Lead Opinion
Daniel D’Angelo Jackson appeals his convictions for murder and armed robbery. He argues he was denied his Sixth Amendment right of confrontation when the trial court admitted the redacted statements of his nontestifying codefendant Reginald Canty. We reverse.
I. Facts and Procedural History
On the night of January 12, 2008, William Flexon was shot twice and killed while delivering pizzas to lot seven in O.C. Mobile Home Park in the Cherryvale area of Sumter. Law enforcement officers found Canty walking nearby shortly after the shooting. Canty agreed to speak with the officers, and between January 13 and 25, he gave six statements.
In his statements, Canty described his and Jackson’s role in the events leading up to Flexon’s death.
The State charged Jackson and Canty with murder and armed robbery and called them to trial together. Jackson filed a pretrial motion to sever the trials, arguing that if the State introduced Canty’s statements at trial and Canty did not testify, the admission of the statements would violate Jackson’s constitutional right to confront and cross-examine Canty. See Bruton v. United States,
The State presented testimony and evidence establishing that Jackson and Canty acted together to lure a pizza delivery man to a vacant trailer at O.C. Mobile Home Park and rob him there. The owner of Sambino’s Pizza Restaurant testified that on the night of January 12, a man called and ordered three large pizzas. The unnamed man told her he was calling from a pay phone, and he requested the pizzas be delivered to lot number seven in O.C. Mobile Home Park. A custodian of telephone records subsequently testified the call to Sambino’s was made from the pay phone at Cherryvale Grocery.
Eugene Mackovitch testified he was working at Cherryvale Grocery the night of January 12. He recalled two African-American men — one darker-skinned and the other fairer-skinned — entered the store together, and he sold one of them a Little Debbie snack cake. During his testimony, the State
The State presented two "witnesses who identified by name the two men shown in the video. Anitta Shannon, another employee of the grocery store, testified she personally knew Jackson and identified him as the individual buying the Little Debbie snack cake. Sergeant Robert Burnish of the Sumter County Sheriffs Office — the chief investigating officer on the case — identified both Jackson and Canty as the men in the video.
Later, the State sought to introduce Canty’s statements. Jackson requested the trial court review the third, fourth, fifth, and sixth statements, and the court held a hearing outside the jury’s presence. The State proposed to redact the four statements by replacing Jackson’s name with “another person,” and the court found this redaction satisfied the requirements of Bruton. Jackson objected on the basis that admitting the statements violated his right to confront and cross-examine Canty. He argued that even with the State’s proposed redaction, the statements were “still going to lead to inferences ... that it might be my client that he’s referring to.” The court overruled Jackson’s objection.
Investigator Dominick West of the Sumter County Sheriffs Office then read the redacted versions of the four statements to the jury. He did not say Jackson’s name, but instead said “another person” or “the other person” wherever Jackson’s name appeared in the statements. Canty’s redacted statements described how “another person” (1) asked Canty if he wanted to participate in robbing a pizza man; (2) told Canty to get Desmond to take them to Cherryvale Grocery; (3) used the pay phone to call Sambino’s and order three large pizzas, requesting delivery to lot seven in O.C. Mobile Home Park; (4) bought a “Debbie snack cake donut sticks”; (5) returned to the mobile home park with Canty; (6) went behind the trailer on lot seven and waited for the pizza man to arrive; and (7)
Sergeant Burnish testified about his investigation of the crimes and read the original, unredacted versions of Canty’s first and second statements to the jury.
After Sergeant Burnish testified that Canty made his third statement on January 15, Sergeant Burnish explained:
Q: You were not there when Mr. Canty gave a statement on the 15th?
A: I was in the building; I was not present for that statement.
Q: Now, what happened and what did you do next in your investigation?
A: Based on the information that was received on that date is when we issued warrants for the arrest of Mr. Jackson.
At the close of the State’s case, Jackson moved for a mistrial on the basis that admitting Canty’s statements violated his right to confront and cross-examine Canty. The trial court denied Jackson’s motion. Neither Canty nor Jackson testified. After Canty and Jackson presented their defenses, Jackson renewed his mistrial motion, which the court again denied.
The State presented no direct evidence of the events that occurred after Canty and Jackson left the grocery store, except Canty’s statements. In particular, no eyewitnesses to the shooting testified. However, circumstantial evidence linked Jackson to the crimes. Both Investigator West and Sergeant Burnish testified they interviewed Jackson after his arrest, and Jackson “said how could I be charged with armed robbery if I didn’t steal anything from the pizza man.” Jack
The State also presented Jackson’s aunt, Andrea Russell, who testified Jackson “spent a few days” at her apartment in January 2008, although she could not recall exactly when. She later found underneath her couch a rifle that she remembered Jackson brought with him when he arrived. At trial, she identified it as the rifle the State introduced in evidence. The State’s firearms expert, referring to the rifle Russell found in her apartment and a bullet fragment removed from Flexon’s body, testified “this gun fired that bullet into William Flexon.” The firearms expert also testified a shell casing Russell found in her apartment was fired by the same rifle. The jury found Jackson and Canty guilty of murder and armed robbery. The trial court sentenced Jackson to life in prison for murder and thirty years in prison for armed robbery.
II. Admission of Canty’s Statements Violated the Confrontation Clause
The Confrontation Clause of the Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to confront and cross-examine the witnesses against him, and the Fourteenth Amendment applies this right
Jackson argues the admission of Canty’s statements violated his right of confrontation. He contends that even as redacted, the statements allowed the jury to infer that Canty was referring to Jackson. The law requires a court to carefully analyze “the exact words used for redaction ... in context to determine whether the reference to the defendant was adequately obscured” to avoid a Bruton violation. State v. Holder,
The application of Bruton, Richardson, and Gray to redacted statements that employ phraseology such as “other individuals” or “another person” requires careful attention to ... the text of the statement itself and to the context in which it is proffered. The mere fact that the other defendants were on trial for the same crimes to which the declarant confessed is insufficient, in and of itself, to render the use of neutral pronouns an impermissible means of redaction. A particular case may involve numerous events and actors, such that no direct inference plausibly can bemade that a neutral phrase like “another person” refers to a specific codefendant. A different case may involve so few defendants that the statement leaves little doubt in the listener’s mind about the identity of “another person.” In short, each case must be subjected to individualized scrutiny.
United, States v. Vega Molina,
Evaluating the content of Canty’s redacted statements in context, we find the admission of the statements violated Jackson’s right to confront and cross-examine Canty.
1. The Little Debbie Snack Cake
Canty’s redacted statements contain one specific detail about the person he referred to as “another person” and “the other person,” and because of that detail “the reference to [Jackson] was [not] adequately obscured,” Holder,
Moreover, the witnesses testified the video shows one of the men in the store to be a darker-skinned African-American and the other man to be a fairer-skinned African-American. Mackovitch testified “it was the fairer-skin African-American male that purchased the snack cake.” While the jury was listening to Canty’s statements that “another person brought a Debbie snack cake donut sticks” and “the other person brought a Debbie snack cake,” it could see at the defense counsel table Canty and Jackson, the same two people the witnesses had distinguished by the difference in their complexions. In this context, Canty’s statements informed the jury that the fairer-skinned man in the video was the same person who (1) asked Canty if he wanted to participate in robbing a pizza man; (2) told Canty to get Desmond to take them to Cherryvale Grocery; (3) used the pay phone at the store to call Sambino’s and order three large pizzas, requesting delivery to lot seven in O.C. Mobile Home Park; (4) bought a “Debbie snack cake donut sticks”; (5) returned to the mobile home park with Canty; (6) went behind the trailer on lot seven and waited for the pizza man to arrive; and (7) robbed and shot the pizza man, while Canty watched from his house.
We agree that because the State redacted Canty’s statements to remove Jackson’s name, a juror hearing the statements would have to consider evidence outside the four corners of the statements, and draw an inference from the statements in combination with the other evidence that Canty was referring to Jackson. As our supreme court explained in Henson, however, “Richardson did not turn on whether the confession admitted required an inference in order to incriminate the defendant, but on the kind of inference required.”
Other courts have applied this standard to determine whether a statement incriminates a codefendant on its face despite the necessity of the jury drawing an inference. See, e.g., United States v. Green,
The evidence in this case meets the Gray standard for a Bruton violation because the statement “obviously referred] directly to someone,” and the Little Debbie cake reference would cause the jury to immediately infer it was Jackson. Gray,
The State also argues, however, “The reference to the purchase of a Little Debbie snack cake ... would not be read to refer obviously to Jackson even if the statements were the first piece of evidence at the trial.” (emphasis added). The State bases this argument on the remainder of the sentence
The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.
Id. Based on this sentence, the State argues, “Any significance to the purchase of a Little Debbie cake had to be developed through the trial evidence.”
In Henson, our supreme court found a Bruton violation because “the jury could infer from the face of Reid’s confession without relying on any other evidence, that the confession referred to and incriminated Henson.”
Other courts have relied on evidence outside the four corners of the codefendant’s statement to find a Bruton violation. In United States v. Hoover,
We discuss Hoover not because it is directly on point,
Thus, we do not agree with the State’s argument that this court may not consider other evidence in determining whether Canty’s statements incriminated Jackson. Rather, the question before us is whether “the exact words used for redaction,” in context with other evidence, “adequately obscured” “the reference to the defendant,” Holder,
2. The Redaction of the Statements
The manner in which Canty’s statements were redacted and the number of instances where Jackson’s name was removed exacerbate the Bruton problem. Canty describes how “another person I know by another name came up to me and asked whether I wanted to be a part of robbing a pizza man.” He also states he knew “[ajnother person was one of the males, and I didn’t — and I don’t know who the other two were.” These clumsy substitutions invite the jury to speculate about the identity of the unnamed person Canty implicates in his statements. The Supreme Court discussed this effect in Gray, explaining “the obvious deletion may well call the jurors’ attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession’s accusation — once the jurors work out the reference.”
The phrase “[a]nother person was one of the males,” followed by “I don’t know who the other two were,” makes it clear Canty did know who “another person” was, and indicates that person’s identity was intentionally removed from his statement. See Gray,
We also find the frequent repetition of “another person” and “the other person” causes those phrases to lose their effectiveness in obscuring Canty’s references to Jackson, and makes it more likely a jury would realize the original statements incriminated Jackson. Altogether, these phrases appear more than thirty times throughout Canty’s six statements. The substituted phrases are not intertwined into the narrative structure, and they disrupt the syntax of the sentences. This excessive repetition creates an unnatural prose that draws the listener’s attention to the redaction. Thus, a juror hearing the phrases would likely believe Canty’s statements originally contained an actual name. See United States v. Williams,
3. The State’s Reliance on the Statements
The State relied heavily on Canty’s statements in arguing Canty committed the crimes. In so doing, the State asked the
This is particularly true given that the State prosecuted Canty for murder under the accomplice liability doctrine of the hand of one is the hand of all. Under the hand of one doctrine, “one who joins with another to accomplish an illegal purpose is liable criminally for everything done by his confederate incidental to the execution of the common design and purpose.” State v. Reid,
4. Unpreserved Issues
There are two additional issues, either of which possibly warrants reversal under Bruton, but neither of which is preserved for our review.
The first unpreserved issue involves Sergeant Burnish’s testimony about his investigation of the crimes and Jackson’s arrest. Sergeant Burnish described how he and Investigator West picked up Canty on January 15 and took him to the law enforcement center for questioning. There, Canty gave a statement to Investigator West. Sergeant Burnish explained he was not present when Canty gave this statement, but “was in the building.” The solicitor then asked, “what happened and what did you do next in your investigation?” Sergeant Burnish answered, “Based on the information that was received on that date is when we issued warrants for the arrest of Mr. Jackson.”
Jackson argues Sergeant’s Burnish’s testimony created a Bruton violation because it effectively told the jury that Canty named Jackson in his original, unredacted statements. See Gray,
However, Jackson never made any argument to the trial court as to the effect Sergeant Burnish’s testimony had on the Bruton problem. In fact, the only times Jackson addressed
The second unpreserved issue relates to the trial court’s failure to instruct the jury not to consider Canty’s statements in determining Jackson’s guilt. A trial court’s instruction to the jury that it may not consider a nontestifying defendant’s confession against a codefendant is central to the right of the State to conduct a joint trial. See Richardson,
The Eighth Circuit explained the necessity of a limiting instruction to protect the confrontation rights of defendants such as Jackson:
The Confrontation Clause dictates that “where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand.” There is a general assumption in the law, however, that juries follow their instructions. As such, the general rule is that “a witness whose testimony is introduced at a joint trial is not considered to be a witness against a defendant if the jury is instructed to consider that testimony only against a codefendant.”
United States v. Gayekpar,
The Eighth Circuit was able to consider the trial court’s failure to give a limiting instruction under the plain error rule.
III. Distinguishing Jackson’s Case from Other Cases
The State cites numerous cases in which courts found no Bmton violation where the defendant’s name or nickname was redacted from the nontestifying codefendant’s statement and replaced with a neutral phrase like the ones used in this case — “another person” and “the other person.” We find the cases cited by the State are distinguishable on their facts because the statements in those cases did not incriminate the codefendant on their face.
In United States v. Vasilakos,
In Priester v. Vaughn,
The outcomes of Vasilakos and Priester are different from the result we reach today not because the Sixth Circuit and Third Circuit applied a different rule of law, but because the facts of those cases are distinguishable from the facts before us. This difference becomes clear by comparing Vasilakos and Priester to two other cases decided by those courts, both of which our supreme court found “persuasive” in Henson: Richards and Stanford v. Parker,
A similar evaluation of specific facts also reconciles our decision today with our decision in State v. McDonald,
McDonald, like other cases cited by the State,
Under the facts of this case, primarily the description of “another person” purchasing the Little Debbie cake, Canty’s redacted statements incriminated Jackson by obvious and immediate implication. Under the facts of McDonald, however, Cannon’s redacted statement did not incriminate his codefendant.
IV. Admission of Canty’s Statements Was Not Harmless
The State argues that even if the trial court erroneously admitted the statements in violation of the Confrontation Clause, their admission did not constitute reversible error. We disagree.
Confrontation Clause violations are subject to a harmless error analysis. Holder,
We find the admission of the statements prejudiced Jackson and contributed to his guilty verdict, and the remaining evidence against Jackson was not overwhelming. First, the statements were the only direct evidence Jackson planned the robbery, called Sambino’s, and shot Flexon. No other witness or evidence identified Jackson as the person who asked Canty to rob a pizza man, and the statements were the only eyewitness account of the shooting. Second, the State emphasized the statements throughout trial, especially during its closing argument. Finally, the trial court did not give the jury a limiting instruction that it may consider the statements only against Canty. As the Eighth Circuit noted in Gayekpar, “[w]ith no cautionary instruction, the jury was free to consider [Cantyj’s statements when it decided the sufficiency of the [Statej’s case against [Jackson].”
We acknowledge the remaining evidence tending to establish Jackson’s guilt is strong. However, the evidence is purely circumstantial, and we do not believe this “properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” Henson,
We conclude the admission of Canty’s statements was not harmless error.
V. Conclusion
We find the admission of Canty’s redacted statements violated Jackson’s right of confrontation under the Sixth Amendment and was not harmless error. We REVERSE and REMAND for a new trial.
Notes
. We have included an appendix that contains Canty's fifth statement as read to the jury. However, several details in this paragraph are from Canty’s other statements.
. Canty was sixteen years old at the time of the crimes, and Jackson was nineteen.
. Cherryvale Grocery had no surveillance cameras outside, where the pay phone was located.
. Canty's first and second statements did not name Jackson.
. The trial court sentenced Canty to thirty years in prison for his convictions. This court affirmed Canty’s convictions in an unpublished opinion. State v. Canty, 2014-UP-208,
6. Canty wrote the word "brought” in his statements. As the other evidence we discuss in this opinion clearly indicates, however, he meant "bought,” as in purchased. In reaching this conclusion, we rely on Investigator West's testimony during a pretrial hearing concerning the voluntariness of Canty’s statements: "[Canty] stated that [Jackson] bought Debbie cake, Debbie snack cake and left the store.” Investigator West gave similar testimony before the jury.
. Hoover is different from Jackson’s case in at least two respects. First, the redaction in Hoover functioned as a pseudonym — indeed, much like a nickname — while the identifying detail of Canty's statements is a description of a unique action Jackson took. Second, the inference identifying the defendant in the codefendant’s statement was stronger in Hoover than it is here — so strong ”[o]nly a person unfit to be a juror” could have missed it. Id.
. Donta Reid, the defendant in the cited case, was the nontestifying codefendant whose statements to police were found to violate Davontay Henson's right of confrontation when admitted at their joint trial. Henson,
. Priester is distinguishable from this case initially because it is an appeal from the denial of habeas corpus relief. As the Third Circuit explained, the cases upon which the appellant relied — Gray and United States v. Richards,
. In each case cited by the State to support its position that neutral phrases such as those used in this case do not offend the Sixth Amendment, the court ruled on the facts of that case the co-defendant's statements did not incriminate the defendant. Each case, therefore, is distinguishable on its facts from the case before us. See, e.g., United States v. Lighty,
. Jackson also appeals the trial court’s refusal to quash the jury panel pursuant to Batson v. Kentucky,
Concurrence Opinion
concurring in a separate opinion.
I concur in the majority’s conclusions that the admission of Canty’s redacted statements was a Bruton violation and the violation was not harmless beyond a reasonable doubt. However, I do not agree that a juror hearing the statements would have to consider evidence outside the four corners of the statements in order to infer that Canty was referring to Jackson. Further, I do not agree that had the State removed Canty’s reference to the purchase of the Little Debbie cake, this case may have turned out like State v. McDonald,
APPENDIX: Text of Canty’s Fifth Statement
This appendix contains the text of Canty’s fifth statement as Investigator West read it to the jury. We have omitted objections and other interruptions so that what appears below is simply the text of the statement:
I was standing by the mailbox of the O.C. Mobile Home Park when another person I know by another name came up to me and asked whether I wanted to be a part of robbing a pizza man, and I said yes because I didn’t want the other guys to laugh and pick at me. Another person told me to ask my cousin to take us to the store. I was going to get the — I was going to get batteries. My cousin name is Desmond Canty. He told me he was going to call Sambino’s and order some pizzas. We went to Cherryvale Grocery. Another person used the pay phone right next to the trash can, green, and called Sambino’s. Another person ordered three large pizzas. Pepperoni and cheese is all heard he asked for. We went — we then went into the store. I looked for the batteries, but they didn’t have any. Another person brought a Debbie snack cake donut sticks. We went back to the house and we went into the back where the trash cans were, and I sat on a blue Caprice next to Toya’s house. Toya stays next door to us. Toya left. I then went and sat on my porch until the pizza man came. I saw a silver in color Chrysler van pulled up, and it pulled up to the back where another person was — the other person was. The pizza man stayed in his vehicle for approximately three minutes, and he then — and then — he then got out and went to the abandoned residence, lot number 7, and saw the door open and turn around and went back to his vehicle real fast. The pizza man was met by three males with hoodies. Another person was one of the males, and I didn’t — and I don’t know who the other two were. The pizza man was trying to take the gun rifle away from the black male, and the black male told the pizza man to stop, and then the gunfired. After I saw the man got shot, I ran in the house and told my moms I heard a gunshot.