North Carolina Criminal Law NC Criminal Law

In yesterday’s post I set out the basics of the Bruton rule. Put simply, Bruton v. United States, 391 U.S. 123 (1968), held that a defendant’s confrontation clause rights are violated when a non-testifying codefendant’s confession naming the defendant as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Later cases clarified that the confrontation clause is not violated by the admission of a non-testifying codefendant’s confession if:

• a proper limiting instruction is given and
• the confession is redacted to eliminate not only the defendant’s name but also any reference to his or her existence.

Crawford, of course also was grounded in the confrontation clause. Crawford v. Washington, 541 U.S. 36 (2004). Not surprisingly then, it impacts the Bruton rule. Specifically, Crawford and its progeny have two significant implications on the Bruton rule.

First, Crawford made clear that confrontation clause protections are limited to testimonial statements. Whorton v. Bockting, 549 U.S. 406, 420 (2007) (confrontation clause has “no application” to non-testimonial statements). Thus, if the statement is non-testimonial, neither Crawford nor Bruton apply. Although there does not appear to be a North Carolina decision on point, ample case law supporting this proposition exists in other jurisdictions. See, e.g., United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010); United States v. Dale, 614 F.3d 942, 955 (8th Cir. 2010); United States v. Johnson, 581 F.3d 320, 325-26 (6th Cir. 2009). This means that when a Bruton issue arises at trial, one of the first inquiries will be: Is the confession testimonial. Of course, Bruton issues arise most commonly with respect a codefendant’s confession that was procured through police interrogation. Such a statement is clearly testimonial under Crawford. Crawford, 541 U.S. at 51. However, because the Bruton rule is not limited to confessions procured by police interrogation, issues may arise as to whether a confession made in other contexts is testimonial and subject to the confrontation clause, such as when the codefendant confessed to a relative or a friend.

Second, a number of pre-Crawford North Carolina Bruton cases hold that if a Bruton-challenged confession falls within a hearsay exception and is reliable, Bruton does not bar admissibility. See, e.g., State v. Porter, 303 N.C. 680, 695-97 (1981). This law is clearly invalid after Crawford. In Crawford the Court overruled the reliability test for confrontation clause objections and set in place a new, stricter standard for admission of hearsay statements under the confrontation clause. Under the old Ohio v. Roberts, 448 U.S. 56 (1980), reliability test the confrontation clause did not bar admission of an unavailable witness’s statement if the statement had an adequate indicia of reliability. Evidence satisfied that test if it fell within a firmly rooted hearsay exception or had particularized guarantees of trustworthiness. Crawford rejected the Roberts analysis, concluding that although the ultimate goal of the confrontation clause is to ensure reliability of evidence, “it is a procedural rather than a substantive guarantee.” Crawford, 541 U.S. at 61. It continued: The confrontation clause “commands, not that the evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.” Id. Crawford went on to hold that testimonial statements by declarants who do not appear at trial may not be admitted unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant. Thus, any pre-Crawford cases holding that a confession satisfies the confrontation clause because it is reliable are no longer good law.

If you’ve faced other issues involving the intersection of Crawford and Bruton, I’d be interested to know about them.

Although recent confrontation clause litigation has focused on the new Crawford rule, the Bruton rule continues to create issues in joint trials of codefendants. In this post I’ll give you a primer on Bruton. In a follow-up post I’ll discuss Crawford’s implications on the Bruton rule.

The Rule. Bruton v. United States, 391 U.S. 123 (1968), held that a defendant’s confrontation clause rights are violated when a non-testifying codefendant’s confession naming the defendant as a participant in the crime is introduced at their joint trial, even if the jury is instructed to consider the confession only against the defendant. See also Richardson v. Marsh, 481 U.S. 200, 201-02 (1987) (so stating the rule); State v. Brewington, 352 N.C. 489, 507 (2000) (same). Later cases modified Bruton and held that the confrontation clause is not violated by the admission of a non-testifying codefendant’s confession if:

• a proper limiting instruction is given and
• the confession is redacted to eliminate not only the defendant’s name but also any reference to his or her existence.

Richardson, 481 U.S. at 208, 211; see also Gray v. Maryland, 523 U.S. 185, 189-91 (1998); Brewington, 352 N.C. at 507-08. This is true even if other evidence admitted at trial links the defendant to the confession. Richardson, 481 U.S. 200.

Must Incriminate. The Bruton rule only applies if the statement incriminates the defendant. State v. Brewington, 352 N.C. 489, 511 (2000). A statement that does not mention or refer to the defendant in any way does not incriminate the defendant. State v. Boozer, __ N.C. App. __, 707 S.E.2d 756, 766 (2011); State v. Taylor, 344 N.C. 31, 48 (1996). On the other hand, a statement that is facially inculpatory (e.g.,“the defendant helped me commit the crime”) clearly incriminates the defendant. Richardson, 481 U.S. at 208. The facially inculpatory statement need not refer to the defendant by proper name to be incriminatory; use of nicknames and specific descriptions (“red-haired, bearded, one-eyed man–with-a-limp”) falls within Bruton. Gray, 523 U.S. at 195.

The North Carolina courts have held that statements that implicate only by connection also can be covered by Bruton. For example, in State v. Owens, 75 N.C. App. 513, 515-16 (1985), four defendants—Owens, McClain, Tyler and Kelly—were charged with robbery of a store. In a joint trial of Owens, McClain and Tyler, only Tyler testified. The evidence indicated that the police apprehended the defendants shortly after the crime in a vehicle that contained guns, clothing worn by the robbers, and items taken from the store. Tyler testified she and McClain picked up Owens and Kelly along the roadway in exchange for a promise of gas money. Apparently to discredit this testimony, the State introduced McClain’s statement to a detective that they picked up the men because they had pointed guns at him and Tyler. As to the Bruton issue raised by Owens regarding McClain’s statement, the court held: “The statement was incriminating to Owens because it placed Owens and Kelly on foot near the scene of the robbery, in possession of the guns which were later identified as similar to those used in the robbery, and so anxious to flee the area that they forced their way into the truck at gunpoint.” However, this analysis appears to be inconsistent with U.S. Supreme Court cases. Richardson, 481 U.S. at 208-11 (Bruton is limited to facially incriminating statements and does not apply to statements that are “incriminating by connection”); Gray v. Maryland, 523 U.S. 185, 195 (1998) (“Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially”).

Redaction. To be sufficient any redaction must eliminate the defendant’s name as well as all references to his or her existence. Richardson, 481 U.S. at 211. Merely replacing the defendant’s name with a blank space or the word “deleted” does not constitute a sufficient redaction. Gray 523 U.S. at 192-97. Such an approach is deficient because even after the modification, the confession still refers directly to the existence of the non-confessing defendant. Id. at 192-97. A redaction that references a vague unnamed accomplice may or may not be deficient, depending on the circumstances. Compare State v. Gonzalez, 311 N.C. 80, 94 (1984) (confession that did not name the defendant was insufficiently sanitized when it included the statement: “I told him I was with some guys, but that I didn’t rob anyone, they did”; because the confessor’s two codefendants were being tried jointly with him, and since only two persons were seen in the service station at the time of the robbery, the statement clearly implicated the non-confessing defendant), with State v. Johnson, 71 N.C. App. 90, 93-94 (1984) (in a trial involving three accomplices, a co-defendant’s statement was adequately sanitized when all explicit references to the defendant were removed but the statement referred to the involvement of an unidentified male (“he”)).

In order to sufficiently redact a confession, it may be necessary to remove entire sentences and re-type the confession. State v. Brewington, 352 N.C. 489, 512 (2000) (complete sentences removed). Sometimes rewriting may be necessary, such as to change plural pronouns to singular pronouns, State v. Ferrell, 46 N.C. App. 52, 55 (1980), to retain a natural flow, and to avoid the suggestion that the statement was modified, Brewington, 352 N.C. at 512.

Limiting Instruction. As noted above, a properly sanitized statement may be admitted consistent with Bruton if a limiting instruction is given. If defendants X and Y are being tried jointly and the statement is one of defendant X, the jury should be instructed that it may consider the statement as evidence of X’s guilt but may not consider it as evidence of Y’s guilt.

When Adequate Redaction is Not Possible. There may be situations when redaction is not possible, such as when the required redaction would materially alter the content of the statement in a way that prejudices the State or the declarant codefendant. In these situations, the prosecution must choose between relinquishing the confession or trying the defendants separately. State v. Brewington, 352 N.C. 489, 508-09 (2000); G.S. 15A–927(c)(1) (codifying this principle).

Declarant Takes the Stand. If the declarant takes the stand and is cross-examined, a defendant has been afforded his or her right to confrontation and the Bruton rule does not apply. See, e.g., State v. Evans, 346 N.C. 221, 232 (1997).