United States v. Pringle 3 M.J. 308

Opinion of the Court

FLETCHER, Chief Judge:

We granted the petition in this case to consider the effect of the military judge’s denial of defense motions for suppression of co-accused’s statements, severance, and mistrial. Joint accused were found guilty of attempted robbery.1 During the initial Article 39a session,2 counsel moved for severance on the grounds, inter alia, that introduction of co-accused’s statements would prejudice his client. The military judge, in denying the motion, noted excision of references to the appellant would be accomplished along with cautionary instructions. This redaction was accomplished with accused’s name “whited out,”3 and the statements thus modified were given to the *309court members as prosecution exhibits over counsel’s objection to the effectiveness of the technique. The military judge instructed the court members to consider the statements only in regard to the makers thereof.

Following the lead of the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), this Court assured itself in the case of United States v. Gooding, 18 U.S.C.M.A. 188, 39 C.M.R. 188 (1969), that a co-accused had sufficient opportunity to cross-examine the maker of an inculpatory statement implicating the accused. In the instant case, we turn to the examination of a redacted statement of two makers being tried jointly with the appellant who do not subject themselves to cross-examination. After focusing on examination of the statement as redacted and the attendant circumstances at trial, we conclude that, in this case, the jury would have been unable to limit the culpatory evidence strictly to the makers thereof.

In evaluating the legal standard that should be implemented in this case, we follow the lead proposed by the drafters of the American Bar Association’s Minimum Standards for the Administration of Criminal Justice. The drafters, recognizing concern over the efficacy of the redactive process as expressed in Bruton, moved from a tentative standard of allowing redaction “only after all references to the moving defendant have been effectively deleted” to a standard requiring the confession as modified to “not prejudice the moving defendant.” Set forth in pertinent part, the approved standard follows:

2.3 Severance of defendants.

(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court should determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court should require the prosecuting attorney to elect one of the following courses:

(i) a joint trial at which the statement is not admitted into evidence;

(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the confession will not prejudice the moving defendant; or

(iii) severance of the moving defendant.

ABA Standards, Joinder and Severance § 2.3(a) (1968).

We turn to the question of whether or not the military judge abused his discretion in failing to grant the appellant’s motion for a severance. In the early case of United States v. Evans, 1 U.S.C.M.A. 541, 4 C.M.R. 133 (1952), we placed the burden on the movant for severance, requiring him to show risk of prejudice. This decision rested within the discretion of the trial judge. In United States v. Borner, 3 U.S.C.M.A. 306, 12 C.M.R. 62 (1953), the application of the Evans standard did not establish good cause for severance where limiting instructions for the jury were available. Examining Evans and Borner, in view of Bruton, we must now regard severance of a joint trial as contingent upon the government’s capacity to redact a co-accused’s statement in a manner which will not prejudice the moving defendant. This holding does not fly in the face of the federal case authorities4 cited to us by the government in this case.5 The military judge has full discretion, except he may not deny severance where improper redaction taken in context prejudices the moving defendant.

*310In the present case were tried three co-accused; two of whom confessed in pretrial statements implicating the accused. In the factual context of this case we consider the redacted confessions prejudicial to the accused. With three accused, speculation as to the identity of the redacted name is compulsively directed toward the appellant for mathematical reasons alone where, as here, the two confessions accompanied by a copy of the charges were physically given to the members and considered by them in their deliberations. Federal courts have avoided this particular problem by allowing substitution of phrases and by reading the confessions to the jury.6

In the course of the proceedings there occurred certain comments that emphasized the inculpatory nature of the statements of co-accused and by implication the inculpation of appellant. In a verbal error the military judge instructed the court that they were not to speculate from Henson’s statement anything against the other two accused. Further, in instructing a witness testifying to the making of Henson’s confession, the military judge announced that he was “not to mention the name of any other accused in this case.” This instruction was given in the presence of the court members. On several occasions witnesses made reference to “other individuals” having made inculpatory statements regarding the appellant. These occurrences make it impossible for us to embrace the fiction that the redacted confessions of the co-accused did not in any way prejudice the accused. Inasmuch as these co-accused did not testify and subject themselves to cross-examination, the appellant was deprived of his Sixth Amendment right of confrontation.7

This Court has enunciated its test8 for determination of the harmlessness of constitutional error:

[Bjefore an error founded solely upon the federal constitution can be held harmless under Article 59(a), the court must be able to declare a belief that it was harmless beyond a reasonable doubt.

United States v. Ward, 23 U.S.C.M.A. 572, 576, 50 C.M.R. 837, 841, 1 M.J. 176, 180 (1975). It is the government’s burden of proof to meet this standard. Id. Under these facts we do not perceive the government as having done so; thus, we cannot affirmatively declare it harmless. United States v. Moore, 24 U.S.C.M.A. 217, 51 C.M.R. 514,1 M.J. 390 (1976); United States v. Ward, supra.

In the application of the Bruton rule to this case we do not seek to undercut the proper implementation of the joint proceedings. Joint trials serve to avoid delays, conserve public monies, and decrease dis-commodity to witnesses and officers of the court. But we must reject these economies if only purchasable at the cost of basic constitutional protections.

The decision of the United States Army Court of Military Review is reversed and the findings and sentence are set aside. *311The record of trial is returned to the Judge Advocate General of the Army. A rehearing may be ordered.

Judge PERRY concurs.

COOK, Judge

(dissenting):

I disagree with the majority, both as to the principles of law they propound and their conclusion.

As to the law, the ABA standard, adopted by the majority as rule, does not, in my opinion, take adequate account of the probability that the co-accused whose pretrial statement is admitted into evidence may testify on the merits. The majority inferentially admit that circumstance eliminates any possibility of prejudice from even an unredacted statement of the co-accused. United States v. Gooding, 18 U.S.C.M.A. 188, 39 C.M.R. 188 (1969). The substance of this view of the law was argued by trial counsel, in opposition to the defense motion to sever, and was adopted by the trial judge. I agree with it. See United States v. Walton, 538 F.2d 1348, 1352 (8th Cir. 1976). Also, I do not believe it was error for the trial judge to instruct the court members, in the language of the majority opinion, “not to speculate from Henson’s statement anything against the other two accused.”1 That instruction is appropriate, perhaps even essential, considering the limited purpose for which the evidence is admitted, and I see nothing wrong with it. United States v. Gooding, supra; United States v. Walton, supra at 1353 n. 5.

Other comments noted by the majority make it, they say, “impossible for . [them] to embrace the fiction that the redacted confessions of the co-accused” were not prejudicial. To me, those comments are totally innocuous,2 and I cannot conceive *312them as polluting the minds of the court members. Additionally, I perceive no danger to the appellant merely from the fact that an excised confession of a co-accused was given to the court members. The apparent implication of footnote 5 is that the proper procedure is to read, but not to give, the co-accused’s statement to the court members. In military practice, however, the court members are entitled to question a witness. It seems to me that right can be more effectively exercised if a copy of a written exhibit is before them.3

Turning to whether the admitted statement of the co-accused prejudiced the appellant, it must be noted that all accused were charged with two specifications of robbery and one specification of attempted robbery. The victims of the robbery were returning to their barracks, after having attended the theater on post, when they were accosted by three men. Neither victim could identify any of the three persons who confronted them. The court members found the appellant and his co-accused, Gee and Henson, not guilty of these robberies. However, all were convicted of the attempted robbery. Private First Class Tapia, the victim of that offense, identified the accused as one of the trio that assaulted him. The incident occurred “right between the Flamingo Club and the tennis court.” He stated that he saw the accused’s face for 25 to 30 seconds; he also described the accused’s clothing and that of the others involved in the attempt. His description corresponded substantially with the description of the attire of the trio when they were apprehended by the military police shortly after the crime. Tapia immediately identified the accused when he next saw him, and he was allowed to testify, correctly I believe, United States v. Quick, 3 M.J. 70 (C.M.A.1977), to that identification, as well as to an in-court identification.

After the attempted robbery, Tapia pursued Gee. From the time of the attempt to the time of his apprehension behind the Flamingo Club, Gee was never out of Tapia’s sight. Appellant was apprehended by the military police about a block and a half from the Flamingo Club. The apprehension was made on the basis of a broadcast description of the alleged robbers. Appellant *313was brought in a police vehicle to the Flamingo Club, “where the paddy wagon was.” As soon as the police vehicle arrived at the club, the appellant was identified by Tapia. Shortly thereafter, the accused elected to make an oral statement to a CID agent. In this statement, the accused admitted that he was “walking towards” the Flamingo Club with two others. When they were about 100 meters from the place of the attempted robbery of Tapia, the others “began to run.” The appellant “did not know why,” but he, too, began to run. He denied he attempted to rob anyone. The appellant’s statement does not completely interlock with the statements of the co-accused, but it is concordant as to the time and place he and his companions were, and as to their running from the area. Concordance of this kind materially dilutes the prejudicial impact of the statements of the co-accused. United States ex rel. Duff v. Zelker, 452 F.2d 1009 (2d Cir. 1971), cert. denied, 406 U.S. 932, 92 S.Ct. 1807, 32 L.Ed.2d 134 (1971).

In Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), the United States Supreme Court was confronted with the same question before us, specifically, whether the admission into evidence of separate confessions of two co-accused influenced the verdict against the third. The following excerpt from the Supreme Court’s opinion is, in my view, equally applicable to this case.

It is argued that we must reverse if we can imagine a single juror whose mind might have been made up because of Cooper’s and Bosby’s confessions and who otherwise would have remained in doubt and unconvinced. We of course do not know the jurors who sat. Our judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the two confessions on the minds of an average jury. We admonished in Chapman, 386 U.S., at 23, 87 S.Ct. [824] at 827, against giving too much emphasis to “overwhelming evidence” of guilt, stating that constitutional errors affecting the substantial rights of the aggrieved party could not be considered to be harmless. By that test we cannot impute reversible weight to the two confessions.

We do not depart from Chapman; nor do we dilute it by inference. We reaffirm it. We do not suggest that, if evidence bearing on all the ingredients of the crime is tendered, the use of cumulative evidence, though tainted, is harmless error. Our decision is based on the evidence in this record. The case against Harrington was not woven from circumstantial evidence. It is so overwhelming that unless we say that no violation of Bruton can constitute harmless error we must leave this state conviction undisturbed.

Id. at 254, 89 S.Ct. at 1728. See also United States v. Walton, supra at 1353.

I would affirm the decision of the United States Army Court of Military Review.