August 27, 2009
KEITH THOMAS AND RON HERNDON, APPELLANTS,
UNITED STATES, APPELLEE.
Appeals from the Superior Court of the District of Columbia (Nos. F-1193-03 & F-1240-03) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Glickman, Associate Judge
Argued February 11, 2009
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and STEADMAN, Senior Judge.
Appellants Keith Thomas and Ron Herndon were tried jointly before a jury. Each was convicted of first-degree premeditated murder while armed and possession of a firearm during a crime of violence. The government's proof at trial included four out-of-court statements that Thomas or Herndon had made to a relative or other acquaintance. To a greater or lesser degree, each of these statements inculpated not only its maker but also his co-defendant at trial. Two of the statements were admitted against both defendants on the trial court's determination that they qualified under the hearsay exception for declarations against penal interest (in addition to being admissions of a party-opponent). The other two statements were admitted only against their maker, in one case with redactions to exclude incriminating references to the co-defendant. The principal issue in these consolidated appeals is whether the admission of these four statements violated appellants' rights under either the Confrontation Clause of the Sixth Amendment as interpreted by the Supreme Court in Bruton v. United States*fn1 and Crawford v. Washington*fn2 -- inasmuch as Thomas and Herndon did not testify and hence could not cross-examine each other about the statements -- or Criminal Rule 14*fn3 as construed by this Court in Carpenter v. United States.*fn4
We hold that the introduction of appellants' statements in their joint trial did not infringe either appellant's rights under the Confrontation Clause because the statements were not testimonial within the meaning of Crawford. Moreover, with qualifications that do not affect the outcome, we uphold the trial court's rulings on the admissibility of the statements. And although appellants raise several other claims of error, we find none warranting reversal and so affirm their convictions.
I. The Evidence at Appellants' Trial
Appellants were prosecuted for the murder of James Fisher. Early in the morning on July 31, 2002, Fisher was sitting in the Temple Court area of the Sursum Corda housing project in Northwest D.C. when two men approached him from behind and one of them shot him three times in the back with a 9 millimeter semiautomatic handgun. The government's theory at trial was that the two men were Thomas and Herndon and that they killed Fisher in a bungled act of revenge, having mistaken him for another Sursum Corda resident named "Frank" who reputedly had shot to death their friend "Slush" (Marvin Gross) four days earlier. According to witnesses who knew the two men, Fisher and "Frank" both wore their hair in dreadlocks and closely resembled each other from behind. (The day after Fisher's death, "Frank" reportedly shaved his head.)
The government relied on a mosaic of evidence to tie Thomas and Herndon to Fisher's slaying. Sarah Margaret Davis, a resident of Sursum Corda, saw two young men leave her neighbor Angela Freeman's porch and walk toward Fisher, who was sitting nearby. One of the men was carrying a gun. As Davis then knocked on her friend Kineka Fowler's door to ask her to summon the police, she heard gunshots. Davis did not identify either man at trial, but Fowler testified that Davis told her it was "Little Man [who] killed Fisher."*fn5 "Little Man" was appellant Herndon's nickname, and Angela Freeman is his half-sister.
Freeman, who was a reluctant prosecution witness, testified that Herndon was "kind of upset" that Slush had been killed. Before Fisher was murdered, Herndon repeatedly asked Freeman to tell him "who was Frank and how he look." Four days after Fisher's shooting, Herndon showed Freeman a handgun, "the kind you put a clip in." The government's firearms expert testified that a "clip" signified a semiautomatic or fully automatic weapon, which was consistent with the cartridge casings found at the scene of the crime. Herndon subsequently convinced Leona Bradford, his then-girlfriend, to supply him with a false alibi for the morning of Fisher's murder. Bradford related this alibi to the grand jury but recanted it at trial. And while Herndon was in pretrial custody, he told a fellow prisoner named Gregory Bell that he "love[d] Slush and we had to do what we had to do," and that he was "in the middle of what was done." Herndon also told Bell that he himself "did not do the shooting and that someone else had shot the guy in the back."*fn6
In addition to the preceding evidence, the government relied on the four out-of-court statements by appellants that are at issue in the instant appeals. Herndon made the first: in a private conversation with Freeman, Herndon told her that he and Thomas left her porch, "went up behind the guy with the dreadlocks," and "I [Herndon] killed him, Keith's [Thomas's] gun jammed." Herndon's statement to Freeman thus identified Thomas as his accomplice in Fisher's murder. Freeman reported her brother's statement to Detective Jeffrey Williams and the grand jury. The trial court ruled the statement admissible against Thomas under the hearsay exception for declarations against penal interest. (The statement was admissible against Herndon himself, of course, as an admission by a party-opponent.*fn7 ) In her testimony at trial, Freeman disavowed her account of Herndon's admission of guilt, claiming she told "a story" because she felt threatened in the neighborhood after the shooting, needed government funds to help her relocate to a different area, and was "pressured" by the police. Freeman's recantation was impeached by her grand jury testimony and by Detective Williams. Her sworn grand jury testimony was admitted as substantive evidence of Herndon's incriminating statement.*fn8
The second statement was made by Thomas to his brother's girlfriend, Jimi Stover. "[A] couple of days" after Slush was killed, Stover saw Thomas retrieve a black revolver from a linen closet in her home, at which time he told her "that him and Ron was going to finish that shit with Slush." Thomas's statement thus implicated Herndon in the plan to retaliate against Slush's killer. Stover related the statement to the grand jury and again during a pretrial voir dire examination, which was held to enable the trial court to determine whether Thomas's statement was sufficiently reliable to be admissible against Herndon as a declaration against penal interest. The trial court determined that it was. At trial, however, Stover claimed to have lied in her previous testimony because she had been "threatened" by a police officer investigating Fisher's death. She claimed the officer had "spoon fed" her the contents of her testimony and "harassed [her] and threatened [her] for two whole years." She was duly impeached with her grand jury and voir dire testimony (which, like Freeman's prior testimony, was admitted as substantive evidence under D.C. Code § 14-102 (b)(1)).
Thomas made the third statement to Gregory Bell. Bell testified that in November 2002, he was hanging out with a group of people in Barry Farms when Thomas arrived and joined them. The group's conversation turned to Slush and how he was missed. According to Bell, Thomas then said, "We handled that." This statement indicated that Thomas had an (unidentified) accomplice in the murder of Fisher. The government sought to introduce the statement only against Thomas (as an admission of a party-opponent), and the trial court ruled that no redaction of the statement was necessary to protect Herndon's rights. Thereafter, before the jury, Bell testified that Thomas had said, "that, you know, they handled that and wasn't no [sic]." Although Bell thus changed the plural pronoun from "we" to "they" in relating what Thomas had said, he did not identify any other persons to whom the pronoun referred.*fn9
The last statement at issue is one Thomas made to Danny Winston. In April 2003, Winston was on trial for murder. (He eventually was convicted.) During a break, he was taken to a holding cell behind the courtroom. There, he encountered Thomas, who had been brought to court for a pretrial hearing in the instant case. Thomas struck up a conversation, asking Winston "what [he] was dressed up for," and Winston replied that he was charged with aiding and abetting second-degree murder. Thomas said his own charge was similar. According to Winston, Thomas then told him (in the unredacted version of their conversation) that he and Herndon had approached "a guy with dreads, sitting with his back to them . . . . Ron ran up and shot him a couple times in the back. When Ron did this, Ron did not do this alone; Keith was with him. Keith did not have a gun." Because this statement shifted the blame for Fisher's murder from Thomas to Herndon, the trial court ruled that it was not admissible as a declaration against penal interest and would have to be redacted to eliminate the references to Herndon. In the sanitized version that the jury heard, Thomas told Winston he was "with someone" on "a friend's relative['s] porch" when "[t]hey saw the person they was beefing with," who was wearing dreadlocks and sitting with his back to them. Thomas "left the porch" and "[came] out from behind" the person, who then "got killed." Winston was allowed to relate that Thomas also said that he was not the shooter, and that the "the wrong person" was killed due to "mistaken identity."
As neither Thomas nor Herndon testified, neither defendant was subject to cross-examination by the other regarding his purported statements.*fn10 After Bell testified, the trial court instructed the jury that when it considered the statements about which he had testified, "each of those bits of evidence are admitted solely as evidence against the particular defendant who was alleged to have made those statements." Similarly, the court told the jury after Winston testified, "that evidence is admitted solely as evidence against Mr. Thomas who is alleged to have made that statement, not against the other defendant." The trial court repeated similar instructions in its closing charge to the jury. The court gave no limiting instruction with respect to the statements to Freeman and Stover that were admitted under the penal interest exception.
II. Appellants' Challenges Under Bruton and Carpenter to the Admission of Each Other's Statements in Their Joint Trial
Thomas argues that the trial court should have redacted Herndon's statement to Freeman to protect his rights under the Confrontation Clause of the Sixth Amendment and Criminal Rule 14, as required by Bruton and Carpenter respectively. On the same grounds, Herndon argues that the trial court erred by failing to redact Thomas's remarks to Stover and Bell and by insufficiently redacting Thomas's statements to Winston. Alternatively, Herndon argues, in the absence of such remedial measures or the exclusion of Thomas's statements altogether, the trial court abused its discretion by denying his motion to sever his case from Thomas's.*fn11 To evaluate these contentions, we first must consider the requirements of Bruton and Carpenter in light of the Supreme Court's recent construction of the Confrontation Clause.
A. The Requirements of Bruton and Carpenter
A defendant's confession or other extra-judicial statement may be inadmissible against a co- defendant under the Confrontation Clause or traditional rules of hearsay. When the government seeks to introduce such a statement against its maker in a joint trial before a jury, Bruton and Carpenter afford protections to the non-declarant co-defendant. The source and scope of the protections mandated by the two cases differ.
In Bruton, the government introduced the confession of Bruton's co-defendant Evans at their joint trial for armed robbery. The confession, which concededly was inadmissible against Bruton,*fn12 directly inculpated him by name as Evans's confederate in the robbery. Because Evans did not take the stand at trial, Bruton was unable to cross-examine him about the confession. The trial court instructed the jury that, although the confession was competent evidence against its maker, it was inadmissible hearsay against Bruton and therefore had to be disregarded in determining Bruton's guilt or innocence.
Concluding that it is unrealistic to expect lay jurors in a joint trial to consider a "powerfully incriminating" extra-judicial statement against its maker but not against an explicitly named and inculpated co-defendant,*fn13 the Supreme Court reversed Bruton's conviction on constitutional grounds. It held that "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extra-judicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated [Bruton's] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment."*fn14
One way to avoid the constitutional problem while retaining the benefits of a joint trial, the Bruton Court suggested, might be to redact the incriminating references to a co-defendant in the declarant defendant's extra-judicial statement -- a solution the Court later approved explicitly.*fn15
Alternatively, unless the prosecution were to choose to forego introducing the extra-judicial statement against its maker in its case-in-chief, the inculpated co-defendant would be entitled to a separate trial.
Admission of an unredacted statement in a joint trial poses no problem under the Confrontation Clause if the declarant defendant testifies and is subject to cross-examination by the co-defendant.*fn16 However, "the opportunity to cross-examine does not operate to make [an otherwise inadmissible] incriminating extra-judicial statement admissible against the nondeclarant co-defendant."*fn17 Consequently, we concluded in Carpenter, "satisfaction of a defendant's Sixth Amendment right to confrontation under the Bruton-Nelson standard does not terminate the trial judge's continuing duty to take adequate steps to reduce or eliminate any prejudice arising from joinder"*fn18 -- a duty imposed on the trial judge by Criminal Rule 14.*fn19 Specifically, we held, "Rule 14 requires that the trial court take appropriate steps to minimize the prejudice inherent in co-defendant confessions which are inadmissible against the nondeclarant defendant"*fn20 even when the declarant is available for cross-examination. Because Bruton's logic "applies with equal force" in such situations,*fn21 the remedial options under Rule 14 when one defendant's extra-judicial statement directly inculpates a co-defendant are the same as under the Confrontation Clause: "unless the government agrees to 'forego any use of the statement,' it must be redacted to eliminate all incriminating references to the co-defendant, or the co-defendant's motion for severance must be granted -- 'whether or not' the defendant who made the statement takes the stand and testifies."*fn22
A limiting instruction alone is not a sufficient prophylaxis.
The protective measures mandated by Bruton are not constitutionally required if admission of the co-defendant's out-of-court statement against the non-declarant defendant would not violate the Confrontation Clause. Similarly, if such a statement falls within an exception to the hearsay rule, the requirements of Carpenter do not apply. In 2004 and 2006, with its decisions in Crawford and Davis v. Washington,*fn23 the Supreme Court changed the test for whether an extra-judicial statement is subject to exclusion under the Confrontation Clause. Under those cases, the issue turns on whether the statement is "testimonial" (a term of art, the meaning of which we discuss below). Crawford held that the Confrontation Clause bars the government from introducing a testimonial statement at trial against a criminal defendant to prove the truth of the matter asserted therein -- unless the government calls the declarant to testify in person or the declarant is unavailable and the defendant had a prior opportunity to cross-examine him -- regardless of how reliable the statement is perceived to be or whether it fits within a recognized hearsay exception.*fn24 Davis held that only testimonial statements are covered by this bar; if a hearsay statement is not testimonial in nature, the Confrontation Clause does not operate as a barrier to its admission.*fn25
The implications of Crawford and Davis for the Bruton doctrine are two-fold. First, if a defendant's extra-judicial statement inculpating a co-defendant is testimonial, Bruton requires that it be redacted for use in a joint trial to protect the co-defendant's Sixth Amendment rights even if the unredacted statement would be admissible against the co-defendant under a hearsay exception. Second, if a defendant's extra-judicial statement inculpating a co-defendant is not testimonial, Bruton does not apply, because admission of the uncensored statement in evidence at a joint trial would not infringe the co-defendant's Sixth Amendment rights, whether or not the statement fits within a hearsay exception.*fn26 On the other hand, Crawford and Davis have no comparable impact on the requirements of Carpenter. Whether or not it is testimonial, a defendant's extra-judicial statement directly implicating a co-defendant is equally susceptible to improper use by the jury against that co-defendant. A defendant's non-testimonial out-of-court statement therefore remains a candidate for redaction (or other remedial measures) under Criminal Rule 14 unless it fits within a hearsay exception rendering it admissible against the non-declarant co-defendant.
Accordingly, in our discussion of the four statements at issue in this appeal, we shall proceed as follows. We first determine whether the trial court properly held that none of the remarks at issue on appeal was testimonial in nature. We review that conclusion of law de novo,*fn27 and we hold that it was correct. Admission of the extra-judicial statements therefore jeopardized neither appellant's Sixth Amendment rights, and Bruton's requirements are moot.
Next, we examine the trial court's ruling that two of the statements qualified as declarations against penal interest; if so, Carpenter's restrictions did not apply to them and they properly were admitted without redaction against the non-declarant defendants. "The trial court's conclusion that a statement is against the declarant's penal interest is clearly a legal question," as to which our review is de novo.*fn28 However, we will not disturb the factual findings supporting the court's conclusion unless they are clearly erroneous.*fn29 We hold that Herndon's statement to Freeman was admitted properly as a statement against penal interest, but that Thomas's statement to Stover was not. The erroneous admission of the latter statement did not harm Herndon, however.
Finally, we consider Thomas's statements to Bell and Winston, which the trial court admitted only against their maker. Whether each statement required redaction for admission in evidence at appellants' joint trial, and whether any redactions made were adequate, are legal questions, we conclude.*fn30 Under both Bruton and Carpenter, the trial court has discretion to choose between redaction and severance; depending on the form and content of the statement, the court may well have considerable discretion respecting the method or type of redaction employed. But the need for redaction and the sufficiency of any redaction that the trial court chooses to require are legal questions, because the issue is whether, with or without redaction, there remains a "substantial risk" that a reasonable jury would be unable to follow a limiting instruction and would consider the incriminating extra-judicial statement against the non-declarant defendant. Thus, our review of whether the trial court erred with respect to whatever redactions it required is de novo. That said, however, Herndon did not object to the redaction of Winston's testimony or renew his motion to sever on the ground that the redaction was inadequate. We therefore review that redaction only for plain error.*fn31 We hold that the trial court did not err in admitting Bell's testimony without redaction or plainly err in admitting Winston's redacted testimony.
B. Were the Statements "Testimonial"?
The Supreme Court has declined "to spell out a comprehensive definition of 'testimonial'" suitable for all cases.*fn32 Broadly speaking, though, for a statement to be "testimonial," it must be "'[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,'"*fn33 typically for use in the prosecution or investigation of a crime or under "circumstances objectively indicat[ing] that . . . the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."*fn34 "An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not."*fn35
By those measures, none of the four statements at issue here was "testimonial." All four involved casual remarks to acquaintances in which the speaker -- Herndon or Thomas -- confidentially admitted having committed or intending to commit a crime. It would be ludicrous to characterize any of the statements as a solemn declaration or as having been made to establish past facts for use in a criminal prosecution or investigation or otherwise. In each instance, the speaker "simply was not acting as a witness; he was not testifying. What he said was not 'a weaker substitute for live testimony' at trial."*fn36 We hold that the trial court did not err in concluding that the statements here were not testimonial and hence not subject to the strictures of Crawford, Davis, and Bruton.
C. Declarations Against Penal Interest
This jurisdiction has adopted the hearsay exception for declarations against penal interest set forth in Federal Rule of Evidence 804 (b)(3), together with the Supreme Court's construction of that provision in Williamson.*fn37 The exception, a species of "statement against interest," provides that if the declarant is unavailable as a witness, the rule against hearsay does not exclude "[a] statement which . . . at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."*fn38 The premise of this exception is that reasonable people usually do not make statements against their penal interest unless the statements are true; the statements are reliable, and therefore admissible, precisely insofar as they genuinely increase the declarant's exposure to criminal sanction.*fn39 Whether that condition is met in any given case "can only be answered in light of all the surrounding circumstances."*fn40 Thus, to ascertain whether a proffered statement is admissible under the penal interest exception, the trial court must undertake a three-step factual analysis. It must determine (1) whether the declarant, in fact, made the reported statement;*fn41 (2) whether the declarant is unavailable to testify;*fn42 and (3) "whether corroborating circumstances clearly indicate the trustworthiness of the statement."*fn43 The factors to be examined in the third step include the time of the declaration and the party to whom it was made; the existence of extrinsic evidence in the case corroborating the declaration; and -- the fundamental criterion -- the extent to which the declaration was "really against the declarant's penal interest" when it was made.*fn44
In Williamson, the Supreme Court held that Rule 804 (b)(3) does not allow admission of non-self-inculpatory statements simply because they happen to be included within "a broader narrative that is generally self-inculpatory."*fn45 Mere proximity to a self-incriminating assertion is not enough to support admission under the penal interest exception; the trial court must assess each component remark for admissibility as a statement against penal interest rather than base its ruling on the overall self-inculpatory quality of the declarant's narrative in its totality.*fn46 Accomplice statements -- statements in which the declarants incriminate their putative confederates as well as themselves -- demand "especially" careful parsing and evaluation by the trial court.*fn47 Frequently the accusations of others in such statements are not genuinely self-inculpatory, but "merely attempts to shift blame or curry favor."*fn48 Even if the remarks implicating others in criminal conduct are merely "collateral" and seemingly "neutral as to [the declarant's] interest,"*fn49 their admission in evidence pursuant to Rule 804 (b)(3) depends on a clear showing that they are truly inculpatory of the declarant as well.
This is not to imply that such a showing is never possible. "It would perhaps be fair to say that a portion of a statement inculpating another person is seldom against the declarant's penal interest, but seldom is not the same as never."*fn50 As the Williamson Court acknowledged, statements in a confession incidentally naming confederates "that give the police significant details about the crime may also, depending on the situation, be against the declarant's interest."*fn51 Such a statement "is not magically transformed from [one] against penal interest into one that is inadmissible merely because the declarant names another person or implicates a possible co-defendant."*fn52 If that is true when the statement is made by an arrestee to the police, it is all the more true when the statement is made to close acquaintances in confidence, under circumstances manifesting no motive to shift blame or other bias.*fn53 We, in fact, upheld the admission of such statements under the penal interest exception in Hammond II.*fn54
1. Herndon's Statement to Freeman
Considering Herndon's statement to Freeman -- "I killed him, Keith's gun jammed" -- the trial court found that Herndon made the statement, and as a defendant he was unavailable to the prosecution. The court also found that Herndon had "no motive to color the information or to lie," and that the surrounding circumstances, the timing of the statement, and the identity of the person to whom it was made combined to "offer a fair degree of reliability as to [the] statement." These factual findings, which have ample support in the record and certainly are not clearly erroneous, weigh in favor of admitting Herndon's self-incriminating admission under the penal interest exception.*fn55 Herndon was speaking to a family member in private soon after the murder. In that setting, in contrast to, for example, a custodial interrogation by police, he had no apparent motive to lie, exaggerate, curry favor or shade the truth. Furthermore, Herndon's statement was corroborated by other evidence, including Thomas's own admissions and Herndon's subornation of his girlfriend's perjurious statements regarding his alibi.
The critical question, though, is whether all of Herndon's statement was "really against [Herndon's own] penal interest." Thomas argues that Herndon's references to Thomas's participation as an accomplice were collateral -- they inculpated only Thomas, not Herndon, because they did not increase the criminal liability to which Herndon exposed himself by admitting guilt. Therefore, Thomas argues, the trial court should have parsed out the statements regarding Thomas and redacted them. We do not agree. Herndon's statement that Thomas was with him as they approached Fisher and that Thomas's gun jammed was not blame-shifting or beneficial to Herndon in any way. Nor was the statement merely neutral with respect to Herndon's interest, for it underscored that Herndon was the sole shooter and bore primary responsibility for Fisher's murder. Moreover, as Williamson anticipated, the statement also was contrary to the declarant's penal interest because it corroboratively revealed "significant details about the crime,"*fn56 including the identity of a witness (perhaps the only witness) who could identify Herndon as the chief perpetrator. We conclude that Herndon's statement about Thomas was sufficiently against Herndon's penal interest that a reasonable person in his position would not have made the statement without believing it to be true. As the statement therefore was substantively admissible against Thomas as well as against Herndon, the trial court did not err under Carpenter in admitting it without redaction.*fn57
2. Thomas's Statement to Stover
We reach a different conclusion with respect to Thomas's statement to Stover, "that him and Ron was going to finish that shit with Slush." We take no issue with the trial court's subsidiary factual determinations. In finding that Thomas made the statement, as Stover had testified under oath in the grand jury and in her voir dire examination, the trial court noted Stover's "remarkable," emotional demeanor when she recounted it. Despite Stover's subsequent repudiation of her testimony, the court's finding was supported by the evidence and certainly not clearly erroneous. That Thomas was unavailable is not contested. As to whether corroborating circumstances supported the trustworthiness of Thomas's statement to Stover, the trial court noted in particular that Thomas "would feel comfortable making a statement like this to her" given the nature of their relationship, and that the statement was not blame-shifting. (And, of course, Thomas was retrieving his gun when he made the statement.) These findings too are sufficiently supported by the record.
Nonetheless, it is critical not to lose sight of the touchstone inquiry for admission of hearsay under the penal interest exception, which is whether the statement "at the time of its making . . . so far tended to subject the declarant to . . . criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true."*fn58 Had Thomas said to Stover, shortly after Fisher was murdered, that he and Ron had finished the business with Slush, we think his statement rather clearly would have subjected him to criminal liability. Obviously, however, at the time Thomas actually made his remark to Stover, the murder of Fisher had not yet been committed; it lay in the uncertain future. Even in conjunction with his retrieval of a weapon, Thomas's words were somewhat ambiguous. Were they simply braggadocio? Did they mean that Thomas already had made plans with Herndon or only that he anticipated Herndon's help? Most important, what, exactly, did Thomas intend to do? The statement was cryptic. We do not question that a statement regarding a planned future crime may qualify under the penal interest exception in some circumstances. For example, a detailed description to the FBI of how a complex crime was to be committed might subject the speaker to liability for criminal conspiracy;*fn59 a statement implying that the declarant had ordered someone's murder might be admissible to prove the declarant's culpability in the subsequent deed.*fn60 Here, however, we are persuaded that Thomas's remark to Stover did not clearly expose him to criminal liability at the time he made it.
On the other hand, we conclude that the error in admitting the unredacted statement against Herndon under the penal interest exception was obviously harmless.*fn61 (Since neither the admission of the statement nor the failure to redact it rises to the level of constitutional error, we apply the less stringent harmlessness standard of Kotteakos v. United States.*fn62 ) First, we agree with the alternative theory of admissibility the government advanced in the trial court in its motion in limine (which the trial court did not reach).*fn63 Thomas's statement of his intention to meet with Herndon and finish the business with Slush fit within the state-of-mind exception to the hearsay rule. It was admissible against Herndon under that exception because it made it more likely that Thomas did, in fact, meet with Herndon, and that Thomas did, in fact, participate in the shooting of Fisher.*fn64 And had the statement been admitted under the state-of-mind exception, the government would not have been required by Carpenter to redact it to eliminate the reference to Herndon.*fn65
Second, even apart from Thomas's statement to Stover, the evidence against Herndon was quite strong. The jury heard that Herndon, distraught, asked what "Slush's" killer looked like and received a description resembling Fisher; that Davis identified Herndon ("Little Man") as Fisher's assailant; that Herndon induced his then-girlfriend to provide him with a false alibi; that shortly after Fisher's murder, Herndon was in possession of a semiautomatic weapon consistent with the type of weapon used to kill Fisher; that Herndon admitted the killing to his sister; and that he told Bell he was "in the middle of what was done." On this record, we can say "with fair assurance . . . that the judgment was not substantially swayed by the error."*fn66 And as Herndon sustained no material prejudice from Thomas's statement to Stover, its admission did not require the court to grant him a severance.
Having determined that Thomas's statements to Bell and Winston were not admissible against Herndon under any hearsay exception, the trial court was obliged under Criminal Rule 14 and Carpenter to take reasonable steps to ensure that Herndon would not be prejudiced by the introduction of those statements. Under Carpenter, as under Bruton, the necessity and sufficiency of any redactions turn on the same considerations -- whether Thomas's extra-judicial statements (with or without excisions) so "powerfully" incriminated Herndon as to create a "substantial risk" that a reasonable jury would be unable to follow the court's limiting instruction and would consider those statements in deciding Herndon's guilt.*fn67 Consequently, the principles governing redaction under Bruton apply under Carpenter as well.
The Supreme Court addressed redaction under the Bruton doctrine in two subsequent cases. In Richardson v. Marsh, the Court distinguished between an extra-judicial confession that "expressly" implicates the non-declarant co-defendant (such as the confession in Bruton itself) and a confession that (at least as redacted) does not name the non-declarant co-defendant.*fn68 Where, as in the latter case, "the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial," the Court found it to be "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 guilt; whereas with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton's exception to the general rule [that jurors follow instructions].*fn69
Declining to "extend" Bruton further than its rationale warranted, the Richardson Court held that the Confrontation Clause "is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence."*fn70
This was a rather narrow holding; narrower than the principle implied by the Court's reasoning that only "facially incriminating" confessions trigger Bruton's requirements.*fn71 To underscore the point, the Court "express[ed] no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun."*fn72 The Court addressed that issue eleven years later, in Gray v. Maryland.
In Gray, the prosecution redacted the co-defendant's confession "by substituting for the defendant's name in the confession a blank space or the word 'deleted.'"*fn73 This redaction, the Supreme Court held, was inadequate to protect the non-declarant defendant's Sixth Amendment rights: "[r]edactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that . . . the law must require the same result" as in Bruton itself.*fn74 The basic problem with such obvious alterations, the Court explained, is that typically they "will not likely fool anyone"; a juror "would know immediately" whose name has been removed.*fn75 Distinguishing Richardson, which concededly "placed outside the scope of Bruton's rule those statements that incriminate [only] inferentially,"*fn76 the Gray Court reasoned that obviously altered statements continue to incriminate the non-declarant defendant "directly" and "facially":
Richardson must depend in significant part upon the kind of, not the simple fact of, inference. Richardson's inferences involved statements that did not refer directly to the defendant himself and which became incriminating "only when linked with evidence introduced later at trial." The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face, in Richardson's words, "facially incriminates" the co-defendant. Like the confession in Bruton itself, the accusation that the redacted confession makes "is more vivid than inferential incrimination, and hence more difficult to thrust out of mind."*fn77
Taken together, Richardson and Gray instruct that a defendant's extra-judicial statement normally may be admitted in evidence in a joint trial (with an appropriate limiting instruction, we emphasize) so long as the statement, as redacted if necessary, does not incriminate a non-declarant co-defendant on its face, either explicitly or by direct and obvious implication. A statement satisfying that condition normally is admissible (with the limiting instruction) even though it alludes non-specifically to the declarant's confederates and the non-declarant co-defendant may be linked to it by other, properly admitted evidence of his guilt.*fn78 We take these principles to be applicable under Carpenter and Criminal Rule 14 as well as under the Confrontation Clause. Caveats are in order, however.
First, the principles we extract from Richardson and Gray are guidelines for the mine run of cases, not ironclad rules for every case no matter what the circumstances. We recognize that Criminal Rule 14 sometimes may oblige the trial court to take ameliorative steps beyond a mere limiting instruction to protect a defendant from highly prejudicial, inadmissible hearsay in a co-defendant's confession, even where the confession does not directly inculpate the defendant on its face. Particularly in close cases, moreover, the trial court properly may exercise its remedial discretion under Rule 14 (and Bruton); the court is not required to rely solely on a limiting instruction about which it has its doubts, merely because it permissibly might do so.*fn79
Additionally, the foregoing guidelines do not mean that evidence extrinsic to the statement never may be considered in evaluating whether the statement facially incriminates the non-declarant co-defendant. "Very little evidence is incriminating when viewed in isolation; even most confessions depend for their punch on other evidence. To adopt a four-corners [of the hearsay statement] rule would be to undo Bruton in practical effect."*fn80 The circumstances surrounding the making of the extra-judicial statement that are put before the jury -- when, to whom, and in whose presence it was made, for example -- must be considered in interpreting the words used. To illustrate the point, consider the simple comment, "We robbed the bank." By itself, the word "we" does not identify anyone other than the declarant. But a jury learning that the declarant made the comment while standing next to the co-defendant could understand that "we" unambiguously included the co-defendant. (Indeed, if the co-defendant heard the comment and did not demur, his silence arguably might be taken as manifesting adoption of the statement.*fn81 ) Similarly, as the Gray Court helpfully elaborated, a confession implicating the non-declarant co-defendant by a nickname or specific description usually would "fall inside, not outside, Bruton's protection," even though the jury presumably would require extrinsic evidence that the co-defendant bore the nickname or met the description in order to connect him to the confession.*fn82 The reason is that once such evidence of identity is presented, all of Bruton's concerns about the inefficacy of a limiting instruction apply with full force, just as if the confession had identified the co-defendant by his full given name. Some extrinsic evidence of the co-defendant's identity thus seems to us distinguishable for these purposes from extrinsic evidence of the co-defendant's guilt.*fn83 But -- ordinarily -- genuinely non-specific references to jointly-tried co-perpetrators need not be excised from the confession. In Gray, for example, the Court suggested that a statement redacted to say that the declarant "and a few other guys" committed the offense would not have run afoul of Bruton.*fn84 In Plater, we similarly approved a redacted confession that used the "neutral plural pronoun 'we'" to refer to the group that committed the offense, because, under the circumstances, "we" was indefinite; the term did not identify anyone with particularity other than the declarant.*fn85 (We also noted in Plater that "there was no symmetry between the number of alleged perpetrators and the number of defendants on trial; therefore, it was wholly questionable whether any of the defendants, other than the defendant who gave the statement, were involved in the offense."*fn86 However, even where there was only one accomplice and only one co-defendant is on trial with the declarant, the use of a non-specific pronoun like "we" or "he" is ordinarily acceptable under Bruton and Carpenter.) Of course, as Gray teaches, when the names of co-defendants are replaced by neutral pronouns, the substitution must be accomplished artfully, so as not to indicate to the jury that the statement originally contained actual names.*fn87 An obvious redaction would imply too strongly that the statement implicated the non-declarant co-defendant by name.
1. Thomas's Statement to Bell
Applying the foregoing guidelines to the case at hand, we find no error in the trial court's conclusion that Thomas's statement to Bell required no redaction. Bell quoted Thomas as saying "they handled that" when the conversation turned to Slush and how he was missed. As in Plater, the use of the plural pronoun identified no one other than the declarant, Thomas; nothing in the remark itself or the circumstances in which it reportedly was made identified Herndon.*fn88
2. Thomas's Statement to Winston
Thomas's statement to Winston was redacted to avoid identifying Herndon. In pertinent part, the jury heard only that Thomas told Winston he was "with someone" on "a friend's relative['s] porch" when they mistakenly thought they "saw the person they was beefing with"; and that he was not the one who then shot the person, implying that his companion ("someone") did so. Herndon contends that the redaction was insufficient to disguise his identity, though his name was not mentioned, apparently because the jury heard from other witnesses that the shooters were on Angela Freeman's porch, she was Herndon's relative (half-sister), and he was "Keith's" good friend.*fn89
As Herndon did not object at trial to the sufficiency of the redaction of Thomas's remarks to Winston or renew his severance motion, his claim is subject to the demanding requirements of plain error review. Herndon must demonstrate not only that the redaction was erroneous, but that it was obviously so at the time the issue arose, and, further, that there exists a reasonable probability the error affected his substantial rights by prejudicially affecting the outcome of the trial.*fn90 In addition, Herndon must show that the error seriously affected the fairness, integrity, or public reputation of the judicial proceeding, as by causing a clear miscarriage of justice.*fn91
The requisite showing has not been made. The references in Thomas's redacted account to "someone" who was with him on a "friend's relative's" porch were not repetitive or otherwise obvious alterations of the sort condemned in Gray.*fn92 And even if we indulgently suppose that the jury must have understood the "friend" in question to have been Herndon, Winston did not convey that the "friend" was also the "someone" who committed the shooting. The fact that Thomas was with "someone" on Herndon's sister's porch did not necessarily mean he was with Herndon himself.
Thus, we have difficulty perceiving that the redaction was plainly insufficient. Moreover, given the strength of the other evidence against him, we see no reasonable likelihood that the admission of Thomas's remarks to Winston materially prejudiced Herndon (or resulted in a miscarriage of justice) even if the redaction was insufficient for the reasons he claims. Herndon is not entitled to relief.
III. The Jury Instruction on Aiding and Abetting Liability
Appellants contend that the trial court erred when it instructed the jury on accomplice liability for first-degree premeditated murder. The court told the jury that "[a]n aider and abettor is legally responsible for the acts of other persons that are the natural and probable consequences of the crime in which he intentionally participates." As appellants did not object to this language, they must establish that the court plainly erred in order to obtain relief.*fn93 Error there was. Our 2006 en banc decision in Wilson-Bey overruled previous case law and rejected the "natural and probable consequences" instruction with respect to aiding and abetting liability for first-degree premeditated murder because it eliminates the requirement that the aider and abettor have the same mens rea required of the principal -- to wit, a premeditated and deliberated intent to kill.*fn94 As the pertinent law was clearly otherwise at the time of appellants' trial in 2004, they need only show that the trial court's error is plain or obvious now, which it is, to satisfy the second prong of plain error analysis as well.*fn95 However, appellants still must satisfy the third and fourth prongs of the test for plain error by demonstrating a reasonable probability of prejudice and an adverse impact on the fairness, integrity or public reputation of the proceeding.*fn96 And that is where their showing falls short.
The sole defense in the case was misidentification. The evidence unambiguously demonstrated the appellants' premeditation, deliberation and intent to kill; e.g., Thomas's remark to Stover "that him and Ron was going to finish that shit with Slush"; Herndon's effort to discover who killed Slush; his admission that "they had to do what they had to do because of Slush"; and the shooting of Fisher in the back. There was no evidence that Fisher's murder was the unintended (or unplanned) result of any other crime in which Thomas or Herndon intentionally participated. There is no reasonable chance that the erroneous "natural and probable consequences" language caused the jury to reach the wrong result in this case.
IV. Other Issues
A. Admission of Detective Williams's Testimony That He Believed Angela Freeman
Herndon contends the trial court erred in permitting Detective Williams to testify that he believed Angela Freeman when she told him her brother had admitted killing Fisher. We disagree.
Williams, who was called to impeach Freeman after she recanted her grand jury testimony, testified that he took her to the grand jury and then to the witness protection office after she initiated contact with him and provided a "detailed description" of her conversation with Herndon. On cross-examination, Herndon's attorney suggested that Freeman "had to satisfy" Williams by falsely inculpating her brother because she felt "under pressure" from other people in the neighborhood and wanted the financial and relocation assistance that came with being a government witness. Along the same lines, Thomas's counsel suggested that Freeman's information became progressively more inculpatory over the course of her contacts with the police. In the course of his cross-examination, he asked Williams whether he had believed Freeman when she said she was afraid of other people in the neighborhood. Thereafter, on redirect examination, the prosecutor asked Williams if he had believed Freeman "when she said her brother was the one." Herndon's objection to the question was overruled and Williams was permitted to answer in the affirmative.
Herndon invokes the principle that "one witness may not express a view or an opinion on the ultimate credibility of another witness' testimony."*fn97 This principle has been applied, paradigmatically though not exclusively, when a plaintiff or defendant is asked whether or why he thinks the opposing party's witnesses are lying.*fn98 Such questions are improper for several reasons: "[c]redibility determinations are the province of the jury"; they present a false dichotomy between truthful and perjured testimony by leaving aside the possibility of mere error; and they ask the defendant witness to speculate why the other witnesses' testimony is incorrect when he may have no basis to know, betraying the interrogator's fundamentally rhetorical purpose.*fn99
Here, though, Williams was not asked to opine on Freeman's credibility as a witness or otherwise, but only to say whether he in fact believed her out-of-court statements before he brought her to the grand jury. The evident purpose of the prosecutor's question was to rehabilitate Williams following defense counsel's suggestion on cross-examination that he had agreed to provide relocation assistance to Freeman in exchange for false testimony. Williams's testimony was admissible for the limited purpose of establishing that he did not act improperly in interviewing Freeman, bringing her to the grand jury, and helping her to relocate.*fn100
B. Admission of Freeman's Testimony That Herndon Had a Firearm
Herndon contends the trial court abused its discretion by admitting Freeman's grand jury testimony, which she disavowed at trial, that she saw Herndon with a firearm four days after the murder. On the contrary, the prior sworn testimony was admissible as substantive evidence,*fn101 and it was relevant because it showed Herndon's possession of what reasonably could have been the murder weapon soon after the shooting.*fn102 Evidence that the defendant possessed an instrumentality of the crime does not need to meet the strict standard for the admission of so-called "other crimes" evidence.*fn103
C. Sufficiency of the Evidence
Lastly, viewing the evidence as we must, in the light most favorable to the government, we are satisfied that it was sufficient to sustain appellants' convictions.*fn104 Herndon asked what Slush's killer looked like; he obtained a description that would explain his shooting of Fisher by mistake; he possessed a gun that could have been the murder weapon; he admitted killing Fisher to his sister; a witness to the murder (Davis) identified him; and he manifested consciousness of guilt by persuading his girlfriend to supply him with a false alibi. Thomas announced his intent to revenge Slush's killing while retrieving a weapon for the evident purpose of doing so; he later admitted being an accomplice to Fisher's murder; and his admissions were corroborated by other evidence, notably including (but not limited to) Herndon's statement to his sister that "Keith" was with him and his gun jammed. Reasonable jurors could credit the government's evidence and find each appellant guilty beyond a reasonable doubt.