739 So. 2d 1220
Fla. Dist. Ct. App.
1999

Lead Opinion

ALLEN, J.

The appellant in this direct criminal appeal challenges his convictions for armed robberies, armed carjackings, and armed kidnapping. We reverse his convictions because the trial court erred in denying the appellant’s motion for a mistrial after the prosecution offered testimony clearly conveying the inference that the appellant had been implicatеd in the crimes by a codefendant who did not testify in the appellant’s trial.

The appellant was charged with the crimes along with Frederick Kearney and Ernest Johnson. The appellant moved for a trial severance from Kearney because Kearney had made pretrial statements implicating himself and the appellant in the crimes. Citing Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the motion pointed out that Kear-ney’s statements, although admissible against Kearney, would not be admissible against the appellant unless Kearney testified in the appellant’s trial. The trial court granted the motion. The appellant and Kearney were tried jointly, but with separate juries. Johnson’s trial was postponed to a subsequent date.

During the course of the joint trial, the lead detective assigned to the investigation, Detective Kuczkowski, testified in be*1221half of the prosecution that he first became involved in the investigation when he was asked to meet with patrol officers who had identified only one suspect. That suspect, accоrding to Kuczkowski, was Frederick Kearney, who had been brought to police headquarters. Detective Kuczkowski’s testimony continued as follows:

Q. During that morning did you develop some other suspects in thesе three carjackings?
A. Yes, I did.
Q. And who were they?
A. They were Khalif Jones and an individual named Earnest Johnson.
Q. Did you attempt to locate either of these two suspects?
A. Yes, I did.
Q. How did you do that?
A. Myself and Frederick rode out to the northside and he pointed out a house where he knew these individuals, one of them livеd at.
Q. Was that Jones’ house, did you go to Jones’ house?
MS. VARON: I would object and ask to approach.
THE COURT: Yes, ma'am.
(The following further proceedings were had out of the hearing of the jury:)
THE COURT: Okay, Mrs. Varón, is there an objection?
MRS. VARON: Yes, Your Honor, we would ask for a mistrial. He just basically told the juries, both juries who are both present in the courtroom a statеment ‍​​‌​​​​‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‌‌​‌​​‌​‌‌​‌‌‌‌‌​​‌​​​​‌‍that Frederick Kearney made which implicates Khalif Jones and that’s the whole reason we severed these trials. And our jury has now heard that.

The motion for mistrial was denied, but the trial court instructed thе jury as follows:

THE COURT: Ladies and gentlemen, we’re ready to continue but at this time I will instruct both juries up to this point to disregard anything that may have been told to Detective Kuczkowski up to this point in the testimony, just disregard whаt we call in the nature of hearsay, so just disregard any statements that the detective related that were based on what he says someone told him[.]

The trial court erred in denying the motion for mistrial, and this error was not cured by the jury instruction.

In Bruton, the United States Supreme Court held that a defendant’s rights under the confrontation clause of the Sixth Amendment to the United States Constitution were violated by the introduction at а joint criminal trial of a nontestifying code-fendant’s confession which named and incriminated the defendant. The Bruton court also recognized that the erroneous admission of such evidence at trial cannot be remedied by a curative instruction.

Recently, in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the court recognized that Bruton may apply where there is no direct trial evidence that the codefendant has implicated the defendant, but nevertheless there is evidence raising an inference that this has occurred. Gray recognizes that such inferential implication of the defendant will invoke the protections of Bruton where trial evidence obviously suggests that the codеfendant has implicated the defendant, so long as this clear inference arises without the need for reference to other evidence introduced at a different point in the trial. The Gray court made this point by contrasting the redacted confession offered in Gray (redacted to eliminate Gray’s name) with the redacted ‍​​‌​​​​‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‌‌​‌​​‌​‌‌​‌‌‌‌‌​​‌​​​​‌‍confession offered in the earlier case of Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (redacted to eliminate any reference to Marsh).

The State, in аrguing for a contrary conclusion, relies heavily upon Richardson. But we do not believe Richardson controls the result here. We concede that Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially.... We *1222also concede that the jury must use inference to connect the statement in this redacted confession with the defendant. But inference pure and simple cannot make the critical difference....
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That being so, Richardson must depend in significant part upon the kind of, not the simple fact of, inference. Richardson’s inferences involved statemеnts that did not refer directly to the defendant himself and which became incriminating “only when linked with evidence introduced later at trial.” The inferences at issue here involve statements that, despite redаction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduсed at trial.

523 U.S. 185, 195-196, 118 S.Ct. 1151.

Like the inference conveyed by the evidence in Gray, the inference conveyed in the present case by the testimony of Detective Kuczkowski was clear and immediate. Any reasonable juror would immediately conclude from this testimоny, standing alone, that Kearney had implicated the appellant in the crimes and led Kuczkowski to the appellant’s residence. Accordingly, in light of the fact that Kearney did not testify in the joint trial, the appеllant was entitled to a mistrial.

We are unable to conclude that this error was harmless beyond a reasonable doubt. See Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); State v. DiGuilio, 491 So.2d 1129 (Fla.1986). The appellant’s convictions are therefore reversed and this case is remanded for a new trial.

BENTON, J. CONCURS. LAWRENCE, J., DISSENTS WITH WRITTEN OPINION.



Dissenting Opinion

LAWRENCE, J.,

dissenting.

A jury found Khalif Jones (Jones) guilty of one count of armed kidnapping, three counts of armed robbery, and two counts of armed carjacking. Jones committed these сrimes on April 20, 1997, in Duval County, when he and his two accomplices pointed guns at the victim — a paper boy delivering his early-morning wares; carjacked the victim’s car; made the victim drive his manual-shift car to the next victims’ car — a newer, automatic vehicle; robbed the occupants of the newer car; and carjacked the second victims’ car. The paper boy escaped when Jones and his accomplices were distracted by the newer car. The trial judge sentenced Jones, pursuant to the guidelines, to concurrent thirty-year terms, including six mandatory years.

The majority finds that a Bruton1 error ocсurred in this case, and thus concludes that the trial judge should have ‍​​‌​​​​‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‌‌​‌​​‌​‌‌​‌‌‌‌‌​​‌​​​​‌‍granted Jones’ motion for mistrial. I disagree and respectfully dissent.

The Florida Supreme Court explains the Bruton violation:

The fact that the defendants here were tried separately rather than jointly does not vitiate the constitutional infirmity. The crux of a Bru-ton violation is the introduction of statements which incriminate an accused without affording him an opportunity to cross-examine the declаr-ant. It is immaterial whether denial of this opportunity occurs because the statements are introduced through the testimony of a third party or because the speaker takes the stand and refusеs to answer questions concerning the statements.
As a fallback argument, the state contends that neither the requirements of section 90.804(2)(c) nor the confrontation clause were actually violated because Nelson’s name never appears directly on the tape. Clearly, however, the state *1223introduced the tape for the purpose of implicating Nelson. A defendant’s name need not be expressly used to achieve this goal аnd trigger a confrontation clause violation.

Nelson v. State, 490 So.2d 32, 34 (Fla.1986) (citations omitted) (emphasis added) (reversing Nelson’s murder conviction because the taped statement of a separately tried cоdefendant, implicating Nelson in the planning of a contract murder, was admitted into Nelson’s trial). A statement implicating Jones in the instant crimes thus is essential to a Bruton error; the instant record however disclоses no such statement. The officer’s testimony implicates Jones in no crime. Bruton thus is irrelevant to the instant case and, in my view, the trial judge correctly so found, and correctly denied Jones’ motion for mistriаl.

The majority nevertheless finds otherwise and buttresses its finding of a Bruton error with Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). The Gray court holds that it is error to introduce, ‍​​‌​​​​‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‌‌​‌​​‌​‌‌​‌‌‌‌‌​​‌​​​​‌‍during a joint trial, the redacted confession of a nontestifying co-defendant that leaves “an obvious blank space or a word suсh as ‘deleted,’” or “other similarly obvious indications of alteration,” especially where, immediately after the redacted confession is read, the detective affirmatively answers the prosecutor’s question, “after [Bell] gave you that information, you subsequently were able to arrest Gray, is that correct?” Id. at 1155, 523 U.S. 185. The redacted confession addressed in Gray obviously referred to the defendant, the defendant’s right to confront his accuser thus was abridged. Gray is inapposite to the instant case: no redacted confession by Kearney is involved, much less a redacted confession followed by a direct question implicating Jones. The instant case is devoid of “statements that, despite redаction, obviously refer directly to ... the defendant.” Gray.

The substitution of the majority’s finding of error for the trial judge’s finding is problematic. We know that “the question of whether a mistrial is proper falls within the trial court’s discretion and should not be granted unless an absolute legal necessity to do so exists.” Palmer v. State, 486 So.2d 22, 23 (Fla. 1st DCA 1986) (citation omitted) (emphasis added) (affirming conviction and holding that a witness’s remark that he thought the defendant had already pleaded guilty to the charged crime did not constitute fundamental error). We also know that “discretion is abused only where no reasonable [person] would take the view adopted by the trial court.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). The standard for granting a reversal after a motion for mistrial is denied moreover is whether the error is so prejudicial as to “vitiate the entire trial.” Reaves v. State, 639 So.2d 1 (Fla.1994) (affirming the imposition of the death penalty, despite a number of harmless trial errors). Jones makes no claim that the officer’s statement vitiated his entire trial. The majority’s substitution of its finding of a Bruton error for the trial court’s finding that no such error occurred fails to comport with our principles оf appellate review.

The trial judge’s denial of Jones’ motion for mistrial, ‍​​‌​​​​‌‌‌‌‌‌​‌​​‌​‌​‌‌‌‌‌​‌​​‌​‌‌​‌‌‌‌‌​​‌​​​​‌‍based on the judge’s finding that no Bruton error occurred, is a correct exercise of the judge’s discretion in my view. I therefore would affirm Jones’ convictions and sentences.

Notes

. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).