State v. Zakaria

• Court: South Dakota Supreme Court
• Writing for the Court: Zinter
• Citation: State v. Zakaria, 730 N.W.2d 140, 2007 SD 27 (S.D. 2007)
• Decision Date: 14 March 2007
• Docket Number: No. 24051.,24051.
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Fadi Omar ZAKARIA, Defendant and Appellant.

730 N.W.2d 140

2007 SD 27

STATE of South Dakota, Plaintiff and Appellee, v. Fadi Omar ZAKARIA, Defendant and Appellant.

No. 24051.

Supreme Court of South Dakota.

Argued November 28, 2006.

Decided March 14, 2007.

Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.

Julie Hofer, Minnehaha County Public Advocate's Office, Sioux Falls, South Dakota,

Attorney for defendant and appellant.

ZINTER, Justice.

[¶ 1.] Fadi Zakaria was convicted of first degree robbery and committing or attempting to commit a felony with a firearm. He appeals claiming: the introduction of a taped police interview of a co-defendant violated his Sixth Amendment right of confrontation; the trial court erred in admitting a gun found after the robbery; and questioning in taped police interviews impermissibly commented on his credibility. We affirm.

Facts and Procedural History

[¶ 2.] On March 2, 2004, an employee and one customer were inside the Royal Flush Casino in Sioux Falls, South Dakota. At approximately 8 p.m. two men entered the casino wearing ski masks. One of the men was holding a pillowcase. One of the men pointed a pistol at the employee and demanded money. The gun was described by the witnesses as silver or black, small, shiny, and nickel-plated. The employee gave the man with the pillowcase $1,556.25. The customer observed the men leave in an easterly direction and enter an alley. The customer stopped a passing car and told the occupants what had happened. The occupants of the car also observed two men running in the alley. As they proceeded north, the two men ran out in front of the passing car. One of the men got into a white car located approximately one and a half blocks northeast of the casino, while the other continued running. Witnesses recorded the license plate number of the white car.

[¶ 3.] Two men were eventually linked to this crime. Footprints consistent with Zakaria's shoes were found between the casino and the white car. The car was registered to Autumn Hooker. Shortly after the robbery police found the white car about a block away from Hooker's house. Footprints consistent with Zakaria's shoes led from the car to the Hooker house. Zakaria was Hooker's boyfriend, and he lived at that residence. There was also testimony that it was normal for Zakaria to use Hooker's car.

[¶ 4.] William Reath was also apprehended shortly after the robbery. He was found on Cliff Avenue, approximately three blocks east and six blocks south of the white car. Cliff Avenue is a through street providing a direct route to Hooker's residence. Reath also lived at the Hooker residence.

[¶ 5.] Police obtained a search warrant for the house and the car. Inside the car they found a black ski mask and a blue pillowcase that contained $256. In the basement of the house, under the sheets of a bed, they found a cigar box containing $1,260.

[¶ 6.] The next day, a yellow coat matching a description of that worn by one of the robbers was found about two and a half blocks northeast of the casino. On May 11, 2004, a little over two months after the robbery, a pistol was found about three blocks northeast of the casino by a man cleaning his yard. The gun was about one inch deep in mud. It was loaded and was found on a line extending from the place where one man entered the white car to the place where the yellow jacket was discarded and, finally, to the yard in which the pistol was found. Reath was found approximately seven blocks east and south of the pistol on Cliff Avenue.

[¶ 7.] Zakaria and Reath were tried together.¹ Video recordings of police interviews of both Zakaria and Reath were admitted, but neither defendant testified. Reath was found not guilty. Zakaria was convicted. He appeals raising the following issues:

1. Whether the trial court committed a Bruton error in conducting a joint trial in which Reath's taped police interview was admitted without an opportunity for Zakaria to cross-examine Reath.

2. Whether the trial court erred in admitting the gun into evidence.

3. Whether the trial court erred in admitting Zakaria's taped police interview that contained statements by police questioning his credibility.

Decision

Bruton and the Right of Confrontation

[¶ 8.] Zakaria first alleges that playing the videotape of co-defendant Reath's interview violated Zakaria's right of confrontation under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). Alleged violations of constitutional rights are reviewed de novo. State v. Carothers, 2005 SD 16, ¶ 7, 692 N.W.2d 544, 546.

[¶ 9.] Bruton held that limiting instructions do not cure a confrontation violation when hearsay evidence, given by a co-defendant, incriminates the other defendant. Id. at 137, 88 S.Ct. at 1628, 20 L.Ed.2d at 485-486. However, Bruton is not applicable when statements of co-defendants are not inculpatory. The Supreme Court has noted:

There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant's confession "expressly implicat[ed]" the defendant as his accomplice. [391 U.S.] at 124, n. 1, 88 S.Ct. at 1621, n. 1 (1968). Thus, at the time that confession was introduced there was not the slightest doubt that it would prove "powerfully incriminating." Id. at 135, 88 S.Ct. at 1627. By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial. . . .

Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176, 186 (1987). We have also recognized this distinction. See State v. Johnson, 509 N.W.2d 681, 686 (S.D.1993) (concluding no error in refusal to sever, because the statements were not inculpatory); compare Iron Shell v. Leapley, 503 N.W.2d 868, 870 (S.D.1993) (concluding that under Bruton, the admission of inculpatory statements violates the Sixth Amendment).

[¶ 10.] In this case, Reath's statements did not expressly implicate Zakaria. The only arguably incriminatory matter involved the question of whether the two were together that day. And on that question, each defendant's statement was internally inconsistent.

[¶ 11.] More specifically, Reath, in his statement, initially denied going out stating: "I was home all day today." Then he stated that he did go out looking for work between 7 a.m. and 3 p.m. But he also initially insisted that he did not accompany Zakaria: "I didn't go nowhere with Fadi . . . me and Fadi was not in the car." Later, however, he said that "me and Fadi we went to get his girlfriend." In comparison, Zakaria admitted that Reath was with him that day. "I just drove around . . . I went to my friend's house . . . I can't say his name . . . [Reath] was with me." However, Zakaria later indicated concern about what would happen if his alibi witness indicated that they had been doing something wrong. He then said, "Alright man, I lied man, I wasn't with nobody." A review of the videotaped interview does not reflect whether Zakaria meant that he lied about being with his friend, or about being with Reath, or both. Ultimately, however, both men's statements consistently denied any involvement in the robbery, and neither Zakaria nor Reath ever implicated the other in the robbery.²

[¶ 12.] Therefore, this case falls within the rule of Richardson rather than Bruton. Bruton involved a confession by a co-defendant that directly implicated Bruton with "powerfully incriminating" evidence. Richardson, 481 U.S. at 208, 107 S.Ct. at 1707, 95 L.Ed.2d at 186. In contrast, neither Reath nor Zakaria confessed or implicated the other. Because Reath's statements were not inculpatory, and certainly were not powerfully incriminating, the trial court did not violate Bruton by refusing to sever and utilizing a limiting instruction.³

[¶ 13.] Zakaria also argues that he was entitled to severance under SDCL 23A-11-2, Rule 14 of the Rules of Criminal Procedure. When considering severance under the Rules, "[t]he trial court's refusal to grant a severance motion will be reversed on appeal only if the defendant demonstrates an abuse of discretion." State v. Jenner, 434 N.W.2d 76, 80 (S.D. 1988) (citations omitted). "The defendant establishes an abuse of discretion by showing substantial prejudice which constitutes a denial of a fair trial." Id. (emphasis in original) (citations omitted). "`A certain amount of prejudice to a defendant is regarded as acceptable given the judicial economies that result from joinder.'" Id. (quoting United States v. Carpentier, 689 F.2d 21, 27 (2d Cir.1982)). "`The [trial] court must consider not only possible prejudice to the defendant . . . but also possible prejudice to the government because of two time-consuming, expensive, and duplicitous trials.'" State v. Johnson, 2004 SD 135, ¶ 13, 691 N.W.2d 319, 323 (quoting State v. Andrews, 393 N.W.2d 76, 79 (S.D. 1986)).

[¶ 14.] In considering the analogous Federal Rules of Criminal Procedure,⁴ the Supreme Court held that severance is not required simply because there are conflicting defenses. Zafiro v. United States, 506 U.S. 534, 538-539, 113 S.Ct. 933, 937-938, 122 L.Ed.2d 317, 324-325 (1993). Instead "when defendants properly have been joined . . . a . . . court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence." Zafiro, 506 U.S. at 539, 113 S.Ct. at 938, 122 L.Ed.2d at 325. In this context we have stated that:

To cause the type of prejudice that prevents co-defendants from obtaining a fair trial, the defenses must be more than merely antagonistic. They must conflict to the point of being irreconcilable and mutually exclusive so that acceptance of one defendant's defense will preclude the acquittal of the...