Roger L. Lyle v. Theodore Koehler and Frank J. Kelley
14 Fed. R. Serv. 907 · 1983 U.S. App. LEXIS 15887 · 720 F.2d 426
October 21, 1983 · Docket 82-1447
Opinion
After a jury trial in the Circuit Court for the County of Saginaw, Michigan, petitioner Roger L. Lyle was convicted of two counts of first degree felony murder and one count of assault with intent to murder, and was sentenced to three concurrent life terms. Having exhausted his state remedies, Lyle filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of Michigan. He now appeals that court’s decision to dismiss the petition.
This case arose out of shootings that occurred shortly after midnight on April 14, 1976, in the home of Feadow and Deborah Jones, both of whom died from the gunshot wounds they received. Alzenia Price — a third victim — survived the attack, although she had been shot twice in the head, and ultimately testified at appellant’s trial. Price testified that four men forced their way into the Jones’ house and took various pieces of jewelry before shooting the victims. One of the Jones’ neighbors saw a large brown car with a beige top park in front of the Jones residence and, after hearing shots, observed the same car drive away quickly.
Shortly after the shootings, the Saginaw Police Department issued a radio report tying one Howard “Pussycat” Johnson to the incident. In response to this report, two police officers proceeded to Johnson’s neighborhood and arrested appellant and Nathaniel Kemp, both of whom the police observed leaving a house and entering a car that resembled the description of the assailants’ getaway car. The police moved in to make the arrest when they recognized Johnson and another unidentified individual approaching the car in which Lyle and Kemp sat. The officers were unable to apprehend Johnson and his companion, both of whom fled on foot, but succeeded in taking Lyle and Kemp into custody. At a subsequent lineup, Price identified Lyle as one of her attackers but did not recognize Kemp. The police did, however, find a fingerprint left by Kemp at the Jones’ home. Lyle and Kemp were both convicted following their joint trial.
Lyle challenges his conviction on several grounds, each of which we shall consider in turn. Because we find that he did not receive sufficient opportunity to confront the witnesses against him, we are compelled to reverse the judgment of the District Court denying his petition.
INEFFECTIVE ASSISTANCE OF COUNSEL
In his closing argument to the jury, Lyle’s trial counsel contended vigorously that the government had failed to prove Lyle’s involvement in the shootings and that, as the District Court observed, “petitioner was being prosecuted ... [only] because of his supposed association with Howard ‘Pussycat’ Johnson.” Lyle v. Koehler, Civ. No. 80-74578, at 5 (E.D.Mich.1982). Trial counsel also contested the government’s theory that the homicides occurred in conjunction with a robbery, maintaining instead that they were drug related:
You don’t commit an armed robbery by saying, “where’s the stuff? where’s the stuff?”
You don’t plan on committing an armed robbery and using other people’s guns, either. You don’t make people take their clothes off and make them go downstairs and tell them you are going to shoot them. This was an execution. This was an execution.
And it was for a reason. And it wasn’t because of money or because of a watch or a couple of rings. Don’t you believe it was, because it wasn’t.
(Tr. 966.)
Appellant insists that this argument amounted to an admission of guilt by his trial counsel, and thus constitutes ineffective assistance of counsel. According to appellant, this argument effectively denied him of the right to a jury trial on the crimes charged. In Wiley v. Sowders, 647 F.2d 642, 649 (6th Cir.1981), this Court held that although “[cjounsel may believe it tactically wise to stipulate to a particular element of a charge or to issues of proof ... an attorney may not stipulate to facts which amount to the ‘functional equivalent' of a guilty plea.” Because trial counsel in Wiley explicitly admitted his client’s guilt, we reversed the lower court’s denial of the writ of habeas corpus. The instant case, however, involves no such explicit admissions of guilt by trial counsel. On the contrary, as the District Court noted, counsel’s argument simply commented on the government’s theory of the case and never conceded that Lyle was involved in any of the events that transpired at the Jones’ residence. Although unsuccessful, the argument certainly met the standard set by this Court to govern effectiveness of counsel cases. See Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974) (“assistance of counsel required by the Sixth Amendment is counsel reasonably likely to render and rendering reasonably effective assistance”). We, therefore, agree with the District Court that counsel’s summation did not generate any violation of appellant’s constitutional rights.
Lyle’s second ineffectiveness of counsel claim involves trial counsel’s failure to object to the court’s instruction that the jury might consider the number of witnesses presented by each side in the case.
The same rationale governs our disposition of Lyle’s third and final ineffectiveness of counsel claim, which cites his trial counsel’s failure to object to the judge’s jury instruction regarding felony murder.
THE GOVERNMENT’S IMPEACHMENT OF ITS OWN WITNESSES
At trial, the government called Kenneth Newton — a friend of both defendants — as a witness and proceeded to impeach his testimony regarding the defendants’ supposed alibi. Lyle claims that the government’s impeachment of its own witness and its'injection of the issue of alibi into the case deprived him of a fair trial. We disagree. Finding that Newton’s alibi testimony was a surprise, the Michigan Court of Appeals held that'the government was entitled to show why it had called Newton as a witness under People v. White, 401 Mich. 482, 508-10, 257 N.W.2d 912, 924-25 (1977). Moreover, as the District Court pointed out, the government would also have been permitted to impeach Newton under Fed.R.Evid. 607, which, while not controlling in a state trial, “certainly provides persuasive evidence that allowing the prosecutor to impeach his own witnesses does not rise to a constitutional violation meriting habeas corpus relief.” Lyle v. Koehler, Civ. No. 80-74578, at 9-13 (E.D. Mich.1982).
CONFRONTATION CLAUSE VIOLATION
Lyle and co-defendant Kemp were arrested together on the night of the shootings shortly after they left a house on the same street as the house of Kenneth Newton. Lyle argues that the admission at trial of several extra-judicial statements by Nathaniel Kemp about a person named “Rock” incriminated Lyle because the jury would naturally have concluded that “Rock” and Lyle are the same person. He argues that admission of this evidence thus deprived him of his sixth amendment right to confront adverse witnesses, inasmuch as Kemp did not testify at their joint trial. The state court and the District Court found that the Kemp statements do not incriminate Lyle and, therefore, do not violate the confrontation clause. We cannot sustain this holding.
While in jail awaiting trial, Kemp instructed his sister, Vyethel, to deliver two letters he had written to Kenneth Newton and Nelson Calhoun. The letters attempt to establish an alibi. At trial, the prosecutor had Vyethel Kemp identify the letters. At the end of the government’s case, the following edited versions of the letters were admitted into evidence and read to the jury without limiting instructions. First, the letter to Mr. Newton:
What it is Squeeze....
Like dig, I guess you are already informed that these honkies are trying to frame me over some bullshit, so I need you to testify in my behalf. I know that I can count on you to take care of business.
This is what I want you to run: Rock came by your house at 10:30 p.m. Tuesday. You’all just kicked it around for a while. Rock was there about 20-25 minutes before I came by at about 5 or 10 minutes to 11:00 p.m., with my chess board and we played chess and just kicked it around for about IV2 hours. Then I asked you what time it was and you looked at your clock and said that it was 12:20 a.m. So, I said that “I am getting ready to leave so that I can take my sister’s car back to her.” Rock asked if I would give him a ride home and I said, “Yea, come on, let’s go.” So Rock and I left. You walked us to the door but didn’t come outside, so you didn’t see where I was parked.
Tell them that after you got back upstairs to your room, you heard tires screeching so you looked out your window and saw my car parked in a driveway on Carroll between 4th and 5th, and police cars had it surrounded and they had rifles and pistols out. Rock and I were standing in the back of my car with our hands stretched out on the trunk of it. Then they handcuffed us behind our backs and put us in a police car, for about 15 minutes the car just sat there, then the car they put us in left. The rest of the cars stayed there for about 10-15 minutes longer.
You didn’t come down because you didn’t know what was jumping off and you didn’t want to get involved.
After all the cars had left, you' walked to a pay phone and called my people to let them know that I was in some kind of trouble. You called Vy at about 1:00 a.m. and told her what had happen.
Dig, I was going to have Howard Nettles say that he was there but my lawyer told me not to change my story, since I had told the detectives there wasn’t anybody else there at your house besides you, me and Rock. So run it on him when you see him.
That’s all you have to run, and please don’t change it. No matter what anybody say, because your alibi will be very fundamental for me.
In case they ask:
1. You have never seen or heard me or Rock with Pussycat or mention his name in any conversation.
3. No, this wasn’t the first time Rock and I had been over to your house at the same time. It really was a common thing for us to drop by since we were all cool.
4. That it’s not unusual for somebody to park down the street from your house, because there are a lot of roomers that stay in the same building as you and the house next to yours always have a lot of people running in. and out at all times of the day and night, so cars are generally parked in front of your house, so people park where they can.
5. You have never had a felony conviction.
So, that’s it, my man, it’s all about you when the time comes. When you fully understand this letter, Destroy it because I don’t want it to get into the wrong hands.
Don’t write me any letters, Yy comes up to see me often if it’s important enough maybe she’ll deliver the message.
My preliminary is Monday, May 10th at 9:30 a.m. I hope to beat this shit then.
Later, Bro. Nate.
Tr. at 908-11.
And the letter to Mr. Calhoun:
What it is Grizz.
I guess you know that these honkies are trying to frame me on that Feido thing. They got me charged with two counts of first Degree murder, and one count of assault with intent to commit murder. I need you to testify for me.
All you have to say is that I came by your house at about 10:30 Tuesday night, over on Warren. I came by to ask you if you wanted to go over to Kenney Newtons house with me to play some chess, but you said no because you were waiting for somebody to come by. So, I stayed about 5 minutes and then left.
That’s all you have to run, nothing else. Can I count on you?
Now in case they ask:
1. I was in my sisters car and I was by myself.
3. That I have never to your knowledge been over to Feido’s house.
4. You have never seen me or Rock in the presence of Pussycat, nor have you ever heard us mention his name. .
5. You saw a chess board lying on the front seat of my car, when I left you walked down to my car with me.
6. I had my burgundy leather coat on and my Corduroy pants (which were blue) and a light blue shirt.
7. You will have to tell them that you’re out on an appeal bond because they will ask you just to see if you are going to lie. They know all about anybody that is to testify.
So, that’s the story my man. It’s all about you now.
I don’t know exactly when I’ll be going to court but I go to my preliminary Monday May 10th at 9:30 a.m. I hope to beat this shit then!
When you have understood this letter destroy it because I don’t want it to get into the wrong hands.
If you have any messages to send me, don’t write to me because they will be tapping my mail, there are no ways of letting me know what you want. Dig it!
Be Smooth My Man,
Nate.
Tr. at 911-13.
Lyle contends that the proof left no doubt that “Rock” and Lyle are one and the same person and that the introduction of these letters violated the confrontation clause of the sixth amendment.
The Bruton Court closely identified the confrontation clause with the principles embodied in the hearsay rule. 391 U.S. at 136 n. 12, 88 S.Ct. at 1628 n. 12. Similarly, in his exploration of the theory behind the hearsay rule, Wigmore states:
The main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. The opponent demands confrontation, not for the idle purpose of gazing upon the witness, or of being gazed upon by him, but for the purpose of cross-examination, which cannot be had except by the direct and personal putting of questions and obtaining immediate answers.
5 J. Wigmore, Evidence § 1395, at 150 (Chadbourn rev. 1974) (emphasis in original). The close relationship between these provisions of constitutional and evidentiary law suggest that the instant case should be analyzed as a hearsay question.
Although none of the lower courts involved in this ease has ever classified the letters as non-hearsay, and although the government has never challenged appellant's Bruton argument on that ground,
This question highlights one of the few areas of disagreement between the two preeminent authorities on t~he law of evidence-Wigmore and Morgan. They differ on the question of when to cut off the chain of inferences to be made from an extra-judicial declaration in determining whether the statement is being offered for the truth of the matter asserted. Although neither scholar appears to have studied the precise situation presented here, it appears that Wigmore would have classified the letters as non-hearsay under his narrow interpretation of the hearsay definition. In a similar context, Wigmore cites the example of the statement "I am the Emperor of Africa." Because the statement is not offered for its truth, but rather as circumstantial evidence of mental aberration, Wigmore classifies it as non-hearsay. 6 J. WIGMORE, supra, § 1766, at 250 (Chadbourn rev. 1974). Morgan, however, criticizes Wigmore's unwillingness to include the inferences implicit in such a statement as pari of the statement for hearsay purposes and notes that Wig-more's approach necessarily assumes the speaker's sincerity. Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 HARv.L.REV. 177, 202-03 (1948). Morgan would not arbitrarily cut the chain of inferences before the necessary conclusion is reached if the purpose of introducing a declaration is to have the jury infer from it the assertion of a final proposition of fact (e.g., (1) “we need a false alibi,” because (2) “we have no explanation of our conduct consistent with innocence” because (3) “we are guilty”). Under Morgan’s view, the inference of Kemp’s guilty mind, as reflected in the letters, is not severable from Kemp’s raw statements; the letters accordingly present a hearsay problem.
Although we consider the question of the proper classification of the letters exceedingly close, we find that the inferences they necessarily invite form an integral part of the letters. They were introduced because by inference they assert the proposition of fact that Kemp and Lyle committed the robbery and hence need an alibi. Accordingly, we conclude that the letters are hearsay,
Apparently assuming that the letters were hearsay with regard to Lyle, the Michigan Court of Appeals nevertheless rejected petitioner’s confrontation argument primarily on the ground that “the letters were not inculpatory of defendant Lyles [sic].” People v. Lyles [sic], No. 77-1506 (Ct.App.1979). The Court of Appeals further stated that “[t]here was no evidence that defendant Lyles [sic] was known as Rock, and the letters did not indicate that Rock was seeking improper alibi assistance.”
While the letters do not refer to Roger Lyle by name, both of them frequently mention an individual named “Rock.” The letter to Newton instructed him to testify that he had observed “Rock” and Kemp being arrested together. Having already heard considerable testimony that Lyle was arrested with Kemp, the jury could not help but infer that “Rock” was in fact the defendant, Roger Lyle. Elaborating on the Michigan Court’s second argument — that “the letters did not indicate that Rock was seeking improper alibi assistance” — the District Court asserted that “[i]n order for the jury to draw an inculpatory inference with respect to ‘Rock’ they would have to speculate that ‘Rock’ helped prepare the letters, that the letters’ object was to procure fabricated alibi testimony, and that such object evidenced a guilty mind.” Lyle v. Koehler, Civ. No. 80-74578, at 9 (E.D.Mich.1982). The close association between Lyle and Kemp — as evidenced by their simultaneous arrest shortly after the killings — necessarily invited the jury to extend the inference of Kemp’s guilty mind to the substantive guilt of both defendants. Introduced into evidence at the very end of the government’s case — after the close association between the defendants had been firmly established — the letters were indeed “powerfully incriminating” extrajudicial statements that “added substantial, perhaps even critical weight to the Government’s case [against Lyle] in a form not subject to cross-examination.” Bruton v. United States, 391 U.S. at 135-36, 127-28, 88 S.Ct. at 1627-28, 1623-24.
We reach this conclusion despite the District Court’s observation that, since Kemp did not directly confess his guilt in the letters, the incriminating guilty mind inference is not compelled. It is inconceivable that a jury could infer anything but guilt from letters outlining desired testimony in such detail and instructing each recipient to destroy his letter to prevent it from “getting into the wrong hands.” Furthermore, it is clear that this is precisely the inference that the state sought to obtain by introducing the letters.
Ladies and gentlemen, the evidence in this case, the direct evidence, the direct eyewitness testimony, the circumstantial evidence, the fingerprint, the statement by Mr. Kemp to Mr. Reeder at the jail, these letters which you can read as many times as you like, the descriptions, the fact that the descriptions are all fit together, the description of Mr. Lyles [s/e] being found with Mr. Kemp, being found in the vicinity of Mr. Johnson, Mr. Pussycat Johnson, all of these fit together on the question of guilt.
(emphasis supplied). Tr. at 945. Although under Bruton, no instructions limiting the jury’s consideration of the letters to the case against co-defendant Kemp would have forestalled the violation in Lyle’s case, the trial court’s instructions actually reinforced the prosecutor’s invitation for the jury to consider the letters when deciding Lyle’s guilt or innocence. Leaving the decision whether to apply the letters against Lyle entirely up to the jury, the trial court instructed that “[e]ach defendant is entitled to have his case determined from evidence as to his own acts and statements and conduct and any other evidence which may apply to him. Tr. at 1028. (emphasis supplied).
That the jury had to draw a short chain of inferences in order to link the letters and Lyle’s participation in the crime does not dissuade us from concluding that the letters constituted a substantial portion of the state’s evidence against him. Apart from the letters, this evidence consisted of Price’s identification, Lyle’s presence with Kemp shortly after the crime in a car resembling the one seen leaving the scene of the shootings, and Lyle’s proximity to a man believed to be Howard “Pussycat” Johnson immediately before the arrest. While this independent evidence might have sufficed to convince the jury beyond a reasonable doubt of Lyle’s guilt, we conclude that the letters engendered a substantial risk that the jury would consider them in deciding that issue. See Hodges v. Rose, 570 F.2d 643 (6th Cir.), cert. denied, 436 U.S. 909, 98 S.Ct. 2244, 56 L.Ed.2d 408 (1978) (consideration of weight of independent evidence both improper.and unnecessary to determination of Bruton issue by trial court). Thus, we reject the holdings of the Michigan Court of Appeals and District Court that the letters were not inculpatory.
Lyle had the right to confront all of the witnesses against him. He had the right to cross-examine the author of the letters, to explore Kemp’s motivation in writing them, to test his sincerity in the letters, and to illuminate any ambiguities that the letters contained. In short, Lyle was entitled to remove all of the dangers that have led courts to exclude hearsay evidence for the last three hundred years. See E. Morgan, Some Problems of Proof under the Anglo-American System of Litigation 108, 142-43 (1956) (hearsay engenders risks regarding declarant’s sincerity, memory, perception, and ambiguity of intended statement).
The government’s case was not sufficiently strong to justify a holding that the admission of the letters constituted error “harmless beyond a reasonable doubt.” See Parker v. Randolph, 442 U.S. 62, 78, 99 S.Ct. 2132, 2142, 60 L.Ed.2d 713 (1979) (Blackmun, J., concurring); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). Appellant’s petition for a writ of habeas corpus accordingly must be granted, and we reverse and remand the case to the District Court with instructions to take such action in the event that the state does not grant Lyle a new trial within a reasonable time.
. Whereas the government presented many witnesses, neither Lyle nor his co-defendant called anyone to testify in his behalf.
. Similarly, as the District Court held, Lyle’s failure to show cause and prejudice under Sykes precludes our review of two of his other claims: (1) that the prosecutor impermissibly shifted the burden of proof to the defense in his closing argument: and (2) that the trial court erred in not requiring the jury to find malice as an element of the crime of felony murder.
. Not only did the District Court never consider this particular ineffectiveness of counsel claim, the state court also did not receive any opportunity to address the argument. Were we to review the claim, we would thus violate the Supreme Court’s rule against federal court review of habeas corpus petitions containing exhausted and unexhausted claims. See Rose v. Lundy, 450 U.S. 910, 101 S.Ct. 1346, 67 L.Ed.2d 333 (1982).
. Appellant also raises this issue substantively in his allegation of constitutional error by the trial court, an argument that we likewise reject. See supra, note 2.
. In a related argument, Lyle claims that the trial court erred in refusing to grant his motion to sever his trial from Kemp’s. Our disposition of the confrontation issue makes consideration of the severance argument unnecessary.
. Petitioner advances the same argument with regard to exculpatory oral statements made by Kemp to a detective after the arrest. Unlike the letters, however, these statements make no reference to any individual other than the witness and thus do not incriminate Lyle even indirectly. See United States v. Dady, 536 F.2d 675 (6th Cir.1976) (no Bruton violation where testimony in question did not mention presence of any other individual).
. Despite the Supreme Court’s recognition of the common principles underlying the confrontation clause and the hearsay rule, Justice Stewart later denied that the Court had ever “equated” the two provisions. Dutton v. Ev
. Apparently assuming that the letters are hearsay with regard to Lyle, the lower courts have upheld admissibility on the ground that the letters were not inculpatory. See discussion infra. The government has adhered to that analysis throughout the case.
. In his summation to the jury, the prosecutor argued as follows:
Why does Nate Kemp have to tell Kenny Newton to get ahold of Howard Nettles and tell him that they can't use Howard Nettles as a witness in this case because he discussed it with his attorney and now it is Mr. Kemp's idea and impression that it would be better just to stick with the original witnesses that he mentioned to Detective Reeder when he was interviewed in the jail complex.
What inference do you draw from that? Why does he have to tell Grizz and Squeeze to not mention to anybody that Rock or I have ever been seen in the presence of Pussycat, nor have you ever heard us mention his name.
Why would you have to tell somebody that if they have never been seen in the presence of Pussycat and have never mentioned Pussycat's names? Wouldn't that be the normal answer you would get if you asked Mr. Newton: "Have you ever seen Mr. Pussycat in the presence of Nathaniel Kemp?"
"Well, no. I don't know."
Why did Mr. Kemp have to tell Kenny Newton: "In case they ask, Squeeze, it is not unusual for somebody to park down the street from your house because there are a lot of roomers that stay in the same building.'
(Tr. at 943-44.)
. Morgan discusses with approval the English case of Wright v. Tatham, 5 Cl. & Fin. 670, 7 Eng.Rep. 559 (H.L.1838), where the Exchequer Chamber and the House of Lords held inadmissible certain letters written to one Marsden, whose testamentary capacity was at issue in the case. Although the proponent of the letters argued that they should be admitted as circumstantial evidence reflecting their authors’ belief that Marsden was sane, the judges held that since this use amounted to a direct assertion by the authors, the letters were hearsay. See E. Morgan, Some Problems of Proof under the Anglo-American System of Litigation, 155-57 (1956); Morgan, Hearsay Dangers and the Application of the Hearsay Concept, 62 Harv.L.Rev. 177, 207-08 (1948).
. The dissent argues that this issue is controlled by the Supreme Court’s decision in Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 21 (1974) and this Court’s opinion in United States v. Gibson, 675 F.2d 825 (6th Cir.) cert, denied, — U.S. —, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982). Post at 436-438. Examination of both of these cases, however, reveals that neither of them presented a situation analogous to the instant case.
In Anderson, the Supreme Court held that two codefendants’ perjured statements at an election contest hearing were not hearsay because the statements were not offered for their truth; “Quite the contrary, the point of the prosecutor’s introducing those statements was simply to prove that the statements were made so as to establish a foundation for later showing through other admissible evidence that they were false,” 417 U.S. at 220, 94 S.Ct. at 2260 (footnotes omitted). Thus, contrary to the dissent’s assertion, post at 436, the proponent’s purpose in introducing evidence is highly pertinent to the proper classification of the evidence as hearsay or not hearsay. The government in Anderson sought to introduce the codefend-ants’ perjury as exemplifying the defendants’ illegal activities; the precise substance of the perjured statements was inconsequential. In the instant case, by contrast, the prosecution sought to have the jury infer the defendants’ guilt directly from the substantive message embodied in the letters themselves.
Nor does the Gibson case control. There we held that the instructions of the defendant’s superior were not hearsay because they were not — and indeed, could not be — offered for their truth or falsity. Unlike Kemp’s letters, however, the Gibson statements contained no implicit but inescapable assertion of fact. Their sole relevance lay in their possible effect on the defendant’s state of mind before and during the commission of the crime, an issue without counterpart in the case at bar.
In the case at bar the prosecutor’s purpose in introducing the letters is the same as the prosecutor’s purpose in introducing the confession in Bruton. In both the alibi letters and the confession, the nontestifying codefendant is saying in an extra-judicial statement “my codefendant and I are guilty.” Thus, unlike Anderson and Gibson where the mere existence of the statements and not their purpose is the relevant point, here the relevant point is for the jury to infer directly from the statements that “Lyle and I are guilty” — the same message that the confession in Bruton conveyed.
. Moreover, the letters do not fall within any recognized exception to the hearsay rule — either federal or state. Both federal and Michigan hearsay exceptions for co-conspirators’ statements require that the statements be made in furtherance of the conspiracy rather than during the “concealment phase” of the conspiracy. Krulewitch v. United States, 336 U.S. 440, 443-44, 69 S.Ct. 716, 718-19, 93 L.Ed. 790 (1949); People v. Trilck, 374 Mich. 118, 132 N.W.2d 134, 138 (1965). Cf. Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (upholding state’s use of co-conspirator’s statements following arrest where state’s co-conspirator exception extends to concealment phase of conspiracy).
. The Michigan Court of Appeals also based its rejection of Lyle’s confrontation claim on a waiver argument, noting that Lyle had “acquiesced in the extent of the editing done on them, and [that] any inference of the inclusion of another in the alibi could have been taken care of by editing.” People v. Lyles [sic], No. 77-1506 (Ct.App.1979). The record, however, shows beyond any doubt that Lyle’s trial counsel maintained an objection to admitting the letters in any form throughout the proceedings, an objection reflected in the following colloquy between the prosecutor and defense counsel regarding the presentation of the edited letters to the jury:
MR. THOMAS: 84-A, Your Honor. I would ask if counsel has any more additions or deletions before it is presented to the jury.
As I understand, they objected to the admission of the letter per se. The Court ruled on that and all counsel stipulated to this final form in chambers. This is the final form that will be given to the jury.
MR. MARTIN: Your Honor, subject to my objection to the exhibits, themselves, I have no objection as to what is contained in the letters. Of course, my objection still remains. I do not want anything — I do not want the letters in completely, but I have stipulated if they are going to be read, they should be read in the content they are now given to me.
Tr. at 907.
Moreover, we note that the District Court did not invoke the state court’s waiver argument in rejecting the claim, and that the government has failed to renew that argument in the appeal before this Court.
. The dissent maintains that, even if the letters are hearsay, Bruton does not compel reversal because the letters were not “powerfully incriminating” with regard to Lyle. Post at 440-441. Thus, the dissent cites United States v. Dady, 536 F.2d 675, 678 (6th Cir.1976), where this Court held that because a codefendant’s redacted statement incriminated the petitioner only when considered in conjunction with extrinsic testimony, no Bruton violation had occurred. Unlike the instant case, however, Dady involved a statement that made no mention of any individual other than the declarant.
. See supra note 9.