People v. Frazier

539 People v REMAND) (AFTER v FRAZIER PEOPLE 1). (Calendar 8, Argued No. March 1994 94507-94510. Docket Nos. 29, 1994. August Decided McGhee, Frazier, Phillips, James and Darnita Christian Omar jointly by jury in the Detroit Re- a Robinson were convicted J., second-degree Court, Talbot, murder of of Michael J. corder’s robbery. during off-duty police trooper The an armed an state Kelly Gillis, P.J., R. B. Appeals, J. and and Michael Court of JJ., opinion per unpublished curiam in an Burns, affirmed 104683). Supreme (Docket 102749, 102920, The Nos. Appeals reconsid- of for Court Court remanded case (1991), Banks, light People 408 and v 438 Mich eration (1991). Watkins, 439 Mich 896-897 Mich 627 P.J., (1991). Court, Mackenzie, remand, and Michael On per Kelly opinion JJ., unpublished Wahls, in an reversed nontestifying curiam, finding of statements redaction 147931-147934). (Docket Nos. was insufficient codefendants n appeal. people joined by opinion by Brickley, Justices In an Justice Griffin joined by opinion by Riley, Mallett, and an Justice Supreme Court held: Boyle, Justice statements, preceded codefendants’ The introduction instruction, the defendants’ did not violate a limited use right some of the individual statements of confrontation. While may inferentially other de- incriminated the introduced have involved as those referred to others fendants where statements "friends,” per- jury or surmised "friend” could have might friend or those trial been the sons other than have in the context friends referred when considered Thus, powerfully incriminating the inference was not evidence. presumed limited followed the could be to have and the use instruction. suspect are often be- 1. Statements made codefendants juryA can to shift blame. cause dеclarant is motivated strong partially confes- a redacted draw inferences even from trial. there is evidence at Where sion if it connected with other nontestifying consider is a risk that will substantial defendant, assessing guilt of codefendant’s statement despite cautionary despite redaction, partial instruction such a statement inadmissible because violates the defen- rights through dant’s federal and state confront the evidence cross-examination. 2. The line between inferential incrimination and direct implication Drawing requires is thin. this line a careful exami- specific statement, nation of details in each codefendant’s analysis, introduced, and in the context all the of evidence of may implicated any

whether the statement have other defen- case, context, evidentiary dants. In this when the the manner redaction, statement, of the nature of the and the use of a cautionary considered, instruction are there was not a substan- jury nontestifying tial risk that the utilized codefendants’ assessing guilt statements of the other defendants. improper prosecutor jury 3. It for a to infer that the can nontestifying use of a the statement codefendant to assess the culpability case, prosecutor’s closing a defendant. In this argument ambiguous and could been have considered an nontestifying invitation to use codefendants’ state- by ments to corroborate the statement made a defendant. If jury might by there was a chance been have misled prosecutor, by given the harm was cured the final instructiоn judge. minimally 4. powerfully redacted statements did not any particular incriminate defendant. The defendants were not any regarding identity named sufficiently inference attenuated to warrant confidence in the effectiveness of the limited use attempt instruction. There was not a clear defendant, implicate any one and the conviction one defen- hinge dant did not an inference be drawn from nontesti- fying supply codefendant’s statement. The not statements did missing any gaps necessary fill in any elements or to convict Rather, defendant. each defendant’s statement established the necessary second-degree for elements conviction murder on aiding abetting theory. an joined by Boyle, concurring, Riley, Justice Justice addition- ally "facially incriminating” stated that the test of admissibil- ity confessions, for redacted as articulated in Richardson v Marsh, (1987), adopted Michigan 481 US 200 should be into jurisprudence. Reversed. joined by Levin, dissenting, Chief Justice Cavanagh, Justice stated that there ais substantial risk that the considered deciding

the redacted codefendants’ confessions in each defen- Moreover, guilt. admitting dant’s the error the confessions Brickley, aver- beyond because an doubt harmless reasonable was not significantly prosecution’s case age .juror found the would have persuasive been excluded. had confessions less Attorney General, L. Kelley, Thomas Frank J. O’Hair, Casey, Pros- General, D. John Solicitor Baughman, ecuting Attorney, Timothy Chief, A. Appeals, Training, A. and Janet Research, peo- Attorney, Prosecuting Napp, for the Assistant ple.

Craig Daly Frazier. for defendant A. Phillips. Rust for defendant

Daniel J. (by Appellate Mein- M. Susan Defender State berg) McGhee. for defendant Morgan for Robinson. M. defendant

Robert

AFTERREMAND again presented This Court is once J. Brickley, question the trial court erred whether with prosecutor permitting evi- into to introduce joint statements of trial the redacted dence at a jury nontestifying was where codefendants be considered that the statements instructed ruling Applying only. against our the declarant People 475 769 Banks, 408; 438 NW2d Mich v (1991), the co- hold that introduction of we by preceded case, a in this statements defendants’ limited dants’ instruction, defen- not violate the

use did guaranteed by right the US of confrontation 1, § 20. Const, art Am VI and Const crime, hold of this we the circumstances Given redacted, minimally that the admission the indi- not error. While some statements was may inferen- have introduced statements vidual Brickley, tially incriminated the other defendants where those statements referred to others involved as jury "friends,” "friend” or could have surmised persons might other than those on trial have been the friend or friends referred to when consid- ered in Therefore, the context of the evidence. powerfully incriminating, inference not presumed in this case could be to have followed the limited use instruction.

i jointly The four defendants were tried for the shooting during off-duty police trooper death of an state robbery

an armed outside Detroit restau- rant near the Detroit River at Hart Plaza. There testimony trial all established four gang codefendants to be members of a known as the "Be Likes.” All four defendants made at least police. one statement to the Each defendant admit- complicity robbery, ted some in the but each de- shooting. Specifi- nied involvement in the actual cally, knowing each defendant admitted to gang going fellow members were to commit a robbery knowing gang that one fellow member gun. had a Each defendant stated that his role was police act robbery as a lookout for while the occurred. All four defendants were convicted second-degree 750.317; murder. MCL MSA 28.549.

Before Banks, this Court’s in 438 v decisions supra, People Watkins, 627; Mich (1991), Appeals NW2d 727 the Court affirmed the convictions of all four defendants1 in an un- published opinion per curiam, 8, issued March 1We note at the outset not statements were used as against codefendants, prosecutor substantive evidence and the has permitted. not contended that such use should been have In that regard People applicable. v is Watkins not 543 v Brickley, (Docket 103553, 102749, 102920, and 1990 Nos.

104683). Appeals of the Court ordered This Court light appeal of Banks to reconsider (1991). remand, the On 896-897 Mich 439 Watkins. Appeals convictions reversed defendants’ of Court per opinion curiam, unpublished issued in an 147931-147934). (Docket We July 16, Nos. 1992 (1993). appeal. granted 929 442 Mich leave n A requiring reversal of error assertion Defendants’ prosecution’s premised the re- use of on the nontestifying codefendants, of dacted statements allegedly respective defen- of each in violation right the Sixth under of confrontation dant’s Constitution2 United States of the Amendment 1963, 1, § art 20.3 under Const right insures that wit The confrontation for trial, is available testifies under oath ness jury to observe cross-examination, allows the Green, v California witness. demeanor 489 1930; 26 L Ed 2d 149, 158; 90 S Ct 399 US (1970). origins Recalling Confrontation Supreme Clause, Court noted: 2 Const, pertinent part: provides in Am VI US enjoy prosecutions, shall the accused In all criminal against him right ... with the witnesses to be confronted for his defence. . the Assistance Counsel . . and to have guaran- makes this Sixth Amendment Fourteenth Amendment applicable right Pointer States. tee of the confrontation (1965). 1065; 400, Texas, 403; S L Ed 2d 923 85 Ct 13 US 1, provides part: Const art § prosecution, have the every the accused shall In criminal against him right witnesses ... with the to be confronted 544 446 539 Mich Opinion by Brickley, J. particular gave impetus vice that to the [T]he practice

confrontation claim the of trying defendants "evidence” which of solely consisted ex parte depositions affidavits or secured by the examining magistrates, denying thus the defen- opportunity challenge dant the his accuser in a face-to-face encounter in front of the trier of fact. [Id., p 156.]

The Court in quoted Green Mattox v United States, 237, 242-243; 337; 156 US 15 S Ct 39 L Ed (1895), 409 for its historical regarding view primary object Confrontation Clause and the role of the right literal to confront. pur- pose of a right a confrontation is to for provide

"personal examination and cross-examination of the witness in opportu- which the accused has an nity, only testing not sifting recollection and witness, the conscience of the him to stand that demeanor compelling but of face face with the in jury judge by order him, they may look at his upon the stand and the manner gives which he testimony worthy his whether ishe [Green, supra, belief.” pp 157-158.] Addressing the issue of the use of a codefen- dant’s unedited trial, statement joint Supreme Court held in States, Bruton v United 135-136; 1620; US 88 CtS 20 L Ed 2d (1968), that it was error to allow the powerfully incriminating unredacted by statement made nontestifying codefendant. Despite the cautionary given instruction judge the statement only should be in evaluating considered co- guilt, allowing defendant’s jury to hear facially incriminating statement violated the de- right fendant’s to confront Id. witness.

The Bruton Court observed statements made by codefendants are often suspect because v Frazier Brickley, p Id., shift blame. is motivated

the declarant joint trial, hears a codefen- when a 136. In a incriminating powerfully statement dant’s expressly the the and describes the defendant names crime, risk is that role in defendant’s statement the codefendant’s will consider despite guilt assessing an the defendant the pp telling Id., 135-136. it not do so. instruction While limiting im- the risk of avert instructions many proper in situa- of evidence consideration limitations would tions, context, human in this Id. ineffective.4 render the instructions Randolph, plurality opinion, 442 Parker In (1979), 2132; L 713 the 60 Ed 2d 62; US 99 S Ct a codefen- the admission of later addressed Court incriminating facially in statement a trial dant’s in which the defendant essentially confessed to

had also justices of the facts. Four the same opinion no there was violation of the were a situation be- Confrontation Clause in such did not have a statement the codefendant’s cause devastating p Id., case. effect on defendant’s plurality that where defen- 75. dant has reasoned already

already confessed, case has "[his] p Id., 7. . . .” n been devastated . Subsequently, issue the Court revisited the proper of a to allow the admission it whether was incriminating facially nontestifying codefendant’s pre- general juries Justifying exception rule that are this instructions, Supreme limiting Court stated: sumed follow jury will in the risk that are some contexts which [T]here not, cannot, great, is so conse instructions or follow defendant, practical quences vital to the of failure so ignored. system cannot be and human limitations here, powerfully presented incrimi where the Such a context is nating extrajudicial codefendant, who stands of a statements defendant, deliberately spread side-by-side are with the accused supra, pp joint [Bruton, 135-136. in trial.

before omitted.] Citations Brickley, in statement a trial which the has defendant right also confessed and concluded the defendant’s of confrontation had been violated the admis- York, 186, 192-194; sion. Cruz v New 481 US 107 S (1987). 1714; Ct L95 Ed 2d 162 The codefendant’s unredacted statement was said to "interlock- be ing” respects. in that it was similar material As such, it corroborated and confirmed the defen- implicate dant’s own statement so as to further p Writing majority, Id., him.5 192. for the Justice Scalia noted that the corroborative of an effect interlocking signifi- codefendant’s confession could cantly especially case, harm the defendant’s where a defendant seeks to avoid his own confession. The nontestifying Court held that where the codefen- may defendant, dant’s confession incriminates a joint not be admitted at their trial if a even given limited use instruction is if and even pp Id., defendant has confessed. 192-193. ruling subsequently

The in Bruton has been facially limited in to situations which incriminat- ing by nontestifying statements made codefendants Marsh, are used 200; at trial. v Richardson 481 US (1987). holding S 1702; 107 Ct 95 L Ed 2d 176 In that there is not a violation of the Confrontation Clause where the name and the role of a defen- dant has been removed from the codefendant’s statement, Justice Scalia wrote that "the calculus changes when confessions that do not name the p Despite Id., defendant at are issue.” 211. the in Richardson, redaction the statement contextu- prosecutor presently The in the case considered Court has this asserted that confessed there is no Bruton error because each defendant has independently enough support to the conviction second-degree aiding abetting theory. an murder under As noted Scalia, by Justice the fact of the defendant’s own confession does not error; however, independent might cure Bruton an confession be assessing Cruz, relevant in the whether error is nonetheless harmless. supra, pp 193-194. Beickley,

ally linked defendant when the incriminated testimony at trial.6 other distinguished Supreme codefen- the Court incriminating facially Bruton, in statement dant’s in Richard- admitted redacted statement from the codefendant’s that the Court observed son. The implicated expressly the had in Bruton confession considering in it was The confession defendant. incriminating only the because Richardson was testimony it so: made defendant’s "ex- Bruton, In the confession codefendant’s accom- implicat[ed]” the as his pressly defendant Thus, intro- the time that confession plice. at slightest the doubt there was not duced incriminating.” By con- "powerfully prove would trast, not incrimi- the confession was in this case face, linked only so when nating on its became trial .... introduced later with evidence [.Richardson, supra, p 208. Citations omitted.] that she was admission Absent defendant’s said he was car at the time codefendant robbing killing person, discussing third with a any with there regard not have been incrimination would Supreme context, Court to her. In this 6Specifically, related a codefendant’s statement in Richardson person allegedly took between himself and third conversation place in en to the of the crime. The codefendant a car route scene having the victims after the there talk about to kill related that testified, robbery. in the she admitted she was When the defendant was involved seat of the car and she knew that codefendant back conversation, being not said. in a she could hear what was but plan, knowledge of the criminal To establish the defendant’s closing prosecutor suggested dant heard argument defen- conversation. attempted appeal unsuccessfully the verdict After the defendant courts, opinion per Michigan unpublished of the Court of in Appeals, curiam (Docket 46128), the Sixth 1980 No. issued December Appeals petitiоn denial of federal district court’s Court of reversed the Circuit the defendant’s 83-CV-2665-DT corpus, Action No Civ for a writ of habeas (CA6, (ED 1201, 1212 Mich, 11, 1984).781 F2d October 1986). Brickley, jury expected ruled that could be to have disregarded the inferential when it incrimination convicted the defendant: necessity linkage involved, Where the of such is generalization jury

it is a less valid will that the likely obey disregard not evidence. the instruction to Specific testimony that "the defendant helped me commit the crime” is more vivid than incrimination, inferential to such an difficult and hence more regard Moreover, out thrust of mind. with explicit only plain is, statement the issue simply, jury possibly whether the can be expected forget assessing it in the defendant’s guilt; regard whereas with to inferential incrimi- judge’s may nation the instruction well be success- dissuading entering ful from onto path place, of inference in first so that is there forget. p supra, no [Richardson, incrimination to 208.] Supreme

Left unanswered Court may whether statements codefendants be sufficiently pro- redacted when neutral nouns or nouns are substituted for named defendants. The question leaving played by is whether the role defendant intact violates the set standard forth in supra.7 Bruton,

B partially This Court has considered redacted by nontestifying statements made codefendants to "powerfully incriminating” be where name of out, the defendant was blanked but the eviden- tiary context in which the statement was intro- easy duced made it for the to infer the defen- Supreme express opinion regarding Court did not an whether nontestifying only codefendаnt’s confession in which the name of Richardson, the defendant had been redacted would be admissible. supra, p 211, 5.n v Bkickley, J. supra. jury identity. People Banks, "[A]

dant’s partially strong even from a inferences can draw if is connected confession the confession redacted p Id., 419. This Court evidence at trial.” with other approach case-by-case than a rather set forth a rule of per admissibility "[T]he ease with which se. vary jury will from to fill in a blank a will be able upon depending case, the overall eviden- case tiary jury.” the in context which is introduced p that Id., there a risk” 420. Where is "substantial nontestifying codefen- the the will consider assessing guilt the of the dant’s. statement despite cautionary defendant, despite instruction and the partial redaction, such statement the the that it violates defendant’s inadmissible rights evidence state to confront the federal and through pp Id., 420-421. cross-examination. a sub-

In to determine whether there is order the non- will consider stantial risk that assessing testifying codefendant’s statement when guilt, independent evidence the defendant’s presented other necessarily must be considered. at trial Banks, both In the two codefendants’ statements person gun that a third had taken a asserted person after the that codefendants heard shots. We did not return until that

ruled that the redac- transparent. people trial, three tion was With identity there no doubt about rightfully person. com- "The defendant unnamed plains might he as have been mentioned well p Id., . . .” 423. name . first-degree

The conviction included defendаnt’s acquitted of all were murder. codefendants opportunity denied counts. The defendant was challenge the codefendants cross-examine and identified him statements self-exoneration gun. person that the fired ‍​‌‌​​​​​​​‌‌‌​‌​‌​‌‌​‌‌​‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​‌​​‌‍held who We as harmless because Bruton was not violation Opinion by Brickley, provided pros- statements a critical element possibil- very "[t]here ecutor’s case ity real [was] improperly admitted statements swayed jury.” p Id., 430.

c application We now turn to the test specific enunciated Banks cir- to facts and cumstances of the case before us to determine whether ciently the codefendants’ suffi- statements were Banks, In

redacted. observed we line between inferential incrimination and direct implication p Drawing Id., is thin. 419. this line requires specific a careful of the examination de- tails disclosed in each codefendant’s statement and analysis impli- may of whether the statement have any cated of the other defendants when the con- during text of all the evidence introduced is taken into consideration. trial prosecution presented testimony The of sev- eyewitnesses eral were who at Hart Plaza that evening. Basically, those witnesses testified that they gunshot, by heard a the sound of followed the on the slumped scream of a woman. A man was bleeding sidewalk and from the head. wit- The youths running nesses observed several black from plaza. description clothing by The worn fleeing generally vague. those Some dark said jeans. clothes and Others described Addidas tee gym fleeing youths shirts, and shoes. One of the thought wearing cap. to have been a baseball fleeing wearing One witness described those as jackets, they jogging another said wore outfits. accompanied

The woman who the victim that evening they testified that after left the restau- they rant, were followed two black males. She wearing cap. described one a as baseball cou- The .(After Brickley, put kept pie walking. hand on her The his victim He switched to a little faster. for her walk back walking positions on the that she would be so them on the overtook The two assailants inside. right gun their them for and asked side. One had money. turned over his The victim wallets and the witness for her asked wallet. The assailants any not she did have victim told them wallet. The bring money did not her her she with because couple purse. to then directed The assailants get on the face down an area where were couple ground. direction, As started if he had assailant’s asked victim one of the replied victim The that he did. another wallet. witness testified ground, pushed her to the that the victim step back, himself as and identified took "police.” did her head. She The witness covered draw, weapon. She heard a see the victim his not gunshot up see the victim on the

and looked surrounding ground, his head. She remem- she remem- blood coming aid, her bers someone pointing in the direction that assailants bers had not able to that she been ran. She testified police lineup, identify the nor at assailants any testify of the four at trial that could she defendants were the two assailants

she saw that evening. gang members

Nine who were either witnеsses gang at the members or somehow associated with time of the crime testified about of activities gang primary of the "Be Likes.” A action robbing euphemism people "getting paid,” for of testimony money that the There was or valuables. primarily gang of downtown area De- worked the vicinity concentrating troit, on area in the testimony further that Hart Plaza. There was many gang in dark Addidas members dress gang gym jeans, shirts, shoes. Fellow tee Brickley, that members not trial testified all four defen- generally dants were known to be members of the gang. Be Like

Regarding question, day gang in members presence not on trial also testified about twenty fifty gang somewhere between mem- bers downtown in testimony Hart Plaza area. Various gang

established that the roster of mem- present day bers in the Hart area on Plaza question Bop, Tyrone, Al, Shawn, Tina, included: (Red), Mary, Cocoa, Mike, Andre, Terrence Reu- Darryl, Anthony, ben, Monica, Deno, Jonathan (Rabbit), Larry, Sonya, Calvin, Lamont, Tim, general testimony the four defendants. There was paid” "getting that the discussion centered on night. gang member, leader, One its testified that getting he and defendant Robinson discussed together purchase drugs $1,000 that could be re- sold. gang seeing

Another member testified about four defendants walk toward the boat restaurant. gang Still another member testified that she had Phillips gun night'. seen defendant with Juxtaposed testimony there were other gang plaza present members not on trial but guns day question.

who also had on the previously Several sworn statements made tes- tifying implicated gang witnesses that various members not on as trial the shooter were intro- duced at trial.

The redactions in this were A case minimal. variation of the term "friend” was substituted for pejorative the name whenever the reference was to someone other than the declarant. Sometimes there was a reference the number of friends. used, codefendant’s names were never but the gang names other if members were not deleted benign. the references were v Bkickley, hearing cautionary from the instruction After minimally judge, statements were the redacted jury names had was advised introduced. did not names redacted, the struck been but necessarily on trial and the the individuals reflect regarding speculate it not told should sug- Contrary to the characterization identities.8 gested dissenting opinion, in the inevitably meant that "friend” instructed never police During testimony defendant officer who interviewed his prosecutor copy of Robinson’s if he had a Robinson was asked way to delete had marked in some statement with him that some names. heen gave yes, judge responded After the trial the witness following instruction: gentlemen, you if I have done ladies and The Court: What trial, you, to when first started this I indicated think back we you you could there are four individuals to observe obvious on trial respective your here each individual deserves and that

judgement proofs proofs. to or as lack of separate person your each is entitled to In other words goes along Along utilize this the with that we consideration. make, people may any first that the rule with statеment they juror not made state- is to whether or determine it, point they only so much if in of fact made ment and as of fact against That’s you can them. kind believe was made be used logical. prosecutor fancy to do is to use a What I have ordered redact, strike, going phrase, lawyers done all afternoon. out. This is to be scratch applicable Any to that individ- than is statement other [what] names, ual, any they any I to other said if make reference you guess speculate, don’t it out. I don’t want to or strike designed worry it. utilized and have or about This is consider they you first whether or not made statement focus of all individual, you only applies if secondly to that as and also they itof the statement and how much believe made made. phrase going my hear a called friend. There You are my worry speculate or lot of names. Don’t or different [sic] Okay, friends, plural person. are than one all if there more right. your you Honor. Thank [Prosecutor]: too, say this names The Court: Understand meant necessarily reflect the individuals trial do not even struck here; doing you on it. I’m this so that can better focus but Opinion Brickley, J. may sig- "blank.” While the word "friend” have may redaction, naled a actually it also been the word have leaving person used in statement, the the acknowledge However, referred to unnamed. we do telling jury of the fact of redaction neces- sarily cautionary curiosity speculation despite invokes a may reason,

instruction. For this preferable judge have been for the not to have advised the of the fact and manner redac- of tion.

Defendant Robinson’s first statement taken September following excerpts 17, on exemplify 1985. The presentation and demonstrate the inability given identify any to. codefen- dant on the basis of the overall nature testimony at this trial: Tell what you me have heard "[Officer]: about shooting trooper the state in Hart Plaza? 31, Saturday, On August the crew "[Robinson]: walking was when the on Woodward near the Hudson store cops stopped us and slapped one them said, Mike and he 'If I my piece had I would have popped him.’ I I going know are to be [s]aid hard us cop got because that shot down on Hart Plaza. Mike said I know who him shot and I said (Jonathan Cox) (Mike he

who and Michael said Rabbit. is Gregory). "Q. you Did being ever talk Rabbit about him shooting? involved "A. IYes. asked him and he he said didn’t do shooting but he was hap- there. I asked what pened and he up cop. said we stuck He said we up. stuck him We asked him for his wallet gave man him the wallet then Rabbit him asked for his pushed second wallet. The man then lady cop aside identified himself as and went gun for boy his and the shot him. "Q. you anyone Did talk else about the shoot- ing? v Frazier Brickley, 19 about Yes, Al 17 to to Al. "A. I talked hair, mustache, wears a skin, bushy [bur-

brown hat. gundy] and white you? Al tell did

"Q. What I cop, I did. didn’t shoot Rabbit "A. He said called over him and he told him and didn’t believe cop shot the said who over and black dude a tall he stuck when Al did. He said said and this dud[e] gave guy and the his wallet up he asked for him him the aside, lady wallet, pushed the guy gun. his for cop and reached himself as a identified figured he was with because him who I didn’t ask I him asked he was with. the black dudе it was he quick and town so get out of down you did how said Youngs -Mayor where across the street they ran jumped is and Greyhound is near office did it. of them I think either one cab. don’t a them? Why you don’t believe "Q. this have done Like would "A. If a real Be telling everyone. bragging and be

wouldn’t people boys Like robbed any of the Be "Q. Has the water? near the water We sit on have done that. "A. We all looking at girl just or like we are with and look come out of people when and then

the water couple of us will go to the car a and restaurant up.” then stick them follow them and following statement, from defendant taken mini- trial in the same McGhee, introduced at was mally form: redacted on 3:30 p.m., 3:00 or p.m., time around "Some house 29, 1985, Collins I was at Farastina

August into the Mimi came Cocoa and 8075 Marcus. at go downtown. I to me if wanted house and asked day so go to downtown wasn’t able Farastina me, and Dyke bus got on the Van Mimi and Cocoa the main the bus at got off downtown. We went shopped on Wood- around and stop. We walked bus ended finally the Ren Cen and went to ward and Be Like lot of the Plaza. I saw a up at H^rt 446 Mich 539 Beickley, group at I security different times. remember that ask andme three others to leave the Ren Cen [sic] being because were we too loud that afternoon. I going When the sun was was at down back stop me, main bus with all the Like. Be There was Mary Bop and Shawn and and Cocoa and and [T]ony and three others I and knew some other I just knew to see. There lot Bop was a of talk person getting paid and one other dаy. about person paid A third Then talking getting was about too. Tony Mary me and and Shawn and and through Cocoa and three others the Grey- walked hound . . bus station . and a little at[e] Burgerking. It Greyhound was dark as we left the got Station and when we out of the station we get paid. forgot went to Hart Plaza I say my that one of friends showed aus black handgun, is damn, it was a revolver said big gun my ass didn’t reply friend to that. I think my jacket friend had a on because I put gun remember he in his waist band. When got everyone split up we to Hart Plaza kind of walked around and Mimi and Cocoa coming up the stairs closer Ford Auditorium and I bumped into Mimi argued and we that. about We again up spiral all met at the seats. talk [T]he again getting paid. my about One of friends Shawn, you go them, told And Shawn indicating girls. with got Tony mad. There was me and and Cocoa and Mimi and Shawn and three others. One my got of friends slapped real mad and Shawn they got because she wanted to be with him when paid. Cocoa started to calm Shawn down because hysterical. she was don’t gun I who know had the my bag, at this time. One of friends had a I think designer bag, was a I gun but don’t know if the bag. inwas We all walked towards the boat restaurant and We walked back two wouldn’t let us on the boat. spiral towards the Me seats. and of my friends kind of held back around the game basketball the fountain area. others went on towards of my

One friends look out said for hook and I ten stood about feet from the Brickley, and watched the fountain game towards

basketball say friends my of I heard one police. for gun went off. later a few seconds something and a Cocoa, I could see watching police. for I was Tony spiral seats Mimi near Shawn and as the Auditorium. Soon Ford further towards my of where two I looked towards off shot went friends white I game and saw the basketball were near and the my friends in front of one guy Ime. starting to move towards other friend didn’t everyone hook, my yelled friends gun. see the One were all of here. We get the hell out my Tony and one of running towards Jefferson. my his Tony gave friend changed coats. friends gave Tony his my friend Georgetown coat and blue Tony to the I ran on with Georgetown cóat. white caught Dyke the Van bus we stop where main bus minutes. Cocoa were Mimi and fifteen after ten or at got I on the bus. stop Tony and when bus Cocoa, Mimi, names of are the real "Q. What three friends? Tony and our Shawn and Sim- Antoinette Mary, Shawn of "A. Mimi is I don’t know mons, Anthony Quarles. Tony names. Cocoa’s real getting you say you mean when

"Q. What do paid? robberies, snatching gold and stick-ups,

"A. Do like that. stuff was one went off where

"Q. the shot When your friends? with us my friends was that one of "A. I know I the boat restaurant from as we returned didn’t see the shot area when in the fountain him to the shot he was. how close say I can’t

went off. stop after except at the bus him didn’t see shooting. looking for hook must have been He behind me.

"Q. hook? What is police.

"A. The forgot you anyone else downtown "Q. there Was to mention? guy hair Yes, short, short lightskinned

"A. Opinion by Brickley, boy. baby hang my call He would with one of I seeing friends that lives. lot. last time him remember day light. it used I don’t know where he [s]till He to be baby with his brother a lot.” gave police Defendant Frazier a statement to on jury, 1986, December which was to read the redacted as fоllows: 29, 1985, August "About 9:30 on I was [at] p.m., up Hart the Be Like up Plaza and met with members of the gang spiral around the area. I met cement eight persons. with or person nine other One bag had a Gucci I him had sold and earlier he had bag. blue steel revolver in the I could see the gun handle of showing acting tough the because he was persons it off. talking Two of the were getting paid. person about going One mentioned to

the boat get paid, restaurant to so we started moving through the crowd towards boat res- got taurant. When we finally boat restau- rant except there was six of We us. had tennis shoes on person for only go one so he could onto the boat. He went onto the boat and back came off. He said boat was nice All inside. six us started moving up games. back I played towards game basketball started for a guy dollar missed. The closing game up. I moved the ball color girl toss booth and go asked if we could said, out and down up, she a hold so I went and set [sic] grassy looking bench I was area. for two of my person friends. They a third had game made One doll standing and were there. the others was still at the ball toss color my booth. One of friends moved I towards where girl was and the from the ball toss came and joined me. I Cindy think her name Cynthia or but I’m I acting not sure. was as for lookout two of others, looking towards the boat area. was watching police for the I so could warn them if I police. saw looking One the others was towards way police the fountain so if any came from way person yell. couple, could A white by Opiniоn Brickley, J. nice, walking from the boat and were dressed booth, got my doll two of about the

when to of them moved them and one friends towards put his in and was bag the hand I heard unzipped and couple. the white standing in the front of my of problem?’ the and one guy say, friends 'What’s said, 'Check guy it in’ and the said 'Check 'And I said 'The wallet’ my in?’ and friend what gun My other took the money her too.’ friend want my guy the and pointed and it towards white out first wallet, out, the opened pulled guys friend the wallet money put in his the and took out then at the and pocket. My friend looked wallet looked at surprised my other friend acted and shot shot at my One of friends one wallet. white over guy. My friend tossed the wallet other grass. lady The screamed the rail onto the white ground next help guy white fell to the for to run and game. my yelled friends to the One my towards everyone took Two of friends ran off. river. one ran the fountain area and towards don’t I girl I off. know where was with took shooting and the time of the another friend was at later, I again days till later. didn’t see him two by a stopped walked towards Jefferson was path Ford plain goes clothes ofiicer at gun and checked me for a Auditorium and he me my for Some uniform officers took asked to let me name. my then and called mother and mini-station go.” one Phillips Defendant made statement and introduced similarly It was redacted police. him: against I Thurs- Day, think it was on "Just before Labor day August I road downtown bus [sic] got I off the on Woodward the festival. Where bus three stop At the I saw

just before Jefferson. bus us over to people I All four of went knew. p.m. We went festival area. This was around 10:30 shooting I .... bas- to the kets and booth was basketball said, some- my one friends let’s stick 446 Mich 539 Brickley, up off I body two the boat. shot some more and then

people coming up were the walk towards where we were. It was a man white and a white talking woman that were towards us from the [sic] my pulled boat restaurant. gun One friends out the give and said to the white guy, your me standing I wallet. the basketball booth looking for any police my and one of friends was booth, just the other ‍​‌‌​​​​​​​‌‌‌​‌​‌​‌‌​‌‌​‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​‌​​‌‍end of the standing there. past The white man the other end of woman were me towards my second booth and two of friends was at the just standing the booth there. The white man past and woman were me towards second booth my and two of friends were in front of them and had gun. looking one around; but I think the man resisted and I heard go off gun. shot from my friend’s The man stood and stumbled for a second and then fell to the ground. I run my started to with three friends towards the fountain area. I off my took shirt and put it in one of my bag friend’s Gouchi I was [sic] holding my and one put of friends his shirt bag my and one of friends had on about four shirts gave so he me and another a shirt friend and he one threw down City County when we reached the Building. My three friends and me ran to the bus stop on Woodward where I met had them that night and got except we all on a bus one of them. got One friend off somewhere around East Grand changed Boulevard and we to a different bus with- out him. Me and girl one friend went to a named Kelly house in stayed Hamtramck and we a for got few minutes and left. We onto a different bus got and I off at my Six Mile Livernois and an[d] got cаught friend off and the Livernois bus to his gun. sisters house. He had ... still I walked home.”

In subsequent by statement made defendant 10, Robinson to police evening on the of October greater he admitted he culpability than originally acknowledged. The minimally redacted statement was read to the to be considered v Frazier Brickley, following only.

against defendant Robinson exemplifies what was stated: beginning and from the Okay, start "[Officer:] about this case. everything you know

tell me nine about got downtown around "[Robinson:] five, thirty or about four morning. in the Around meeting up. It was everybody when started that’s Me, Cocoa, Shawn and Bop, girls, Cocoa and two Like down some more Be friends. It was two other there but me, there, just it was just down was Shawn, Cocoa, Cocoa Bop and three other friends. money change a mans and Bop had took and earlier walking towards day. started We Town Town after that we left Greek Greek and went towards the Renaissance. kept just Then we walking people had towards the festival got time we to the festival dulled off us, me. went just four three friends and We was first, up downstairs then we came back standing for a while. there waterfront and we boat, was all up towards we Then we went waiting walkway by the We boat. out sticking up couple that came thinking about couples they they A couple of left them came out but the boat. pass cop and then the came out up walkway. my Two of friends went was behind I had walked middle the up games, games, little walked, them, already up front. I I was walkway. In the top up passed my two had walkway friends made it сouple everybody this time had and at Then two or three walkway. about couple passed

once or three about two place, the that’s the incident took when shooting. still the my At time third friend was the same top. Then I at the bottom and was still at run. to gun everybody went started off me a my it. called That was Until one friends him to hide day later and told me he wanted me him, time from that the last I heard out and jail. until he went to people

"Q. Give the full names of the four me in the robbery? that were involved 446 Mich 539 Brickley, "A. don’t know full names. Okay, was there some discussion about rob- "£?.

bing somebody prior to the time the officer was shot? it, yes.

"A. Did we talk about "Q. What was said? get gonna paid.

"A. That everybody gun? "Q. Did someone have a my "A. friends. One Who took the mans wallet? "Q. up gave "A. I wasn’t I could who where see he

to, reaching handing, all I seen him I believe gave my he it to one of friends[.]” alleged Defendants have any that reference friends, especially when the reference is three my us, friends or the four of left the jury with no choice but substitute the three codefendants for any reference to word Their position friends. that was invited to identify one defendants whenever word friend or friends was used. reversing

In the defendant’s conviction re- mand, Appeals the Court of found the redaction to be It expressed insufficient. the view that leav- ing the roles of the other defendants in the non- statements, codefendants’ testifying would assume "three friends” referred statement to the three other defendants on trial: The fact that there were four defendants on

trial, the fact there were four confessions jury, read and the fact that some of the by replacing statements were redacted the codefen- friends,” "my dants’ names with three us to leads believe there was a risk substantial . 563 Opinion by Beickley, J. despite contrary, jury, instructions to the lookedto determining in the codefendants’confessions each guilt. defendant’s disagree. We case-by-case analysis

Banks for to deter- calls in mine whether a statement which the names incriminating powerfully have been redacted is as as in a statement which the names are left intact. many In cases the circumstances of the crime will substituting be such that redaction word friend for the named defendant will be insufficient imagination necessary because no will for the be jury’s conclusion word friend the co- defendant’s However, easily statement refers to the defendant. case,

in this could not have array concluded that out of the of fellow gang vicinity members who were in the immediate referring crime, the declarant was to one of the defendants whenever the word friend used in the statement.

Witness Labron Moore testified that he was regarded generally Be be the leader of the Likes place. at the time this crime took He stated that night twenty when he left Hart Plaza that ten to gang members were with defendant James Robin- Lacoya son. Huff Witness testified that Antoinette present. Darryl and A1 were Witness Mainor indi- Wright, Tony Cox, cated that Jonathan Terrence Judkins, not Calvin Dodo and five others he did vicinity name were in the of the crime. immediate disputed It is not could have inferentially linked one or all of the defendants whenever the word friend or friends was used degree statement, of infer- codefendant’s but required sufficiently ence cautionary attenuated presumed to

instruction can be have Mich Opinion by Brickley, evidentiary context, been effective.9 When the redaction, statement, manner of nature of dissenting opinion points danger out the that defendant by Robinson was linked to the statements made codefendants because having bag, slapping of references to friend one a Gucci Shawn Simmons, taking Livernois the bus to his sister’s house. Moore, supposed testimony There was from Labron the leader of gang couple gang designer the Be Like that members carried bags. Quarles Tony Witness Andre testified that and Edward also guns. Scruggs carried Debbie Witness testified that defendant Robin- (not pouch night bag). son had a Louis that a Gucci Batton Codefen- Phillips holding dant in asserted his own statement he was that his bag night, friend’s Gucci and defendant Robinson said in his put gun bag statement the that one friend back into the other friend’s group got before the testified that onto the bus. Witness Antoinette Simmons bag evening, Robinson defendant carried a Gucci but, notes, testimony severely as the dissent later her was so im- peached, virtually contradictory it was unbelievable. Given the evi- dence, any bag link the between reference to the Gucci in the sufficiently jury statement to could not Robinson defendant attenuated. The "friend,” easily substitute Robinson for and therefore the cautionary instruction can be considered been to have effective. dissenting opinion jury The statement in the that the could have guessed that the friend that took the bus Livernois to his sister’s equivalent easy establishing house was defendant Robinson is not the high jury that the risk is too that it for would be the to draw aspect that statement, if conclusion. Even there is some link to some of a necessarily activity there is not a link to the criminal in every prosecutor, asking case. The who is to use the redacted state- joint right ment in a which trial in the to codefendant’s cross-examine may the right evidence be violated when the defendant exercises his testify, position not picture evidentiary to in best is the the entire know suggest protect a redaction sufficient to the codefendant. jury easily An carry edit that allows the fill in blanks will with being judged appeal. it the risk of so Here, gang not all the members who were downtown and who fled robbery shooting. were involved in the Defendant Robinson’s sister testified her home was on Willett. members downtown who fled after the Given number of the shooting, it would not have easy taking jury been for the to conclude the friend the Livernois bus gang was defendant More Robinson. than one member in lived Detroit, likely area of and it that more one could than have lived with a sister. Finally, slapped girl- whether or not defendant Robinson his then evening friend Antoinette Simmons earlier in not a fact establishing guilt central to defendant Robinson’s in the armed rob- bery trooper. and murder state of the Defendant McGhee’s statement chronological story evening. Beyond tells the events of friend, repeating further have any the word McGhee does not state defendant Shawn,” slapped "friend reference to the who which would impermissibly incriminated defendant Robinson the crime. Opinion by Beickley, cautionary are all and the use of a instruction considered, risk that there was not a substantial nontestifying codefendants’ utilized the assessing guilt of the other statements defendants.10

III prosecutorial misconduct Defendants assert that during closing argument. occurred position ing argument The defendants’ prosecutor’s clos-

is that the effect of the protection was to undermine given cautionary by afforded instruction judge De- when the statements were introduced. pros- fendants characterize the words used improperly ecutor as an invitation for the statements. link all of the defendants’ prosecutor improper that the It jury for a to infer nontestifying the statement of a can use culpability a defen- to assess the of codefendant dant. p pros- supra, Banks, Banks, 426. In the urged jury nontestifying the to use the ecutor to evaluate the defen- codefendants’ statements p Id., 424. dant’s case. against properly admissible

Each statement was permissible declarant, for and it was therefore prosecutor each defendant to comment that put acknowledged himself at the crime scene and robbery. A careful some involvement in the armed in this case has revealed examination of the record prosecutor’s closing argument could have that jury to the to use considered an invitation been any it was obvious referеnce to The dissent maintains one or all of the codefen "friend” in the redacted statements meant represents Interestingly, the' this trial a situation which dants. statements become less evidentiary incriminating context is when the gifted suggests only of the entire record considered. Our review regard jurors graph paper, computer, and instructions armed with disregard ing testimony and which to which to consider credible that friend meant codefendant. would be able to draw the conclusion Opinion by Brickley, nontestifying codefendants’ statements to corrobo- rate the statement made by defendant. The prosecutor’s closing argument included the follow- ing remark: In you this case when compare the of statements defendants, each of these even with all the differ details, ences in the you believe will conclude truth.[11] you got

Defense counsel raised an objection to pros- ecutor’s argument, which he characterized as an invitation to consider the defendants’ statements as a whole. The judge trial responded that his view prosecutor’s comments was not that the jury had been invited to up match each defendant’s statement with that of the codefendants. His view was that prosecutor had invited the compare each defendant’s statement with the other evidence introduced in the trial in order evaluate that statement’s credibility vis-á-vis eval- uating the guilt of the did, declarant. The judge however, readvise the jury in final instructions that each defendant’s case should be determined on the basis of the defendant’s acts and state- ment^__ 11Similarly, following argument prosecutor made also cited illustrating prosecutor’s the defendants as invitation

to the to use guilt codefendants’ statements to evaluate the the other defendants: probably But any the best part evidence of the truth of Shawn testimony Simmons statement is the of other defendants and other witnesses. The defendants corroborate the same things puts that puts Shawn in her statement in her

testimony. Shawn gang was one of the fellow members not on trial who prosecution. testified as a witness for the necessarily This is not specific compare directive to codefendants’ statements with one an- other. Each defendant’s argu- statement did include references that ably testimony corroborated the of the witness. by Brickley, might jury have been a chance the

If there was prosecutor’s words, of choice misled given by by the final instruction was cured harm the second-degree jury’s judge. of The conviction supports able that was our conclusion murder limited use instruction. heed the

iv minimally redacted state- conclusion, In powerfully not in this case did introduced ments incriminate any particular The defen- defendant. regard- any named, inference were not dants sufficiently ing identity drawn was that could be in the effective- to warrant confidence attenuated the limited use instruction. ness of attempt on Banks, a clear there was not Unlike implicate prosecutor part defen one of the person The who shot victim. dant as the hinge any did not of one defendant conviction nоntestifying from a inference to be drawn an not did statement. statements codefendant’s supply gaps missing any neces or fill in elements sug any sary There was no defendant. to convict gestion have been insufficient there would support defen a conviction had each evidence to separately. of the defendants tried None dant been singled to be convicted out against charge brought first-degree each murder estab in his own statement them. Each defendant necessary to con for lished the elements aiding second-degree murder on an him vict abetting theory.12

that the harmless error ignore defendant. Having Even if we were to it was error each defendant’s admission resolved for the redacted statements this case on the analysis accept employed position inquiry in that is admissible into whether to have been opinion appears dissenting opinion, against the redacted allowed, 568 539 Opinions by Riley, J., Cavanagh, C.J.

We therefore Court reverse decision of the Appeals in these cases and affirm the defendants’ convictions. JJ., Mallett,

Griffin with concurred J. Brickley, (concurring). completely agree J. with Riley, I majority’s analysis under test of admissi-

bility People by majority Banks, in formulated v (1991). sepa- 408; 438 Mich 475 NW2d 769 I write my rately to indicate belief continued this adopt "facially incriminating” Court should provided by test majority for redacted as confessions Supreme of the United States Court in Marsh, 200, v 481 209; Richardson US 107 S Ct (1987). supra 1702; L Banks, 95 Ed 2d 176 See dissenting). majority (Riley, J., 436-447 While the adopted reasoning of this Court in Banks case, Justice Stevens’ in dissent the Richardson dissenting my opinion noted in Banks problem applying federal courts had have no incriminating” "facially test advocated majority. supra Banks, Richardson at 444-445. See e.g., also, 1279, Gio, United v 7 States F3d (CA 1993). J., Boyle, Riley, concurred with respectfully Cavanagh, C.J. I dissent. The rec ord in these cases reveals that a substantial risk powerfully incriminating, day statement was interplay error, leave we for another magnitude between the of incrimination and harmless including the role of a own confession in the defendant’s analysis. harmless error name-only previously my 1 I have voiced dissatisfaction with importance People redactionsand the Banks, of the Confrontation Clause. See v 408; (1991) (Cavanagh, C.J., 438 Mich 475 NW2d 769 concur (lead ring), opinion by People Watkins, (1991) 627; v 438 Mich 475 NW2d 727 C.J.). Cavanagh, Although I still believe in the correctness opinions, positions of those I see no need to those reiterate here. Dissenting Opinion Cavanagh, C.J. jury considered the codefendants’ exists guilt. deciding each defendant’s confessions when admitting these confessions Moreover, the error beyond be- a reasonable doubt was not harmless average juror, indeed, would mind of an cause the significantly prosecution’s less case have found persuasive statements been the codefendants’ ‍​‌‌​​​​​​​‌‌‌​‌​‌​‌‌​‌‌​‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​‌​​‌‍had Accordingly, affirm the decision I would excluded. Appeals. the Court of of

i analy- correctly recognizes, majority theAs governed by Banks, in these cases is sis reason- (1991). While 438 Mich NW2d 408; 475 769 application may of Banks on the able minds differ they certainly facts, differ on the cannot to these rule of law established Banks. now, In the one before us where cases such as through replacement of the redaction is achieved pronoun a neutral or defendant’s name with "blank,” jury will be able to the ease with which a case, depend- vary fill in ing upon it from case to a blank will evidentiary .context in which overall . jury. introduced to the . . of Bru- We therefore return to the basic tenets 1620; States, 123; 88 20 United 391 US S Ct ton [v (1968)]. L Because codefendant state- Ed 2d suspect” "inevitably ments are strong potential because Bruton, supra, shifting, for blame chal- p even redacted confessions like the one presumption with a lenged here should be clothed exists that unreliability. of the If a ’’substantial risk” instructions, cautionary will con- jury, despite out-of-court statement sider codefendant’s guilt, the statement— deciding the defendant’s the defendant’s though redacted to delete even joint at a be rendered inadmissible name —will may, by neces- independent evidence trial. Other Dissenting Opinion Cavanagh, C.J. sity, have be .... considered at 420- [Banks 421. Emphasis added.] underpinning The theoretical of Banks is the questionable reliability of codefendants’ confes- person sions. When one accuses another a crime under circumstances in which the declarant stands gain by inculpating to time others while at same

exculpating pre- himself, the accusation is sumptively subject unreliable and must be However, cross-examination. Banks 427-428. majority today pre- seems that overlooks this sumption unreliability corollary pre- and the sumption against admissibility of such accusаtions in the absence cross-examination.

A determining The central issue in these cases is the ease with which the fill able to in the given "blanks” in the statements, redacted the evidentiary entire context the case. In determin- ing issue, this it is on incumbent us to carefulfly] . specific . . the details dis- examin[e] closed in each codefendant’s statement and

analy[ze] . . . whether may the statement have implicated any of the other defendants when the context of all the during evidence introduced the trial is into taken consideration. at [Ante 550.] conducting After its examination of the redacted majority jury statements, the concludes that "my. could not have filled in "friends” or three "jury friends” with the defendants’ names. The persons could have surmised that other than those might on trial have been the friend or friends referred to when evidence” because so considered the context of the

many gang members were v Frazier Dissenting Cavanagh, C.J. added). (emphasis at trial. Ante at named that the agree have believed could persons other than to were referred "friends” eviden- However, the entire given codefendants. tiary trial, substantial there is a context certainty, bordering risk, on virtual "my or to "friend” a reference conclude that did to a codefendant. a reference friends” was three correctly majority notes, than no less As the twenty gang defen- members, than the four other were All of these dants, present at trial. named were point at some Detroit in downtown important remember, August It 1985. significant crime of this however, events periоd. during twenty-four-hour did not occur They ten-minute five- to about a occurred within p.m. In period 10:30 between sometime 11:00 people trial as mentioned at addition, most of the day being present were times that various at being present mo- the critical at excluded from fatally shot. victim was ment when the primary prosecution’s example, two of For most, gang that, there established witnesses present gang eight at Hart members to ten were shooting, these, and, of time of the Plaza at the participated actively only the four defendants shooting. robbery of these wit- The first "Mimi,” Mary Walker, as also known nesses was concerning following testimony gave who shooting: just before that occurred events you were Foley]: Who Prosecutor [.Assistant with? there down Plaza] [Hart Omar, Lacoya, Shawn [Mary Walker]: Neeta. Lacoya and Shawn

Q. sorry, down with I’m Omar?

A. Yes. 446 Mich 539 Dissenting Opinion by Cavanagh, C.J.

Q. Omar Frazier?

A. Frazier.

Q. And Darnita?

A. Yes.

Q. And who else?

A. James and Chris.

Q. You mean Phillips? Chris A. Yes.

Q. And James Robinson?

A. Yes.

Q. anyone Was talking?

A. Yes.

Q. And talking? who was A. James. Q. talking. James was What was talking he

about?

A. Getting paid.

Q. Getting paid?

A. Yes.

Q. Did he say something after that? [James] A. He asked was anybody going with him. Q. right. All And happened what after he said

that? They

A. left.

Q. Who left? Chris,

A. Omar and Darnita and James. Q. you Do remember how James was dressed day?

A. Yes.

Q. How was he dressed?

A. A jogging white suit.

Q. carrying Was he anything?

A. Yes.

Q. What was he carrying[?] A Gouchi bag. [A.] [sic] Q. A bag. Gouchi anything Was in the Gouchi

bag?

A. I don’t know. Dissenting Opinion Cavanagh, C.J. walked they them as you Did

Q. right. All se[e] the boat? towards they left. then after no attention pay

A. I didn’t they walked time you at the were Q. Now where towards the boat? Sitting spiral

A. [staircase]. you there? was with Q. And who Cocoa. A. Shawn and you? with

Q. anyone else Was her remember Yeah, girl; I don’t fat but A. name. after James happened right. And what Q. All towards went and Omar Darnita

and Chris and the boat? happened? A. What thing you remember Yes, next was the

Q. what happening? we wеre where running towards They

A. back sitting at. you saw before anything heard Q. you Had you? running towards

them back A. Yes. you hear?

Q. did What pop. little A. Just a anyone? you see

Q. pop After the did A. Yes. you

Q. did What se[e]? Chris.

A. James and doing? they were Q. And what sitting. we were Running towards where A. back say anything? right. Did Q. All go. let’s They A. said do? you And did

Q. what station, bus the bus towards A. We ran back stop. Dissenting Opinion by Cavanagh, C.J.

Q. Who you else did get see on the bus? Shawn,

A. James and Chris. prosecution then called Antoinette Sim- mons, also known as "Shawn.” Prosecutor Foley]: anyone [Assistant Did have a

gun at ány night? time that Yes. [Antoinette Simmons]: Q. gun? Who had a

A. James gun had a in the bag. Gouchi Q. In a bag? Gouchi

A. Yes.

Q. you Did gun? see that A. Earlier day, yes.

Q. Where you go did you after left there? A. We heading started towards Hart Plaza. Q. anyone Was you else with at this time?

A. No.

Q. Was James Robinson you? still with A. Yes.

Q. Omar Frazier[?] Yes.

[A.] Q. Was Phillips Chris still you? with A. Yes.

Q. And Darnita McGhee?

A. Yes.

Q. Was Cocoa still you? with A. Yes she was.

Q. And was Mimi still with you?

A. Yes.

Q. Mimi, Who was what is her name?

A. Mary Walker.

Q. you Did go into Hart Plaza?

A. Yes we did. Q. Was any there discussion you there what were going to do? n Opinion by Dissenting Cavanagh, C.J. James, Chris, Darnita was Omar A. Well night, they was paid that

talking getting about robbing somebody the Lands- from talking about down boat. they did do then? right.

Q. All What I then asked for a minute and sit there A. We they going and he said was where James [he] towards, walking towards going Landsdown. got into goI or we an him can I asked fight. had a argument and we little fight? in that Q. happened What go. I couldn’t slapped me and told A. He go ... to with Q. You asked h[i]m?

A. Yes did. slapped and told you he happened after Q. What you go? you couldn’t and I going the boat sit They

A. started towards spiral staircase. there on street the Landsdown Res- Q. Who went down towards taurant? James, Chris, Darnita.

A. Omar and gun? Q. Who had the A. James had in the case. still gun you saw the you you or Q. Do mean saw case? I case.

A. seen the

Q. James had case?

A. Yes. you had seen the Q. That the case in which was earlier, gun that correct? handle A. Yes. you James and Q. you see after saw What did Phillips walking and Omar and Chris

Darnita towards the Landsdown Restaurant? thing Chris I know James and A. next Wel[l] walking

was ahead. Q. Walking ahead where? (cid:127) Dissenting Cavanagh, C.J. A. they Ahead of Darnita and Omar and was

going [g]ames towards the boat like it was some there, game over up, the basketball and the crank they going way. was around towards that

Q. walking way? You saw them A. Yes.

Q. thing you Then what is the next saw? water, A. going I seen Neeta then towar[d]s they a up they come back and itup when come was couple in front white of them. Q. you they up, When saw them came where did you where up, you them point see come can on the sketch coming you up? saw them They coming

A. inup here.

Q. coming up Who was in there? James, Chris, Omar, A. and Darnita a white couple. Q. right. Where was James and Chris in Al[l] relation to couple the white at that time? They

A. was behind him like he was a few feet behind them. Q. right. All Where were Omar Darnita at

that time?

A. They up this area.

Q. they Were on the sidewalk? A. Kitty-corner Yes. on the ‍​‌‌​​​​​​​‌‌‌​‌​‌​‌‌​‌‌​‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​‌​​‌‍sidewalk. She was grass half on the and half on the sidewalk.

Q. Omar and Darnita were?

A. Yes.

Q. you And what did next? see couple they up Well seen the white split [A.] up little bit and walked all a sudden thing next I seen sparks gün from come everybody running. started Q. happen[e]d you What after heard the shots? towards, A. Everybody running just started to- wards, spiral back towards the staircase. v Frazier Dissenting Cavanagh, C.J. running? Q. four of them started All A. Yes. they ran towards

Q. happened as What spiral staircase? and got there James everybody A. when Wel[l] clothes.

Tony Quarles switched you clothes? Q. do mean switched What James had and on and Tony Quarles jacket A. had a another, suit on on. had white track one He towards jackets everybody went they changed the bus and stop. got you after

Q. happened . . . And what stop? bus Me, got bus

A. and Chris James house. his sisters went to Q. house? To whоse sisters A. James sister. go directly?

Q. there you Did A. we Yes did. testimony and Walker was Simmons both

impeached by statements various inconsistent previously Nevertheless, the substance made. had testimony the redacted was confirmed of their statements dant McGhee themselves. Defen- of the defendants police: to the noted her statement " everyone kind of got to Hart Plaza 'When we upmet . . . . We all split up and around walked again was talk again spiral seats. [T]he Shawn, paid. my friends told getting One of about them, indicating girls. And Shawn go you with Tony me and Cocoa got Mimi and Shawn There was mad. my others. One and three slapped Shawn because got real mad and friends paid. they got him when be with she wanted Cocoa started she down because to calm Shawn bag, I my friends had a hysterical. . . . One of if the know designer bag, but I don’t think it was Cocoa, Shawn bag. ... I could see gun inwas Dissenting Opinion by Cavanagh, C.J. spiral and Tony Mimi near seats and was . my further towards Ford Auditorium. . . of One hook, yelled get everyone friends the hell out of running here. We were all Tony towards Jefferson. gave and one of my changed Tony friends coats. my Georgetown friend his coat my blue friend ” gave Tony Georgetown his white coat.’ [Ante 556-557.]

Defendant Frazier’s statement contained the fol- lowing comments: " 1985, August 'About 9:30 I was [at] p.m., the Be up up Hart Plaza and met with members gang spiral Like around the I cement area. met eight persons. with or person nine other One bag

had a Gucci had sold him earlier and he had bag. blue steel revolver . . . When we got finally us.’ to the boat restaurant six there was ” Emphasis at 558. [Ante аdded.] Similarly, in one of the statements that defen- police dant Robinson made to the he commented as follows: " got T downtown about around nine in the morning. five, Around thirty about four or that’s everybody

when meeting up. Cocoa, started It was Me, Bop, girls, two Cocoa and Shawn and two other It friends. was some more Be Like down there, there just me, but was down just it was Cocoa, Shawn, Bop and three other . . . friends. just Then kept walking we towards festival people had got dulled off and the time we to the just us, festival four of three friends and ”me.’ Emphasis at 561. [Ante added.] prosecution witness, Moore, Another Labron also "Bop,” group large known as testified of Be perhaps many fifty, Like, as as were downtown on night question. testimony confirms, His Dissenting Cavanagh, C.J. large group however, the murder that before groups. split three smaller into two or gang twenty-odd members Thus, out of defendants, trial, three at least named at Walker, group agree that Moore2 all Simmons present actually at Hart Plaza twenty considerably night than less consisted probably people than of no more consisted eight, eight. named and Simmons Walker those Of participating only in the four defendants as crime.3 defendants these four is doubt There no specifi- many "friends,” were of whom several

had cally true, with almost at trial. It is also named living people Detroit, to a a reference in million anyone. However, theoretically could "friend” be testimony light of and the in of all evidence themselves, Walker, Simmons, defendants defen- friends” the it is the "three obvious very spoke cоnfessions were of their dants same "friends” sitting alongside them at de- fense table. facilitating which the

Also the ease with that when a is the fact could fill the blanks admittedly at nondefendant defendant identified a (i.e., Cocoa, Walker, Simmons, or Hart Plaza Tony), Thus, in. out that name was left . easily eight, juror possible could exclude a studious leaving thereby individuals, an the other named ap- ever-decreasing for the of candidates number "my pellation friends.” More- or three "friend” allowing over, redacted statement before first following evidence, the trial court issued into instructions:_ 2 large group divided To extent that Moore testified groups. smaller

into places Sim Coincidentally, both McGhee’s statement defendant Plaza, Robinson’s statement Hart and defendant and Walker at mons places Simmons there. Dissenting Opinion Cavanagh, C.J. prosecutor

"What have ordered the to do is to redact, strike, a fancy lawyers phrase, use scratch going out. This is to be done all afternoon. "Any statement applicable other than [what] individual, to that if they any make to reference names, any other I said strike it out. I don’t want you about it. guess speculate, or worry don’t or consider designed

This is utilized you to have focus first all or they whether not made the secondly only statement and applies also as it individual, that ment and how you they if believe made the state- much it made.

"You going are phrase my hear a called friend. There is a lot of different names. Don’t [sic] worry friends, speculate or my plural or if there person. are more thаn one too, say

"Understand I meant to this the names struck do als on necessarily not even reflect the individu- . . .

trial .” n [Ante 8.] logical conclusion to the trial court’s instruc- although tion is that the names struck do not necessarily they may. By defendants, refer to the giving virtually instruction, this the trial court jurors very assured that would make the con- urging nection that was them not to make. This inevitably ju- instruction must have rors’ aroused the curiosity, curiosity only that could be satis- by filling by fied in the blanks created the redac- my tions. As I said concurrence in Banks: jurors presented When joint with a trial of — several codefendants and a by confession co- one defendant which refers to one or accomplices more identified only pointedly as "blank” —are in- structed not dence to consider that confession as evi- against accomplices on trial with the confessor, it would be almost an insult to their intelligence to suppose that would not deduce Remand). Dissenting Cavanagh, C.J. the other defendants. "blanks” are indeed that the 434.] [Banks at B Phillips Frazier, for defendants If the situation bad, did not defendant Robinson McGhee was and enjoy sporting would that a chance even urged it to the court the connection fail make witnesses identified nondefendant avoid. Several bag. having All the a Gucci Robinson as defendant their to one of referred codefendants’ statements bag. having Gucci Shawn Simmons as a "friends” also recounted testimony that she and in her argument and that Robinson had an Robinson slapped redacted state- In McGhee’s her. defendant " my got says friends real '[o]ne that ment she slapped ....’” Ante 556. and Shawn mad sister, worse, Robinson’s To make matters impeached she Mainor, a statement Wanda made police. she said that In statement August of 1985 and her in lived with Robinson that he came night on the of the mur- home late very upset. testified that Simmons der and was got Phillips shooting, Robinson, she, after house. sister’s a bus and went Robinson’s " got Phillips 'my bus] off [the friend also testified: caught bus to his sisters the Livernois ” Ante at 560. house.’ Furthermore, that Robinson Simmons testified changed Tony Robin- Quarles and that coats with wearing statement a white coat. McGhee’s son was " gave my 'Tony his blue friend recounts Tony my gave Georgetown his friend coat ” Georgetown Ante at 557. white coat.’ leap It of faith to believe takes actually know, let alone that substantial not did Dissenting Opinion by Cavanagh, C.J. existed, sister, risk with the "friend” bag, one who carried the Gucci the one who slapped changed Tony Simmons and coats with Quarles, piece not James And Robinson. with one complete, puzzle simply

of the it is a matter to determine who the other "friends” were. Once "friend,” James Robinson is identified as a only leaves two other "friends” be identified particular other than the maker of each state- ment.4

Having "friend,” identified one I think that very risk is substantial that the considered all deciding the codefendants’ when statements each guilt. defendant’s

c proofs any If at the close of the there were lingering part jury regarding doubts on the who the "friends” were in the redacted confes- surely dispelled by pros- sions, were closing arguments. closing argu- ecutor’s In thоse prosecutor repeatedly urged ments, testimony, evidence, all consider and redacted confessions as a whole. Cripps Now Mr. guess I attorney] [defense [he]

feels that Shawn Simmons is the heart of my case. disagree respectfully must with him. The heart my Robinson, case are Phillips, James Christian Omar Frazier and Darnita McGhee. And it their words, own not someone else’s words but their own words .... in It is put their own words which them Hart August Plaza this event on 1985. counsel, O’Connell,

One I believe Miss mentioned place that Mrs. Weatherhead did not anyone spiral steps. quite That’s true. 4Excluding Robinson’s own statement. Cavanagh, C.J. Dissenting nothing anyone about testimony she said In her again is where spiral steps. But this

being on the are the heart of themselves defendant’s the the case and them [sic] against damaging evidence -the most spoken by defendant’s themselves. eight up with or admits he met Omar spiral cement in the of the Be Like’s nine [sic] area. So, who estab- it is the defendant’s themselves where being place and spiral seats as lish the the people sitting. were of the truth of evidence probably But best is the statement part Shawn Simmons any and other witnesses. testimony of other defendants things that the same The defendants corroborate Shawn testimony. in puts her puts in her statement and fit at all you But when look stor[i]es details, they important together, them all all whole, They a whole They connect. make match. that tells the story. constructing his vigorously The prosecutor, trial, urged from the evidence established case as a whole. all the confessions jury consider concur- my I voiced in exactly This is concern in Banks. ring opinion places special em- I note that Justice Griffin closing prosecutor’s on the fact that

phasis argument redaction. the effectiveness tended to erode ante, pp fully I 423-427. See note that regard, this but would agree ... in joint inevitably every will exist tendency this trial superficially redacted co- with one or more confessions, conscien- no how matter defendant Emphasis is. at 435. prosecutor tious [Banks added.] Dissenting Opinion by Cavanagh, C.J.

I believe case confirms this that concern.

D I conclude that a risk substantial exists that the jury considered the codefendants’ confessions when deciding respective guilt contrary each defendant’s my opinion, to Banks. In it could not have been any correctly easier for the fill in the given codefendants, blanks with the names of the all the evidence adduced at trial. The record this case makes it clear that could have easily concluded that the word friend in a codefen- dant’s defendant, statement referred to another degree sufficiently because the of inference was not attenuated.

ii Having concluded that there is a substantial risk that the considered the codefendants’ deciding out-of-court statements dant’s each defen guilt, requires inquiry Banks an into beyond whether that error was harmless a reason beyond able doubt. An "error is harmless a reason only properly able doubt” when the admitted evi guilt overwhelming prejudicial dence of is and the insignifi effect of the codefendant’s admission is making cant. Id. at 427. determination, When this proper "average it to consider whether juror” prosecution’s would have found the case significantly persuasive less had the confessions been Id. excluded. at 430.5 Florida, 427, 430; 1056; See also v Schneble 405 US S92 Ct 31 L (1972): Ed 2d 340 properly guilt In some cases admitted evidence of is so

overwhelming, prejudicial and the effect of the codefendant’s insignificant by comparison, admission is so it is clear Dissenting Opinion Cavanagh, C.J. error was I find it difficult conclude admitted the other evidence harmless because "overwhelming,” against not was these defendants prejudicial of the confession nor effect shooting "insignificant.” Most witnesses fleeing reported seeing or black males two three fleeing. got good those Plaza; no look at Hart one companion and the that she The victim’s testified males, but that victim two black were accosted identify any positively of the defen- she not could dants as two. identify positively

Simmons and Walker did perpetrators. However, four defendants as impeached severely testimony that, in their was so corroborating confessions, absence of defendants’ virtually testimony un- been their would have eyewitness Thus, believable. there were no credible perpetrators. identifications of though Furthermore, each even statement against maker, remem- admissible its must be being the that no admitted actual bered defendant actually admitted All shooter. defendants they or that was either that were lookouts present just happened time of the to be guilt or The evidence of each individuаl’s murder. the therefore, not, overwhelm- extent thereof was ing judged solely by It their confessions. when overwhelming only four state- when all becomes the are as a state- ments considered whole. When prosecutor urged considered, the ments are so as during closing arguments, it is the obvious group the them four acted as a one of actually Trooper Thus, Hutchins. all could be shot abetting aiding guilty found under the law of trigger. regardless pulled actually of who improper beyond of the admis- a reasonable doubt that use sion was harmless error. Opinion by Dissenting Cavanagh, C.J. confessions, It clear that without prosecution’s "significantly case would been have persuasive” juror average less in the mind of the primary because confessions were the evidence directly linking these defendants to this crime.6 Therefore, I cannot conclude that error beyond harmless a reasonable doubt. reviewing cases,

After entire record these I conclude that a substantial risk exists that jury considered the codefendants’ confessions when deciding guilt. each defendant’s also conclude admitting that the error in the confessions was not beyond harmless a reasonable ‍​‌‌​​​​​​​‌‌‌​‌​‌​‌‌​‌‌​‌‌​​​​‌​‌​​‌‌‌​‌‌‌‌​‌​​‌‍doubt because average juror, indeed, mind an would have prosecution’s per- significantly found the case less suasive had the codefendants’ been statements Therefore, excluded. I would affirm the decision of Appeals. the Court of concurred with

Levin, J., Cavanagh, C.J._ statements, exhibits, 6 I evidentiary also note that all the as were during taken into room deliberations.

Case Details

Case Name: People v. Frazier

Court Name: Michigan Supreme Court

Date Published: Aug 29, 1994

Citation: 521 N.W.2d 291

Docket Number: Docket Nos. 94507-94510, (Calendar No. 1)

Court Abbreviation: Mich.