Argued
on application for leave to appeal January 10, 2018.
SYLLABUS
Carl R.
Bruner II was convicted following a jury trial in the Wayne
Circuit Court of first-degree premeditated murder, MCL
750.316(1)(a); assault with intent to commit murder, MCL
750.83; being a felon in possession of a firearm, MCL
750.224f; and possession of a firearm during the commission
of a felony, MCL 750.227b, in connection with the shooting of
two security guards outside a Detroit nightclub in June 2012.
No eyewitnesses saw the shooter. Bruner was tried jointly
before a single jury with codefendant Michael Lawson. The
prosecution argued that Bruner was the shooter and that he
was aided or abetted by Lawson. Bruner's defense was that
he was not present and was not the shooter. Lawson's
defense was that he was merely present at the scene and was
not otherwise involved in the shooting. The prosecution
planned to call as a witness Westley Webb, who did not
testify at Bruner's preliminary examination but did
testify at Lawson's preliminary examination about
statements he claimed Lawson had made to him a few days after
the shooting regarding Bruner's actions on the night at
issue. At trial, the prosecutor emphasized in his opening
statement that Webb was a key witness who would testify that
Bruner had a gun; however, at the close of the
prosecution's case in chief, the prosecutor informed the
court that Webb could not be located and asked to read
Webb's prior testimony to the jury. The trial court
declared Webb unavailable. The prosecutor conceded that the
prior testimony could not be admitted against Bruner and
offered to remove mention of Bruner from the transcript of
Webb's testimony. The trial court determined, over
defense counsel's objection, that Webb's testimony
was admissible against Lawson and that a limiting instruction
would be adequate to ensure the jury would not consider the
redacted testimony against Bruner. When the testimony was
read into the record, each mention of Bruner's name was
replaced with the word "Blank, " and the court
instructed the jury to consider the testimony only against
Lawson. The Court of Appeals, Meter, P.J., and O'Brien,
J. (Shapiro, J., concurring), affirmed both defendants'
convictions in an unpublished per curiam opinion, issued
October 11, 2016 (Docket Nos. 325730 and 326542), holding
that Bruner's right to confront the witnesses against him
under the Sixth Amendment of the United States Constitution
was not implicated by the admission of Webb's preliminary
examination testimony because Lawson's statements to Webb
were not testimonial and Webb's testimony was neither
offered nor admitted against Bruner. Bruner applied for leave
to appeal in the Supreme Court, which ordered and heard oral
argument on whether to grant the application or take other
peremptory action. 500 Mich. 1031 (2017).
In a
unanimous opinion by Justice McCormack, the Supreme Court, in
lieu of granting leave to appeal, held:
The
admission at a joint trial with a single jury of an
unavailable witness's prior testimony about a
codefendant's confession violated Bruner's
constitutional right to confrontation, notwithstanding the
redaction of Bruner's name and the reading of a limiting
instruction to the jury. Bruner had no opportunity to
cross-examine the witness, and because the substance of the
witness's testimony-the codefendant's confession that
implicated the defendant-was so powerfully incriminating, the
limiting instruction and redaction were ineffective to cure
the Confrontation Clause violation. The judgment of the Court
of Appeals was reversed, and the case was remanded for that
Court to consider whether the prosecution established that
the error was harmless beyond a reasonable doubt.
1. The
Confrontation Clause, set forth in the Sixth Amendment of the
United States Constitution, provides that in all criminal
prosecutions, the accused has the right to be confronted with
the witnesses against him or her. Because the right is
implicated only for testimonial evidence, the threshold
question for any Confrontation Clause challenge is whether
the proffered evidence was testimonial. "Testimony"
is a solemn declaration or affirmation made for the purpose
of establishing or proving some fact. Although there may be
ambiguity at the margins, some statements qualify as
testimonial under any definition, including ex parte
testimony at a preliminary hearing. Testimonial statements of
witnesses absent from trial may be admitted only if the
declarant is unavailable and the defendant had a prior
opportunity to cross-examine the witness. When more than one
defendant is being tried before a single jury, some evidence
may be admissible as to one defendant but violate a
codefendant's confrontation right. When that is the case,
a court must either exclude the testimony or take measures to
eliminate the confrontation problem. What measures are
sufficient depends on the context and content of the
evidence. If a witness's testimony can be redacted to
eliminate reference to the codefendant's existence, that
witness will not have borne testimony against the codefendant
in any Sixth Amendment sense. Sometimes the court can
eliminate the confrontation problem by instructing the jury
to consider testimony against one defendant, but not the
other. Because juries are presumed to follow their
instructions, the result of a limiting instruction can often
be as effective as excluding or redacting the testimony.
However, sometimes evidence is too compelling for a jury to
ignore even with a limiting instruction. Under Bruton v
United States, 391 U.S. 123 (1968), limiting
instructions are categorically inadequate to protect against
evidence that a nontestifying defendant confessed and
implicated a codefendant in that confession.
2.
Webb's preliminary examination testimony was testimonial
in nature. The Court of Appeals erred in holding that there
was no Confrontation Clause violation (and therefore no
Bruton violation) by ascribing significance to the
nontestimonial nature of the statements Webb attributed to
Lawson. Although Lawson's nontestimonial hearsay
statements would not have implicated the Confrontation Clause
if Webb had testified at trial, because Bruner's
confrontation right would have been vindicated by
cross-examining Webb, Bruner never got to cross-examine Webb.
Because Webb's prior testimony was testimonial, the
admission of that testimony implicated Bruner's
confrontation right.
3.
Neither the court's instruction that the jury should
consider Webb's testimony only with respect to Lawson nor
the redaction of Bruner's name from Webb's testimony
remedied the violation of Bruner's confrontation right.
Webb was a witness against Bruner for Confrontation Clause
purposes in spite of the remedial steps taken by the court to
attempt to limit the jury's consideration of Webb's
testimony as only against Lawson. The United States Supreme
Court held in Bruton that when one codefendant
implicates another at their joint trial, that evidence is so
powerfully incriminating that allowing it to go
uncross-examined deprives the nonconfessing defendant of a
fair trial. In such circumstances, a limiting instruction
cannot be trusted to eliminate the risk of prejudice and is
not an adequate remedy for a confrontation violation. The
redaction of Bruner's name was also not an adequate
remedy. A codefendant's confession may be admissible if
it is redacted to eliminate not only the defendant's
name, but any reference to his or her existence. However, the
obvious redaction used here-inserting the word
"Blank" in place of Bruner's name-did not
achieve that result, given that "Blank's"
conduct was identical to what the prosecutor told the jury
Bruner had done and that, because Bruner and Lawson were the
only people charged, there was no other person to whom
"Blank" might have referred. Because the limiting
instruction and crude redaction were inadequate to protect
Bruner, he was deprived of his right to confront Webb, a
witness against him. Accordingly, the Court of Appeals
judgment was reversed and the case remanded to the Court of
Appeals to consider whether the prosecution established that
the preserved constitutional error was harmless beyond a
reasonable doubt.
Court
of Appeals judgment reversed in part; circuit court order
vacated; case remanded to the circuit court for further
proceedings.
Chief
Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget
M. McCormack David F. Viviano Richard H. Bernstein Kurtis T.
Wilder Elizabeth T. Clement
BEFORE
THE ENTIRE BENCH
OPINION
MCCORMACK, J.
In this
case we consider whether the admission at a joint trial with
a single jury of an unavailable witness's prior testimony
about a codefendant's confession violated the
defendant's constitutional right to confrontation,
notwithstanding the redaction of the defendant's name and
the reading of a limiting instruction to the jury. It did.
The defendant had no opportunity to cross-examine the
witness, and because the substance of the witness's
testimony-the codefendant's confession that implicated
the defendant- was so powerfully incriminating, the limiting
instruction and redaction were ineffective to cure the
Confrontation Clause violation. Accordingly, we reverse the
judgment of the Court of Appeals and remand ...