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People v. Bruner

Supreme Court of Michigan

March 28, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
CARL RENE BRUNER II, Defendant-Appellant.

          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Court of Appeals, Meter, P.J., and O'Brien, J. (Shapiro, J., concurring), affirmed both defendants' convictions in an unpublished per curiam opinion, issued October 11, 2016 (Docket Nos. 325730 and 326542), holding that Bruner's right to confront the witnesses against him under the Sixth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 ...


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