Respondents Brief — Gray v. Maryland

Supreme Court, US.

a, FILED

SEP 30 1997

Supreme Court of the United States

OCTOBER TERM, 1996

KEVIN D. GRAY,

Petitioner,

Vv.

STATE OF MARYLAND,

Respondent.

ON WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF MARYLAND

BRIEF FOR RESPONDENT

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

‘ 200 Saint Paul Place

Baltimore, 21202

(410) S16-6425

Counsel for Respondent

a

——— - --—--- a

EST AVAILABLE COPY.

7

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8 een we we

QUESTION PRESENTED

Is the Confrontation Clause of the Sixth Amendment

complied with when a nontestifying codefendant's

confession, redacted to exclude the defendant's name by

substituting the words "deleted" and "deletion," is

introduced at a joint trial accompanied by an instruction to

the jury not to consider the confession against the

defendant?

i

PARTIES TO THE PROCEEDING

The caption contains the names of all the parties below.

ec re I a

om,

TABLE OF CONTENTS

QUESTION PRESENTED ....................

PARTIES TO THE PROCEEDING .............

EEE SE

STATEMENT OF JURISDICTION .............

CONSTITUTIONAL PROVISION INVOLVED ...

STATEMENT OF THECASE .................

SUMMARY OF ARGUMENT .................

IEE SOG. re Ss were ween cn ceWe ¥ét

THE CONFRONTATION CLAUSE OF THE

SIXTH AMENDMENT IS COMPLIED WITH

WHEN A NONTESTIFYING CODEFENDANT'S

CONFESSION, REDACTED TO EXCLUDE THE

DEFENDANT'S NAME BY SUBSTITUTING THE

WORDS "DELETED" AND “DELETION,” IS

INTRODUCED AT A_ JOINT TRIAL

ACCOMPANIED BY AN INSTRUCTION TO THE

JURY NOT TO CONSIDER THE CONFESSION

AGAINST THE DEFENDANT...............

A. Bruton and Richardson Provide the Framework

for Determining Whether the Admission of a

Confession at a Joint Trial Incriminates the

Nonconfessing Defendant in Violation of

the Confrontation Clause of the Sixth

D. The Trial Court's Cautionary Instruction to the

Jury Not to Consider Bell's Confession Against

Gray Ensured that the Jury Would Properly

Limit Its Consideration of that Evidence. . . . . 22

E. Even Under a Contextual Implication Analysis,

It Was Not Overwhelmingly Probable that the

Jury Would be Unable to Follow a Limiting

Instruction Not to Consider Bell's Statement

Against Gray .......--------eee creer 27

oo oP) rrr rrr 31

a

ee ee

v

TABLE OF AUTHORITIES

Cases:

Beam v. Paskett, 3 F.3d 1301 (9th Cir. 1993),

cert. denied, 511 U.S. 1060(1994)............. 15

Beech Aircraft Corp. v. Rainey,

488 U.S. 153 (1988)

Bourjaily v. United States, 483 U.S. 171 (1987) .... 21

Bruton v. United States, 391 U.S. 123

GED: oc tihdeeld died tide ve. Xuan es <o. 9, passim

California v. Green, 399 U.S. 149 (1970) ......... 21

Chambers v. Mississippi, 410 U.S. 284 (1973) ..... 21

Commonwealth v. Rawls, 419 A.2d 109

(Pa. Super. 1980), appeal dismissed,

FS 29

Donnelly v. DeChristoforo, 416 U.S. 637 (1974) ...25

Dutton v. Evans, 400 U.S. 74 (1970) ............. 21

Ewish v. State, 871 P.2d 306 (Nev. 1994) ......... 16

Gacy v. Welborn, 994 F.2d 305 (7th Cir.),

cert. denied, 510 U.S. 899 (1993).............. 24

Gray v. Maryland, 107 Md. App. 311,

OF a Ee eee ere l

Harris v. New York, 401 U.S. 222 (1971) ...... 17, 23

Harris v. State, 462 $.E.2d 425 (Ga. App. 1995)... . 29

Huddleston v. United States, 485 U.S. 681 (1988) . . . 23

James v. Illinois, 493 U.S. 307 (1990). ........... 21

Marshall v. Lonberger, 459 U.S. 422 (1983)... .... 20

Maryland v. Craig, 497 U.S. 836 (1990) .......... 20

Maryland v. Gray, 344 Md. 417,

ES l

Michigan v. Tucker, 417 U.S. 433 (1974)

Page

Miranda v. Arizona, 384 U.S. 436 (1966) ......... 17

Moran v. Burbine, 475 U.S 412 (1986) ........... 17

Oregon v. Hass, 420 U.S. 714(1975) ............ 17

People v. Fletcher, 917 P.2d 187 (Cal. 1996) ...... 29

People v. Rainge, 445 N.E.2d 535 (Ill. App. 1983),

cert. denied, 467 U.S. 1219 (1984)............. 16

People v. Ricardo B., 535 N.E.2d 1336 (N.Y. 1989) . 16

Richardson v. Marsh, 481 U.S. 200 (1987) .. 9, passim

Romano v. Oklahoma, 512 U.S. 1 (1994) ......... 23

Scarborough v. State, 437 A.2d 672 (Md. App.

1981), cert. denied, 292 Md. 639 (1982) ........ 16

State v. Corsi, 430 A.2d 210 (N.J. 1981)... ....... 16

State v. Watson, 397 So. 2d 1337 (La.), cert. -

denied, 454 U.S. 903 (1981).................. 16

United States v. Briscoe, 896 F.2d 1476 (7th Cir.),

cert. denied, 498 U.S. 863 (1990).............. 29

United States v. Donahue, 948 F.2d 438 (8th Cir.

1991), cert. denied, 503 U.S. 976 (1992) ........ 28

United States v. Havens, 446 U.S. 620 (1980) ...... 21

United States v. Lane, 474 U.S. 438 (1986) ........ 15

United States v. Nixon, 418 U.S. 683 (1974) ....... 20

United States v. Nobles, 422 U.S. 225 (1975) ...... 20

United States v. Sidman, 470 F.2d 1158 (9th Cir.

1972), cert. denied, 409 U.S. 1127 (1973) ....... 16

United States v. Washington, 431 U.S. 181 (1977) . . 17

United States v. Washington, 952 F.2d 1402 (D.C.

Cir. 1991), cert. denied, 503 U.S. 1009 (1992)... . 28

Williamson v. United States, $12 U.S. 594 (1994)... 3

Yee v. City of Escondido, 503 U.S. 519 (1992) ..... 25

Zafiro v. United States, 506 U.S. $34 (1993) ....... 15

vii

Page

Constitutional Provision:

a el, S08 eA ed eed 17

US. Covast. amend. VI.................. 1, passim

Statute:

ae ee ee eee l

Rule:

Federal Rule of Evidence 106 .................. 20

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland

reversing the judgment of the Court of Special Appeals of

Maryland is reported, Maryland v. Gray, 344 Md. 417,

687 A.2d 660 (1997), and is reproduced in the joint

appendix. (J.A. 88-108).

The opinion of the Court of Special Appeals of

Maryland reversing the judgment of the trial court is

reported, Gray v. Maryland, 107 Md. App. 311, 667 A.2d

983 (1995), and is reproduced in the joint appendix. (J.A.

69-87).

The unreported opinion of the Circuit Court for

Baltimore City, Maryland, denying petitioner's motion for

severance is reproduced in the joint appendix. (J.A. 7-9).

STATEMENT OF JURISDICTION

The opinion of the Court of Appeals of Maryland

reversing the judgment of the Court of Special Appeals of

Maryland and affirming petitioner Gray's conviction was

filed on January 15, 1997. The petition for writ of

certiorari was filed in this Court on April 15, 1997, and

granted on June 16, 1997.

Jurisdiction of this Court is invoked pursuant to 28

U.S.C. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment VI provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

2

impartial jury of the State and district wherein the

crime shall have been committed, which district

shall have been previously ascertained by law,

and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses

against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

STATEMENT OF THE CASE

Six young men beat Stacey Williams to death on

November 10, 1993 in Baltimore, Maryland. Petitioner

Kevin Gray, Anthony Bell, Jacquin Vanlandingham

(known as "Tank"), and several other unidentified

individuals chased the victim down the street immediately

before the beating. (Tr. 6/21/94, at 91). Tank hit the

victim in the mouth and then picked him up and dropped

him on his head. (/d. at 112-13, 120-22). Gray, too, lifted

the victim up and dropped him head-first onto the ground.

(Id. at 113-14, 120-22). After dropping the victim on his

head three times, the young men "stomped" and kicked the

victim repeatedly in the neck and head. (/d. at 114). After

the beating, Bell and Tank grabbed the victim by his neck

and dragged him to his girlfriend's house. (/d. at 122).

Several hours after the beating, the victim went into

seizures and was transported to the hospital. (/d. at 123-

24, 229). He died the next day of brain trauma and

injuries caused by being struck in the head and by his

head's striking a hard surface, such as cement or asphalt.

(Jd. at 229).

Bell gave a written statement to the police implicating

himself, Gray, Tank, and a "few other guys” in the victim's

a eee ee

3

death. (J.A. 10-12, 57-60). Other evidence at trial also

showed that as many as six persons were involved in the

crime. (Tr. 6/21/94, at 114). Gray gave an oral statement

nd the “nr oo he denied his involvement in the

ating clai to have been speaking on a

telephone when the beating occurred. (Tr. 6/22/94, at 38),

Gray and Bell were scheduled to be tried jointly.’

Before trial, Gray's attorney moved to exclude Bell's

statement from evidence. (J.A. 3).? When the trial court

suggested redacting the confession to eliminate the names

of the persons identified by Bell, counsel for Gray argued

that because the statement showed that the beating was a

group activity, the jury could nonetheless infer that Gray

was one of the persons named by Bell. (J.A. 3). Gray

also moved to have his case severed from Bell's, claiming

that Bell's statement could only be interpreted by the jury

as referring to Gray as one of the participants in the crime.

(J.A. 4). Ifthe cases were tried together, Gray argued, he

would be denied his right of confrontation because he

would be foreclosed from cross-examining Bell about the

statement. (J.A. 4).

The trial judge denied the severance motion, saying:

All nght. It seems to me in that light, that there

is not a difficulty here with a statement which

' Tank was fatally shot two days after the incident. (Tr.

6/22/94, at 147-48).

| ? The prosecutor made no attempt at trial to introduce

Bell's statement against Gray. Accordingly, any issue relating

to the use of Bell's confession as substantive evidence against

Gray, see Williamson v. United States, 512 U.S. 594 (1994), is

not before the Court.

4

involves two people where we redact the name of

the defendant who is making the motion, that

there's going to be this compelling implication to

the jury that the name that's been redacted or left

out must be the name of the co-defendant [Gray].

To the contrary, I think that where you've got

group activity and the evidence here is,

apparently, going to be that there were at least

five, and maybe as many as six men involved in

this assault on the victim, to redact this statement,

it seems to me, will not unduly prejudice Mr.

Gray.

It seems to me that this statement can be

sanitized in about three different spots so as to

remove the names of Tank and Mr. Gray and the

jury will not be left with the unavoidable

inference or implication that the person Mr. Bell

is referring to in the statement is Mr. Gray.

(J.A. 7-8).

When defense counsel expressed concern that the jury

would have only “one other person to choose from

because there are not five or six people on trial,” the trial

judge stated that he would instruct the jury not to consider

that the other persons alleged in the statement to have been

involved in the crime were not on trial. (J.A. 8). The

court also agreed to instruct the jury not to speculate why

the other individuals were not on trial and not to consider

Bell's statement as evidence against Gray. (J.A. 8-9).

At the joint trial, the prosecution admitted a redacted

version of Bell's statement through Detective Homer

Pennington, who had interrogated Bell. Before the

redacted statement was read into evidence, the judge

instructed the jury as follows:

5

Ladies and gentlemen of the jury, you're about to

hear evidence concerning the statement provided

by Mr. Bell when he was interviewed by the

detective. You should understand, and I will

remind you later, that this evidence concerning

the statement provided by Mr. Bell is to be

considered by you as evidence against Mr. Bell

only and in no way is Mr. Bell's statement

provided to the detective about which he's about

to testify to be considered by you as evidence

against Mr. Gray. It is evidence against Mr. Bell

only, and as I will instruct you later, you will

consider the evidence against each of the

defendants individually and reach a separate

verdict as to each defendant.

(J.A. 10).

Bell's statement was then read aloud to the jury:

Question, what can you tell me about the

beating of Stacey Williams that occurred on 10,

November, 1993?

Answer, an argument broke out between

deletion and Stacey in the 500 block of Louden

Avenue. Stacey got smacked and then ran onto

Wildwood Parkway. Me, deleted, and a few

other guys ran after Stacey. We caught up to him

on Wildwood Parkway. We beat Stacey up.

After we beat Stacey up, we walked him back to

Louden Avenue. I then walked over and used the

phone, Stacey and the others walked down

Louden.

Question, when Stacey was beaten on

Wildwood Parkway, how was he beaten?

Answer, hit, kicked.

6

Question, who hit and kicked Stacey?

Answer, I hit Stacey. He was kicked, but I

don't know who kicked him.

Question, who was in the group that beat

Stacey?

Answer, me, deleted, deleted, and a few other

s.

ooo do you know the other guy's name?

Answer, deleted, deleted, and me. I don't .

remember who was out there.

Question, did anyone pick Stacey up and drop

him to the ground?

Answer, no, when I was there.

Question, what was the argument over between .

Stacey and deleted?

Answer, some money that Stacey owed

deleted. a

Question, how many guys were hitting on

Stacey?

Answer, about six guys.

Question, do you have a black jacket with Park

Heights written on the back?

Answer, yea.

Question, who else has these jackets?

Answer, deletion.

Question, after reading this statement, would

you sign it?

Answer, yes. He then signed it.

(J.A. 11-12) (emphasis added).’ The copy of the statement

3 There is a minor discrepancy, immaterial to the issue

before this Court, between the transcription of Bell's statement

7

admitted into evidence had blank white spaces where the

names once appeared. (J.A. 65-68).

Gray testified in his own defense and claimed to have

been speaking to his girlfriend on a nearby pay telephone

at the time of the beating. (Tr. 6/23/94, at 5-6, 15). Gray

called two other witnesses to support his claim that he was

not involved in the beating. (Tr. 6/22/94, at 176-77, 189-

91). Bell did not testify at the joint trial.

In its instructions at the close of all the evidence, the

trial court reminded the jury:

You must consider the evidence as it relates to

each defendant separately and you must consider

separately each offense charged against each

defendant. A separate verdict must be returned

for each charge against each defendant.

In this connection some of the evidence was

admitted only against one of the defendants and

not against the other defendant. You must

consider such evidence only as it relates to the

defendant against whom it was admitted. Each

defendant is entitled to have the case decided

separately on the evidence that applies to that

defendant.

(J.A. 14). The judge also admonished the jury: "[YJou

should not concern yourself with the fact that others who

may be implicated in the criminal offenses are not before

in the trial transcript and the transcription contained in the joint

appendix. The trial transcript reads: "Question, do you know

the other guy's name?" (J.A. 11). That same sentence in the

transcribed statement contained in the joint appendix reads:

"(Q) Do you have the other guys names." (J.A. 62).

you for trial." (J.A. 18). .

The jury found Gray and Bell guilty of involuntary

manslaughter. (Tr. 6/24/94, at 2-3). Gray received a

sentence of ten years, three of which were suspended in

favor of five years of supervised probation effective upon

his release. (Tr. 8/1/94, at 24).

Gray's conviction was reversed by the Court of Special

Appeals of Maryiand. (J.A. 87). The state intermediate

appellate court held tha: there was a substantial risk that

the jury would consider the confession as evidence of

Gray's guilt because the words "deleted" and "deletion"

did not render the statement nonincriminating as to Gray.

(J.A. 83-84). Adopting a "contextual linkage" analysis,

the court concluded that Gray's role in the crime was

"clearly demonstrated" by his codefendant's confession

and, therefore, Gray's constitutional right of confrontation

was violated by its admission into evidence. (J.A. 84).

The Court of Appeals of Maryland reversed the

judgment of the Court of Special Appeals, rejecting the

contextual implication approach employed by that court.

(J.A. 105, 107). Maryland's high court adopted instead a

version of the “facial implication" doctrine, which

provides that a defendant's right of confrontation is

satisfied when a codefendant's confession is redacted so

that it does not "facially, or by compelling and inevitable

inference, inculpate" the defendant. (J.A. 105). The

Court of Appeals held that, as redacted, Bell's confession

did not facially implicate Gray. (J.A. 106). Thus,

admission of the confession into evidence, coupled with

the limiting instruction, did not offend Gray's nght of

confrontation. (J.A. 106).

9

SUMMARY OF ARGUMENT

In Richardson v. Marsh, 481 U.S. 200 (1987), this

Court resolved the question whether redaction of a

codefendant's confession to eliminate any reference to the

existence of the nonconfessing defendant satisfies the

latter's nght of confrontation when the jury is instructed to

consider the confession only against the confessor. In

holding that the Confrontation Clause was satisfied. the

Court rejected a "contextual linkage" analysis in favor of

a "facial implication" approach. This approach focuses

solely on the redacted confession and does not consider

any links to the defendant supplied by other evidence in

the case. Undergirding the Court's decision in that case

were important policy considerations, including the

preference for joint trials, the desirability of verdict

consistency, and the practical difficulties attendant to use

of a contextual linkage approach.

Although the Court left open in Richardson the precise

question here, i.e., whether the Confrontation Clause is

satisfied by substituting neutral references for the

nonconfessing defendant's name, the logic of Richardson

compels an affirmative answer to that question. The

identical policy considerations addressed in Richardson

are at issue here. More importantly, redaction by use of

neutral references minimizes the possibility that the jurors

will ignore a proper limiting instruction. See Richardson,

481 U. S. at 206. Certainly, "there does not exist the

overwhelming probability of their inability to do so that is

the foundation of Bruton's"! exception to the general rule."

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

10

Richardson, 481 U.S. at 208. Indeed, whenever a

confession is redacted to eliminate the defendant's name or

its functional equivalent, Bruton and Richardson are

satisfied.

In this case, the codefendant's confession was redacted

to eliminate Gray's name, the only identifying reference to

him. As redacted, the codefendant's confession did not

facially incriminate Gray, even though the confession on

its face indicated that others, b_ sides the confessor, were

involved in the crime. Under the analysis set forth in

Richardson, there was not an overwhelming probability

that the jury would be incapable of following an

instruction to consider the confession only against the

cautionary instruction, safeguarded Gray's rights under the

Confrontation Clause.

Even if the codefendant's confession were viewed in the

context of other evidence adduced at tral, Its admission

against Bell did not violate the Confrontation Clause.

Given the manner of redaction, the number of persons

involved in the crime, and the conflicts in the testimony,

it was not overwhelmingly probable that the jury would be

incapable of following the trial court's instructions.

1]

ARGUMENT

THE CONFRONTATION CLAUSE OF THE SIXTH

AMENDMENT IS COMPLIED WITH WHEN A

NONTESTIFYING CODEFENDANT'S

CONFESSION, REDACTED TO EXCLUDE THE

DEFENDANT'S NAME BY SUBSTITUTING THE

WORDS "DELETED" AND “DELETION,” IS

INTRODUCED AT A JOINT TRIAL

ACCOMPANIED BY AN INSTRUCTION TO THE

JURY NOT TO CONSIDER THE CONFESSION

AGAINST THE DEFENDANT.

A. Bruton and Richardson Provide the Framework for

Determining Whether the Admission of a

Confession at a Joint Trial Incriminates the

Nonconfessing Defendant in Violation of the

Confrontation Clause of the Sixth Amendment.

In Bruton v. United States, 391 U.S. 123, 135-37

(1968), this Court held that a defendant is deprived of his

rights under the Confrontation Clause of the Sixth

Amendment when the facially incriminating confession of

a nontestifying codefendant is introduced at their joint

trial. Underlying the Court's holding was the concern that

the tnal court's cautionary instruction to the jury could not

overcome the substantial risk that the jury would consider

the incriminating confession against the confessor’s

codefendant. /d.

Nineteen years later, in Richardson v. Marsh, 481 U.S.

200 (1987), the Court clarified that Bruton was limited to

situations in which facially incriminating statements made

12

by codefendants are used at trial. The Court recognized

that "the [Bruton] calculus changes when confessions that

do not name the defendant are at issue." Richardson, 481

U.S. at 211. Because the confession in Richardson was

not “incriminating on its face," as had been the confession

in Bruton, but became incriminating only when tied to

other evidence adduced at trial, the court's limiting

instructions were likely to prevent the jury from inferring

the guilt of the defendant from the codefendant's

confession. Richardson, 481 U.S. at 208.

Read together, Bruton and Richardson impart four

principles that guide the analysis of the issue presented by

this case. First, the Confrontation Clause is violated by

the admission of a nontestifying codefendant's confession

that expressly incriminates the defendant by name or other

identifying reference, notwithstanding a limiting

instruction that the confession be used only against the

defendant who made it. Richardson, 481 U.S. at 208, 211;

Bruton, 391 U.S. at 135-36. Second, Bruton established

a “narrow exception” to the "almost invariable assumption

of the law” that juries can be trusted to follow the mal

court's instructions; that assumption applies to the

admission of codefendant confessions that are redacted to

eliminate references to other defendants. Richardson, 481

U.S. at 206-08. Third, the Confrontation Clause is not

violated by the admission of a nontestifying codefendant's

confession is redacted so that it does not facially

incriminate the nonconfessing defendant. Jd. at 211.

Fourth, the question whether a nontestifying codefendant's

confession implicates the defendant is to be determined

from the text of the confession alone, not by reference to

other evidence in the case (the "contextual implication" or

13

“evidentiary linkage" approach). /d. at 208-09. The first

two principles are not in dispute; the latter two principles

lie at the heart of this case.

B. The Compelling Policy Considerations Supporting

the Court's Ruling in Richardson Apply Equally to

Redactions that Substitute Blanks or Neutral

References for the Defendant's Name.

This Court in Richardson rejected the contextual

implication approach to determining whether a confession,

redacted to eliminate all references to the nonconfessing

defendant's existence, incriminates the nonconfessing

defendant in violation of Bruton. The Court instead

adopted the facial implication doctrine, which provides

that only those confessions that on their face directly

inculpate codefendants raise Confrontation Clause

concerns. Richardson, 481 U.S. at 208. Where the

incrimination is only inferential, "the judge's instruction

may well be successful in dissuading the jury from

entering onto the path of inference in the first place, so

that there is no incrimination to forget." Jd. In other

words, where the defendant's culpability is established

only by viewing the codefendant’s confession in

conjunction with other evidence in the case, "there does

not exist the overwhelming probability" of the jury's

inability to obey the court's instructions “that is the

foundation of Bruton's exception to the general rule." /d.

The Court thus made plain in Richardson that the analysis

focuses exclusively on the confession, not its contextual

The Court's rejection in Richardson of the contextual

implication analysis in favor of the facial implication

14

approach was driven, in part, by compelling policy

considerations. Those considerations apply equally to

redactions that replace the nonconfessing defendant's

name, or the functional equivalent thereof, with a blank or

neutral reference. First, whereas facial incrimination is

curable by redaction that eliminates references to

coparticipants, there is no effective way to redact a

confession that is incriminating to the nonconfessing

codefendant only when tied to other evidence.

Richardson, 481 U.S. at 209. With Bruton limited to

facially incriminating confessions, redaction is a simple

way to comply with its dictates—a suggestion made by the

Bruton opinion itself. Richardson, 481 U.S. at 208-09,

citing Bruton, 391 U.S. at 134 n.10.

Second, if a contextual implication approach were used,

then a trial judge who is asked to rule on motions to

exclude the confession or to sever the trials would be

burdened with the task of considering not only the

confession itself but also other evidence, which typically

will not yet have been presented. Richardson, 481 U.S. at

209. It would often be impossible for a trial judge to

predict the admissibility of a confession in advance of the

trial. Jd. To remedy the situation, the trial judge would be

faced with the choice of having to (1) assess at the end of

the trial whether the confession, viewed in conjunction

with the other evidence, incriminated the defenda..: so as

to entitle him to a new trial; or (2) conduct a pretrial

hearing at which both the prosecu..ion and the defense

would be required to reveal the evidence they planned to

introduce. Jd. As the Court observed in Richardson, both

approaches open the door to manipulation by the defense,

numerous mistrials and appeals, and overall judicial

inefficiency. Jd.

15

Third, prohibiting the use at joint trials of confessions

that are not facially incriminating would result in fewer

joint trials, thereby exacting a significant toll on the trial's

participants and society as a whole. Separate trials of

codefendants necessitate that the prosecutor repeatedly

trauma, and, sometimes, danger to victims and witnesses

is not insignificant. See id. at 210. And, the last-tried

defendant is "randomly favored" by “knowing the

prosecution's case beforehand." Jd. This Court has

expressed its preference for joint trials because they play

a "vital role in the criminal justice system . . . by enabling

a more accurate assessment of relative culpability." Jd. at

209-10. Moreover, joint trials "promote efficiency and

‘serve the interests of justice by avoiding the scandal and

inequity of inconsistent verdicts." Zafiro v. United States,

506 U.S. 534, 537 (1993), quoting Richardson, 481 U.S.

at 210; see also United States v. Lane, 474 U.S. 438, 449

(1986) (joint trials “conserve state funds, diminish

inconvemence to witnesses and public authorities, and

avoid delays in bringing those accused of crime to trial"),

quoting Bruton, 391 U.S. at 134.

The alternative of using multiple juries, suggested by

Gray's amicus, (NACDL Amicus Br. 15), could likewise

lead to inconsistent verdicts, and has other drawbacks, as

well.* The procedure can impose an inordinate burden on

* Numerous lower courts have disapproved of using

multiple juries in a single trial. See, e.g., Beam v. Paskett, 3

F.3d 1301, 1304 (9th Cir. 1993) (multiple juries increase

complexity and likelihood of error, and impair each defendant's

ability to present a defense), cert. denied, 511 U.S. 1060

16

the trial court in coordinating the two juries, maintaining

their segregation, and ensuring their equal treatment. The

technique may entail separate jury venires, instructions to

the juries not to communicate, courtrooms large enough to

accommodate multiple juries, excessive moving of the

juries in and out of the courtroom, separate sets of jury

instructions, duplicate exhibits, and staggered verdicts.

And, inasmuch as certain procedures, such as opening

statements, closing arguments, and cross-examination of

(1994); United States v. Sidman, 470 F.2d 1158, 1170 (9th Cir.

1972) (expressing disapproval of use of two-jury trials), cert.

denied, 409 U.S. 1127 (1973); People v. Rainge, 445 N.E.2d

535, 551 (Ill. App. 1983) (use of dual juries should not be

encouraged because of problems inherent in keeping track of

"who testified before which jury, and even which jury is hearing

which testimony"), cert. denied, 467 U.S. 1219 (1984), State

v. Watson, 397 So. 2d 1337, 1342 (La.) (discouraging use of

dual juries absent criminal procedure guidelines), cert. denied,

454 U.S. 903 (1981); Scarborough v. State, 437 A.2d 672, 674-

76 (Md. App. 1981) (condemning use of dual juries because "all

the risks inherent in the traditional jury system become two-

fold"), cert. denied, 292 Md. 639 (1982); Ewish v. State, 871

P.2d 306, 316 (Nev. 1994) (instructing lower courts to refrain

from dual jury trials absent guidelines or statutes because such

trials are administratively cumbersome and “a breeding ground

for curious results, tainied justice, and issues for appeal"), State

v. Corsi, 430 A.2d 210, 213 (N.J. 1981) (recommending against

using dual jury procedure, noting it is exception rather than

rule); People v. Ricardo B., 535 N.E.2d 1336, 1339 (N.Y.

1989) (holding that multiple juries are exception, not rule, and

“are to be used sparingly and then only after a full consideration

of the impact the procedure will have on the defendants’ due

process rights").

17

particular witnesses would have to be repeated for the

benefit of each jury, the defense attorney going last will

benefit from knowing what to expect.

Finally, to forgo the use of codefendant confessions

altogether in such situations is too dear a price to pay in

view of “society's compelling interest in finding,

convicting, and punishing those who violate the law."

Richardson, 481 U.S. at 210, quoting Moran v. Burbine,

475 U.S. 412, 426 (1986). "[A]dmissions of guilt by

wrongdoers, if not coerced, are inherently desirable."

United States v. Washington, 431 U.S. 181, 187 (1977).

Indeed, excluding constitutionally valid confessions from

the purview of the jury distorts the fact-finding and truth-

seeking processes at the heart of the judicial system. "We

are, after all, always engaged in a search for truth in a

criminal case so long as the search is surrounded with the

safeguards provided by our Constitution." Oregon v.

Hass, 420 U.S. 714, 722 (1975) (evidence violative of

Miranda v. Arizona, 384 U.S. 436 (1966), is inadmissible

in prosecution's case-in-chief but admissible for

impeachment purposes; impeaching material would

provide valuable aid to jury in assessing defendant's

credibility); see also Moran v. Burbine, 475 U.S at 427

(expanding Miranda rules to require police to inform

suspect of status of legal representation is unnecessary for

protections of Fifth Amendment privilege and "would

come at a substantial cost to society's legitimate and

substantial interest in securing admissions of guilt"):

Michigan v. Tucker, 417 U.S. 433, 450 (1974) (system of

justice has strong interest in "making available to the trier

of fact all concededly relevant and trustworthy evidence

which either party seeks to adduce"); Harris v. New York,

401 U.S. 222, 226 (1971) ("The shield provided by

18

Miranda cannot be perverted into a license to use perjury

by way of a defense, free from the risk of confrontation

with prior inconsistent utterances.").

The compelling reasons set forth in Richardson for

permitting redaction notwithstanding possible contextual

linkage were critical to the result in that case. Those

considerations apply equally to this case and dictate the

same conclusion.

C. A Codefendant's Confession Redacted by

Substituting Blanks or Neutral References for the

Defendant's Name Does Not Facially Incriminate

the Defendant.

Although the Court in Richardson reserved ruling on the

admissibility of confessions in which the defendant's name

has been replaced by a symbol or neutral pronoun, 481

U.S. at 211 n.5, the reasoning of that case logically

extends to confessions redacted in that manner. So long as

a proper limiting instruction is given, the Bruton-

Richardson doctrine plainly permits the use at trial of a

confession redacted to include only neutral references to

codefendants. A statement in which the name of the

defendant has been deleted or replaced with some

nonspecific term does not “expressly” or “facially”

incriminate the defendant within the contemplation of the

doctrine.

Bell's redacted statement did not facially incriminate

Gray. The statement did not name Gray as a participant in

the crime, nor did it contain references to the functional

equivalent of his name, i.e., any information that readily

and unmistakably identified him as one of the persons

referred to as "deleted" or “deletion.” The copy of the

19

statement admitted into evidence had blank white spaces

where the names once appeared. (J.A. 65-68). The

statement merely informed the jury that others, besides the

declarant, were at the scene and involved in the incident.

Gray and his amicus nevertheless complain that Bell's

confession should have been redacted to eliminate all

references to his existence, as was done in Richardson.

(Pet. Br. 12-14; NACDL-Amicus Br. 12-14). Gray,

however, never suggested a Richardson redaction and,

indeed, voiced no objection to the method of redaction

directed by the tal court, despite ample opportunity to do

so. (Tr. 6/17/94, at 52-56; Tr. 6/20/94, at 33-35; Tr.

6/21/94, at 252; Tr. 6/22/94, at 4-5).’

® Gray and his amicus also take issue, for the first time

in this Court, with the fact that the names of Gray and Tank

were concealed by white-out, because that method of redaction

signaled to the jury that names had been omitted. (Pet. Br. 12-

14, NACDL Amicus Br. 11). This charge is groundless. A

jury's awareness that names have been redacted from a

confession is not tantamount to a conclusion on its part as to

whose names have been omitted.

” Notwithstanding the trial court's suggestion that the

prosecutor and defense counsel confer on the best way to redact

the statement, (Tr. 6/17/94, at 52), defense counsel hewed to

her “all-or-nothing" position that severance was required or, in

the alternative, that the entire statement should be excluded,

(Tr. 6/17/94, at 4-5, 45-46, 54-55). When the trial court asked

defense counsel whether she agreed to the proposed redaction,

counsel, knowing full well that the redaction would consist of

whiting out the names of Gray and Tank, replied, "As a lesser

evil I think it needs to be redacted." (Tr. 6/20/94, at 33).

20

In any event, that this Court in Richardson approved

one particular method of redaction does not mean that all

other methods of redaction are prohibited. The relevant

inquiry is not whether one method is more favorable to the

defendant than another, but, rather, whether the method

employed satisfies constitutional dictates. See Marshall v.

Lonberger, 459 U.S. 422, 438 n.6 (1983). In an analogous

context, this Court has ruled that there are no "categorical

evidentiary prerequisites” to satisfying the Confrontation

Clause. Maryland v. Craig, 497 U.S. 836, 860 (1990).

Thus, contrary to the suggestion of Gray and his amicus,

the Confrontation Clause does not mandate that the radical

redaction used in Richardson be performed in every case.

Indeed, the redaction approved in Richardson may not

be appropriate in all cases. "[T]he deletion must not be

such that it will distort the statements to the substantial

prejudice of either the declarant or the Government."

Bruton, 391 U.S. at 143 (White, J., dissenting). Redaction

that requires substantial rewriting of the document may be

at odds with the common law doctrine of completeness

embodied in Federal Rule of Evidence 106. See Beech

Aircraft Corp. v. Rainey, 488 U.S. 153, 172 (1988) (where

part of document is admitted, rule of completeness

requires admission of other portions of document that are

necessary to avoid confusion or distortion), United States

v. Nobles, 422 U.S. 225, 231 (1975) ("The ends of

criminal justice would be defeated if judgments were to be

founded on a partial or speculative presentation of the

facts."), quoting United States v. Nixon, 418 U.S. 683, 709

1974).

Aesth of the Confrontation Clause is to advance the

integrity of the truth-determining process in criminal tnals

by ensuring that the trier of fact has sufficient information

21

to "find the truth." See Bourjaily v. United States, 483

U.S. 171, 182 (1987); Chambers v. Mississippi, 410 U.S.

284, 295 (1973); Dutton v. Evans, 400 U.S. 74, 89 (1970):

California v. Green, 399 U.S. 149, 161 (1970). "There is

no gainsaying that arriving at the truth is a fundamental

goal of our legal system." James v. Illinois, 493 U.S. 307,

311 (1990), quoting United States v. Havens, 446 U.S.

620, 626 (1980). Redaction that creates confusion and

distortion runs counter to these truth-seeking objectives.

To ensure that evidence is presented to the jury as

completely and accurately as possible, trial courts must be

permitted to exercise their discretion to determine which

method of redaction best achieves that goal, taking into

account such factors as the length of the statement,

whether it was written, audiotaped or videotaped, the ease

with which redaction may be accomplished, and local trial

practices. The weight a jury affords a confession may

well depend on its form and wording, and the process of

redaction should not distort the jury's ability properly to

evaluate it. So long as the redaction produces a statement

that does not facially incriminate the nonconfessing

defendant, it comports with Sixth Amendment dictates.

Maryland, like amicus for Gray, believes this Court can

draw a "principled and practical" line, (NACDL Amicus

Br. 3), between confessions that satisfy the Bruton-

Richardson doctrine and those that do not. Maryland,

however, believes that the line should be drawn at a

different place. Under Maryland's proposed rule,

codefendant confessions that do not name or otherwise

identify the defendant in such a way as to be the

functional equivalent of the defendant's name are

admissible at joint trials, so long as the jury is instructed

to consider the statement only against the confessing

22

defendant. This rule is clear, easy to apply, and is

consonant with the goals of the Confrontation Clause.

D. The Trial Court's Cautionary Instruction to the

Jury Not to Consider Bell's Confession Against

Gray Ensured that the Jury Would Properly Limit

Its Consideration of that Evidence.

Removing Gray's name from Bell's confession enabled

the jury to follow the trial court's instruction to consider

Bell's confession solely against Bell. Unlike the situation

in Bruton, where the jurors were confronted with the

defendant's name and then told to "wipe it from their

brains,” see 391 U.S. at 129, Gray's jury was not called

upon to ignore a vital piece of evidence to which its

attention had just been directed. As this Court observed in

Richardson, "the calculus changes when confessions that

do not name the defendant are at issue." 481 U.S. at 211,

"Specific testimony that 'the defendant helped me commit

the crime’ is more vivid than inferential incrimination, and

hence more difficult to thrust out of mind." Jd. at 208.

When a confession is redacted to eliminate the defendant's

inferential, "the judge's instruction may well be successful

in dissuading the jury from entering onto the path of

inference in the first place, so that there is no

incrimination to f " Id.

sai thacees ee Sententat Geo ny, tote ein Oe

statement was admitted into evidence, (J.A. 10), and at the

close of all the evidence, (J.A. 14, 18), not to consider

Bell's confession as evidence against Gray. The court also

admonished the jury generally to consicer the evidence

only as it related to the defendant against whom it was

23

admitted. (J.A. 14). These instructions, coupled with the

redaction that omitted Gray's name from Bell's confession,

ensured that the confession would be considered for the

limited purpose for which it was admitted.

The jury's task in this regard was not particularly

difficult to perform. In Richardson, this Court catalogued

several analogous, and even more difficult, situations in

which juries routinely are called upon and expected to

follow instructions to consider evidence for one purpose

but not another, or against one defendant but not a

codefendant. See 481 U.S. at 206-07 (collecting cases).

Since Richardson, this Court has continued to adhere to

the presumption that juries can and do follow limiting

instructions. See, e.g., Romano v. Oklahoma, 512 U.S. 1,

13 (1994) (admission of evidence in capital case regarding

defendant's prior death sentence did not deprive defendant

of fair sentencing proceeding because trial court's

instruction explicitly precluded jurors’ consideration of

prior sentence as agwravating factor); Huddleston v. United

States, 485 U.S. 68 |, 691-92 (1988) (concern that other

crimes evidence posed danger of prejudice mitigated by

trial court's instruction to jury to consider similar acts

evidence only for limited purpose for which it was

admitted). Surely a jury that can consider a defendant's

\clor convictions only as they relate to his credibility can

follow an instruction not to link a defendant to evidence

that, on its face, does not even mention him.

This Court has held that a defendant's Miranda-violative

confession can be used for impeachment of the defendant's

credibility, but not as substantive evidence. Harris v. New

York, 401 U.S. at 225-26. Implicit in this holding is the

assumption that juries can follow an instruction to ignore

a defendant's confession in deciding his guilt or innocence.

24

If juries can be counted on to accomplish that feat, they

certainly can follow the kind of instruction that was given

in Gray's case."

Gray and his amicus have no quarrel with the limiting

instruction given in this case. They do argue, however,

that the instruction was undermined by the prosecutor's

rebuttal closing a:ument, the order in which she posed

her questions to Detective Pennington, and the fact that

she adduced evidence that Gray owned a "Park Heights"

jacket. They claim that the prosecutor "linked Petitioner

to codefendant Bell's redacted confession," (Pet. Br. 15

n.17), by “explicitly connecting Bell's statement to Gray's

arrest," (NACDL Amicus Br. 12-13). Amicus argues that

* Amicus for Gray cites two empirical studies that have

of following trial courts’ instructions. (NACDL Amicus Br. 4

n.3). Notwithstanding these and other studies which, over the

years, have stated this as a general proposition, this Court, as

discussed in the text above, consistently has adhered to the

belief that juries can and do follow limiting instructions. Were

this body of social science research to be accepted, the entire

foundation of the jury system would collapse. As this Court

stated in Richardson, the presumption that juries follow

instructions is "rooted less in the absolute certitude that the

presumption is true than in the belief that it represents a

reasonable practical accommodation of the interests of the state

and the defendant in the criminal justice process." 481 U.S. at

211; see also Gacy v. Welborn, 994 F.2d 305, 314 (7th Cir.)

("The jury is a means to resolve disputes, not a waystation by

which the controversy at trial is transported to a higher level of

generality as a social science dispute about juries."), cert.

denied, 510 U.S. 899 (1993).

25

this "prosecutorial manipulation" of the evidence

"guaranteed that the cautionary instruction was

ineffective." (/d.). This contention, made for the first

time in this Court,” is belied by the record.

When read in context, the portion of the prosecutor's

rebuttal closing argument to which Gray refers in no way

pe renee wee any

to testimony of two prosecution witnesses,

Shay Yarberough and Tracey Brumfield, placing Gray at

the scene of the crime. The fact that the prosecutor

pny nah orogens of Bell's redacted confession in

conjunction evidence that Gray was among the

of men iaveived in the beating wes not impernissibie

"linkage"—but was, instead, appropriate closing argument.

See Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974)

(court should not readily infer most damaging meaning

from prosecutor's ambiguous remark, nor conclude that "a

jury, sitting through lengthy exhortation, will draw that

meaning from the plethora of less damaging

interpretations").

Gray's challenge to the propriety of the prosecutor's

* At trial, Gray did not object to either the prosecutor's

comments, (J.A. 50-51), or the direct examination of Detective

Pennington, (Tr. 6/22/94, at 33), and lodged only an untimely

general objection to the prosecutor's eliciting of evidence

concerning the "Park Heights" jackets, (Tr. 6/21/94, at 125,

206). Nor did Gray raise, brief, or argue these points in the

state appellate courts or in his petition for writ of certiorari in

this Court. Thus, none of these claims is properly before the

Court. See Yee v. City of Escondido, 503 U.S. 519, 535-37

(1992) (issue not raised in or addressed by state courts nor

raised in petition for certiorari not properly before Court).

26

direct examination of Detective Pennington also misses

the mark. Amicus for Gray maintains that the prosecutor

created the impression that information provided to the

police by Bell led directly to Gray's arrest, thereby linking

Gray to the deletions in Bell's confession. (NACDL

Amicus Br. 12-13). On the contrary, the context of the

detective's testimony shows that the sequence of the

questions related chronologically to the phases of the

investigation, not to any nexus between Bell's confession

and Gray's arrest.”

Finally, Gray's amicus takes issue with the fact that the

to a jacket emblazoned with ‘Park Heights,” thereby

ensuring that the jury would connect him with Bell's

confession, which made mention of such jackets.

© Detective Pennington testified that Gray was

developed as a suspect and an arrest warrant was obtained for

him before Bell was ever questioned. The detective testified

that on January 11 and 13, 1994, he interviewed Tracey

Brumfield and Shay Yarberough, who identified Gray, Bell, and

Tank as participants in the beating. (Tr. 6/22/94, at 15-16).

Based on that information, Detective Pennington obtained arrest

warrants for Bell and Gray. (/d. at 16-17). The police arrested

and interrogated Bell the next day but could not locate Gray

until January 19. (/d. at 17, 33). Because Bell was the first

suspect to be interrogated, the prosecutor naturally questioned

Detective Pennington first about Bell's statement. (/d. at 18-

33). The prosecutor then made the transition from Bell's

statement to Gray's statement, which Gray gave to the police

five days later: "All right, now, officer, after [Bell] gave you

that information, you subsequently were able to arrest Mr.

Kevin Gray; is that correct?" (/d. at 33)

OE le ee Oe oe Ne

27

(NACDL Amicus Br. 13). In the first instance, Bell's

reference to the Park Heights jacket was, in and of itself.

wholly innocuous. He stated simply that "deletion" owned

such a jacket. (J.A. 12, 56). Furthermore, that the

prosecutor adduced testimony that Gray himself owned a

was the jacket owner referred to in the confessivun. For all

the jury knew, a number of people had such jackets and

there is no reason to assume they were all present at the

crime scene. Even more to the point, the prosecutor did

not argue to the jury in closing that Gray's Park Heights

jacket linked him to Bell's confession.

Thus, the alleged linkage about which Gray and his

amicus so strenuously complain was nonexistent. Under

their theory that every piece of prosecution evidence

improperly “linked” Gray to Bell's confession, the

prosecutor would be foreclosed from adducing any

evidence tending to establish Gray's involvement in the

beating, lest it be considered to subvert the redaction and

its accompanying jury instruction. Forcing the

prosecution to try its case in such a straightjacket surely

was not an intended outcome of Richardson.

E. Even Under a Contextual Implication Analysis, It

Was Not Overwhelmingly Probable that the Jury

Would be Unable to Follow a Limiting Instruction

Not to Consider Bell's Statement Against Gray.

Even if this Court were to apply a contextual

implication analysis to this case, the judgment below

should be affirmed. As redacted, the confession does not

28

specify the number of named participants in the crime."

But even assuming that the jury inferred from the

confession that Bell had named only two people, all of the

evidence implicated Bell and five others in the commission

of the crime, any two or more of whom could have been

the persons referred to in the statement as "deleted" and

"deletion." Redaction that substitutes pronouns or similar

neutral and nonidentifying terms for the name of a

codefendant accords with the Bruton-Richardson doctrine

if the crime was committed by a number of people, any

one of whom could have been the coparticipant mentioned

in the confession."? Because the evidence indicated that

1! In fact, the redacted confession did not make clear

that Bell named only two other people in his confession. It is

true that a jury bent on disregarding the limiting instruction

might have been able to infer that Bell named at least two

persons, because there are places where the manner of redaction

would have permitted the jury to infer that at least two different

names were given. (J.A. 10-12, 65-68). But there would have

been no way for the jury to know who Bell referred to at

various other points where the words "deleted" and "deletion"

were used, and thus there is no way to tell from the redacted

confession precisely how many people Bell named as having

been involved in the assault.

12 Many lower courts embrace this logic. See, e.g.,

United States v. Washington, 952 F.2d 1402, 1404-05 (D.C.

Cir. 1991) (use of indefinite pronoun or other general term in

place of name of defendant did not create “inevitable association

with" the defendant because terms could just as easily have been

referring to one of two other persons involved in charged

offense), cert. denied, 503 U.S. 1009 (1992); United States v.

Donahue, 948 F.2d 438, 444 (8th Cir. 1991) (references in

29

five individuals besides Bell participated in the crime, the

redacted confession did not automatically compel the

conclusion that Gray was among them.

Moreover, the prosecution's theory at trial was that

Bell's statement to the police was self-serving and,

therefore, untrustworthy inasmuch as he minimized his

own involvement in the crime. (Tr. 6/23/94, at 125-26).

The prosecutor urged the jury to disbelieve those self-

codefendant's confession to “everyone” and "they" did not

expressly implicate defendant and so it was not es Meee

probable that jurors would not be able to follow instructions to

consider statement against declarant only), cert. denied, 503

U.S. 976 (1992); United States v. Briscoe, 896 F.2d 1476, 1502

(7th Cir.) (reference to "we" in codefendant's confession could

Just as easily have referred to one group of defendants as to

another, defendant must be directly implicated "by being

specifically identified [in the statement] or by being the only

other participant in the charged crime"), cert. denied, 498 U.S.

863 (1990), People v. Fletcher, 917 P.2d 187, 195 (Cal. 1996)

(substituting pronouns or other nonidentifying terms for

defendant's name complies with defendant's confrontation right

if crime was committed by number of people); Harris v. State,

462 S.E.2d 425, 427 (Ga. App. 1995) (statement redacted by

replacing defendant's name with "someone" did not directly

implicate defendant, inasmuch as there were six or seven

persons present when crime was committed, any one of whom

could have been the "someone" who committed crime):

Commonwealth v. Rawls, 419 A.2d 109, 112-13 (Pa. Super

1980) (where references to two other defendants were replaced

jane “other cusstned "they," “someone,” and “one of the

Statement was not powerfully incriminating to defendant

because it alone did not serve to connect him with crime)

appeal dismissed, 452 A.2d 1347 (Pa. 1982)

30

serving aspects of Bell's confession and to credit instead

the State's evidence showing Bell's leadership role in the

beating. (/d. at 126-27; Tr. 6/21/94, at 114, 119). For his

part, Gray claimed that he was near the scene at the time

of the crime, but did not participate in its commission. He

and his defense witnesses testified that he was talking with

his girlfriend at a pay telephone while the beating

occurred.

Thus, not only did the jury hear that much of Bell's

confession was not to be trusted, they heard two very

different versions of Gray's complicity in the crime: the

State's, putting Gray at the heart of the affray, and Gray's,

not denying that the crime occurred and that Bell and

others participated in it, but denying that he, Gray, was

one of those persons. The evidence in its entirety, then,

did not impel the jury to disobey the judge's instruction

and insert Gray's name into Bell's confession.

But, even assuming the jury had been inclined to head

down "the inferential path” the instruction was designed to

avoid, and to speculate about the identity of the deleted

persons, it still does not follow that the jury would

necessarily have substituted Gray's name for "deleted."

The actions attributed to the persons whose names were

deleted from the confession were not so distinctive as to

compel the jury to match that conduct with Gray by

resorting to other evidence identifying him with that

conduct. Bell merely alleged in his confession that

"deleted" and "deletion" were among a group of men who

chased, hit, and kicked the victim. (J.A. 11, 55).

Although there may be situations where a contextual

implication approach would yield a contrary result, this is

not one of them. Given the nature of the crime, the

multiple participants, the manner of redaction, and the

Sh aes

se et et Mo

31

presentation of evidence at trial, Gray's right of

confrontation was adequately protected.

CONCLUSION

For the foregoing reasons, the State of Maryland

respectfully requests that the judgment of the Court of

Appeals of Maryland be affirmed.

Respectfully submitted,

J. JOSEPH CURRAN, JR.

Attorney General of Maryland

CARMEN M. SHEPARD

Deputy Attorney General

GARY E. BAIR*

MARY ELLEN BARBERA

RACHEL MARBLESTONE KAMINS

Assistant Attorneys General

Counsel for Respondent

*Counsel of Record

September 30, 1997