Amicus Curiae Brief — Cruz v. New York

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Supreme Court, U.S,

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No. 85-5939 | seP 8 1088

NIOL, JR,

In the Supreme Court of the United States

OCTOBER TERM, 1986

EULOGIO CRUZ, PETITIONER

Vv.

STATE OF NEW YORK

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

CHARLES FRIED

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

WILLIAM C. BRYSON

Deputy Solicitor General

ROBERT H. KLONOFF

Assistant to the Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

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QUESTIONS PRESENTED

1. Whether the judgment can be supported on the

ground that the non-testifying co-defendant’s confession

was sufficiently reliable to satisfy the Confrontation

Clause.

2. Whether a co-defendant’s out-of-court confession

can be admitted at a joint trial, with proper limiting

instructions, when the co-defendant’s confession inter-

locks with petitioner’s own confession on the essential

elements of the crime.

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TABLE OF CONTENTS

Page

Interest of the United States 00000. aueres 1

Statement .......0.....00000.... sasducéeonaxevsusnetvnsanimersncesancaesvestess 2

Summary of argument 20 oeeeeec eee eeeeee 7

Argument:

The admission of the co-defendant’s confession at

the joint trial did not violate petitioner’s rights

under the Confrontation Clause .............. edvanisaaenetaes 9

A. Because the co-defendant’s statements con-

tained strong indicia of reliability, petitioner’s

confrontation rights were not violated ............ 9

B. The co-defendant’s statements were properly

admitted at the joint trial because they inter-

locked with petitioner’s own statement _....... 19

Conclusion 2.0.0.0... see oe Se 27

TABLE OF AUTHORITIES

Cases:

Bruton v. United States, 391 U.S. 123 ........ 1, 7, 8, 19, 20,

21, 22

California Vv. Green, 399 U.S. 149200... 9,17

Donnelly v. United States, 228 U.S. 243 2.000.000... 13

Douglas vy. Alabama, 380 U.S. 415 000... 15

Dutton v. Evans, 400 U.S. 74 —.........9, 10, 11, 14, 16, 17

Fuson Vv. Jago, 773 F.2d 55 eee 14

Lee V. Illinois, No. 84-6807 (June 3, 1986) deasaucs 7, 9, 11, 12,

13, 14, 15, 16, 18

Maneusi v. Stubbs, 408 U.S. 2040000000000... 9

Maittor v. United States, 156 U.S. 237... faveueswaes 9

Nelson v. O'Neill, 402 U.S. 622 200. 10

New Merico v. Earnest, No. 85-162 (June 27,

OIE x sccscsecevscsnctesiccaayevescnaccseon cusevassaveuecses ssavesaseosiees 12

Ohio Vv. Roberts, 448 U.S. 56 00. ...7, 9, 18, 18

Cases—Continued : Page

Olson v. Green, 668 F.2d 421, cert. denied, 456

a ces cemieacensnndaeaeiaen 14

Parker Vv. Randolph, 442 U.S. 62 ........ 8, 19, 20, 21, 22, 23

People v. Johnson, 66 N.Y.2d 398, 488 N.E.2d 439,

Ge i ee ND xnnckovcntiscanieteniecscceacie eas 13

Phillips v. Wyrick, 558 F.2d 489, cert. denied, 434

Sar re eee ee CRO EN OME 18

Preemeer GV. TemO, TO Ct GOD ovcccccocsutsencscececssnssecees 9

Richardson Vv. Marsh, No. 85-1433 (June 9, 1986)... 21

Tamilio v. Fogg, 713 F.2d 18, cert. denied, 464

2 22

United States v. Garris, 616 F.2d 626, cert. de-

A: SMe” Ga I on coadlies 14

United States v. Harris, 403 U.S. 578 .................... 13

United States vy. Inadi, No. 84-1580 (Mar. 10,

IRR Si antes cara can Primi ts receLes” Ba eum I 18

United States v. Lieberman, 637 F.2d 95 _............ 18

United States v. Palumbo, 639 F.2d 123, cert. de-

EG. RE, ME ok coos cess ncaa. Ca acecaaaboeen 13, 14

United States v. Riley, 657 F.2d 1377, cert. de-

nied, 459 U.S. 1111 13, 14

United States v. Robinson, 655 F 2d 363, cert. de

nied, 452 U.S. 91° 14

United States v. Sarv to-} 192,

cert. denied, 459 U.S. - ast 13

United States v. Z j t. de.

nied, 416 U.S. O87 4 18

Vnited States « ‘Ss 514

F.2d 45, cert. denied, 4 22

Constitution and rule:

U.S. Const. Amend. VI (Confrontation Clause)... 1, 2, 6,

Fed. R. Evid. 801(b) (3) racae 13

Miscellaneous :

5 J. Wigmore, Evidence (J. Chadbourn rev. 1974) . 13

Iu the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-5939

EULOGIO CRUZ, PETITIONER

vU.

STATE OF NEW YORK

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

OF THE STATE OF NEW YORK

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENT

INTEREST OF THE UNITED STATES

This case raises important issues under the Confronta-

tion Clause of the Sixth Amendment. The case involves

out-of-court statements made by a_ non-testifying co-

defendant to a civilian and later to the police. Those

statements were admitted solely against the co-defendant.

Petitioner himself confessed to the same civilian, and

petitiouer’s confession was factually consistent with the

co-defendant’s statements. Respondent argues that the

admission of the co-defendant’s statements was proper on

two grounds. First, respondent argues that the co-defend-

ant’s statements were sufficiently reliable that they could

have been admitted even as substantive evidence against

petitioner without violating the Confrontation Clause.

Second, respondent argues that the fact that the co-

defendant’s confessions interlocked with petitioner’s own

confession prevented the co-defendant’s statements from

having a devastating effect on petitioner’s case, see

Bruton v. United States, 391 U.S. 123 (1968). It was

(1)

constitutionally permissible, respondent contends, for the

trial court to admit the co-defendant’s confession in the

joint trial, subject to limiting instructions from the court.

The proper application of the Confrontation Clause in

joint trials is a question that arises every day in federal

criminal cases. The approach taken by the Court in re-

solving the issues in this case will significantly affect

federal criminal prosecutions.

STATEMENT

1. In the early morning hours of November 29, 1981,

gas station attendant Victoriano Agostini was murdered

at his place of employment in the Bronx. An autopsy

revealed that Agostini died from two gunshot wounds

to the head. For several months the police had no leads

in the case. In the spring of 1982, during an investiga-

tion of an unrelated murder of one Jerry Cruz (no rela-

tion to petitioner), the police interviewed Norberto Cruz,

Jerry’s brother. Norberto told the police that on the day

of the Agostini murder, petitioner and his brother, co-

defendant Benjamin Cruz, came to Norberto’s apartment

and told him that they had killed a gas station attendant

in the Bronx. Pet. App. A4-A5; J.A. 32, 52-53; Tr.

28-29, 35-36, 38-39, 51.’

On May 3, 1982, the police interviewed Benjamin Cruz

about the Jerry Cruz murder. While he was being ques-

tioned about that murder, Benjamin spontaneously ad-

mitted to the police that he and petitioner had killed a

gas station attendant in the Bronx. Later that same

evening, Benjamin gave a detailed, videotaped statement

admitting his participation in the gas station murder.

Pet. App. A5; J.A. 23, 68-69; Tr. 190-194. Based on

Norberto’s statements and Benjamin’s admissions, in-

i“Tr.” refers to the transcript of the second trial in this case

(the first trial ended in a mistrial as a result of juror misconduct).

The transcript of the first trial is referred to as “Ist Tr.” The

transcript of the pretrial suppression hearing is referred to as

“6/25/83 Tr.”

dictments were returned against both Benjamin and

petitioner for felony murder and related charges (J Me I,

3-13).

2. At trial, Norberto testified in detail about his con-

versation with petitioner and Benjamin on November 29,

1981 (J.A. 31-51). At about 10:00 a.m. on that day,

only hours after the police had discovered the murder

victim, petitioner and Benjamin, both long-time acquain-

tances of Norberto’s, stopped by Norberto’s apartment.”

Petitioner was very nervous and had a blood-stained ban-

dage around his right arm. Pet. App. A4; J.A. 32-33;

Tr. 28-29, 35-36, 38-39, 51. Norberto asked petitioner

what had happened; petitioner explained that he and

Benjamin “had gone to give a hold up to a gas station.”

Petitioner said he started struggling with the gas station

attendant. The attendant then “bent down” and “took

out a gun and fired.” At that point, petitioner said,

Benjamin “jumped up and fired at the man in the gas

station.” J.A. 33.

Benjamin then added to petitioner’s description of the

incident. He told Norberto that petitioner had sent him

to search the gas station attendant but that he “hadn't

done it well” (J.A. 34). Benjamin said that he saw the

gas station attendant Ygnd over, take out a gun, and

fire at petitioner, at which point Benjamin shot the

attendant (J.A. 34'. During his conversation with

Benjamin and petitioner, Norberto offered to take peti-

tioner to the hospital; petitioner declined, stating that

he did not want to go to the hospital because it was “very

dangerous” (J.A. 35). After about an hour, petitioner

2 Norberto had known Benjamin for 15 years and petitioner for

25 years (J.A. 31-32). Norberto remembered the date of the visit

because his wife had been discharged from the hospital that day

(Pet. App. A5; J.A. 44).

’ Benjamin did not say how petitioner got hurt or why he and

petitioner had gone to the gas station in the first place (J.A. 34).

Those facts had previously been discussed by petitioner, however,

in Benjamin’s presence (J.A. 33).

and Benjamin left the apartment along with Jerry Cruz,

who resided with Norberto and who had been asleep dur-

ing Norberto’s conversation with petitioner and Benjamin

(J.A. 35). The next day, Benjamin returned to Nor-

berto’s apartment. Benjamin advised Norberto to clean

the blood out of his car, which Norberto had lent to

Jerry Cruz, because it was “very dangerous for Jerry”

(J.A. 36).

Norberto did not inform the police of petitioner's and

Benjamin’s statements until April 1982.° He did so dur-

ing an interview with Detective George Wood concerning

Jerry’s murder. J.A. 46-47; Tr. 208. On May 3, 1982,

Benjamin came to the police station after Wood had left

his card at Benjamin’s home with a message that he

wanted to discuss Jerry’s murder (Tr. 209-210). Using

an interpreter, Wood asked Benjamin if he knew any-

thing about the murder of Jerry Cruz. Benjamin said

that he did not, but he stated spontaneously that he had

shot someone who shct his brother at a gas station in the

Bronx. J.A. 29-30; Tr. 95, 191.° Benjamin was then

advised of his Miranda rights (Tr. 82).

Later that evening, an Assistant District Attorney took

a videotaped statement from Benjamin (J.A. 61-69; Tr.

4 As the police later learned from Benjamin, Jerry Cruz was also

a participant in the gas station holdup (Pet. App. A4; J.A. 65).

5 When Norberto was asked at trial why he had not told the

police about the statements earlier, he responded, through the court

interpreter, that it was “| b]ecause [his] brother had the event”

(J.A. 45). What Norberto apparently was trying to say was that

he did not want to say anything because his brother, Jerry Cruz,

was one of the perpetrators. Jerry was murdered in March 1982

(Tr. 207).

6 The evidence at the suppression hearing revealed that Benjamin

referred to the gas station murder to convince the police that he

was telling the truth when he denied having anything to do with

Jerry’s murder. Benjamin told Detective Wood that “[i|f it was me,

I would tell you.” He then stated: “I have big balls. I killed the

guy at a gas station at 149th Strect and Southern Boulevard, who

shot my brother clean into the arm. I shot him in the head with a

357 Magnum.” 5/25, 83 Tr. 7.

914-215). In his videotaped statement, Benjamin indi-

cated that he had shot and killed a gas station attendant

in November 1981 with a .857 magnum after the attend-

ant had shot petitioner (J.A. 62). Benjamin correctly

‘dentified the location of the station and stated that after

arriving there, he had pulled out a gun. Benjamin said

that he and petitioner had told the attendant that “this

was a holdup.” J.A. 63, 67. Benjamin and petitioner

then asked for money, but the attendant said it was not

his to give away. Petitioner threatened the attendant.

demanded money, and hit him on the bridge of the nose,

whereupon petitioner and the attendant began fighting.

The attendant fired a shot at petitioner and hit him in

the left arm. Benjamin told petitioner to “look out” and

then, from close range, shot the attendant between the

eyes and killed him. J.A. 63-64, 67. Benjamin and peti-

tioner took the attendant’s money—a total of $62—and

fled (J.A. 65).

In addition to the statements by Benjamin and peti-

tioner,* the government introduced medical and ballistics

evidence. The Associate Medical Examiner testified that

the victim died of two gunshot wounds. One shot hit the

victim above the right ear. The other shot—which caused

most of the damage—entered the victim’s skull through

the left side and traveled, in a downward path, to the

right side. In addition, the victim had blunt force in-

7 According to Benjamin, petitioner also fired a shot—“he shot him

like to burn the clothes very close” (J.A. 68). Benjamin said that

four individuals were involved in the robbery. The driver, Jerry

Cruz, remained in the car (J.A. 65). Benjamin did not describe the

specific role of the fourth participant, whom he called “Pacho”

(J.A. 66). Benjamin also stated that after the incident, he and the

other participants bandaged petitioner’s arm ( J.A. 67-68). Through-

out his statement Benjamin referred to petitioner as “Chino” (see

J.A. 65).

8 When the statements were introduced at trial, and again during

final jury instructions, the trial court instructed the jury that each

defendant’s statements were to be considered only against that

defendant (J.A. 30-31, 33-34, 36, 59).

juries (due to a blow or a fall), including a laceration

at the bridge of his nose, bruises around both eyes, and

abrasions on his right cheek and left shoulder. J.A. 52-

53; Tr. 229-231. A ballistics expert testified that the

bullet recovered from the victim was a .38 caliber bullet,

which could have been fired from a .38 caliber or a .357

magnum revolver. J.A. 54; Tr. 234-237.”

The jury found both Benjamin and petitioner guilty of

felony murder, the only charge submitted for its con-

sideration (Tr. 387). Petitioner was sentenced to a

prison term of 15 years to life (J.A. 2}.

3. On appeal, petitioner contended that the admission

of Benjamin’s statement violated petitioner’s rights under

the Confrontation Clause. He maintained that Benjamin’s

statement did not “interlock” with his own statement be-

cause Benjamin’s statement was substantially more re-

liable. The Appellate Division of the New York Supreme

Court affirmed the conviction without opinion (J.A. 71);

petitioner was later granted leave to appeal to the New

York Court of Appeals (J.A. 72).

The New York Court of Appeals affirmed petitioner’s

conviction by a divided vote (Pet. App. Al). The court

| of appeals reasoned that there was no Confrontation

| Clause violation because the statements by Benjamin and

petitioner were interlocking. The court noted that al-

though there were differences between the confessions,

they were in agreement on “the date and target of the

crime, the participants in it, the motive of robbery, and

the essential facts of how defendant was injured and the

station attendant killed” (Pet. App. A112). While ac-

knowledging that Benjamin’s confession was substantially

longer than petitioner’s, the court pointed out that “the

details included did not contradict or modify the essential

elements of |petitioner’s] statement” (ihid.). The court

rejected petitioner’s contention that the confessions should, N © +

* Petitioner did not put on any evidence (Tr. 292). Benjamin

put on testimony by his mother that he was mentally slow for his

age (Tr. 282-284).

be deemed interlocking because they differed in the de-

gree of their reliability (Pet. App. Al4).

The dissenting judges concluded that Benjamin’s con-

fession added substantial weight to the otherwise weak

confession evidence introduced against petitioner, and that

the two confessions were therefore not interlocking. In

the dissenters’ view, the jury must have considered Ben-

jamin’s confession in determining whether petitioner had

in fact confessed to Norberto. Therefore, they concluded,

the admission of Benjamin’s statements in the joint trial

violated the principles of this Court’s decision in Bruton

v. United States, 391 U.S. 123 (1968). Pet. App. A19-

A21.

SUMMARY OF ARGUMENT

A. This Court has made it clear that out-of-court

statements can be admitted against a defendant without

violating the Confrontation Clause, even if the defendant

has no opportunity to cross-examine the declarant, as

long as the statements contain adequate “indicia of re-

liability.” See Lee v. Illinois, No. 84-6807 (June 3,

1986), slip op. 12-13; Ohio v. Roberts, 448 U.S. 56

(1980). Although an accomplice’s custodial confession is

considered “presumptively unreliable,” the presumption

may be rebutted in a particular case if the circumstances

show that the confession is highly likely to be reliable.

Lee, slip op. 11-13.

Benjamin’s out-of-court statements in this case con-

tained numerous indicia of reliability. Specifically, the

statements were against Benjamin’s penal interest; they

were corroborated by the physical evidence at trial and

by petitioner’s own interlocking confession; there is noth-

ing to suggest that Benjamin’s statements were based on

faulty memory or that Benjamin had any reason to make

a false accusation against petitioner: petitioner was able

to confront Norberto and the police on whether Benjamin

in fact made the statements and under what circum-

stances: and the jury was able to observe Benjamin’s

demeanor during the course of his videotaped confession.

Moreover, even if the Confrontation Clause requires that

an accomplice be shown to be unavailable before his con-

fession can be admitted against a defendant, Benjamin

was unavailable to the government at the trial in this

case, since he was a co-defendant who could not be called

as a witness. Under these circumstances, the Confronta-

tion Clause would not have prohibited the State from

using Benjamin’s statements as substantive evidence

against petitioner. It follows, a fortiori, that the admis-

sion of those statements solely against Benjamin could

not have violated petitioner’s confrontation rights.

B. The admission of Benjamin’s statements was valid

for yet another reason: because petitioner gave a con-

fession that “interlocked” with Benjamin’s confessions,

Benjamin’s statements did not have a “devastating” ef-

fect on petitioner’s case, and severance was therefore not

required. This principle—that the holding in Bruton V.

United States, 391 U.S. 123, 1386 (1968), does not apply

to cases involving interlocking confessions—was adopted by

the plurality in Parker v. Randolph, 442 U.S. 62 (1979).

The rationale of the Parker plurality is eminently sound:

a co-defendant’s confession can hardly have devastating

consequences for the defendant when the defendant him-

self has confessed. In that situation, there is no reason

not to follow the general rule that juries can understand

and apply instructions, including limiting instructions di-

recting the jurors not to consider the co-defendant’s state-

ments against the defendant.

In the present case, the confessions interlocked on all

the essential elements of felony murder. Both petitioner

and his co-defendant admitted that they went to rob a

gas station, that the attendant reached for a gun and

shot petitioner in the arm, and that the co-defendant then

shot and killed the attendant. Although petitioner claims

that Norberto Cruz, the witness who testified about peti-

tioner’s confession, fabricated the whole conversation,

Norberto’s testimony was fully corroborated by the physi-

cal evidence and by various details in the co-defendant’s

later confession. Under those circumstances, petitioner’s

claim that the confessions were not truly interlocking is

without merit.

ARGUMENT

THE ADMISSION OF THE CO-DEFENDANT’S CON-

FESSION AT THE JOINT TRIAL DID NOT VIOLATE

PETITIONER’S RIGHTS UNDER THE CONFRONTA-

TION CLAUSE

A. Because The Co-Defendant’s Statements Contained

Strong Indicia Of Reliability, Petitioners’ Confronta-

tion Rights Were Not Viclated

1. The usual method for ensuring the reliability of a

statement is through cross-examination. California V.

Green, 399 U.S. 149, 158 (1970); Pointer v. Texas, 380

U.S. 400, 406-407 (1965); Mattox v. United States, 156

U.S. 237, 242-243 (1895). This Court has made it clear,

however, that cross-examination of the declarant is not

a prerequisite to the admission of every out-of-court state

ment offered against a defendant at trial. Instead, a

variety of out-of-court statements are considered to carry

sufficient “indicia of reliability” to be admissible, even

in the absence of cross-examination. See Lee v. Illinois,

No. 84-6807 (June 3, 1986), slip op. 12-13; Ohio v.

Roberts, 448 U.S. 56, 64-65 (1980); Mancusi v. Stubbs,

408 U.S. 204, 218-216 (1972); Dutton v. Evans, 400

U.S. 74 (1970). When a particular statement falls with-

in “a firmly rooted hearsay exception,” the reliability

of the statement can be inferred, without more. Ovio Vv.

Roberts, 448 U.S. at 66. Even when a statement does

not fall within a traditional hearsay exception, the Court

has held that it “may nonetheless meet Confrontation

Clause reliability standards if it is supported by a ‘show-

ing of particularized guarantees of trustwort! i

Lee V. Illinois, slip op. 13, quoting Ohio v. Roherts, 44s

U.S. at 66: Dutton v. Evans. 4 U.S. at 88-89

Analysis of the “indici '

Benjamin Cruz's confessior

Benjamin’s statements were sufficiently trustworthy to be

admitted at trial without offending the Confrontation

Clause. For that reason, there would have been no con-

stitutional objection if Benjamin’s statements had been

admitted as substantive evidence against petitioner. It

follows, a fortiori, that the admission of the statements

solely against Benjamin, with limiting instructions di-

recting the jury not to consider them against petitioner,

could not have violated petitioner’s confrontation rights.

See Nelson v. O’Neil, 402 U.S. 622, 628-630 (1971).

In Dutton v. Evans, supra, this Court upheld, over a

Confrontation Clause objection, the admission of an out-

of-court statement that did not fall within a well-settled

hearsay exception. Dutton involved the admission, at

Evans’s murder trial, of a statement made by one of

Evans’s accomplices to a cellmate named Shaw. The ac-

complice, Williams, had told Shaw that “‘[{i]f it hadn’t

been for that dirty son-of-a-bitch Alex Evans, we wouldn’t

be in this now’” (400 U.S. at 77). Williams’s statement

was introduced at trial against Evans through the testi-

mony of Shaw. In an opinion by Justice Stewart, four

members of the Court concluded that the admission of

Shaw’s testimony against Evans did not violate Evans’s

zonfrontation rights.'”

The plurality concluded that Williams’s statement was

sufficiently reliable to be admitted against Evans, even

though Williams had not been subject to cross-examination.

Among the reasons that the Court listed in support of its

finding of reliability were the following: (1) Williams’s

personal knowledge of the role played by others in the

murder was sufficiently well established that it was “in-

conceivable that cross-examination could have shown that

Williams was not in a position to know whether or not

Justice Harlan concurred in the vesult. Viewing the case as

involving due process, not the Confrontation Clause, he concluded

that there was no due process violation. See 400 U.S. at 93-100.

Evans was involved in the murder” (400 U.S. at 88);

(2) it was highly unlikely that Williams’s statement was

based on faulty recollection; and (3) the circumstances

under which Williams made his statement, which was

spontaneous and against his penal interest, made it un-

likely that he had fabricated the statement to inculpate

Evans. 400 U.S. 88-89.

Recently, in Lee v. Jilinois, supra, the Court employed

a similar approach to determine the reliability of an-

other out-of-court statement by an accomplice. The issue

in Lee was whether the trial court, at a bench trial, had

properly considered the co-defendant’s confession as sub-

stantive evidence against Lee. Since the case turned on

its precise facts, those facts bear close examination.

During questioning about the stabbing deaths of her

aunt and her aunt’s friend, Lee confessed to the police

that she and her boyfriend, co-defendant Edwin Thomas,

had committed the stabbings. Thomas subsequently ar-

rived at the police station for questioning. At first, he

did not want to answer questions but instead wanted to

think about whether he should talk to the police. Thomas

and Lee asked to see each other, and they were given

permission to do so. One of the police officers then asked

Lee, in Thomas’s presence, “ ‘what was the statement you

had just given us implicating |Thomas].’” Lee then told

Thomas that the police already knew everything and re-

minded him that they had agreed not to let one of them

take the whole “rap.” At that point, Thomas confessed

as well. Lee, slip op. 2.

The majority pointed out that Lee’s and Thomas’s con-

fessions differed in a number of important respects. For

example, Thomas told the police that he and Lee had

previously discussed killing Lee’s aunt, thus admitting

premeditation. Lee, by contrast, made no mention of any

plan and indicated that at the time of the murder

Thomas had simply been provoked by the behavior of the

aunt. In addition, Lee placed the blame on Thomas for

the murder of her aunt’s friend; by contrast, Thomas

stated that, pursuant to their plan, Lee had beckoned the

friend into the kitchen so that Thomas could murder her.

Lee, slip op. 4-6, 15-16.

In ruling that the trial court had improperly consid-

ered Thomas’s confession as substantive evidence against

Lee, the Court stated that “Thomas’ statement, as the

confession of an accomplice, was presumptively unreliable

and * * * did not bear sufficient independent ‘indicia of

reliability’ to overcome that presumption” (Lee, slip op.

9). The Court made clear (id. at 12-13) that “the pre-

sumption [of unreliability] may be rebutted” but stated

that the prosecution had simply failed to do so in that

ease. Although the Court acknowledged that the existence

of an interlocking confession by the defendant provides

significant support for the reliability of the co-defendant’s

statement, the Court found that Thomas’s statement dif-

fered on too many key points to be considered “inter-

locking” with Lee’s (id. at 14-16).

Four justices dissented in Lee. The dissenters would

have found Thomas’s statement to be sufficiently reliable

to eliminate any Confrontation Clause problem. Thus,

while the Court in Lee was split on the issue of whether

Thomas’s out-of-court statement was shown to be suffi-

ciently reliable on the facts of that case, there was no

disagreement that, in a proper case, a non-testifying co-

defendant’s out-of-court statement may be admitted as

substantive evidence against the defendant."

In the present case, there was no Confrontation Clause

violation. Benjamin’s statements present none of the

1 Following the decision in Lee, this Court vacated and remanded

for further proceedings a decison by the Supreme Court of New

Mexico holding that the admission of a non-testifying co-defendant’s

statement violated the defendant’s rights under the Confrontation

Clause. New Mevrico v. Earnest, No. 85-162 (June 27, i986). In a

concurring opinion, Justice Rehnquist wrote for four members of

the Court (slip op. 2) that “the State is entitled to an opportunity

to overcome the weighty presumption of unreliability attaching to

codefendant statements by demonstrating that the particular state-

ment at issue bears sufficient ‘indicia of reliability’ to satisfy

Confrontation Clause concerns.”

problems that troubled the majority in Lee. Instead, tiey

bear numerous distinct indicia of reliability. When these

factors are viewed collectively, they lead to only one con-

clusion—that Benjamin’s statements were sufficiently

reliable to justify admission against petitioner even in

the absence of cross-examination.

To begin with, Benjamin’s statements fall “within a

firmly rooted hearsay exception’”—declarations against

penal interest. The reliability of the statements can

therefore “be inferred without more” (Ohio v. Roberts,

448 U.S. at 66).'* Benjamin’s statements were clearly

against his penal interest, since he admitted committing a

murder during the course of a robbery (J.A. 30, 34, 61-

69) and thereby subjected himself to criminal prosecu-

tion for felony murder and related offenses. He did not

attempt to “shift the blame” to petitioner but took pri-

mary responsibility for the incident.’ Moreover, there

12 A hearsay exception for declarations against penal interest is

recognized in most jurisdictions, including the federal system (see

Fed. R. Evid. 804(b)(3)) and New York (see, e.g., People V.

Johnson, 66 N.Y.2d 398, 488 N.E.2d 439, 497 N.Y.S.2d 618 (1985) ).

That exception “rests upon ‘the principle of experience that a state-

ment asserting a fact distinctly against one’s interest is unlikely

to be deliberately false or heedlessly incorrect’” (Lee, slip op. 5

(Blackmun, J., dissenting), quoting 5 J. Wigmore, Evidence § 1457,

at 329 (J. Chadbourn rev. 1974) (footnote omitted)). See also

United States v. Harris, 403 U.S. 573, 583 (1971) (“Admissions of

crime * * * carry their own indicia of credibility.”); Donnelly v.

United States, 228 U.S. 248, 278 (1913) (Holmes, J., dissenting)

(“{N]o other statement is so much against interest as a confession

of murder.”’). The exception for declarations against penal interest

covers not only statements implicating the maker but also state-

ments implicating, and sought to be admitted against, the defend-

ants. See, e.g., United States v. Riley, 657 F.2d 1377, 1382 (8th

Cir. 1981), cert. denied, 459 U.S. 1111 (1983); United States v.

Palumbo, 639 F.2d 123, 129-130 (3d Cir.) (Adams, J., concurring),

cert. denied, 454 U.S. 819 (1981); United States v. Sarmiento-Perez,

633 F.2d 1092, 1098 (5th Cir. 1981), cert. denied, 459 U.S. 834

(1982).

18 Petitioner is simply wrong in asserting (Pet. Br. 20) that

“Benjamin heaped substantial blame on petitioner” and ‘“mini-

is nothing to suggest that Benjamin’s statements were

made as part of an effort to curry favor with the po-

lice.** Indeed, on the very date of the murder—long

before any conversation with the police—Benjamin fully

admitted his culpability to Norberto, in the presence of

petitioner. In addition, Benjamin spontaneously admitted

his role in the gas station murder while he was being

questioned by the police about an unrelated matter and

at a time when he clearly was not in custody and had

not been accused of any crime (Tr. 110). See Dutton,

400 U.S. at 89 (noting that statement was spontaneous

and against penal interest). He did so, almost in a brag-

ging manner, to show the police that he was telling the

truth in claiming that he had nothing to do with Jerry’s

murder. See page 4 note 6, supra. There is no

evidence whatsoever to suggest that Benjamin admitted

the murder as a result of prompting by the police or in

the hope that he would win lenient treatment by making

the admission. The subsequent videotaped statement,

which was ruled to be voluntary (see Tr. 111-113),’° was

miz[ed] his own culpability.” Benjamin at all times took responsi-

bility for actually killing the attendant.

1 When a defendant is attempting to curry favor with the police,

his statements may be unreliable, particularly when the defendant

attempts to shift the blame to someone else. A number of courts

have therefore been reluctant to find that custodial statements to

the police that implicate third parties are declarations against penal

interest. See, e.g., Fuson v. Jago, 773 F.2d 55, 60-61 (6th Cir.

1985); Olson v. Green, 668 F.2d 421, 426-428 (8th Cir.), cert.

denied, 456 U.S. 1009 (1982); United States v. Riley, 657 F.2d at

1384-1385; United States v. Palumbo, 639 F.2d at 127-128. On the

other hand, when there is nothing to suggest that defendant was

motivated by a desire to ingratiate himself with the police or to

shift the blame, the courts have upheld the admissibility of confes-

sions as being against the deciarant’s penal interest. See, e.g.,

United States v. Robinson, 635 F.2d 363, 364-365 (5th Cir.),

cert. denied, 452 U.S. 916 (1981); United States v. Garris, 616

F.2d 626, 630-632 (2d Cir.), cert. denied, 447 U.S. 926 (1980).

See Lee, slip op. 10 (Blackmun, J., dissenting) (noting that a

finding of voluntariness supports the conclusion that the statement

is reliable).

simply an elaboration of what Benjamin had previously

told Norberto and the police. It in no way conflicted

with his earlier statements. There is similarly nothing

to show that Benjamin gave the videotaped statement to

curry favor with the police or as a result of police

coercion.

These facts distinguish Benjamin’s statements in this

case from Thomas’s statement in Lee. Thomas’s state-

ment to the police was not accompanied by a prior state-

ment to a civilian to corroborate its reliability, and

Thomas’s statement, unlike Benjamin’s, was not freely

volunteered. Thomas initially refused to talk to the

police, and he did so only after being told that Lee had

already implicated him. Moreover, the Court in Lee

found that Thomas’s statement might well have been in-

fluenced by a desire to shift blame to Lee. There is no

basis for attributing any such motive to Benjamin in this

case.'” Because of the circumstances in which Thomas’s

statement was made, the Court in Lee did not accept the

State’s characterization of Thomas’s confession as a “‘dec-

laration against penal interest” (Lee, slip op. 13 n.5).""

Benjamin’s statement, however, suffered from none of the

infirmities the Court found in Thomas’s confession. Un-

der the approach of both the majority and the dissenting

opinions in Lee, Benjamin’s videotaped statement and

his prior unrecorded statements to Norberto and the

police fell within the traditional category of declarations

against penal interest.

Further support for the reliability of Benjamin’s state-

ments derives from the fact that they were fully corrob-

16 The absence of any apparent motivation or effort on Benjamin's

part to shift blame to petitioner distinguishes this case from

Douglas v. Alabama, 380 U.S. 415 (1965). See Lee, slip op. 10-11;

id. at 6-7 ‘Blackmun, J., dissenting).

17 The four dissenting justices in Lee considered Thomas's state-

ment to be a declaration against penal interest within the meaning

of the firmly established hearsay exception for such statements

(Lee, slip op. 4-5 (Blackmun, J., dissenting) ).

orated by the physical evidence. For example, Benjamin

stated that he shot the attendant with a .357 magnum

(J.A. 62, 64); recovered from the victim was a .38 cal-

iber bullet, which, according to the ballistics expert, could

have been fired from a .857 magnum (J.A. 52-53; Tr.

234-235). Benjamin told Norberto that he “jumped up”

and shot the attendant after the attendant “‘ben[t] over,”

picked up a gun, and fired it (J.A. 34); the medical

evidence revealed that the bullets entered the victim’s

head in a downward trajectory (Pet. App. A6; J.A. 53).

Benjamin described a physical altercation between peti-

tioner and the attendant, which resulted in petitioner’s

striking the attendant on the nose (J.A. 63); the autopsy

revealed blunt force injuries, including a laceration in

the skin at the bridge of the attendant’s nose (J.A. 52).

Moreover, as the court of appeals noted, the government

introduced photographs showing “substantial damage to

the [gas station] office, inferentially establishing [peti-

tioner’s] struggle with the attendant before the murder’”’

(Pet. App. A5-A6). As in Dutton (400 U.S. at 88-89),

the corroboration of Benjamin’s statement not only makes

it highly likely that the statement was true, but also

makes it virtually inconceivable that cross-examination

could have shown that Benjamin was not in a position to

know whether petitioner was involved in the murder.

Petitioner himself acknowledged (Pet. 10 n.4) that “Ben-

jamin’s videotaped confession contained detail so real-

‘| minute that only someone who was present at

micide scene could have uttered it.”

‘her indication of reliability is that Benjamin’s con-

was corroborated on all the essential elements by

oner’s own confession, and the confessions contained

no significant discrepancies. Cf. Lee, slip op. 14, 16

recognizing that an interlocking confession is a sign of

reliability, but finding that discrepancies between the two

confessions in that case went “to the very issues in dis-

pute at trial” and that the confessions in that case were

therefore not interlocking).

Furthermore, as in Dutton, it is highly unlikely that

Benjamin’s statement was based on an inaccurate mem-

ory or on a deliberate misstatement of the events (see

400 U.S. at 89). The vivid detail of the videotaped con-

fession refutes any suggestion of a memory lapse, and

there was nothing to show that Benjamin had any motive

for falsely accusing his brother of being involved in the

murder. Significantly, no evidence of any hostility be-

tween petitioner and Benjamin was introduced at trial.’

Finally, petitioner “was not deprived of any right of

confrontation on the issue of whether [Benjamin] actu-

ally made the statement|s]” (Dutton, 400 U.S. at 88).

Norberto and various officers who heard Benjamin’s

statements at the police station were witnesses at trial

and subject to cross-examination. In addition, the jury

viewed the 22-minute videotape of Benjamin’s confession

and thus had the opportunity to observe Benjamin's de-

meanor as he described both his and petitioner’s roles

in the gas station murder. Cf. California v. Green, 399

TS. at 158 (noting that cross-examination enabies jury

“to observe the demeanor of the witness in making his

statement, thus aiding [it] in assessing his credibility’).

2. In addition to being reliable, Benjamin’s statements

were made by a declarant who was unavailable as a wit-

ness at trial. With regard to one class of hearsay—prior

testimony—this Court has held that the Confrontation

Clause requires the government to prove that the declar-

ant is unavailable to testify at the trial before the hearsay

1’ Even if Benjamin had testified at trial, the circumstances

strongly suggest that his testimony would not have helped peti-

tioner; it is more likely that he would have tried to shift more

blame to petitioner and away from himself. Benjamin did just that

at his pretrial suppression hearing, where he testified that he was

not involved in the murder or robbery, but that he learned about it

when petitioner and others arrived home and described what had

happened (5 25 83 Tr. 81-83, 105). Benjamin further testified that

his earlier statement, in which he had implicated himself, was

false. He said he had made that statement to protect his family

and because petitioner had threatened him (id. at 84, 97-98).

can be admitted. See Ohio v. Roberts, 448 U.S. at 65-66.

The “unavailability” requirement has not been imposed

with regard to other out-of-court statements, such as co-

conspirator declarations. See United States v. Inadi, No.

84-1580 (Mar. 10, 1986). In particular, the Court has

not ruled on the question whether an accomplice must be

shown to be unavailable before his out-of-court confession

can be admitted as a declaration against penal interest,

although the hearsay rules typically require such a show-

ing (see Fed. R. Evid. 804(b)(3))." Even if unavail-

ability must be shown, we submit that unavailability was

established in this case.

Because Benjamin was a co-defendant at trial, the

State could not call him as a witness. Under the usual

standards employed to assess unavailability, Benjamin

was therefore unavailable to the government at trial.

See United States v. Lieberman, 637 F.2d 95, 103 (2d

Cir. 1980); United States v. Zurosky, 614 F.2d 779, 792-

793 (1st Cir. 1979), cert. denied, 446 U.S. 967 (1980):

Phillips Vv. Wyrick, 558 F.2d 489, 494 (8th Cir. 1977),

cert. denied, 434 U.S. 1088 (1978); Fed. R. Evid. 804

(a) (1). As Justice Blackmun pointed out in his dissent-

ing opinion in Lee, slip op. 3-4, the State should not be

required to immunize one co-defendant in order to make

him available for cross-examination by another. The costs

to the State and the judicial system of requiring such a

procedure would outweigh any possible benefit to the de-

fense of making the declarant available. See United

States V. Inadi, slip op. 8-12.

In sum, under the analysis employed both in Dutton

and Lee, Benjamin’s confessions constituted highly reli-

able statements by an unavailable declarant. Therefore.

the Confrontation Clause would not have forbidden the

1° The dissenters in Lee assumed that unavailability would hove

to be shown before an accomplice’s statement could be admitted

against a defendant. Lee, slip op. 2 n.2 (Blackmun, J., dissenting).

The majority found it unnecessary to address the point. Lee,

slip op. 9.

admission of Benjamin’s statements, even if they had

been offered as substantive evidence against petitioner.

For that reason, petitioner certainly cannot complain

about the introduction of the statements at the joint

trial, where they were admitted solely against Benjamin.

B. The Co-Defendant’s Statements Were Properly Ad-

mitted At The Joint Trial Because They [nterlocked

With Petitioner’s Own Statement

In Bruton v. United States, 391 U.S. 123 (1968), the

Court held that a co-defendant’s confession that impli-

cated the defendant could not be admitted at a joint

trial, even solely against the co-defendant.*” The Court

based its decision on its conclusion that the co-defendant’s

confession had a “devastating” impact on the defendant’s

case and that the jury therefore could not be expected to

follow the court’s limiting instructions. In Parker Vv.

Randolph, supra, the issue was whether Bruton applied

even where the defendant himself had also confessed. In

an opinion for four members of the Court, Justice Rehn-

quist concluded that the principle announced in Pruton

does not apply in the case of “interlocking” confessions.

The plurality concluded that where a defendant himself

has confessed, “the incriminating statements of a co-

defendant will seldom, if ever, be of the ‘devastating’

character referred to in Bruton” (442 U.S. at 73). For

the same reason, “|s]uccessfully impeaching a codefend-

ant’s confession on cross-examination would likely yield

small advantage to the defendant whose own admission of

guilt stands before the jury unchallenged” (‘hid.). The

plurality concluded that “when the defendant’s own con-

fession is properly before the jury, * * * [t]he possible

prejudice resulting from the failure of the jury to follow

“The Court acknowledged thet (391 U.S. at 128 n.3) “!tlhere

is not before us * * * any recognized exception to tne hearsay rule

* * * and we intimate no view whatever that such exceptions neces-

sarily raise questions under the Confrontation Clause.”

the trial court’s instructions is not so ‘devastating’ or

‘vital’ to the confessing defendant to require departure

from the general rule allowing admission of evidence with

limiting instructions” (id. at 74-75 (footnote omitted) }.

Justice Blackmun concurred in the judgment. He re-

fused to endorse the plurality’s per se approach. He

concluded, however, that the Bruton violation in that case

was harmless beyond a reasonable doubt, and that it

would likely be harmless in most other interlocking con-

fession cases as well (442 U.S. at 77-81).

1. Petitioner argues (Pet. Br. 21-26) that the Court

should reject the approach taken by the plurality in

Parker Vv. Randolph, supra, and hold that the admission

of a co-defendant’s confession violates the principles of

Bruton, even when the co-defendant’s confession inter-

locks with the defendant’s own confession. He maintains

that even when the defendant has confessed, cross-

examination would not necessarily be futile. The right of

confrontation must be enforced, he asserts, even if ‘“exer-

cising [that] right would have ‘yield|ed] small advan-

tage.’” Pet. Br. 22.

We submit that the analysis in the plurality opinion

in Parker was correct. When a defendant himself has

confessed, the co-defendant’s confession will almost never

be “devastating” to the defendant’s case. It does not

disparage Confrontation Clause values to hold that a

jury is likely to be able to follow a court’s Jimiting in-

structions where the impact of a co-defendant’s confes-

sion is blunted by the defendant’s own admissions of

guilt. In addition, the plurality’s approach in Parker

permits joint trials in cases in which the risk of preju-

dice to the defense is low. As the Court has noted, joint

trials “conserve state funds, diminish inconvenience to

witnesses and public authorities, and avoid delays in

bringing those accused of crime to trial” (Bruton, 391

U.S. at 134). Although the government can avoid sever-

ances simply by not using confessions in multidefendant

cases, that approach exacts a very high price, since a

confession is “probably the most probative and damaging

evidence that can be admitted against [a defendant]”

(Bruton, 391 U.S. at 139 (White, J., dissenting) ) .*

The “harmless error’ approach urged by petitioner is

not a satisfactory alternative. The harmless error ap-

proach instructs trial courts that they are constitution-

aily required, even in interlocking confession cases, either

to sever the cases or to exclude all statements by non-

testifying co-defendants. As Justice Blackmun has ob-

served, the failure to grant such relief in interlocking

confession cases will usually be harmless (Parker, 442

U.S. at 79 (opinion of Blackmun, J.)). Yet in every

interlocking confession case, including those in which any

error would be virtually certain to be regarded as harm-

less on appeal, the “harmless error’ approach would

compel the trial judge to grant a severance or to pro-

hibit the use of both defendants’ confessions at trial. The

better approach, we submit, is to permit joint trials in

interlocking confession cases, subject to the discretion of

trial courts to grant relief in particular instances if a

serious risk of prejudice appears.

2. Petitioner further argues (Pet. 10-14; Pet. Br.

30-32) that even if a majority of this Court adopts the

plurality approach in Parker, it should nonetheless re-

verse petitioner’s conviction because the confessions in

this case were not “interlocking.” While he apparently

concedes that the confessions were “factually interlock-

ing” (Pet. 12),%* petitioner asserts that they were not

*1 Another solution is to redact the confessions to omit any

references in each defendant’s confession to the other defendant.

However, it is not always possible to redact statements in that

manner without gravely distorting their meaning. The Court

now has before it the question whether redaction that simply omits

all specific references to the other defendant is constitutionally

sufficient. See Richardson v. Marsh, cert. granted, No. 85-1433

(June 9, 1986).

22 Petitioner does contend (Pet. 11; Pet. Br. 27 n.12) that

Benjamin’s statements filled in “gaps” in the case against petitioner

——

sufficiently interlocking to satisfy the Parker test because

of their “gross disparity in reliability” (Pet. 14). Ac-

cording to petitioner (Pet. 10 & n4, 14), Benjamin’s

statements were highly reliable, whereas the reliability

of Norberto’s testimony about petitioner’s confession was

suspect. That argument is not persuasive.

In our view, the issue of whether statements are “in-

terlocking” should be determined by the trial court, based

on all the circumstances and subject to review only for

abuse of discretion. Statements should be deemed inter-

locking if they are “ ‘substantially the same and consist-

ent on the major elements of the crime involved.’”

Tamilio v. Fogg, 713 F.2d 18, 20 (2d Cir. 1983), cert.

denied, 464 U.S. 1041 (1984) (quoting United States

ex rel. Stanbridge v. Zelker, 514 F.2d 45, 49 (2d Cir.),

cert. denied, 423 U.S. 872 (1975)). The central focus

of the inquiry should be whether the differences between

the confessions are so fundamental that, despite the de-

fendant’s own confession, the admission of the co-defend-

ant’s confession will nonetheless have a “devastating”

effect on the defendant (Bruton, 391 U.S. at 136).°°

Where the confessions interlock on the key facts, each de

because only Benjamin’s statements revealed (1) that petitioner

and Benjamin went to Norberto’s house to pick up Jerry Cruz, (2)

that Jerry was involved in the robbery, and (3) that it was because

of Jerry’s involvement in the robbery that Norberto failed to inform

the police earlier about the confessions. These claims are erroneous.

Norberto clearly testified that Jerry left with petitioner and

Benjamin at the end of the visit on November 29, 1981 (J.A. 41).

Moreover, in response to the question why he did not tell the police

about the statements earlier, Norberto replied, through an inter-

preter, that it was because Jerry “had the event” (J.A. 45). That

response suggests that Norberto did not go to the police because

Jerry was a participant in the offense. That explanation is con-

sistent with Norberto’s informing the police about the statements

only after Jerry’s death.

23 The approach we suggest addresses Justice Blackmun’s concern

in Parker (442 U.S. at 80) that if the plurality “is willing to

abandon the factual inquiry that accompanies a harmless-error

determination, it should be ready, at least, to substitute an inquiry

into whether there is genuine interlocking * * *.”

fendant’s confession will almost never have a devastating

impact on the other defendant. While differences in the

reliability of the statements may be relevant to the trial

court’s inquiry, those differences ordinarily should matter

only when they are so fundamental that there is a seri-

ous doubt as to whether the defendant confessed at all.

Absent such a grave divergence in reliability, the pres-

ence of a confession by each defendant will help ensure

that the jury will be able to follow the court’s instruc-

tion to consider the evidence against each defendant sepa-

rately. For that reason, purported differences in relia-

bility ordinarily should not prevent the application of the

interlocking confession rule articulated by the Parker

plurality.**

Under this approach, petitioner’s confrontation rights

were not violated by the admission of Benjamin’s state-

ments. Both the trial court and the court of appeals cor-

rectly ruled that the confessions were factually interlock-

ing ‘Pet. App. Al2; J.A. 23, 27-28). Each confession

established all the elements of felony murder, and Ben-

jamin and petitioner were in full agreement about their

respective roles in the crime. |

*4In his dissenting opinion in Parker, Justice Stevens posed a

hypothetical situation (442 U.S. at 84-85) in which a co-defendant

confesses on television about how he and the defendant planned and

carried out a murder, while the defendant’s statement is “the

testimony of a drinking partner, a former cellmate, or a divorced

spouse of [defendant] who vaguely recalls [defendant] saying that

he had been with [co-defendant] at the approximate time of the

killing.” Justice Stevens uses the disparity in the quality and con-

tents of the statements in the hypothetical to demonstrate what he

believes to be the problem with the plurality’s approach in Parker.

That hypothetical, however, is inapposite here. The defendant’s

statement in the hypothetical did not constitute a confession; it was

merely a statement that the defendant had been with the co-

defendant at the approximate time of the offense. The two state-

ments therefore would not be interlocking at all. In this case, by

contrast, the two defendants’ statements interlocked on all the

essential facts of the cffense. In addition, unlike in the hypotheti-

cal, Norberto had a clear memory of petitioner’s statements, not

simply a vague recollection of petitioner’s remarks.

Petitioner claims that Norberto’s testimony was un-

reliable for the following reasons: (1) Norberto had a

“prior record”; (2) he received welfare payments while

working “on the street’”’ as a mechanic; (3) he accepted

money from his brother without inquiring about its

source; (4) at the prior trial Norberto testified that

Benjamin, not petitioner, had confessed to him; (5)

Norberto waited several months before reporting the in-

criminating statements to the police; and (6) Norberto

was seeking revenge because he thought petitioner had

murdered his brother (Pet. 11; Pet. Br. 27-28).

These points do not withstand analysis. Norberto’s

criminal record consisted solely of an eight-year-old traffic

conviction for driving without a license (J.A. 36-37) ;

thus, except for one minor traffic offense, Norberto had

a clean record. His receipt of welfare payments while

he was performing occasional work on the street as a

mechanic does not in any way suggest dishonesty or un-

reliability on Norberto’s part (see Ist Tr. 194). Simi-

larly, the money Norberto received from Jerry was sim-

ply Jerry’s contribution to the upkeep of the household

(J.A. 40-41). It is probative of nothing that Norberto

did not interrogate Jerry as to where he got the money

to pay his share of the expenses. Petitioner’s claim that

Norberto, at the first trial, maintained that Benjamin

alone had confessed is incorrect; Norberto clearly testified

that both petitioner and Benjamin had told him about

the murder.** As to Norberto’s reasons for not going to

*> Petitioner bases his contention on the fact that at one point

Norberto testified that when he asked petitioner what happened,

Benjamin spoke (Pet. 11; see J.A. 50). Petitioner overlooks

Norberto’s testimony that petitioner, as well as Benjamin, had told

him about the robbery (1st Tr. 151-152):

Q: [By the prosecutor]: Did you ask [petitioner] how he

got hurt?

A: [By Norberto]: Yes. I asked him what had happened.

Q: And what did he say how he got hurt?

the police sooner, Norberto’s testimony (J.A. 45) suggests

that, given Jerry’s involvément in the incident, he did

not want to report the statements and risk getting his

brother in trouble. In any event, it is hardly surprising

that a person would fail to come forward with evidence

of a crime, but then report that evidence when approached

by the police, as was the case with Norberto. Finally,

petitioner was unsuccessful at trial in his effort to show

that Norberto was attempting to implicate petitioner in a

crime he did not commit in order to avenge Jerry’s death.

As the court of appeals noted ‘Pet. App. Al3 n.2),

there is nothing in the record to support that claim.

To the contrary, a number of factors underscore the

reliability of Norberto’s testimony. To begin with, his

testimony (J.A. 33) that petitioner said the attendant

“bent down” and that Benjamin then “jumped up and

fired” is confirmed by the medical evidence that the bul-

lets entered the victim traveling in a downward path

(J.A. 53).%* Norberto’s recollection of petitioner’s de-

A: To [sic] the guy in the gas station had taken out a gun

and had shot him.

Q: And what happened—Did he tell you what happened to

the guy who shot him?

A: Yes. That they were wrestling, and when he bent over, he

took out the revolver and fired and then, jumped, Benjamin

jumped and fired.

Who fired? I’m sorry. Who fired at who?

Benjamin.

Fired at who?

The guy in the gas post.

And when [petitioner] told you that, where was Benjamin”

i i

He was present.

26 Photographs of the murder scene that were admitted at trial

(reproduced in the State’s Brief in the New York Court of Appeals

at 15-16) show that the gas station had a counter. Since the area

behind the counter was covered with blood (as the photographs

scription of the events—that Benjamin was the one who

killed the attendant, that petitioner was wounded by the

attendant, and that the murder occurred during a hold-

up—was fully consistent with Benjamin’s statement to

the police.*? And Norberto gave unimpeached testimony

about an easily verifiable fact—that he remembered the

date of his conversation with petitioner and Benjamin

because his wife had been released from the hospital that

day (Pet. App. A5; J.A. 44). In addition, as the first

trial court noted (J.A. 23), “Norberto was not a suspect

in this or any other crime at that time and there is no

claim that he was offering these revelations in return for

lenient treatment from the police.” In the end, Norberto’s

testimony was corroborated by the physical evidence and

hy Benjamin’s statements, and Norberto was not im-

peached in any significant way.**

Petitioner has therefore failed to show why the prin-

ciple articulated by the plurality in Parker should not

apply in this case. The confessions interlocked on all of

the key facts, as the courts below found (Pet. App. Al11-

Al2; J.A. 23). And petitioner’s assertion that Norberto’s

testimony was unreliable is factually unfounded. Ad-

show), it is likely that the victim was shot while he was behind the

counter. Because Benjamin was probably in front of the counter

when he shot the attendant, it is understandable why Benjamin had

to jump up when the attendant bent down.

*7 Petitioner finds it significant (Pet. Br. 5, 28-29 & n.14) that

Norberto said that petitioner’s right arm was injured while

Benjamin said it was the left one. The important point, however,

is that both Norberto and Benjamin testified that petitioner was

wounded by the gas station attendant and had a bandage on one

of his arms.

** Norberto withstood vigorous cross-examination by two defense

attorneys at two trials in this case—the first trial having ended in

a mistrial pnecause of juror misconduct. Defense counsel also had

potential impeachment material in the form of Norberto’s grand

jury testimony. A reading of Norberto’s testimony at both trials

reveals that defense counsel scored few points—and certainly no

major ones—in their lengthy cross-examinations.

mission of Benjamin’s statements at the joint trial, in

the face of petitioner’s own complete confession to felony

murder, therefore did not have the “devastating” conse-

quences to his case that are required for the principles

of Bruton to apply.

CONCLUSION

The judgment of the New York Court of Appeals

should be affirmed.

Respectfully submitted.