*

The Honorable James G. Carr, United States District Judge for the

Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2003 FED App. 0253P (6th Cir.)

File Name: 03a0253p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

TERRANCE LESEAN HILL,

Petitioner-Appellee,

v.

GERALD HOFBAUER, Warden,

Respondent-Appellant.

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No. 01-2667

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 00-70960—Arthur J. Tarnow, District Judge.

Argued: May 6, 2003

Decided and Filed: July 28, 2003 

Before: SUHRHEINRICH and GILMAN, Circuit Judges;

CARR, District Judge.*

_________________

COUNSEL

ARGUED: Laura Graves Moody, OFFICE OF THE

ATTORNEY GENERAL, Lansing, Michigan, for Appellant.

2 Hill v. Hofbauer No. 01-2667

Corbett E. O’Meara, O’MEARA & O’MEARA, Grosse

Pointe Farms, Michigan, for Appellee. ON BRIEF: Laura

Graves Moody, OFFICE OF THE ATTORNEY GENERAL,

Lansing, Michigan, for Appellant. Corbett E. O’Meara,

O’MEARA & O’MEARA, Grosse Pointe Farms, Michigan,

for Appellee.

_________________

OPINION

_________________

SUHRHEINRICH, Circuit Judge. Respondent-Appellant

Gerald Hofbauer, in his official capacity as Warden of the

Marquette Correctional Facility in Marquette, Michigan (“the

State”), appeals from the district court’s conditional grant of

a writ of habeas corpus under 28 U.S.C. § 2254, as amended

by the Anti-Terrorism and Effective Death Penalty Act of

1996 (AEDPA), in favor of Petitioner-Appellee Terrance

Lesean Hill.

The district court found that the state trial court denied Hill

his Sixth Amendment Confrontation Clause rights.

Specifically, the district court found that the Michigan court

erred by allowing into evidence a statement made by Hill’s

non-testifying co-defendant. The State claims on appeal that

the writ should not have been granted because the state

court’s admission of the co-defendant’s statement was not

“contrary to,” or an “unreasonable application” of, “clearly

established Federal law.” The State asserts that Ohio v.

Roberts, 448 U.S. 56 (1980), provides for the admission of

hearsay statements where the statements contain significant

indicia of reliability. The State argues that the co-defendant’s

statement is reliable because it was made against the

declarant’s penal interest.

We reject the State’s arguments and affirm the grant of the

writ. We find that the trial court’s admission of the codefendant’s statement over Hill’s objection was contrary to
No. 01-2667 Hill v. Hofbauer 3

the precedent clearly established by the Supreme Court in Lee

v. Illinois, 476 U.S. 530 (1986); Bruton v. United States, 391

U.S. 123 (1968); and Douglas v. Alabama, 380 U.S. 415

(1965). We also find the error not harmless because the codefendant’s statement indicates that Hill possessed the

requisite malice to be guilty of second-degree murder.

I.

Hill’s petition for a writ of habeas corpus arises from his

arrest and conviction following the robbery and murder of

Jermaine Johnson on August 24, 1995. On that date, Johnson

was shot and killed inside his residence in Flint, Michigan by

then-unknown assailants.

Sometime in 1996, MekiaRandle informed Flint police that

her ex-boyfriend, Jabbar Priest Bulls, had told her he had

participated in Johnson’s murder. Randle gave recorded

statements to the police describing Bulls’ role in the murder.

Flint police arrested Bulls and confronted him with Randle’s

tape-recorded statements. Bulls gave a statement confessing

to the crime, and inculpating Hill and another co-defendant,

Deonte Matthews, as well. Hill and Matthews were

subsequently arrested. 

In his statement, Bulls gave his account of the events

surrounding Johnson’s murder. He stated that on August 24,

1995, Johnson approached him on the street and offered him

money in exchange for allowing Johnson to perform oral sex

on him. Bulls verbally accepted the offer and accompanied

Johnson to Johnson’s home. Bulls claimed he had no interest

in Johnson’s sexual advances, but he accompanied Johnson

because he thought “[t]hat [he] could beat him up and take his

money.” Upon arriving at Johnson’s home, Bulls quickly

excused himself but promised to return. After he left

Johnson’s house, Bulls went to Matthews’ house to recruit

Matthews and Hill to aid him in robbing Johnson.

Specifically, Bulls stated “I told [Matthews] about the fag

around the corner; and I told him we could go and rob him

4 Hill v. Hofbauer No. 01-2667

real quick [sic] and get paid. I told him we could go and stick

up the fag; and after I told him that, then I told [Hill].”

Moreover, Bulls asked Matthews to bring a gun. In response,

Matthews went upstairs and retrieved a shotgun. Bulls stated

that Hill also agreed to the plan to rob Johnson, and the three

men left Matthews’ house, walking together. At Johnson’s

house, Bulls went to the back door, while Hill “stayed . . . on

the side of the house, and [Matthews] . . . was on the other

side of the door. And when [Bulls] knocked on the door,

[Johnson] opened the door. And as soon as [Johnson] opened

the door, [Matthews] rushed and he pointed the shotgun in his

face.” Only Bulls and Matthews entered Johnson’s house,

while Hill “[s]tood outside as a lookout.” As Bulls and

Matthews were rummaging through the house, Johnson

attempted to flee, and then Bulls “heard a blast.” Matthews

had shot Johnson, killing him. Immediately, Bulls asked

Matthews why he had shot Johnson, to which Matthews

responded: “He tried to run.” Bulls then sprinted down the

steps, exited the house, and ran to Randle’s house. 

After his arrest, Hill also gave a statement to police,

likewise giving his account of the events. He stated that Bulls

came to him to solicit his help in robbing Johnson. Bulls

proposed a plan, under which he expected Hill to stand

outside and “[w]ait for [Bulls] to let [him] inside the house

[to] take . . . items from the house.” Hill initially agreed to do

so. As Hill and Bulls were walking toward Johnson’s house,

Matthews met the two of them and then subsequently left.

Bulls told Hill that Matthews was leaving to get a gun

because “it would be easier for him to rob” Johnson.

Matthews returned, but was not visibly carrying a weapon.

Upon reaching Johnson’s house, Hill followed Bulls and

Matthews up the driveway, went behind the house, and

listened while Bulls and Matthews stood at the back door.

Hill stated that, at this time, he “didn’t have [his] mind made

up” whether he was going to enter the house. Bulls knocked

on the door, and had a brief conversation with the resident,

presumably Johnson. At this time, Hill decided to abandon
No. 01-2667 Hill v. Hofbauer 5

1

Deonte Matthews, the purported trigger man, was arrested and

charged, but never brought to trial. The state dismissed Matthews’

charges because the only evidence against him was the statements of Hill

and Bulls. See Hill v. Hofbauer, 195 F.Supp.2d 871, 875 n.3 (E.D. Mich.

2001) (“Hill I”).

the plot and left. He said he heard a shot as he was walking

away.

Subsequently, neighbors apparently saw some men running

from the house, and described a person who resembled Hill.

The Flint police stopped and questioned Hill later that night,

but initially determined he was not involved and released him.

In 1997, Hill and Bulls were tried together in Genessee

County, Michigan, Circuit Court.1 During the trial, neither

defendant testified. However, both Hill’s and Bulls’

statements were entered into evidence. Hill was convicted of

second-degree murder under Mich. Comp. Laws § 750.317;

and assault with intent to rob while armed under Mich. Comp.

Laws § 750.89. Hill received a sentence of life imprisonment

for the murder charge, and fifteen to thirty years’

imprisonment for the assault charge. He appealed to the

Michigan Court of Appeals, claiming, inter alia, that his

Sixth Amendment Confrontation Clause rights were violated

by the introduction of Bulls’ statements. On September 25,

1998, the court affirmed Hill’s convictions and sentence.

People v. Bulls, Nos. 202149 & 202849, 1998 WL 1989786

(Mich. App. Sept. 25, 1998) (per curiam) (“State Appeal”).

The Michigan Supreme Court denied Hill’s application for

leave to appeal on June 29, 1999. People v. Bulls, 598

N.W.2d 341 (Mich. 1999). 

Pursuant to 28 U.S.C. § 2254, Hill filed a petition for a writ

of habeas corpus with the district court. The court

conditionally granted the petition on November 1, 2001. Hill

v. Hofbauer, 195 F. Supp.2d 871 (E.D. Mich. 2001) (“Hill I”).

On November 27, 2001, the State filed a notice of appeal with

6 Hill v. Hofbauer No. 01-2667

this Court. This appeal is timely under Fed. R. App. P.

4(b)(1)(B).

Bulls was also found guilty at his joint trial with Hill. In

his case, the Michigan Court of Appeals had ruled that the

introduction of Hill’s statement was a violation of Bulls’

Sixth Amendment rights. State Appeal, 1998 WL 1989786,

at *2. The Michigan court found that Hill’s statement did not

fit into the hearsay exception for statements against the

declarant’s penal interest because Hill, in his statement, had

shifted most of the blame to Bulls. Id. at *2. However, the

court found the error harmless because Bulls had admitted

that he knew Matthews was carrying a shotgun, and the jury

could therefore infer Bulls’ malice from his own statement.

Id. Bulls filed a habeas petition and challenged the harmless

error ruling in the district court below. The district court

found the error not harmless and granted the writ. Bulls v.

Jones, 86 F.Supp. 2d 746, 754 (E.D.Mich. 2000). We

affirmed, finding the error not harmless because the

admission of Hill’s statement tended to show that Bulls knew

there “was a high likelihood that Matthews would kill

Johnson,” more so than did Bulls’ own statement. Bulls v.

Jones, 274 F.3d 329, 336 (6th Cir. 2001).

II.

We review a district court’s legal conclusions in a habeas

proceeding de novo, and its factual findings for clear error.

Vincent v. Seabold, 226 F.3d 681, 684 (6th Cir. 2000).

Because Hill filed his petition in November 2001, his case

is governed by 28 U.S.C. § 2254(d), as amended by the

AEDPA of 1996. See Vincent, 226 F.3d at 684; see also

Lindh v. Murphy, 521 U.S. 320, 326 (1997). Section 2254(d),

as amended, provides that a petition for writ of habeas corpus

shall fail before the district court unless the state trial court’s

decision:
No. 01-2667 Hill v. Hofbauer 7

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that was based upon an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.

In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme

Court analyzed the AEDPA, and clarified what constitutes a

decision “contrary to,” or an “unreasonable application” of

“clearly established” Supreme Court law. The “contrary to”

and “unreasonable application” clauses of the AEDPA are

independent tests and must be analyzed separately. Id. at 407.

A state court decision can be “contrary to” Supreme Court

case law in two ways. First, the decision is contrary if the

state court arrives at a conclusion opposite to that reached by

the Supreme Court on a question of law. Also, a decision is

contrary if the state court considers facts that are materially

indistinguishable from a relevant Supreme Court case and

arrives at an opposite result. Id. at 405. A state court

decision involves an “unreasonable application” of Supreme

Court law if “the state court identifies the correct governing

legal rules from the Court’s cases but unreasonably applies it

to the facts of the particular state prisoner’s case.” It is also

an “unreasonable application” of Supreme Court precedent

where a state court invokes a Supreme Court case and

unreasonably extends its legal principle to a new context

where it should not apply, or fails to extend it where it should

apply. Id. at 407. Moreover, “clearly established Federal

law, as determined by the Supreme Court of the United

States” “refers to the holdings, as opposed to the dicta, of [the

Supreme] Court’s decisions as of the time of the relevant

state-court decision.” Id. at 412. 

8 Hill v. Hofbauer No. 01-2667

2

The Michigan Court of Appeals also relied on Mich. R. Evid.

804(b)(3) to determine that there exists a hearsay exception for statements

against penal interest. See State Appeal, 1998 WL 1989786, at *2. Mich.

R. Evid. 804(b)(3) provides that “[a] statement which was at the time of

its making so far contrary to the declarant’s pecuniary or proprietary

interest, or so far tended to subject the declarant to civil or criminal

liability . . . that a reasonable person in the declarant’s position would not

have made the statement unless believing it to be true” is not excluded

under the hearsay rule if the declarant is unavailable to testify. See also

Fed. R. Evid. 804(b)(3) (stating same).

III.

In Ohio v. Roberts, 448 U.S. 56 (1980), the Supreme Court

held that a hearsay statement is nonetheless admissible

against a defendant if it falls within a “firmly rooted” hearsay

exception. The Court defined a “firmly rooted” exception as

one that assures the court that there are “indicia of reliability

which have been widely viewed as determinative of whether

a statement may be placed before the jury though there is no

confrontation of the declarant, and [that affords] ‘the trier of

fact a satisfactory basis for evaluating the truth of the prior

statement.’” Id. at 65 (quoting Mancusi v. Stubbs, 408 U.S.

204, 213 (1972) (citations omitted)). Where the hearsay

statement does not fall within a “firmly rooted” hearsay

exception, it is admissible only upon a showing of other

“particularized guarantees of trustworthiness.” Roberts, 448

U.S. at 66.

In this case, the Michigan Court of Appeals recognized the

existence of Hill’s federal constitutional rights, and

acknowledgedRoberts as the leading case law in the area. See

State Appeal, 1998 WL 1989786, at *1. Relying on Roberts,

the court found that Bulls’ statements were reliable because

they fell within the “firmly rooted” hearsay exception for

statements against penal interest.2 Specifically, the court

stated:

Although Bulls made his statements concerning Hill

while in custody, the record is devoid of any indication
No. 01-2667 Hill v. Hofbauer 9

that Bulls was motivated to make the statements by a

desire to curry favor from the authorities. Further, Bulls’

statements have several indicia of reliability in that they

do not minimize his role or responsibility in the crime,

they were voluntarily given, and they were not motivated

by a desire to lie or distort the truth regarding Hill’s

involvement in the crime. Accordingly, we conclude that

the carry-over portions of Bulls’ statements implicating

Hill fall within the penal interest exception to the hearsay

rule and have sufficient indicia of reliability to satisfy

Confrontation Clause concerns. Thus, the trial court did

not err in admitting the statements against Hill.

State Appeal, 1998 WL 1989786, at *2. 

Hill petitioned the district court below for a writ of habeas

corpus. The district court determined that the Michigan

court’s decision was “objectively unreasonable and contrary

to” Lilly v. Virginia, 527 U.S. 116 (1999), and Lee v. Illinois,

476 U.S. 530 (1986). Hill I, 195 F.Supp.2d at 881. The

district court found that those cases stand for the proposition

that “a co-defendant’s confession inculpating the accused is

inherently unreliable, and . . . convictions supported by such

evidence violate the constitutional right of confrontation.” Id.

(quoting Lee, 476 U.S. at 546). Accordingly, the court held

that Bulls’ statements were outside any “firmly rooted”

exception under Roberts. Hill I, 195 F.Supp.2d at 882. The

district court continued its analysis, and independently

examined Bulls’ statement under the second prong of the

Roberts test to determine whether it nonetheless bore

“guarantees of trustworthiness” to justify its admission. Id.

at 882-84. The district court found none and granted the writ.

Id. at 884.

The State argues that the district court erred to the extent it

relied on Lilly. The State contends that we should disregard

Lilly in its entirety because that case was not decided until

1999, a year after Hill’s conviction was affirmed by the

Michigan Court of Appeals. The State asserts that, at the

10 Hill v. Hofbauer No. 01-2667

3

The district court partially rejected the State’s argument that Lilly

could not apply here, stating: 

Lilly is not being applied in this instance to give the petitioner

the advantage of a new constitutional rule of criminal procedure.

On the contrary, Lilly is relied upon merely to demonstrate that

at the time of Petitioner’s trial in 1997, the against penal interest

exception to the hearsay rule had not been determined to be a

“firmly rooted” exception under the mode of analysis established

by Ohio v. Roberts in 1980, and, in fact, has now been so

rejected as manifested by Lilly. It should also be remembered in

this context that Petitioner had no burden to demonstrate

anything; it was the burden of the State, as the proponent of the

evidence, to show that the against penal interest exception to the

hearsay rule was an acceptable reason to admit the evidence

notwithstanding the Confrontation Clause. It could not do so

then and, even in the absence of Lilly, it can not do so now.

Hill I, 195 F.Supp.2d at 880 n. 6. Accordingly, the district court placed

the burden on the State to present Supreme Court case law allowing for

the admission of Bulls’ statement, rather than requiring Hill to present

Supreme Court case law disallowing it. This is the wrong standard. At

the federal stage, the habeas petitioner, not the State, has the burden of

proving that the state courts were in error, not the other way around.

Under the AEDPA, a writ is properly granted only if the petitioner can

demonstrate that the Supreme Court has provided “clearly established”

precedent deeming the trial court’s actions unconstitutional. The Supreme

Court’s silence on a particular issue cannot constitute “clearly

established” Federal law. Therefore, the district court erred in rejecting

the State’s argument that any new rule espoused in Lilly cannot be

considered on habeas review. See also Teague v. Lane, 489 U.S. 288, 301

(1989) (prohibiting reliance on a case that “breaks new ground” after state

time, the admission of Bulls’ statement against Hill cannot

have been “contrary to . . . clearly established Federal law, as

determined by the Supreme Court of the United States,” 28

U.S.C. § 2254(d)(1), because the Supreme Court had not yet

decided the issue in Lilly.

The State is correct that any new law in Lilly cannot be

considered under the AEDPA, but the State misreads, first,

the district court opinion as relying solely on Lilly, and,

second, Lilly as creating a new rule rather than stating one

mandated from earlier precedent.3
No. 01-2667 Hill v. Hofbauer 11

court proceedings in habeas cases).

Although the decision in Lilly drove the district court’s

opinion, the court nonetheless cited the earlier Supreme Court

cases of Lee and Bruton v. United States, 391 U.S. 123

(1968), to stand for the same proposition as Lilly, and to

demonstrate that the principles espoused in Lilly were

previously established. See Hill I, 195 F.Supp.2d at 879; see

also Teague v. Lane, 489 U.S. 288, 301 (1989) (stating that,

in regard to habeas cases, a subsequently decided case does

not present new law if it is “dictated by precedent existing at

the time the defendant’s conviction became final”).

In Lilly, a plurality unequivocally stated that confessions

made by a co-defendant inculpating not only himself but his

co-criminals are “inherently unreliable” and not within a

“firmly rooted” hearsay exception for statements against

penal interest. Lilly, 527 U.S. at 131. Accordingly, the Court

ruled that under the framework discussed in Roberts, a codefendant’s custodial confession cannot be entered into

evidence absent additional “guarantees of trustworthiness.”

The Court “distinguishe[d] accomplices’ confessions that

inculpate themselves and the accused as beyond a proper

understanding of the against penal-interest exception because

an accomplice often has a considerable interest in ‘confessing

and betraying his cocriminals.’” Id. at 131 (citing 5 J.

Wigmore, EVIDENCE § 1477, at 358, n. 1 (J. Chadbourn rev.

1974)). The Court further distinguished the confessions of

accomplices from the statements of co-conspirators made in

furtherance of a conspiracy, which have traditionally been

held trustworthy, because in the case of custodial confessions,

the government is typically “involved in the statements’

production.” Therefore such statements do not bear the same

indicia of reliability as is present in statements made of the

declarant’s own accord. See id. at 137.

Moreover, the Supreme Court expressly referenced past

Supreme Court cases in achieving its result in Lilly, stating

12 Hill v. Hofbauer No. 01-2667

that “[i]t is clear that our cases consistently have viewed an

accomplice’s statements that shift or spread the blame to a

criminal defendant as falling outside the realm of those

‘hearsay exception[s][that are] so trustworthy that adversarial

testing can be expected to add little to [the statements’]

reliability.’” Id. at 133 (quoting White v. Illinois, 502 U.S.

346, 357 (1992)) (emphasis added) (alterations in original);

see also Lilly, id. at 131 (citing Douglas v. Alabama, 380 U.S.

415 (1965)).

In our opinion in Bulls’ case, we spoke to whether Lilly was

mandated by earlier precedent, and addressed substantially

the same cases referenced by the Lilly Court:

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” That

guarantee includes the right to cross-examine witnesses.

See Pointer v. Texas, 380 U.S. 400, 404 (1965). The

Supreme Court has repeatedly held that a non-testifying

co-defendant’s statements that implicate a defendant are

presumptively unreliable and their admission violates the

Confrontation Clause. See Douglas v. Alabama, 380

U.S. 415, 419 (1965); see also Bruton v. United States,

391 U.S. 123, 126 (1968) (holding that the admission of

non-testifying co-defendant’s confession incriminating

defendant, even with jury instructions to consider

confession only against the co-defendant, violates the

Confrontation Clause). The Supreme Court has noted

that since Douglas, it “has spoken with one voice in

declaring presumptively unreliable accomplices’

confessions that incriminate defendants.” Lee v. Illinois,

476 U.S. 530, 541 (1986); see also Lilly, 527 U.S. at 131;

Cruz v. New York, 481 U.S. 186, 193 (1987). To

overcome this presumption of unreliability and introduce

such statements into evidence, the prosecution must

show that the statements bear “adequate indicia of

reliability.” Roberts, 448 U.S. at 66; United States v.

McCleskey, 228 F.3d 640, 644 (6th Cir. 2000) (“[I]t is
No. 01-2667 Hill v. Hofbauer 13

4

In another case, United States v. McCleskey, 228 F.3d 640 (6th Cir.

2000), we likewise held that a co-defendant’s custodial confession does

not fall within a “firmly rooted” hearsay exception. Id. at 643-45.

However, McCleskey was not a habeas case, but a federal drug case.

Therefore, our analysis was not bound by the strictures of the AEDPA.

Accordingly, although we relied on the decision in Lee, we did not

perform a thorough analysis of whether the principle was “clearly

established” by the Supreme Court, as that term is used in the AEDPA. 

clear that Supreme Court Confrontation Clause

jurisprudence does not permit the introduction of hearsay

declarations uttered by accomplices in law enforcement

custody that inculpate a defendant, absent further

‘particularized guarantees’ of the declaration’s

trustworthiness.”).

Bulls v. Jones, 274 F.3d 329, 333-34 (6th Cir. 2001). In

Bulls, the State had conceded it was constitutional error for

the trial court to enter Hill’s statement against Bulls because

Hill’s statement shifted a greater portion of the blame to

Bulls, and thus was not against Hill’s penal interest. The only

issue before us in Bulls was whether the error was harmless.

Accordingly, our discussion in Bulls of whether the principles

espoused in Lilly were previously clearly established was

dicta.

Today, we squarely face the issue whether Lilly was preordained by earlier clearly established Supreme Court law for

the first time.4 Therefore, we find it necessary to discuss the

facts of the Supreme Court cases cited in Lilly and Bulls in

further detail.

In Douglas v. Alabama, 380 U.S. 415 (1965), the Court

found that a statement wherein a declarant places any blame

at all on his co-defendant is unreliable and inadmissible

hearsay. Id. at 419. In a joint trial, the prosecutor was not

permitted to refresh the memory of the uncooperative

declarant with his statement because it implicated the

defendant as well as himself. The Court found that such use

14 Hill v. Hofbauer No. 01-2667

would “plainly den[y the defendant] the right of crossexamination secured by the Confrontation Clause.” Id.

In Bruton v. United States, 391 U.S. 123 (1968), a nontestifying co-defendant had made a statement inculpating not

only himself but the defendant, George Bruton, as well. At a

joint trial, prosecutors sought to enter the statement, which

was admittedly hearsay, under the exception for the

admissions of a party-opponent. The trial court admitted the

statement against the declarant and instructed the jury that the

statement could not be considered against Bruton. The

Supreme Court ruled that the limiting instruction was not

sufficient. The Court found that the Sixth Amendment right

to cross-examination is absolute, and admission of the codefendant’s statement therefore violated Bruton’s right to

confront the evidence against him. There was no presumption

of veracity in the statement because the credibility of such

statements is “inevitably suspect.” 391 U.S. at 136.

In Lee v. Illinois, 476 U.S. 530 (1986), the Court again held

a co-defendant’s confession not within a hearsay exception

and inadmissible. There, Millie Lee’s co-defendant, Edwin

Thomas, gave a statement inculpating both himself and Lee

in a plot to kill Lee’s aunt. Notwithstanding that Thomas’

statement was voluntary and also incriminated himself, the

Court held the statement unreliable and stated:

Although . . . the confession was found to be voluntary

for Fifth Amendment purposes, such a finding does not

bear on the question of whether the confession was also

free from any desire, motive, or impulse Thomas may

have had either to mitigate the appearance of his own

culpability by spreading the blame or to overstate Lee’s

involvement in retaliation for [Lee] having implicated

him in the murders.

Id. at 544. Moreover, the Court in Lee recognized even then

that its rule was not new law, stating that “there is no

occasion to depart from the time-honored teaching that a co-
No. 01-2667 Hill v. Hofbauer 15

defendant’s confession inculpating the accused is inherently

unreliable, and that convictions supported by such evidence

violate the constitutional right of confrontation.” Id. at 546

(emphasis added). 

In Cruz v. New York, 481 U.S. 186 (1987), the defendant,

Eulogio Cruz, sought to suppress his co-defendant’s

confession under Bruton. However, Cruz had also made a

confession which mirrored his co-defendant’s statement in all

relevant aspects. The trial court admitted the co-defendant’s

confession against Cruz, finding it reliable because of the two

statements’ “interlocking” nature. Cruz, 481 U.S. at 189.

The Supreme Court reversed, and held that the existence of

Cruz’s own corroborating confession did not automatically

render the co-defendant’s statement reliable, and its

admission constituted Sixth Amendment error. Id. at 193.

The Court held, however, that the defendant’s corroborating

confession could be used on appeal to determine whether the

error was harmless. Id. at 194.

As the foregoing discussion indicates, the Supreme Court

had provided a line of cases holding that a co-defendant’s

custodial confession is inherently unreliable. However, the

State nonetheless contends that the Lilly rule cannot be said

to have been previously “clearly established” by the Supreme

Court because several federal circuits had held such

statements admissible in the face of the above-cited Supreme

Court precedent. Although only Supreme Court case law is

relevant under the AEDPA in examining what Federal law is

“clearly established,” the decisions of the United States

Courts of Appeals may be informative to the extent we have

already reviewed and interpreted the relevant Supreme Court

case law to determine whether a legal principle or right had

been clearly established by the Supreme Court. See, e.g.,

O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998), overruled

on other grounds, McCambridge v. Hall, 303 F.3d 24, 36-37

(1st Cir. 2002) (en banc). Because we had examined this

issue only in dicta, a review of other circuits’ pre-Lilly case

16 Hill v. Hofbauer No. 01-2667

law interpreting Douglas, Bruton, and Lee may be

informative.

In United States v. York, 933 F.2d 1343 (7th Cir. 1991), the

Seventh Circuit affirmed the admission of a co-conspirator’s

statement against the defendant at his insurance fraud trial.

The co-conspirator, Gail Maher, had made statements to two

associates claiming that she and the defendant, Tom York,

had planned to blow up the lounge York owned in order to

collect the insurance proceeds. Id. at 1360. Maher, having

died, did not testify. The court affirmed the admission of

Maher’s statement, noting that it tended to subject her to such

criminal liability that she would not have made the statement

had it not been true. Id.

In United States v. Seeley, 892 F.2d 1 (1st Cir. 1989),

authored by then-Circuit Judge Stephen Breyer, the First

Circuit likewise upheld the admission of a co-conspirator’s

statement as against his penal interest. There, the defendant,

Edward Seeley, was charged in connection with two

Massachusetts bank robberies. A fellow bank robber, Robert

Wayne, made statements to his girlfriend that inculpated

himself, Seeley, and three other men in the bank heists. Id. at

1. Wayne was found dead a month after the robberies, and

was therefore not charged in the crimes and unable to testify

at Seeley’s trial. The trial court allowed Wayne’s girlfriend

to testify to his statements, and the First Circuit upheld their

admission, finding that the statements bore sufficient indicia

of reliability because Wayne would not have made such

statements to his girlfriend had they not been true. Id. at 4;

see also United States v. Fields, 871 F.2d 188 (1st Cir. 1989)

(affirming admission of Wayne’s statements against another

accomplice for same reasons).

In United States v. Katsougrakis, 715 F.2d 769 (2d Cir.

1983), one of the co-conspirators, Kyriakos Chrisanthou, was

badly burned while setting fire to the defendant’s restaurant,

and subsequently died from his injuries. The trial court

allowed Chrisanthou’s wife and his friend, Fitos Vasilou, to
No. 01-2667 Hill v. Hofbauer 17

5

The State also raises two Sixth Circuit cases to support its

proposition that the Supreme Court had not previously clearly established

the rule of Lilly. However, neither case is applicable here. In Neuman v.

Rivers, 125 F.3d 315 (6th Cir. 1997), we held that statements against

penal interest fell within a “firmly rooted” hearsay exception. But in that

case, the admitted statement did not inculpate the declarant’s accomplice,

but only spoke to the declarant’s role in the crime. See id. at 319-20. In

Gilliam v. Mitchell, 179 F.3d 990 (6th Cir. 1999), we relied on Neuman

and likewise held an accomplice’s confession admissible. We did not,

however, perform an analysis of whether the declarant’s statement spoke

only to his own role in the crime or inculpated his cohorts as well.

Rather, in light of Lilly pending at the time in front of the Supreme Court,

we gave only a cursory review of the “firmly rooted” exception issue, and

rested our holding alternatively on two other grounds. See id. at 994 n.

1. First, we found that the declarant’s statement contained additional

particularized guarantees of trustworthiness. Id. at 994. And second, we

found that any error was nonetheless harmless. Id. at 994-95.

testify at Katsougrakis’s fraud trial about statements that

Chrisanthou had made to each of them implicating himself, as

well as Katsougrakis and other co-conspirators, in a scheme

to defraud Katsougrakis’s insurers by setting fire to his

business. The Second Circuit affirmed the admissions,

finding sufficient indicia of reliability in Chrisanthou’s

statements because they were sufficiently against his penal

interest. Id. at 775-76.

However, each of these circuit cases is distinguishable from

the case sub judice.

5

 The defendant in each case made his

statement, not to police, but to an acquaintance or a fellow

accomplice. Therefore, at the time of the statement, none of

the defendants was motivated by a desire to curry the favor of

law enforcement officials. See, e.g., Katsougrakis, 715 F.2d

at 775 (stating that Chrisanthou’s statements bore adequate

indicia of reliability only because they were made while

“talking privately with his friend” and not to police).

Douglas,Bruton, and Lee indicate that the Supreme Court has

held statements made to police to closer scrutiny. Although

Rule 804(b)(3) provides a hearsay exception for statements

against the declarant’s interest, this rule has been consistently

18 Hill v. Hofbauer No. 01-2667

disregarded by the Supreme Court in situations where the

declarant’s custodial confession at all implicates somebody

else. Such statements are never truly against the declarant’s

penal interest because a defendant in custody always has a

motivation to implicate and pass the blame to another, even

if in the slightest. See Lee, 476 U.S. at 541. As the Supreme

Court stated in Williamson v. United States, 512 U.S. 594,

599-600 (1994), such statements are inherently unreliable

because “[o]ne 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.”

Therefore, what was dicta in Bulls we make explicit today.

We hold that Douglas, Bruton, and Lee evidence that the

Supreme Court had clearly established the principle that a codefendant’s custodial confessions are unreliable and not

within a “firmly rooted” hearsay exception prior to Lilly.

Here, Bulls’ custodial statements are no different than those

statements held inadmissible in Douglas, Bruton, and Lee.

We therefore conclude that the trial court’s admission of

Bulls’ statement was “contrary to” the law of those

indistinguishable Supreme Court cases.

We also hold that the trial court’s admission of Bulls’

statement was an “unreasonable application” of the legal

principles espoused in Roberts, the only Supreme Court case

identified by the state court of appeals. The Michigan court

attempted to extend the list of “firmly rooted” hearsay

exceptions to include a co-defendant’s custodial confession

inculpating his cohorts. In light of Bruton and the other

above-cited Supreme Court precedent, we find this action

objectively unreasonable under the “extension theory” of the

“unreasonable application” standard of the AEDPA. See

Williams, 529 U.S. at 407.

The State also argues that the district court erred in finding

that Bulls’ statement did not otherwise contain significant

“guarantees of trustworthiness.” However, the State has

proposed no “guarantees of trustworthiness” beyond the fact
No. 01-2667 Hill v. Hofbauer 19

that Bulls’ statement was a self-inculpatory confession. As

stated above, this is insufficient to establish “significant

indicia of reliability.”

IV.

Nonetheless, the trial error in this case is subject to

harmless error analysis. See Chapman v. California, 386 U.S.

18, 24 (1967). On direct review, we employ a reasonable

doubt standard to determine whether a constitutional error is

harmless. Id. But a constitutional error is cause for federal

habeas relief only if it has “a substantial and injurious effect

or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993). The Brecht standard

has survived the enactment of the AEDPA. We have held

that if a petitioner can pass Brecht analysis, “he will surely

have demonstrated that the state court’s finding that the error

was harmless beyond a reasonable doubt . . . resulted from an

unreasonable application of Chapman.” See Nevers v.

Killinger, 169 F.3d 352, 371-72 (6th Cir. 1999); see also

Bulls, 274 F.3d at 335. In determining whether Confrontation

Clause error is harmless under Chapman, the reviewing court

should consider: “the importance of the witness’ testimony in

the prosecution’s case, whether the testimonywas cumulative,

the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points,

. . . and, of course, the overall strength of the prosecution’s

case.” Delaware v. van Arsdall, 475 U.S. 673, 684 (1986); cf.

Idaho v. Wright, 497 U.S. 805, 822 (1990) (stating that

existence of corroborating evidence informs the question of

harmless error). If the reviewing judge is in “grave doubt”

about whether constitutional error is harmless, it is not.

O’Neal v. McAninch, 513 U.S. 432, 445 (1995).

In determining whether the error in this particular case is

harmless, we must decide whether the other evidence,

including Hill’s own statement, is overwhelming and

sufficient to establish the elements of second-degree murder

and armed assault with intent to rob beyond a reasonable

20 Hill v. Hofbauer No. 01-2667

6

Bulls’ statement went as follows: 

Q: Did you ask [Matthews] if he had anything?

A: Yes.

Q: And what was that?

A: I asked him if he had a gun— some heat.

Q: And did he?

A: Yes.

Q: What kind?

A: Shotgun.

Q: Where did he get the shotgun from?

A: He went upstairs.

Q: Now you said you told [Hill] something.

A: Yes.

Q: What was that?

A: I told him the same thing that I told [Matthews] about the fag and

robbing.

doubt. Otherwise, we must find that the introduction of

Bulls’ statement actually prejudiced Hill, had a “substantial

and injurious effect” under Brecht, and was an “unreasonable

application” of Chapman.

The State argues that “Bulls’[] statement completely

mirrors, in relevant aspects, Hill’s own statement about his

participation in the robbery and subsequent murder,” Brief

for Appellant, at 37, and therefore its introduction was

harmless error, if error at all. Cf. Cruz, 481 U.S. at 194

(holding error may be harmless where co-defendant’s

statement is duplicative of defendant’s). The State is correct

that Hill’s statement is consistent with Bulls’ in several

respects. Hill indicated that he had originally agreed to the

plan to rob Johnson, that he voluntarily went to Johnson’s

house, and that his role was to be a lookout and wait for

Matthews and Bulls to return. However, Bulls’ and Hill’s

statements are not entirely identical. Bulls stated that Hill and

Matthews were together at Matthews’ home when Bulls first

approached them. This is significant because Bulls stated that

Matthews retrieved a shotgun while all three men were

together in Matthews’ home, thereby implying that Hill was

aware that Matthews had a gun.6 By contrast, Hill stated that
No. 01-2667 Hill v. Hofbauer 21

Q: So the three of you made a plan to go rob him?

A: Right.

Q: Did the three of you leave the house together?

A: Yes.

Q: Where did you go?

A: To the fag’s house.

Q: How was the gun concealed as you walked there?

A: Matthews had it in his pants.

7

Hill and the police had the following exchange concerning his

knowledge that Matthews was carrying a gun:

Q: Did [Matthews] catch up with you?

A: Yes.

Q: Where at?

A: On Hamilton and Forest Hill.

Q: Did he have a weapon?

A: Not that I know of, no.

Q: You didn’t see one?

A: No.

Q: Did you ask him if he had one?

A: No.

Bulls first approached Hill when Hill was alone, and that

Matthews met Hill and Bulls later, as they were already

walking toward the victim’s house unarmed. Hill contended

that Matthews and Bulls had a conversation, and Matthews

subsequently left. Hill said Bulls told him that Matthews was

leaving to get a gun. However, Hill claimed that when

Matthews returned, he did not see Matthews carrying a gun.

In fact, Hill unequivocally stated that he did not know

Matthews had a gun.7

In order to find Hill guilty of second-degree murder in

Michigan, the State must prove that there was: (1) a death;

(2) caused by an act of the defendant; (3) with malice; and

(4) without justification or excuse. See People v. Goecke, 579

N.W.2d 868, 878 (Mich. 1998). Moreover, under Michigan

law, an aider and abettor can be charged as a principle if he

“procures, counsels, aids, or abets” in the commission of the

crime. See Mich. Comp. Laws Annot. § 767.39; see also

People v. Palmer, 220 N.W.2d 393, 396-97 (Mich. 1974).

22 Hill v. Hofbauer No. 01-2667

“Malice,” in Michigan, is defined as “the intent to kill, the

intent to cause great bodily harm, or the intent to do an act in

wanton and wilful disregard of the likelihood that the natural

tendency of such behavior is to cause death or great bodily

harm.” Goecke, 579 N.W.2d at 878-79. However, malice

cannot be inferred from Hill’s complicity in the robbery plot

alone. See People v. Aaron, 299 N.W.2d 304, 326 (Mich.

1980) (stating that the commission of an underlying felony

does not alone satisfy requirement of malice). Rather, a

factual examination is necessary to determine whether Hill

possessed an intent to kill or cause great bodily harm beyond

his intent to rob. See People v. Harris, 476 N.W.2d 767, 771

(Mich. App. 1991); see also People v. Kelly, 378 N.W.2d

365, 381 (Mich. 1985).

Under an aiding and abetting theory, the State must prove

either that Hill held the requisite intent for second-degree

murder or had knowledge that Bulls and Matthews held that

intent. See People v. King, 534 N.W.2d 534, 538 (Mich. App.

1995). An aider and abettor of a robbery must know of his

cohort’s intent to kill the victim, or at least his intent to

physically harm the victim, before he can be found to have

aided and abetted the murder as well. Such intent can be

inferred from the aider and abettor’s knowledge that his

cohort possesses a weapon. See, e.g., People v. Feldmann,

449 N.W.2d 692, 697 (Mich. App. 1989); see also People v.

Turner, 540 N.W.2d 728, 733 (Mich. App. 1995), overruled

in part on other grounds, People v. Mass, 628 N.W.2d 540,

548 (Mich. 2001). However, “[i]t is fundamentally unfair and

in violation of basic principles of individual criminal

culpability to hold one felon liable for an unforeseen death

that did not result from actions agreed upon by the

participants.” Turner, 540 N.W.2d at 548.

Therefore, a determination of whether Hill knew that

Matthews was carrying a gun is relevant to the jury’s

determination of whether Hill is guilty of second-degree

murder. Hill’s statement presents little question that he

originally possessed the requisite intent to rob Johnson, but
No. 01-2667 Hill v. Hofbauer 23

8

As one of its elements, the armed assault with intent to rob charge

requires a finding that the perpetrator was armed with a dangerous

weapon. Therefore, because Hill was charged under an aiding and

abetting theory, whether Hill knew Matthews was armed is relevant to the

analysis of this charge as well. See Mich. Comp. Laws § 750.89.

leaves open whether he knew Matthews had a gun, and

therefore whether Hill possessed the requisite malice

necessary for second-degree murder. Bulls’ statement

removes any doubt by implying that Hill knew of the

existence of the gun and acquiesced to its role in the robbery.

Accordingly, Bulls’ statement is more damaging to Hill than

his own. We find, therefore, that the Sixth Amendment error

had “a substantial and injurious effect or influence in

determining the jury’s verdict.” See Brecht, 507 U.S. at 623.

Hill is entitled to a new trial on both charges.

8

V.

For the foregoing reasons, we uphold the grant of the writ

by the district court. The order by the district court to the

State of Michigan to retry Hill or release him from penal

custody within 120 days of the date of the district court order

(November 1, 2001), plus time stayed pending this appeal, is

hereby AFFIRMED.