People v. Etheridge, Docket Nos. 109515
| Decision Date | 09 September 1992 |
| Docket Number | 110214,Docket Nos. 109515 |
| Citation | 492 N.W.2d 490,196 Mich.App. 43 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lamont ETHERIDGE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Antonio SANDERS, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Olga Agnello, Asst. Pros. Atty., for the People.
Craig A. Daly, Detroit, for defendant-appellant Etheridge.
Robert M. Morgan, Detroit, for defendant-appellant Sanders.
Before MARILYN J. KELLY, P.J., and McDONALD and REILLY, JJ.
In these consolidated cases, defendants appeal as of right from their convictions after a jury trial of first-degree murder, M.C.L. Sec. 750.316; M.S.A. 28.548. We affirm.
Valerie Cross testified at trial that on the night of December 11, 1987, she was in her apartment with a friend that she identified only as Mario. Defendant Sanders came to the apartment and said that he had a man in the car that he was going to bring up to the apartment. Sanders told Cross that he was "going to kill this guy." Sanders then brought William Mercer up to Cross' apartment. Shortly after they entered the apartment, Sanders asked to use Mercer's car. Mercer agreed and Sanders then gave him a rock of cocaine in exchange for the use of the car.
A short time after Sanders left, defendants Lamont Etheridge and Robert Stoner walked into the apartment. Etheridge had a knife in his hand and entered the bedroom where Mercer and Cross were smoking crack cocaine. Etheridge cursed at Mercer. When Stoner asked what was going on, Etheridge pushed him on the bed and told him to "shut up." Mercer began pleading for his life. Cross ran out of the room. On her way out she saw Sanders standing in the bathroom.
Cross left the apartment and entered the apartment next door through a milk chute. Cross heard Mercer pleading for his life and heard Etheridge cursing at him and telling him to shut up. Cross then heard the apartment door close and heard more than two people going down the stairs. Cross heard a car being moved and heard Sanders say, "It's clear."
Cross then went to a window and saw Sanders standing by the trunk of the car. Etheridge and Stoner were carrying Mercer and put him in the trunk of the car. Mercer was bound at the hands and feet. Sanders then got in the driver's side of the vehicle. Etheridge and Stoner also got in the car. Cross was in the hallway of the apartment building when Etheridge, Sanders, and Stoner returned. As they were ascending the stairs, she heard a conversation regarding some logs and why the body would not come back up.
Sanders took Cross to stay at a relative's apartment. She called the police the next evening regarding the incident. As a result of her statements, the police went to her apartment, where they found Etheridge. He was arrested and eventually led the police to a canal near the Detroit River where Mercer's body was located.
Dr. Robert Kurtzman of the Wayne County Medical Examiner's office testified that the cause of Mercer's death was drowning. Although the examination revealed a compression of the neck, on the basis of the amount of water in Mercer's lungs, Kurtzman believed that Mercer was alive at the time he was placed in the water.
Etheridge, Sanders, and Stoner were charged with first-degree murder and felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, and kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581, in connection with Mercer's death. 1 The defendants were tried jointly. The jury found Etheridge and Sanders guilty of first-degree murder and felony murder. Stoner was acquitted. Defendants Etheridge and Sanders were sentenced only on the first-degree murder charge and received the mandatory term of life imprisonment without possibility of parole.
Etheridge and Sanders now appeal, raising several claims of error.
Both Etheridge and Sanders argue that the admission at trial of the redacted confessions of their codefendants denied them their right to confrontation as guaranteed by U.S. Const. Am. VI and Const.1963, art. 1, Sec. 20.
The confessions of Etheridge, Sanders, and Stoner were read into the record and admitted as evidence at trial. The confessions were redacted so that the names of the codefendants were replaced by blanks. Before each statement was read into the record, the trial court gave a cautionary instruction to the jury that it was to consider the statement only against the defendant making the statement and not against the other defendants. The instruction was repeated at the end of the trial. None of the defendants testified at trial.
A defendant is deprived of his Sixth Amendment right of confrontation when a codefendant's incriminating confession is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), the Court held that the Bruton rule applied even in situations where the defendant's own confession, corroborating that of his codefendant, is introduced as evidence against him. However, the defendant's confession may be considered on appeal in assessing whether any Confrontation Clause violation was harmless. Id. at 194, 107 S.Ct. at 1719.
However, the Court in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), held that the Confrontation Clause is not violated by the admission of a confession of a nontestifying codefendant that has been redacted to eliminate not only the defendant's name, but any reference to the defendant's existence. The Court in Richardson expressed no opinion regarding the admissibility of a confession in which the defendant's name has been replaced by a symbol or a neutral pronoun. Id. at 211, n. 5, 107 S.Ct. at 1709 n. 5.
The admissibility of the confession of a nontestifying codefendant in which the other defendants' names have been replaced by a blank, such as in the present case, was recently addressed by the Michigan Supreme Court in People v. Banks, 438 Mich. 408, 420, 475 N.W.2d 769 (1991), in which it stated:
In cases such as the one before us now, where redaction is achieved through replacement of the defendant's name with a neutral pronoun or "blank," the ease with which a jury will be able to fill in a blank will vary from case to case, depending upon the overall evidentiary context in which it is introduced to the jury. A rule of admissibility per se is simply not appropriate for the form of redaction used in the case at bar.
The Court went on to hold:
If a "substantial risk" exists that the jury, despite cautionary instructions, will consider a codefendant's out-of-court statement in deciding the defendant's guilt, the statement--even though redacted to delete the defendant's name--will be rendered inadmissible at a joint trial. Bruton, supra, [391 U.S. at] p. 126 . [Id. at 421, 475 N.W.2d 769.]
In Banks, the prosecution charged that the defendant was the one who shot the victim and that his codefendants aided and abetted him. The defendant testified at trial and denied that he was present at the scene of the shooting. The Court found that the defendant's testimony was directly contradicted by the statements of his codefendants in which they both denied being involved in the shooting, but indicated that a third person was in the car with them and that person left the car and began shooting. The Court found:
This "third person" and his actions were so described as to leave no doubt that it was the third person on trial--the defendant. The defendant rightfully complains that he might as well have been mentioned by name in each of the two statements.... Id. at 423, 475 N.W.2d 769.
The Court concluded that the closing arguments of the prosecutor and codefendants' counsel that urged the jury to use the nontestifying codefendant's statements against the defendant effectively undid any of the trial court's cautionary instructions.
We believe that the present case is distinguishable from Banks. In the present case, all three defendants gave statements that were redacted and admitted at trial. Although each defendant admitted that he was present at the time Mercer was taken to the river and drowned, each denied drowning him. Etheridge's statement read, in pertinent part:
Me, _____, and _____ we carried that guy down the back stairs and opened the trunk and we put him in the trunk. I got into the back _____ got into the back. _____ drove and the other guy got in the front passenger seat. _____ drove down behind the school off Essex and I think Continental. _____ drove up to a dark area and popped the trunk. Me and _____ took the guy out of the trunk and took him through the fence and walked about ten feet and slid down a muddy hill to the edge of the water and _____ held him under the water, accept [sic] the guy I don't know.
Sanders' statement read, in pertinent part:
I drove down some street, I think it was Essex and _____ said pull in this drive that led up to a bridge, I did and _____ said open the trunk and _____ and _____ got Bill out of the trunk. _____ told me to go park the car on the street and walk back over to where I dropped them off. _____ and _____ carried Bill down this pathway that led to the lake. I did what they told me to do and I came back and they had Bill in the water drowning him. Then _____ said they were going to tie Bill under the water to a platform. After he Bill was drowned, _____ told me to hold Bill's feet or head underneath the water while he tied Bill to the platform.
The pertinent part of Stoner's statement read:
_____ stopped the car. _____ and...
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