People v. Pipes
People v. Pipes
Dissenting Opinion
(dissenting). I believe that this case represents a textbook example of when separate trials or separate juries should be used. I agree with the majority that Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), was violated in this case. Defendants’ Sixth Amendment Confrontation Clause rights were violated when the statements of each defendant’s nontestifying codefendant were heard by the single jury at defendants’ joint trial.
However, I disagree with the majority’s conclusion that this violation was not plain error that affected
Further, the effect on the jury of hearing each codefendant’s unchallenged statements was great. See, e.g., Bruton, supra at 135-136. Each defendant’s statements minimized any role he may have played and maximized the other defendant’s role in the shooting. Moreover, hearing these unchallenged and inculpatory statements essentially rendered futile defendants’ questioning of police officers, as well as contentions made during closing argument, that called into question the validity of the alleged statements made. The jury was unlikely to question the validity of the statements allegedly made when it heard that they were supported to some degree by statements made by each defendant’s codefendant. Accordingly, I believe the Bruton violation was plain error that affected each defendant’s substantial rights, and I would affirm the decision of the Court of Appeals and remand each case for its own new trial.
Opinion of the Court
Defendants were convicted of first-degree premeditated murder following a joint trial before one jury. The Court of Appeals reversed defendants’ convictions on the bases that the admission of each codefendant’s statements to the police against the other was a violation of Bruton v United States,
FACTS AND PROCEDURAL HISTORY
On March 23, 2002, three-year-old Destiney Thomas sustained a fatal gunshot wound as the result of a drive-by shooting. The prosecution charged defendants Cedric Pipes and Julian Key with first-degree premeditated murder,
Pursuant to MCR 6.121(C),
The trial court denied defendants’ motion, determining that defendants could not make the requisite showing of prejudice necessary to sustain the motion. The trial court concluded that although defendants’ proposed defenses involved blame shifting, they were not “mutually exclusive.” Furthermore, the trial court specifically noted that, given defendants’ offer of proof, no Bruton problem was present in this case. If the codefendant testifies at trial, then his statements to the police are admissible because the maker of the statements is subject to cross-examination. The trial court relied on the offers of proof presented by both defendants where each unequivocally stated his intention to testify at trial. The trial court noted multiple times its determination that no Bruton problem was present because both defendants planned to testify.
The trial court admitted into evidence multiple statements given by both defendants to the police.
Ultimately, however, defendants exercised their Fifth Amendment right and did not testify at trial.
The Court of Appeals reversed defendants’ convictions and remanded for new trials.
The dissent, however, would have affirmed defendants’ convictions on the basis that the offers of proof submitted by the defendants, unequivocally representing that they would testify, waived any claim of error with regard to separate trials or separate juries.
The prosecution sought leave to appeal in this Court. After directing the parties to address whether the offers of proof by defendants waived any right to claim a confrontation error, we heard oral argument on whether to grant the application or take other peremptory action permitted by MCR 7.302(G)(1).
STANDARD OF REVIEW
Constitutional questions, such as those concerning the right to confront witnesses at trial, are reviewed de novo.
ANALYSIS
In Bruton, the United States Supreme Court held
In Cruz v New York,
We agree with the Court of Appeals that a Bruton error occurred in this case.
To determine whether the Bruton error warrants reversal, we must first identify the proper standard of review to be applied in this case. In People v Carines,
The other inquiry of consequence is whether the issue was preserved at trial. In order to properly preserve an issue for appeal, a defendant must “raise objections at a time when the trial court has an opportunity to correct the error... .”
In this case, the first two requirements are satisfied because the introduction of the defendants’ statements that incriminated each other violated defendants’ Sixth Amendment confrontation rights. Once defendants exercised their rights not to testify, admission of the statements was in direct contradiction of the rules laid down in Bruton and Cruz.
The next question then is whether the Bruton error affected defendants’ substantial rights. Stated otherwise, the error must have been outcome determinative. Relying on Bruton, Cruz, and this Court’s decision in People v Banks,
We disagree. The Court of Appeals failed to give sufficient weight to the evidence that was properly admitted against each defendant, particularly the proper admission of each defendant’s self-incriminating statements, and therefore erroneously reversed defendants’ convictions. As held in Cruz, it was not error for each defendant’s own confessions to be admitted against that defendant.
Given each defendant’s statements, there is little question of actual innocence with regard to the first-
Furthermore, other probative and properly admitted evidence at trial corroborated defendants’ confessions.
Key’s girlfriend testified that she owned a green Jeep Cherokee and that she allowed defendant Key to drive her automobile “almost daily.” At the time of the shooting, she was out of town and returned to find her vehicle missing.
This evidence, coupled with each defendant’s own highly self-inculpating confession that was properly admitted against the defendant who made the statements, provided strong evidence of guilt from which the jury could convict these defendants. In light of this overwhelming evidence of guilt, the prejudicial effect posed by the Bruton error was minimal, and therefore the Bruton error was harmless.
Under plain error review, reversal is only appropriate when the plain error that affected substantial rights “seriously affected the fairness, integrity, or public reputation of the proceedings” or when the defendant shows “actual innocence.” In this case, for the same reasons that we find that defendants cannot show prejudice, defendants cannot show that the error “seriously affected the fairness, integrity, or public reputation of the proceedings” or that they are actually innocent. The properly admitted evidence of guilt, including each defendant’s own highly self-inculpating confession as properly used against him, was sufficient to render the Bruton error harmless. Indeed, it would be the reversal of convictions for error that did not affect the judgment that would seriously affect “ ‘the
CONCLUSION
The Court of Appeals erred in reversing defendants’ first-degree murder convictions. Defendants failed to object or move for a mistrial on Bruton grounds. Therefore, defendants failed to properly preserve the Bruton error for appeal. The Court of Appeals should have reviewed this unpreserved, constitutional error for plain error affecting defendants’ substantial rights. Because defendants failed to show prejudice requiring reversal, actual innocence, or that the error seriously affected the fairness, integrity, or public reputation of the trial, reversal was not warranted in this case. Accordingly, we reverse the Court of Appeals judgment and reinstate defendants’ first-degree murder convictions.
391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968).
People v Cannes, 460 Mich 750, 763; 597 NW2d 130 (1999) (citations omitted).
MCL 750.316(l)(a).
MCL 750.83.
MCL 750.227b.
Defendant Pipes was also charged with being a felon in possession of a firearm. MCL 750.224f(l).
MCR 6.121(C) provides that “[o]n a defendant’s motion, the court must sever the trial of defendants on related offenses on a showing that severance is necessary to avoid prejudice to substantial rights of the defendant.”
In People v Hana, 447 Mich 325, 349; 524 NW2d 682 (1994), this Court held that “[i]nconsistency of defenses is not enough to mandate severance [under MCR 6.121(C)]; rather, the defenses must be mutually exclusive or irreconcilable.” (Internal citations and quotation marks omitted.) In other words, “[t]he tension between defenses must be so great that a jury would have to believe one defendant at the expense of the other.” Id. (Internal citations and quotation marks omitted.)
Under Hana, a Bruton error may provide grounds for severance. Id. at 346 n 7; Zafiro v United States, 506 US 534, 539; 113 S Ct 933; 122 L Ed 2d 317 (1993).
The first proceeding ended in a mistrial. Before the commencement of the second trial, which is the subject of the present appeal, counsel for
The trial court instructed the jury that each statement was only to be considered against the defendant who made the statement. The jury was instructed on this point when the statements were admitted into evidence and when the trial court gave final jury instructions. However, as explained infra, such instructions do not cure a Bruton error.
Defendants then rested. They presented no evidence or witnesses.
Unpublished opinion per curiam of the Court of Appeals, issued May 31, 2005 (Docket Nos. 247718, 247719).
460 Mich 750; 597 NW2d 130 (1999).
474 Mich 918 (2005).
People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004).
People v McNally, 470 Mich 1, 5; 679 NW2d 301 (2004).
481 US 186; 107 S Ct 1714; 95 L Ed 2d 162 (1987).
442 US 62; 99 S Ct 2132; 60 L Ed 2d 713 (1979).
Id. at 77-81. Three justices dissented, and Justice Powell did not participate in the case.
The Supreme Court’s recent decision in Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), buttresses the point that both defendants’ confrontation rights were violated by the admission of the nontestifying codefendant’s incriminating statements. The statements clearly fall within the class of “testimonial” statements that are only admissible at trial if the declarant is available for cross-examination, or if the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine. Id. at 59.
There is a “ ‘ “very limited class of cases” ’ ” involving “structural errors” where errors are so “intrinsically harmful, without regard to their effect on the outcome, so as to require automatic reversal.” People v Duncan, 462 Mich 47, 51, 52; 610 NW2d 551 (2000), quoting Neder v United States, 527 US 1, 8; 119 S Ct 1827; 144 L Ed 2d 35 (1999), quoting Johnson v United States, 520 US 461, 468; 117 S Ct 1544; 137 L Ed 2d 718 (1997). This limited class of cases has never been recognized by either
“\ye reject the notion that a Bruton error can never be harmless.” Brown v United States, 411 US 223, 231; 93 S Ct 1565; 36 L Ed 2d 208 (1973).
People v Grant, 445 Mich 535, 551; 520 NW2d 123 (1994).
Id. (Internal citations and quotation marks omitted); Cannes, supra at 761.
Defendant Pipes did object to the introduction of one of his own statements because he had refused to sign it. However, this objection did not raise or preserve the Bruton error. See MRE 103(a)(1).
Absent an express waiver by defendants of their Fifth Amendment rights, we agree with the Court of Appeals majority that the trial court should not have relied on defendants’ representations that they intended to testify at trial when deciding whether to grant separate trials or juries. We reject the Court of Appeals dissent’s argument that defendants waived the Bruton error. See People v Riley, 465 Mich 442, 449; 636 NW2d 514 (2001). Defendants’ silence in the face of a Bruton error amounts to forfeiture, not waiver, because waiver requires “the intentional relinquishment or abandonment of a known right.” People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (internal citations and quotation marks omitted).
Any other conclusion would be contrary to the rule that defendants cannot “harbor error as an appellate parachute.” People v Carter, 462 Mich 206, 214; 612 NW2d 144 (2000). “The rule that issues for appeal must be preserved in the record by notation of objection is a sound one,” id., and that rule is totally eviscerated in situations, such as this, where defendants never address appealable issues with the trial court.
Id. at 763 (internal citations and quotation marks omitted); United States v Olano, 507 US 725, 736; 113 S Ct 1770; 123 L Ed 2d 508 (1993); Johnson v United States, 520 US 461, 469-470; 117 S Ct 1544; 137 L Ed 2d 718 (1997).
438 Mich 408; 475 NW2d 769 (1991). In Banks, this Court held that a Bruton error does not require reversal where “the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the
See also MRE 801(d)(2)(A), which provides for admission at trial of party admissions.
People v Dunn, 446 Mich 409, 424; 521 NW2d 255 (1994).
Id. at 423, quoting Arizona v Fulminante, 499 US 279, 296; 111 S Ct 1246; 113 L Ed 2d 302 (1991) (White, J., with Marshall, Blackmun, and Stevens, JJ., concurring), quoting Bruton, supra at 139 (White, J., dissenting); Cruz, supra at 195 (White, J., dissenting). (Original emphasis omitted; emphasis added.)
See MCL 767.39. The jury was instructed regarding the elements required to find guilt under an aiding or abetting theory.
The witness testified that her automobile was parked at her residence when she left town, and that defendant Key did not have permission to drive her automobile on the weekend the shooting occurred. A second set of car keys was missing from the witness’s residence.
Carines, supra at 773, quoting Johnson, supra at 470.
Reference
- Full Case Name
- People v. Pipes; People v. Key
- Cited By
- 193 cases
- Status
- Published