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Elliot D. Ray v. Boatwright, 7th Cir No. 08-2825, 4/1/10

7th Circuit decision; granting habeas relief in: Wis App Nos. 2002AP791 and 2006AP2708 (earlier decision, 1/21/10, now amended); appeal following remand, 11-3228

Habeas – Confrontation
“Because it was error for the state court to admit the co-actors’ statements through the police detective’s testimony at trial, violating Ray’s right of confrontation, we reverse and remand.”

A somewhat recurrent problem. The jury heard that, during Ray’s interrogation, the detective “confronted” him (detective’s choice of rhetoric) with the co-actors’ statements incriminating Ray. Although their statements were read to the jury under the guise of explaining what occurred during the interrogation, the co-actors didn’t themselves testify: did this little gambit violate confrontation? The state court said the statements weren’t offered to prove the truth of the matter asserted, merely to show Ray’s reaction to the accusation he was the killer. Statements admitted for “non-substantive” effect do not implicate confrontation rights, so the state court was clearly right to that extent; but not in its application of that principle:

We disagree. The confrontation clause has been invoked to prevent, even in a joint trial, the admission of a confession by a co-defendant that implicates the other accused, even if the trial judge provides a limiting instruction. See Bruton v. United States, 391 U.S. 123, 127-28 (1968). While the method of presentation of the accusations in this case shows lively imagination on the part of the prosecution, it nevertheless runs afoul of the United States Constitution. Here, the evidence presented by the prosecution delivered to the jury statements by named coactors, not available for cross-examination, accusing Ray of the very crimes with which he stood charged. However cleverly presented, the evidence was a clear violation of Ray’s constitutional right of confrontation. While the government asserts that “a number of witnesses placed Ray among the group of people involved in the shooting” (Appellee’s Brief at 5-6), none of these witnesses could place Ray at the scene of the shootings, with a weapon in his hand. To accept the government’s position that the statements were offered only to create the setting for Ray’s response, and therefore admissible, would set the stage to eliminate, in most cases, the confrontation right “enjoyed by the accused.”

The court goes on to note that no limiting instruction was given, but given that this is a Bruton case, whose essence is that a co-actor’s statement cannot as a matter of law be blunted by a limiting instruction, then perhaps the court’s observation is nothing more than an aside. The fact that Ray did not “change[] his version of events after hearing the accusations of the co-actors” does, on the other hand, have obvious significance: had he changed his version, then it would be important to know why, namely in the face of accusations. Moreover, although the court initially granted relief under auspices of plain error review, the amended opinion notes that the state never argued procedural default and that, therefore, such arguments “are waived,” citing Lilly v. Gilmore, 988 F.2d 783, 784-85 (7th Cir 1993).

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