Friday, July 15, 2011
Express Yourself: Massachusetts Appeals Court Finds Bruton Doctrine Inapplicable To Witness Intimidation
Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. Thus, if Carl and Dan are charged with bank robbery and jointly tried before a jury, the prosecution could not introduce Carl's statement that "Dan and I robbed the bank" unless Carl testifies at trial. Conversely, if Carl's confession was that "someone and I robbed the bank," the prosecution could introduce it because it would not have facially incriminated Dan. But what if Carl's statement were a threat to a prospective witness against Carl and Dan that testimony would leave her vulnerable to 'deal with Dan's cousins and that she could end up dead? According to the recent opinion of the Massachusetts Appeals Court in Commonwealth v. Teixeira, 2011 WL 2610557 (Mass.App. 2011), such a statement is not facially incriminatory. I disagree.
In Teixera, the facts were as stated above, with Franco Dossantos and Antonio Teixera being jointly tried before a jury on charges of armed robbery, assault and battery by means of a dangerous weapon, and unlawful possession of a firearm. Dossantos did not testify at trial, and the prosecution had a witness for the prosecution testify "that Dossantos threatened her that testifying would leave her vulnerable to 'deal with [the defendant's] cousins and that [she] could end up dead.'"
After he was convicted, Teixera appealed, claiming, inter alia, that "he was denied effective assistance of counsel because his attorney never sought to sever his case from that of Dossantos following" this testimony. But, according to the Massachusetts Appeals Court,
"When a codefendant's statement does not expressly implicate the defendant but becomes inculpatory 'when linked with other evidence adduced at trial, generally a limiting instruction is sufficient to cure a violation of the defendant's confrontation rights.'"
And, according to the court,
We do not agree that Dossantos's extrajudicial statement "expressly implicated" the defendant. The statement referred not to the criminal activity for which the defendant and Dossantos were being tried, but to a potential witness's involvement in the trial. The defendant was not present when Dossantos made the statement, and it concerns not what the defendant did or might do, only potential future action by members of his extended family. Even acknowledging that the defendant was present, though silent, at the subsequent encounter [the witness] described, the statement is only inculpatory through "a series of inferences, none of which 'a jury ordinarily could make immediately, even were the [statement] the very first item introduced at trial.'"
I disagree. First, I think that it is completely irrelevant that Dossantos' statement did not refer to the crimes charged. There is no question that if Dossantos told the prospective witness that testifying would leave her vulnerable to deal with the defendant/Teixera, the statement would have expressly implicated Teixera and violated the Bruton doctrine.
Second, I don't think that the analysis changed because Dossantos' said that the prospective witness would have to deal with Teixera's cousin rather than Teixera himself. As is clear from the above block quote, the Bruton doctrine doesn't apply when the co-defendant's statement by itself leaves the jury with too much work to do. In the example from the introduction, when Carl says, "Someone and I robbed the bank," jurors would need to make a series of inferences to link the "Someone" to Dan. Maybe another witness testifies that he saw Carl and Dan walking to the bank. Maybe there's a surveillance video, and one of the robbers in the video fits the characteristics of Dan. But Carl' statement alone wouldn't automatically lead jurors to the conclusion that Dan was the other bank robber despite the fact that Dan is the other defendant (or so the theory goes).
But what are jurors supposed to think when Dossantos and Teixera are tried together and a prospective witness testifies that Dossantos told her she would have to deal with Teixera's cousins if she testified? Of course jurors would immediately make the necessary inference(s) to conclude that Teixera was involved in the crimes charged. I guess the court might technically be correct that the statement did not literally facially incriminate Teixera, but such a conclusion seems like empty formalism to me.