In the
United States Court of Appeals
For the Seventh Circuit

No. 98-4275

Jeffrey C. Denny,

Petitioner-Appellant,

v.

Donald Gudmanson,

Respondent-Appellee.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97 C 405--Charles N. Clevert, Judge.

Argued March 30, 2001--Decided May 18, 2001



  Before Flaum, Chief Judge, and Posner and
Evans, Circuit Judges.

  Flaum, Chief Judge. After the Supreme
Court handed down its decision in Cruz v.
New York, 481 U.S. 186 (1987), Jeffrey
Denny sought to have his 1982 murder
conviction overturned. Jeffrey argued
that, according to Cruz, the admission of
his brother’s inculpatory statements at
their joint trial in 1982 constituted a
violation of the Confrontation Clause of
the Sixth Amendment. The Wisconsin trial
court denied Jeffrey’s motion, and the
Court of Appeals of Wisconsin affirmed
that decision. State v. Denny, 163 Wis.
2d 352 (Ct. App. 1991). When the Supreme
Court of Wisconsin denied Jeffrey’s
appeal, State v. Denny, 474 N.W.2d 107
(Wis. 1991), he sought habeas relief in
the District Court for the Eastern
District of Wisconsin. While the district
court concluded that there has been a
violation of Cruz, it agreed with the
state court of appeals that any error was
harmless. Thus, the court denied
Jeffrey’s petition for habeas relief. We
granted a certificate of appealability to
resolve the issues of whether the
admission of Jeffrey’s brother’s
inculpatory statements at their joint
trial violated Cruz, and, if so, whether
that violation was harmless. For the
reasons stated herein, we affirm the
district court’s denial of habeas relief.
I.   BACKGROUND

  On January 16, 1982, Christopher Mohr
was found dead, the victim of fifty-seven
stab wounds and multiple head traumas.
Though there were no eyewitnesses to the
murder, the police investigation
ultimately centered on Jeffrey Denny and
his brother Kent Denny. Subsequent to
Mohr’s slaying, both Jeffrey and his
brother made numerous inculpatory
statements, vaunting about the murder to
family members, friends, and
acquaintances. In due time, those
statements caught up with the pair, as
they were arrested and scheduled to be
tried jointly for first degree murder.

  On August 27, 1982, at a pretrial
hearing, Jeffrey objected to the
admission of statements made by Kent
which implicated Jeffrey in the crime,
and further moved to sever his trial from
that of his brother. The trial court,
relying on the plurality opinion of the
Supreme Court in Parker v. Randolph, 442
U.S. 62 (1979) denied the motion, finding
that the prosecution intended to present
testimony of "interlocking" inculpatory
statements by both co-defendants. At
their joint trial, neither co-defendant
testified, though numerous witnesses
testified as to Kent and Jeffrey’s
confessions. The trial culminated on
November 16, 1982, with a judgment of
conviction being entered against Jeffrey
on one count of first degree murder under
Wis. Stat sec. 940.01./1 On December 5,
1984, in an unpublished order, the
Wisconsin Court of Appeals affirmed
Jeffrey’s conviction.

  In 1987, the Supreme Court revisited the
issue of interlocking confessions in the
case of Cruz, 481 U.S. 186. Contrary to
the plurality decision in Parker--which
the Wisconsin courts had relied on in
denying Jeffrey’s motion--a majority of
the Court in Cruz determined that, in a
joint trial, the interlocking nature of
confessions did not preclude a
Confrontation Clause violation.
Thereafter, Jeffrey filed a motion for a
new trial under Wis. Stat. sec. 974.06,
arguing that the admission of Kent
Denny’s confessions violated his rights
under the Confrontation Clause of the
Sixth Amendment as interpreted in the
Supreme Court’s decision of Cruz. A
hearing was held on the matter, and on
April 24, 1990, the trial court denied
Jeffrey’s motion. That decision was
affirmed by the Wisconsin Court of
Appeals on May 15, 1991. See Denny, 163
Wis.2d. at 352. The court noted in its
decision that Cruz would require reversal
only if Kent Denny’s statements which
incriminated Jeffrey were not directly
admissible against Jeffrey at their joint
trial. However, because the court
concluded that the statements were
directly admissible against Jeffrey--as
falling within the "firmly-rooted"
hearsay exception of statements against
interest--the court found that the
Confrontation Clause posed no bar to the
admission of those declarations. See id.
at 358. Additionally, the court stated
that because of the overwhelming evidence
of guilt, any error in admitting the
statements of Kent Denny would be
considered harmless. See id. at 359-60.
Thereafter, the Wisconsin Supreme Court
denied Jeffrey’s appeal. State v. Denny,
474 N.W.2d at 107.

  On April 18, 1997, Jeffrey filed a
petition for a writ of habeas corpus with
the United States District Court for the
Eastern District of Wisconsin,
challenging the admission of the
inculpatory statements made by Kent Denny
on the ground that the admission violated
the Confrontation Clause. On December 2,
1998, the district court denied
Jeffrey’s habeas petition. In doing so,
the district court first noted that
admission of Kent Denny’s statement
through third parties did in fact violate
Jeffrey’s rights under the Confrontation
Clause. Specifically, the court ruled
that the out-of-court statements did not
come within a firmly-rooted exception to
the hearsay rule, and were therefore
admitted in violation of Jeffrey’s right
of confrontation. However, because the
court was convinced beyond a reasonable
doubt that the jury would have convicted
Jeffrey absent Kent Denny’s statement,
the court found the error to be harmless.
This Court issued a Certificate of
Appealability on March 29, 2000, on the
following issues:

  1. Whether the introduction of Denny’s
non-testifying co-defendant’s confession
through the testimony of third-party
witnesses violated Cruz v. New York, 481
U.S. 186 (1987)?

  2. If Cruz was violated, was the error
harmless?

Because the district court found that
there had been a Cruz violation, Jeffrey
does not contest that ruling. Jeffrey
does challenge, however, the district
court’s finding that any error in
admitting Kent’s statements constituted
harmless error. Specifically, Jeffrey
asserts that the district court
improperly analyzed the harmlessness
question under an inappropriate
standard.

II.    DISCUSSION

A.    Standard of Review

  Because the habeas petition in this case
was filed after the effective date of the
Antiterrorism and Effective Death Penalty
Act of 1996 ("AEDPA"), 28 U.S.C. sec.
2254, the standard of review contained in
the Act governs Jeffrey’s claims. See
Lindh v. Murphy, 521 U.S. 320, 322-23
(1997). AEDPA provides, in relevant part,
that habeas relief may be granted only if
the adjudication of the claim by the
state court "resulted in a decision that
was contrary to, or involved an
unreasonable application of, clearly
established Federal law, as determined by
the Supreme Court of the United States."
28 U.S.C. sec. 2254(d)(1). In Williams v.
Taylor, 529 U.S. 362 (2000), the Supreme
Court expounded on this standard,
asserting that a state court decision is
"contrary to" Supreme Court precedent "if
the state court applies a rule that
contradicts the governing law set forth
in [Supreme Court] cases," or "if the
state court confronts a set of facts that
are materially indistinguishable from a
decision of [the Supreme] Court and
nevertheless arrives at a result
different from [Supreme Court]
precedent." Id. at 405; see also Anderson
v. Cowan, 227 F.3d 893, 896 (7th Cir.
2000). As for the "unreasonable
application" portion of the statute, the
Court interpreted the phrase to encompass
the situations where "the state court
identifies the correct governing legal
rule from [the Supreme Court’s] cases but
unreasonably applies it to the facts of
the particular state prisoner’s case," or
"the state court either unreasonably
extends a legal principle from [Supreme
Court] precedent to a new context where
it should not apply or unreasonably
refuses to extend that principle to a new
context where it should apply." Williams,
529 U.S. at 407.

  In an appeal from a ruling on a petition
for habeas relief, we review the district
court’s findings of fact for clear error
and its rulings on issues of law de novo.
See Foster v. Schomig, 223 F.3d 626, 634
(7th Cir. 2000), cert. denied, Foster v.
Neal, 121 S.Ct. 1407 (2001). When the
case falls under sec. 2254(d)(1)’s
"contrary to" clause, we review the state
court decision de novo to determine the
legal question of what is clearly
established law as determined by the
Supreme Court and whether the state court
decision is "contrary to" that precedent.
See Anderson, 227 F.3d at 896; see also
Schaff v. Snyder, 190 F.3d 513, 522 (7th
Cir. 1999). However, when the case fits
within the "unreasonable application"
provision of sec. 2254(d)(1), we defer to
a reasonable state court decision. See
Anderson, 227 F.3d at 896-97. State court
factual findings that are reasonably
based on the record are accorded a
presumption of correctness. See 28 U.S.C.
sec. 2254(e)(1); Kurzawa v. Jordan, 146
F.3d 435, 440 (7th Cir. 1998).

B.   Confrontation Clause Violation

  The Confrontation Clause of the Sixth
Amendment guarantees the right of a
criminal defendant "to be confronted with
the witnesses against him." The Supreme
Court has held that the guarantee, which
is extended against the states by the
Fourteenth Amendment, includes the right
to cross-examine witnesses. See Pointer
v. Texas, 380 U.S. 400, 404 (1965).
Therefore, in Bruton v. United States,
the Court found that where two or more
defendants are tried jointly, the
pretrial confession of one of them that
implicates the other is not admissible
against the other unless the confessing
defendant waives his Fifth Amendment
right so as to permit cross-examination.
391 U.S. 123, 12-28 (1968). In Parker,
the Supreme Court decided a case which
resembled Bruton, save one large wrinkle:
each of the jointly tried defendants had
himself confessed, his own confession was
introduced against him, and his
confession recited essentially the same
facts as those of his nontestifying code
fendant. A plurality of the Court
determined that the admission of
interlocking confessions,/2 with proper
limiting jury instructions, did not
violate the Confrontation Clause. In so
deciding, the plurality understood Bruton
to hold that the Confrontation Clause is
violated only when the introduction of a
codefendant’s confession is "devastating"
to the defendant’s case. However, when
the defendant has himself confessed, his
"case has already been devastated," 442
U.S. at 75 n.7, so that the codefendant’s
confession "will seldom, if ever, be of
the ’devastating’ character referred to
in Bruton," and impeaching that
confession on cross-examination "would
likely yield small advantage." Id. at 73.

  At the time of Denny’s trial, Parker
represented the extent of the Supreme
Court’s guidance on the issue. Thus, when
Jeffrey first raised his Confrontation
Clause challenge to the admission of Kent
Denny’s statements, the Wisconsin courts
examined whether this case contained
interlocking confessions. Finding that
the statements made by Jeffrey and Kent
constituted interlocking confessions, the
courts concluded that there had been no
Confrontation Clause violation.

  However, in 1987, the Supreme Court
revisited the issue of interlocking
confessions. In Cruz, the Court held that
"where a nontestifying codefendant’s
confession incriminating the defendant is
not directly admissible against the
defendant . . . the Confrontation Clause
bars its admission at their joint trial,
even if the jury is instructed not
toconsider it against the defendant, and
even if the defendant’s own confession is
admitted against him." 481 U.S. at 193.
Because the Court of Appeals had analyzed
the petitioner’s Confrontation Clause
claim under the Parker approach which the
Court rejected, the Court reversed and
remanded Cruz’s case. See id.

1.   Hearsay Exception

  Based on the Court’s decision in Cruz,
Jeffrey filed a motion for a new trial.
After the Wisconsin trial court denied
Jeffrey’s motion, the case, once again,
was before the Court of Appeals of
Wisconsin. The court concluded that
while, generally, a new rule should not
be applied retroactively to cases on
collateral review, the rule enunciated in
Cruz fell within one of the established
exceptions to that prescript. See Denny,
163 Wis.2d. at 357. However, the court
did not believe that application of Cruz
mandated reversal of Jeffrey’s
conviction. "Cruz would require reversal
only if Kent’s statements--which
incriminate Jeffrey--were not directly
admissible against Jeffrey at their joint
trial. We conclude that Kent’s statements
were directly admissible against his
brother Jeffrey and, therefore, were not
barred by the confrontation clause." Id.
As the basis of its determination that
the statements were directly admissible
against Jeffrey, the court of appeals
focused on the hearsay exception of
"statements against interest," which it
considered to be "firmly-rooted." See id.

  In reviewing the petition for habeas
relief, the district court did not agree
with the Wisconsin Supreme Court’s
interpretation that Kent Denny’s
statements were directly admissible
against Jeffrey. The court noted that
although the confessions did in fact
constitute statements against interest,
that particular hearsay exception
"defines too large a class [of
statements] for meaningful Confrontation
Clause analysis, Lee v. Illinois, 476
U.S. at 544 n.5." Therefore, the court
determined that, in line with Lee, the
statements were presumptively unreliable.
See id. at 543.

  We find that district court was correct
in its determination that Kent Denny’s
statements were not directly admissible
against Jeffrey merely because they
constituted "statements against
interest." As the Supreme Court has
commented, "[r]eflecting its underlying
purpose to augment accuracy in the
factfinding process by ensuring the
defendant an effective means to test
adverse evidence, the [Confrontation]
Clause countenances only hearsay marked
with such trustworthiness that there is
no material departure from the reason of
the general rule." Ohio v. Roberts, 448
U.S. 56, 65 (1980) (internal citation
omitted). It is true that hearsay rules
and the Confrontation Clause are
generally designed to protect similar
values, see California v. Green, 399 U.S.
149, 155 (1970), and stem from the same
roots, see Dutton v. Evans, 400 U.S. 74,
86 (1970). However, simply because a
statement falls within a hearsay
exception does not necessitate a finding
that there has been no Confrontation
Clause violation. "The Court has applied
this ’indicia of reliability’ requirement
principally by concluding that certain
hearsay exceptions rest upon such solid
foundations that admission of virtually
any evidence within them comports with
the ’substance of the constitutional
protection.’" Roberts, 448 U.S. at 66
(quoting Mattox v. United States, 156
U.S. 237, 244 (1895)) (emphasis added).
While Wisconsin law has established that
the "statement against interest" is a
firmly-rooted hearsay exception, see
State v. Buelow, 122 Wis.2d 465, 479 (Ct.
App. 1984), the Supreme Court has
concluded that, for Confrontation Clause
purposes, this particular hearsay
exception defines a class so broad that
the exception may not always comport with
the substance of the constitutional
protection. See Lee, 476 U.S. at 544 n.5;
see also Lilly v. Virginia, 527 U.S. 116,
127 (1999) ("We have previously noted
that, due to the sweeping scope of the
label, a simple categorization of a
statement as a ’declaration against penal
interest’ . . . defines too large a class
for meaningful Confrontation Clause
analysis.")./3 Therefore, the district
court rightly held that Kent’s statements
were presumptively unreliable.

2.   Indicia of Reliability

  In Confrontation Clause analysis, a
firmly-rooted hearsay exception operates
as a proxy for reliability.
Thus,"[r]eliability can be inferred
without more in a case where the evidence
falls within a firmly-rooted hearsay
exception." Roberts, 448 U.S. at 66.
However, simply because a statement does
not fall within such a hearsay exception
does not mean that it must be excluded
under the Confrontation Clause. Roberts
recognized that even if hearsay evidence
does not fall within a firmly-rooted
hearsay exception, and is thus
presumptively unreliable and inadmissible
for Confrontation Clause purposes, it may
nonetheless meet Confrontation Clause
reliability standards if it is supported
by a showing of particularized guarantees
of trustworthiness. See id.; see also
Lilly, 527 U.S. at 136 ("The residual
’trustworthiness’ test credits the axiom
that a rigid application of the Clause’s
standard for admissibility might in an
exceptional case exclude a statement of
an unavailable witness that is
incontestably probative, competent, and
reliable, yet nonetheless outside of any
firmly-rooted hearsay exception.").
However, that is a presumption that is
not easily overcome. See Lee, 476 U.S. at
543-46.

  After concluding that the statements
attributed to Kent Denny did not fall
within a firmly-rooted exception to the
hearsay rule for Confrontation Clause
analysis, and were thus presumptively
unreliable, the district court did not
analyze the statements to assess whether
the presumption of unreliability was
overcome. Rather, the district court
simply moved on to discuss the Court of
Appeals of Wisconsin’s analysis of
harmlessness. Because the Supreme Court
has determined that "when deciding
whether the admission of a declarant’s
out-of-court statements violates the Con
frontation Clause, courts should
independently review whether the
[states]’s proffered guarantees of
trustworthiness satisfy the demands of
the Clause," Lilly, 527 U.S. at 137, we
find the district court’s decision to
delve directly into harmlessness poses no
problem to our review.

  We believe that the statements in
question possess sufficient indicia of
reliability to warrant their admission.
We are satisfied that these statements
are not of the type whose reliability is
particularly suspect--such as a
confession that shifts or spreads blame
from the declarant to incriminate co-
criminals, or a custodial confession made
to law enforcement authorities, where the
declarant responds to the leading
questions of officers without any
opportunity for contemporaneous cross-
examination. See id. at 137-38; United
States v. Robbins, 197 F.3d 829, 839 (7th
Cir. 1999). Rather, we believe that
Kent’s statements had sufficient indicia
of reliability at the time they were made
to deem them trustworthy. Kent’s
confessions were made in the course of
noncustodial conversations with trusted
friends and relatives. Furthermore, the
statements were not of a blame-shifting
nature; rather, they were equally
inculpatory. The circumstances under
which they were made offer no reason to
suspect coercion, ulterior motive, or
desire to curry favor with law
enforcement authorities. See Robbins, 197
F.3d at 840.

  In Cruz, the Court held that the
Confrontation Clause barred the admission
of a codefendant’s confession
incriminating the defendant if that
confession was not directly admissible
against the defendant, even if the
defendant’s own confession is admitted
against himself. 481 U.S. at 193.
However, the Court noted that "[o]f
course, the defendant’s confession may be
considered at trial in assessing whether
his codefendant’s statements are
supported by sufficient ’indicia of
reliability’ to be directly admissible
against him . . . despite the lack of
opportunity for cross-examination." Id.
at 193-94. In this instance, an
examination of the statements made by
Jeffrey further confirms the reliability
of Kent’s statements. Both brothers
described the murder of Mohr in specific
details to different parties. In
different statements, they both boasted
that Kent had begun the stabbing of Mohr
and that Jeffrey took over. Furthermore,
both brothers mentioned hitting the
victim over the head with a bong pipe.

  In sum, while we are mindful of "the
time-honored teaching that a
codefendant’s confession inculpating the
accused is inherently unreliable, and
that convictions supported by such
evidence violate the constitutional right
of confrontation," Lee, 476 U.S. at 546,
we find that the specific nature of the
statements in this instance requires a
departure from that principle. We cannot
conclude that the state court’s
determination that Kent Denny’s
statements were directly admissible
against Jeffrey is contrary to or an
unreasonable application of clearly
established Supreme Court precedent.

C.   Harmless Error

  Though we granted a certificate of
appealability and requested that the
parties address the issue of
harmlessness, because the state court’s
determination that there was no Cruz
violation is not contrary to or an
unreasonable application of Supreme Court
precedent, we need consider the question.
However, assuming arguendo that there was
error in admitting Kent’s statements, we
agree with the Court of Appeals of
Wisconsin and the district court that any
such error was harmless.

  It is well established that a violation
of the Confrontation Clause may be deemed
harmless error if there is overwhelming
evidence of the defendant’s guilt. See
Harrington v. California, 395 U.S. 250,
253 (1969). "In some cases the properly
admitted evidence of guilt is so
overwhelming, and the prejudicial effect
of the codefendant’s admission is so
insignificant by comparison, that it is
clear beyond a reasonable doubt that the
improper use of the admission was
harmless error." Schneble v. Florida, 405
U.S. 427, 430 (1972). Furthermore,
"unless there is a reasonable possibility
that the improperly admitted evidence
contributed to the conviction, reversal
is not required." Id. at 432.

  In Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986), the Supreme Court set
forth factors for determining whether a
violation of the Confrontation Clause was
harmless error. The Court stated that:

Whether such an error is harmless in a
particular case depends upon a host of
factors, all readily accessible to
reviewing courts. These factors include
the importance of the witness’ testimony
in the prosecution’s case, whether the
testimony was cumulative, the presence or
absence of evidence corroborating or
contradicting the testimony of the
witness on material points, the extent of
cross-examination otherwise permitted,
and, of course, the overall strength of
the prosecution’s case.

Additionally, while the Supreme Court
held in Cruz that the interlocking nature
of confessions does not preclude a
Confrontation Clause violation, the
interlocking nature of confessions could
operate to render the violation harmless.
481 U.S. at 191.

  Despite the fact that the district court
did not concur with the Wisconsin
appellate court’s determination that
there had been no violation of the
Confrontation Clause in this case, both
courts were in agreement that any error
in admission was harmless.

  As the Wisconsin Court of Appeals noted,
five different people testified that
Jeffrey Denny confessed to them his
direct participation in the murder of
Mohr. Another individual testified that
Jeffrey had stated that a bag he was
carrying contained the shoes he had worn
when he committed the murder. When those
shoes were recovered and examined, it was
revealed that the treads matched a shoe
print found at the murder scene. One
person also testified that Jeffrey had
said that, in addition to stabbing Mohr,
he had hit the victim on the head with a
bong pipe. At the murder scene, police
discovered fragments from a bong pipe.
All of the statements were consistent,
made at different times and places, in
some instances corroborated by physical
evidence, and were found to be credible
by the jury. Furthermore, these
statements were independent from any made
by Kent. Thus, the Wisconsin court
ultimately determined that "even if
Kent’s statements were not directly
admissible as to Jeffrey, it was harmless
error to admit them."/4

  In light of all the evidence against
Jeffrey Denny, we cannot conclude that
the state court’s determination that the
admission of Kent Denny’s confessions
against Jeffrey was harmless, if it was
error at all, is "contrary to or an
unreasonable application of" the clearly
established Supreme Court precedent of
Bruton and its progeny.

III. CONCLUSION
  For the foregoing reasons, we Affirm the
decision of the district court.

FOOTNOTES

/1 Though not relevant to these proceedings, Kent
Denny was also found guilty of one count of first
degree murder.

/2 Interlocking inculpatory statements are those
that clearly demonstrate the involvement of each
defendant as to crucial facts such as time, place
and activity and an awareness of an overall plan
or scheme. See Parker, 442 U.S. at 67-68.

/3 In Lilly, the Court distinguished the three
principal situations in which a statement against
penal interest would be offered into evidence.
See Lilly, 527 U.S. at 127. The state’s introduc-
tion of Kent Denny’s statements would be consid-
ered to fall under the Court’s first articulated
justification, "as voluntary admissions against
the declarant." Id. While the Court noted that
such statements "are routinely offered into
evidence against the maker of the statement and
carry a distinguished heritage confirming their
admissibility when so used," the mere fact that
"one accomplice’s confession qualified as a
statement against his penal interest did not
justify its use as evidence against another
person." Id. at 127-28.

/4 Jeffrey argues that the district court erred in
relying on the state court’s determination of
harmlessness, and furthermore applied the incor-
rect standard of harmless error in denying the
writ. In addressing harmlessness, both the Wis-
consin court and the district court appeared to
have relied on the standard set forth in Chapman
v. United States, 386 U.S. 18 (1967), examining
whether the jury would have convicted Jeffrey
absent Kent’s statements.

  As we noted in Anderson, the standard to be
employed, post-AEDPA, in assessing whether a
constitutional error is harmless is an open
question. See Anderson, 227 F.3d at 898 n.3.
Prior to AEDPA, federal courts analyzed questions
of harmlessness, on habeas review, under the rule
articulated in Brecht v. Abrahamson--inquiring
whether the error had a substantial and injurious
effect or influence in determining the jury’s
verdict. 507 U.S. 619, 637 (1993). However,
whether that holding has survived the passage of
AEDPA is unclear. See Anderson, 227 F.3d at 898
n.3 (examining the Sixth and Eighth Circuit’s
decisions on the issue). As in Anderson, we need
not weigh in on the debate at this juncture. Even
assuming that the Brecht standard--a standard
more generous than the standard employed in this
case--has survived the passage of AEDPA, given
the overwhelming evidence of Jeffrey’s guilt,
under Brecht this error would be considered
harmless.
