People v. Fletcher

• Decision Date: 17 June 1996
• Docket Number: No. S044323,S044323
• Citation: 917 P.2d 187,53 Cal.Rptr.2d 572,13 Cal.4th 451
• Court: California Supreme Court
• Parties: , 917 P.2d 187, 96 Cal. Daily Op. Serv. 4343, 96 Daily Journal D.A.R. 6975 The PEOPLE, Plaintiff and Respondent, v. Brian Ray FLETCHER et al., Defendants and Appellants.

Page 572

53 Cal.Rptr.2d 572

13 Cal.4th 451, 917 P.2d 187, 96 Cal. Daily Op. Serv. 4343,

96 Daily Journal D.A.R. 6975

The PEOPLE, Plaintiff and Respondent, v. Brian Ray FLETCHER et al., Defendants and Appellants.

No. S044323.

Supreme Court of California.

June 17, 1996.

As Modified July 12, 1996.

George L. Schraer, Berkeley, and Eric S. Multhaup, San Francisco, under appointments by the Supreme Court, for Defendants and Appellants.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Esteban Hernandez, Keith I. Motley, H. Howard Wayne and Warren P. Robinson, Deputy Attorneys General, for Plaintiff and Respondent.

KENNARD, Justice.

The Confrontation Clause of the Sixth Amendment to the federal Constitution, made applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The right of confrontation includes the right of cross-examination. (Pointer v. Texas (1965) 380 U.S. 400, 404, 406-407, 85 S.Ct. 1065, 1068, 1069, 13 L.Ed.2d 923.)

A recurring problem in the application of the right of confrontation concerns an out-of-court confession ¹ of one defendant that incriminates not only that defendant but another defendant jointly charged. Generally, the confession will be admissible in evidence against the defendant who made it (the declarant). (See Evid.Code, § 1220 [hearsay exception for party admissions].) But, unless the declarant submits to cross-examination by the other defendant (the nondeclarant), admission of the confession against the nondeclarant is generally barred both by the hearsay rule (Evid.Code, § 1200) and by the Confrontation Clause (U.S. Const., 6th Amend.). If the two defendants are tried together, the trial court may instruct the jury to consider the confession in determining the guilt only of the declarant, but it may be psychologically impossible for jurors to put the confession out of their minds when determining the guilt of the nondeclarant. The United States Supreme Court has held that, because jurors cannot be expected to ignore one defendant's confession that is "powerfully incriminating" as to a second defendant when determining the latter's guilt, admission of such a confession at a joint trial generally violates the confrontation rights of the nondeclarant. (Bruton v. United States (1968) 391 U.S. 123, 126-137, 88 S.Ct. 1620, 1622-1628, 20 L.Ed.2d 476.) Earlier, this court had reached a similar conclusion on nonconstitutional grounds. (People v. Aranda (1965) 63 Cal.2d 518, 528-530, 47 Cal.Rptr. 353, 407 P.2d 265.)

More recently, however, the United States Supreme Court has stated that the positive authority of Bruton v. United States, supra, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (holding that the admission, at a joint trial, of a nontestifying defendant's confession implicating a codefendant, even with an appropriate limiting instruction, violates the codefendant's rights under the Confrontation Clause) extends only to confessions that are not only "powerfully incriminating" but also "facially incriminating" of the nondeclarant defendant. (Richardson v. Marsh (1987) 481 U.S. 200, 207-208, 107 S.Ct. 1702, 1707-1708, 95 L.Ed.2d 176.) The court held that a defendant's rights under the Confrontation Clause are not violated by the admission in evidence of a codefendant's confession that has been redacted "to eliminate not only the defendant's name, but any reference to his or her existence," even though the confession may incriminate the defendant when considered in conjunction with other evidence properly admitted against the defendant. (Id. at p. 211, 107 S.Ct. at p. 1709, fn. omitted.) The court expressly declined to decide whether a codefendant's confession that had been redacted by replacing the nondeclarant's name with a symbol or neutral pronoun could be admitted in evidence at a joint trial without violating the nondeclarant's rights under the Confrontation Clause. (Id. at p. 211, fn. 5, 107 S.Ct. at p. 1709, fn. 5.)

We granted review in this case to address the issue expressly reserved in Richardson v. Marsh, supra, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176--that is, whether it is sufficient, to avoid violation of the Confrontation Clause, that a nontestifying codefendant's extrajudicial confession is edited by replacing all references to the nondeclarant's name with pronouns or similar neutral and nonidentifying terms. Such a confession is "facially incriminating" in the sense that it is sufficient by itself, without reference to any other evidence, to incriminate someone other than the confessing codefendant. It is not "facially incriminating" only in the sense that it does not identify this other person by name.

We conclude that whether this kind of editing--which retains references to a coparticipant in the crime but removes references to the coparticipant's name--sufficiently protects a nondeclarant defendant's constitutional right of confrontation may not be resolved by a "bright line" rule of either universal admission or universal exclusion. Rather, the efficacy of this form of editing must be determined on a case-by-case basis in light of the other evidence that has been or is likely to be presented at the trial. The editing will be deemed insufficient to avoid a confrontation violation if, despite the editing, reasonable jurors could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun.

Here, the nontestifying codefendant's confession was incriminating in ways that were both sufficiently substantial and sufficiently direct to require its exclusion under the Confrontation Clause. The confession was substantially (or "powerfully") incriminating because the evidence properly admitted against the nondeclarant defendant at trial raised an issue regarding whether the nondeclarant had entertained a culpable criminal intent at the time of the charged crimes, and the codefendant's confession attributed a culpable intent to his coparticipant. The identification of the nondeclarant as the coparticipant mentioned in the confession was sufficiently direct (or "facial"), even though the confession referred to the coparticipant only as "a friend," because the evidence at trial was such that a reasonable juror could not help but infer that the nonconfessing defendant was the "friend" mentioned in the confession. In this situation, the risk is unacceptably great that jurors would be unable to follow the trial court's instruction to disregard the confession in determining the nondeclarant's guilt. Accordingly, the Court of Appeal correctly concluded that admission of the redacted statement violated the defendant's rights under the Confrontation Clause.

I

Defendant Terrance Kent Moord and codefendant Brian Ray Fletcher were twice jointly tried for the murder and attempted robbery of Maria Estrada, who was fatally shot on June 20, 1991, as well as for other crimes that are not relevant to the issue we consider here. The jury at the initial trial was unable to reach verdicts on the murder and attempted robbery charges, although it did resolve some of the other charges. At a second trial, both defendants were convicted of the murder and attempted robbery charges.

A. The Prosecution's Evidence at Trial

Lorenzo Garcia was driving a taxi shortly after 1:30 a.m. on June 20, 1991, when the taxi stalled on a freeway on-ramp. Garcia parked the taxi on the side of the ramp close to the guardrail, locked the taxi, and walked home.

Shortly before 2:40 a.m., Maria Estrada encountered the taxi while driving on the same on-ramp. The taxi was no longer parked against the guardrail but instead was angled into the roadway, and there were two men near it. Estrada stopped and asked them if there was a problem. With Estrada in the car were her 7- and 9-year-old sons, her 4-year-old daughter, her 14-year-old brother, and her mother.

One of the men approached and asked if Estrada had jumper cables. Estrada said she did not. This man repeated his question in a harsher tone. Estrada started to drive away. The man to whom she had been speaking produced a gun and fired at Estrada from close range, fatally wounding her. As the shot was fired, or shortly before, passengers in Estrada's car heard one of the men say "Oh, no." The two men fled.

At approximately 2:40 a.m., Shirley Forest was awakened by banging on the door and window of her apartment, which was located very near the on-ramp where the shooting occurred. Opening her door, Forest found codefendant Fletcher, who was a friend of her nephew, and defendant Moord. Forest refused Fletcher's request that he and Moord be allowed to stay the night, but she called a taxi for the two men. While the two men were waiting in Forest's apartment, Forest saw Fletcher pick up a gun that had dropped from his jacket.

Fletcher and Moord left Forest's apartment in a taxi at 3:12 a.m. A little while later, they turned up at the apartment of Fletcher's former girlfriend Tambushia Hewitt, where they spent the rest of the night. Fletcher told Hewitt that something had happened and that he hoped no one was dead.

Investigation at the scene of the shooting revealed that the antenna of Garcia's taxi had been removed and apparently used to unlock its doors. Some shoeprints at the scene were consistent with shoes that Moord was wearing when arrested; other shoeprints at the scene were consistent with shoes that Fletcher had left with Hewitt after the shooting.

While in custody awaiting trial, Fletcher made statements to fellow inmate Roland Kramer incriminating both himself and Moord. At the second trial, Kramer described Fletcher's statements this way: "[Fletcher] told me that he and a friend were on a freeway ramp and had a cab or a vehicle--like there was...