Gray v. State

CATHELL, Judge. Appellant, Kevin D. Gray, was convicted by a jury in the Circuit Court for Baltimore City of involuntary manslaughter. The court committed appellant to the custody of the Commissioner of Correction for a period of ten years, with all but seven years suspended. Appellant presents two issues for our review, which we rephrase as follows: 1.

Did the trial court err in admitting into evidence the redacted statement of appellant’s codefendant that implicated appellant in the crime? 2. Did the trial court abuse its discretion when it substituted an alternate juror for a designated juror during trial? After a review of the relevant facts and law regarding the first issue, we shall reverse appellant’s conviction and remand to the trial court. We do not reach appellant’s second issue.

Six young men were involved in the beating death of Stacey Williams on November 10, 1993. Investigation of the incident prompted the authorities to arrest Anthony Bell, who gave a written statement implicating himself, appellant, and Jacquin Vanlandingham (also known as “Tank”) in Williams’s death. 1 These three individuals were the only ones identified by name as having been involved in the beating. ³¹⁵ Appellant and Bell were scheduled to be tried jointly. Prior to trial, appellant moved to sever his case from Bell’s, or, in the alternative, to exclude Bell’s statement from their joint trial. The court denied appellant’s motion to sever and ordered that appellant’s and Tank’s names be redacted from Bell’s statement.

Bell declined to testify. At trial, Tracey Brumfield placed appellant at the scene of the crime. She testified that she saw appellant, Tank, and several others chase Williams down the street. Shay Yarberough actually witnessed the beating.

He testified that he saw Tank kick and punch Williams several times and pick Williams up over his head and throw him head first onto the sidewalk three times. He also testified that he saw appellant attempt to pick Williams up over his head and drop him on the sidewalk. Detective Homer Pennington of the Baltimore City Homicide Unit testified that he was assigned to the case and, in the course of his investigation, interviewed Bell. During the interview, Bell gave a written statement implicating himself, appellant, and Tank in Williams’s beating.

The State was permitted to read the statement into evidence at trial, but, as previously stated, was required to redact the names of appellant and Tank therefrom; the words “deletion” and “deleted” were inserted in place of the redacted names. A copy of the statement was also introduced into evidence and blank white spaces marked the places where the names of appellant and Tank had been redacted. We shall address the actual reading of the statement before the jury, infra. Appellant testified in his defense.

He stated that he was talking to his girlfriend on a nearby pay phone at the time of the beating. Several other witnesses were called in appellant’s defense. Renardo Bell testified that he saw Tank pick up Williams and throw him down, but he did not see appellant in the group. Lamont Matthews also testified that appellant was not in the group of people that had gathered around and beat Williams; that appellant was at a phone booth about half a block up the street.

Chanel Brown, appellant’s girlfriend, stated that appellant had called her from a pay phone and that appellant had said that Tank was up the street fighting. The ³¹⁶ jury found appellant guilty of involuntary manslaughter. He filed this timely appeal from that conviction. Appellant seeks resolution of a question left unanswered by the United States Supreme Court in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), and Richardson v. Marsh, 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987): wnether the introduction of a nontestifying codefendant’s inculpatory statement, which is redacted to exclude the names of all those involved in the crime by using the words “deleted” and “deletion,” and the reading of that statement before a jury, violates a defendant’s rights under the Confrontation Clause of the Sixth Amendment, even if the jury is instructed to consider the statement only against the codefendant-confessor.

We hold that, under the circumstances of this case, it does and reverse. We explain. The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 403 , 85 S.Ct. 1065, 1068 , 13 L.Ed.2d 923 (1965), guarantees the right of an accused “to be confronted with the witnesses against him.” The right of confrontation includes the right of cross-examination. Thus, “where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.” Richardson, 481 U.S. at 206 , 107 S.Ct. at 1707 .

In Bruton, supra, Bruton and Evans were charged with armed robbery. Both were convicted after a joint trial, at which a postal inspector, to whom Evans had confessed his involvement and Bruton’s complicity, testified thereto. The trial court duly instructed the jury to disregard the confession in determining Bruton’s guilt or innocence and to consider it as competent evidence only against Evans. The Supreme Court began its discussion by noting what had been the Court’s premise up to that point: that “it [was] ‘reasonably possible for the jury to follow' sufficiently clear instructions to disregard [a] confessor’s extrajudicial statement that his codefendant participated with him in committing the crime.” 391 ³¹⁷ U.S. at 126 , 88 S.Ct. at 1622 (quoting Delli Paoli v. United States, 352 U.S. 232, 239 , 77 S.Ct. 294, 299 , 1 L.Ed.2d 278 (1957)).

The problem with adhering to this principle had earlier been indicated by the dissent in Delli Paoli . Justice Frankfurter spoke for the four dissenters: [T]oo often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors ... and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell____ The Government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds. 352 U.S. at 247-48 , 77 S.Ct. at 303 . While recognizing the efficacy of joint trials, the Bruton Court also acknowledged that the potential for abrogation of a defendant’s constitutional right of confrontation was a “hazard” that could not be ignored. 391 U.S. at 137 , 88 S.Ct. at 1628 (quoting Jackson v. Denno, 378 U.S. 368, 389 , 84 S.Ct. 1774, 1787 , 12 L.Ed.2d 908 (1964)). Though the Court suggested the possibility that “viable alternatives” existed to achieve both the benefit of admission of the statement and the protection of a nonconfessor’s right of confrontation, it stated that, when a confessor does not take the stand at trial and his confession is introduced into evidence, there is a “substantial risk that the jury, despite instructions to the contrary[ will] look[ ] to the incriminating extrajudicial statements” in determining the guilt or innocence of the nonconfessing codefendant, in violation of that defendant’s Sixth Amendment right of cross-examination.

Id. at 126, 88 S.Ct. at 1622 ; see also Jackson, 378 U.S. at 389 , 84 S.Ct. at 1787 . Limiting instructions were perceived by the Court as not being “an adequate substitute” for a codefendant’s constitutional right of cross-examination: “The effect is the same as if there had been no instruction at all.” 391 U.S. at 137 , 88 S.Ct. at 1628 . The Bruton Court then held, as we indicated, that, because of the “substantial risk” that the jury would consider an incrimina ³¹⁸ ting confession against the confessor’s eodefendant despite limiting instructions, the confession cannot be admitted in evidence unless the codefendant has the opportunity to cross-examine the confessor. As stated, Bruton acknowledged that which the Delli Paoli dissenters had broached, ie., the possibility that a jury may not follow a curative instruction to disregard a confession in determining the guilt or innocence of a confessor’s codefendant.

Indeed, in Delli Paoli , the Court had sanctioned the use of limiting instructions. It was not until Bruton that the Court fully acknowledged that it was not realistic to assume that juries would follow the instruction once privy to information implicitly or explicitly inculpating the confessor’s codefendant. 391 U.S. at 126 , 88 S.Ct. at 1622 . One approach suggested by the Court, that had been in use in several states, was the practice of deleting, or redacting, any references to the codefendant from the statement being introduced. This practice was challenged in Richardson v. Marsh, supra, where the Supreme Court declined to extend Bruton and upheld the practice whereby the codefendant’s name, as well as her existence, were eliminated and a curative instruction was given at the time the statement was admitted and again when the jury was charged.

Over her objection, Clarissa Marsh and one Benjamin Williams were jointly tried on charges of murder, robbery, and assault. 2 At trial, the State successfully introduced a confession the police had elicited from Williams following his arrest. It had been redacted to omit any reference to Marsh—in fact, as read into evidence, it appeared that no one other than Williams and Martin had participated in the crime. 3 At the time that the redacted ³¹⁹ confession was admitted, the court instructed the jury not to consider it in any way against Marsh. With the confession redacted, the only evidence that linked Marsh to the crime was: 1) Marsh’s own testimony, in which she admitted that she was in the car with Williams and Martin while driving to the victims’ house, and 2) Williams’s confession that, while driving to the victims’ house, he and Martin discussed their intent to rob and kill the victims. Marsh alleged that Bruton was dispositive of her claims; that introduction of Williams’s confession violated her constitutional rights under the Con ³²⁰ frontation Clause.

The Court held that the admission of Williams’s confession with the proper limiting instruction had not impinged upon Marsh’s right of confrontation because the confession did not name her as a perpetrator of the crime or indicate that she was in any way involved in it. Richardson, 481 U.S. at 211 , 107 S.Ct. at 1709 . Rather, it was her own testimony, placing her in the same car with Williams and Martin while they discussed their intent to rob and kill the victims, that tied her to the crimes. The Court explained that, in Bruton , it had recognized a “narrow exception” to the general assumption that jurors follow the instructions given to them.

Where a confessing codefendant does not take the stand, the Court opined, “the risk that the jury will not ... follow instructions is so great, and the consequences of failure so vital to the [nonconfessing] defendant” that it would not presume that jurors, under those circumstances, would follow instructions. 481 U.S. at 207 , 107 S.Ct. at 1707 (quoting Bruton, 391 U.S. at 135 , 88 S.Ct. at 1627 )). Under the facts presented in Richardson , where the references to Marsh were redacted, Williams’s confession was only inferentially incriminating—that is, incriminating only when linked with other evidence adduced at trial. In such a circumstance, “the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget.” Id. at 208 , 107 S.Ct. at 1708 . The same cannot be said for confessions that specifically reference a codefendant’s complicity in the perpetration of the crime, such as that evinced in Bruton .

There, Evans’s confession directly implicated Bruton as a perpetrator. It was precisely this type of confession that prompted the Court to carve out its exception: “Specific testimony that ‘the defendant helped me commit the crime’ is more vivid than inferential incrimination, and hence more difficult to thrust out of mind,” the Court opined. 481 U.S. at 208 , 107 S.Ct. at 1708 . There did not, in Richardson , “exist the overwhelming probability of the[ jurors’] inability to [dis ³²¹ regard the incriminating inference] that is the foundation of Bruton’s exception to the general rule.” 4 Id. While holding that Marsh had been accorded her constitutional rights, the Court stated, however, that it expressed “no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun.” Richardson, 481 U.S. at 211 n. 5, 107 S.Ct. at 1709 n. 5.

Indeed, neither the Supreme Court nor any Maryland appellate court has ever addressed the constitutional ramifications of replacing a defendant’s name with a symbol or neutral word in an incriminating statement made by a codefendant. Surveying other jurisdictions that have faced this issue, we find persuasive the reasoning and analysis employed by the D.C. Court of Appeals in Smith v. United States, 561 A.2d 468 (1989), wherein a symbol was used in the place of Smith’s name in his codefendant’s redacted statement to police. There, Smith and one Harris were tried together on a number of robbery charges. Harris had confessed prior to trial and named Smith as his accomplice.

Prior to its admission, Harris’s confession was redacted “by ‘whiting out’ all references to Smith and then penciling a rectangular boundary around each remaining blank space.” 561 A.2d at 473 . Fourteen such rectangular symbols appeared on Harris’s two-page confession. In reviewing its impact upon Smith’s Sixth Amendment rights, the D.C. Court of Appeals said: [A] properly and effectively redacted statement substituting neutral references for names (including nicknames and the like) and/or descriptions ... may be admitted into evidence at a joint trial (when coupled with proper limiting instructions) unless a ‘substantial risk’ exists that the jury will consider that statement in deciding the guilt of the defendant. In order to determine whether a substantial risk, ³²² exists, the trial court must consider the degree of inference the jury must make to connect the defendant to the statement and the degree of risk that the jury will make that linkage despite a limiting instruction.

The trial court’s assessment as to whether the redaction effectively avoids linkage with the defendant must be made in the context of other evidence admitted at trial. [5] Id. at 474 (emphasis added; citations and quotations omitted; omission in original). The court then held that, in light of the other evidence adduced at trial, there was a substantial risk that the jury had relied on Harris’s confession in determining Smith’s guilt; the jury was “virtually invited ... to use Smith’s name to ‘fill in the blanks.’” Id. In the case sub judice, in moving the trial court to sever appellant’s trial from Bell’s, appellant’s defense counsel argued: Mr. Bell’s statement, in its totality and in various parts, clearly is indicating a group activity in the beating death of Mr. Stacey Williams. Therefore, it can only be inferred when these two gentlemen are sitting at the same defense table, that when [Bell] was impheating ... himself, that he ... must have implicated Mr. Gray.

Because we have no right to cross examine Mr. Bell as to his statement, Your Honor, I believe that the entire statement must be excluded, or in the alternative a severance must be granted. I think Bruton makes it clear that the reason for the red line type rule announced in Bruton was because of the fact that [appellant] would be denied his right to confrontation, and it would be a logical inference drawn by a jury that if one client made a statement concerning a group activity and two people are on trial for ³²³ that group activity, by implication the statement goes to the detriment of Mr. Gray.... The trial court denied the motion: It seems to me ... that there is not a difficulty here with a statement which involves two people where we redact the name of the defendant who is making the motion, that there’s going to be this compelling implication to the jury that the name that’s been redacted or left out must be the name of the co-defendant. To the contrary, I think that where you’ve got group activity and the evidence here is, apparently, going to be that there were at least five, and maybe as many as six men involved in this assault on the victim, to redact this statement, it seems to me, will not unduly prejudice Mr. Gray.

It seems to me that this statement can be sanitized in about three different spots so as to remove the names of Tank and Mr. Gray and the jury will not be left with the unavoidable inference or implication that the person Mr. Bell is referring to in the statement is Mr. Gray. ... I just don’t see any prejudice befalling Mr. Gray if we can adequately sanitize this statement and take out any indication from Mr. Bell contained in this statement of the identity of anybody else who was involved in the assault. Not just Mr. Gray’s name, but we’re going to take out all of the names because the evidence is going to be that there were six people involved, and, therefore, to take out all of the names, that will not hurt Mr. Gray, it seems to me. [APPELLANT’S ATTORNEY]: Well,