About Face: New York Court Applies Bruton Doctrine To Non-Facially Incriminatory Confession

Under the Bruton doctrine, at a joint jury trial, the admission of a codefendant's confession that facially incriminates another defendant violates the Confrontation Clause unless the co-defendant testifies at trial. The "facially incriminatory" portion of this doctrine comes from the Supreme Court's opinion in Richardson v. Marsh, 481 U.S. 200 (1987), in which it distinguished facially incriminatory confessions -- which violate the Confrontation Clause -- from confessions that only incriminate by inference -- which do not.  Of course, in this regard, the Supreme Court merely set the Constitutional minimum, and there is nothing wrong with lower courts finding Confrontation Clause violations based upon co-defendant confessions that only incriminate by inference as was the case with the recent opinion of the Supreme Court, Appellate Division, Second Department, New York in People v. Russo, 2011 WL 337886 (N.Y.A.D. 2 Dept. 2011).

In Russo, 

Mark Fisher, a college student, was shot and killed on Argyle Road in Brooklyn. He had spent the previous night at the home of John Giuca in the company of Giuca, the defendant, and several other people. After a lengthy investigation, Giuca and the defendant were charged with various crimes, including murder in the second degree and robbery in the first degree, in connection with the incident. They were tried together before separate juries in 2005. Giuca was convicted of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree. 

The defendant thereafter appealed, claiming, inter alia,

that his right to confront witnesses against him was violated when a witness was permitted to testify that Giuca, who did not testify, told him, with respect to Fisher's death, that "we may have had something to do with that."

According to the court,

The defendant and Giuca were tried together, and the evidence established that the defendant, Giuca, and only one other person remained with Fisher at Giuca's home prior to the shooting. Consequently, the jury could easily have inferred that Giuca's statement implicated the defendant, despite the lack of a specific reference to him....Accordingly, admission of the statement violated the rule enunciated in Bruton. 

Nonetheless, the court affirmed, finding that the error was harmless given overwhelming other evidence of the defendant's guilt.

-CM