Petitioners Brief — Cruz v. New York

evi preme Court, y Ss.

FiLE Dp

No. 85-5939 JOSEPH F. SPANO;

INTHE ‘8 =

Supreme Court of the Gnited States

OCTOBER TERM, 1986

EULOGIO CRUZ.

Petitioner.

Ve

New YORK,

Respondent.

On Writ Of Certiorari To The

Court Of Appeals Of The State

Of New York

BRIEF FOR THE PETITIONER

PuiLtip L. WEINSTEIN

ROBERT 8S. DEAN

The Legal Aid Society

15 Park Row - 18th Floor

New York, New York 10038

(212) 577-3420

Attorneys for Petitioner

“Counsel of Record

PRESS OF RAM PRINTING, HYATTSVILLE, MD 20781 = (301) 864-6662

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QUESTION PRESENTED

Whether the introduction at a joint criminal trial of the

nontestifying codefendant’s confession, which factually

overlapped with petitioner's own alleged confession but

which was far more damaging to petitioner's case, vio-

lated the rule of Bruton v. United States, 391 U.S. 123,

that the admission of the nontestifying codefendant’s con-

fession, even with limiting instructions that the codefen-

dant’s confession is admissible only against the

codefendant, deprives a defendant of his rights under the

Confrontation Clause.

‘i

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .............000ceceecceeees i

TABLE OF AUTHORITIES. ............-0--ccccccccecece iii

OPINIONS BELOW............... 0c cece ccccccccccce. l

Tee ee on cacccccccccees 1

CONSTITUTIONAL PROVISIONS INVOLVED ............ l

STATEMENT OF THE CASE ............-- 0c cece ccuce. 2

i ct ucceccccces 2

First Trial and Motions for Severance ........... 3

SA 4

dca ence ncneevececscsscecess 12

INTRODUCTION AND SUMMARY OF ARGUMENT........ 13

ES er 18

THE INTRODUCTION AT PETITIONER’S JOINT

TRIAL OF His NONTESTIFYING CODEFENDANT’S

CONFESSION, WHICH Was Far More DAMAGING

TO PETITIONER’S CASE THAN PETITIONER’S OWN

ALLEGED CONFESSION, VIOLATED THE RULE oF

Bruton v. UNITED Srares, 391 U.S. 123, THat

SucH Joint Triats, Even WitH LIMITING

INSTRUCTIONS THAT THE CODEFENDANT’S Con-

FESSION IS ADMISSIBLE ONLY AGAINST THE

CODEFENDANT, ARE VIOLATIVE OF THE Con-

FRONTATION CLAUSE ............ccccccccccee. 18

A. The Admission Of The Nontestifying Codefendant’s

Confession At A Defendant’s Joint Trial Violates The

Confrontation Clause, Even Where The Codefen-

dant’s Confession Overlaps To Some Degree With

The Defendant’s Own ......................... 18

B. The Confrontation Clause Violation Is Not

Harmless Where The Codefendant’s Confession

Adds Substantial Weight To The Case Against The

OE i 26

C. Even If The Admission Of The Nontestifying Code-

fendant’s Confession Does Not Violate The Con-

frontation Clause If It “Interlocks” With The

Defendant's Own Confession, Confessions Do Not

“Interlock” If There Is Anything In Or About The

Codefendant’s Confession That Inculpates The

Defendant Significantly More Than Does The

Defendant's Own Confession ................... 30

EE 33

TABLE OF AUTHORITIES

Page

CASES:

Bruton v. United States, 391 U.S. 123 (1968) 3, 13, 18, 19, 21

Crane v. Kentucky, 476 U.S. ——, 90 L. Ed. 2d 636, 54

U.S.L.W. 4598 (June 10, 1986) .......... 665-055 24

Dutton v. Evans, 400 U.S. 74 (1970)... ........-- 13, 18, 19

Harrington v. California, 395 U.S. 250 (1969)... 15, 28, 26

Hays v. State, 598 S.W.2d 91 (Ark. 1980) .........---. l4

Kastigar v. United States, 406 U.S. 441 (1972)... 19

Lee v. Iilinois, 476 U.S. ——, 90 L. Ed. 2d 514,

U.S.L.W. 4555 (June 3, 1986)........ 13, 16, 18, 19, 3

Metropolis v. Turner, 437 F.2d 207 (10th Cir 1291). 24

Montes v. Jenkins, 626 F.2d 584 (7th Cir. 1Y0 ..

Ohio v. Roberts, 448 U.S. 56 (1980) .... 2.0... 6.06 nee. 19

Parker v. Randolph, 442 U.S. 62 (1979). 3, 14, 17, 19, 21, 32

People v. Hartford, 117 Mich. App. 418, 324 N.W.2d 31

(BOOM) . oc ncccccccccccncccceccsscccceccseceees 14

People v. Marshall, 306 N.Y. 223, 117 N.E.2d 265 (1954) 19

Pointer v. Texas, 380 U.S. 400 (1965) ........-.55-- 13, 18

Poole v. Perini, 659 F.2d 730 (6th Cir. 1981) ........... 14

Quick v. State, 599 P.2d 712 (Alaska 1979)........... 14, 24

Schneble v. Florida, 405 U.S. 427 (1972)... 15, 16, 28, 26, 29

Scott v. State, 49 Md. App. 70, 480 A.2d 615 (1981)..... 14

State v. Bleyl,435 A.2d 1349 (Me. 1981).........------ 24

State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982)... 14

State v. Haskell, 100 N.J. 469, 495 A.2d 1341 (1985). 14, 24

State v. Moritz, 63 Ohio St. 2d 150, 407 N.E.2d 1268

(SID. oo nckcnncenscccenstacersscccssessesees 14, 24

State v. Pacheco, 481 A.2d 1009 (R.I. 1984). ........... 24

State v. Robinson, 622 S.W.2d 62 (Tenn. Cr. App. 1981). 31

State v. Rodriquez, 226 Kan. 558, 601 P.2d 686 (1979)... 14

State v. Smith, 117 Wis. 2d 399, 344 N.W.2d 711 (1983). 31

State v. Thompson, 308 S.E.2d 364 (S.C. 1983) ........ 14

State v. Waterbury, 307 N.W.2d 45 (lowa 1981) ........ 24

Tamilio v. Fogg, 713 F.2d 18 (2d Cir. 1983), cert. denied,

")} &> my oh. | | Pe rrerrrerrs eet l4

Tatum v. State, 249 Ga. 422, 291 S.E.2d 701 (1982)..... 14

United States v. Corbin Farm Service, 444 F. Supp. 510

(E.D. Cal.), aff'd, 578 F.2d 259 (9th Cir. 1978) .....

iv

Table of Authorities Continued

Page

United States v. Espericueta-Reyes, 631 F.2d 616 (9th Cir.

Ss dui ecucedwancueende dees ecereee ecole 14

United States v. Inadi, 475 U.S. ___, 89 L. Ed. 2d 390

eR he er enor ae 19

United States v. Kroesser, 731 F.2d 1509 (11th Cir. 1984) 14

United States v. Parker, 622 F.2d 298 (8th Cir. 1980).... 14

United States v. Ruff, 717 F.2d 855 (3d Cir. 1983) ...... 14

CONSTITUTIONAL PROVISIONS:

United States Constitution, Amendment VI .......... l

United States Constitution, Amendment XIV......... l

OTHER AUTHORITIES:

Dawson, Joint Trials of Defendants in Criminal Cases:

An Analysis of Efficiencies and Prejudices, 77 Mich.

re 14-15

Marcus, The Confrontation Clause and Co-Defendant

Confessions: The Drift from Bruton to Parker v.

Randolph, 1979 U. Ill. L.F. 559.2... 2.0.2... 15

Prince, Richardson on Evidence, § 232 (10th ed.)...... 19

OPINIONS BELOW

The opinion of the New York Court of Appeals (J.A.

74-91)! is reported at 66 N. Y.2d 61, 495 N. Y.S.2d 14, 485

N.E.2d 221 (1985). No opinion was rendered by the

Supreme Court of the State of New York, Appellate Divi-

sion, First Department, in its decision (J.A. 71) affirming

the judgment against petitioner. 104 A.D.2d 1060, 481

N.Y.S.2d 934 (1st Dept. 1984). The opinion of the

Supreme Court of the State of New York, Bronx County

(Eggert, J.) (J.A. 22-26), is reported at 119 Misc. 2d 1080,

465 N.Y.S.2d 419 (1983).

JURISDICTION

The order of the New York Court of Appeals (J.A. 73)

was entered on October 17, 1985. The petition for a writ of

certiorari was filed on November 29, 1985, and was

granted on June 9, 1986. This Court’s jurisdiction is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the Constitution of the

United States provides:

“In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses

against him... .”

The Fourteenth Amendment to the Constitution of the

United States provides:

Section 1. . . “nor shall any state deprive any person

nd life, liberty, or property, without due process of

es

‘Numerals preceded by “J.A.” refer to the pages of the Joint

Appendix.

2

STATEMENT OF THE CASE

Introduction

During the early morning hours of November 29, 1981,

the police in Bronx County found gas station attendant

Victoriano Agostini lying mortally wounded on the sta-

tion’s office floor with two bullet wounds to the head.

Five months later, the police were investigating a dif-

ferent homicide, the killing of one Jerry Cruz (no relation

to petitioner). Jerry’s brother, Norberto, suspected

Eulogio Cruz of having been responsible for his brother's

death. Norberto told the police that five months before,

on November 29th, Eulogio and Eulogio’s brother, Ben-

jamin Cruz, had come to his apartment and had said that

they had killed a gas station attendant during a robbery

attempt. |

Shortly thereafter, an assistant district attorney took a

detailed videotaped confession from Benjamin Cruz, in

which Benjamin implicated Eulogio. When later arrested,

Eulogio made no statement to the authorities.

Eulogio and Benjamin were indicted in New York

Supreme Court, Bronx County, for felony murder (N.Y.

Penal Law § 125.25[3])? and lesser related offenses in

connection with the gas station homicide. Upon the Peo-

ple’s motion, their cases were consolidated for trial.

- New York Penal Law § 125.25 (subd. 3) states in pertinent part:

A person is guilty of murder in the second degree when:

3. Acting either alone or with one or more other persons, he

commits or attempts to commit robbery, burglary, kidnapping,

arson, rape in the first degree, sodomy in the first degree, sexual

abuse in the first degree, escape in the first degree, or escape in

the second degree, and in the course of and in furtherance of such

crime or of immediate flight therefrom, he, or another partici-

pant, if there be any, causes the death of a person other than one

of the participants. . . . [Emphasis supplied. |

3

Eulogio’s pretrial motion to sever based upon Bruton v.

United States, 391 U.S. 123 (1968), was denied.

At the joint trial, there were no eyewitnesses to the

robbery/homicide. The only direct incriminating evidence

against either defendant was their alleged oral con-

fessions to Norberto Cruz, and Benjamin’s videotaped

confession. Both defendants were found guilty of felony

murder. Eulogio’s judgment of conviction was affirmed on

appeal.

First Trial And Motions For Severance

After Benjamin Cruz's pretrial motion to suppress his

videotaped confession was denied, counsel for Eulogio

Cruz moved to sever the cases of the two defendants on

Bruton grounds. The court reserved decision and ordered

the trial to proceed (J.A. 14-17). At the first trial, before

Justice Eggert, the People introduced the videotaped

confession and Norberto Cruz testified to the defendants’

alleged admissions to him the day of the slaying. Neither

defendant testified. Petitioner renewed his Bruton argu-

ment, but the court denied a severance (J.A. 18-21).

In its written decision (J. A. 22-26), the court found that

petitioner's confession to Norberto Cruz and Benjamin's

videotaped confession “interlocked” in terms of factual

content. The court acknowledged that there was a radical

difference between the confessions as to the evidence that

they were actually uttered (J.A. 24). It held, however, that

for two confessions to come within the “interlocking con-

fessions” exception to the Bruton rule, there was no

requirement in New York case law or this Court's decision

in Parker v. Randolph, 442 U.S. 62 (1979), that “they

interlock as to anything else, such as the persons to whom

the confessions were made, the circumstances of making,

4

and the reliability of the evidence that the confessions

were actually made” (J.A. 25).

The first trial ended in a mistrial because of juror mis-

conduct. Prior to the second trial, counsel again moved for

a severance. Justice Cerbone denied the motion based

upon Justice Eggert’s previous decision (J.A. 27-28).

Accordingly, on September 27, 1983, both defendarts

jointly proceeded to trial before Justice Cerbone and a

jury.

Second Trial

At 5:15 a.m. on November 29, 1981, Police Officers

Dennis Fitzpatrick and Ronald Zuba drove to the Gas-

eteria service station in response to a radio report. Upon

arrival, Fitzpatrick saw the attendant, Victoriano

Agostini, lying on the office floor and bleeding from the

back of his head. Agostini was taken to the hospital (T.

35-39).3 At 8:00 a.m., Detective Patrick Cirincione of the

police Crime Scene Unit arrived at the gas station. He

found blood on the office floor and photographed the

scene. No firearms or spent shells were recovered (T.

180-189).

The following day, an autopsy performed on the

deceased by Associate Medical Examiner Dr. John Pearl

revealed the cause of death to be two gunshot wounds to

the head. One of the bullets entered the head above the

right ear from a distance of three to six inches. The second

bullet entered the left front part of the head. The paths of

both wounds were “backward, downward,” and toward

the right. Additionally, the deceased had blunt force inju-

* Numbers preceded by “T” refer to the minutes of the second trial.

dated September 27-October 5, 1983.

5

ries on the bridge of the nose, around his eyes, and on his

right cheek and left shoulder. The bullet and bullet frag-

ment recovered during the autopsy were .38 caliber pro-

jectiles which, according to ballistics expert Detective

Stephen Colangelo, could have been fired from a .357

magnum handgun (Pearl T. 223-225, 229, J. A. 52-53; Col-

angelo T. 235-237, J.A. 54).

Defendants’ Alleged Statements To Norberto

One Jerry Cruz (no relation to the defendants) was

killed on March 15, 1982. Detective George Wood was

assigned to investigate. On March 16, Wood met with

Norberto Cruz Jerry’s brother (T. 192, 206). After having

had several conversations with Norberto over the space of

more than a month, Wood conversed with him again on

April 27, 1982. For the first time, Norberto told Wood of

the defendants’ alleged visit to his apartment on the 29th

of the previous November and statements concerning the

gas station homicide (T. 208-209).

Norberto Cruz, age 32, testified that he had been

friends with Benjamin Cruz for 15 years and Eulogio Cruz

for 25 years (J.A. 31-32). On November 29, 1981, at about

10:00 a.in., Benjamin and Eulogio came to the Bronx

apartment which Norberto shared with his common-law

wife and children (J.A. 32; T. 122).

Norberto claimed that Eulogio was nervous and had a

bloody bandage around the inner part of his right fore-

arm, and that Eulogio declined Norberto’s offer to take

him to a hospital (J.A. 32-33, 35). The People introduced

no evidence, physical or otherwise, to support Norberto’

claim that Eulogio suffered an injury to his right forearm.

(According to Benjamin's videotaped confession (J. A. 67),

the attendant had shot Eulogio in the left arm, not the

right as Norberto’s testimony would have it. )

6

According to his trial testimony, at this visit Norberto

asked Eulogio what had happened, and the response was

as follows:

Q. What did [petitioner] tell you?

A. That they had gone to give a hold 2 to a gas

station and that he started struggling with him.

THE COURT: Excuse me, speak up. Raise your

voice.

A. He started fighting with the man and the man

bent down. He took out a gun and fired and then

Benjamin ——_ and fired at the man in the gas

station (J.A. 33).

Benjamin then told Norberto his version: Eulogio had

sent him to search the attendant but he did not search the

man correctly. The attendant, while Eulogio and Ben-

jamin argued, pulled out a gun. After the attendant fired

at Eulogio, Benjamin shot the attendant (J.A. 34).

Norberto was impeached, however, with his testimony

at the first trial. When asked at that trial who had said

what, Norberto testified: “I asked Chino [Eulogio] what

had happened, Benjamin spoke” (J.A. 50).

At about 4:00 p.m. the next day, Benjamin came to

Norberto’s apartment alone (J.A. 35, 41). Benjamin told

Norberto to clean the blood off the car because it was

dangerous for Norberto’s brother Jerry (J.A. 36).

(According to Benjamin’s videotaped confession, Jerry

Cruz was one of the four members of the team that had

held up the gas station (J. A. 65).)

The defendants’ visit with Norberto on November 29th

lasted for about an hour (J.A. 32). At first, Norberto

testified that no one else was present in the apartment at

the time (J.A. 34). Norberto subsequently testified, how-

7

ever, that Jerry was also present. Eulogio and Benjamin

had waited for Jerry to get dressed, then had left with

him (J.A. 35, 40-41).

Jerry had lived with Norberto. Norberto claimed not to

have known what Jerry had done for a living. Jerry would

sometimes give Norberto money for the household; Nor-

berto had never asked about the money's source (J.A.

40-41).

Norberto claimed that he had not told anyone about the

November 29, 1981, visit from the defendants because,

Norberto testified, “My brother had the event” (J. A. 45).

Norberto went to the police, however, after Eulogio took

him to the place where his brother died (J.A. 47). At

another point Norberto was asked:

2. When is the first time you told the police that

ulogio said something to you?

A. That was in [sic] March 14th* when Eulogio

tried to take me to the place where they had killed my

brother (J.A. 46).

Norberto nonetheless claimed that he had volunteered his

information to Detective Wood because he was a “good

citizen” (J.A. 48).

Norberto admitted to an eight-year-old conviction for

driving without a license (J.A. 36-37). For the past ten

years, he was a self-employed auto mechanic, practicing

4 As Detective Wood testified, Jerry Cruz was killed on March

15th.

Moreover, Norberto did not in fact remember whether he had told

Detective Wood about the November 29th visit during his first con-

versation with him or later (J.A. 49-50). However, Norberto also

testified that he had already spoken to Wood on several occasions

before he finally told Wood of that visit (J.A. 48-49).

8

his trade “in the street,” rather than in a shop. That was

his only source of income (J. A. 38-39). He recalled testify-

ing at the first trial, however, that he had not worked for

the past two years—“since I was suspended from work”—

and had been receiving welfare payments during that

period (J.A. 38-39).

Benjamin's Videotaped Confession

During his investigation of the Jerry Cruz homicide,

Detective Wood made several attempts to contact Ben-

jamin Cruz. On May 3, 1982, Wood met with Benjamin at

the 48th precinct with Officer Peter Ronda acting as Span-

ish interpreter (T. 192-194, 210). When Ronda asked him

what he knew about the death of Jerry Cruz, Benjamin,

rather than answering the question, blurted out: “I shot a

guy who shot my brother, Chino in a gas station on 149th”

(T. 66-70, 81-82, 95; J.A. 29-30). Later, Bronx County

Assistant District Attorney Allen Karen came to the

precinct to take Benjamin’s videotaped confession (T.

214).

The videotape came into evidence as People’s Exhibit 4,

over the objection of Eulogio’s attorney, and was played

for the jury (J.A. 30-31).5 In the statement, elicited

through questioning, Benjamin related the following ver-

sion of the gas station homicide/robbery:

Benjamin, his brother “Chino” (Eulogio), Jerry Cruz,

and one “Pacho” drove to the gas station. Jerry was the

driver. They told the attendant to put only one gallon

» Prior to the playing of the tape, the court summarily denied the

motion by Eulogio’s attorney to redact the tape to delete all refer-

ences to his client (J.A. 30). The only portion of the tape which was

redacted was Benjamin's reference at one point to unrelated crimes

(T. 117-118).

9

in the tank. Benjamin then took out a gun, and Eulogio,

speaking Spanish, announced the robbery (J.A. 63,

65-66).®

While Jerry stayed in the car, the other three went into

the office with the attendant. Benjamin had a .357 mag-

num, Eulogio a .38 caliber long, and Pacho a .38 caliber

short handgun. They asked the attendant for his money.

The attendant, answering in Spanish, told them, “[T]his is

not my money to give away.” Eulogio told him that if he

did not hand over the money, he would kill him (J. A. 63-65,

67).

Eulogio then said, “Give me all your money,” and hit the

attendant “on top of the nose” with his gun (J.A. 63).

Eulogio and the attendant started fighting. Benjamin

went to the office door and asked the attendant to open it.

Eulogio and the attendant were still fighting and the

latter reported that he could not open it (J.A. 63-64).

Pulling out his own gun, a .22, the attendant shot Eulogio

once in the left arm. Eulogio again hit the attendant with

his gun, then shot at the attendant “like to burn the

clothes very close” (J.A. 63-64, 67).

Benjamin told Eulogio to open the door. Instead,

Eulogio “threw the gun to the door.” Benjamin asked

Eulogio to open it, but Eulogio said that he could not. The

attendant picked up the thrown gun “like to hit Chino in

the head.” Benjamin himself opened the door and said to

Eulogio “look out.” Benjamin extended his arm over his

brother’s shoulder, pointed his gun at the attendant, and

from “very close” range shot him “right between the

6The written transcript of this confession appears in the Joint

Appendix at J.A. 61-69. This transcript was originally prepared by

the Bronx County District Attorney’s Office and was part of the

certified record before the New York Court of Appeals.

10

eyes.” The attendant fell backward; the men ran away

(J.A. 63-65).

The net proceeds of the robbery were $62, which they

spent. Benjamin sold the murder weapon for $250. They

threw the attendant’s .22 caliber handgun away (J.A.

65-68).

The videotaped confession lasted for 22 minutes (J. A.

61, 69).

* * *

Defendant Eulogio Cruz did not present any evidence

or offer any testimony. Benjamin Cruz presented two

witnesses.

Officer Fitzpatrick’s partner, Police Officer Ronald

Zuba, echoed his partner's version of how they discovered

the victim’s body at the gas station (T. 274-275). Ben-

jamin’s mother, Lucinda Ramos, testified that Benjamin

had never gone beyond the 5th grade in school, was “dull

for his age,” and had psychiatric problems (T. 283-284,

287). Benjamin Cruz did not testify at the trial.

The attorneys for both defendants argued in summa-

tion, inter alia, that Norberto Cruz's testimony was moti-

vated by his belief that the defendants had killed his

brother Jerry (T. 306-307, 319; J.A. 55). Counsel for

Eulogio Cruz importuned the jurors to follow the court’s

instruction that Benjamin’s confession was not admissible

against his client; he maintained that this presented them

with a “serious sophisticated problem” (J.A. 55).

The prosecutor argued on summation that Norberto’s

testimony as to the defendants’ statements to him was

corroborated by Benjamin Cruz's videotaped responses:

ll

[What] Norberto Cruz told the police as to what

Eulogio Cruz told them and Benjamin Cruz told them

is substantiated afterward by Benjamin Cruz himself

(J.A. 57).

* * *

Benjamin in his statement corroborates as to what

they told [Norberto]. This is afterward, can’t get

away from it (J.A. 57).

The prosecutor also argued that Norberto’ testimony

was rendered more convincing by his description of

Eulogio’s arm wound, since Benjamin’s videotaped con-

fession substantiated that Eulogio had been shot in the

arm during the robbery (J.A. 58).

During its main charge, the court advised the jury that

the statements of each defendant were admissible solely

against the declarant (J.A. 59). The court had given sim-

ilar instructions throughout the course of the trial (T.

22-24, 120-121, 127, 130-131).

After commencing deliberations, the jurors returned

to ask for a playback of the videotaped confession and a

rereading of all of Norberto Cruz's testimony (J.A. 60).

Still later, they requested the definition of “acting in con-

cert” and asked, “If we find one defendant guilty/innocent

must we find the other defendant guilty/innocent?” (T.

380). On the second day of deliberations, the jury found

both defendants guilty of the only count submitted, felony

murder (T. 385-387).

On the date of sentence, counsel for Eulogio moved to

set aside the verdict because of the denial of the sever-

ance:

The only testimony against this defendant in this

case was a witness who was seeking to revenge [sic}

for the death of his brother. Had this defendant been

12

tried separately and that testimony be [sic] the only

opens | which it was, I can’t see how this defend-

ant could possible be convicted beyond a reasonable

doubt (minutes of October 31, 1983, p. 2).

Counsel’s motion was denied (id. at 3).

The court sentenced petitioner to an indeterminate 15-

year-to-life term of imprisonment (id. at 6). Benjamin

Cruz was sentenced to 20 years to life.

State Appeals

On appeal to the intermediate appellate court, the

Appellate Division, First Department, of the Supreme

Court of the State of New York, petitioner argued, inter

alia, that the failure to sever deprived him of his Sixth and

Fourteenth Amendment right to confrontation. The

Appellate Division affirmed the conviction without opin-

ion on October 25, 1984 (J.A. 71).

On October 17, 1985, the Court ef Appeals, by a four to

two vote, affirmed the Appellate Division's order. In its

majority opinion, the court agreed with the trial court’s

ruling that the disparity in reliability between the defend-

ants’ confessions was irrelevant in deciding the Bruton

question: So long as the confessions interlocked as to

factual content, the “interlocking confessions” exception

to the Bruton rule applied (J. A. 82-83).

In dissent, two judges rejected

the per se rule now established by this case that even

an enormous disparity in reliability is not to be con-

sidered as a factor in deciding whether confessions

interlock. In particular cases where there is a patent

danger, as there was here, that the jury may from the

inadmissible evidence, impermissibly draw evidence

establishing defendant's guilt, then the viable alter-

native of ordering separate trials should be followed.

13

The rationale of Bruton is otherwise rendered mean-

ingless (J.A. 90-91).

INTRODUCTION AND SUMMARY OF ARGUMENT

In Pointer v. Texas, 380 U.S. 400 (1965), this Court, in

holding the Confrontation Clause of the Sixth Amend-

ment applicable to the states through the Fourteenth

Amendment, confirmed that the defendant's right to

cross-examine the witnesses against him is crucial to his

right of confrontation. Accordingly, unless a codefen-

dant’s statement implicating the defendant is subject to

cross-examination, or is admissible against the defendant

pursuant to a recognized exception to the hearsay rule,

e.g., Dutton v. Evans, 400 U.S. 74 (1970), or because of

other indicia of reliability, Lee v. Illinois, 476 U.S. —_,

90 L. Ed. 2d 514, 54 U.S.L.W. 4555 (June 3, 1986), its

admission at a joint criminal trial violates the defendant's

rights under the Confrontation Clause.

In this case, the nontestifying codefendant’s video-

taped confession implicating petitioner was admitted into

evidence with the limiting instruction that it was admit-

ted solely against the codefendant. It was not admitted or

offered into evidence against petitioner. Nor would such

admission have comported with the Confrontation

Clause: The videotape neither fit into an established

exception to the hearsay rule nor bore any other indicia of

reliability.

The videotape’s inadmissibility against petitioner does

not obviate the Confrontation Clause problem in this

case, however, for its admission at the joint trial nonethe-

less ran afoul of this Court’s holding in Bruton v. United

States, 391 U.S. 123 (1968).

In Bruton, this Court held that a criminal defendant is

deprived of his right to confrontation when a nontestify-

14

ing codefendant’s statement inculpating the defendant is

introduced at a joint trial, notwithstanding a limiting

instruction to the jury that the statement, inadmissible

hearsay against the defendant, binds only the codefen-

dant. 391 U.S. at 126. In Parker v. Randolph, 442 U.S. 62

(1979), the sitting members of this Court split 4-4 on the

issue of whether limiting instructions obviated any Con-

frontation Clause concern where there were “interlock-

ing” confessions of criminal codefendants.7

* Although this Court’s purpose in granting certiorari in Parker

was to resolve a conflict in the circuits over whether Bruton applies at

all to “interlocking confessions” situations, 442 U.S. at 68 n.4, the

conflict has continued because of the Parker split. Of the circuits that

have considered the issue post-Parker, at least three have adopted the

harmless error standard set forth in Justice Blackmun’s concurrence.

United States v. Ruff, 717 F.2d 855 (3d Cir. 1983); United States v.

Espericueta-Reyes, 631 F.2d 616, 624 n.11 (9th Cir. 1980); United

States v. Parker, 622 F.2d 298, 301 (8th Cir. 1980). The Seventh Circuit

is openly undecided as to which approach to take. Montes v. Jenkins,

626 F.2d 584, 587 (7th Cir. 1980). At least three circuits have adopted

the plurality reasoning. United States v. Kroesser, 731 F.2d 1509

(llth Cir. 1984); Tamilio v. Fogg, 713 F.2d 18 (2d Cir. 1983), cert.

denied, 104 S. Ct. 706 (1984); Poole v. Perini, 659 F.2d 730, 733 (6th

Cir. 1981).

The same conflict exists in the state courts. Compare, e.g., State v.

Haskell, 100 N.J. 469, 495 A.2d 1341, 1346-1347 (1985); Scott v. State,

49 Md. App. 70, 430 A.2d 615, 619 (1981); State v. Moritz, 63 Ohio St.

2d 150, 407 N.E.2d 1268, 1273 (1980); State v. Rodriquez, 226 Kan.

558, 601 P.2d 686, 690 (1979); Quick v. State, 599 P.2d 712, 723-725

(Alaska 1979) (adopting harmless error approach), with State v.

Thompson, 308 S.E.2d 364, 366 (S.C. 1983); Tatum v. State, 249 Ga.

422, 291 S.E.2d 701, 703-704 (1982); State v. Gerlaugh, 134 Ariz. 164,

654 P.2d 800, 804 (1982); People v. Hartford, 117 Mich. App. 413, 324

N.W.2d 31, 34 (1982); Hays v. State, 598 S.W.2d 91, 95 (Ark. 1980)

(adopting plurality reasoning).

The Parker decision has thus been labeled “inconclusive” in resol-

ving the basic analytical conflict. Dawson, Joint Trials of Defendants

15

The Bruton rule should be adhered to in interlocking

confession situations, subject only to harmless error

analysis. 442 U.S. at 77-91 (Blackmun, J., concurring).

The foundations of the rule, i.e., the importance of the

right to confront the codefendant’s accusations, and the

human impossibility of the task of following the limiting

instructions, are fully applicable whether or not the

defendant has himself confessed: Defendants do not for-

feit any constitutional protections—including the Con-

frontation Clause—when they have confessed, and the

presence of two confessions rather than one does not

enhance the average juror’s ability to use each confession

only against one of the defendants.

It may very well be that the defendant’s own

inculpatory statement, in a particular case, will render

the error harmless beyond a reasonable doubt, as would

untainted overwhelming proof of guilt. Schnebdle v. Flor-

ida, 405 U.S. 427, 432 (1972); Harrington v. California,

395 U.S. 250 (1969). But the fact that the error might not

affect the substantial rights of some defendants does not

cause the Confrontation Clause violation simply to disap-

pear. It merely renders it harmless in those cases.

Since petitioner Eulogio Cruz was forced to trial with

his nontestifying codefendant, and the codefendant’s 22-

minute detailed videotaped confession came into evi-

dence, albeit with limiting instructions, petitioner was

deprived of his Sixth Amendment right to confrontation.

That a citizen informant (Norberto Cruz) belatedly

claimed that petitioner himself made a factually consis-

in Criminal Cases: An Analysis of Efficiencies and Prejudices, 77

Mich. L. Rev. 1379, 1421 (1979). See also Marcus, The Confrontation

Clause and Co-Defendant Confessions: The Drift from Bruton to

Parker v. Randolph, 1979 U. Ill. L.F. 559, 580-590.

16

tent oral confession to him is a factor to be considered in

the harmless error analysis, no more.

Under this analysis, the error was not harmless beyond

a reasonable doubt, as the codefendant’s confession added

substantial weight to the People’s case against him. Nor-

berto Cruz’s testimony that petitioner confessed to him

was the only admissible evidence against petitioner link-

ing him to the homicide. There were, looking solely at that

testimony, substantial reasons to doubt that the con-

fession was ever uttered. Since, on the other hand, there

was no doubt at all that codefendant Benjamin Cruz’s

videotaped confession fully inculpating petitioner was

made, the jury would naturally look to it to resolve its

doubts about Norberto’ testimony, limiting instructions

notwithstanding. The case against petitioner, in reality a

weak one, thus became overwhelming in the jurors’ eyes.

It simply cannot be said “that the ‘minds of an average

jury’ would not have found the State's case significantly

less persuasive had the testimony as to [Benjamin’s video-

taped confession] been excluded.” Schnebdle v. Florida,

405 U.S. at 482.

If this Court should decide, however, in accordance

with the reasoning of the Parker plurality, that admission

of “interlocking” confessions, with limiting instructions,

does not violate the Confrontation Clause at all, peti-

tioner is nonetheless entitled to a reversal. His alleged

oral confession of dubious reliability did not genuinely

“interlock” with Benjamin's videotaped one.

Even where confessions or statements are factually

similar to some degree, aspects of a codefendant’s state-

ment may damage the defendant’s case significantly more

than does his own statement. As this Court recently

recognized in a related context in Lee v. Illinois, 476 U.S.

17

___, 90 L. Ed. 2d 514, 54 U.S.L.W. 4555 (June 3, 1986), a

codefendant’s statement does not “interlock” with the

defendant’s own for Confrontation Clause purposes

“when the discrepancies between the statements are not

insignificant.” Just as a defendant may be prejudiced by a

significant variance in content between the two con-

fessions, so may he be prejudiced by a variance in

reliability. A defendant who may be able to convince a

jury that his own inculpatory statement was untrue,

involuntary, or never uttered at all has everything to gain

by being able to confront his codefendant’s statement,

even if the latter is worded similarly to his own, in an

effort to convince the jury that the codefendant’s accusa-

tions against him are worthless as well. An inability to

confront that accusation would be uniquely damaging to

that defendant.

So, too, petitioner's challenge to his own alleged con-

fession, reported by a citizen informant of doubtful cred-

ibility with a motive to lie, became almost meaningless

when the codefendant’s videotaped confession came

before the jury. Although petitioner might have been able

to convince the jurors that his confession was never utter-

ed, he would never have been able to convince them that

the videotaped confession naming him did not exist. Thus,

it cannot be concluded that “(successfully impeaching

[Benjamin’s videotaped] confession on cross-examination

would likely [have] yield{ed] small advantage to [peti-

tioner],” Parker v. Randolph, 442 U.S. at 73, and genuine

interlocking did not exist in this case. Because of the

damaging nature of the videotape to petitioner and the

otherwise weak case against him, the error in failing to

sever cannot be deemed harmless beyond a reasonable

doubt.

18

ARGUMENT

THE INTRODUCTION AT PETITIONER’S JOINT TRIAL

OF HIS NONTESTIFYING CODEFENDANT’S CON-

FESSION, WHICH WAS FAR MORE DAMAGING TO PETI-

TIONER’S CASE THAN PETITIONER’S OWN ALLEGED

CONFESSION, VIOLATED THE RULE OF BRUTON V.

UNITED STATES, 391 U.S. 123, THAT SUCH JOINT TRI-

ALS, EVEN WITH LIMITING INSTRUCTIONS THAT THE

CODEFENDANT’S CONFESSION IS ADMISSIBLE ONLY

AGAINST THE CODEFENDANT, ARE VIOLATIVE OF

THE CONFRONTATION CLAUSE.

A. The Admission Of The Nontestifying Codefendant’s

Confession At A Defendant’s Joint Trial Violates The

Confrontation Clause, Even Where The Codefendant’s

Confession Overlaps To Some Degree With The

Defendant’s Own.

In Pointer v. Texas, 380 U.S. 400 (1965), this Court, in

holding the Confrontation Clause applicable to the states

through the Fourteenth Amendment, confirmed “that the

right of cross-examination is included in the right of an

accused in a criminal case to confront the witnesses

against him,” 7d. at 404, and that “a major reason underly-

ing the constitutional confrontation rule is to give a

defendant charged with crime an opportunity to cross-

examine the witnesses against him.” Jd. at 406-407.

Under this principle, unless a codefendant’s statement

implicating the defendant is subject to cross-examination,

or is independently admissible against the defendant pur-

suant to a recognized exception to the hearsay rule, e.g.,

Dutton v. Evans, 400 U.S. 74 (1970), or because the

statement bears other indicia of reliability, Lee v. Illinois,

476 U.S. —__, 90 L. Ed. 2d 514, 54 U.S.L.W. 4555 (June

3, 1986), its admission at a joint criminal trial violates the

defendant’s Confrontation Clause rights.

19

The codefendant’s videotaped confession was not

admitted or admissible against petitioner. It was, as an

evidentiary matter and under settled New York law, hear-

say as to petitioner and inadmissible against him. £.g.,

People v. Marshall, 306 N.Y. 223, 117 N.E.2d 265 (1954);

see also Prince, Richardson on Evidence, § 232 (10th ed. ).

The People did not advance the proposition in the state

trial or appellate courts that the videotape was admissible

against anyone other than its declarant, codefendant Ben-

jamin Cruz, and the trial court accordingly instructed the

jury to consider it only as to the codefendant. Further-

more, its admission against petitioner would not have

been consistent with the Confrontation Clause. Bruton v.

United States, 391 U.S. at 136 n.12. The videotape fit into

no established exception to the rule against hearsay, e.g.,

Dutton v. Evans, 400 U.S. 74 (1970), and petitioner had

no opportunity to test its truth at any time. O/no v.

Roberts, 448 U.S. 56 (1980).

Nor was the videotape admissible against petitioner as

an “accomplice’s confession,” since those are pre-

sumptively unreliable, Lee v. Jilinois, 54 U.S.L.W. at

4555, and the videotape bore no particular indicia of

reliability of its contents to overcome that weighty pre-

sumption.§ While the modus operandi described in the

videotape was largely consistent with the autopsy report

and the physical evidence found at the scene, it bore no

indicia of reliability as to its dramatis personae: No evi-

dence other than petitioner’s own alleged confession cor-

% As a threshold matter, any “accomplice’s confession” exception

would not apply in this case because the declarant, Benjamin, was not

“unavailable” to testify. See United States v. Inadi, 475 U.S. , 89

L. Ed. 2d 390 (1986); Parker v. Randolph, 442 U.S. at 87 (Stevens, J.,

dissenting); Kastigar v. United States, 406 U.S. 441 (1972). But see

Lee v. Illinois, 54 U.S.L.W. at 4560-4561 (Blackmun, J., dissenting).

20

roborated Benjamin’s videotaped claim that petitioner

was one of the members of the hold-up team or that he was

shot in the arm. Nothing in that videotaped confession

precludes the possibility that Benjamin named Eulogio as

one of his fellow robbers solely in a slow-witted desire to

curry favor with the police (to whom Norberto had

already inculpated not only Benjamin but Eulogio as

well), or in a desire to avenge himself against his brother.

Indeed, the videotaped confession itself circumstantially

corroborates that very possibility. In it, Benjamin heaped

substantial blame on petitioner—as the one who

demanded money, threatened to kill the attendant, fought

with and injured the attendant, and fired the first shot—

while minimizing his own culpability, as the one who

merely shot the attendant to protect iis by then unarmed

brother from the attendant’s own gun. Also, the vid-

eotaped confession was untested by any truth-determin-

ing process: it was elicited in response to interrogation,

without any contemporaneous cross-examination or the

equivalent.

Moreover, to say that Benjamin's videotaped confession

is reliable because it is corroborated by petitioner’s own

factually consistent confession is to ignore the substantial

evidence, discussed fully post at pp. 27-29, that petitioner

never uttered this alleged confession at all.% Clearly, if the

very existence of petitioner’s own confession is dubious,

that confession can hardly suffice as proof of the reliability

of Benjamin’s accusation against petitioner.

* In Lee, this Court recognized that the defendant's own interlock-

ing confession might supply the proof necessary to establish the

reliability of the codefendant’s accusation against the defendant. This

Court held, however, that the confessions at issue did not truly

interlock as to their factual content, and the Court did not otherwise

outline the criteria for “interlock.” 54 U.S.L.W. at 4558-4559.

21

Even though the videotaped confession was not admit-

ted into evidence against petitioner, its introduction at

the joint trial nonetheless deprived petitioner of his rights

under the Confrontation Clause. In Bruton v. United

States, 391 U.S. at 123, this Cou.t held that a criminal

defendant is deprived of his right to confrontation when a

nontestifying codefendant’s statement inculpating the

defendant is introduced at a joint trial, notwithstanding a

limiting instruction to the jury that the statement binds

only the codefendant. The ruling fully applies to peti-

tioner’s case.

The Bruton ruling was based upon the recognition of

two incontrovertible truths: the importance of the right to

confrontation, and the inability of jurors to follow limiting

instructions that are humanly impossible to follow. Nei-

ther proposition is any less true when the defendant has

also made an inculpatory statement, as discussed below.

The proposition advanced by the plurality in Parker v.

Randolph, 442 U.S. at 64-76, that the admission of the

nontestifying codefendant’s statement with limiting

instructions is entirely consistent with the Sixth Amend-

ment, so long as the defendant has himself confessed, was

apparently based upon two different but related

rationales. The first is that cross-examination of the code-

fendant would “likely yield small advantage” and be of “far

less practical value” to the confessing defendant. 442 U.S.

at 73. The second is that any inability on the part of the

jury to follow the limiting instructions will not be “devas-

tating” to the confessing defendant. /d. at 74. Upon close

analysis, neither rationale logically supports the plu-

rality’s conclusion.

As the Parker dissent noted, 442 U.S. at 84, a defen-

dant who has “confessed” is no less entitled to the protec-

22

tion of the Confrontation Clause than one who has not.

The fact that exercising such a right would have “yield[ed |

small advantage” does not mean that the right never

existed, any more than a criminal defendant who has been

denied his Sixth Amendment rights to be represented by

counsel or testify on his own behalf at his trial has for-

feited those rights simply because his guilt is so clearly

made out by his own confession that exercising them

would have “yield[ed] [him] small advantage.” Moreover,

it simply cannot be posited that once a defendant has

“confessed,” the outcome of the trial is a foregone con-

clusion and the exercise of his right to confrontation would

be fruitless. Petitioner's case is a prime example: the mere

fact that a third party attributed a confession to him did

not so damn him that any efforts to dispute his guilt would

have been fruitless; if anything damned him, it was his

inability to confront his brother's accusations.

The second prong of the plurality’s analysis also does

not bear close scrutiny. If jurors will be unable to dis-

regard a codefendant’s statements if the defendant has

remained silent, neither will they be able to do so if the

defendant has made an inculpatory statement; the jury’s

improper use of the codefendant’s confession remains a

constant. The plurality’s reasoning did not seriously dis-

pute this; rather, it asserted that the impact of the jurors’

inability to keep the confessions separate will not be “dev-

astating” when the defendant has himself confessed. 442

U.S. at 74.

Again, this assertion and, indeed, the animating

assumption of the entire Parker plurality’s decision, relies

on the perceived “probative” weight of an “unchallenged”

confession. !° Certainly, that assumption is inapplicable to

!O Thus, the plurality asserted that the “most probative” piece of

evidence is a defendant’s own confession, that “one can scarcely

23

a case, such as the instant one, where a defendant does in

fact maintain his innocence at trial and directly attacks

the validity and even the existence of the “confession.” In

such a case, presumptions of probative weight are inap-

propriate, and the extent to which a defendant has been

convicted by his own confession or devastated by a code-

fendant’s accusation requires an ad hoc determination by

the reviewing court, under a traditional harmless error

analysis. As the Parker dissent noted, 442 U.S. at 86, a

confession is not necessarily more conclusive than fin-

gerprint, photographic, or other untainted evidence of

guilt. When a nonconfessing defendant is confronted with

such overwhelming evidence, we do not say that he has

forfeited the right to confront any witness against him. If

a Bruton error occurs at such a trial, to say that it is

harmless does not mean that it never occurred at all.

In particular cases, an appellate court will determine

that a Bruton violation did not affect the outcome of the

trial, and will affirm the conviction. The affirmance

results not because the potential for prejudice recognized

in Bruton never existed, but because the potential for

prejudice was not realized in that case: Either the damag-

ing nature of the defendant’s own confession or the over-

whelming untainted proof of guilt rendered the error

harmless beyond a reasonable doubt. Schneble v. Florida,

405 U.S. 427, 482 (1972); Harrington v. California, 395

U.S. 250 (1969). "3

imagine evidence more damaging to his defense than his own admis-

sion of guilt,” and that the defendant who tenders an “unchallenged”

confession differs dramatically from one who “maintain{s] his inno-

cence.” Jd. at 72-73.

1! The question whether to adopt a harmless error standard or a

per se rule is not merely “a legal nicety” despite the fact that the focus

of inquiry for appellate courts, 1.e., whether confessions truly “inter-

24

In short, the full force of the Bruton ruling should apply

even if it happens that the defendant has also made an

lock,” may be the same. E..g., Metropolis v. Turner, 437 F.2d 207, 208

(10th Cir. 1971). The question is of great importance to trial judges

confronted with a pretrial motion to sever. As at least two courts have

recognized, those judges should not be expected to sanction, prior to

trial, commission of constitutional error by failing to sever, on the

theory that an appellate court will most likely deem it harmless

because confessions appear to interlock. State v. Bleyl, 435 A.2d

1349, 1363 (Me. 1981); United States v. Corbin Farm Service, 444 F.

Supp. 510, 540 (E.D. Cal.), aff'd on other grounds, 578 F.2d 259 (9th

Cir. 1978).

Moreover, requiring trial judges to determine pretrial whether a

joint trial will prejudice either confessing defendant puts the judge in

an impossible situation, since pretrial appearances notwithstanding,

the course of trial may reveal that two confessions do not truly

interlock, with a reversal as a possible result. See State v. Waterbury,

307 N. W.2d 45, 49 (lowa 1981); State v. Bleyl, supra, at 1363; Quick v.

State, 599 P.2d 712, 723-725 (Alaska 1979). For example, a judge

deciding a pretrial motion to sever is not in a position to determine

whether a defendant who has been unsuccessful in a pretrial motion

to suppress his confession as involuntary will be more successful in

mounting the same “challenge” directly to the jury, as he has the

option to do. Crane v. Kentucky, 476 U.S. , 90 L. Ed. 2d 636, 54

U.S.L.W. 4598 (June 10, 1986).

For these reasons, a number of jurisdictions have endorsed the

position that, if effective redaction is impossible, judges confronted

with potential Bruton situations should follow the reasonable and

readily available course of severing, without trying to parse out

whether confessions truly interlock. See State v. Haskell, 100 N.J.

469, 495 A.2d 1341, 1346-1347 (1985); State v. Pacheco, 481 A.2d 1009,

1017-1019 (R.I. 1984); State v. Moritz, 63 Ohio St. 2d 150, 407 N.E.2d

1268, 1273 (1980). But even if the “interlocking” determination is one

to be made pretrial (see Part C, post, at p. 30), there is no sound

reason to artificially narrow the judge's focus to whether confessions

factually overlap, rather than permit the judge to decide the broader

question of whether one defendant's confession will cause substantial

prejudice to the other defendant.

25

“interlocking” confession. As Justice Blackmun suc-

cinctly stated in his Parker concurrence, 442 U.S. at 79:

I would not adopt a rigid per se rule that forecloses a

court from elahing all the circumstances in order to

determine whether the defendant in fact was unfairly

prejudiced by the admission of even an interlocking

confession. Where he was unfairly prejudiced, the

mere fact that prejudice was caused by an interlock-

ing confession ought not to override the important

interests that the Confrontation Clause protects.

* * *

The fact that confessions may interlock to some

degree does not ensure, as a per se matter, that their

admission will not prejudice a defendant so substan-

tially that a limiting instruction will not be curative.

The two confessions may interlock in part only. Or

they may cover only a portion of the events in issue at

the trial. Although two interlocking confessions may

not be internally inconsistent, one may go far beyond

the other in implicating the confessor’s tt ea story

In such circumstances, the admission of the con-

fession of the codefendant who does not take the

stand could very well serve to prejudice the defend-

ant who is incriminated by the confession, notwith-

standing that the defendant’s own confession is, to an

extent, interlocking.

Accordingly, in determining whether to sustain a

defendant’s conviction after a joint trial, in which his

nontestifying codefendant’s confession inculpating the

defendant has been admitted into evidence with limiting

instructions, the ultimate question should not be whether

the defendant has confessed or whether his statement

“interlocks” with that of his codefendant. Instead, it must

be recognized that the defendant has been denied the

right to confront the evidence considered against him by

the jury, and the test for whether the resultant conviction

26

can stand is simply whether the defendant has suffered

substantial prejudice. If so, the violation of his Confronta-

tion Clause rights cannot be harmless error.

B. The Confrontation Clause Violation Is Not Harmless

Where The Codefendant’s Confession Adds Substan-

tial Weight To The Case Against The Defendant.

In determining whether a Confrontation Clause viola-

tion of this type is harmless beyond a reasonable doubt,

the question is simply whether the defendant has suffered

substantial prejudice by the codefendant’s confession

coming before the jury. To deem such an error harmless,

then, the court must find either (a) that there was nothing

in or about the codefendant’s confession which signifi-

cantly damaged the defendant’s case any more than did

the defendant’s own confession or (b) that the other

untainted evidence of guilt was overwelming, so that any

damage done to the defendant’s case could not have

affected the verdict. Schnebdle v. Florida, 405 U.S. at 427:

Harrington v. California, 395 U.S. at 250. In neither

respect can the error in petitioner’s case be judged

harmless.

Taking the second prong of this analysis first, the

untainted admissible evidence against petitioner was

weak; indeed, apart from his own alleged confession to

Norberto, there was none. Although there was ample

physical evidence at the scene and from the autopsy to

establish that a felony murder had been committed, no

evidence linked either defendant to the crime except the

statements introduced against them. No eyewitnesses or

physical evidence placed them at the scene. Neither any

instrumentality nor any proceeds of the crime were

recovered.

Thus, the People’s case against petitioner rested

entirely on the jury’ finding that petitioner's alleged

27

statement to Norberto, ir which petitioner confessed to

felony murder, was actually made. In making this deter-

mination, the jurors would naturally look to the videotape

to resolve their doubts. Accordingly—looking now at the

first prong of the harmless error analysis—it is in this way

that Benjamin’s videotaped confession inculpated peti-

tioner far more than did petitioner's alleged confession.

Considering petitioner's alleged confession by itself,the

jury had ample reason to doubt Norberto’s testimony that

it ever occurred. Norberto reported nothing of peti-

tioner’s alleged statement until some five months after the

fact, after his brother Jerry had been murdered and peti-

tioner, as Norberto stated, “tried to take me to the place

where they had killed my brother” (J.A. 46). As counsel

for petitioner argued on summation (T. 319), Norberto

had every reason to try to frame petitioner to avenge

petitioner’s suspected involvement in his brother’s

murder. !* Moreover, Norberto was an inherently unrelia-

ble witness with no demonstrated sense of honesty. He

had a prior record; received welfare payments even as he

'2 Although Norberto’s prior silence to the police may have been

partially motivated by his brother Jerry's membership in the robbery

team, the fact of that membership did not clearly come before the

jury in evidence admissible against petitioner. Apart from Norberto’s

testimony about Benjamin's statement to him the day after the crime

about cleaning up the car, a statement not admissible against peti-

tioner, Norberto did not testify as to whether his brother Jerry was

part of the robbery team. Attempts to elicit such testimony were

singularly unsuccessful: When asked on cross why he did not go to the

police sooner, Norberto testified that it was because his brother “had

the event” (J.A. 45). Neither the lawyers nor the court thought it

clear what that statement meant (J.A. 45). Only in the context of

Benjamin's statement to Norberto on November 30th and his video-

taped confession could it have made sense to the jury, but neither was

evidence admissible against petitioner.

28

plied his trade “on the street” as a mechanic; and took

household expense money from his brother Jerry, a pro-

fessional felon, without (he claimed) asking him about the

source of the money. The likelihood that Norberto would

fabricate these confessions is circumstantially confirmed

by the fact that no reason appears why petitioner and

Benjamin would choose to confess to Norberto during

what was apparently a casual social call.!* Most signifi-

cant, however, in impeaching both Norberto’s general

credibility and his specific accusation that petitioner had

confessed, is the fact (emphasized in counsel's summation

(T. 321-322]) that his prior testimony attributed the only

confession to Benjamin, not petitioner.

Significantly, there is nothing about the confession

attributed to petitioner which demonstrated that it could

have come only out of petitioner’s mouth. Although the

sparse detail contained in the alleged confession (that the

victim “bent down” while Benjamin “jumped up and

fired”) was in some ways consistent with the physical

evidence (both bullets followed a “downward” path), such

minimal detail could have been based upon second-hand

information about the crime that Norberto obtained from

someone other than petitioner—for exampie, Norberto’s

brother Jerry, a member of the robbery team, or even

Benjamin Cruz by himself. For the same reason, Nor-

berto’s description of a wound to petitioner's right arm, in

the absence of any evidence apart from Benjamin’ con-

13 Although the purpose of the visit by Eulogio and Benjamin

might be explained as their picking up their partner in crime, Jerry

Cruz, rather than as a casual social call, that explanation would not

have been apparent to the jury without evidence that Jerry Cruz was

a member of the robbery team. As explained ante, n. 12, no such

evidence came in on the People’s case against petitioner, as opposed

to their case against Benjamin.

29

fession!4 that petitioner ever suffered an arm wound, is

corroborative of nothing.

Given the doubts that the jurors may well have had

about whether petitioner confessed at all, it is natural

that they would have looked to Benjamin’s 22-minute

detailed confession to resolve those doubts. That con-

fession was memorialized on videotape by the District

Attorney's Office. It would be hard to imagine a recording

method that would inspire greater confidence that the

confession had actually been uttered. In fact, the pros-

ecutor on summation, the court’ limiting instructions

notwithstanding, repeatedly urged that corroboration of

Norberto’s testimony about Eulogio’s statement could be

found in Benjamin’s subsequent videotaped confession

(J.A. 57).

In short, because Norberto’s testimony was the sole

link between petitioner and the homicide, the case

against him was by no means “overwhelming” and was

actually quite weak: Petitioner for no apparent reason

confessed to murder to an unreliable informant who,

solely to avenge his brother's death, five months later

turned petitioner over to the police. The introduction of

the videotaped confession, while technically admissible

solely against Benjamin, made the case against both

defendants appear overwhelming. Certainly, it cannot

reasonably be concluded “that the ‘minds of an average

jury’ would not have found the State's case significantly

less persuasive had the testimony as to [Benjamin's video-

taped confession] been excluded.” Schneble v. Florida,

405 U.S. at 432. The error not being harmless, there must

be a reversal.

'4 In Benjamin's videotaped confession, he stated that Eulogio was

wounded in the /eft arm (J. A. 67).

30

C. Even If The Admission of The Nontestifying Codefen-

dant’s Confession Does Not Violate The Confrontation

Clause If It “Interlocks” With The Defendant’s Own

Confession, Confessions Do Not “Interlock” If There

Is Anything In Or About The Codefendant’s Con-

fession That Inculpates The Defendant Significantly

More Than Does The Defendant’s Own Confession.

If this Court should adopt a per se rule that Bruton does

not apply in an interlocking confession situation, it should

nonetheless not abandon the inquiry into whether the

confessions genuinely interlock. Furthermore, where

there is a significant difference between the two con-

fessions, so that the codefendant’s is uniquely damaging

to the defendant’s case, it should not matter that the

prejudice results from a vast difference in the reliability of

the confessions, rather than from the words contained in

them.

In Parker, the plurality determined that the protection

afforded by Bruton was of little value to a defendant

“whose own admission of guilt stands before the jury

unchallenged” and who “has corroborated his codefen-

dant’s statements by heaping blame onto himself.” 442

U.S. at 73. Thus, where confessions were “interlocking,”

id. at 75, Bruton simply did not apply. The plurality made

no attempt to delineate when codefendants’ statements

would interlock sufficiently to come within this exception,

or indeed, whether they need interlock at all if the defen-

dant has himself confessed. Jd. at 79-80 (Blackmun, J.,

concurring). Similarly left open were questions as to how

inculpatory a statement had to be before it qualified as a

“confession,” “extrajudicial admission of guilt,” or a

“statement[]. . . heaping blame onto [oneself],” or what

constituted an “unchallenged” confession. /d. at 82 n.2

(Stevens, J., dissenting).

31

The Court’s recent decision in Lee v. Jllinois, 476 U.S.

—__., 90 L. Ed. 2d 514, 54 U.S.L.W. 4555 (June 2, 1986),

shed light on some of these questions. Although Lee did

not involve a Bruton question, it did clarify when state-

ments were similar enough in content so that they would

be deemed mutually corroborative for Confrontation

Clause purposes. The focus in Lee shifted from whether

the defendant himself “confessed” to whether the code-

fendant’s statement implicated the defendant signifi-

cantly more than did the defendant’s own statement. To

comport with the Sixth Amendment, the Court held,

those portions of the codefendant’s statement which

incriminate the defendant must be “thoroughly substanti-

ated” by the defendant’s own statement, and “when the

discrepancies between the statements are not insignifi-

cant, the codefendant’s confession may not be admitted.”

54 U.S.L.W. at 4559-4560. In the same spirit, courts

which have adopted the Parker plurality reasoning have

nonetheless held that statements do not “interlock”

where the codefendant’s confession went further in

implicating the defendant than did the defendant’s own

statement, State v. Smith, 117 Wis. 2d 399, 344 N.W 2d

711, 717 (1983), or where each confession attempts to shift

the blame onto the other defendant. State v. Robinson,

622 S.W.2d 62 (Tenn. Cr. App. 1981).

If statements do not truly interlock where the signifi-

cant differences in content affect the defendant's Con-

frontation Clause rights, so too should they not interlock

if the prejudice is caused by significant differences in

reliability, whether the difference in reliability gives rise

to a substantial “challenge” to the voluntariness or truth

of the defendant’s confession, or to whether it was made at

all. When a defendant’s statement inculpates him less

than does the codefendant’s, the importance to the

32

defendant of an opportunity to confront the codefendant’s

statement is the same whether the difference in

culpability rests in content or reliability. In both situa-

tions, the defendant has everything to gain by impeaching

the codefendant’s version since, if the jury disbelieves

that version, the defendant’s case stands to benefit.

The great difference in reliability that the confessions in

this case were actually uttered (see discussion ante at pp.

27-29) was acknowledged by the State courts but deemed

irrelevant to the Confrontation Clause question. This dif-

ference was in fact crucial, since it meant that the jury

would naturally look to Benjamin's videotaped confession

to resolve its doubts about petitioner's own alleged con-

fession. Under such circumstances, Benjamin's video-

taped confession was far more damaging to petitioner's

case than his own, and rendered the People’s case against

him far more persuasive. Since it cannot be said that

“{sJuccessfully impeaching [Benjamin’s videotaped] con-

fession on cross-examination would likely [have] vield[ed |}

small advantage to [petitioner],” Parker v. Randolph, 442

U.S. at 73, petitioner's alleged confession does not truly

“interlock” with the one on videotape.

Since there is no genuine interlocking in this case, the

only remaining question is whether the failure to sever

was harmless error in light of the untainted admissible

evidence against petitioner. As previously stated (ante at

p. 26), there was no evidence proving petitioner's identity

as one of the participants in the robbery/homicide except

for his own alleged confession; moreover, the only evi-

dence that the confession was made at all came from an

unreliable witness with a motive to fabricate. Under such

circumstances, the error cannot be considered harmless

beyond a reasonable doubt.

33

CONCLUSION

The judgment of the New York Court of Appeals should

be reversed.

Respectfuily submitted,

PuiLip L. WEINSTEIN*

RoBERT S. DEAN

The Legal Aid Society

15 Park Row - 18th Floor

New York, New York 10038

(212) 577-3420

Attorneys for Petitioner

*Counsel of Record