In the
United States Court of Appeals
For the Seventh Circuit
No. 09-3577
A NTONIO D. JONES,
Petitioner-Appellant,
v.
JAMES B ASINGER,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Indiana, Terre Haute Division.
No. 2:09-cv-00052-RLY-WGH—Richard L. Young, Chief Judge.
A RGUED F EBRUARY 8, 2011 — D ECIDED M ARCH 31, 2011
Before SYKES, T INDER, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. In 2004, petitioner Antonio
Jones was convicted in an Indiana state court for his in-
volvement in a horrific robbery that culminated in four
murders. At his trial, two police detectives testified in
detail about an informant’s double-hearsay statement
accusing Jones as the leader of the robbery and murders.
That testimony was allowed on the theory that it was
offered not to show the truth of the informant’s statement
but for the purpose of showing the course of the police
2 No. 09-3577
investigation that led to Jones’ arrest. A divided Indiana
Court of Appeals affirmed Jones’ conviction, and the state
courts denied relief on post-conviction review. Jones
petitioned for a writ of habeas corpus under 28 U.S.C.
§ 2254, alleging that this testimony violated his Sixth
Amendment right to confront the witnesses against him.
The district court denied the petition without reaching
the merits of Jones’ Sixth Amendment claim.
The trial record makes unmistakably clear that the
informant’s double-hearsay against Jones was in fact used
as substantive evidence to prove Jones’ guilt, in violation
of his Sixth Amendment rights. The Indiana Court of
Appeals’ failure to recognize this fact was an unreasonable
failure to apply the Supreme Court’s decision in Crawford
v. Washington, 541 U.S. 36 (2004), to this case. Accordingly,
we reverse and remand with instructions to grant the
petition.
I. The Murders and the Trial
Shortly after midnight on January 17, 2004, Ronyale
Hearne arrived at Anthony McClendon’s apartment in
Gary, Indiana, to pick up her two-year-old son A.M.
Jones v. State, No. 45A03-0407-CR-339, at 3 (Ind. App.
June 30, 2005) (unpublished opinion) (“Jones I”). Inside,
Hearne discovered that the apartment had been the site of
a brutal home invasion that had left three of the apart-
ment’s occupants dead—McClendon, Jimmie Jones, and
Laurice Jones. Young A.M. was alive but mortally
wounded. Hearne rushed him to the hospital, but he
died there of multiple gunshot wounds.
No. 09-3577 3
Two days later, law enforcement officers received a tip
that James Parks, Lenzo Aaron, and petitioner Antonio
Jones had killed A.M. and the others in the course of a
robbery. The informant claimed to have received this
information directly from Parks himself. Based on that
tip, Gary police arrested Jones and charged him with
four counts of murder.
A. The Prosecution’s Case
When the case was tried, the prosecution’s star witness
was Lenzo Aaron, who testified pursuant to a plea agree-
ment in which he admitted participating in the robbery
and murders, but under which all murder charges against
him were dropped. On the night of the murders, Aaron
explained, he, Parks, and Jones were at a party when
McClendon called to ask Jones for help in buying a quan-
tity of cocaine for $6,000. According to Aaron, Jones
needed that cash himself and decided to rob McClendon.
Aaron and Parks agreed to help, expecting that they would
receive equal shares of the proceeds.
According to Aaron, the three men then traveled to
McClendon’s apartment, where Jones knocked at the front
door and asked to be let in. When someone answered,
Jones rushed into the apartment, firing his weapon and
demanding to know where the money was. Jones and
Parks then went into the rear area of the apartment, where,
still according to Aaron, they killed McClendon and
Jimmie Jones. Afterwards, Aaron said, Parks demanded
that he kill Laurice Jones, but Aaron claimed that he left
4 No. 09-3577
the apartment rather than hurt anyone. (Aaron insisted
that, although he brought the AK-47 to McClendon’s
apartment, he never shot anybody the entire time he was
there.) Laurice and A.M. were both still alive when Aaron
last saw them. Aaron said he heard two final gunshots as
he walked away from the apartment. The three men then
went their separate ways. For his part in the crimes, Aaron
claimed he received only $230.
Jones’ defense vigorously challenged Aaron’s credibility.
In her opening statement, Jones’ attorney noted that Aaron
was the only witness who placed Jones at the scene of the
crime. She asserted that Aaron did so only “in order to get
the deal he got.” “They have no evidence,” the attorney
claimed, “other than a man who made a tremendous deal.
A tremendous deal to be able to sit here and tell you
anything that they need him to say.” As a parting shot at
Aaron’s credibility, Jones’ attorney described Aaron as
“someone who has a whole lot to lose,” someone willing to
say, “ ‘Oh, you want me to say [Jones] did it? Okay, [Jones]
did it.’ ”
B. The Double-Hearsay Accusation—Jeffrey Lewis’ State-
ment to Law Enforcement
In an attempt to counter Jones’ attack on the foundations
of its case, the prosecution requested and received the trial
court’s permission to present testimony detailing the tip
that had led to Jones’ arrest. The prosecution argued that
Jones had “opened the door” to such testimony by repeat-
edly implying that Aaron’s testimony was the only evi-
No. 09-3577 5
dence of Jones’ guilt. Tr. 590-93. Over Jones’ objection, the
court agreed to allow the prosecution to discuss the infor-
mant’s tip, reasoning that “one implication of [Jones’]
questioning could be that the police are all over God’s
creation looking for evidence and they found nothing to
connect your client to this [crime].” Tr. 594. As a result, the
court explained, it would allow testimony about the
informant’s tip “for the limited purpose of showing course
of investigation, which takes it outside of the hearsay rule.”
Id.
The prosecution then questioned Gary police detectives
Lorenzo Davis and Michael Jackson regarding the tip that
initially led them to suspect Jones’ involvement in the
murders. Their extensive testimony went far beyond any
arguably legitimate “course of investigation” use and
provided a detailed but double-hearsay account of the
crimes. The prosecution was even allowed to bolster the
credibility of the non-testifying tipster, a point that would
have been completely irrelevant if the tip were not being
used to prove the truth of its contents.
According to Detective Jackson, a man had contacted
police two days after the murders and claimed to have
information about them. The man refused to identify
himself or provide any information but said he would call
back later. When the man called back the next day, he
identified himself as Jeffrey Lewis and said that he wanted
to talk about what had happened at McClendon’s apart-
ment.
Detective Jackson met with Lewis the next day, and
Lewis told Jackson “who committed the [shooting], what
6 No. 09-3577
took place, the type of weapons that they used, and where
all of these individuals were or lived.” Specifically, Lewis
claimed that his brother James Parks had confessed to
Lewis that he, Aaron, and Jones had committed the four
murders. According to Lewis, Parks had told him that the
three men were at a party together before going to rob
McClendon’s apartment. Lewis also said that his brother
had supposedly told him the motive for the robbery: Jones
“needed the money to pay his rent.”
Lewis also told the police that Parks had provided a
number of specific details about the shootings. The men
had gained entry into McClendon’s apartment, Lewis
said, by simply knocking and asking to be let in. Once
inside, Lewis told the detectives, Jones declared that “they
couldn’t leave any witnesses,” and Parks told Aaron to
“finish off” Laurice Jones. Lewis also said that his brother
had told him that Jones and the others had made off
with “a large sum of money [from] the residence.”
Lewis said the murder weapons were a .22-caliber
handgun, a .45-caliber handgun, and an AK-47 assault rifle,
and he provided descriptions of the .45-caliber and the AK-
47. A man named Shawn Dixon had purchased the AK-47
for Parks, and Lewis had seen Jones with the .45-caliber “a
lot of times.” According to Lewis, Parks still had the AK-
47, but the handguns had been discarded in a “swampy
area” or waterway near Chase Street in Gary. This detailed
and damning double-hearsay was allowed despite re-
peated objections by the defense, always on the theory
that it was showing only the “course of the investigation”
and responding to Jones’ defense that the only (admissible)
No. 09-3577 7
evidence linking him to the crimes came from Aaron
pursuant to his generous plea agreement.
Despite these objections, the trial court made no effective
effort to caution the jury not to consider Lewis’ statement
for its truth, though such instructions should have been
given if there were any merit to the rationale for allowing
the testimony in the first place. The court never instructed
the jury that Detective Davis’ testimony about the Lewis
statement could not be considered for the truth of its
contents. During Detective Jackson’s lengthy and detailed
testimony about the Lewis statement, the court told the
jury that responses to only three specific questions
about the Lewis statement should not be considered
for their truth.
In closing arguments, the prosecution further bolstered
its case with the double-hearsay from Lewis. The prosecu-
tor reminded the jury that it was Lewis’ information that
had initially caused the police to investigate Jones:
They were already looking for Shawn Dixon and the
AK-47 purchase. They were already going up and
down . . . trying to find the guns that were thrown.
And Lenzo Aaron was not arrested until January 26.
They were already, already looking for three people.
Three different guns and those three people were
[Parks, Aaron, and Jones], long before Lenzo Aaron
talked to the police.
Tr. 1898-99. In its rebuttal closing argument, the prosecu-
tion continued:
You now know that Aaron is not the only reason that
we’ve been here for the last two weeks. He is not. They
8 No. 09-3577
followed their investigation . . . the information that
[they] received was to go after Aaron first, because
Aaron is the weakest link. And that is just what they
did. As far as some reward, [Lewis] never asked for it.
He said from the beginning, it’s not about the money.
It’s about the baby. That’s what it’s about.
Tr. 1954. Following closing arguments, the trial court
issued its final jury instructions, none of which imposed
any limits on treatment of the Lewis statement. The case
then went to the jury, which convicted Jones on all four
counts of murder. The trial court sentenced Jones to a total
of 240 years in prison.
II. Direct and Collateral Review
On direct appeal from his conviction, Jones argued that
the testimony about what Lewis told the detectives vio-
lated his Sixth Amendment right to confront the witnesses
against him. A majority of the Indiana Court of Appeals
rejected this claim. The majority acknowledged Jones’
attempt to “establish that Aaron was the only source of
evidence” against him and acknowledged that this attack
may have “weakened the State’s case since Aaron testified
in the trial pursuant to the terms of a plea agreement.”
Jones I, No. 45A03-0407-CR-339, at 6-7. Although the
majority admitted that the testimony about Lewis’ state-
ment “pointed toward [Jones’] guilt” and “had great
prejudicial impact since it suggested that Jones committed
the quadruple homicide,” the majority said that the
prosecution had to “introduce[ ] the police detectives’
testimony to prove that there was a great deal of evidence
No. 09-3577 9
that was developed prior to [Aaron’s] statement that was
based upon evidence given to them by [Lewis].” Id. at 7
(quotation marks omitted). It was “necessary,” the majority
declared, “to explain to the jury why the police started
investigating Jones because Jones sought to prove that
Aaron, whose credibility was in question, was the only
source of evidence against him.” Id. at 9. Because “the
testimony of the police detectives regarding [Lewis’]
statement about his brother’s confession was [proffered
only] to show the course of police investigation . . . the
testimony did not constitute hearsay, and [Jones’] right to
confront the witnesses against him was not violated.” Id. at
10-11. The Court of Appeals majority also said that admis-
sion of the Lewis statement was harmless because “the
judge instructed the jury every time that the statement was
only offered to prove the course of the police investigation
and not the truth of the matter.” Id. at 7.
In a dissenting opinion, Chief Judge Kirsch argued that
“the purpose of the hearsay evidence was clearly to bolster
the State’s case against Jones, not to show the conduct of
the police investigation.” Id. at 17. “Jones’ counsel made no
comment about the police investigation,” he pointed out,
but merely “noted that the only evidence which the jury
would hear would come from [Aaron], who had struck a
favorable plea bargain with the State.” Id. Given this fact,
“the State’s claim that the challenged evidence was being
admitted for a purpose other than to prove the truth of the
matter asserted strains credulity.” Id. Judge Kirsch wrote
that “the majority seems to say that because the admissible
evidence against Jones was weak, and Jones’ counsel noted
such fact, it was proper to admit otherwise inadmissible
10 No. 09-3577
evidence.” Id. at 16. Under that rationale, he feared, “any
hearsay statement to police during the course of their
investigation would be admissible whenever a defendant
makes any comment on the evidence.” Id. at 17.
The Indiana Supreme Court declined to hear the case,
and Jones’ conviction was later upheld on state collateral
review. Having exhausted his state post-conviction reme-
dies, Jones petitioned for a writ of habeas corpus in federal
district court, again asserting that the introduction of
Lewis’ statement violated his Sixth Amendment rights. The
district court disagreed, determining that the admissibility
of Lewis’ statement was merely an “issue of state eviden-
tiary law,” so that habeas relief could be granted only if
that statement’s admission violated either due process or
the Sixth Amendment’s Confrontation Clause. Jones v.
Finnan, No. 09-cv-052, at 4 (S.D. Ind. Sept. 24, 2009),
quoting Johnson v. Bett, 349 F.3d 1030, 1037 (7th Cir. 2003).
The district court did not reach the merits of Jones’ Sixth
Amendment claim, however. Rather, the district court
framed the issue in terms of whether Lewis’ statement
violated Jones’ right to due process of law. Even if a
constitutional violation had occurred, the district court
added, any error was harmless because the detectives’
“ ‘testimony was not the only testimony that pointed
toward [Jones’] guilt’ ” and because “ ‘the [trial] judge
instructed the jury every time that [Lewis’] statement was
only offered to prove the course of police investigation and
not the truth of the matter asserted.’ ” Id. at 4, quoting Jones
I, No. 45A03-0407-CR-339, at 7. As we will see, on this key
point, both the state appellate court and the district
No. 09-3577 11
court erroneously described the trial record and applied
the wrong legal standard.
After denying Jones’ habeas petition, the district court
also denied Jones’ request for a certificate of appealability,
see 28 U.S.C. § 2253(c)(1)(A), on the grounds that no
reasonable jurist could disagree with its resolution of
Jones’ constitutional claims. The district court went on to
say that Jones’ appeal was “not taken in good faith”
because there was “no objectively reasonable argument
which [Jones] could present to argue that the disposition
of [his petition] was erroneous.” This court granted a
certificate of appealability on the sole issue of whether
the admission of out-of-court statements at trial violated
Jones’ Sixth Amendment right of confrontation.
III. Appellate Jurisdiction and Standards of Review
We have appellate jurisdiction over Jones’ Sixth Amend-
ment claim pursuant to our grant of a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A) (prohibiting
appeals from final orders in habeas proceedings absent a
certificate of appealability); Miller-El v. Cockrell, 537
U.S. 322, 336 (2003) (“[U]ntil a [certificate of appealability]
has been issued federal courts of appeals lack jurisdiction
to rule on the merits of appeals from habeas petitioners.”).
Our appellate jurisdiction extends only to the Sixth
Amendment claim described in that certificate. See
28 U.S.C. § 2253(c)(3); Rittenhouse v. Battles, 263 F.3d
689, 693 (7th Cir. 2001) (noting that “a habeas petitioner
may appeal only those issues for which a certificate of
appealability has been granted”).
12 No. 09-3577
We pause briefly to note the district court’s error in
denying a certificate of appealability in this case. The
statute provides that a certificate of appealability may issue
“only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
The Supreme Court has interpreted this language to
require a showing that “reasonable jurists could debate
whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that
the issues presented were adequate to deserve encourage-
ment to proceed further.” Slack v. McDaniel, 529 U.S. 473,
484 (2000), following Barefoot v. Estelle, 463 U.S. 880,
893 (1983).
When a state appellate court is divided on the merits of
the constitutional question, issuance of a certificate of
appealability should ordinarily be routine. A district court
could deny a certificate of appealability on the issue that
divided the state court only in the unlikely event that the
views of the dissenting judge(s) are erroneous beyond any
reasonable debate. See Slack, 529 U.S. at 484. That prospect
is likely rare enough to call for some explanation in the
order denying the certificate of appealability, an explana-
tion that was lacking here.
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), Jones must first show that “he is in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a); see Wilson v. Corcoran,
131 S. Ct. 13, 16 (2010) (per curiam) (“[I]t is only noncom-
pliance with federal law that renders a State’s criminal
judgment susceptible to collateral attack in the federal
No. 09-3577 13
courts.”). Second, Jones must also show that his detention
was the result of a state court decision (1) “contrary to, or
involv[ing] an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States;” or (2) “based on an unreasonable
determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U.S.C. § 2254(d).
We review the district court’s legal conclusions de novo.
Milone v. Camp, 22 F.3d 693, 698 (7th Cir. 1994). The district
court made no independent findings of fact (which would
have been reviewed for clear error, Reeves v. Battles,
272 F.3d 918, 920 (7th Cir. 2001)), so our review is limited
to the state courts’ findings of fact, which are presumed
to be correct unless rebutted by clear and convincing
evidence. 28 U.S.C. § 2254(e)(1).
IV. The Sixth Amendment Violation
The first issue we address on the merits is whether the
introduction of the double-hearsay statement by Lewis
violated Jones’ Sixth Amendment right to confront wit-
nesses against him, as set forth by the Supreme Court in
Crawford. The record makes clear that Jones in fact suffered
repeated violations of his Sixth Amendment right to
confront Lewis and Parks.
The Confrontation Clause guarantees criminal defen-
dants the benefit of “the principal means by which the
believability of a witness and the truth of his testimony are
tested,” Davis v. Alaska, 415 U.S. 308, 317 (1974)—subjecting
that testimony to “the crucible of cross-examination,”
14 No. 09-3577
Crawford, 541 U.S. at 61. In the American legal system,
the role of cross-examination has paramount importance to
a criminal trial’s core truth-seeking function. See California
v. Green, 399 U.S. 149, 158 (1970) (calling cross-examination
“the greatest legal engine ever invented for the discovery
of truth” (quotation omitted)). A rigorous cross-examina-
tion may bring to light a variety of reasons to doubt a
witness’s testimony, ranging from innocent failures in
perceptions and memory to biases, prejudices, or ulterior
motives, or outright inconsistencies and falsehoods. See
Davis, 415 U.S. at 317. The Confrontation Clause also
advances the pursuit of truth by “insur[ing] that the
witness will give his statements under oath—thus im-
pressing him with the seriousness of the matter and
guarding against the lie by the possibility of a penalty
for perjury,” and by “permit[ting] the jury that is to
decide the defendant’s fate to observe the demeanor of
the witness in making his statement, thus aiding the jury
in assessing his credibility.” Green, 399 U.S. at 158.
To ensure these benefits of cross-examination, the Sixth
Amendment bars the admission of “testimonial hearsay”
against a criminal defendant unless (1) the declarant was
unavailable at trial; and (2) the defendant had a prior
opportunity to cross-examine that declarant. Crawford, 541
U.S. at 68. Neither of these requirements was satisfied
here. Lewis was clearly available—the prosecution had
Lewis under subpoena but simply chose not to call him as
a witness. (T. 1249, 1452). Jones never had a prior opportu-
nity to cross-examine Lewis about his statement. See id.
at 54 (“[T]he common law in 1791 conditioned admissibil-
ity of an absent witness’s examination on unavailability
No. 09-3577 15
and a prior opportunity to cross-examine. The Sixth
Amendment therefore incorporates those limitations.”).
Therefore, Jones’ right to confrontation was violated if
Lewis’ statement (1) was testimonial; and (2) was hearsay.
See id. at 68. It was both.
As to the first element, the State concedes with good
reason that Lewis’ statement was testimonial. Crawford
declined to “spell out a comprehensive definition of
‘testimonial,’ ” id., but the term clearly pertains to state-
ments made “in anticipation of or with an eye toward a
criminal prosecution.” E.g., United States v. Tolliver,
454 F.3d 660, 665 (7th Cir. 2006); see Davis v. Washington,
547 U.S. 813, 822 (2006) (asking whether “primary pur-
pose” of a statement was “to establish or prove past events
potentially relevant to later criminal prosecutions”). Lewis’
statement to the police, supposedly made for the purpose
of helping bring to justice the people responsible for the
murders in the McClendon home invasion, certainly
qualifies as testimonial.
Lewis’ statement was also hearsay—double-hearsay, to
be precise, because the detectives testified about what
Lewis claimed his brother Parks had told him—but this
conclusion requires some explanation in light of the
state courts’ treatment of this evidence. The identical
Indiana and federal evidentiary rules define hearsay as “a
statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” Ind. R. Evid. 801(c);
16 No. 09-3577
Fed. R. Evid. 801(c).1 Under this definition, “[w]hether a
statement is hearsay . . . will most often hinge on the
purpose for which it is offered.” E.g., United States v.
Linwood, 142 F.3d 418, 425 (7th Cir. 1998). Crawford adopted
this purpose-based definition of hearsay for the purposes
of the Confrontation Clause. See 541 U.S. at 59 n.9 (noting
that the Confrontation Clause does not apply to statements
offered “for purposes other than establishing the truth of
the matter asserted”); United States v. York, 572 F.3d 415,
427 (7th Cir. 2009) (“Crawford applies only to hearsay,
which must be a statement offered for the truth of the
matter asserted.”), citing Crawford, 541 U.S. at 59 n.9.
The ultimate question, then, is whether the prosecution
offered Lewis’ statement for the purpose of establishing the
truth of its contents. See United States v. Mancillas, 580 F.2d
1301, 1309 (7th Cir. 1978) (“Even if a tip with a direct
charge of specific criminality cannot practically be
[r]eceived in evidence only to prove something other than
its truth, it can be nevertheless [o]ffered for that purpose,
and it is by the offer that [hearsay is defined].”). The State
concedes this point, admitting that, “had the [officers’]
testimony . . . been admitted as substantive evidence,
1
The district court characterized Jones’ Sixth Amendment claim
as an “issue of state evidentiary law” governed by Indiana law.
Jones v. Finnan, No. 09-cv-052, at 4. That characterization cannot
be reconciled with Crawford, which made clear that the only
hearsay definition relevant to Sixth Amendment analysis
derives from the Constitution itself, not from the “vagaries
of the rules of evidence” adopted by the states. See 541 U.S.
at 61. See, infra, note 4.
No. 09-3577 17
Crawford’s requirement of adversarial testing would have
been violated.” Undoubtedly, the purpose for which
Lewis’ statement was put before the jury is generally a
question of fact, not law. See, e.g., United States v. Rea,
621 F.3d 595, 604 (7th Cir. 2010) (applying clear error
standard when reviewing factual predicates to district
court’s hearsay ruling). We are therefore bound by the state
courts’ conclusion that Lewis’ statement was offered not
for its truth, but for a permissible non-hearsay purpose,
Jones I, No. 45A03-0407-CR-339, at 10-11, unless there
is clear and convincing evidence to the contrary. 28 U.S.C.
§ 2254(e)(1).2
The record of Jones’ trial shows beyond reasonable
dispute that the Lewis statement was offered for the
purpose of showing its truth, and that the trial court
actually allowed its use to prove its truth. Time and again,
the prosecution admitted that it wanted “to get into” the
statement to show that “other independent evidence”
linked Jones to the killings. Tr. 590. In contesting Jones’
motion to strike Detective Davis’ testimony regarding
Lewis’ statement, for example, the prosecution argued that,
2
We are not suggesting that a court should engage in a purely
subjective inquiry into the prosecutor’s motives, such that a
prosecutor could be called as a witness at an evidentiary hearing
to testify as to the “real” reasons for offering an out-of-court
statement into evidence. We mean only that the inquiry is an
objective one, based on all of the circumstances attendant to the
offer of a particular statement into evidence — i.e., the prosecu-
tor’s statements in open court, the actual use to which that
statement was put at trial, etc.
18 No. 09-3577
because Jones had argued that there was “no evidence
linking [him] to this case except for Lenzo Aaron,” it was
entitled to show that “there was independent evidence that
said that [Jones] was in that apartment with [Aaron and
Parks]. And that information came from . . . Jeffrey Lewis.”
Tr. 1132-33. Later, in regard to that same motion, the
prosecution claimed that, because Lewis had provided his
hearsay tip against Jones, “the jury cannot be left with [the]
impression” that “the only evidence against Antonio
Jones . . . came from Lenzo Aaron.” Tr. 1268. “[Jones] said
that there was no evidence that linked [him] to that crime
scene other than Lenzo Aaron. . . . And now we should
be allowed to defend ourselves because the impression
that [Jones] has left this jury with is not the correct impres-
sion.” Tr. 1270. By asserting it was using Lewis’ statement
to serve as “independent evidence” of Jones’ guilt, the
prosecution effectively admitted that Lewis’ statement
was inadmissible hearsay being offered to prove the
truth of the matters asserted. See, e.g., United States v.
Harris, 542 F.2d 1283, 1300 (7th Cir. 1976) (noting that the
hearsay rule “precludes the introduction of out of court
statements made by one person as evidence against
another”). That admission belies any contention that
Lewis’ statement was used purely for a permissible
collateral purpose.
As if that were not enough, the prosecution was allowed
to go to some lengths to convince the jury that Lewis was
a credible source of evidence. During its direct examination
of Detective Jackson, for example, the prosecution asked
whether Lewis had requested any reward for his informa-
No. 09-3577 19
tion.3 He had not. He had come forward, he had told the
police, because of “what happened to the little baby.” Tr.
1395. On redirect, the prosecution went on to ask questions
designed to show that Lewis’ statement was credible
because it was consistent with Aaron’s trial testimony, Tr.
1446, and because it contained information about the
shootings that had never been released to the public. Tr.
1449. During its closing argument, the prosecution re-
minded the jury that Lewis’ statement could be believed
because he had “said from the beginning, it’s not about the
money. It’s about the baby. That’s what it’s about.” Tr.
1954.
The prosecution thought it imperative for the jury to find
that the absent Lewis was credible. But why did Lewis’
credibility matter if his statement was, as the prosecution
insisted, offered only to show that the initial information
about the case came not from Aaron but from Lewis? If
that really was the reason the prosecution wanted the jury
to know about Lewis’ statement, the only individuals
whose credibility should have been at issue were Detec-
tives Davis and Jackson. Lewis’ credibility was important
only if the prosecution was using his statement to prove
the truth of its contents—in other words, his credibility
mattered only if his statement was in fact inadmissible
hearsay. See, e.g., In re Sawyer’s Petition, 229 F.2d 805,
809 (7th Cir. 1956) (“Evidence is hearsay when its probative
3
The parties stipulated that a $100,000 reward for information
regarding the killings was made public before Lewis came
forward with his information.
20 No. 09-3577
force depends on the competency and credibility of some
person other than the witness.”) (quotation omitted); see
Black’s Law Dictionary 739 (8th ed. 2004) (defining hearsay
as “testimony . . . dependent on the credibility of someone
other than the witness”).
The record of Jones’ trial leaves no reasonable room for
doubt. Lewis’ statement was used to establish the truth
of his out-of-court declarations. Jones has easily carried
his burden to show that the state courts’ conclusions to the
contrary were erroneous, see 28 U.S.C. § 2254(e)(1), leaving
us free to conclude that Lewis’ statement was in fact
hearsay as the Supreme Court defined that term in
Crawford. See 541 U.S. at 59 n.9. Because Lewis’ statement
was hearsay, because that statement was testimonial
in nature, and because Jones never had the opportunity
to cross-examine Lewis or Parks, Detectives Davis’ and
Jackson’s extensive testimony regarding that statement
violated Jones’ Sixth Amendment right to confront Lewis
and Parks. See Crawford, 541 U.S. at 68.
V. Unreasonable Application of Clearly Established Federal Law
Jones has met his threshold burden to show a violation of
his constitutional rights. 28 U.S.C. § 2254(a). We may not
grant habeas relief, however, unless that violation
resulted from the state courts’ “unreasonable applica-
tion” of “clearly established Federal law” to Jones’ claim.
28 U.S.C. § 2254(d)(1). We focus here on the decision of the
Indiana Court of Appeals. See Garth v. Davis, 470 F.3d
702, 710 (7th Cir. 2006) (“The relevant state court decision
is that of the last state court to address the claim on
No. 09-3577 21
the merits.”). Our next step under AEDPA, then, is to
determine whether Jones’ right to confront Lewis or Parks
was “clearly established” under the circumstances. See
Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999) (quotation
omitted).
A right is “clearly established” if that right was set forth
in the “holdings, as opposed to the dicta, of [the] Court’s
decisions as of the time of the relevant state-court deci-
sion.” Williams v. Taylor, 529 U.S. 362, 412 (2000); see
Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir. 1997) (noting
that circuit courts of appeal may not rely on rights estab-
lished solely by their own precedent to meet this prelimi-
nary requirement). Under this standard, the constitutional
right at issue here was clearly established for purposes of
AEDPA. The Supreme Court decided Crawford just a few
months before Jones’ trial.
A. Crawford’s Clear Prohibition
An unreasonable application of federal law is different
from a merely incorrect application of federal law. See
Williams, 529 U.S. at 410. Generally, a state court unreason-
ably misapplies controlling Supreme Court precedent
when it “identifies the correct governing legal rule from
[the] Court’s cases but unreasonably applies it to the facts
of the particular state prisoner’s case.” Id. at 407. An
unreasonable application of Supreme Court precedent may
also occur when a state court unreasonably refuses
to extend a governing legal principle to a context in which
it should have controlled, Ramdass v. Angelone, 530 U.S.
22 No. 09-3577
156, 166 (2000) (plurality), or unreasonably extends a
principle to a situation in which it should not have con-
trolled, see Williams, 529 U.S. at 408 (noting that latter
formulation “may perhaps be correct”). In applying this
formulation of the “unreasonable application” standard, a
court should be mindful of the Supreme Court’s warning
that this formulation has “problems of precision” that may
make it difficult to apply. Williams, 529 U.S. at 408.
We must consider “whether the state court’s application of
clearly established federal law was objectively unreason-
able.” Id. at 409; see Harrington v. Richter, 131 S. Ct. 770,
786-87 (2011) (“As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the
state court’s ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”).
Here, the state court of appeals correctly identified the
governing legal rules in Crawford but unreasonably applied
those rules to the facts of Jones’ case. The state court
applied a “course of investigation” exception to Jones’ case
so excessively broad as to allow the admission of testimo-
nial hearsay whenever a defendant attempts to challenge
the strength of the evidence or the veracity of the prosecu-
tion’s witnesses against him. In doing so, the state court of
appeals also failed to follow the limitations that Bruton
v. United States, 391 U.S. 123 (1968), and Tennessee v. Street,
471 U.S. 409 (1985), place on the admissibility of statements
such as Lewis’, the substance of which was Parks’ confes-
sion of his own involvement in the murders, a confession
that also directly implicated Jones in the crimes.
No. 09-3577 23
1. The “Course of Investigation” Exception
In an attempt to justify the state appellate court’s treat-
ment of the Lewis statement, the State notes our decisions
holding that an informant’s out-of-court statement to law
enforcement is not hearsay if that statement is offered into
evidence “as an explanation of why the [subsequent]
investigation proceeded as it did.” E.g., United States v.
Eberhart, 434 F.3d 935, 939 (7th Cir. 2009). Applying
this exception, we have rejected Sixth Amendment claims
premised on such statements on the grounds that non-
hearsay use of such statements does not violate the Con-
frontation Clause. See id.; United States v. Akinrinade,
61 F.3d 1279, 1283 (7th Cir. 1995). From these decisions, the
State argues, the state appellate court could reasonably (if
erroneously) have inferred that the introduction of Lewis’
statement into evidence to show the course of the investi-
gation did not violate Jones’ Confrontation Clause rights.4
4
In an attempt to preclude meaningful analysis of this issue,
the State argues that there is no “rule binding upon states
in interpreting their own rules of evidence in determining
whether . . . statements are or are not hearsay” for purposes of
the Sixth Amendment. In other words, the State argues that if it
adopted a rule narrowly defining hearsay — for example, by
excluding certain crimes from the hearsay rule as a matter of
public policy — the Confrontation Clause would not apply to any
out-of-court statements admitted under that rule because they
are not hearsay under state law. Cf. State v. Moua Her, 750
N.W.2d 258 (Minn. 2008) (adopting a short-lived “murder
exception” to the Confrontation Clause), vacated and remanded,
(continued...)
24 No. 09-3577
In making this argument, the State “has displayed so
egregious a misunderstanding” of our cases “that the
subject requires some explanation.” United States v. Reyes,
18 F.3d 65, 70 (2d Cir. 1994) (reversing convictions after
district court allowed hearsay confessions implicating
defendants on trial). Although an out-of-court statement
offered to show the reason a police investigation proceeded
as it did “could be said not to be [inadmissible] hearsay,”
the “reasons for [an] investigation [are] most assuredly
not something the Government [has] to prove to carry
its burden” of proof in a criminal trial. Mancillas, 580 F.2d
at 1309-10. Aside from those limited details necessary
to show “that the evidence [found] is actually relevant,”
United States v. Tanner, 628 F.3d 890, 903 n.5 (7th Cir. 2010),
the details of an investigation are generally “of only
minimal consequence to the determination of the action.”
Mancillas, 580 F.2d at 1310 (quotation marks omitted); see
4
(...continued)
Moua Her v. Minnesota, 129 S. Ct. 929 (2009). Not only would this
run directly counter to Crawford, which made clear that the Sixth
Amendment is not constrained by the “vagaries of the rules of
evidence” adopted by the states, see 541 U.S. at 61, but it would
also effectively nullify the Confrontation Clause in the state
courts, see id. at 51 (“Leaving the regulation of out-of-court
statements to the law of evidence would render the Confronta-
tion Clause powerless to prevent even the most flagrant inquisi-
torial practices.”). In other words, whether a statement is
hearsay for purposes of the Confrontation Clause is a matter of
federal law, not a matter of state evidentiary law. It is only
sensible then, that we look to our own interpretation of the
“course of investigation” rule to resolve the issues in this case.
No. 09-3577 25
United States v. Linwood, 142 F.3d 418, 426 (7th Cir. 1998)
(questioning relevance of such testimony); Reyes, 18 F.3d
at 71 (noting that the “history of [an] investigation” is a
useful narrative device, but is “not relevant to the guilt or
innocence of the defendant”); Teague v. State, 314 S.E.2d
910, 912 (Ga. 1984) (“At heart, a criminal prosecution is
designed to find the truth of what a defendant did and, on
occasion, of why he did it. It is most unusual that a prose-
cution will properly concern itself with why an investigat-
ing officer did something.”); 2 McCormick on Evidence
§ 249 (6th ed.) (“The need for this evidence is slight . . . .”).
By the same token, the probative value of a tip on which
an investigation was based is “marginal, at best,” absent
perhaps a (relevant) allegation of police impropriety.
United States v. Lovelace, 123 F.3d 650, 653 (7th Cir. 1997);
see also United States v. Silva, 380 F.3d 1018, 1020 (7th
Cir. 2004) (noting in dicta that such a tip may perhaps be
relevant to “dispel an accusation that the officers were
officious intermeddlers staking out [a defendant] for
nefarious purposes”); Reyes, 18 F.3d at 70 (observing that
such evidence might “constitute appropriate rebuttal to
initiatives launched by the defendant”). Even when
the police have been accused of acting improperly, how-
ever, the relevance of law enforcement’s “reasons for
investigation” remains questionable. See Mancillas,
580 F.2d at 1310.
While such “course of investigation” evidence usually
has little or no probative value, the dangers of prejudice
and abuse posed by the “course of investigation” tactic are
significant. More than thirty years ago, we cautioned that
26 No. 09-3577
the “testimonial repetition of a declarant’s out-of-court
charge that the defendant would engage or was engaged
in specific criminality would seem to create too great a
risk” of prejudice and confusion than can be “justified
simply to set forth the background of the investigation.”
Mancillas, 580 F.2d at 1310. More recently, we pointed out
that an unthinking, expansive application of the “course of
investigation” exception would effectively undermine the
Confrontation Clause: “Allowing agents to narrate the
course of their investigations, and thus spread before juries
damning information that is not subject to cross-examina-
tion, would go far toward abrogating the defendant’s
rights under the sixth amendment and the hearsay rule.”
Silva, 380 F.3d at 1020. Consistent with these observations,
then, “the use of out-of-court statements to show back-
ground has been identified as an area of ‘widespread
abuse.’ ” United States v. Sallins, 993 F.2d 344, 346 (3d Cir.
1993); see 2 McCormick on Evidence § 249 (“One area
where abuse may be a particular problem involves state-
ments by arresting or investigating officers regarding the
reason for their presence at the scene of a crime.”).
Such statements offered to show “background” or “the
course of the investigation” can easily violate a core
constitutional right, are easily misused, and are usually no
more than minimally relevant. Courts asked to admit such
statements for supposed non-hearsay purposes must be on
the alert for such misuse. See Lovelace, 123 F.3d at 653. A
trial court should not “accept without scrutiny an offering
party’s representation that an out-of-court statement
is being introduced for a material non-hearsay purpose.”
Sallins, 993 F.2d at 346 (reversing conviction). Our col-
No. 09-3577 27
leagues on the Second Circuit have explained in reversing
a conviction on these grounds:
the mere identification of a relevant non-hearsay use of
such evidence is insufficient to justify its admission if
the jury is likely to consider the statement for the truth
of what was stated with significant resultant prejudice.
The greater the likelihood of prejudice resulting from
the jury’s misuse of the statement, the greater the
justification needed to introduce the “background”
evidence for its non-hearsay uses.
Reyes, 18 F.3d at 70.
For this reason, the “course of investigation” exception is
most readily applied to admit only those brief out-of-court
statements that bridge gaps in the trial testimony that
would otherwise substantially confuse or mislead the
jury. See Silva, 380 F.3d at 1020 (noting that this exception
may apply if “a jury would not otherwise understand why
an investigation targeted a particular defendant”). In
Eberhart, for example, we allowed DEA agents to testify
that an informant had identified his cocaine supplier as a
man known only as “E.” 434 F.3d at 937. Otherwise, it
would have been largely unclear why the agents had asked
that informant to call “E,” who turned out to be defendant
Eberhart. Id. at 939 & 940 n.1. Similarly, in Akinrinade,
we allowed testimony regarding an informant’s unsuccess-
ful attempt to telephone his accomplices because that
testimony helped explain why that informant had
been “directed . . . to place [additional] telephone calls to
Nigeria and Chicago.” 61 F.3d at 1283.
28 No. 09-3577
For such limited purposes, however, only a small amount
of information is legitimately needed in all but the rarest
cases. Under the “course of investigation” exception, we
typically allow only the briefest out-of-court statements.
See, e.g., United States v. Taylor, 569 F.3d 742, 748 (7th
Cir. 2009) (finding no plain error in admitting, without any
objection, witness’ statement that defendant “just took a
gun across the street” to explain officers’ actions);
United States v. Breland, 356 F.3d 787, 791-92 (7th Cir.
2004) (informant’s statement that “a ‘black male with
a bald head’ [was] dealing drugs from the residence
under surveillance”); United States v. Martinez, 939 F.2d
412, 415 (7th Cir. 1991) (government agent’s statement that
he “had information that ‘a man’ had offered to sell an
informant one-half kilogram of cocaine”).
A legitimate non-hearsay purpose most certainly does
not open the door for law enforcement officers to “narrate
the course of their investigations, and thus spread before
juries damning information that is not subject to
cross-examination.” Silva, 380 F.3d at 1020. Nor is it
necessary to put before the jury extensive “eyewitness
accounts of bad acts by the defendant that the jury would
not otherwise have heard.” United States v. Price,
458 F.3d 202, 210 (3d Cir. 2006). Unless the testimony at
issue “clarif[ies] noncontroversial matter without causing
unfair prejudice on significant disputed matters,” Reyes,
18 F.3d at 70, the best course of action is to exclude the
evidence altogether. If some brief item is truly necessary,
the court should redact a lengthy out-of-court statement to
the extent needed to ensure that its actual evidentiary
function is only the legitimate one for which it is being
No. 09-3577 29
admitted. Price, 458 F.3d at 210; see 2 McCormick on
Evidence § 249 (“[A] statement that an officer acted ‘upon
information received,’ or words to that effect, should be
sufficient.”).
Although the Indiana Court of Appeals invoked the
“course of investigation” exception to reject Jones’ Con-
frontation Clause claim, it took none of these consider-
ations into account. Certainly, none of the incriminating
substance of Lewis’ statement was necessary to bridge an
otherwise-inexplicable gap in the trial testimony or to
prevent the jury from being confused about some material
issue. See, e.g., Silva, 380 F.3d at 1020. To whatever extent
the prosecution feared that the jury would be confused if
it did not know exactly why the police started investigating
Jones, that fear could have been assuaged by as little as
a bare-boned statement that the police acted “on informa-
tion received from Jeffrey Lewis.” See 2 McCormick on
Evidence § 249. Yet the trial court made no effort to
exclude or redact any incriminatory details of Lewis’
double-hearsay statement. See Silva, 380 F.3d at 1020;
Price, 458 F.3d at 210.
The Indiana Court of Appeals also failed to appreciate
that, although it invoked the “course of investigation”
theory, its stated reasons for allowing Lewis’ statement
into evidence make sense only if that statement was
considered for the truth of its contents. As the appellate
court majority explained, it felt that Lewis’ statement was
necessary to prevent the jury from believing Jones’ claim
that “Aaron, whose credibility was in question, was the
only source of evidence against him.” Jones I, No. 45A03-
30 No. 09-3577
0407-CR-339, at 9. As Chief Judge Kirsch said so well in his
dissent, the majority essentially concluded that “because
the admissible evidence against Jones was weak, and Jones’
counsel noted such fact, it was proper to admit otherwise
inadmissible evidence.” Id. at 16. If the majority’s rea-
soning were correct, Judge Kirsch continued, “any
hearsay statement to police during the course of their
investigation would be admissible whenever a defendant
makes any comment on the evidence.” Id. at 17. For all
of these reasons, the “course of investigation” exception
could not be reasonably applied to admit the detectives’
detailed testimony about what Lewis told them he had
heard from Parks.
2. The Sixth Amendment, Bruton, and Accomplice Hear-
say
The Indiana Court of Appeals also failed to recognize the
significant Sixth Amendment interests implicated when, as
here, the out-of-court statement offered under the “course
of investigation” exception (or for any other purported
non-hearsay purpose, for that matter) is the confession of
a non-testifying accomplice. The Supreme Court’s jurispru-
dence on this subject reveals that the Sixth Amendment
imposes important limits on a court’s ability to admit such
a statement even when it can be introduced for a non-
hearsay purpose.
The hearsay evidence here was very similar to the
accomplice confession in Bruton v. United States, 391 U.S.
123 (1968). (The difference here is that there is one extra
layer of hearsay, since Parks, who supposedly confessed to
No. 09-3577 31
Lewis, did not talk directly with the detectives who
testified.) In Bruton, the Supreme Court showed just how
difficult it is to offer at trial a non-testifying accomplice’s
confession accusing the defendant of wrongdoing. In that
case, Bruton and his accomplice Evans were convicted of
armed postal robbery. Id. at 124. At their joint trial on that
charge, a postal inspector testified that Evans had con-
fessed that he and Bruton had committed the robbery. Id.
On appeal, the appellate court set aside Evans’ conviction
because his confession had been obtained without proper
Miranda warnings, but affirmed Bruton’s conviction
because the trial court had “instructed the jury that
although Evans’ confession was competent evidence
against Evans it was inadmissible hearsay against [Bruton]
and therefore had to be disregarded in determining
[Bruton’s] guilt or innocence,” id. at 125.5
5
The State argues that Jones waived any reliance on Bruton by
failing to invoke that case in state court or in his habeas petition.
In other words, while the State concedes that we may address
Jones’ Confrontation Clause claim, it argues that we may weigh
that claim only in light of the cases Jones has previously
mentioned by name. This argument is without merit. Although
a constitutional claim may be considered on habeas review only
if it was first fairly presented to the state courts, that rule “does
not require a hypertechnical congruence between the claims
made in the federal and state courts; it merely requires that the
factual and legal substance remain the same.” Anderson v. Benik,
471 F.3d 811, 814-15 (7th Cir. 2006) (citations omitted). The
substance of Jones’ Sixth Amendment claim has remained
unchanged, though the additional support from Bruton is new.
32 No. 09-3577
The Supreme Court reversed Bruton’s conviction because
the introduction of Evans’ confession into evidence vio-
lated Bruton’s own Sixth Amendment right to confront
Evans regarding the substance of that confession. The
Court pointed out that Evans’ confession was “legitimate
evidence against Evans and . . . was properly before the
jury during its deliberations.” Id. at 127. As a result, there
existed a substantial likelihood that the jury believed
that Evans had “made the statements and that they were
true—not just the self-incriminating portions but those
implicating [Bruton] as well.” Id. “Plainly,” the Court
concluded, “the introduction of Evans’ confession added
substantial, perhaps even critical, weight to the Govern-
ment’s case in a form not subject to cross-examination,
since Evans did not take the stand.” Id. at 127-28.
In reversing Bruton’s conviction, the Court made clear
the extraordinary dangers posed when an accomplice’s
confession—one directly implicating the accused in
wrongdoing—is put before a jury without affording the
accused an opportunity to cross-examine that accomplice.
“Not only are [such] incriminations devastating to the
defendant but their credibility is inevitably suspect, a fact
recognized when accomplices do take the stand and the
jury is instructed to weigh their testimony carefully given
the recognized motivation to shift blame to others.” Id.
at 136. That inherent unreliability “is intolerably com-
pounded when the alleged accomplice . . . does not testify
and cannot be tested by cross-examination. It was against
such threats to a fair trial that the Confrontation Clause
was directed.” Id. Bruton makes clear that the protections
of the Confrontation Clause are at their zenith whenever,
No. 09-3577 33
as is the case here, the prosecution offers into evidence a
non-testifying hearsay declarant’s confession that names
the accused as his partner in crime.6
The Supreme Court’s decision in Tennessee v. Street,
471 U.S. 409 (1985), illustrates the point and shows just
how difficult it is to introduce such a confession into
evidence without running afoul of the Confrontation
Clause. In that case, the prosecution had relied heavily on
Street’s “detailed confession” as evidence that he had
murdered his neighbor in the course of a robbery. Id.
at 411. At trial, Street testified that his so-called confession
was not his own, but had been derived from a written
statement that alleged accomplice Peele had previously
given to law enforcement. Id. To rebut this specific accusa-
tion, the prosecution had one of its witnesses read Peele’s
statement to the jury to illustrate the differences between
that statement and Street’s confession. Id. at 411-12.
In rejecting Street’s claim that the testimony concerning
Peele’s statement had violated his constitutional right to
confront Peele, the Supreme Court noted that the
“nonhearsay aspect of Peele’s confession—not to prove what
happened at the murder scene but to prove what happened
when [Street] confessed—raises no Confrontation Clause
concerns.” Id. at 414. (Street is most commonly cited for this
principle. See, e.g., Crawford, 541 U.S. at 59 n.9.) The
6
The use of a non-testifying accomplice’s confession against Sir
Walter Raleigh in seventeenth century England set in motion the
series of legal reforms eventually resulting in the Confrontation
Clause itself. See Crawford, 541 U.S. at 44-46.
34 No. 09-3577
Court acknowledged that Peele’s statement “could have
been misused by the jury” as hearsay evidence, but the
Court rejected this possibility because the jury had been
“pointedly instructed by the trial court ‘not to consider the
truthfulness of [Peele’s] statement in any way whatso-
ever.’” Id. at 414-15 (alteration in original).
This conclusion was in obvious tension with the Court’s
decision in Bruton, which Street distinguished on the
grounds that, “unlike the situation in [that case], there
were no alternatives [here] that would have both assured
the integrity of the trial’s truth-seeking function and
eliminated the risk of the jury’s improper use of evidence.”
Street, 471 U.S. at 415. In particular, the Court noted that it
simply was not possible to have “edited [Peele’s confes-
sion] to reduce the risk of jury misuse without detracting
from the alleged purpose for which the confession was
introduced.” Id. (quotation omitted). By editing that
statement, the Court noted, the trial court “would have
undercut the theory of defense by creating artificial
differences between [Street’s] and Peele’s confessions.” Id.
at 416.
Street teaches that the non-hearsay use of a statement
generally does not implicate the protections of the Con-
frontation Clause, but that another person’s out-of-court
confession directly implicating the accused is nevertheless
so inherently prejudicial that its misuse as hearsay remains
a strong possibility. To negate that possibility, a court
admitting such a statement should always “pointedly
instruct” the jury that the confession is to be used not for
its truth, but only for a non-hearsay purpose. See id. at 414-
No. 09-3577 35
15. Before admitting the confession for a non-hearsay
purpose, the court must exclude or redact the confession to
whatever extent it is possible to do so “without detracting
from the alleged [non-hearsay] purpose for which the
confession was introduced.” See id. at 415 (quotation
omitted); Gray v. Maryland, 523 U.S. 185, 192 (1998) (“Un-
less the prosecutor wishes . . . to abandon use of the
confession, he must redact the confession to reduce
significantly or to eliminate the special prejudice that the
Bruton Court found.”). Such exclusion or redaction, if
possible, can go a long way to ensure that a confession’s
irrelevant or inflammatory details do not distract the jury
from the narrow purpose for which it might legitimately
consider that confession and to ensure that the jury will
follow a limiting instruction. See Richardson v. Marsh,
481 U.S. 200, 211 (1987) (holding that the Confrontation
Clause is not violated by the admission of a non-testifying
accomplice’s confession if a proper limiting instruction has
been given and “the confession is redacted to eliminate not
only the defendant’s name, but any reference to his or her
existence”).
Street also teaches that a non-testifying accomplice’s
confession can be admitted only if, in light of the inherent
unreliability of accomplice confessions implicating the
accused, see Bruton, 391 U.S. at 136, the asserted non-
hearsay purpose actually advances the compelling interests
at the heart of the Court’s analysis in that case: “the
integrity of the trial’s truth-seeking function” and the
“accuracy of the truth-determining process.” See Street,
471 U.S. at 415 (quotation omitted). This final consideration
is easily the most important. Under the very unusual
36 No. 09-3577
circumstances in Street, the only way to rebut Street’s (false)
allegations of fabrication was to introduce the substance
of the accomplice’s confession that implicated Street in
the murder to show the differences.
Bruton and Street help demonstrate that the Indiana
Court of Appeals unreasonably applied Crawford to the
facts of Jones’ case. Lewis’ statement—the recitation of a
confession he purportedly received from his brother—was
actually offered into evidence to prove the truth of its
contents. Bruton makes clear that Jones’ right to confront
Lewis and Parks about that confession was violated by
Lewis’ and Parks’ failure to testify at trial and to subject
their testimony to the “crucible of cross-examination.”
Crawford, 541 U.S. at 61; see United States v. Souffront,
338 F.3d 809, 828 (7th Cir. 2003). The need for cross-exami-
nation was compelling here. The already inherent unreli-
ability of a confession casting blame on another, see Bruton,
391 U.S. at 136, is only magnified when, as here, the
confession is filtered through two layers of hearsay: Parks
to Lewis, Lewis to Detectives Jackson and Davis, and then
Jackson and Davis to the jury.
Even if Lewis’ statement had actually been offered by the
prosecution to prove only a collateral issue, not as direct
evidence of Jones’ guilt, that statement was clearly inad-
missible under Street. First, the trial court’s meager instruc-
tions to the jury were lacking. Limiting instructions were
given in regard to only three specific answers by Jackson.
Tr. 1334, 1353, 1390. None were given at all regarding
Davis’ testimony. Tr. 571- 607. Such a halfhearted effort
to instruct the jury properly could not be construed as
No. 09-3577 37
a “pointed instruction” that the jury not consider Lewis’
statement for its truth. See Street, 471 U.S. at 414-15.7
More fundamental, unlike the trial court in Street, the
court here did not face a rare circumstance in which
testimony regarding the substance of Lewis’ statement was
needed to preserve the integrity of the trial’s truth-seeking
function. See id. at 415. As explained above, the reasons the
police began investigating Jones were not relevant to the
issue of Jones’ guilt or innocence. Even if they were
somehow relevant, those reasons could have been ade-
quately explained by as little as a brief statement that the
officers had acted on “information received from an
informant.”
The trial court simply made no effort to limit the testi-
mony about Lewis’ statement to prevent the jury from
considering that statement as substantive evidence of
Jones’ guilt. See id.; Richardson, 481 U.S. at 211. Rather, it
allowed the prosecution free rein to introduce as much of
Lewis’ statement as it saw fit, even going so far as to give
Jones’ attorney the shocking warning that, if she continued
7
We find no merit in the State’s claim that the fault for this
failure to instruct the jury properly rests with Jones for not
immediately suggesting a limiting instruction. The prosecution
told the trial court that it offered Lewis’ statement only to show
the course of the police investigation — certainly, that was
enough to make the court aware of the necessity of a limiting
instruction. The much wider actual uses of Lewis’ statement also
belie the State’s claims regarding the effectiveness of the very
few limiting instructions actually given.
38 No. 09-3577
“asking questions that call [the police] investigation into
question . . . pretty soon all of the information they arrived
at . . . in the course of [that] investigation is going to end up
coming in.” Tr. 1434 (emphasis added).
In deeming Crawford inapplicable, the Indiana Court of
Appeals rested its analysis on a profound misunderstand-
ing of both the record and the “course of investigation”
exception it purported to apply. As a result of that misun-
derstanding, the state court so broadened that exception
as to effectively allow inadmissible hearsay into evidence
whenever a defendant challenges the weight or credibility
of the admissible evidence against him. The state court also
disregarded the teachings of Bruton, which flatly bars the
admission of accomplice confessions such as Parks’ absent
an opportunity for cross-examination, and of Street,
which sharply limits the circumstances in which such a
confession may be introduced into evidence for a non-
hearsay purpose. The state court’s failure to apply Crawford
to the facts of this case was “so lacking in justification” as
to constitute an “error well understood and comprehended
in existing law beyond any possibility for fairminded
disagreement,” as required for habeas relief under AEDPA.
See Harrington, 131 S. Ct. at 786-87.
VI. Harmless Error?
Finally, the State argues that any violation of Jones’ Sixth
Amendment rights was harmless. On habeas review, a
constitutional error is considered harmless unless it can be
shown to have “ ‘had substantial and injurious effect or
influence in determining the jury’s verdict.’ ” Brecht v.
No. 09-3577 39
Abrahamson, 507 U.S. 619, 622 (1993), quoting Kotteakos
v. United States, 328 U.S. 750, 776 (1946); see O’Neal
v. McAninch, 513 U.S. 432, 439 (1995) (affirming
that Kotteakos standard applies “in its entirety” to harmless
error analysis on habeas review). We apply this “actual
prejudice” standard regardless of whether the state
appellate court determined that the error was harmless
beyond a reasonable doubt under Chapman v. California,
386 U.S. 18 (1967). Fry v. Pliler, 551 U.S. 112, 121-22 (2007).8
Under Brecht, if a habeas court has so much as a “grave
8
Technically, if the state courts have conducted their own
harmless-error analysis on direct review, “the federal court must
decide whether that analysis was a reasonable application of the
Chapman standard” under AEDPA before applying the
Brecht standard. Johnson v. Acevedo, 572 F.3d 398, 404 (7th Cir.
2009); see Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam)
(“[H]abeas relief is appropriate only if the [state court] applied
harmless-error review in an ‘objectively unreasonable’ man-
ner.”). As the Supreme Court has explained, however, “it
certainly makes no sense to require formal application of both
tests (AEDPA/Chapman and Brecht) when the latter obviously
subsumes the former.” Fry, 551 U.S. at 120. This is because the
AEDPA/Chapman standard is “more liberal” than the Brecht
standard — in other words, any error sufficiently harmful to
satisfy the Brecht “actual prejudice” standard could be deemed
harmless beyond a reasonable doubt only by unreasonably
applying Chapman. See id. at 119-20. Because we conclude below
that the placement of Lewis’ statement before the jury caused
Jones “actual prejudice” under Brecht, the state court of appeals’
application of Chapman harmless error analysis was clearly
unreasonable as well.
40 No. 09-3577
doubt as to the harmlessness of [a constitutional error], it
should grant relief.” O’Neal, 513 U.S. at 445. In conducting
this analysis, we look to“a host of factors,” such as “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.” Delaware v.
Van Arsdall, 475 U.S. 673, 684 (1986).
From the outset, we have little doubt that Detectives
Davis’ and Jackson’s testimony regarding Lewis’ statement
had a particularly “substantial and injurious effect” on the
jury’s verdict. Brecht, 507 U.S. at 622. At its core, that
testimony was nothing but a thinly-veiled introduction of
additional, but inadmissible, evidence of Jones’ guilt. As
the prosecution explained to the trial court, the detectives
would testify that:
Jeffrey Lewis is the brother of James Parks. James
Parks told his brother, on the 19th, what happened,
who did what, and why they were there. Whose idea it
was to go and what they expected to find and exactly
what happened. Also he then tells who shot the lady
and the baby and that there was a bullet that went
through the lady, through the baby and through the
couch and on the floor. Mr. Lewis was so overcome by
his emotion after hearing what he heard from his
brother on the 19th, just two days [after] the killings,
that he contacted the Gary Police Department and told
them that it was—were it not for the baby and the
No. 09-3577 41
lady—that he just had to inform the police. . . . Detec-
tive Jackson takes the information, follows up with the
information, it is verified. Mr. Lewis also told about
Shawn Dixon purchasing the AK . . . in December. That
information is verified. The detectives then followed
the trail that lead them to the defendants . . . .
Tr. 1250-51. It therefore comes as no surprise that the
appellate court concluded that this testimony “pointed
toward [Jones’] guilt” and “had great prejudicial impact
since it suggested that Jones committed the quadruple
homicide.” Jones I, No. 45A03-0407-CR-339, at 7. In fact,
our only complaint with that characterization is that it
understates the prejudicial impact of Lewis’ statement,
which essentially served as a roadmap to the prosecution’s
entire case against Jones:
This is not a case in which [a defendant] seeks reversal
of his convictions on the basis of one or two inconse-
quential pieces of hearsay, perhaps inadvertently
elicited by the government. On the contrary, [this]
hearsay testimony was deliberately elicited, it was
extensive, and [it] graphically portrayed [the defen-
dant] as a despicable character . . . .
United States v. Check, 582 F.2d 668, 683 (2d Cir. 1978).
Given that Detectives Davis and Jackson conveyed to the
jury “the substance, indeed, the minutiae” of Lewis’
statement, it is obvious that Jones was prejudiced by the
prosecution’s “unabashed use” of their testimony. Id.
Despite this, the district court and the state appellate
court both concluded that any error was harmless because
“ ‘Detective Jackson’s testimony was not the only testimony
42 No. 09-3577
that pointed toward [Jones’] guilt.’ ” Jones v. Finnan, No. 09-
cv-052, at 4, quoting Jones I, No. 45A03-0407-CR-339, at 7.
Both courts failed to apply the correct legal standard.
Both seem to have simply imagined what the record would
have shown without Lewis’ statement and asked whether
the remaining evidence was legally sufficient to sustain a
finding of guilt. That analysis ignores the significant
prejudicial effect the error can have on a jury’s ability
to evaluate fairly the remaining evidence. That analysis
also offers prosecutors no real incentive to comply with the
Constitution so long as any evidence not admitted in error
is legally sufficient to sustain a conviction. For that reason,
under Brecht, the harmless-error “inquiry cannot be merely
whether there was enough [evidence] to support the result,
apart from the phase affected by the error. It is rather, even
so, whether the error had substantial influence” in light of
the entire record. Kotteakos, 328 U.S. at 765; Brecht, 507
U.S. at 638. This principle holds true under the Chapman
analytical framework as well. See Sullivan v. Louisiana,
508 U.S. 275, 279 (1993) (“The inquiry [under Chapman] is
not whether, in a trial that occurred without the error,
a guilty verdict would surely have been rendered, but
whether the guilty verdict actually rendered in this trial
was surely unattributable to the error.”).
If the district court and the state appellate court had not
overlooked this principle, they would likely have recog-
nized Lewis’ statement’s substantial effect on the jury’s
evaluation of Aaron’s credibility. There was no physical
evidence—blood, ballistics evidence, DNA, etc.—or other
testimony directly placing Jones at the scene of the killings.
No eyewitness other than Aaron testified that Jones was
No. 09-3577 43
even at the scene that night. Aaron’s testimony was central
to the case against Jones. Jones had to convince the jury
that Aaron could not be trusted.
And Aaron’s credibility was indeed questionable. Aaron
had agreed to testify in exchange for an extraordinarily
favorable plea agreement that took off the table all four
murder charges against him. Parts of Aaron’s story were
either arguably inconsistent with the other evidence, or
inherently unbelievable, such as his claim that A.M. never
cried despite the gunfire in the residence. Aaron’s self-
serving attempts to minimize his role in the shoot-
ings—particularly his claim that, despite bringing an AK-
47 assault rifle to McClendon’s apartment, he never fired
a single shot—cast his credibility even further into doubt.
By allowing the jury to hear the substance of Lewis’
statement (actually, the substance of Parks’ purported
confession to Lewis, as relayed to the detectives) to
bolster Aaron’s credibility, and by bolstering Lewis’ own
credibility (which should have been irrelevant, if his
statement was offered only to explain the “course of the
investigation”) with his self-proclaimed motive for going
to the police, the prosecution made it much more likely
that the jury would resolve any doubts about Aaron’s
credibility in favor of a conviction. Lewis’ statement and
Aaron’s testimony were similar in a number of significant
details. Both placed Jones at a party with Aaron and Parks
the night of the shooting, Tr. 1041-44, 1354-55; both de-
scribed the shootings as financially-motivated, Tr. 1049,
1355-56, 1394, 1448; both said that Jones had knocked on
the door of McClendon’s apartment to gain entry, Tr. 1060,
44 No. 09-3577
1447; both said that an AK-47 had been used during the
shootings, Tr 1053, 1341-42, 1445; and both said that Parks
had taken the AK-47 away from Aaron while they were in
the apartment. Tr. 1061, 1086, 1445-46.
The prosecution made sure that the jury was aware of
these similarities. During its redirect examination of
Detective Jackson, the prosecutor asked if Jackson had
heard Aaron’s testimony regarding “some words ex-
changed between [Aaron] and Parks at the time” Parks
took the AK-47 from Aaron. Jackson confirmed that he had
heard this testimony and informed the jury that he had
received the same information from Lewis. Tr. 1446. The
prosecution then tried to reinforce Lewis’ credibility by
eliciting testimony that his statement contained informa-
tion known only to law enforcement and the people who
were actually in McClendon’s apartment. Tr. 1341, 1449.
“[B]y incorporating [this] hearsay into [its] testimony, the
government received the benefit of having, in effect, an
additional witness . . . while simultaneously insulating
from cross-examination that witness, a witness [who]
we can safely assume would have been subjected to a
scathing, and perhaps effective cross-examination
by defense counsel.” Check, 582 F.2d at 683. Given
the obvious importance of Aaron’s testimony, it is
simply impossible to believe that this improper use of
Lewis’ statement to bolster Aaron’s credibility was harm-
less, given the lack of other direct evidence of Jones’
involvement in the killings. See, e.g., United States
v. Williams, 133 F.3d 1048, 1053 (7th Cir. 1998) (holding
that “actual prejudice” had been shown where govern-
ment’s evidence “was bolstered by inadmissible hearsay”).
No. 09-3577 45
In a final attempt to prove that Lewis’ statement was
harmless, the State argues that the trial court’s limiting
instructions were sufficient to render any error here
harmless. This argument is meritless. It is based on the
clear misreading of the trial record that is evident in both
the state appellate opinion and the district court opinion.
Contrary to those courts’ statements, the trial court made
only a minimal effort to instruct the jury about the proper
use of Lewis’ statement. When Detective Davis was
testifying, the trial court never gave a limiting instruction.
See Tr. 571- 607. During Detective Jackson’s testimony, the
court gave a limiting instruction only three times, and each
of those instructions addressed only Jackson’s answers to
specific questions. Tr. 1334, 1353, 1390. The court’s final
jury instructions made no mention of either Lewis’ state-
ment or the detectives’ testimony. The few instructions that
were given during Jackson’s testimony were not sufficient
to inform the jury that it could consider the extensive and
detailed testimony regarding Lewis’ statement only for a
collateral purpose rather than for its truth.
And even if the court had given repeated instructions
on the subject, they would not have rendered harmless
such a seriously prejudicial error. As we said in Lovelace, a
jury is unlikely to heed a limiting instruction that asks the
jury to disregard a hearsay statement that is “overwhelm-
ingly incriminating.” 123 F.3d at 654; see United States v.
Ochoa-Zarate, 540 F.3d 613, 620 (7th Cir. 2008) (stating that
the presumption that a jury will follow instructions
is overcome when there is an “overwhelming probabil-
ity” that the jury was unable to follow that instruction).
And Bruton makes clear that the prejudice caused by the
46 No. 09-3577
recitation of an accomplice’s out-of-court confession
implicating the accused cannot be cured by a mere jury
instruction. Bruton, 391 U.S. at 135-36 (deeming the
“powerfully incriminating extrajudicial statements of”
an accomplice a circumstance in which “the risk that the
jury will not, or cannot, follow instructions is so great, and
the consequences of failure to vital to the defendant, that
the practical and human limitations of the jury system
cannot be ignored”); see Gray, 523 U.S. at 192 (“Bruton . . .
holds that certain powerfully incriminating extrajudicial
statements of a codefendant—those naming another
defendant—considered as a class, are so prejudicial that
limiting instructions cannot work.”) (quotations omitted).
To think that any amount of instruction would enable a
jury to disregard the damning substance of an out-of-court
statement like the one at issue here—a lengthy statement
setting forth a detailed account of an accomplice’s confes-
sion implicating Jones in a particularly heinous crime—
and to consider that statement only for some marginally-
relevant collateral purpose simply defies human nature,
particularly if the jury had any doubts about the suffi-
ciency of the other evidence against Jones. Cf. Jackson v.
Denno, 378 U.S. 368, 388 (1964) (“If there are lingering
doubts about the sufficiency of the other evidence, does the
jury unconsciously lay them to rest by resort to the confes-
sion? Will uncertainty about the sufficiency of the other
evidence to prove guilt beyond a reasonable doubt actually
result in acquittal . . . ?”). As Justice Cardozo once aptly
said, “Discrimination so subtle is a feat beyond the com-
pass of ordinary minds. The reverberating clang of those
No. 09-3577 47
accusatory words would drown all weaker sounds.”
Shepard v. United States, 290 U.S. 96, 104 (1933).9
In sum, we conclude that the testimony regarding Lewis’
statement had a substantial influence on the jury’s guilty
verdict, as required to grant habeas relief under Brecht.
VII. Conclusion
Perhaps Jones is guilty of the crimes with which he has
been charged. From the evidence presented at trial, that is
a distinct possibility. “We may not, however, vitiate
constitutional guarantees when they have the effect
of allowing the guilty to go free.” Davis, 547 U.S. at 833.
In this case, the Constitution demands that Jones have
an opportunity to confront Parks if his statements to
Lewis, as reported to the police detectives, are to be
used as evidence against Jones. The Constitution makes
no exception for Jones because the prosecution’s star
witness was unsavory, because the prosecution’s case
was otherwise weak, or because Jones was accused of
especially heinous crimes.
9
This is perhaps best illustrated by the jury’s demonstrated
interest in the substance of Lewis’ statement. Under Indiana
procedure, the jury was allowed to ask Detective Jackson ques-
tions at trial, a number of which involved Lewis’ statement. The
jury asked Jackson, among other things, how much money
Lewis said Jones had taken from McClendon’s apartment, Tr.
1455, and whom Lewis said that Parks had told to “finish off”
Laurice Jones. The jury also showed a decided interest in Lewis’
credibility, asking who Lewis had received his information
from and whether Lewis was friends with Aaron. Tr. 1459.
48 No. 09-3577
We R EVERSE and R EMAND this matter with instructions
to the district court to grant Jones’ habeas petition pursu-
ant to 28 U.S.C. § 2254, directing the State of Indiana to
release Jones within 120 days of the issuance of the man-
date unless the State elects to retry Jones within that time.
3-31-11