People v. Bruner

• Decision Date: 28 March 2018
• Docket Number: No. 154779,154779
• Citation: 912 N.W.2d 514,501 Mich. 220
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Carl Rene BRUNER II, Defendant-Appellant.
• Court: Michigan Supreme Court

501 Mich. 220

912 N.W.2d 514

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Carl Rene BRUNER II, Defendant-Appellant.

No. 154779

Supreme Court of Michigan.

Argued on application for leave to appeal January 10, 2018

Decided March 28, 2018

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Toni Odette, Assistant Prosecuting Attorney, for the people.

Law Offices of David L. Moffitt & Associates (by David L. Moffitt ) for defendant.

McCormack, J.

In this case we consider whether the admission at a joint trial with a single jury of an unavailable witness's prior testimony about a codefendant's confession violated the defendant's constitutional right to confrontation, notwithstanding the redaction of the defendant's name and the reading of a limiting instruction to the jury. It did. The defendant had no opportunity to cross-examine the witness, and because the substance of the witness's testimony—the codefendant's confession that implicated the defendant—was so powerfully incriminating, the limiting instruction and redaction were ineffective to cure the Confrontation Clause violation. Accordingly, we reverse the judgment of the Court of Appeals and remand for that Court to consider whether the prosecution established that the error was harmless beyond a reasonable doubt. People v. Anderson (After Remand) , 446 Mich. 392, 406, 521 N.W.2d 538 (1994).

I. FACTS AND PROCEDURAL BACKGROUND

The defendant, Carl Rene Bruner II, was convicted of first-degree premeditated murder, MCL 750.316(1)(a) ; assault with intent to commit murder, MCL 750.83 ; being a felon in possession of a firearm, MCL 750.224f ; and possession of a firearm during the commission of a felony, MCL 750.227b. Bruner's convictions arose from the shooting of two security guards outside a Detroit nightclub in June 2012. One guard was struck in the back, but he was wearing a bulletproof vest and was not harmed. A second guard was killed. No eyewitnesses saw the shooter.

Bruner was tried jointly with codefendant Michael Lawson before a single jury. The prosecution argued that Bruner was the shooter and that he was aided or abetted by Lawson. Bruner's defense was that he was not present and was not the shooter. Lawson's defense was that he was merely present at the scene and was not otherwise involved in the shooting. The prosecution planned to call Westley Webb as a witness. Importantly, Webb had testified at Lawson's preliminary examination about statements he claimed Lawson had made to him a few days after the shooting; Webb did not testify at Bruner's preliminary examination.

At Lawson's preliminary examination, Webb testified that Lawson told him that the police were investigating Lawson because of an incident at a nightclub. Webb testified that Lawson said the bouncers threw Bruner out for fighting and therefore Lawson left the club with Bruner and they drove around the area in Bruner's car. Webb further testified that Lawson said that the two men parked down the block from the nightclub, Bruner walked off, and Lawson stepped out of the car for a cigarette. Webb testified that Lawson went on to say that he got back into the car and drove away because he heard gunshots. Although Webb did not offer the fact that Lawson described Bruner having a gun or committing a shooting, Webb was impeached with his police statement, in which he said Lawson described Bruner coming back with a gun.

The prosecutor understandably viewed Webb as a critical witness against Bruner. At trial, the prosecutor emphasized in his opening statement that Webb would be the key witness whose testimony would place the gun in Bruner's hands. But things do not always go as planned. And at the close of the prosecution's case in chief, the prosecutor informed the court that Webb could not be located and asked to read Webb's prior testimony to the jury. The trial court declared Webb unavailable. The prosecutor conceded that the prior testimony could not be admitted against Bruner and offered to remove mention of Bruner from the transcript of Webb's testimony. The trial court determined, over defense counsel's objection, that a limiting instruction would be adequate to ensure that the jury would not consider the redacted testimony against Bruner. But the trial court found the testimony admissible against Lawson and it was read into the record. Each mention of Bruner's name was replaced with the word "Blank" and the court instructed the jury to consider the testimony only against Lawson.

The Court of Appeals affirmed Bruner's convictions, holding that the Confrontation Clause was not implicated by the admission of Webb's preliminary examination testimony because Lawson's statements to Webb were not testimonial and Webb's testimony was neither offered nor admitted against Bruner.¹ Bruner filed for leave to appeal in this Court. We ordered oral argument on the application, instructing the parties to address whether the admission of Webb's preliminary-examination testimony at Bruner's joint trial with Lawson violated Bruner's constitutional right to confrontation, despite the trial court's redaction of that testimony and limiting instruction to the jury, see Gray v. Maryland , 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998) ; Bruton v. United States , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) ; and, if there was a Confrontation Clause violation, whether the error of admitting the testimony was harmless, see People v. Carines , 460 Mich. 750, 774, 597 N.W.2d 130 (1999).

II. DISCUSSION

Whether a defendant's Sixth Amendment right of confrontation has been violated is a question of constitutional law that this Court reviews de novo. People v. Fackelman , 489 Mich. 515, 524, 802 N.W.2d 552 (2011). De novo review means we review this issue independently, without any required deference to the courts below. People v. Barrera , 451 Mich. 261, 268, 547 N.W.2d 280 (1996).

The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him[.]" U.S. Const., Am. VI. The confrontation right is incorporated to apply to states through the Due Process Clause of the Fourteenth Amendment. Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The right is implicated only for "testimonial" evidence, because 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). The threshold question for any Confrontation Clause challenge, therefore, is whether the proffered evidence is testimonial. "Testimony" is "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id . (quotation marks and citation omitted). Although there may be ambiguity at the margins, "some statements qualify under any definition—for example, ex parte testimony at a preliminary hearing." Id . at 52, 124 S.Ct. 1354. "Testimonial statements of witnesses absent from trial" may be admitted "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." Id . at 59, 124 S.Ct. 1354.

Joint trials with a single jury present a special problem. Some evidence may be admissible as to one defendant but violate a codefendant's confrontation right. When that is the case, a court must either exclude the testimony or take measures to eliminate the confrontation problem. See Richardson v. Marsh , 481 U.S. 200, 209-212, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

What measures are sufficient depends on the context and content of the evidence. If, for example, a witness's testimony can be redacted to eliminate reference to the codefendant's existence,² that witness will not have borne testimony against the codefendant in any Sixth Amendment sense. Id . at 211, 107 S.Ct. 1702. Sometimes the court can accomplish the same by instructing the jury to consider testimony against one defendant, but not the other. Cruz v. New York , 481 U.S. 186, 190, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) ("[A] witness whose testimony is introduced in a joint trial with the limiting instruction that it be used only to assess the guilt of one of the defendants will not be considered to be a witness ‘against’ the other defendants.").

Since we presume juries follow their instructions, the result of a limiting instruction can often be as effective as excluding or redacting the testimony. But other times evidence is too compelling for a jury to ignore even with a limiting instruction. Especially relevant here, limiting instructions are categorically inadequate to protect against evidence that a nontestifying defendant confessed and implicated a codefendant in that confession. Bruton , 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476. In such a case, the confrontation problem persists as if no instruction had been given at all. Id . at 137, 88 S.Ct. 1620.

III. APPLICATION

Finally, to the issues here, of which there are two. First we must consider the threshold question whether Webb's preliminary examination testimony is "testimonial." That question answers itself. It is Webb's testimony that presents a straightforward confrontation problem. And the content of Webb's prior testimony places it squarely in the category governed by Bruton . The pitfall that must be avoided in this case—and that which the Court of Appeals landed in—is ascribing significance to the nontestimonial nature of the statements Webb attributed to Lawson. To be sure, Lawson's nontestimonial hearsay statements would not have implicated the Confrontation Clause if Webb had testified at trial—Bruner's confrontation right would have been vindicated by cross-examining Webb. But Bruner never got to cross-examine Webb.³ Because Webb's prior testimony was, of course, testimonial , the...