Argued May 15, 2013
On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 2-10-cv-02869) District Judge: Honorable Eduardo C. Robreno
Susan E. Affronti, Esq. (ARGUED) Thomas W. Dolgenos, Esq. Philadelphia County Office of District Attorney
Counsel for Appellants Amy Coleman (ARGUED) Adrian N. Roe, Esq. Charles P. Sapienza, III (ARGUED) Duquesne University School of Law Counsel for Appellee
Before: SMITH, FISHER and CHAGARES, Circuit Judges.
FISHER, Circuit Judge.
This appeal arises out of James Washington's collateral attack on his convictions for second-degree murder, robbery, and criminal conspiracy related to his participation as the driver in a February 2000 store robbery that resulted in the deaths of two store employees. Washington contends that the introduction into evidence of a jointly-tried nontestifying coconspirator's confession violated his rights under the Confrontation Clause when the redacted confession replaced Washington's name with "someone I know" or "the driver." A jury found Washington guilty, and Washington pursued all available direct and collateral state appeals before petitioning the District Court for a writ of habeas corpus. The District Court conditionally granted the writ. Washington v. Beard, 867 F.Supp.2d 701, 703 (E.D. Pa. 2012). Because no reasonable reading of the Supreme Court's Confrontation Clause jurisprudence would permit the introduction of the redacted confession allowed in this case, we will affirm.
At trial, the Commonwealth introduced evidence establishing that James Taylor, one of Washington's friends, was hired as a stockperson at a Dollar Express Store in Philadelphia in January 2000. Taylor observed that manager Gertrude Ritterson routinely arrived at the store at 5:00 a.m. and she would regularly smoke a cigarette on the back of the loading dock with the garage door open half-way before attending to her duties. Taylor also noted that the store contained a safe in the office and employed no guards, video cameras, or other security measures – making it an "easy target" for his friends Washington, Willie Johnson, and Romont Waddy to rob.
On the night of February 23, 2000, the four men met at Waddy's home to plan the robbery, which they intended to carry out the next day. Johnson carried the gun they planned to use. In the morning, Washington drove the group to the store. Washington and Taylor remained in the car while Waddy and Johnson entered, carrying tools needed to open a safe. Waddy and Johnson confronted Ritterson and another employee. Johnson then fired bullets through the heads of Ritterson and the other employee.
Washington heard the shots and ran into the store, where he helped remove $750 from the safe. Waddy filled a trash bag with items from the store to sell. Washington, Johnson, and Waddy then returned to the car, where Taylor asked why they had shot the employees. Johnson complained about the small amount of money collected from the store and handed $50 to Waddy and $200 to Washington. Taylor did not take any of the money.
Shortly after the incident, Taylor learned that the police had designated him a person of interest. He surrendered to police and gave a statement. He also agreed to testify against the other men in exchange for a sentence of 55 to 110 years' imprisonment. Additionally, Waddy gave a statement to police on March 5, 2000.
Johnson, Waddy, and Washington were tried together before a jury in the Court of Common Pleas of Philadelphia County in October and November 2001. Taylor's testimony at trial on October 25, 2001 identified all of the coconspirators and discussed in detail their roles in the crime. Taylor clearly and repeatedly identified Washington as the driver of the car:
"Q: What was Jiz [a nickname for Washington] or James Washington to do?
A: Just to drive.
Q: Why was that?
A: Because he was the only one ...