Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 06ZF0138, Richard F. Toohey, Judge.
Mark L. Christiansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Retired Presiding Justice of the Court of Appeal, Fourth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
I. INTRODUCTION
Late in the evening on Super Bowl Sunday, 2006, four African-American males traveled from Oceanside to Irvine to meet a drug dealer, ostensibly to buy about $1,200 worth of cocaine. Around 11:30 that night, two of those four males were seen chasing the drug dealer, and at least one of those two shot the drug dealer dead. A third male was videotaped urinating in a nearby parking lot. The fourth was apparently not involved in the chase.
The four males consisted of Stephen Bennett, Bernard Smith, Brandon Turner, and Brandon’s then 16-year old brother D. Three of the four males were prosecuted: Brandon Turner (see People v. Turner (Oct. 23, 2009, G041035) [nonpub. opn.] [2009 WL 3403343] [affirming conviction of murder with special circumstances]), Bennett (see People v. Bennett (Nov. 15, 2010) [nonpub. opn.] [2010 WL 4597436] [affirming conviction because Bennett was key contact person with drug dealer]) and, in the case now before us, Bernard Smith.
Bennett and Smith were tried together. Two facts were readily established: One, Bennett was not one of the two males who chased the drug dealer that night. He was the member of the quartet captured on a security videotape urinating in a nearby parking lot. Two, Brandon, the elder Turner, certainly was one of the two males who chased the drug dealer.
That left the jury in the joint trial of Bennett and Smith with the problem of ascertaining whether it was Smith, the defendant in this case, or, alternatively, Brandon Turner’s younger brother D., who was the other male seen chasing the drug dealer.
At the trial of Smith and Bennett, a taped interview of Bennett by an Irvine police sergeant was played to the jury. In the taped interview, Bennett was very plain that the younger brother D. “never got out of the car.” By process of elimination, it was thus obvious that Smith was the other male chasing the drug dealer. Smith was subsequently convicted of committing murder in the commission of a robbery, second degree robbery, possession of a firearm by a felon, and sale or transportation of cocaine.
Following People v. Fletcher (1996) 13 Cal.4th 451 (Fletcher), we conclude that the admission of the taped statement by nontestifying codefendant Stephen Bennett violated Smith’s constitutional right to confront witnesses against him. (See generally Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v. Aranda (1965) 63 Cal.2d 518 (Aranda).) The statement, in Fletcher’s words, “powerfully incriminated” Smith, but Smith had no opportunity to cross-examine Bennett about it. (Fletcher, supra, 13 Cal.4th at p. 470.)
The next question is whether the erroneously admitted statement was harmless. This court specifically requested supplemental briefing zeroing in on the question of harmless error. The problem is this: As the Attorney General concedes, there is no evidence in the record which establishes that the younger brother D. was in the car at the time the drug dealer was shot except for Bennett’s statement to the Irvine police sergeant. Nor, as we explain below, was the evidence of the eyewitness neighbors who saw the chase and the shooting sufficient to identify Smith, as distinct from D., as the second male chasing the drug dealer. The physical differences between Smith and D. in height and weight were just too close, particularly under the reasonable doubt standard required by Chapman v. California (1967) 386 U.S. 18 (Chapman), for this court to say that the eyewitnesses identified Smith and not D.
Reluctantly, then, we reverse the judgment of conviction of Smith as to the murder and the second degree robbery. Since we have already affirmed the conviction of Bennett, we may take it (assuming that Bennett’s conviction remains final) that any retrial of Smith will not be a joint one with Bennett. The other counts against Smith (possession of a firearm by a felon and sale or transportation of cocaine) are otherwise not challenged on appeal and thus affirmed.
II. FACTS
A. A Few More Background Details
Some more details must be added to the basic outline of the facts just mentioned: Most of those details come from the testimony of Reuben Avery, from whose Oceanside house the four males left for Irvine that Super Bowl Sunday night.
The four males met sometime after 9 p.m. at Avery’s house in Oceanside. Brandon Turner mentioned that he had almost no money and expressed a desire to do a “lick” -- slang for robbery. For his part, Smith said he wanted to obtain some cocaine. Bennett volunteered he could get crack cocaine from one Brian Gray, often referred to as “P.C.”
Bennett called Gray, an Irvine-based drug dealer operating out of his apartment complex at the corner of Culver and Michaelson, to arrange a meeting. There must have been some discussion of a robbery and murder of Gray, because, while invited to accompany the other four males to Gray’s apartment, Avery declined to join the group, saying that $1,200 worth of dope was not worth someone’s life, particularly someone with a child (evidently referring to Gray’s having children).
There is no question that the four arrived in Irvine at about 11:15 that night, as shown by a call from Bennett’s cell phone to Gray’s cell phone at that time. And there is no question that Bennett was videotaped as he was urinating in a nearby car wash parking lot.
About that time, two black males were seen by a number of witnesses chasing Gray. They heard shots. Gray was soon found dead, shot from behind.
B. The Evidence on the Second Man Chasing Gray
The issue of precisely what the witnesses saw has been addressed in further briefing requested by this court. Specifically, we wanted to know if the second person seen by the witnesses might be identified as Smith. The Attorney General’s supplemental brief has taken the position that the witnesses did indeed see Smith instead of D., albeit there was no actual identification of Smith.
Here is a summary of the facts which the Attorney General has proffered to support its best case that the eyewitnesses identified Smith:
(1) There is no question witnesses saw two African-American males chasing Gray, and both males were described as “men.” No witness described either of the two as a juvenile. D. was 16 years old at the time and appeared to Avery to “be a juvenile.” Smith was 44 years old.
(2) One witness testified that the first man chasing Gray was “slender, ” while the person following that first chaser was “heavier set, big.” A police investigator documented Bernard Smith’s height and weight, in February 2006, to have been “approximately five-foot-six, 180 pounds.” The same investigator documented D.’s height and weight at the time to have been “approximately five-foot nine, 150 pounds.”
And that’s it as far as witness identification is concerned.
On page 15, in its initial respondent’s brief filed April 5, 2010, the statement was made that a certain witness “positively identified [Brandon] Turner and appellant as the men chasing after P.C. [the drug dealer Gray] as Turner was shooting at him.” The same paragraph asserted that another witness said “Turner [was] following [the drug dealer] and shooting; and appellant following and yelling, ‘Get him’ three times.” The paragraph also stated that yet a third witness “saw Turner and appellant walking away together.”
The Attorney General further asserts, by way of evidence showing that D. was in the car and thus not involved in Gray’s murder, this: Avery testified that, at Avery’s house before the trip to Irvine, Smith asked Bennett “where he can get drugs from.” (The version on cross-examination was that Smith asked Bennett “do you know where we can get some drugs?” or “where I can get some drugs?”) And there is no question that Smith did indeed return with some cocaine: A police investigator testified that Avery told him that after Smith got back to Avery’s house, Smith asked if he could borrow a cocaine pipe from Avery, and thereafter Smith shared the pipe, now with cocaine in it, with Avery.
C. The Evidence From Smith’s Taped Conversation With Bennett
This court also requested briefing on whether something Smith might have said after his arrest might be sufficient to establish that he was the second chaser along with Brandon Turner. The context of the request was the fact that after Smith and Bennett were arrested, they were placed alone in a patrol car with a hidden tape recorder, and the conversation was recorded. The tape and a transcript later were placed in evidence at their trial. In our request for supplemental briefing, we asked whether any of the statements made by Smith in his conversation with Bennett might furnish a basis on which to affirm the judgment under a harmless error rationale. Again, the Attorney General took the position that, yes, there were such statements. Here they are. We include the context and the exact language of the statement:
(1) According to the Attorney General’s supplemental briefing, Smith told Bennett: “I say Squabbles [Brandon Turner’s nickname] hit him in the back. I said... well shoot him in the back.”
This sounds like a confession, and if Smith had really said that, we would readily affirm the judgment on the basis that any error was harmless. But what Smith said was not, in context, a confession. Perhaps some appellate cases are just accident-prone, but the Attorney General’s version omits one significant prefatory clause that changes the meaning of the quotation. We now recount what was actually said. The quoted ellipses (***) is taken from the transcript of the conversation; “***” denote unintelligible matter, not our own editing. All quotations are verbatim.
See footnote 1, above. These things happen. Reading through heavy transcripts it’s often too easy to see what one expects to see and miss the rest; the Attorney General’s office has literally thousands of briefs to write a year, a few goofs are to be expected. That said, we should all be reminded that there are a few basic rules to “cutting” quotations and one of them is not to edit a quote in such a way as to change the meaning that is plain from the unedited quote. You can’t say: “The Smith Court said ‘the sky is green, ” when the full quotation from Smith is: “Defendant contends, frivolously, that the sky is green; we of course give short shrift to the proposition.”
The context of the Bennett-Smith conversation at that point was that some acquaintances of Smith and Bennett who hadn’t been on the trip to Irvine had been talking to the police. Smith asked Bennett, “you know who’s talking?” Bennett asked “who?” and Smith replied with the names of “Reuben, Tesa and Fat Daddy.” (Reuben referred to Avery. “Fat Daddy” was the nickname of Rhonda Connor (Avery’s former roommate and fellow crack addict), and Tesa apparently referred to a girlfriend of Avery’s named Tesa.)
After Bennett’s “uhum, ” Smith elaborated: “Told every mother *** every God damn thing ***.”
Bennett repeated the comment (as transcribed): “Every got dam thing mmm. Everything.”
But then Smith made a reference to Brandon Turner: “One thing *** maybe, maybe not, *** they talking about *** Squabbles, Squabbles talking, bragging.”
After Bennett’s one word answer, “yeah, ” Smith then uttered the comment that, taken out of context, sounds as if it were a confession. But we will quote the entire sentence, including the part the Attorney General left out: “And my man said, he said, uh I say Squabbles hit him in the back. I said *** well shoot him in the back. I see the thug the working *** seen the other day.” To which Bennett asked “Who?” and Smith replied, “Smokey.”
(2) Apropos confessions, Smith made another statement which indicated knowledge of how Gray was gunned down, i.e., he knew Gray was shot in the back.
The context of the conversation was Smith telling Bennett what Smith had told the police. We pick up the conversation with Smith talking about what he had just told police: “I said let me tell you something man.”
“And I see the one cop got, ” Bennett interjected, but was not able to complete the thought as Smith continued: “*** talked to you three, four days man if you keep trying to shoot them mother fuckers uh TV shit to me man. Cause you saying Red [Bennett’s nickname] say. I say man anything Red said nigga basically well I’m agree with.”
Bennett mumbled “Mmm” and Smith continued: “If Red said I call, he call me and I said dude him shot in the back. I said didn’t you know like that I said didn’t you say that. He said na I said you playing games.” Bennett agreed: “See they playing games.”
(3) Smith made a comment to the apparent effect that he told a police officer that he “dove[]” over some bushes. The context was Bennett telling Smith how police had put a tracking device on Bennett’s car, but Bennett had found it and told police he had thrown it away somewhere on the I-10 freeway. After Bennett finished with “Yeah that’s what I told them, ” Smith continued with his end of the conversation, telling Bennett what Smith had told the police. Smith said: “You know I see first of all he showed me a picture I don’t know I’m telling you what’s happening, I was high. I’m the only witness I told you I was pissing and I heard somebody say ‘hey cuz, don’t run, ” they got the shooting, I doved over in the bushes, and I’ve seen, see Red [Bennett] coming across I took off running say hey man they already shooting.” The Attorney General points out that no less than four witnesses corroborated the fact of a shooting.
(4) Smith told Bennett that he (Smith) had told police that the “only” witness the police had was Smith himself. The context of that part of the conversation was Smith’s continued recounting of what he had told the police.
We pick up the conversation with Smith’s comment that Smith himself was urinating at the time: “I say, I say, I had to piss.”
Bennett laughed, and Smith continued: “But look, look. *** look, look but *** I told them I jump a the bushes right, then I say couple of *** hey man they shooting and ran your way and then dude come flying out of no where. I know he uh-huh I was drunk you know, yeah I don’t want, I told no shit, I say maybe he was drunk may he change *** soup bowl ***”
Bennett then added: “Fat Daddy, Uff, the only person that helped and didn’t say shit was the white boy Mike.”
Smith continued: “If I told them, today, I say Fat Daddy don’t know nothing, Reuben don’t know nothing, Tesa don’t know nothing, Mike don’t know nothing, who ever doing the talking that’s the only mother fucker witness you got, is me [laughter].”
(5) Smith made another comment to Bennett to the effect that the police had told Smith they could show that he had been jumping some bushes, but Smith’s gloss on that point was all the police “got” on “us” [presumably at least Bennett and Smith, if not also the two Turners] was the ability to place them in a nearby parking lot.
The context of the statement was Bennett’s comment to the police indicating that his wife had nothing to do with the crime: “And have Beth scared I said look here man. My wife ain’t got nothing to do with it you get ass off them cuffs man, and she’s going home and I’m going with her [laughter] it’s uh, yeah [laughter].”
At which point Smith then made his bushes comment, apparently mock quoting what a police officer had told him (hence the transcriber inserted internal quotation marks): “I mean my, hey man, ‘Hey we know you there I can put you there that you jumping those bushes’ but the only thing they got is us in that parking lot.”
(6) Smith made a comment that he had been seen running.
We pick up the context just after his “parking lot” comment (just quoted), and Bennett’s “Yeah.” Smith next said: “then they like oh see he’s coming again. I said yeah I got out of the car to piss. And I had to.”
But Bennett tried to correct Smith: “Oh but they didn’t see you.”
Smith then replied, clearly admitting he had been seen running: “Na, na listen they see me run they see me running.”
But Bennett seemed to want to correct Smith: “Don’t, don’t see you run *** he knows what’s going on you don’t have to ***”
But Smith stuck with the point that he had been seen running: “They just seeing me. All they saying *** Squabbles [Brandon Turner], they seen Squabbles.”
“They seen, I’ve seen that whole mother fucker back, ” Bennett commented.
Smith now put the emphasis on Brandon Turner: “They seen Squabbles, they seen Squabbles walking through the lot with you, right before you pulled in right when you pulled in. Squabbles is walking.”
“Pulled in, when I pulled in again, ” Bennett said. “Yeah mm-hum” was Smith’s answer.
Then Bennett asked Smith a question: “You didn’t see him?”
“If I would’ve, ” Smith answered, “if I would’ve known that, shit he wasn’t with me.”
Bennett’s reply was: “Yeah you know something like, so like, like I didn’t say.”
At that point the conversation segued to Smith’s estimation of the police and apparently his protestation of innocence to them: “Maybe their recording in this mother fucker that’s what they do got mother fucker we didn’t do it, you punk ass Barnaby Jones TJ hookers mother fuckers.”
(7) Finally, the Attorney General directs us to some comments to the effect that he was going to deny knowing about the gun and was going to tell the police he had no need of money.
The first of these was Smith’s utterance: “Okay. So when dude when dude caught me the bush I said man look here man we was just out finding some work man, and we weren’t broke.” (The context was a description of an interview with the police in which Smith had just protested his innocence, telling someone who was probably an officer, “... but you know I’m a witness I ain’t did shit....”)
The second of these comments was Smith reassuring Bennett that he had told the police that he was unaware of any guns among the four males.
We pick up the context with Smith’s retelling of some sort of interview in which Smith made the point he was the only witness: “You know I see first of all he showed me a picture I don’t know I’m telling you what’s happening, I was high, I’m the only witness I told you I was pissing and I heard somebody say ‘hey cuz, don’t run, ’ they got the shooting, I doved over in the bushes, and I’ve seen, see Red [Bennett] coming across I took off running say hey man they already shooting.”
After Bennett’s “Yeah, ” Smith continued: “Then turned running, you know what I’m saying they like *** man I don’t even remember *** shit I’m looking at video *** where you came from.”
And after another “Yeah, ” Smith resumed: “I ain’t *** nobody *** I just got off to piss you know what I’m saying. I see *** gonna know shit man hey nigga had on that blue coat, you know he’s running from dude.”
Another “Yeah” from Bennett and Smith brought up the subject of a gun: “These talking about just another gun, I said what you talking about, I don’t know.”
Bennett then made the point he too didn’t know of any guns: “That’s what I told him, they kept saying, I said not that I know of, and shit if he did he wouldn’t be in my car. You know what I’m saying, ” and laughed.
Smith finished off the point; he didn’t know anyone had a gun: “If I knew *** had a gun, so you what I mean saying I ain’t know no gun dude had no gun.”
The third comment was Smith’s mention he had told police that “This, this, just going to buy us some dope” and further said, “He’s got my *** Look it man I have money in pocket, man.”
D. Bennett’s Statement
One of the prosecution’s exhibits (exhibit 61a) was a taped interview of codefendant Bennett conducted by an Irvine police sergeant in the company of two detectives in Arizona. Here is the entire interview as it was played to the jury (readers will recall that “Squabbles” was the name for Brandon Turner):
“Stephen Bennett: Listen, I’m in the car and Squabbles’ little brother is in the car too.
“Sergeant Wyatt: So, there’s a fourth person in the car?
“Stephen Bennett: He never got out of the car.
“Sergeant Wyatt: Ok, but this is the first time this is coming out.
“Detective Garcia: He didn’t tell us that, you didn’t tell us that.”
E. Effect on Jury
After Smith was convicted, his trial counsel made a motion for new trial, showcasing Bennett’s comment about D. (Smith’s trial counsel had previously objected to it as well. The motion was supported by the declaration of an investigator from the county’s alternate defender office, which said that three jurors “all stated that they considered” Bennett’s comment in the interview -- and specifically “something to the effect of, ‘youngster never got out of the car’” to “deduce that Mr. Smith was one of the subjects seen in the surveillance video.”
The motion also noted that the prosecutor referred three times to Bennett’s statement that D. never got out of the car in his rebuttal closing argument. One of those references clearly was directed at Smith: “And who is the they, based on Bennett’s state of mind? Well we know what Bennett said to the police who they is.”
We should note here that the trial court did give a limiting instruction, telling the jurors to consider the comment only against Bennett. In any event, the motion for new trial was denied.
III. THE ARANDA-BRUTON PROBLEM
A. The Aranda-Bruton Problem Generally
One of the more esoteric issues in the criminal law is what some criminal law mavens call “Aranda-Bruton, ” after, respectively, the 1965 California Supreme Court and 1968 United States Supreme Court cases which developed the basic idea. (See Aranda, supra, 63 Cal.2d 518; Bruton, supra, 391 U.S. 123.)
Aranda-Bruton is a relatively esoteric problem because it can only arise out of a joint trial of two or more defendants, where a statement by one of the codefendants is brought to the attention of the jury, and that statement has the power to affect one or more of the other codefendants. Since, in most cases, the codefendant who originally made the statement asserts his Fifth Amendment right not to take the stand, he or she is thus not available for cross-examination, including any statement previously made to the police.
On the other hand, both the federal and state Constitutions guarantee defendants the right to confront witnesses against them, and thus much of the case law revolving around the Aranda-Bruton problem refers to the “Confrontation Clause.”
Thus, depending on just how incriminating the out-of-court statement by the codefendant is against a given defendant, there is the possibility that the Confrontation Clause may be violated.
These days, confrontation clause cases usually come with plenty of citations to Crawford v. Washington (2004) 541 U.S. 36, a case that explored the use of a non defendant witness’s tape recorded statement where the defendant did not have the opportunity to cross-examine that witness. Given that the present case centers on a codefendant’s statement, we have no occasion to explore the degree to which the result we reach is also required under Crawford.
More technically, the Aranda-Bruton problem centers on the recognition of the idea that a limiting instruction to the jury -- telling the jury not to consider the out-of-court codefendant’s statement against any other codefendants -- may require those jurors to do, in Fletcher’s phrase, the “psychologically impossible.” (See Fletcher, supra, 13 Cal.4th at p. 455.) As our own Supreme Court put it in the original Aranda case, the jury may be asked to perform a “‘mental gymnastic’” beyond its power. (See Aranda, supra, 63 Cal.2d at p. 525.)
In the present case, for example, there is no question the jury was told it could not consider against Smith the statement from Bennett that, in effect, ruled out the younger brother D. as one of the possible chasers of Gray. The Aranda-Bruton problem reifies itself here in the question: Were the jurors psychologically able to perform the task?
Obviously, one way for prosecutors to avoid the Aranda-Bruton problem altogether is simply to try each defendant separately. Indeed, separate trials were one of the suggestions proffered in the original Aranda case. (See Aranda, supra, 63 Cal.2d at p. 530-531.)
But, as People v. Lewis (2008) 43 Cal.4th 415 has noted, there is a legislative preference for joint trials. (See id. at p. 452, citing Pen. Code, § 1098.) And no wonder: Obviously joint trials offer taxpayers more bang for the buck. Moreover, as the federal supreme court said in Richardson v. Marsh (1987) 481 U.S. 200 (Richardson), joint trials have other advantages as well: Victims and witnesses are not required to suffer the “inconvenience (and sometimes trauma) of testifying, ” plus they eliminate the unfair advantage that the “last-tried” defendant would have over earlier-tried defendants in knowing the entirety of the “prosecution’s case beforehand.” (Id. at p. 210.)
B. The Richardson Gloss on Aranda-Bruton
The Richardson case, in fact, serves as the basis for the Attorney General’s argument in this case that the admission of Bennett’s D.-never-got-out-of-the-car statement, plus the limiting instruction, equaled no violation of Smith’s right to confront the witness against him, here Bennett.
The Attorney General posits a model of the Aranda-Bruton problem as elucidated by Richardson that amounts to a fairly tidy formula: A codefendant’s statement that does not directly refer to the (complaining) defendant by name, and also requires an inference for its incriminatory value based on linkage to other evidence before the jury, simply does not violate the complaining defendant’s right to confrontation, period. (See Resp. br. at pp. 12-14.)
Here, we first recognize that Bennett’s statement about D. remaining in the car did not expressly refer to Smith. Moreover, to make the remain-in-the-car statement incriminating of Smith requires an inference reliant on other evidence, including the fact of only four individuals traveling to Irvine and one of them being preoccupied with micturition at the time of the shooting.
Tidy and appealing as the model is (it would certainly make Aranda-Bruton cases easier on judges at all levels), as we soon explain it is a model at odds with what the California Supreme Court later held in Fletcher, which represents our high court’s most thorough meditation on the Richardson case.
But now to Richardson, if only to explain why the Attorney General might colorably read it for a bright-line rule that codefendant statements are available whenever the incrimination depends on “linkage” to other evidence. (“Linkage” is the key word in Richardson, e.g., Richardson, supra, 481 U.S. at p. 208.)
Richardson arose out of a home invasion robbery in which three people (the defendant, her boyfriend, and an accomplice) gained access to a home, and then shot and robbed the occupants. The defendant and the accomplice (but not the boyfriend, who was a fugitive at the time of trial) were tried together. The prosecution introduced into evidence a statement by the accomplice that, during the drive to the home beforehand, the boyfriend said he was going to kill the victims after the robbery. (See Richardson, supra, 481 U.S. at pp. 202-204.) The statement made no reference at all to the defendant -- on its face the statement sounded as if the boyfriend and the accomplice were alone in the car when the boyfriend announced his violent post-robbery intentions. (See id. at p. 204, fn. 1 [actual text of accomplice’s statement].) Then, after the prosecution rested, the defendant took the stand and told a story that indicated she had been in the backseat of the car during the drive over. Of course, she maintained that she heard no conversation about the intention to kill -- the radio had been on too loud and the speaker was blaring into her ear -- and so the defendant testified that she had no knowledge that the accomplice or her boyfriend were armed or intended to kill. (See id. at p. 204.) Despite her claim that she hadn’t heard the announcement, the jury still convicted her of felony murder.
The defendant in Richardson attacked the statement in challenging her felony-murder conviction. After the Sixth Circuit reversed the conviction, reasoning that the court had to examine “not only the face of the confession but also all of the evidence introduced at trial, ” the Supreme Court took the case up because other federal intermediate appellate courts had, in contrast with what the Sixth Circuit had just done, not followed the “‘evidentiary linkage’ or ‘contextual implication’ approach to the Bruton question.” (Richardson, supra, 481 U.S. at p. 206.)
In reversing the Sixth Circuit (in effect, affirming the conviction) the Richardson court emphasized the greater psychological attenuation between a statement that is incriminating “only when linked with evidence introduced later at trial” and a statement that is incriminating on its face. (The latter might be something like the codefendant’s exclamation at the time of an arrest, “it’s a fair cop guv, but I want you to know it wasn’t my idea to use the gun, it was me mate Bernard’s, ” cf. Richardson, supra, 481 U.S. at p. 208.)
In Richardson, ironically enough, the statement requiring linkage was the defendant’s own testimony which made the codefendant accomplice’s statement incriminating, and it came after the prosecution had rested. (See Richardson, supra, 481 U.S. at p. 208.) The court then went on to emphasize the practical difficulties of applying Bruton in linkage cases, including the problem that it might require trial judges to assess Bruton error at the end of the trial. (Id. at p. 209.) The court also alluded to the possible “manipulation” of the Aranda-Bruton rule by defendants if a statement requiring linkage was enough to create a Confrontation Clause violation. (Ibid.)
The essence of Richardson’s rationale is found in two paragraphs that make up most of page 208 of volume 481 of the United States Reporter. In those two paragraphs Richardson distinguished Bruton as based on an express incrimination and emphasized the jury’s greater ability to disregard a codefendant’s incriminating evidence when the incrimination depends on linkage to the rest of the case.
We would amplify the “manipulation” point a bit: By testifying after the prosecution had rested, the defendant had attempted to give herself a free reversal-on-appeal card. The original statement by the accomplice did not incriminate her at all -- for all the jury knew the defendant was not in the car. Only the defendant’s own testimony placed her in the car in such a way that she might have heard her boyfriend’s announcement that he intended to kill the occupants of the house when they got there. In essence, it was the defendant’s own testimony that made her codefendant’s statement incriminatory.
C. Fletcher’s Reading of Richardson
To the degree, though, that Richardson might be read for a bright-line “if you need any other evidence to make the codefendant’s statement incriminatory, don’t worry about Bruton” rule, such a reading has been rejected by the California Supreme Court in Fletcher. If Richardson really did mean that any codefendant’s statement which depended on other evidence (linkage) for its incriminatory value passed Confrontation Clause muster, Fletcher would have been decided differently. But, as shown by the italicized words in the key rationale language in Richardson (see footnote 4 above), it still might have been possible to reasonably read Richardson for something other than an absolute bright-line rule.
Fletcher arose out of a ruse to rob motorists on freeways by pretending to have car trouble. In one such instance, a woman stopped on a freeway on-ramp where a taxi had been abandoned, and asked two men near the taxi if there was a problem. One asked if she had jumper cables. When the woman said she didn’t have any and started to drive away, one of the men fired a shot at her, fatally wounding her. (Fletcher, supra, 13 Cal.4th at p. 457.)
The two men, Fletcher and Moord, were eventually apprehended, and, while awaiting trial, one of them, Fletcher, talked to a fellow jail inmate. The inmate later testified that Fletcher said “‘he and a friend were on a freeway ramp and had a cab or a vehicle -- like there was a cab or something there, and they were using jumper cables or some kind of ruse to get people to stop.’” (Fletcher, supra, 13 Cal.4th at p. 458.) Elaborating, the inmate said that Fletcher had said “‘this woman had slowed down and stopped, and... as she drove away he shot at her.’” (Ibid.)
Other evidence presented to the jury included the fact that on the same night, at about the time of the robbery, Fletcher and Moord had gone to the apartment occupied by the aunt of one of Fletcher’s friends but the aunt refused to let them stay the night, so about a half an hour later Fletcher and Moord left for the apartment of Fletcher’s former girlfriend. (Fletcher, supra, 13 Cal.4th at p. 458.)
When, based on the Confrontation Clause, the appellate court reversed Moord’s conviction for murder and attempted robbery based on the admission of codefendant Fletcher’s statements in their joint trial, the Supreme Court granted review and considered the issue. And affirmed the appellate court’s reversal.
Again, whatever else, the unanimous Fletcher court did not read Richardson for a bright line “necessity of linkage means codefendant’s statement ok” rule. First, the court noted that Fletcher’s comment to the inmate established that two men had implemented a ruse to stop helpful motorists and rob them. But then it also noted the aunt’s testimony that placed Moord in Fletcher’s company moments after the shooting, and said: “reasonable jurors could not avoid drawing the inference that Moord was the unnamed person mentioned in Fletcher’s statement.” (Fletcher, supra, 13 Cal.4th at p. 469.) The court further noted that the statement was “strongly incriminating because it attributed to Moord” an intent to use the ruse to rob -- he might, the court pointed out, simply have had the intent to steal the taxi. (Id. at pp. 469-470.) The bottom line: “Because Fletcher’s statements powerfully incriminated Moord even after redaction, its admission in evidence over Moord’s objection violated his Sixth Amendment right of confrontation.” (Id. at p. 470.)
We must add that the Fletcher opinion specifically declined to perceive any “‘bright line’ rule of either universal admission or universal exclusion.” (Fletcher, supra, 13 Cal.4th at p. 456.) And, as noted (see footnote 4 again), there was at least some language in Richardson which suggested that a bright-line rule was not absolutely mandated by Richardson.
What the Fletcher court did was to articulate a series of formulations by which courts could ascertain the incriminatory value of the codefendant’s statement:
-- whether jurors “could not avoid drawing the inference that the defendant was the coparticipant designated in the confession by symbol or neutral pronoun” (id. at p. 456, italics added);
-- “how directly and how forcefully the codefendant’s confession implicates the nondeclarant defendant” (id. at p. 465, quoting Richardson, supra, 481 U.S. at p. 208);
-- if the statement “contains references to distinctive clothing, mannerism, place of residence, or other information that readily and unmistakably identifies the person referred to as the nondeclarant defendant” (id. at p. 466, italics added);
-- if it was “‘obvious to everyone’” or “‘bound to know’” that the word “‘deleted’” referred to the defendant (id. at p. 466, quoting People v. Terry (1970) 2 Cal.3d 362, 384-385);
-- if “any reasonable juror must inevitably perceive that the defendant on trial is the person designated by pronoun or neutral term in the codefendant’s confession” (id. at p. 466, italics added).
D. Fletcher’s Validation in Gray
Fletcher’s disinclination to read Richardson for a rule that used any “linkage” to other evidence as a test was validated about two years later, when the United States Supreme Court decided Gray v. Maryland (1998) 523 U.S. 185 (Gray). As in Fletcher, if reference or linkage to other evidence than the codefendant’s statement itself insulated the statement from a Confrontation Clause violation, Gray would have had to have been decided the other way.
A victim had died as the result of a severe beating. One man confessed to the police, saying that he and two other individuals “had participated” in the beating. (Gray, supra, 523 U.S. at p. 188.) The defendant was tried jointly along with the confessor. The confessor’s statement was read to the jury in the form of the confessor’s answer to the question, “‘ Who was in the group that beat [the victim]?’” The answer that followed was: “‘Me, deleted, deleted, and a few other guys.’” (Id. at p. 196.) The prosecutor followed up with the question, “‘after he gave you that information, you subsequently were able to arrest [the defendant]; is that correct’” and of course got an affirmative answer. (Id. at pp. 188-189.) The jury was of course instructed not to use the statement against the defendant.
The federal high court in Gray squarely held that its previous decision in Richardson did not control the result in the case. (Gray, supra, 523 U.S. at p. 195.)
But Richardson might have controlled the outcome in Gray, if read too broadly. The Gray court began by conceding that “Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially” (ibid.), the Gray court then went on to read Richardson more narrowly than it might otherwise have been read. (And the Gray court’s use of the word “concede” is significant, as we shall soon show.)
The Gray court next “concede[d]” that, in the case before it, “the jury must use inference to connect the statement in this redacted confession with the defendant.” (Gray, supra, 523 U.S. at p. 195.)
The use of the word “concede” -- twice -- is significant. The Gray court was indicating that the result it was reaching was contrary towhat Richardson had “placed outside the scope of Bruton’s rule, ” -- or, at least, Richardson if read for a rule that the need to use inferences makes any statement outside Bruton.
Clearly, though, the Gray court was reading Richardson narrowly (or, if one is more cynical, deliberately pruning back the Richardson gloss on Bruton). After its two “concede” sentences, in the very next sentence, the Gray court said inferences per se were not the dispositive test, a statement that contradicted what it had just characterized Richardson as saying: “But inference pure and simple cannot make the critical difference, for if it did, ” said the Gray court, Richardson would also “place outside Bruton” various kinds of statements which obviously identified the defendant, such as physical descriptions inserted for the defendant’s name. (Ibid.)
Alluding to previous federal high court precedent which had established that nicknames and specific descriptions fall within the scope of Bruton, the Gray court went on to say that Richardson therefore had only placed beyond Bruton’s reach inferences that do not “obviously” refer to the defendant, or which the jury would not ordinarily make immediately, “even were the confession the very first item introduced at trial.” (Gray, supra, 523 U.S. at p. 196.) It was obvious enough that the confessor’s statement at issue in Gray had violated the defendant’s rights under the Confrontation Clause, and the case was remanded for further proceedings which took that fact into account. (See id. at p. 197.)
The entire passage is worth quoting: “This Court has assumed, however, that nicknames and specific descriptions fall inside, not outside, Bruton’s protection. See Harrington v. California, 395 U.S. 250, 253, 89 S.Ct. 1726, 1728, 23 L.Ed.2d 284 (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 18-19, n. 8. [¶] That being so, Richardson must depend in significant part upon the kind of, not the simple fact of, inference. Richardson’s 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, 107 S.Ct., at 1707. 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 Richardson’s words, “ facially incriminat[es]” the codefendant. Id., at 209, 107 S.Ct., at 1708 (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, 107 S.Ct., at 1707.” (Gray, supra, 523 U.S. at pp. 195-196, italics added.)
Did the Gray court read Richardson too narrowly? The author of Richardson, Justice Scalia, clearly thought so. He understood the Richardson majority to have drawn a new line, not merely followed an old one. (See Gray, supra, 523 U.S. at p. 200 (dis. opn. of Scalia, J.) [“Because I believe the line drawn in Richardson should not be changed, I respectfully dissent.”].)
E. Fletcher Controls Here
The worst thing one can say of Fletcher is that it was ahead of its time. That is, Fletcher correctly predicted what the United States Supreme Court would do in Gray, by recognizing that Richardson could not (or maybe “should not” would be the better phrase) be read for a bright-line no-use-of-other-evidence rule. (See Fletcher, supra, 13 Cal.4th at pp. 463-465 [noting federal circuit split over whether Richardson laid down per se rule or Confrontation Clause matters were still determined on “case-by-case basis” and reading Richardson to depend on “how forcefully the codefendant’s statement incriminates the nondeclarant defendant.”].)
Fletcher is, in any event, controlling on this court as a matter of stare decisis. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
And as a matter of application of rule to facts, Fletcher in fact applies a fortiori to the case before us. In Fletcher, the codefendant’s statement did not name the defendant -- the codefendant’s statement merely mentioned a “friend” of the defendant. The “friend” could have been anybody. Only when linked to the evidence of the aunt that the defendant Moord had appeared with the codefendant at her apartment moments after the shooting at around 2 in the morning did it become obvious that Moord was the “friend” referred to in the statement. And that violated the Confrontation Clause said our high court, unanimously.
Here, we have the somewhat unusual situation where the codefendant’s statement did not, on its face, refer to defendant Smith at all. And so, in Gray’s words, we “concede” that this case is like Richardson in that way. We also concede that other evidence was required to give the codefendant’s statement any incriminatory force at all, and, further, that evidence, even if the very first item introduced at trial, would not necessarily implicate defendant Smith in the crime.
But then again, neither did the other evidence in Fletcher: If the jury learned in Fletcher, right off the bat, that defendant Moord had showed up with the codefendant at around 2 in the morning at the aunt’s house, that information still would not have had any necessary incriminatory value at that point -- it might merely have shown that Moord was helping out a friend who had late night car trouble. Only when the aunt’s testimony of the defendant’s arrival at her apartment was linked with testimony that might have come in later that the crime took place moments before the arrival would the jury have grasped the full incriminatory “force” of the codefendant’s statement.
And -- and here is where Fletcher applies a fortiori to the facts here -- in the closed universe of the case at hand -- four black males two of whom chased the drug dealer Gray to his death -- Bennett’s D.-stayed-in-the-car statement had overwhelming force. In fact, it is even more forceful in its incrimination of Smith here than the inmate’s testimony in Fletcher: In Fletcher, it was still theoretically possible, but farfetched, to believe in Moord’s innocence even given the other evidence. Maybe, after all, the codefendant Fletcher had split from an unknown confederate on the freeway and had hooked up with his friend Moord seeking shelter. But here, the statement in combination with the other evidence made Smith’s innocence mathematically impossible. The other evidence created the closed universe of four suspects, Bennett was eliminated as one of the two chasers based on videotape, and Bennett’s out-of-court statement eliminated one of the four suspects. In a word, Bennett’s statement positively nailed Smith.
Thus under the various formulas laid down by Fletcher for ascertainment of incriminatory force, there is no question Smith’s Confrontation Clause rights were violated: The jurors here “could not avoid” the conclusion that Smith was the second chaser; Bennett’s statement unmistakably identified Smith; the statement made it “‘obvious to everyone’” that Smith was the second chaser, which the jury “inevitably” perceived. On top of which, as the Attorney General has conceded, Bennett’s statement was the only evidence which positively showed that D. was not the second chaser.
One final note: As in Gray, the “policy arguments” proffered by the Richardson court do not apply. This is not a case, like Richardson, where the incriminatory value of the codefendant’s statement was completely the defendant’s own making. The statement was known prior to the trial, and could easily have been excluded from the beginning, particularly given that its inculpatory force as regards Bennett was marginal, and, if one actually thinks about, exculpatory: The fact that Bennett perceived D. to have been in the car all the time only tended to show that Bennett was not one of the two chasers -- he was in a position to see and mind D. Bennett’s statement was really directed at Smith.
IV. THE HARMLESS ERROR PROBLEM
Our Supreme Court has made it very clear that Aranda-Bruton error is tested under the standard of Chapman v. California, supra, 386 U.S. 18. (See People v. Jennings (2010) 50 Cal.4th 616, 652 [noting that “Aranda-Bruton error subject to harmless error analysis under the rule of Chapman”].)
In Chapman, the court held that before federal constitutional error can be held harmless, the reviewing court must be able to declare a belief that it was harmless beyond a reasonable doubt. In Chapman the court was very plain: “We, therefore, do no more than adhere to the meaning of our Fahy [v. State of Connecticut (1963) 375 U.S. 85] case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard to all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy, case.” (Chapman, supra, 386 U.S. at p. 24, italics added.)
Under the Chapman standard, we cannot declare a belief that the Aranda-Bruton error was harmless beyond a reasonable doubt. As the Attorney General concedes, the only evidence that D. was in the car at the time of the murder of Gray was Bennett’s statement. None of the eyewitnesses who testified in court identified Smith as one of the two chasers, and the physical differences and general descriptions given simply are not striking enough to meet a reasonable doubt standard. Approximately three inches and thirty pounds is just not enough to send a man to prison for the rest of his life when none of the eyewitnesses could give a positive identification, particularly given the late night hour. As for the identification of “men, ” as distinct from “one man and one juvenile, ” that evidence again hardly establishes Smith’s guilt beyond a reasonable doubt. A young man of 16, like D., who is approximately five feet nine, can easily look like a man in the dark.
What about Smith’s statements to Bennett in the car? We should note preliminarily here that on appeal, in his response to the Attorney General’s supplemental briefing, Smith’s appellate lawyer takes the position that the Bennett-Smith conversation should have been excluded. Two of his reasons are that (1) Smith had already asked for a lawyer and (2) that Smith’s comments are only intelligible (and, as readers may have gathered, intelligible is a charitable word) by reference to Bennett’s part of the conversation, and, of course, Bennett was not around to be cross-examined about the various nuances of meaning in their banter.
That said, and setting aside the Miranda and Aranda-Bruton objections to the conversation being considered at all, there just isn’t anything in the Bennett-Smith conversation that reaches the beyond-a-reasonable-doubt level of guilt. As we have noted, there is nothing that amounts to a confession (e.g., “hey hey Stephen, we both know I helped Squabbles chase down P.C., but you ain’t gonna say anything about that, right?”).
Yes, the conversation certainly shows some guilty knowledge on the part of both Bennett and Smith, including some recognition Gray was shot in the back. But the details of Gray’s shooting might naturally have been disclosed by Brandon to the rest of his confederates as they drove home to Oceanside.
A little more inculpatory is Smith’s recognition that he had been seen running. But since shots were fired (and it was not conclusively established, except for Bennett’s statement, that one of the four remained in the car), some running might be expected of even the most innocent person. The same may be said for the dove-into-the-bushes reference.
As for Smith’s “only witness” statements, their context was what Smith told Bennett that he, Smith, had told the police. Moreover, if Smith were the only one of the four even partially talking to the police at that point, the “only witness” comment could be made without necessarily concluding that Smith was actually present at the shooting of Gray. Again, he could have learned of the details of the shooting from Brandon on the trip home. Overall, and almost entirely, the Bennett-Smith conversation was, in context, about what each of them had told the police, or what others had told the police (e.g., the “my man” preface to Smith’s seeming confession).
And of course the syntax and vocabulary of the Bennett-Smith conversation borders on the unintelligible.
The fact that Smith was in possession of cocaine after the shooting and robbery proves no more than he enjoyed the spoils of the event. (It is, of course, also one of the reasons his conviction for transportation and possession of cocaine remains untouched by our decision.)
One other consideration also compels our conclusion. As in Fletcher, the “prejudicial effect” of the Aranda-Bruton error was “compounded by the prosecutor’s argument to the jury.” (Fletcher, supra, 13 Cal.4th at p. 471.) We have already noted that the prosecutor mentioned it to the jury three times. Moreover, as we have also noted, Bennett’s statement was practically useless in relation to Bennett himself -- his knowing D. was in the car all the time only tended to exonerate himself.
We emphasize we do not rely on the declaration of the investigator in Smith’s motion for new trial that three jurors said they considered Bennett’s statement in connection with Smith’s guilt. (See People v. Aris (1989) 215 Cal.App.3d 1178, 1200, fn. 6 [“if the law were that reviewing courts could consider jurors’ statements about the effect of error on the verdict, jurors would be hounded for their statements by losing parties in every case”], overruled on a different point in People v. Humphrey (1996) 13 Cal.4th 1073, 1086.) The showing here that the Aranda-Bruton error was not harmless is strong enough without the investigator’s declaration.
V. FINAL MATTERS
Besides the Aranda-Bruton issue, Smith also argued that the trial court should have admitted evidence that showed Avery had mentioned an incident in which the two brothers, Brandon and D., jumped at Avery from the bushes with a gun. Avery, according to the offer of proof, did not think the matter was a joke. The evidence was offered to show that Brandon and his younger brother D. could indeed engage in criminal conduct in tandem. But the evidence was rejected under an Evidence section 352 objection.
Since this case will probably go back for retrial, we address the issue. (See Cal. Code Civ. Proc., § 43.) In retrospect, the evidence of the jump-out-of-the-bushes incident should have been admitted. Smith’s defense is that D. was the second chaser, which at least is intuitively plausible given his fraternal relationship to Brandon Turner, who clearly was one of the shooters. The proffered evidence here would have strengthened Smith’s claim that D. and Brandon were brothers acting together in crime. And, since the jump-from-the-bushes story is a single, discrete incident, its admission would hardly be unduly time consuming.
By way of summary: The judgment of conviction is reversed as to the murder and second-degree robbery charges against Smith. On any retrial, evidence of Brandon and D. working together in a criminal manner, as for example, the jump-Avery-from-the-bushes story, should be allowed into evidence.
In the nonchallenged respects of cocaine and firearm possession, the judgment is, of course, affirmed.
WE CONCUR: ARONSON, ACTING P. J., IKOLA, J.
We combed not only through the record references given by the Attorney General, but the entirety of all the testimony of each of the eyewitnesses, and found nothing that indicated that the witnesses saw appellant Smith, as distinct from some other African-American male, as the second male chasing Gray. That futile search was one of the reasons this court requested supplemental briefing. On the point we asked whether, maybe, we might have “missed something” that would show the second male was indeed Smith. To its great credit, the Attorney General’s office owned up to its misstatement in its brief. The Attorney’s General’s response is significant not only for its concession that Smith was not identified as the second chaser, but for its mention of the basis for the Attorney General’s initial assumption that the witnesses had identified Smith: Bennett’s out-of-court statement eliminating D.
Here is the Attorney General’s response: “Respondent concedes that the record does not conclusively show that appellant was the second male chasing P.C. Respondent overemphasized the witnesses’ identification of appellant as the second shooter based on respondent’s inference from the fact that Bennett relieved himself at a nearby car wash during the shooting and said that [D.] remained in the car during the shooting.” (Italics added.)
Here are excerpts from those paragraphs. “There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant’s confession ‘expressly implicat[ed]’ the defendant as his accomplice.... Thus, at the time that confession was introduced there was not the slightest doubt that it would prove ‘powerfully incriminating.’... By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony). [¶] Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that ‘the defendant helped me commit the crime’ is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant’s guilt; whereas with regard to inferential incrimination the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton’s exception to the general rule.” (Richardson, supra, 481 U.S. at p. 208, italics added.)
The italicized words are significant in this way: They are susceptible of a reading that allows a little wiggle room for inferences -- inferences may not be as strong as expressly inculpatory statements (“my partner Bernard here used the gun”), but it is possible that there are times when they still might be vividly or powerfully incriminating.