Butler & Duncan v. State

Meredith, J. These consolidated appeals arise out of the convictions of Derius Duncan (“Duncan”) and Clifford Butler (“Butler”), appellants, for various crimes stemming from the murder of Ronald Givens (“Givens”) on October 3, 2011. Appellants were jointly tried in the Circuit Court for Baltimore County beginning on April 28, 2015, and were each convicted of first degree murder of Givens, conspiracy to commit Givens’s murder, influencing a witness, and use of a firearm in commission of a crime of violence. Their timely appeals were consolidated. QUESTIONS PRESENTED Duncan presents the following three questions for our review: ⁵³⁷ 1.

Whether the trial court erred in denying severance of [Duncan’s] trial from his co-defendant [Butler] when the State intended to introduce a confession of the non-testifying co-defendant that implicated Appellant during the trialt.] 2. Whether the trial court erred in denying [Duncan’s] multiple motions for mistrial after the State used a non-testifying codefendant’s confession during trial that implicated [Duncan.] 8. Whether the trial court erred in permitting admission of other crimes evidence in the form of a handgun allegedly possessed by [Duncan] in an unrelated crime and permitting that handgun to be shown to the jury[.] Butler presents only one question for our review: 4. Did the lower court err in allowing the State to use Mr. Butler’s statements made during two proffer sessions against him at trial?

We answer “Yes” to Question 2 and Question 4, and we will reverse both appellants’ convictions and remand both cases to the Circuit Court for Baltimore County for new trials. We need not answer Questions 1 and 8. FACTUAL & PROCEDURAL BACKGROUND The Traffic Stops of Ronald Givens and Derius Duncan The events giving rise to this appeal began on March 22, 2011. At around 9:00 p.m. that evening, Baltimore City Police Officer Steffon Scott was on patrol with his partner in southwest Baltimore when he observed a black PT Cruiser automobile parked “in an unusual spot.” Officer Scott stopped his patrol car to observe the vehicle, and observed a man “jump out” of the passenger side of the vehicle and run out of sight.

The PT Cruiser then drove down the street, prompting Officer Scott to follow, and eventually pull over, the vehicle. Upon pulling the vehicle over, Officer Scott encountered Ronald Givens, who was the driver. There were no other individuals in the vehicle with Givens at this time. During the traffic stop, Officer Scott smelled marijuana and observed marijuana with ⁵³⁸ in the vehicle.

Officer Scott requested that Givens step out of the vehicle so that he could ask Givens some “routine questions.” Officer Scott and his partner then searched the vehicle, including the glovebox, and confiscated the marijuana they found, but they did not issue Givens a citation. Officer Scott concluded the traffic stop by telling Givens that he was “done hacking for the night” and that he needed to leave the area. 1 Roughly 25 to 30 minutes later, Officer Scott again observed the same black PT Cruiser traveling in the neighborhood where the first encounter with Givens had occurred. Officer Scott observed the PT Cruiser pull over to the side of the street, at which point an individual approached and entered the vehicle. Officer Scott noticed that the individual was “like holding his waistband.” Based on the individual’s appearance, Officer Scott believed that it was the same person who had previously jumped out of the passenger side of the vehicle when Officer Scott had first observed Givens’s vehicle.

Officer Scott followed Givens’s vehicle, and initiated a second traffic stop by turning on his lights and siren. Officer Scott additionally activated a “spotlight” on his vehicle so that he could “clearly see anything [that was] going on inside the vehicle.” As Officer Scott approached the vehicle on foot, he observed the passenger “motion towards the glovebox” and then close the glovebox. Officer Scott instructed Givens and the passenger (later identified as Duncan) to exit the vehicle. Officer Scott searched the glovebox, and found a loaded black handgun which had not been in the glovebox during the search of the vehicle 30 minutes earlier.

Duncan was arrested and later charged with illegal possession of the handgun. Duncan’s trial on those charges was scheduled for October 26, 2011. Ronald Givens’s Death On the morning of October 4, 2011, a neighbor of Ronald Givens found him lying face down on his front lawn -with no ⁵³⁹ pulse. The neighbor testified at appellants’ trial that she had heard what she thought was a series of “cherry bombs” at roughly 9:00 p.m. the previous evening, but thought nothing more of it after the sounds ceased.

After discovering Givens on the morning of October 4, the neighbor called 9-1-1. A Baltimore County police officer dispatched in response to the call discovered that Givens had multiple bullet wounds in his torso. Detective Brian Wolf, from the Homicide Division of the Baltimore County Police Department, was assigned to be the lead detective for the investigation of Givens’s death. Detective Wolf arrived at the crime scene at approximately 8:15 a.m. on October 4.

Once at the crime scene, Detective Wolf spoke with Givens’s mother. During their conversation, Givens’s mother provided Detective Wolf a subpoena Givens had received from the Circuit Court for Baltimore City. The subpoena ordered Givens to appear as a witness for the State in the case of “State of Maryland v. Derius Duncan” on October 26, 2011, During the course of Detective Wolfs investigation, he later learned that Duncan was on probation at the time he was charged with illegal possession of the handgun, and was therefore facing fifteen years of additional incarceration if found to be in violation of conditions of his probation. After investigating the crime scene and meeting with Givens’s mother, Detective Wolf contacted the “Diagnostic Center” in Baltimore City, where Duncan was being held pending his trial for the illegal handgun charge.

Detective Wolf requested that the officers at the Diagnostic Center search Duncan’s cell. After the search was completed, Detective Wolf was provided with copies of documents found in Duncan’s cell. This included a piece of paper with “a lot of phone numbers,” in addition to “a name with two addresses underneath of that.” The name written down by Duncan was “Dave,” which Detective Wolf later determined was a reference to Butler’s nephew David Johnson. Detective Wolf also obtained a subpoena for records of phone calls made by Duncan while he was incarcerated.

Detec ⁵⁴⁰ tive Wolf listened to over 100 calls Duncan had made during his incarceration. The Detective determined that 19 of the calls were relevant to the investigation of Givens’s murder. Clifford Butler’s voice was heard on several of the calls made by Duncan. Butler’s Offers of Cooperation Detective Donald Anderson was assisting Detective Wolf in his investigation of Givens’s murder.

At the time Detective Anderson first interviewed Clifford Butler regarding Givens’s death, Butler was not incarcerated, and had not been subpoenaed to appear for any matter. Nevertheless, counsel for Butler contacted Detective Anderson and requested a meeting to discuss the Givens case. That contact resulted in Butler entering into a proffer agreement with the State which provided, in relevant part: 1. Except as otherwise provided in paragraphs two and three, no statements made or other information provided by you or your attorney during the proffer will be used against you in any criminal trial. 2.

You agree that the State may make derivative use of, and may pursue, any investigative leads suggested by any statements made or other information provided by you or your attorney during the proffer. 3. Your complete truthfulness and candor are express material conditions to the undertaking of the State set forth in this letter. Therefore, the State may use statements made or other information provided by you or your attorney during the proffer under the following circumstances. ... ⅜ * * b. If the State should ever conclude that you have knowingly withheld material information from the State or otherwise have not been completely truthful and candid with the State, the State may use any statements made or other information provided by you or your attorney during the proffer against you for any purpose.

If the State does ever so conclude, it will ⁵⁴¹ notify you prior to making any such use of any such statements or other information. (Emphasis added.) The proffer agreement was read and explained to Butler, and was signed and dated by Butler, his attorney, and the prosecutor during a proffer session on December 1, 2011. A copy of the agreement was again read and initialed at a second proffer session on December 5, 2011. During the first proffer session, Butler was not “completely truthful and candid with the State.” Butler had indicated that three individuals were involved in the murder of Givens: Derius Duncan, Darren Thomas, and Keon Beads.

Toward the beginning of the December 1 proffer session, Butler indicated that he had not been personally involved in the murder. Butler explained that the jail calls on which his voice could be heard, and a letter exchanged between him and Duncan, concerned a drug transaction and trying to persuade Givens to provide exculpatory testimony at Duncan’s trial on the handgun charge, but did not include discussions of actually harming or killing Givens. However, later during the December 1 proffer session, Butler stated that he had been in contact with Darren Thomas on Duncan’s behalf regarding the Givens case. By the end of the first proffer session, Butler acknowledged that he had, in fact, asked Darren Thomas to either harm or kill Givens.

Butler further stated that he had been told that the murder of Givens had been carried out by Keon Beads. Based on Butler’s statements during the December 1 proffer session, Detective Anderson took numerous steps to try to corroborate the information provided by Butler, including interviewing Darren Thomas, subpoenaing phone records, and eventually, issuing a grand jury subpoena for Thomas. Based on their investigations following the first proffer session, Detectives Anderson and Wolf believed that Butler had made false statements during the first proffer session. But, at the request of Butler’s attorney, a second proffer session was held on December 5, 2011.

According to Detective Anderson, Butler was made aware at the outset of the second ⁵⁴² proffer session that, “if he’d already lied that the [proffer agreement] would in some sense already be breached.” Detective Anderson testified that Butler was told that, if he “continued to lie,” the State would be able to use his statements against him. But Detective Anderson also acknowledged in his testimony at a hearing regarding the use of Butler’s statements that everyone “started fresh” on December 5: Q [COUNSEL FOR BUTLER]: So wouldn’t you say, detective, at this point in time you started fresh? You believed that Mr. Butler had told you a lie, you asked him to tell you the truth in the second proffer; correct? A [DETECTIVE ANDERSON]: Yes.

Q: And you said if he didn’t tell you the truth now the State could use it against him; correct? Correct? A: Yes, it’s in the agreement. A second proffer agreement—which appears to be a photocopy of the December 1 proffer agreement—was initialed by all parties at the beginning of the second session and dated “12/5/1 i.” At the December 5 proffer session, Butler told Detective Anderson that Keon Beads had offered Givens drugs and money to induce Givens to change his testimony or not show up in court for Duncan’s trial on the handgun charges.

Butler also changed his account of Darren Thomas’s role in Givens’s murder. Butler told Detective Anderson at the December 5 session that Thomas had refused to be involved in the Givens matter, and that Butler had asked his nephew David Johnson to carry out the murder. Butler told Detective Anderson that he had given Johnson certain information pertaining to Givens, such as a description of his ear and his address, during a meeting to plan the murder. Butler also told Detective Anderson that he had received two letters, rather than one, from Duncan discussing hurting or killing Givens.

According to Detective Anderson, Butler also changed his prior statement regarding the identity of the person who had told him of Givens’s murder, stating at the December 5 proffer that he learned of the murder from David Johnson himself, not Keon ⁵⁴³ Beads. Following the December 5 proffer session, Detective Anderson concluded that Darren Thomas had no involvement in the murder of Givens, and Anderson believed that, in addition to Duncan and Butler, David Johnson and Keon Beads had been involved in the murder as Butler had said on December 5. The Charges, Request for Severance, and Trial Duncan and Butler, as well as David Johnson and Keon Beads, were all charged with various crimes arising out of the October 4, 2011, murder of Givens. On April 7, 2015, a pretrial hearing was held in the Circuit Court for Baltimore County, at which time the court considered Duncan’s motion for severance of his trial from the trials of both Butler and Johnson.

The State agreed that severance of Johnson’s trial was appropriate, but argued that there was no need to conduct separate trials of Duncan and Butler. As we will discuss in more detail later in this opinion, based upon assurances from the prosecutor, the circuit court denied Duncan’s motion for severance of his trial from that of Butler. Later, immediately prior to jury selection, the court considered the State’s motion in limine for permission to introduce evidence of any statements Butler made during the proffer sessions. The State argued that, because Butler had made false statements to Detective Anderson during the first proffer session, the terms of the proffer agreement permitted use of any statements made during the proffer sessions.

Butler opposed the State’s motion, arguing that he had been given a “fresh start” at the second proffer session in exchange for the information he provided that proved useful to the State, and that the premise of participating in the second proffer session was that any lies he had told during the first session would be forgiven if he was truthful during the second session. Following a hearing on the matter, the circuit court ruled in favor of the State, finding that Butler had clearly breached the proffer agreement by lying during the first proffer session. Consequently, the court ruled that, under the terms of the proffer ⁵⁴⁴ agreement, the State could introduce any statements Butler had made. Following a multi-day trial, appellants were each convicted of first degree murder, conspiracy to commit murder, influencing a witness, and use of a firearm in commission of a crime of violence.

Additional relevant facts arising out of the trial are discussed at greater length later in this opinion. This consolidated appeal followed. DISCUSSION I. Denial of Duncan’s Motion for Severance & Motions for a Mistrial A. Standard of Review We “will only disturb a trial court’s decision to deny a motion for a mistrial if the court has abused its discretion, and it is clear that the accused has been prejudiced.” Conyers v. State, 345 Md. 525, 561 , 693 A.2d 781 (1997). Accord Parker v. State, 189 Md.App. 474, 493-96 , 985 A.2d 72 (2009).

As we explain in the following section, there are some circumstances in which the trial court’s discretion is limited by constitutional considerations. B. The Bruton Violation Duncan contends that, in light of the Supreme Court’s holding in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), the circuit court erred in denying both his motion for severance of his trial from Butler’s and his multiple motions for mistrial that followed. The Court of Appeals has succinctly summarized the holding of Bruton as follows: Bruton rights are triggered when testimonial hearsay is introduced into evidence. In Bruton , the Supreme Court addressed “whether the conviction of a defendant at a joint trial should be set aside although the jury was instructed that a codefendant’s confession inculpating the defendant had to be disregarded in determining his guilt or inno ⁵⁴⁵ cence.” Bruton, 391 U.S. at 124-25 , 88 S.Ct. at 1622 , 20 L.Ed.2d at 478 .

During Bruton’s joint trial with Evans, Evans’s out of court confession inculpating both defendants had been admitted into evidence. The trial judge had given a limiting instruction to the jury to consider the confession only against Evans, but not against Bruton. The United States Court of Appeals for the Eighth Circuit affirmed. Bruton v. United States, 375 F.2d 355 (8th Cir.1967).

The Supreme Court reversed. The Court held that the trial court’s limiting instruction did not sufficiently protect Bruton’s Sixth Amendment rights, because Evans had not testified, the introduction of Evans’s confession added substantial weight to the Government’s case against Bruton, and Bruton could not cross-examine Evans. Bruton, 391 U.S. at 137 , 88 S.Ct. at 1628 , 20 L.Ed.2d at 485 . The Court opined that a limiting instruction was insufficient to protect Bruton’s right to cross-examine and that there was no basis upon which to admit Evans’s confession against Bruton.

When “the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial”, the Court concluded, “limiting instructions [were not acceptable] as an adequate substitute for [Bruton’s] constitutional right of cross examination.” Id. at 135-36, 137 , 88 S.Ct. at 1628 , 20 L.Ed.2d at 483, 484 . Bruton, then, is premised upon the Confrontation Clause of the Sixth Amendment and limits joinder, as well as the efficacy of cautionary instructions when evidence of a testimonial nature is introduced. State v. Payne, 440 Md. 680, 717 , 104 A.3d 142 (2014) (emphasis added) (alterations in original). 2 ⁵⁴⁶ Prior to trial in this case, the State conceded at the April 7 pre-trial hearing that Butler’s statements made during his proffer sessions and phone calls with Duncan “do constitute testimonial statements and therefore trigger the confrontation clause which therefore implicates Bruton.” At that hearing, the State also acknowledged that a mere redaction of Duncan’s name from any of Butler’s communications would not be sufficient to satisfy Bruton, but the State assured the circuit court that a Bruton violation could be avoided and that any Bruton issue “could be remedied” because the State would take greater precautions than those that had been held insufficient in “[Gray v. Maryland, 523 U.S. 185, 197 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998) ] ... which was a simple deletion.” 3 The following colloquy then took place regarding the State’s assurances that it would avoid the potential Bruton violation without the need for severing Butler’s case from Duncan’s: THE COURT: So these proffers by Mr. Butler don’t say that he was soliciting and enlisting Mr. Johnson to do Duncan’s bidding? [THE STATE]: They do implicate Mr. Duncan, but the jail calls— THE COURT: Well, okay so the— [THE STATE]: —so there’s no doubt about that. But respectfully, the State submits that first of all what we would be referring to is conversations that are on the jail calls themselves.

But secondly, Your Honor, I think this is why we were alluding to the redaction solution, if the court has concerns, and what I was gonna add is if the court has concerns as trial is unfolding as to the substance of those passing references the State would be prepared to agree that what Mr. Butler told detectives about Mr. Duncan’s role ⁵⁴⁷ in that would not be presented to the jury through the detectives. So in other words the State would present the jail calls to establish Mr. Duncan and Mr. Butler talking together about what they would do. The State would then present the detectives to present what Mr. Butler told them about getting Mr. Johnson and then Mr. Johnson reporting back to them. So that’s the only part that ... implicates the testimonial comments by Mr. Butler, and then the State would return to the jail calls with respect to Mr. Butler reporting back to Mr. Duncan what had happened.

So the, the silo of information that would come from the testimonial statements, which is the only category of statements that would implicate Bruton, would be redacted if the, if the court wished and if defense counsel wished to not implicate Duncan. * * * THE COURT: The State’s prepared to, so with respect to the detective’s testimony that’s how you’re presenting this information? [THE STATE]: That’s right Your Honor. THE COURT: So you’re prepared to direct the detectives that in answering questions about what Mr. Butler said to them, they are not to include references to what Mr. Butler said about Mr, Duncan. [THE STATE]: Exactly your honor. H» ⅜ ⅜ THE COURT: All right. You’re gonna direct the detectives when they testify what Butler said to them at these proffer sessions, said to them about Johnson.

They are not to mention Duncan. (Emphasis added.) With that assurance from the prosecution, the court concluded that Duncan could be tried jointly with Butler. Cf. State v. Hines, 450 Md. 352, 369-70 , 148 A.3d 1247 (2016) (recognizing that, in some instances, it may be possible for a trial judge to eliminate any unfair prejudice attributable to non-mutually ⁵⁴⁸ admissible evidence by “redacting evidence to remove any reference to the defendant against whom it is inadmissible”).

At trial, however, the State introduced statements made by Butler that incriminated Duncan. During the direct examination of Detective Wolf, for example, the State played recordings of jail calls between Duncan and Butler, in which the voices of both defendants could be heard. Detective Wolf testified that, in his opinion, Duncan, whom the State identified by name, was one of the individuals participating in the calls played by the State. Over objections from appellants, the jury was also provided with transcripts of the calls between Duncan and Butler which identified Duncan by name in the left hand column of the transcript as one of the speakers.

The State then asked Detective Wolf to explain the meaning of various portions of conversations between Duncan and Butler—in essence, translate the coded words used by Duncan and Butler—and Detective Wolf provided those translations based upon the explanations of the meaning of certain words and phrases Butler had provided to Detective Wolf during his proffer sessions. In this manner, the State utilized incriminating statements eodefendant Butler had made during the proffer sessions to support its case against Duncan. Those statements Butler made during the proffer sessions were clearly testimonial hearsay which would have been otherwise inadmissible against Duncan. 4 After Duncan had made numerous objections to the State’s examination regarding Detective Wolfs translation of Dun ⁵⁴⁹ can’s jail calls with Butler, the circuit court sua sponte called a bench conference during which the following exchange occurred: THE COURT: I’m thinking further about [counsel for Duncan’s] objection and it seems that it’s appropriate at this time[, although [counsel for Duncan] didn’t request it, to tell the jury that this information is not to be considered against Mr. Duncan. [THE STATE]: I know that that happens in jury instructions and we anticipated that,— THE COURT: But it seem— [THE STATE]: —don’t know that we have an objection to it here. THE COURT: All right. [COUNSEL FOR DUNCAN]: I, while we’re up here I have a motion to make.

I’m gonna make a motion for a mistrial on behalf of Mr. Duncan. When we had our motions hearing I asked for a severance when I learned that the State intended to use the statements by Mr. Butler. The State assured all of us that it would redact the statements by Mr. Butler so that it would not implicate Mr. Duncan and thereby not offend Bruton. When the State asked this detective to explicate what Butler meant he’s talking to Duncan.

Butler says, according to the detective, that what I meant here is we’re going to get, we’re going to get the victim, we’re going to kill the victim, everything’s in place in the victim. It’s, and [Duncan is] talking to him. It’s ... hopeless that the State has elected to go further than what they indicated at the motions hearing. They’ve gone further in the sense that they’re asking the detective now to explicate what Butler meant.

That would be fine if my client weren’t there but he’s sitting right there and he’s on the phone with him. It’s hopeless. THE COURT: Well I’ll consider that further. It’s not without merit. ⁵⁵⁰ [THE STATE]: Your Honor, if I may?

At the beginning of this trial if [counsel for Duncan] had said I’m gonna concede that this is Mr. Duncan’s voice, and this is his SID number, and this is him talking .... [B]ut the State has had to laboriously address his comments in pretrial, as well as in opening, and establish that this is Mr. Duncan. If the State is, has to prove that we have to prove that. With the thanks [sic] of an admonition that this is not be used against him, with the jury instruction that indicates that separate consideration [of] the [defendants] is appropriate I respectfully— THE COURT: I think it’s almost impossible for the jury to disregard all of these conversations being with Mr. Duncan. How, how does this information [come] in against Mr. Duncan? [THE STATE]: Your Honor, it, it, we’re not trying to bring it in against Mr. Duncan.

The catch is that we have had to prove that this is Mr. Duncan. [Counsel for Duncan] is two-thirds of the way through this trial now indicating that it’s obvious to the jury. That, it is not obvious to the jury until we prove it. And we have now, perhaps in [Duncan’s counsel’s] view, proven that and so he’s prepared to concede it. But that is not the beginning of— THE COURT: Well no, the testimony from this detective is that this is Mr. Duncan’s voice which we’ve been listening to.

(Emphasis added.) The circuit court then elected to defer ruling on Duncan’s motion for a mistrial. After additional testimony, the circuit court initiated another bench conference regarding Duncan’s objections and motion for a mistrial: THE COURT: [Mr. Prosecutor], I’ve been considering further Detective Wolfs testimony about the words [that] Mr. Butler told Detective Wolf and the others at the meeting the words meant. And that seems testimonial. And that should not be coming in against Mr. Duncan.

And so I am going to tell the jury to disregard that testimony of Detective Wolf. ⁵⁵¹ [THE STATE]: Very well Your Honor. THE COURT: I’m gonna strike it from this record. The circuit court then instructed the jury to disregard Detective Wolfs testimony regarding the meaning of the coded language used in the jail calls between Duncan and Butler: Members of the jury I have considered further over our luncheon recess some arguments that had been made to the court, and pursuant to my consideration of those issues I believe it appropriate at this time to tell you that you are to disregard, and I am going to strike from the record testimony by Detective Wolf about what words meant according to Mr. Butler in the meeting that Mr. Butler had with Detective Wolf, Mr. Butler’s attorney and some other individuals that they have des [sic], that Detective Wolf has described. So disregard what Detective Wolf said Mr. Butler said that words mean in the jail calls that we’ve heard.

(Emphasis added.) Later, during closing arguments, the State used a visual aid asserting that Butler had explained to Detective Anderson the entire conspiracy to murder Givens. Counsel for Duncan objected, and again moved for a mistrial as to Duncan. The circuit court denied the motion, but provided a second limiting instruction to the jury which arguably contradicted the court’s prior instruction for the jury to disregard what the detective had “said Mr. Butler said that words mean in the jail calls.” This time, the circuit court instructed the jury: The statement made by Clifford Butler about which you’ve heard testimony that alleged, those alleged statements by Mr. Butler to Detective Anderson and Detective Wolf must only be considered by you against Mr. Butler in consideration of the charges against Mr. Butler. So the alleged statements by Mr. Butler to the detectives should not be part of your consideration of the charges against Mr. Duncan. ⁵⁵² Despite the second instruction, the State now contends that no Bruton violation occurred because the testimony of Detective Wolf regarding his conversations with Butler that implicated Duncan was “stricken” from the record by the circuit court and the jury was instructed to disregard those conversations.

In support of this contention, the State argues that this case was “not one of those extraordinary circumstances where the jury cannot be trusted to follow instructions.” The State asserts in its brief: “With regard to the trial court’s instruction to disregard entirely a portion of Detective Wolfs testimony, this type of instruction is commonplace and there is no reason to doubt the jury’s ability to follow it.” But the Supreme Court said in Bruton that limiting instructions will generally be inadequate to cure the prejudicial impact of “powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, [when those statements] are deliberately spread before the jury in a joint trial.” Bruton, supra, 391 U.S. at 135-36 , 88 S.Ct. 1620 . The Bruton Court further observed that “there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Id. at 135, 88 S.Ct. 1620 . As the Supreme Court stated in Bruton, “in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner’s constitutional right of cross-examination” where incriminating statements made by one codefendant are presented to the jury in a joint trial in which the codefendant does not testify and there is no opportunity for cross examination. Id. at 137, 88 S.Ct. 1620 (emphasis added).

Cf. Crawford v. Washington, 541 U.S. 36, 59 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004) (“Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.”). ⁵⁵³ The State’s contention that “[t]he general rule that juries are expected to comply with a court’s instructions applies here” is in direct conflict with what the Supreme Court said in Bruton. This Court has also previously rejected this very argument, stating: In Bruton, the “basic premise of Delli Paoli [v. United States, 352 U.S. 232, 242 , 77 S.Ct. 294 , 1 L.Ed.2d 278 (1957),] that a properly instructed jury would ignore the confessor’s inculpation of the nonconfessor in determining the latter’s guilt,” 391 U.S. at 129 , 88 S.Ct. 1620 , was given a full burial and replaced by a completely opposite premise or assumption, i.e., that in spite of limiting instructions, a jury could not and would not disregard the inadmissible hearsay evidence contained in a confessor’s inculpation of the nonconfessor in determining the latter’s guilt. Admission of such an extrajudicial statement at a joint trial, where the declarant confessor does not take the witness stand, would thus violate the defendant’s right of cross-examination secured by the Confrontation Clause of the Sixth and Fourteenth Amendments to the United States Constitution.

Earhart v. State, 48 Md.App. 695, 698 , 429 A.2d 557 (1981) (emphasis added). Accordingly, we reject the State’s contention that the Bruton problem in this case was cured by the circuit court’s limiting instructions to the jury. The State contends in the alternative that “Detective Wolfs and Andersons’s testimony about Butler’s statements did not mention Duncan even in the abstract,” and therefore, did not implicate Duncan, which is necessary for a Bruton violation to occur, citing: Gray v. Maryland, 523 U.S. 185, 195-96 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998); Richardson v. Marsh, 481 U.S. 200, 208 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987) (for a Bruton violation to occur, a statement by a codefendant must be “incriminating on its face” or expressly implicate a codefendant); United States v. Coleman, 349 F.3d 1077, 1085 (8th Cir. 2003) (stating that “Bruton is not violated if the non-testifying defendant’s statement only inculpates a codefendant inferentially-through linkage to other evidence.” ⁵⁵⁴ (citing Richardson, supra, 481 U.S. at 208 , 107 S.Ct. 1702 )); Brooks v. State, 32 Md.App. 116, 119 , 359 A.2d 217 (1976) (“In a joint trial, Bruton proscribes the admission of a non-testifying co-defendant’s confession which implicates another co-defendant.”). We again disagree with the State.

The testimony of Detective Wolf regarding Butler’s explanatory statements to him clearly implicated Duncan and thereby triggered Bruton. Although the State contends that “substantial evidence was necessary in this case to link Butler’s statements to Duncan,” the record reflects otherwise. During direct examination of Detective Wolf, before playing recordings of jail calls during which Duncan could be heard, the State asked: “Are you able to compare the voice that you heard on the excerpts, as well as the full calls corresponding to these 19 records and determine whether or not in your opinion these are Mr. Duncan’s voice on the calls at points or not?” After objection from appellants’ counsel, Detective Wolf stated “Yes sir,” and indicated that one of the voices on these calls was Duncan’s. The jury was also provided transcripts of the calls with Duncan’s name next to portions of the transcript indicating when he was speaking.

Detective Wolf went on to testify regarding specific calls between Butler and Duncan, and what Butler told him regarding the meaning of the statements made during those calls. As the Supreme Court said in Gray, supra, 523 U.S. at 196 , 118 S.Ct. 1151 , where “[t]he inferences at issue [] involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately,” Bruton is triggered. Detective Wolfs testimony rehashing his conversations with Butler “obviously referred] directly to someone,” namely, Duncan. The jury did not need additional “substantial evidence,” as the State contends, in order for Butler’s statements to incriminate Duncan.

Rather, the jury was told by the State that Duncan was one of the parties speaking in these phone calls, and that, based on Butler’s incriminating statements to Detectives Wolf and Anderson, the subject matter of many of these calls was a plan to murder ⁵⁵⁵ Givens and efforts to avoid prosecution after Givens had been murdered. Butler’s statements implicated Duncan, who was not able to cross-examine Butler. Therefore, the statements fall under Bruton. See also Hines, supra, 450 Md. at 385 , 148 A.3d 1247 (stating: “Because the evidence implicated [the defendant] in a manner so obvious that there is a risk that