People v. Banks

• Decision Date: 09 September 1991
• Docket Number: Docket No. 86945
• Citation: 475 N.W.2d 769,438 Mich. 408
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin BANKS, Defendant-Appellant. 438 Mich. 408, 475 N.W.2d 769
• Court: Michigan Supreme Court

Page 769

475 N.W.2d 769

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Melvin BANKS, Defendant-Appellant.

Docket No. 86945.

438 Mich. 408, 475 N.W.2d 769

Supreme Court of Michigan.

Argued April 4, 1991.

Decided Sept. 9, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, Joseph A. Puleo, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Carl Ziemba, Detroit, for defendant-appellant.

OPINION

ROBERT P. GRIFFIN, Justice.

The question presented in this case is whether the trial court erred in permitting the prosecutor to introduce into evidence at a joint trial, with limiting instructions, the redacted statements of two nontestifying codefendants and, if so, whether the error was harmless with regard to this defendant. We hold that admission of the redacted statements denied defendant his right of confrontation guaranteed by U.S. Const., Am. VI and Const.1963, art. 1, Sec. 20. The error was not harmless beyond a reasonable doubt when considered in the context of other properly admitted evidence. We therefore reverse the decision of the Court of Appeals and remand this case to the trial court for a new trial.

I

Defendant Melvin Banks was convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and three counts of assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, in the shooting death of Leonard Ingram, a Redford high school student, and the armed attack on three of his companions, one of whom was wounded.

Defendant Banks was tried jointly with two codefendants, Theodore Burley and Aaron Funches. ¹ The prosecution's theory was that Banks was the person who fired the gun, aided and abetted by Funches and Burley. The prosecutor submitted that the gun in question belonged to Funches, that Burley handed it to the defendant and pointed out Ingram and his friends, and that the defendant then confronted and shot at them.

Funches and Burley chose not to testify at trial. However, each of them had given the police a statement. A redacted version of their statements was read to the jury. ² In each instance, the word "blank" was substituted for the name of Banks and for the name of the other codefendant. ³ The original or unredacted written statements of Funches and Burley were not introduced into evidence. The trial court instructed the jurors that each of the statements as read in open court was to be considered only in deciding the culpability of the person who gave the statement, and was not to be used in determining the guilt or innocence of any other defendant.

The defendant, Banks, testified in his own behalf. He asserted that although he had been in Funches' car, and later at Funches' home on the day in question, he had not been at the shooting site and was not involved in the shooting. He contended that he had met Burley for the first time that day at Funches' house. Defendant's counsel also argued misidentification, emphasizing that there had been no corporeal lineup, that none of the eyewitnesses had known the defendant previously, and that the witness who had participated in the photographic showup likely had seen the defendant's photograph in the newspaper.

The prosecution's witnesses included Ingram's three companions--Lawrence Jordan, Sean Davis, and Larry Harris. Each identified the defendant as the triggerman. None of the companions had known the defendant before the shooting, and Jordan and Davis admitted that they had learned his name from a newspaper article. Although Jordan picked out the defendant's photograph from an array of six during a showup, he admitted that he had previously seen the defendant's photograph in the newspaper. None of the victim's companions participated in a corporeal or voice lineup.

The jury acquitted codefendants Funches and Burley of all counts, ⁴ but convicted the defendant. He was subsequently sentenced to serve a nonparolable term of life imprisonment for first-degree murder, parolable life terms for the three assault counts, and a mandatory two-year term for felony-firearm.

The Court of Appeals held that the nontestifying codefendants' statements had been admitted in violation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). However, the panel was persuaded that the error was harmless. Unpublished opinion per curiam of the Court of Appeals, decided August 2, 1989 (Docket No. 106741).

Defendant's application for leave to appeal was granted by this Court, limited to the issues (1) whether the trial court erred in permitting the prosecutor to introduce into evidence at this joint trial the statements of two nontestifying codefendants, and (2) if so, whether the error was harmless. ⁵ 435 Mich. 867, 457 N.W.2d 691 (1990).

II

The Sixth Amendment of the United States Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him...." This Sixth Amendment right is applicable to the states, Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), and the same right is guaranteed by Const.1963, art. 1, Sec. 20. ⁶

In California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970), the United States Supreme Court explained that the Confrontation Clause

"(1) insures that the witness will give his statements under oath--thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the 'greatest legal engine ever invented for the discovery of truth'; (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility."

In Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 1068, 13 L.Ed.2d 923 (1965), the Court observed:

"There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in the expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal."

In Bruton v. United States, supra, the Court held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating unredacted confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. In Bruton, defendants Bruton and Evans were tried jointly for armed postal robbery. A postal inspector, the government's witness, testified regarding an oral confession allegedly made by Evans, which inculpated both Evans and Bruton. Evans did not testify. The trial court instructed the jury to disregard the confession in judging Bruton's guilt or innocence and to consider it only for the purpose of deciding Evans' culpability. The jury found both defendants guilty. The United States Court of Appeals for the Eighth Circuit affirmed, but the United States Supreme Court reversed, stating:

"[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.... Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed." Bruton, supra 391 U.S., pp. 135-136, 88 S.Ct. pp. 1627-1628.

In a footnote, the Bruton Court noted that other courts had tried to accommodate the interests of both the defendant and the prosecution by utilizing the process of redaction. The Court further noted, however, that redaction had been criticized as ineffective by some legal authorities. Id., p. 134, n. 10, 88 S.Ct. pp. 1626-1627, n. 10.

The Court subsequently had the opportunity to address the Bruton problem in the context of a redacted statement. In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Court held that the admission of a nontestifying codefendant's confession with a limiting instruction did not violate the Confrontation Clause when the confession was redacted to eliminate all references to the nonconfessing defendant. ⁷ Defendant Marsh was convicted of felony murder and assault with intent to murder. The prosecution's theory was that defendant Marsh rode in the back seat of an automobile to the crime scene with her codefendant and a third person and, because she overheard the front seat occupants' conversation--a scheme to rob and kill the victims--she acquired the requisite intent. The prosecution offered the confession of the codefendant which stated that, during the ride, the codefendant and the driver formulated plans for the crime. Defendant Marsh admitted her presence in the back seat of the automobile, but denied that she heard the conversation because the car radio drowned out the front seat conversation. She testified that she was therefore surprised when her friends stole money from the victims...