|GRAY v. MARYLAND (96-8653)|
344 Md. 417, 687 A. 2d 660, vacated and remanded.
[ Breyer ]
[ Scalia ]
Opinion of the Court
KEVIN D. GRAY, PETITIONER v. MARYLAND
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF MARYLAND
[March 9, 1998]
Justice Breyer delivered the opinion of the Court.
The issue in this case concerns the application of Bruton v. United States, 391 U.S. 123 (1968). Bruton involved two defendants accused of participating in the same crime and tried jointly before the same jury. One of the defendants had confessed. His confession named and incriminated the other defendant. The trial judge issued a limiting instruction, telling the jury that it should consider the confession as evidence only against the codefendant who had confessed and not against the defendant named in the confession. Bruton held that, despite the limiting instruction, the Constitution forbids the use of such a confession in the joint trial.
The case before us differs from Bruton in that the prosecution here redacted the codefendants confession by substituting for the defendants name in the confession a blank space or the word deleted. We must decide whether these substitutions make a significant legal difference. We hold that they do not and that Brutons protective rule applies.
In 1993, Stacy Williams died after a severe beating. Anthony Bell gave a confession, to the Baltimore City police, in which he said that he (Bell), Kevin Gray, and Jacquin Tank Vanlandingham had participated in the beating that resulted in Williams death. Vanlandingham later died. A Maryland grand jury indicted Bell and Gray for murder. The State of Maryland tried them jointly.
The trial judge, after denying Grays motion for a separate trial, permitted the State to introduce Bells confession into evidence at trial. But the judge ordered the confession redacted. Consequently, the police detective who read the confession into evidence said the word deleted or deletion whenever Grays name or Vanlandinghams name appeared. Immediately after the police detective read the redacted confession to the jury, the prosecutor asked, after he gave you that information, you subsequently were able to arrest Mr. Kevin Gray; is that correct? The officer responded, Thats correct. App. 12. The State also introduced into evidence a written copy of the confession with those two names omitted, leaving in their place blank white spaces separated by commas. See Appendix, infra. The State produced other witnesses, who said that six persons (including Bell, Gray, and Vanlandingham) participated in the beating. Gray testified and denied his participation. Bell did not testify.
When instructing the jury, the trial judge specified that the confession was evidence only against Bell; the instructions said that the jury should not use the confession as evidence against Gray. The jury convicted both Bell and Gray. Gray appealed.
Marylands intermediate appellate court accepted Grays argument that Bruton prohibited use of the confession and set aside his conviction. 107 Md. App. 311, 667 A. 2d 983 (1995). Marylands highest court disagreed and reinstated the conviction. 344 Md. 417, 687 A. 2d 660 (1997). We granted certiorari in order to consider Brutons application to a redaction that replaces a name with an obvious blank space or symbol or word such as
In deciding whether Brutons protective rule applies to the redacted confession before us, we must consider both Bruton, and a later case, Richardson v. Marsh, 481 U.S. 200 (1987), which limited Brutons scope. We shall briefly summarize each of these two cases.
Bruton, as we have said, involved two defendantsEvans and Brutontried jointly for robbery. Evans did not testify, but the Government introduced into evidence Evans confession, which stated that both he (Evans) and Bruton together had committed the robbery. 391 U.S., at 124. The trial judge told the jury it could consider the confession as evidence only against Evans, not against Bruton. Id., at 125.
This Court held that, despite the limiting instruction, the introduction of Evans out-of-court confession at Brutons trial had violated Brutons right, protected by the Sixth Amendment, to cross-examine witnesses. Id., at 137. The Court recognized that in many circumstances a limiting instruction will adequately protect one defendant from the prejudicial effects of the introduction at a joint trial of evidence intended for use only against a different defendant. Id., at 135. But it said that
there 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 . . . . The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. Id., at 135136 (citations omitted).
The Court found that Evans confession constituted just such a powerfully incriminating extrajudicial statemen[t], and that its introduction into evidence, insulated from cross-examination, violated Brutons Sixth Amendment rights. Id., at 135.
In Richardson v. Marsh, supra, the Court considered a redacted confession. The case involved a joint murder trial of Marsh and Williams. The State had redacted the confession of one defendant, Williams, so as to omit all reference to his codefendant, Marshindeed, to omit all indication that anyone other than . . . Williams and a third person had participated in the crime. Id., at 203 (emphasis in original). The trial court also instructed the jury not to consider the confession against Marsh. Id., at 205. As redacted, the confession indicated that Williams and the third person had discussed the murder in the front seat of a car while they traveled to the victims house. Id., at 203204, n. 1. The redacted confession contained no indication that Marshor any other personwas in the car. Ibid. Later in the trial, however, Marsh testified that she was in the back seat of the car. Id., at 204. For that reason, in context, the confession still could have helped convince the jury that Marsh knew about the murder in advance and therefore had participated knowingly in the crime.
The Court held that this redacted confession fell outside Brutons scope and was admissible (with appropriate limiting instructions) at the joint trial. The Court distinguished Evans confession in Bruton as a confession that was incriminating on its face, and which had expressly implicat[ed] Bruton. 481 U.S., at 208. By contrast, Williams confession amounted to evidence requiring linkage in that it became incriminating in respect to Marsh only when linked with evidence introduced later at trial. Ibid. The Court held
that the Confrontation Clause is not violated by the admission of a nontestifying codefendants confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendants name, but any reference to his or her existence. Id., at 211.
The Court added: We express no opinion on the admissibility of a confession in which the defendants name has been replaced with a symbol or neutral pronoun. Id., at 211, n. 5.
Originally, the codefendants confession in the case before us, like that in Bruton, referred to, and directly implicated another defendant. The State, however, redacted that confession by removing the nonconfessing defendants name. Nonetheless, unlike Richardsons redacted confession, this confession refers directly to the existence of the nonconfessing defendant. The State has simply replaced the nonconfessing defendants name with a kind of symbol, namely the word deleted or a blank space set off by commas. The redacted confession, for example, responded to the question Who was in the group that beat Stacey, with the phrase, Me, ,
and a few other guys. See Appendix, infra, at ___. And when the police witness read the confession in court, he said the word deleted or deletion where the blank spaces appear. We therefore must decide a question that Richardson left open, namely whether redaction that replaces a defendants name with an obvious indication of deletion, such as a blank space, the word deleted, or a similar symbol, still falls within Brutons protective rule. We hold that it does.
Bruton, as interpreted by Richardson, holds that certain powerfully incriminating extrajudicial statements of a codefendantthose naming another defendantconsidered as a class, are so prejudicial that limiting instructions cannot work. Richardson, 481 U.S., at 207; Bruton, 391 U.S., at 135. Unless the prosecutor wishes to hold separate trials or to use separate juries or to abandon use of the confession, he must redact the confession to reduce significantly or to eliminate the special prejudice that the Bruton Court found. Redactions that simply replace a name with an obvious blank space or a word such as deleted or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Brutons unredacted statements that, in our view, the law must require the same result.
For one thing, a jury will often react similarly to an unredacted confession and a confession redacted in this way, for the jury will often realize that the confession refers specifically to the defendant. This is true even when the State does not blatantly link the defendant to the deleted name, as it did in this case by asking whether Gray was arrested on the basis of information in Bells confession as soon as the officer had finished reading the redacted statement. Consider a simplified but typical example, a confession that reads I, Bob Smith, along with Sam Jones, robbed the bank. To replace the words Sam Jones with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank, in the phrase I, Bob Smith, along with , robbed the bank, refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judges instruction not to consider the confession as evidence against Jones, for that instruction will provide an obvious reason for the blank. A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that Jones, not someone else, helped Smith commit the crime.
For another thing, the obvious deletion may well call the jurors attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confessions accusationonce the jurors work out the reference. That is why Judge Learned Hand, many years ago, wrote in a similar instance that blacking out the name of a codefendant not only would have been futile. . . . [T]here could not have been the slightest doubt as to whose names had been blacked out, but even if there had been, that blacking out itself would have not only laid the doubt, but underscored the answer. United States v. Delli Paoli, 229 F.2d 319, 321 (CA2 1956), affd, 352 U.S. 232 (1957), overruled by Bruton v. United States, 391 U.S. 123 (1968). See also Malinski v. New York, 324 U.S. 401, 430 (1945) (Rutledge, J., dissenting) (describing substitution of names in confession with X or Y and other similar redactions as devices . . . so obvious as perhaps to emphasize the identity of those they purported to conceal).
Finally, Brutons protected statements and statements redacted to leave a blank or some other similarly obvious alteration, function the same way grammatically. They are directly accusatory. Evans statement in Bruton used a proper name to point explicitly to an accused defendant. And Bruton held that the powerfully incriminating effect of what Justice Stewart called an out-of-court accusation, 391 U.S., at 138 (Stewart, J., concurring), creates a special, and vital, need for cross- examinationa need that would be immediately obvious had the codefendant pointed directly to the defendant in the courtroom itself. The blank space in an obviously redacted confession also points directly to the defendant, and it accuses the defendant in a manner similar to Evans use of Brutons name
or to a testifying codefendants accusatory finger. By way of contrast, the factual statement at issue in Richardsona statement about what others said in the front seat of a cardiffers from directly accusatory evidence in this respect, for it does not point directly to a defendant at all.
We concede certain differences between Bruton and this case. A confession that uses a blank or the word delete (or, for that matter, a first name or a nickname) less obviously refers to the defendant than a confession that uses the defendants full and proper name. Moreover, in some instances the person to whom the blank refers may not be clear: Although the follow-up question asked by the State in this case eliminated all doubt, the reference might not be transparent in other cases in which a confession, like the present confession, uses two (or more) blanks, even though only one other defendant appears at trial, and in which the trial indicates that there are more participants than the confession has named. Nonetheless, as we have said, we believe that, considered as a class, redactions that replace a proper name with an obvious blank, the word delete, a symbol, or similarly notify the jury that a name has been deleted are similar enough to Brutons unredacted confessions as to warrant the same legal results.
The State, in arguing for a contrary conclusion, relies heavily upon Richardson. But we do not believe Richardson controls the result here. We concede that Richardson placed outside the scope of Brutons rule those statements that incriminate inferentially. 481 U.S., at 208. We also concede that the jury must use inference to connect the statement in this redacted confession with the defendant. But inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Brutons scope confessions that use shortened first names, nicknames, descriptions as unique as the red-haired, bearded, one-eyed man-with-a-limp, United States v. Grinnell Corp., 384 U.S. 563, 591 (1966) (Fortas, J., dissenting), and perhaps even full names of defendants who are always known by a nickname. This Court has assumed, however, that nicknames and specific descriptions fall inside, not outside, Brutons protection. See Harrington v. California, 395 U.S. 250, 253 (1969) (assuming Bruton violation where confessions describe codefendant as the white guy and gives a description of his age, height, weight, and hair color). The Solicitor General, although supporting Maryland in this case, concedes that this is appropriate. Brief for United States as Amicus Curiae 1819, n. 8.
That being so, Richardson must depend in significant part upon the kind of, not the simple fact of, inference. Richardsons inferences involved statements that did not refer directly to the defendant himself and which became incriminating only when linked with evidence introduced later at trial. 481 U.S., at 208. The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face, in Richardsons words, facially incriminat[es] the codefendant. Id., at 209 (emphasis added). Like the confession in Bruton itself, the accusation that the redacted confession makes is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. 481 U.S., at 208.
Nor are the policy reasons that Richardson provided in support of its conclusion applicable here. Richardson expressed concern lest application of Brutons rule apply where redaction of confessions, particularly confessions incriminating by connection, would often not [be] possible, thereby forcing prosecutors too often to abandon use either of the confession or of a joint trial. 481 U.S., at 209. Additional redaction of a confession that uses a blank space, the word delete, or a symbol, however, normally is possible. Consider as an example a portion of the confession before us: The witness who read the confession told the jury that the confession (among other things) said,
Question: Who was in the group that beat Stacey?
Answer: Me, deleted, deleted, and a few other guys. App. 11.
Why could the witness not, instead, have said:
Question: Who was in the group that beat Stacey?
Answer: Me and a few other guys.
Richardson itself provides a similar example of this kind of redaction. The confession there at issue had been redacted to omit all reference to respondentindeed, to omit all indication that anyone other than Martin and Williams participated in the crime, 481 U.S., at 203 (emphasis deleted), and it did not indicate that it had been redacted. But cf. post, at 4, (Scalia, J., dissenting) (suggesting that the Court has never before endorsed . . . the redaction of a statement by some means other than the deletion of certain words, with the fact of the deletion shown).
The Richardson Court also feared that the inclusion, within Brutons protective rule, of confessions that incriminated by connection too often would provoke mistrials, or would unnecessarily lead prosecutors to abandon the confession or joint trial, because neither the prosecutors nor the judge could easily predict, until after the introduction of all the evidence, whether or not Bruton had barred use of the confession. 481 U.S., at 209. To include the use of blanks, the word delete, symbols, or other indications of redaction, within Brutons protections, however, runs no such risk. Their use is easily identified prior to trial and does not depend, in any special way, upon the other evidence introduced in the case. We also note that several Circuits have interpreted Bruton similarly for many years, see, e.g., United States v. Garcia, 836 F.2d 385 (CA8 1987); Clark v. Maggio, 737 F.2d 471 (CA5 1984), yet no one has told us of any significant practical difficulties arising out of their administration of that rule.
For these reasons, we hold that the confession here at issue, which substituted blanks and the word delete for the respondents proper name, falls within the class of statements to which Brutons protections apply.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
[Typewritten Version of Handwritten Redacted Statement, States Exhibit 5B]
This is a statement of Anthony Bell, taken on 1494 at 0925 hrs in the small interview room. Statement taken by Det. Pennington and Det. Ritz.
(Q) Is your name Anthony Bell
(Q) Are 19 years old and your date of Birth is 61774
(Q) Can you read and write
(Q) Are you under the influence of alcohol or drugs
(Q) You were explained your Explanation of Rights, do you fully understand them
(Q) Are you willing to answer questions without an attorney present at this time
(Q) Has anyone promised you anything if you answer questions
(Q) What can you tell me about the beating of Stacey Williams that occurred on 10 November 1993
(A) An argument broke out between and Stacey in the 500 blk of Louden Ave Stacey got smacked and then ran into Wildwood Parkway. Me , and a few other guys ran after Stacey. We caught up to him on Wildwood Parkway. We beat Stacey up. After we beat Stacey up, we walked him back to Louden Ave I then walked over and used the phone. Stacey and the others walked down Louden
(Q) When Stacey was beaten on Wildwood Parkway, how was he beaten
(A) Hit, kicked
(Q) Who hit and kicked Stacey
(A) I hit Stacey, he was kicked but I don't know who kicked him
(Q) Who was in the group that beat Stacey
(A) Me, , and a few other guys
(Q) Do you have the other guys names
(A) , and me, I don't remember who was out there
(Q) Did anyone pick Stacey up and drop him to the ground
(A) No when I was there.
(Q) What was the argument over between Stacey and
(A) Some money that Stacey owed
(Q) How many guys were hitting on Stacey
(A) About six guys
(Q) Do you have a black jacket with Park Heights written on the back
(Q) Who else has these jacket.
(Q) After reading this statement would you sign it
Det. William F. Ritz Det. Homer Pennington