Lead
Defendants were convicted of first-degree premeditated murder following a joint trial before one jury. The Court of Appeals reversed defendants’ convictions on the bases that the admission of each codefendant’s statements to the police against the other was a violation of Bruton v United States,
We agree with thе Court of Appeals that defendants’ Sixth Amendment confrontation rights were violated. However, we disagree with the Court of Appeals that the error warranted reversal of defendants’ convictions. Unpreserved, constitutional errors are reviewed for plain error affecting substantial rights. Because defendants have failed to show reversible prejudice, actual innocence, or that the confrontation error “ £ “seriously affect[ed] the fairness, integrity or public reputation” ’ ”
FACTS AND PROCEDURAL HISTORY
On March 23, 2002, three-year-old Destiney Thomas sustained a fatal gunshot wound as the result of a drive-by shooting. The prosecution charged defendants Cedric Pipes and Julian Key with first-degree premeditated murder,
Pursuant to MCR 6.121(C),
The trial court denied defendants’ motion, determining that defendants could not make the requisite showing of prejudice necessary to sustain the motion. The trial court concluded that although defendants’ proposed defenses involved blame shifting, they were not “mutually exclusive.” Furthermore, the trial court specifically noted that, given defendants’ offer of proof, no Bruton problem was present in this case. If the codefendant testifies at trial, then his statements to the police are admissible because the maker of the statements is subject to cross-examination. The trial court relied on the offers of proof presеnted by both defendants where each unequivocally stated his intention to testify at trial. The trial court noted multiple times its determination that no Bruton problem was present because both defendants planned to testify.
The prosecution’s theory at trial was that the victim died in a drive-by shooting that resulted from a territorial dispute between
The trial court admitted into evidence multiple statements given by both defendants to the police.
After the prosеcution presented its case-in-chief, the trial court inquired of defendants regarding how they planned to proceed. At that point, counsel for each defendant equivocated regarding whether his client would testify. The trial court acknowledged that defendants were free to not testify, but reiterated that its denial of their motion for separate trials and juries was specifically premised on the unequivocal offers of proof that defendants would testify at trial.
Ultimately, however, defendants exercised their Fifth Amendment right and did not testify at trial.
The Court of Appeals reversed defendants’ convictions and remanded for new trials.
The prosecution sought leave to appeal in this Court. After directing the parties to address whether the offers of proof by defendants waived any right to claim a confrontation error, we heard oral argument on whether to grant the application or take other peremptory action permitted by MCR 7.302(G)(1).
STANDARD OF REVIEW
Constitutional questions, such as those concerning the right to confront witnesses at trial, are reviewed de novo.
ANALYSIS
In Bruton, the United States Supreme Court held that a defendant is deprived of his Sixth Amendment right to confront witnesses against him when his non-testifying codefendant’s statements implicating the defendant are introduced at their joint trial.
In Cruz v New York,
We agree with the Court of Appeals that a Bruton error occurred in this case.
To determine whether the Bruton error warrants reversal, we must first identify the proper standard of review to be applied in this case. In People v Carines,
The other inquiry of consequence is whether the issue was preserved at trial. In order to properly preserve an issue for appeal, a defendant must “raise objections at a time when the trial court has an opportunity to correct the error... .”
Under the plain error rule, defendants must show that (1) error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected a substantial right of the defendant.
The next question then is whether the Bruton error affected defendants’ substantial rights. Stated otherwise, the error must have been outcome determinative. Relying on Bruton, Cruz, and this Court’s decision in People v Banks,
We disagree. The Court of Aрpeals failed to give sufficient weight to the evidence that was properly admitted against each defendant, particularly the proper admission of each defendant’s self-incriminating statements, and therefore erroneously reversed defendants’ convictions. As held in Cruz, it was not error for each defendant’s own confessions to be admitted against that defendant.
Given each defendant’s statements, there is little question of actual innocence with regard to the first-degree murder convictions. This Court has recognized that “[o]ften.. . when the defendant confesses, there can be little doubt concerning his guilt.”
Furthermore, other probative and properly admitted evidence at trial corroborated defendants’ confessions. One witness, who was on the front porch of the victim’s residence at time of the shooting, testified that a green Jeep Cherokee pulled in front of the house and someone opened fire from the passenger side of the vehicle. The witness, who was a friend of defendant Key, testified that the vehicle was similar to the vehicle Key was known to drive. Another witness, who was walking toward the victim’s house, testified that he was approximately one block away from the house when he heard gunfire. After the gunfire ceased, the witness observed a green Jeep Cherokee headed toward him at a “kind of fast” pace. From a distance of ten to 12 feet away, the witness positively identified both defendants in the green Jeep Cherokee, driving in the opposite direction from the scene of the crime. The witness was familiar with both defendants, and testified that Key was known to drive a green Jeep Cherokee. Another witness, who was оn the side of the assaulted house at the time of the shooting, testified that he observed a small blue car and a green Jeep Cherokee drive to the residence. The witness ran toward the alley as soon as he observed a gun being pointed at the residence from the small blue car. The witness did not observe the gunshots being fired.
Key’s girlfriend testified that she owned a green Jeep Cherokee and that she allowed defendant Key to drive her automobile “almost daily.” At the time of the shooting, she was out of town and returned to find her vehicle missing.
An inconclusive amount of gunshot residue was found in the Jeep. However, shell casings and bullet fragments collected at the scene of the crime were consistent with an AK-47 rifle. Two Detroit Police officers testified that the information provided to 911 operators implicated a green Jeep Cherokee with a partial license platе number of 341. The officers testified that the “numbers were inverted,” because the license plate sequence on the green
This evidence, coupled with each defendant’s own highly self-inculpating confession that was properly admitted against the defendant who made the statements, provided strong evidence of guilt from which the jury could convict these defendants. In light of this overwhelming evidence of guilt, the prejudicial effect posed by the Bruton error was minimal, and therefore the Bruton error was harmless.
Under plain error review, reversal is only appropriate when the plain error that affected substantial rights “seriously affected the fairness, integrity, or public reputation of the proceedings” or when the defendant shows “actual innocence.” In this case, for the same reasons that we find that defendants cannot show prejudice, defendants cannot show that the error “seriously affected the fairness, integrity, or public reputation of the proceedings” or that they are actuаlly innocent. The properly admitted evidence of guilt, including each defendant’s own highly self-inculpating confession as properly used against him, was sufficient to render the Bruton error harmless. Indeed, it would be the reversal of convictions for error that did not affect the judgment that would seriously affect “ ‘the fairness, integrity or public reputation of the judicial proceedings.’ ”
CONCLUSION
The Court of Appeals erred in reversing defendants’ first-degree murder convictions. Defendants failed to object or move for a mistrial on Bruton grounds. Therefore, defendants failed to properly preserve the Bruton error for appeal. The Court of Appeals should have reviewed this unpreserved, constitutional error for plain error affecting defendants’ substantial rights. Because defendants failed to show prejudice requiring reversal, actual innocence, or that the error seriously affected the fairness, integrity, or public reputation of the trial, reversal was not warranted in this case. Accordingly, we reverse the Court of Appeals judgment and reinstate defendants’ first-degree murder convictions.
Notes
Id. at 126.
People v Cannes,
MCL 750.316(l)(a).
MCL 750.83.
MCL 750.227b.
Defendant Pipes was also charged with being a felon in possession of a firearm. MCL 750.224f(l).
MCR 6.121(C) provides that “[o]n a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”
In People v Hana,
Under Hana, a Bruton error may provide grounds for severance. Id. at 346 n 7; Zafiro v United States,
The first proceeding ended in a mistrial. Before the commencement of the second trial, which is the subject of the present appeal, counsel for defendant Key asked that the earlier motion for separate trials or juries be reconsidered. The trial court declined tо reconsider the motion, noting that none of the circumstances had changed.
The trial court instructed the jury that each statement was only to be considered against the defendant who made the statement. The jury was instructed on this point when the statements were admitted into evidence and when the trial court gave final jury instructions. However, as explained infra, such instructions do not cure a Bruton error.
Defendants then rested. They presented no evidence or witnesses.
Unpublished opinion per curiam of the Court of Appeals, issued May 31, 2005 (Docket Nos. 247718, 247719).
People v Hickman,
People v McNally,
Id.
Id.
Bruton, supra at 126.
Id.
Id. at 135.
Id. at 77-81. Three justices dissented, and Justice Powell did not participate in the case.
Cruz, supra at 193.
Id.
Id. at 194.
The Supreme Court’s recent decision in Crawford v Washington,
There is a “ ‘ “very limited class of cаses” ’ ” involving “structural errors” where errors are so “intrinsically harmful, without regard to their effect on the outcome, so as to require automatic reversal.” People v Duncan,
“\ye reject the notion that a Bruton error can never be harmless.” Brown v United States,
Cruz, supra at 194.
Carines, supra.
People v Grant,
Id. (Internal citations and quotation marks omitted); Cannes, supra at 761.
Defendant Pipes did object to the introduction of one of his own statements because he had refused to sign it. Howеver, this objection did not raise or preserve the Bruton error. See MRE 103(a)(1).
Absent an express waiver by defendants of their Fifth Amendment rights, we agree with the Court of Appeals majority that the trial court should not have relied on defendants’ representations that they intended to testify at trial when deciding whether to grant separate trials or juries. We reject the Court of Appeals dissent’s argument that defendants waived the Bruton error. See People v Riley,
Any othеr conclusion would be contrary to the rule that defendants cannot “harbor error as an appellate parachute.” People v Carter,
Carines, supra at 774.
Carines, supra at 763.
Id.
Id. at 763 (internal citations and quotation marks omitted); United States v Olano,
See also MRE 801(d)(2)(A), which provides for admission at trial of party admissions.
Cruz, supra at 194.
People v Dunn,
Id. at 423, quoting Arizona v Fulminante,
See MCL 767.39. The jury was instructed regarding the elements required to find guilt under an aiding or abetting theory.
The witness testified that her automobile was parked at her residence when she left town, and that defendant Key did not have permission to drive her automobile on the weekend the shooting occurred. A second set of car keys was missing from the witness’s residence.
Carines, supra at 773, quoting Johnson, supra at 470.
Dissenting Opinion
(dissenting). I believe that this case represents a textbook example of when separate trials or seрarate juries should be used. I agree with the majority that Bruton v United States,
However, I disagree with the majority’s conclusion that this violation was not plain error that affected defendants’ substantial rights. If the statements by each codefendant are not considered, the evidence is not overwhelming. No witness was able to identify who was actually responsible for the shooting. There were varying accounts of the vehicles involved in the shooting. And the jury’s uncertainty about who was the shooter is evident in the jury’s failure to convict either defendant
Further, the effect on the jury of hearing each codefendant’s unchallenged statements was great. See, e.g., Bruton, supra at 135-136. Each defendant’s statements minimized any role he may have played and maximized the other defendant’s role in the shooting. Moreover, hearing these unchallenged and inculpatory statements essentially rendered futile defendants’ questioning of police officers, as well as contentions made during closing argument, that called into question the validity of the alleged statements made. The jury was unlikely to question the validity of the statements allegedly made when it heard that they were supported to some degree by statements made by each defendant’s codefendant. Accordingly, I believe the Bruton violation was plain error that affected each defendant’s substantial rights, and I would affirm the decision of the Court of Appeals and remand each case for its own new trial.