United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
RICHARD G. STEARNS, District Judge.
While I agree with much of Magistrate Judge Kelley's exhaustive Report & Recommendation (R&R), I disagree with her conclusion that the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), expanded, rather than extended, the Sixth Amendment protections of Bruton v. United States, 391 U.S. 123 (1968). Rather, I agree with the Supreme Judicial Court (SJC) that, if there was error in the trial court's admission of the codefendant's (false) exculpatory statement, the error was harmless beyond any reasonable doubt.  Consequently, the Magistrate Judge's Recommendation is ADOPTED in part.
The pertinent facts, as related by the Supreme Judicial Court, are not in dispute. Late in the day on November 19, 1996, shooting erupted on Warren Avenue in Brockton, leaving Carlo Clermy dead. Officer Thomas Spillane was dispatched from the scene of the shooting to Good Samaritan Hospital in Brockton where he observed a green Chrysler Cirrus parked outside the Emergency Room with its driver's side windows missing. In the Emergency Room, he encountered the codefendant, Manuel Santos, who acknowledged being the driver of the Cirrus. Santos claimed that he and the Petitioner, Herby Caillot, had been victims of an attempted highjacking while they were driving south on Main Street in Brockton. Shots were fired, and Caillot, who was riding in the back seat, suffered a bullet wound to his hand. When Santos was interviewed later (at his request) by Detective Arthur McLaren, he repeated the story of an attempted highjacking (although now relocating the shooting to Warren Avenue). When asked by McLaren if he knew the identity of the shooter, Santos stated that it was the same person (Clermy) who had killed Caillot's first cousin, Steven Auguste, three months earlier.
Caillot, who was also interviewed at the Emergency Room by Officer Spillane, told an identical story of a foiled highjacking. He explained that while lying in the back seat of the Cirrus, he had heard shots, and after putting his hand in the air, suffered the gunshot wound to his hand.
Caillot and Santos were tried together as joint venturers for the murder of Clermy. The statements of both men were offered by the Commonwealth to demonstrate that they had contrived a false exculpatory explanation for Caillot's gunshot wound and for the damage to Santos' car. The statements were admitted without any limiting instruction by the trial judge.
In analyzing Caillot's claim of a violation of his Sixth Amendment right of confrontation, the Magistrate Judge first turned to the holding of Bruton. In Bruton, the Supreme Court held that the admission at a joint trial of a non-testifying accomplice's extrajudicial confession "powerfully" incriminating a fellow defendant violates the right of confrontation. Id., 391 U.S. at 135. Moreover, admission of an unredacted statement poses too great a risk to "the practical and human limitations of the jury system" to be cured by a limiting instruction. Id. at 136. But, as the Magistrate Judge acknowledged, Bruton applies only when the statement of the nontestifying codefendant directly incriminates the defendant. R&R at 19. Recognizing that nothing in Santos' statement was "directly inculpatory" of Caillot, she correctly concluded that the SJC had properly rejected Caillot's Bruton claim. Id. at 27.
The Magistrate Judge then turned to the Supreme Court's holding in Crawford. The Crawford decision essentially extended the principles of Bruton to the testimonial statements of all nontestifying witnesses when they are offered as probative of a defendant's guilt. 541 U.S. at 49-50. The Magistrate Judge noted Crawford's admonition that "the Confrontation Clause is not implicated when statements are offered for purposes other than establishing the truth of the matter asserted.'" Id. at 60 n.9. However, she concluded that the SJC had misapplied Crawford by treating the admission of Santos' self-exculpatory statement as simply a matter of hearsay governed by state evidentiary law. R&R at 32. In faulting the SJC in this regard, the Magistrate Judge determined that the First Circuit has interpreted Crawford as adding an extra layer of inquiry into a potential Bruton violation.  R&R at 27-28. As the Magistrate Judge reasoned, "[t]he critical question is not whether a state or evidentiary rule classifies a statement as hearsay but whether the statement requires confrontation because the credibility of the speaker has bearing on the probative value of the evidence [because of possible linkage']." R&R at 22. In the Magistrate Judge's view, the SJC erred by "blindly applying a non-hearsay' label to Santos' statements in violation of Crawford's holding, " R&R at 34, and then compounded that error by "ignor[ing] the clearly established rule" of Gray v. Maryland, 523 U.S. 185 (1987), that "without limiting instructions, ' admission of [a] redacted statement of [a] codefendant that only incriminates when linked with other evidence in the case would have violated the defendant's Sixth Amendment rights.'" R&R at 35.
There are, as I see it, several flaws in the Magistrate Judge's reasoning. In the first instance, it is excruciatingly difficult to attach the label of "unreasonable misapplication" of fact or law to the SJC's determination that Santos' false exculpatory statement was offered by the Commonwealth for a purpose other than its truth, that is, as evidence of Santos' state of mind. Caillot II, 454 Mass. at 256. Indeed, it is virtually impossible to imagine any scenario in which the Commonwealth would have offered the statement for any truthful purpose. The Commonwealth was seeking to prove that Santos and Caillot had been involved in a murder and, when on the verge of being caught, concocted a fable to account for the bullet wound to Caillot's hand and the shattered glass in Santos' vehicle. Id. The Commonwealth was not attempting to prove that Caillot and Santos were in fact innocent victims of an attempted highjacking and would have had no conceivable reason for wanting to do so.
In the second instance, I believe that the Magistrate Judge incorrectly applied a rule developed by the Supreme Court as a prophylactic measure against the prejudicial spillover that can occur when an otherwise incriminating confession of a nontestifying codefendant is redacted to eliminate any direct reference to a defendant. See Richardson v. Marsh, 481 U.S. 200 (1987); Gray v. Maryland, 523 U.S. 185 (1987). Responding to a suggestion in Bruton, 391 U.S. at 134 n.10, the Court in Richardson held "that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when... the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." 481 U.S. at 211. In so holding, the Richardson Court rejected the "contextual implication" doctrine under which some courts had found a Bruton error where a confession which was not incriminating on its face became so when linked with other evidence introduced at trial. See id. at 206, 208. Where there is a danger of linkage, "the judge's [limiting] instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place." Id. To the extent there was any undesirable "linkage" at all in Santos' statement,  the failure of the trial judge to give a limiting instruction sua sponte, if it was error, is of the kind (as the SJC held) to be addressed by harmless error analysis and not as a structural defect requiring automatic reversal.
Let me stress that the issue is not whether the Supreme Court might not at some point construe Crawford and Street as expanding on Bruton to require a limiting instruction whenever the statement of a codefendant, facially incriminating or not, is offered at a joint trial for any purpose. But this is not, to my mind, presently "clearly established" Supreme Court law, and I cannot say that the SJC acted unreasonably in thinking the same. Nor can I say that the SJC acted unreasonably in subjecting the elements of Santos' statement that might have been taken for their truth to a harmless error analysis. See Brown v. United States, 411 U.S. 223, 231 (1973) (applying the harmless error doctrine in reviewing Bruton violations where testimony erroneously admitted was cumulative and largely uncontroverted). As the SJC observed, what the jury may have considered for its truth in Santos' statement (that Caillot was in the Cirrus with Santos when he was shot), Caillot had admitted, or it was otherwise known to the jury from other competent testimony (that Caillot's cousin had recently been murdered). Caillot II, 454 Mass. at 256-257.
For the foregoing reasons, the Recommendation is ADOPTED in part and DECLINED in part. The petition is DISMISSED with prejudice. Given my respect for the Magistrate Judge's differing opinion on a matter of a substantial constitutional right, I will approve a request for a properly framed Certificate of Appealability, if filed within fourteen (14) days of the date of this ...