#24051-a-SLZ
2007 SD 27
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
STATE OF SOUTH DAKOTA, Plaintiff and Appellee,
v.
FADI OMAR ZAKARIA, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE GLEN A. SEVERSON
Judge
* * * *
LAWRENCE E. LONG
Attorney General
FRANK GEAGHAN
Assistant Attorney General
Pierre, South Dakota Attorneys for plaintiff
and appellee.
JULIE HOFER
Minnehaha County Public
Advocate’s Office
Sioux Falls, South Dakota Attorney for defendant
and appellant.
* * * *
ARGUED NOVEMBER 28, 2006
OPINION FILED 03/14/07
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ZINTER, Justice
[¶1.] Fadi Zakaria was convicted of first degree robbery and committing or
attempting to commit a felony with a firearm. He appeals claiming: the
introduction of a taped police interview of a co-defendant violated his Sixth
Amendment right of confrontation; the trial court erred in admitting a gun found
after the robbery; and questioning in taped police interviews impermissibly
commented on his credibility. We affirm.
Facts and Procedural History
[¶2.] On March 2, 2004, an employee and one customer were inside the
Royal Flush Casino in Sioux Falls, South Dakota. At approximately 8 p.m. two men
entered the casino wearing ski masks. One of the men was holding a pillowcase.
One of the men pointed a pistol at the employee and demanded money. The gun
was described by the witnesses as silver or black, small, shiny, and nickel-plated.
The employee gave the man with the pillowcase $1,556.25. The customer observed
the men leave in an easterly direction and enter an alley. The customer stopped a
passing car and told the occupants what had happened. The occupants of the car
also observed two men running in the alley. As they proceeded north, the two men
ran out in front of the passing car. One of the men got into a white car located
approximately one and a half blocks northeast of the casino, while the other
continued running. Witnesses recorded the license plate number of the white car.
[¶3.] Two men were eventually linked to this crime. Footprints consistent
with Zakaria’s shoes were found between the casino and the white car. The car was
registered to Autumn Hooker. Shortly after the robbery police found the white car
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about a block away from Hooker’s house. Footprints consistent with Zakaria’s shoes
led from the car to the Hooker house. Zakaria was Hooker’s boyfriend, and he lived
at that residence. There was also testimony that it was normal for Zakaria to use
Hooker’s car.
[¶4.] William Reath was also apprehended shortly after the robbery. He
was found on Cliff Avenue, approximately three blocks east and six blocks south of
the white car. Cliff Avenue is a through street providing a direct route to Hooker’s
residence. Reath also lived at the Hooker residence.
[¶5.] Police obtained a search warrant for the house and the car. Inside the
car they found a black ski mask and a blue pillowcase that contained $256. In the
basement of the house, under the sheets of a bed, they found a cigar box containing
$1,260.
[¶6.] The next day, a yellow coat matching a description of that worn by one
of the robbers was found about two and a half blocks northeast of the casino. On
May 11, 2004, a little over two months after the robbery, a pistol was found about
three blocks northeast of the casino by a man cleaning his yard. The gun was about
one inch deep in mud. It was loaded and was found on a line extending from the
place where one man entered the white car to the place where the yellow jacket was
discarded and, finally, to the yard in which the pistol was found. Reath was found
approximately seven blocks east and south of the pistol on Cliff Avenue.
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[¶7.] Zakaria and Reath were tried together. 1 Video recordings of police
interviews of both Zakaria and Reath were admitted, but neither defendant
testified. Reath was found not guilty. Zakaria was convicted. He appeals raising
the following issues:
1. Whether the trial court committed a Bruton error in conducting a
joint trial in which Reath’s taped police interview was admitted
without an opportunity for Zakaria to cross-examine Reath.
2. Whether the trial court erred in admitting the gun into evidence.
3. Whether the trial court erred in admitting Zakaria’s taped police
interview that contained statements by police questioning his
credibility.
Decision
Bruton and the Right of Confrontation
[¶8.] Zakaria first alleges that playing the videotape of co-defendant Reath’s
interview violated Zakaria’s right of confrontation under Bruton v. United States,
391 US 123, 88 SCt 1620, 20 LEd2d 476 (1968). Alleged violations of constitutional
rights are reviewed de novo. State v. Carothers, 2005 SD 16, ¶7, 692 NW2d 544,
546.
[¶9.] Bruton held that limiting instructions do not cure a confrontation
violation when hearsay evidence, given by a co-defendant, incriminates the other
defendant. Id. at 137, 88 SCt at 1628, 20 LEd2d at 485-486. However, Bruton is
not applicable when statements of co-defendants are not inculpatory. The Supreme
Court has noted:
1. Zakaria’s appellate counsel did not represent him at trial.
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There is an important distinction between this case and Bruton,
which causes it to fall outside the narrow exception we have
created. In Bruton, the codefendant’s confession “expressly
implicat[ed]” the defendant as his accomplice. [391 US] at 124,
n1, 88 SCt at 1621, n1. Thus, at the time that confession was
introduced there was not the slightest doubt that it would prove
“powerfully incriminating.” Id. at 135, 88 SCt at 1627. By
contrast, in this case the confession was not incriminating on its
face, and became so only when linked with evidence introduced
later at trial. . . .
Richardson v. Marsh, 481 US 200, 208, 107 SCt 1702, 1707, 95 LEd2d 176, 186
(1987). We have also recognized this distinction. See State v. Johnson, 509 NW2d
681, 686 (SD 1993) (concluding no error in refusal to sever, because the statements
were not inculpatory); compare Iron Shell v. Leapley, 503 NW2d 868, 870 (SD 1993)
(concluding that under Bruton, the admission of inculpatory statements violates the
Sixth Amendment).
[¶10.] In this case, Reath’s statements did not expressly implicate Zakaria.
The only arguably incriminatory matter involved the question of whether the two
were together that day. And on that question, each defendant’s statement was
internally inconsistent.
[¶11.] More specifically, Reath, in his statement, initially denied going out
stating: “I was home all day today.” Then he stated that he did go out looking for
work between 7 a.m. and 3 p.m. But he also initially insisted that he did not
accompany Zakaria: “I didn’t go nowhere with Fadi . . . me and Fadi was not in the
car.” Later, however, he said that “me and Fadi we went to get his girlfriend.” In
comparison, Zakaria admitted that Reath was with him that day. “I just drove
around . . . I went to my friend’s house . . . I can’t say his name . . . [Reath] was
with me.” However, Zakaria later indicated concern about what would happen if his
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alibi witness indicated that they had been doing something wrong. He then said,
“Alright man, I lied man, I wasn’t with nobody.” A review of the videotaped
interview does not reflect whether Zakaria meant that he lied about being with his
friend, or about being with Reath, or both. Ultimately, however, both men’s
statements consistently denied any involvement in the robbery, and neither Zakaria
nor Reath ever implicated the other in the robbery. 2
[¶12.] Therefore, this case falls within the rule of Richardson rather than
Bruton. Bruton involved a confession by a co-defendant that directly implicated
Bruton with “powerfully incriminating” evidence. Richardson, 481 US at 208, 107
SCt at 1707, 95 LEd2d at 186. In contrast, neither Reath nor Zakaria confessed or
implicated the other. Because Reath’s statements were not inculpatory, and
certainly were not powerfully incriminating, the trial court did not violate Bruton
by refusing to sever and utilizing a limiting instruction. 3
2. Although Zakaria argues that Reath’s statement damaged Zakaria’s alibi
defense, Zakaria did not give notice of an alibi defense as required by SDCL
23A-9-1(Rule 12.1(a)).
3. The trial court gave limiting instructions concerning the use of the
statements, which can best be categorized as inferentially incriminating.
“[W]ith regard to inferential incrimination the judge’s instruction may well be
successful in dissuading the jury from entering onto the path of inference in
the first place, so that there is no incrimination to forget.” Richardson, 481
US at 208, 107 SCt at 1708, 95 LEd2d at 186.
In this case, a preliminary jury instruction told the jury that “a particular
item of evidence is sometimes received for a limited purpose. [The judge will]
tell you when that occurs, and instruct you on the purposes for which the
item can and cannot be used.” Then, before publishing the first of the taped
interviews, the trial court gave the following instruction:
(continued . . .)
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[¶13.] Zakaria also argues that he was entitled to severance under SDCL
23A-11-2, Rule 14 of the Rules of Criminal Procedure. When considering severance
under the Rules, “[t]he trial court’s refusal to grant a severance motion will be
reversed on appeal only if the defendant demonstrates an abuse of discretion.”
State v. Jenner, 434 NW2d 76, 80 (SD 1988) (citations omitted). “The defendant
establishes an abuse of discretion by showing substantial prejudice which
constitutes a denial of a fair trial.” Id. (emphasis in original) (citations omitted).
“‘A certain amount of prejudice to a defendant is regarded as acceptable given the
judicial economies that result from joinder.’” Id. (quoting United States v.
Carpentier, 689 F2d 21, 27 (2ndCir 1982)). “‘The [trial] court must consider not
only possible prejudice to the defendant . . . but also possible prejudice to the
government because of two time-consuming, expensive, and duplicitous trials.’”
State v. Johnson, 2004 SD 135, ¶13, 691 NW2d 319, 323 (quoting State v. Andrews,
393 NW2d 76, 79 (SD 1986)).
________________________
(. . . continued)
Questions and statements by the police are not evidence.
Statements made by the defendant are evidence but only may be
considered in your deliberation regarding the charges against
that person. In this trial with two defendants, you must make a
distinction and only consider this evidence with regard to the
defendant who made the statements.
An almost verbatim instruction was given again after Reath’s interview was
published.
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[¶14.] In considering the analogous Federal Rules of Criminal Procedure,4
the Supreme Court held that severance is not required simply because there are
conflicting defenses. Zafiro v. United States, 506 US 534, 538-539, 113 SCt 933,
937-938, 122 LEd2d 317, 324-325 (1993). Instead “when defendants properly have
been joined . . . a . . . court should grant a severance under Rule 14 only if there is a
serious risk that a joint trial would compromise a specific trial right of one of the
defendants, or prevent the jury from making a reliable judgment about guilt or
innocence.” Zafiro, 506 US at 539, 113 SCt at 938, 122 LEd2d at 325. In this
context we have stated that:
To cause the type of prejudice that prevents co-defendants from
obtaining a fair trial, the defenses must be more than merely
antagonistic. They must conflict to the point of being
irreconcilable and mutually exclusive so that acceptance of one
defendant’s defense will preclude the acquittal of the other
defendant.
Jenner, 434 NW2d at 80 (citations omitted). Even “one defendant’s desire to
exculpate himself by inculpating a co-defendant does not necessarily render the
defenses irreconcilable and mutually exclusive.” State v. Shape, 517 NW2d 650,
656 (SD 1994) (citing Jenner, 434 NW2d at 81).
[¶15.] In this case, the defenses (and statements) were not so irreconcilable
and mutually exclusive that acceptance of Reath’s statements precluded acquittal of
Zakaria. As previously noted, Reath’s statement did not implicate Zakaria.
4. Federal Rules of Criminal Procedure 8(b) and 14. The same rules are found
in SDCL 23A-6-24 (Rule 8(b)) (Joinder of two or more defendants in same
indictment or information), and SDCL 23A-11-2 (Rule 14) (Relief from
prejudicial joinder of offenses or defendants).
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Furthermore, both defendants’ statements were internally inconsistent in that both
defendants alternately admitted and denied being with the other at some point
during the day. And finally, the acceptance of either version of Reath’s statement
would not have precluded the acquittal of Zakaria. Under these circumstances, the
trial court did not abuse its discretion in refusing to sever under SDCL 23A-11-2.
[¶16.] Zakaria, however, argues that even if severance was not required
under the Rules of Criminal Procedure or Bruton, the admission of Reath’s
statement without opportunity to cross-examine violated Zakaria’s Sixth
Amendment right of confrontation under Crawford v. Washington, 541 US 36, 124
SCt 1354, 158 LEd2d 177 (2004). Issues involving this constitutional right are
reviewed de novo. Carothers, 2005 SD 16 at ¶7, 692 NW2d at 546.
[¶17.] “Where [the admission of] testimonial [hearsay] is at issue,[] the Sixth
Amendment demands what the common-law required: unavailability and a prior
opportunity for cross-examination.” Crawford, 541 US at 68, 124 SCt at 1374, 158
LEd2d 177. Reath was unavailable for cross-examination because he was a co-
defendant, but he was not previously cross-examined concerning his statement.
Therefore, Zakaria asserts a Crawford violation.
[¶18.] However, we need not address the merits of this issue because, even
assuming there was a Crawford error, it was harmless. It is now well accepted that
admission of a co-defendant’s statement without opportunity to cross-examine is
subject to harmless error analysis. United States v. McClain, 377 F3d 219, 222-223
(2ndCir 2004) (stating that Crawford does not change harmless error review of
confrontation violations). See also United States v. Pugh, 405 F3d 390 (6thCir
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2005) 5 ; United States v. Summers, 414 F3d 1287 (10thCir 2005); United States v.
Rodriguez-Marrero, 390 F3d 1 (1stCir 2004); State v. Nguyen, 281 Kan 702, 133
P3d 1259 (2006). We have also applied harmless error analysis in similar
circumstances. See State v. Herrmann, 2004 SD 53, ¶23, 679 NW2d 503, 510
(finding that any Sixth Amendment violation was harmless error); State v. Frazier,
2001 SD 19, ¶¶27-33, 622 NW2d 246, 257-259 (finding that confrontation error in
the admission of hearsay was not harmless).
[¶19.] “The harmless error doctrine preserves the essential purpose of
criminal trials: to decide a defendant’s guilt or innocence. The rule ‘promotes
public respect for the criminal process by focusing on the underlying fairness of the
trial rather than on the virtually inevitable presence of immaterial error.’” Frazier,
2001 SD 19, ¶30, 622 NW2d at 258 (quoting Delaware v. Van Arsdall, 475 US 673,
681, 106 SCt 1431, 1436, 89 LEd2d 674, 684-685 (1986)). “The harmless error rule
5. The Sixth Circuit stated:
While we are firmly convinced that the district court abused its
discretion and violated the rule established in Crawford and Cromer,
we must also address whether this violation was a harmless error. See
Jordan v. Hurley, 397 F3d 360, 363 (6thCir 2005) (“Confrontation
Clause violations are subject to harmless error review.”). “In
determining whether an error is harmless, the reviewing court ‘must
take account of what the error meant to [the jury], not singled out and
standing alone, but in relation to all else that happened.’” United
States v. Hardy, 228 F3d 745, 751 (6thCir 2000) (citing Kotteakos v.
United States, 328 US 750, 764, 66 SCt 1239, 90 LEd 1557 (1946))
(alteration in original). In other words, we must find “that it was more
probable than not that the error materially affected the verdict.”
United States v. Trujillo, 376 F3d 593, 611 (6thCir 2004).
U.S. v. Pugh, 405 F3d 390, 400-401 (6thCir 2005).
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governs . . . provided the court is able to declare a belief beyond a reasonable doubt
that the error was harmless and did not contribute to the verdict obtained.” State v.
Michalek, 407 NW2d 815, 819 (SD 1987) (citations omitted). “‘[H]armlessness must
. . . be determined on the basis of the remaining evidence.’” Frazier, 2001 SD 19 at
¶31, 622 NW2d at 258 (quoting Coy v. Iowa, 487 US 1012, 1021-1022, 108 SCt 2798,
2803, 101 LEd2d 857, 867 (1988)).
[¶20.] In this case, the remaining evidence at Zakaria’s trial included
footprints consistent with those of Zakaria found between the casino and the white
car, as well as leading from the white car to Hooker’s home. A pillowcase was found
in the car, and an amount of money consistent with that taken was found secreted
in the pillowcase and at Zakaria’s residence. Additionally, a pistol appeared in
Zakaria’s room shortly before the robbery and disappeared after the incident.
Finally, Zakaria made highly incriminatory admissions in videotaped conversations
with Hooker. During one conversation, Zakaria stated: “I shouldn’ta did it.”
Hooker asked him, “What were you thinking?” Zakaria responded, “[I] told you I
wasn’t thinking.” He also said, “I wanted to see if I could get away.” Zakaria told
Hooker what he wanted her to tell detectives, and instructed her to get his jacket
and “Take it somewhere.”
[¶21.] Considering the nature of these statements, the physical evidence, and
Zakaria’s ties to the crime scene, we believe beyond a reasonable doubt that the
admission of Reath’s statement did not contribute to the verdict obtained.
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The Gun
[¶22.] Zakaria next contends that there was no evidence connecting the gun
to him, to Reath, or to the robbery. He therefore argues that admission of the gun
was evidentiary error. Evidentiary rulings are presumed correct and are reviewed
under the abuse of discretion standard. State v. Krebs, 2006 SD 43, ¶19, 714 NW2d
91, 99.
[¶23.] This record reflects sufficient evidence connecting the gun to the
robbery. The gun at issue was a pistol that was silver except for a black handle,
roughly matching the descriptions given by the casino employee and customer.
Further, the gun was found on a route approximately four blocks in length that ran
northeast from the casino, to the first place the two men were observed running, to
the location where the two men approached the white car, to the place where the
discarded jacket was found, and to the place where the gun was later found.
[¶24.] There was also testimony by Hooker that “a couple of days before” the
robbery she observed a gun in her closet that she had not put there. Although she
was unable to describe the gun (other than saying it was small) she also testified
that she had not observed it thereafter. Considering the similar appearance of the
pistol, its proximity to the scene of the crime, and Hooker’s testimony, there was a
sufficient connection to make the gun relevant and admissible. The trial court did
not abuse its discretion.
Officers’ Statements
[¶25.] The interviews of Reath and Zakaria contained a number of
accusations by the police that Reath and Zakaria were lying. Zakaria contends that
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the admission of these interviews constituted impermissible opinion testimony on
his character. Admission of such videotaped evidence is reviewed under the abuse
of discretion standard. State v. Running Bird, 2002 SD 86, ¶34, 649 NW2d 609,
616.
[¶26.] It must first be noted that in making this argument, Zakaria relies on
cases that are not applicable because they either involve trial testimony by police
directly impugning a defendant’s veracity 6 or they applied a different rule of law. 7
6. In People v. Allen, 222 AD2d 441, 442, 635 NYS2d 40 (1995), the prosecutor
asked “a detective’s opinion on the truth of the defendant’s statement, the
effect of which was to solicit his opinion of the defendant’s credibility.”
Similarly, in State v. Engesser, 2003 SD 47, 661 NW2d 739, “[a]fter the tape
[of defendant’s interview] was played, the trial court allowed [the trooper] to
express his opinion on [defendant’s] truthfulness in the interview.” Id. ¶30,
661 NW2d at 749. In both cases, the statements involved trial opinion
testimony on credibility that was later determined to be harmless error. Id.
¶35, 661 NW2d at 751; Allen, 222 AD2d at 442, 635 NYS2d 40.
7. Pennsylvania categorically requires redaction of such statements from
recorded interviews used at trial. Commonwealth v. Kitchen, 730 A2d 513,
521-522, 1999 PA Super 100, ¶¶30-31. Kansas also bars such statements,
reasoning that they are inappropriate through live witnesses, and therefore,
are inappropriate on video. State v. Elnicki, 279 Kan 47, 57, 67, 105 P3d
1222, 1229, 1236 (2005).
There is, however, a split of authority on this issue. See Elnicki, 279 Kan at
54-57, 105 P3d at 1227-1229 (discussing the holdings of various jurisdictions
on allowing videotape evidence containing assertions by police). The Ninth
Circuit holds that admission of taped interviews is not error; and even if it is
error, it can be cured by limiting instructions. Dubria v. Smith, 224 F3d 995,
1000-1003 (9thCir 2000). Idaho applies harmless error analysis. State v.
Cordova, 137 Idaho 635, 639-642, 51 P3d 449, 453-456 (IdahoApp 2002).
Missouri holds that police statements on interrogation videos are not error.
State v. Palmes, 964 SW2d 241, 243-244 (MoAppSD 1998). In a split opinion,
Washington concluded that admission of videos was not error, or if it was, it
was subject to harmless error analysis. State v. Demery, 144 Wash2d 753, 30
P3d 1278 (2001).
(continued . . .)
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In this case the police accusations were not trial testimony concerning Zakaria’s
character. Instead, the accusations were made in a taped interview shortly after
the crime. Most importantly, the accusations of untruthfulness were not opinion
testimony on Zakaria’s character. Instead, they were a part of the police officers’
psychological tactics used to attempt to elicit statements during the interrogation.
Indeed, the tape of that interview rather clearly reflects that a reasonable juror
would have discerned the difference between these interrogation tactics and opinion
testimony. This understanding is supported by the officer’s explanation of those
techniques to the jury prior to the showing of the videos.
Q. During the course of your interview, do you employ any
investigative techniques in this particular interview, Sergeant?
A. We employ – I have been to several interview schools. I use
the Reid, advanced Reid and some other interview techniques
that we pick up along the way.
Q. When you talk about the Reid technique, what is the Reid
technique?
A. The one I think you are talking about is the advanced Reid
where you give people options. You try to lessen the degree of
seriousness in their mind to get them to admit to what they did.
Sometimes you tell them things that aren’t necessarily true.
Not so that you would get an innocent person to confess but
something that would make a person that is guilty realize that
you know we had him and he would talk. 8
Q. So in the course of this interview are you saying things to
Mr. Zakaria that aren’t true?
A. That we don’t know for sure, yes.
________________________
(. . . continued)
We have declined to apply a categorical rule of exclusion. See State v.
Running Bird, 2002 SD 86, ¶¶31-35, 649 NW2d 609, 616. Therefore,
Zakaria’s authorities are inapposite.
8. The police were untruthful with Reath and Zakaria by falsely stating, in
separate interviews, that each had incriminated the other.
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This conclusion is also supported by the fact that before the tape of Zakaria’s
interview, the trial court specifically instructed the jury that: “Questions and
statements by the police are not evidence. . . .” After seeing Reath’s interview, the
jury was again instructed that police statements were not evidence.
[¶27.] This Court considered a similar situation in Running Bird, 2002 SD
86 at ¶¶31-35, 649 NW2d at 616. We concluded that it was not an abuse of
discretion to admit a videotaped interview in which a defendant’s credibility was
questioned because the officer’s statements were not “direct testimony,” and the
trial court gave a limiting instruction. Id. at ¶35, 649 NW2d at 616. Because the
same situation is present here, we find no abuse of discretion in admitting the
videotape containing the officers’ accusations.
[¶28.] Affirmed.
[¶29.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY,
Justices, concur.
[¶30.] SABERS, Justice, concurs in result.
SABERS, Justice (concurring in result).
[¶31.] I concur in result because I am unwilling to approve conduct of police
officers where they lie to the suspects to get them to make admissions against
themselves or their companions. Here, “the police were untruthful,” by falsely
stating, in separate interviews with Reath and Zakaria, “that each had
incriminated the other.” This is conceded by the majority opinion and constitutes
conduct unworthy of approval by this Court.
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