 134 n. 10, 88 S.Ct. at 1626 n. 10.

During the last term, the Court again addressed a Bruton problem, but this time where there had in fact been redaction. In Richardson v. Marsh, supra, the Court ruled that the Confrontation Clause was not violated by the admission of a nontestifying codefendant's statement (with a proper limiting instruction) where the statement had been redacted to eliminate not only the defendant's identity but the role played by the defendant in the transaction had been totally deleted from the statement (the very existence of the defendant or his/her role), the fact that the defendant is linked to the confession by other evidence properly admitted against him does not present a Confrontation Clause violation. The Court noted that the statement in Bruton was facially incriminating and an instruction was insufficient to insulate from violating the Confrontation Clause. In contrast, the confession in Richardson v. Marsh only became incriminating "when linked with [other] evidence introduced later at trial (the defendant's own testimony)." 107 S.Ct. at 1707. The Court further said:

Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that "the defendant helped me commit the crime" is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant's...

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