People v. Bruner
Docket No. 154779
Carl Bruner and Michael Lawson were charged with first-degree premeditated murder (among other things) for a killing outside a Detroit nightclub. They were tried together. At Lawson’s preliminary examination, a witness, Westley Webb, testified about the shooting. The prosecutor impeached Webb with his police statement, in which Webb said that Lawson had admitted to him that he was part of the shooting and had described that Bruner had a gun at the time.
By the time of Bruner’s and Webb’s joint trial, the prosecution could not locate Webb and therefore asked the trial court to treat Webb as an unavailable witness, which would have permitted the prosecution to read Webb’s prior testimony to the jury. The prosecutor conceded that Webb’s statements about Lawson’s description of Bruner holding the gun could not be admitted against Bruner.
As a result, the prosecutor agreed to remove any mention of Bruner and the trial court determined that a limiting instruction would suffice to protect any prejudice to Bruner. When Webb’s testimony from the preliminary examination was read into evidence, Bruner’s name was replaced with the word “Blank.” The court also instructed the jury to consider Webb’s testimony only against Lawson.
The question was whether this reading of Webb’s testimony violated Bruner’s right under the Confrontation Clause of the Sixth Amendment, as incorporated against the States through the Fourteenth Amendment. The Court, in a unanimous opinion by Justice McCormack, held that it did. First, the Court had to determine whether Webb’s statement at the preliminary examination was “testimonial.” To ask that question is nearly to answer it, and the Court quickly concluded that it was. And because the statement was made at Lawson’s preliminary examination, Bruner had no opportunity to cross-examine Webb.
The next question was whether the trial court’s redaction and limiting instruction cured any Confrontation Clause violation. The Court said it did not. First of all, regarding the redaction of Bruner’s name, the Court said in a footnote that “blank spaces, blackouts, code names, or even grammatical structures that tip the jury off to the defendant’s erasure may not be enough to cure the confrontation problem.” Second, “limiting instructions are categorically inadequate to protect against evidence that a nontestifying defendant confessed and implicated a codefendant in that confession,” citing the U.S. Supreme Court’s case in Bruton.
The Court admitted that some redaction can be effective, such as redacting “to eliminate not only the defendant’s name, but any reference to his or her existence.” In an example of Justice McCormack’s excellent writing style, she declared: “Far from eliminating any reference to Bruner’s existence, the jury instead got a wink and a nod about an unnamed person, ‘Blank.’ Blank’s conduct was not just uncannily similar to what the prosecutor told the jury Bruner had done. No, it was the same.”
The admission therefore violated Bruner’s right under the Confrontation Clause, and the Court remanded to determine whether the error was harmless.
Full opinion here.