Edward Gilliam v. Betty Mitchell, Warden

GILMAN, Circuit Judge,

concurring.

I agree with the majority’s conclusion that the harmless error analysis set forth in Brecht v. Abramson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) applies to the present case. Under that standard, any error committed by the trial court in admitting Moore’s statement in its entirety was harmless. I therefore concur in the result reached by the majority.

I write separately, however, to express my belief that the trial court erred when it admitted Moore’s entire statement to the police, instead of admitting only those portions of the statement that were self-incul-patory. In Williamson v. United States, 512 U.S. 594, 599, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), the Supreme Court defined the term “statement” in Rule 804(b)(3) of the Federal Rules of Evidence to mean “a single declaration or remark” rather than “a report or narrative.” See id. The Court cautioned against the wholesale admission of confessions that are partially self-inculpatory:

The fact that a person is making a broadly self-inculpatory confession does not make more credible the confession’s non-self-inculpatory parts. One of the most effective ways to lie is to mix falsehood with truth, especially truth that seems particularly persuasive because of its self-inculpatory nature.

Id. at 599-600, 114 S.Ct. 2431. The Court held that Rule 804(b)(3) does not allow the admission of non-self-inculpatory statements made within the context of a generally inculpatory narrative, because “the fact that a statement is collateral to a self-inculpatory statement says nothing at all about the collateral statement’s reliability.” See id. at 600-01, 114 S.Ct. 2431. Trial courts must thus determine the admissibil*996ity of each separate remark within a narrative. See id at 601, 114 S.Ct. 2431.

In the present case, Moore attempted to shift primary blame for the robbery from himself to Gilliam and Treadwell. He stated that they kept their plans from him and that he did not learn of the robbery until after it had happened. To the extent that such a statement attempts to assign blame for the robbery, it was neither fully against Moore’s interest nor reliable under Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (“[A] code-fendant’s confession is presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another.”). Our opinion should therefore not be construed to permit the wholesale admission of a narrative simply because it contains discrete statements that are against the declarant’s penal interest.