State v. WilcoxonState v. Wilcoxon
OWENS, J. — The United States Constitution affords criminal defendants the right to confront witnesses presented against them, usually by means of cross-examination at trial.
FACTS
Someone attempted to burglarize Lancer Lanes and Casino around 2:00 a.m. on May 14, 2013. Video surveillance showed that the burglar wore a large black plastic garbage bag. The burglar cut the surveillance feed. However, the burglar‘s activities awoke Eric Glasson, an individual who occasionally slept overnight at Lancer Lanes, and Glasson‘s presence apparently spooked the burglar into leaving without taking anything.
On May 23, Wilcoxon, a card dealer at Lancer Lanes, invited Glasson, James Nollette, and two other casino employees to a “strip club” called the Candy Store. Verbatim Report of Proceedings (VRP) (Jan. 7, 2014) at 118 (Volume A). The
That same night, surveillance footage from Lancer Lanes showed the same garbage-bag-wearing burglar enter the building just before 2:00 a.m. The burglar again cut the surveillance feed, but this time, the cameras were backed up by batteries and recorded the burglary. Surveillance footage showed the burglar take $29,074 from Lancer Lanes‘s money drawer.
Sometime after 2:00 a.m., Wilcoxon and Nollette went to their friend Eric Bomar‘s house. Wilcoxon and Nollette both appeared “excited.” VRP (Jan. 9, 2014) at 503 (Volume C). Bomar testified that Wilcoxon discussed going to Lancer Lanes and “getting away with it,” referring to the Lancer Lanes burglary. Id. at 504-05. Bomar testified that Wilcoxon described to him how he had burglarized Lancer Lanes,
In June, Nollette cоnfided in his friend Gary Solem. Nollette told Solem that he had been “at a friend‘s house” and that his “friend asked him, . . . if you were going to rob a place or hold a place up in town, . . . what [place] would you do?” VRP (Jan. 8, 2014) at 301 (Volume B). Nollette responded to his friend that “if it was me, . . . I would . . . rob . . . Lancer‘s Lane.” Id. Additionally, Nollette told Solem that “his friend had . . . broken into . . . Lancer‘s and that . . . in the middle of the burglary, [Nollette] was over at the Candy Store,” and that “while they were over there, [Nollette] received a phone call and he went outside to talk to his friend in the middle of the burglary.” Id. at 304. Nollette did not directly identify Wilcoxon as the “friend” to Solem. See id. at 304-11.
Later in June, the State charged Wilcoxon with second degree burglary, first degree theft, and second degree conspiracy to commit burglary. Wilcoxon‘s case was joined for trial with Nollette‘s case.1 Prior to trial, Wilcoxon moved to sever his trial from Nollette‘s trial pursuant to
The jury convicted Wilcoxon of all three charges. It returned a special verdict that his theft and burglary convictions were “major economic offense[s]” and that Wilcoxon abused a position of trust to commit those crimes. Clerk‘s Papers (CP) at 86-87. Wilcoxon appealed, arguing that the trial court violated his confrontation right by denying his severance motion and failing to provide a limiting instruction sua sponte.2 The Court of Appeals affirmed Wilcoxon‘s convictions, finding no confrontation right violation or requirement to provide a limiting instruction sua sponte. State v. Wilcoxon, 185 Wn. App. 534, 540, 542, 341 P.3d 1019 (2015). We granted discretionary review. State v. Wilcoxon, 183 Wn.2d 1002, 349 P.3d 856 (2015).
ISSUES
- Was Wilcoxon‘s confrontation right violated?
- If the trial court erred, was the error harmless beyond a reasonable doubt?
1. The Trial Court Did Not Violate Wilcoxon‘s Confrontation Right
Wilcoxon asks us to find that his confrontation right was violated when the court admitted out-of-court statements by his codefendant, who did not testify at trial. However, as explained in detail below, the United States Supreme Court has held that nontestimonial statements do not fall within the scope of the confrontation clause, and in this case, the statements at issue were not testimonial. Therefore, the statements did not fall within the scope of the confrontation clause and Wilcoxon‘s confrontation right was not violated.
A. The Confrontation Clause, Out-of-Court Statements by Nontestifying Codefendants, and the Bruton Doctrine
The confrontation clause of the Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
Separately, the Fifth Amendment provides criminal defendants the right against self-incrimination.
The United States Supreme Court addressed this conflict in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The Court found that the admission of an out-of-court statement by a nontestifying codefendant violated the defendant‘s confrontation right. Id. at 128. There, Bruton and a man named Evans were prosecuted jointly for an armed postal robbery. Id. at 124. Before trial, a postal inspector interrogated Evans in jail. Id. Evans confessed to the crime and implicated Bruton. Id. At trial, Evans did not take the stand but the postal inspector testified that Evans confessed to committing the crime with Bruton. Id. The trial court instructed the jury to disregard the confession as to Bruton‘s guilt or innocence. Id. Ultimately, the jury convicted Bruton. Id. The Court reversed, holding that the use of Evans‘s confession violated Bruton‘s confrontation right, even with the limiting instruction. Id. at 128. It reasoned that Evans‘s confession added “critical” weight to the case against Bruton, in a form that was not subject to cross-examination. Id. at 127-28.
Wilcoxon argues that his case is similar to Bruton and, therefore, his confrontatiоn right was likewise violated. However, as explained below, the United States Supreme Court has since refined its confrontation clause jurisprudence, limiting its scope to testimonial statements.
B. Limitation of the Confrontation Clause to Testimonial Statements
In 2004, the Supreme Court effectively changed the landscape of its confrontation clause analysis in Crawford, 541 U.S. at 42. In Crawford, the Court considered the admission of an out-of-court recorded statement made to police against Crawford and held that the confrontation clause barred its admission because the statement was “testimonial.” Id. at 40, 68. The Court examined the historical lineage
While it was clear under Crawford that the confrontation clause certainly applied to testimonial out-of-court statements, it was unclear how nontestimonial statements should be handled. The Court answered that question in Davis v. Washington, finding that nontestimonial statements are outside of the scope of the confrontation clause. 547 U.S. 813, 821-24, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). Only testimonial statements “cause the declarant to be a ‘witness’ within the meaning of the Confrontation Clause.” Id. at 821 (quoting Crawford, 541 U.S. at 51). The Court thus found that “[u]nder Crawford, . . . the Confrontation Clause has no application to [nontestimonial] statements and therefore permits their admission even if they lack indicia of reliability.” Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct 1173, 167 L. Ed. 2d 1 (2007). Therefore, if the statement is nontestimonial, it is not subject to the confrontation clause.
Crawford and Davis advised on how to answer the threshold question of whether a statement is testimonial. In general, where the statement is functionally trial testimony, it is testimonial; where it is just a casual statement made to a friend, it
Wilcoxon asks us to disregard Crawford‘s and Davis‘s limitation on the confrontation clause to testimonial statements and apply the Bruton doctrine without considering whether the statements were testimonial. The next section will examine whether Crawford‘s limitation applies to situations covered by the Bruton doctrine.
C. Harmonizing the Bruton Doctrine and Crawford
Post-Crawford, the question we must answer is whether the Bruton doctrine must be viewed through the lens of Crawford, or whether Wilcoxon‘s case must be analyzed only under Bruton. Given the scope and reasoning of Crawford, we conclude that it applies in situations that, like Bruton, involve out-of-court statements by nontestifying codefendants. Crawford reimagined the scope of the confrontation clause. As the United States Supreme Court later explained, the core of the confrontation clause is to protect defendants from testimony against him or her. Davis, 547 U.S. at 823-34. Thus, it follows that the scope of the confrontation right encompasses only testimonial statements. Its protections simply do not apply to nontestimonial statements, whether in the context of a single defendant like in Crawford or codefendants like in Bruton.
As support for the limitation, the Court pointed out in Davis that the great majority of confrontation cases throughout American jurisprudence involved
The majority of federal appellate courts that have considered this issue have come to the same conclusion. They have held that under Crawford and Davis, the confrontation clause applies only to situations that involve out-of-court statements made by nontestifying codefendants when such statements are testimonial. See, e.g., United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) (“It is . . . necessary to view Bruton through the lens of Crawford and Davis. The threshold question in every case is whether the challenged statement is testimonial. If it is not, the Confrontation Clause ‘has no application.‘” (quoting Whorton, 549 U.S. at 420)); United States v. Berrios, 676 F.3d 118, 128 (3rd Cir. 2012) (“[B]ecause Bruton is no more than a by-product of the Confrontation Clause, the Court‘s holdings in Davis and Crawford likewise limit Bruton to testimonial statements.“); United States v. Dargan, 738 F.3d 643, 651 (4th Cir. 2013) (”Bruton is simply irrelevant in the context of nontestimonial statements.“); United States v. Johnson, 581 F.3d 320, 326 (6th Cir. 2009) (“Because it is premised on the Confrontation Clause, the Bruton rule, like the Confrontation Clause itself, does not apply to nontestimonial statements.“); United States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008) (“It is now clear that the Confrontation Clause does not apply to non-testimonial statements by an out-of-court declarant.“); United States v. Clark, 717 F.3d 790, 816 (10th Cir. 2013) (concluding that because a coconspirator‘s out-of-court statements were nontestimonial, “they [fell] outside the protective ambit of the Confrontation Clause and, by extension, Bruton.“); Thomas v. United States, 978 A.2d 1211, 1224-25 (D.C. 2009) (concluding that where “a defendant‘s extrajudicial statement inculpating a co-defendant is not testimonial, Bruton does not apply, because admission . . . would not infringe the co-defendant‘s Sixth Amendment rights“).
We join these courts and hold that when an out-of-court statement made by a nontestifying codefendant is nontestimonial, Bruton is inapplicable because such statements are outside the scope of the confrontation clause.
D. Nollette‘s Statement Is Nontestimonial and, Therefore outside the Scope of the Confrontation Clause
Applying this harmonized rule in this case, we first determine whether the out-of-court statements were testimonial. If they were, we proceed to a confrontation clause analysis. If not, the confrontation clause does not apply. As the United States Supreme Court has explained, a statement is “testimonial” if it is the functional equivalent оf in-court testimony. See Crawford, 541 U.S. at 51-52. A testimonial
Here, Nollette‘s statements to Solem were nontestimonial. Nollette‘s statements were that he and a friend had discussed burgling Lancer Lanes and that his friend had called him while burgling Lancer Lanes. The statements were not designed to establish or prove some past fact, nor were they a weaker substitute for live testimony at trial; rather, Nollette was casually confiding in a friend. Nollette would not have reasonably expected that statement to his friend to be used prosecutorially. Those statements were merely “casual remark[s] to an acquaintance.” Id. Therefore, the statements were nontestimonial. Since they were nontestimonial, they were
2. Even If Wilcoxon‘s Confrontation Right Had Been Violated, It Would Have Been Harmless Error
Although we conclude that Wilcoxon‘s confrontation right was not violated and no error occurred by admitting Nollette‘s statement, we note that even if his right had been violated, the outcome would remain the same because, in the context of all of the evidence presented at trial, the admitted statements did not contribute to Wilcoxon‘s conviction.
Confrontation clause errors are subject to a harmless-error analysis as laid out in Chapman v. California, 386 U.S. 18, 22-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986). Under Chapman, before a constitutional error can be harmless, the State must show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” 386 U.S. at 24.
Whether such an error is harmless in a particular case depends upon a host of factors, . . . includ[ing] the importance of the witness’ testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness
Here, Nollette‘s statements were unimportant to the State‘s case when compared with Wilcoxon‘s own admissions. Wilcoxon bragged to his friend Eric Bomar that he burgled Lancer Lanes, and Bomar testified as to Wilcoxon‘s description of the burglary at trial. This description was corroborated by the surveillance video of the burglary.
The nontestimonial statements at issue merely corroborated the cell phone calls that Wilcoxon made to Nollette during the time of the burglary. However, these calls were already circumstantially corroborated by the surveillance video and the cell phone records. Therefore, the statements were unimportant to the State‘s overall case. It is clear from the record that the admission of Nollette‘s statements did not alter the outcome of the State‘s case against Wilcoxon. Therefore, any feared error was harmless beyond a reasonable doubt.
CONCLUSION
In accordance with the United States Supreme Court‘s holdings in Crawford and Davis, we conclude that the confrontation clause is limited to testimonial statements, even in the context of nontestifying cоdefendants. Since the statements in this case were not testimonial, the confrontation clause did not apply and thus was not violated. Consequently, we affirm Wilcoxon‘s conviction.
Madsen, C.J.
GONZALEZ, J. (concurring)—I agree with the lead opinion that Bruton1 and the confrontation clause did not apply to the out-of-court statements at issue before us. A threshold question in determining when the confrontation clause applies is whether the out-of-court statement was procured by the government. We should treat statements that were not procured by the government as presumptively nontestimonial. Thus, their admissibility should be governed by the rules of evidence, not the confrontation clause.
In Crawford, the United States Supreme Court noted that the confrontation clause applies to “‘witnesses’ against the accused—in other words, those who ‘bear testimony.‘” Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)). “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Id. The Supreme Court further explained the label “testimonial” “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.
On the other hand, statements not procured by the government bear “little resemblance to the civil-law abuses the Confrontation Clause targeted.” Crawford, 541 U.S. at 51. These statements are “less likely to be testimonial” than statements made to the government for the primary purpose of aiding a potential criminal prosecution. Ohio v. Clark, 576 U.S. 237, 135 S. Ct. 2173, 2182, 192 L. Ed. 2d 306 (2015). I would hold that a statement that is not procured by the government is presumptively not testimonial. Aside from explicitly testimonial contexts, absent some evidence showing that a statement was given or procured as evidence to be used in a later criminal prosecution, the confrontation clause should presumptively not apply. If the confrontation clause does not apply, then the admissibility of those statements is governed by traditional rules of evidence. Michigan v. Bryant, 562 U.S. 344, 359, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011); see Davis, 547 U.S. at 821.
The statements at issue in this case were not procured by the government as they were merely “casual remark[s] to an acquaintance.” Crawford, 541 U.S. at 51. The statements are presumptively nontestimonial, and there was no evidence at thе time the statements were made to suggest that they would be used in a later criminal prosecution. The confrontation clause does not apply. Accordingly, I concur.
GONZÁLEZ, J.
FAIRHURST, J.
No. 91331-5
MADSEN, C.J. (dissenting)—I disagree with the lead opinion‘s conclusion that Bruton1 does not apply where nontestimonial statements are involved. Crawford2 and Davis3 address whether admitting certain evidence violates the defendant‘s right of confrontation. Bruton and its progeny address a different concern—the prejudicial effect of inadmissible evidence, heard or seen by the jury, in a joint trial. Based on these fundamentally different purposes, I believe the Bruton doctrine continues to apply, even to nontestimonial statements.
As an initial matter, it is important to recall that this case is not about whether James Nollette‘s confession implicating Troy Wilcoxon should have been admitted against Wilcoxon as substantive evidence. Rather, it is about whether Nollette‘s confession implicating Wilcoxon, which the trial court ruled was inadmissible against Wilcoxon, should have been heard by the jury in a joint trial. This is the focus of Bruton—that a defendant‘s confrontation clause rights are violated when the jury hears codefendant statements, inadmissible against the defendant, but that nonetheless
I would hold that Bruton survives Crawford and applies to both testimonial and nontestimonial statements, that Nollette‘s statement of “friend” implicates Wilcoxon so as to invoke Bruton‘s protections, and that this constitutional error was not harmless. I would vacate Wilcoxon‘s conviction.
DISCUSSION
I
In Bruton, the Supreme Court held that a codefendant‘s statement—inadmissible against Bruton—that the jury heard and for which the judge gave a limiting instruction, violated Bruton‘s confrontation clause rights. 391 U.S. at 126. The factors the Court “deemed relevant in this area [were] the likelihood that the instruction will be disregarded, the probability that such disregard will have a devastating effect, and the determinability of these facts in advance of trial.” Cruz v. New York, 481 U.S. 186, 193, 107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987) (internal citations omitted). These factors are different from the concerns of Crawford and Davis, which instead focused on the reliability of hearsay evidence deemed admissible against the defendant.
To understand the different harms addressed under the confrontation clause, the historical underpinnings of Bruton and Crawford are helpful. The Bruton doctrine developed to address the harmful effect of putting evidence, inadmissible against a
Bruton finds its beginnings in Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278 (1957), overruled by Bruton, 391 U.S. 123. Delli Paoli involved a joint trial of five defendants; the confession of one defendant was properly admitted against him as a statement against interest but was inadmissible against the other defendants. Id. at 233. The trial judge gave an emphatic instruction to the jury to use the confession only to determine the confessor‘s guilt. Id. The Supreme Court affirmed the trial court, fearing that a contrary decision would undermine the trial-by-jury system. The Court held that so long as a limiting instruction was given to the jury, the defendant was protected and it was not reversible error. Id. at 242-43.
Justice Frankfurter, writing for three other justices, dissented. He acknowledged that “[o]ne of the most recurring ... difficulties [in a joint trial] pertains to incriminating declarations by one or more of the defendants that are not admissible against others.” Id. at 247 (Frankfurter, J., dissenting). Justice Frankfurter identified the practical effect of allowing an inadmissible statement to be put before the jury: the government receives “the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.”
Building on Justice Frankfurter‘s dissent, a majority of the Court began to express concern with jurors’ ability to disregard evidence, even when so instructed. In Jackson v. Denno, 378 U.S. 368, 371-74, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), a question was raised as to the voluntariness of the defendant‘s confession, which he gave at the hospital while on medication, awaiting surgery, after being shot in the lung and liver. The jury was instructed that it should disregard the confession if it found the confession involuntary and then decide the case based on the other evidence. Id. at 374-75. The Jackson Court was concerned whether, if the jury did find the confession involuntary, it could “then disregard the confession in accordance with its instructions” or whether “[i]f there [were] lingering doubts about the sufficiency of the other evidence, [would] the jury unconsciously lay them to rest by resort to the confession?” Id. at 388. Ultimately, the Court found that juries should not be trusted to disregard involuntary confessions because to do so would pose “substantial threats to a defendant‘s constitutional rights.” Id. at 389.
Bruton expanded on the reasoning of Jackson. In Bruton, George Bruton and William Evans were tried jointly on the charge of bank robbery. 391 U.S. at 124. After the arrest, Evans gave a confession to a postal inspector stating that he and Bruton had committed the armed robbery. Id. Evans did not testify, but the trial court allowed the
Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986), highlights the distinction between Bruton and Roberts and the harm each case addresses. In Lee, Lee and her codefendant Thomas were tried jointly in a bench trial for a double murder. Id. at 531. Both defendants confessed, and those confessions were admitted at trial against the confessor. Id. at 536-37. Counsel for both defendants withdrew their motions for severance because they trusted the court would consider only the “evidence proper to
The Court returned to its Bruton line of cases with Richardson v. Marsh, 481 U.S. 200, 107 S. Ct. 1702, 95 L. Ed. 2d 176 (1987). The Marsh Court held that Bruton‘s protections are unnecessary when a codefеndant‘s confession is redacted to “eliminate not only the defendant‘s name, but any reference to his or her existence” and a limiting instruction is given. Id. at 211. The court reiterated the harm against which Bruton
In the same year, the Court decided Cruz, overruling Parker v. Randolph, 442 U.S. 62, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979). Cruz, 481 U.S. 186. Cruz held that “where a nontestifying codefendant confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant, and even if the defendant‘s own confession is admitted against him.” Id. at 193 (citation omitted). Explaining why the interlocking nature of the confession was irrelevant to a Bruton analysis, Cruz further distinguished between harm and reliability in the two lines of confrontation clause case law. The Court found that
what the “interlocking” nature of the codefendant‘s confession pertains to is not its harmfulness but rather its reliability: If it confirms essentially the same facts as the defendant‘s own confession it is more likely to be true. Its reliability, however, may be relevant to whether the confession should (despite the lack of opportunity for cross-examination) be admitted as evidence against the defendant, but cannot conceivably be relevant to whethеr, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury‘s failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bruton, we must face the honest consequence of what it holds.
Id. at 192-93 (citations omitted). The honest consequence of Bruton is that hearsay that is inadmissible against the defendant under the rules of evidence, yet still put before the
In 2004, the Court decided Crawford, which overruled Roberts. The Court abandoned the “adequate indicia of reliability” test and held that in order to admit an out-of-court testimonial statement, the person against whom it is admitted must have had the opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68-69. Central to the decision was the meaning of “witnesses against.” Id. at 42-43. Citing the history of the confrontation clause, the Court found that to witness against someone is to “‘bear testimony.‘” Id. at 51 (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE
Notably, Crawford did not address the confrontation clause as it related to the prejudice stemming from inadmissible evidence being put before the jury in a joint trial. In fact, in Crawford, which many courts hold limits Bruton only to testimonial statements, the Court explicitly acknowledged that Crawford and Bruton address different concerns. Referencing Parker, a Bruton case, the Court noted, “Our only precedent on interlocking confessions had addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant‘s own confession against him at trial.” Crawford, 541 U.S. at 59 (first emphasis added). Although testimonial hearsay is the primary object of the confrontation clause, that is not its sole concern, and Crawford implicitly, if not explicitly, found the Sixth Amendment offers different protections. Id. at 53.
Davis further delineated the testimonial/nontestimonial dichotomy, holding that statements made to police officers “under circumstances objectively indicating that the primary purpose” is to assist officers in meeting an ongoing emergency are nontestimonial. 547 U.S. at 822. On the other hand, statements given under
In summary, under Crawford, a codefendant‘s nontestimonial confession, which the trial court properly determines is admissible against the defendant, will not be barred by the confrontation clause. However, if the trial court rules that the nontestifying codefendant‘s nontestimonial confession, which implicates the defendant, is inadmissible against the defendant, Bruton dictates that the confession either not be introduced or be redacted to eliminate even the existence of an accomplice, or that a severance be granted. Gray v. Maryland, 523 U.S. 185, 192, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998). As one court summarized,
Crawford ensures the procedural guarantee of the Confrontation Clause by requiring that the reliability of testimonial hearsay presented against the defendant be assessed in а particular manner, i.e., by testing in the crucible of cross-examination. Bruton, and its progeny, on the other hand, act to neutralize the incriminating effect on the defendant of properly admitted confessions from a non-testifying co-defendant presented against the co-defendant at a joint trial.
Commonwealth v. Whitaker, 878 A.2d 914, 922 (Pa. Super. Ct. 2005) (citation omitted).
I recognize it is both easy and tempting to decide that Bruton applies only if the statement at issue is testimonial. However, I find such a result untenable under the case law through which Bruton and Crawford evolved. It is contrary to Bruton‘s original intent: to prevent the prejudice—incurable by a limiting instruction—that occurs when the jury hears an incriminating confession or statement, properly admitted against the codefendant yet inadmissible against the defendant, in a joint trial. If Nollette and Wilcoxon had been tried separately, it would have been error for the trial judge to allow the prosecutor to introduce Nollette‘s inadmissible confession at Wilcoxon‘s trial. Evidence that would be inadmissible in a severed trial should not be put before the jury in a joint trial solely because the confrontation clause would not bar its admission against the defendant under a hearsay exception. The lead opinion‘s holding circumvents Bruton‘s protections and makes manifest Justice Frankfurter‘s cоncern that the prosecution receives the windfall of having inadmissible evidence against the defendant heard by the jury.
In this case, the question is not whether Nollette‘s statements are admissible against Nollette—or Wilcoxon—which Crawford would answer. Rather, here we must answer “the entirely different question” of how to “cure[] prejudice to codefendants from
The “primary object” of the Sixth Amendment to the federal constitution is testimonial hearsay, but that is not its sole concern. Id. at 53. It is not a static, solitary clause. The confrontation clause is “multifaceted enough to support an independent justification for the continued vitality of Bruton and its progeny.” 30B CHARLES WRIGHT & ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE § 7034.1 n.5, at 500-01 (2011 ed.). Forcing Bruton through the lens of Crawford renders the constitutional protections of Bruton irrelevant; it places Fifth Amendment protections over Sixth Amendment protections.
Because I would hold that Bruton applies to nontestimonial statements, it is necessary to answer whether Nollette‘s statements implicated Wilcoxon, and whether that error was harmless.
II
The protections of Bruton are triggered where the codefendant‘s statements facially incriminate the defendant. Marsh, 481 U.S. at 211. If Bruton applies and a violation occurs, that constitutional error is subject to a harmless-error analysis. Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969). Therefore, I must answer the question of whether Nollette‘s reference to his “friend” in his confession implicates Wilcoxon. If it does not, then there was no constitutional error. If “friend” does implicate Wilcoxon, then it is necessary to determine whether or not the error was harmless. Because “friend” is an obvious reference to Wilcoxon, and because the remaining untainted evidence was not overwhelming as to guilt, I would hold the error was not harmless.
In addressing whether “friend” implicates Wilcoxon, Marsh and Gray guide my analysis. In Marsh, the Supreme Court addressed the issue of whether a redacted confession that does not actually name the defendant is incriminating for purposes of
The Court revisited the issue in Gray and further refined the parameters of Bruton‘s reach. In Gray, the confession at issue substituted blanks or the word “deleted” for defendant Gray‘s name. 523 U.S. at 188. The Court held that this “so closely resemble[d] Bruton‘s unredacted statements” that it fell within Bruton‘s protective rule. Id. at 192. Finding that the jury will “often realize that the confession refers specifically to the defendant,” the Court reasoned:
A juror somewhat familiar with criminal law would know immediately that the blank, in the phrase “I, Bob Smith, along with [redacted], robbed the bank,” refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge‘s instruction not to consider the confession as evidence against Jones, for that instruction will provide an obvious reason for the blank. A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor
could argue the confession is reliable, for the prosecutor, after all, has been arguing that Jones, not someone else, helped Smith commit the crime.
Id. at 193. Although the Court conceded some inference would be necessary to connect the redacted confession with the defendant, it stated that “inference pure and simple cannot make the critical difference ... ” and that “[Marsh] must depend in significant part upon the kind of, not the simple fact of, inference.” Id. at 195-96. The Court went on to hold that the inferences at issue involve statements that “despite redaction, obviously refer to someone, often obviously the defendant, and which involve inferences a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.” Id. at 196.
Marsh and Gray left open the question of whether the use of neutral pronouns may be used instead of a blank space or the word “deleted” and still satisfy Bruton. In Marsh, the Court “express[ed] no opinion on the admissibility of a confession in which the defendant‘s name has been replaced with a symbol or neutral pronoun.” 481 U.S. at 211 n.5. Later, dicta in Gray mused about whether neutral pronouns might be substituted when the majority wondered why the confession could not have been altered to read, “Me, [redacted], and a few other guys.” Gray, 523 U.S. at 192.
Neither the Supreme Court nor this court have addressed this scenario, but our Court of Appeals has. In State v. Medina, 112 Wn. App. 40, 51, 48 P.3d 1005 (2002), the court affirmed the admission of the codefendant‘s statement because the redactions were so varied (“‘other guys,‘” “‘the guy,‘” “‘one guy,‘” and “‘they‘“) among six possible accomplices that it was impossible to clearly infer that one codefendant‘s statement
The admission of Nollette‘s statements during his joint trial with Wilcoxon amounted to constitutional error. It is now necessary to determine whether or not that error was harmless.
This court first adopted the “‘overwhelming untainted evidence‘” test in Guloy, because that test allows appellate courts to avoid reversal based on a technicality while still ensuring a conviction will be reversed if the improper evidence was necessary to convict. Id. In Guloy, the admission of two out-of-court statements by a subsequently
The following year, in State v. Hieb, 107 Wn.2d 97, 109-10, 727 P.2d 239 (1986), we reaffirmed our adherence to the “overwhelming untainted evidence” test. The defendant, Hieb, was convicted of the murder of his girlfriend‘s 20-month-old daughter. Id. at 98. Without deciding the confrontation clause issue presented, this court held that any error was harmless. Id. at 111-12. Even excluding the potentially tainted evidence, the untainted evidence included (1) testimony of medical examiners regarding numerous injuries sustained in the three months prior to her death—injuries which could not be self-inflicted by a 20-month-old child, (2) statements from the victim‘s older sister that Hieb had hit the child in the stomach and put a pillow over her face, (3) dents and blood on the apartment walls, and (4) the neighbor‘s testimony that four days before her death, when Hieb was alone with the girls, they heard what sounded like doors slamming for 45 minutes. Id. at 110-11.
In Watt, 160 Wn.2d at 637, this court held a confrontation clause violation was harmless error because the untainted evidence satisfied our harmless error test. Defendant Watt challenged her conviction for manufacture of methamphetamine, possession of methamphetamine, and second degree criminal mistreatment. Id. at 628.
In State v. Anderson, 171 Wn.2d 764, 766, 254 P.3d 815 (2011), the defendant was tried for child molestation. Testimony of another alleged victim of the defendant was introduced through a nurse practitioner who had examined him. The State conceded that the statements were testimonial and the issue was whether it was harmless error. Id. at 769-70. The remaining untainted evidence consisted of (1) unrefuted testimony by the victim of the molestation, which was corroborated by a counselor to whom the molestation was disclosed and a police detective, and (2) the defendant‘s statements that he had molested a different child on at least two prior occasions. Id. at 770. In light of the overwhelming evidence, this court found the error harmless. Id.
Finally, in Lui, 179 Wn.2d at 494-95, we found a confrontation clause violation in the admission of a toxicology report and statements taken from an autopsy. Again we held the error was harmless. Id. at 497. The toxicology report was irrelevant as to the
In addition to this court‘s harmless error jurisprudence, a look back at Harrington, 395 U.S. at 254, the case in which the Supreme Court first applied the harmless error analysis to a Bruton violation, is helpful. In Harrington, four men were tried jointly for attempted robbery and first degree murder. Two codefendant confessions implicating Harrington were admitted against the codefendants. Id. at 252. Finding a Bruton violation, the Court went on to examine whether the error was harmless beyond a reasonable doubt. The untainted evidence included (1) petitioner‘s own statements placing him at the scene of the crime, admitting that one of the codefendants was the trigger man, that he fled with the other codefendants, and that he dyed his hair and shaved his mustache after the murder, (2) testimony of several eye witnesses placing him at the scene of the crime, and (3) testimony of one defendant who took the stand, placing Harrington in the store with a gun at the time of the robbеry and murder. Id. at 252-53.
These cases illustrate the type and strength of the remaining untainted evidence necessary to find harmless error. The untainted evidence here rises nowhere near this level.
In making a harmless error determination, we will review the entire record. United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983). The trial transcript reveals that—contrary to the majority‘s conclusion—Gary Solem‘s testimony (Nollette‘s confession) was vital to the State‘s case.10 During direct examination of Solem, the State repeatedly elicited testimony regarding what Nollette told him about his “friend.” The prosecutor led Solem‘s testimony back to the “friend” no less than eight times. B Verbatim Report of Proceeding (VRP) at 303-07, 312 (Jan. 8, 2014). In closing argument, the State relied heavily on Solem‘s testimony regarding the “friend.” See, e.g., D VRP at 687 (Jan. 10, 2014) (“When his friend asked him, what—what place would you hit? He not only recommended a casino, he recommended [Lancer Lanes].“), 690 (“[I]sn‘t it interesting that [Eric Bomar] comes into nearly $15,000, and isn‘t that the number that Mr. Nollette specifically mentioned to Mr. Solem when he was saying that his friend owed a guy money and he stated it was $15,000?“), 689
The lead opinion concludes beyond a reasonable doubt that any jury would have convicted Wilcoxon based on two pieces of evidence: Wilcoxon‘s statements to Bomar, and the circumstantial corroboration of the call log between Wilcoxon and Nollette by the surveillance video. Lead opinion at 15.
The first piece of evidence the lead opinion cites is Bomar‘s testimony that Wilcoxon “bragged [to him] that he burgled Lancer Lanes” and described the burglary. Id. However, contrary to the lead opinion‘s assertions, there is nothing in Bomar‘s testimony about Wilcoxon “bragging” about the burglary:
Q. Do you, ah—do you recall—ah, can you state whether or not you recall him saying, ah—he used the words “pulled it off“?
A. Ah, it was—honestly, not exactly, but it was something to that effect.
....
Q. Can you state whether or not you told [Sergeant Richard Muszynski], ah, that [Wilcoxon] said, “We pulled it off“?
A. Ah, honestly, I‘m not sure the exact verbiage. It was I or we. Ah—
Q. —Do you—can you state whether or not you recall him using the—the—the term “Lancer thing“?
A. I believe that was used, yes.
C VRP at 505 (Jan. 9, 2014).
As to Bomar‘s recounting of Wilcoxon‘s description of the burglary, it is minimal at best:
Q. Had you ever heard Mr. Wilcoxon and Mr. Nollette discuss, ah, the Lancer Casino and how easy it would be to—to break into and—and steal the money?
A. Yes.
Q. Okay. Did they talk about, ah—what did they talk about about that?
A. Ah, the same as everyone else. Just, ah, that there wasn‘t much security and that it would be fairly simple to do.
....
Q. Did Mr. Wilcoxon describe how he got into the building?
A. Ah, something about the backdoor and security cameras.
Q. And what about the security cameras?
A. Ah, that they were killed.
Q. Okay. Did he indicate how he killed the security cameras?
A. Ah, not really. Ah, down—like going downstairs or something like that.
Q. Did he say, ah, what he did then?
A. Ah—ah, went to the cage and got the money.
Q. Did he say how he got into the cage?
A. Ah, as far as I recollect, ah, there were keys involved.
Q. Did he say how much was taken?
A. No.
Id. at 506-07. Perhaps more importantly, Bomar‘s testimony is inherently suspect. In addition to numerous inconsistencies, Bomar was the one initially under scrutiny from law enforcement, and he was the one who deposited $15,000 in his bank account in the
Q. [I]sn‘t it true that they told you that they didn‘t have any interest in charging you, they just wanted you to be honest?
A. Ah, that is incorrect. I was made very aware of the possible charges that could come against me.
Bomar‘s testimony is the strongest evidence that Wilcoxon committed the crime. However, I cannot say that the inconsistent testimony of an initial suspect, given under threat of being prosecuted himself, and guided by the State‘s leading questions, would lead any jury to necessarily find Wilcoxon guilty beyond a reasonable doubt. Moreover, the defense elicited testimony regarding evidence of three other suspects who may have been the burglar captured on the surveillance footage. It is Nollette‘s confession implicating Wilcoxon that gives strength to Bomar‘s testimony.
The second piece of evidence on which the lead opinion relies is the call log between Wilcoxon and Nollette. The lead opinion says that Nollette‘s statements to Solem “merely corroborated the cell phone calls that Wilcoxon made to Nollette during the time of the burglary.” Lead opiniоn at 15. “[T]hese calls were already
Unlike the remaining untainted evidence in Guloy, Hieb, Watt, Anderson, Lui, and Harrington, we do not have such “overwhelming untainted evidence” here. Without Nollette‘s confession, the State‘s case against Wilcoxon is “woven from circumstantial evidence.” Harrington, 395 U.S. at 254. Nollette‘s confession adds credibility to Bomar‘s testimony and strengthens the fabric of the remaining circumstantial evidence. As the lead opinion points out, “before a constitutional error can be hаrmless, the State must show ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‘” Lead opinion at 14 (quoting Chapman, 386 U.S. at 24). Admittedly, there is some evidence remaining against Wilcoxon. However, the test is not that of “some” evidence of guilt, or even “a lot” of evidence of guilt, it must be “overwhelming.” Anything less than overwhelming evidence of guilt runs the risk of
Jurors and courts are made up of human beings, whose condition of mind cannot be ascertained by other human beings. Therefore, it is impossible for courts to contemplate the probabilities any evidence may have upon the minds of the jurors. The state attempts to safeguard the life and liberty of its citizens by securing to them certain legal rights. These rights should be impartially preserved. They cannot be impartially preserved if the appellate courts make of themselves a second jury and then pass upon the facts.
Although the lead opinion claims, “Nollette‘s statements were unimportant to the State‘s case,” lead opinion at 15, that is simply not true. I would conclude that the admission of Nollette‘s statements, in violation of Bruton and the confrontation clause, was not harmless error.
CONCLUSION
Bruton and Crawford address different concerns under the confrontation clause. Bruton addresses the prejudice of having inadmissible codefendant statements put beforе a jury in a joint trial. Crawford, on the other hand, addresses the proper means for assessing the reliability of evidence admitted directly against a defendant. Because of these distinctly different concerns and the protections that evolved in the case law to guard against them, I would hold that Bruton and its progeny remain good law, applicable even to nontestimonial statements.
Here, Nollette confessed to Solem that he and a “friend” robbed the casino. Being a joint trial, with only two defendants, “friend” obviously implicates Wilcoxon. This
Nollette‘s confession played a crucial role in the State‘s case. Without it, the remaining untainted evidence was not so overwhelming as to necessarily lead to a finding of guilt, the constitutional harmless error standard. Accordingly, admitting Nollette‘s confession violated Wilcoxon‘s confrontation clause rights, it was not harmless error, and his conviction should be vacated. For these reasons, I respectfully dissent.
Madsen, C.J.
Gonzalez, J.
Wiggins, J.
Stephens, J.