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State v. Boucher, part 2
Bruton Violation
	[¶11]  In Bruton v. United States, 391 U.S. 123 (1968), the Supreme
Court held that the introduction in evidence of a nontestifying codefendant's
out-of-court confession, which stated that the codefendant and Bruton
together had committed a robbery, violated Bruton's Sixth Amendment right
to confront the witnesses against him, despite the trial court's clear
instructions to the jury that the codefendant's confession was inadmissible
hearsay with respect to Bruton and had to be disregarded in determining
Bruton's guilt or innocence.  Id. at 135-37.  The Court stated:
[T]here are some contexts in which the risk that the jury will
not, or cannot, follow instructions is so great, and the
consequences of failure so vital to the defendant, that the
practical and human limitations of the jury system cannot be
ignored.  Such a context is presented here, where the
powerfully incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with the
defendant, are deliberately spread before the jury in a joint trial. 
Not only are the incriminations devastating to the defendant but
their credibility is inevitably suspect . . . .  The unreliability of
such evidence is intolerably compounded when the alleged
accomplice, as here, does not testify and cannot be tested by

Id. at 135-36.{3}
	[¶12]  We subsequently held that "when a witness is relating
statements given to him by a defendant, a fair deletion of all references,
express or implied, to any other defendant is a proper and approved method
of avoiding prejudice and the Bruton dilemma."   State v. Wing, 294 A.2d
418, 422 (Me. 1972).  The Maine Rules of Evidence, promulgated by the
Supreme Judicial Court in 1976, incorporated the Bruton and Wing holdings
in Rule 105, which addresses the limited admissibility of certain evidence: 
"In a criminal case tried by a jury, evidence inadmissible as to one defendant
shall not be admitted as to other defendants unless all references to the
defendant as to whom it is inadmissible have been effectively deleted."  M.R.
Evid. 105.{4}
	[¶13]  The Supreme Court revisited this issue in Richardson v. Marsh,
481 U.S. 200 (1987), and held, consistent with our holding in Wing, "that
the Confrontation Clause is not violated by the admission of a nontestifying
codefendant's confession with a proper limiting instruction when . . . the
confession is redacted to eliminate not only the defendant's name, but any
reference to his or her existence."  Id. at 211.  The Court added:  "We
express no opinion on the admissibility of a confession in which the
defendant's name has been replaced with a symbol or neutral pronoun."  Id.
at 211 n.5.
	[¶14]  On two recent occasions, we have embraced the "facial
implication doctrine," which holds that a redacted confession that replaces
the names of defendants with neutral pronouns is admissible in evidence,
provided that the statement standing alone does not otherwise connect the
codefendants to the crimes.  See State v. Craney, 662 A.2d 899, 903 (Me.
1995);  State v. Platt, 1997 ME 229, ¶ 6, 704 A.2d 370, 372.
	[¶15]  The latest development in this line of cases is the Supreme
Court's recent decision of Gray v. Maryland, 118 S. Ct. 1151 (1998), in
which a police detective read a codefendant's confession regarding an
assault into evidence and said the word "deleted" or "deletion" whenever
Gray's name or a third defendant's name appeared.  Id. at 1153.  The
prosecution also offered in evidence a written copy of the confession with
the two names omitted, leaving in their place blank white spaces separated
by commas.  Id.  Other witnesses testified to Gray's involvement in the
assault, and the court instructed the jury that the confession should not be
used as evidence against Gray.  Id.  The Supreme Court vacated Gray's
conviction and answered the question left open in Richardson by holding
that "considered as a class, redactions that replace a proper name with an
obvious blank, the word 'delete,' a symbol, or similarly notify the jury that a
name has been deleted are similar enough to Bruton's unredacted
confessions as to warrant the same legal results."  Id. at 1156.
	[¶16]  We conclude that, just as the confessions admitted in Gray, the
State's questioning of Theriault-Pace and O'Leary, which elicited the fact
that four individuals were involved in the break-in and proceeded to name
three of the participants, clearly notified the jury that a name was being
deleted from Scott Boucher's confession.  The State seeks to distinguish
this case from Gray by pointing out that Steven's name was not replaced
with a blank or the word "delete" in Scott's confessions, as was the
defendant's name in Gray.  This distinction does not persuade us that Gray is
inapplicable.  The teaching of Gray is that even redacted confessions can
sometimes "obviously refer directly to someone, often obviously the
defendant, and [can] involve inferences that a jury ordinarily could make
immediately, even were the confession the very first item introduced at
trial."  Gray, 118 S. Ct. at 1157.  Scott's confessions, as admitted in
evidence, obviously referred directly to Steven, an inference that the jury
easily could have drawn simply from Steven's status as a codefendant.  We
conclude that the admission of those portions of Scott's confessions that
implicated Steven violated Steven's rights under the Confrontation Clause of
the Sixth Amendment.{5}
	[¶17]  The existence of a Bruton violation does not necessarily require
reversal of an ensuing criminal conviction.  Schneble v. Florida, 405 U.S.
427, 430 (1972).  "In some cases the properly admitted evidence of guilt is
so overwhelming, and the prejudicial effect of the codefendant's admission
is so insignificant by comparison, that it is clear beyond a reasonable doubt
that the improper use of the admission was harmless error."  Id.
	[¶18]  Because, however, Boucher failed to object to the admission of
the redacted confession we apply the "obvious error[] affecting substantial
rights" test.  M.R. Evid. 103(d).  Here we cannot say that "the obviousness of
the error and the seriousness of the injustice done to" Steven was "so
great" that we "cannot in good conscience let the conviction stand."  State
v. True, 438 A.2d 460, 469 (Me. 1981).
	[¶19]  Our reliance on Gray v. Maryland, a 1998 opinion of the United
States Supreme Court, speaks to the lack of obviousness of the error. 
Additionally, the ample "other evidence" supporting Steven's conviction
eliminates any concern regarding serious injustice caused by the admission.
	[¶20]  Steven's own confession of his involvement in the crimes was
properly admitted through the testimony of Adam McBreairty.  McBreairty
testified that Boucher gave him a gun taken from the Dubois house, and that
Boucher told him that he filed the serial numbers off the gun because he was
concerned that too many people knew of his involvement in the break-in.  
The gun was introduced in evidence and identified as the one stolen from
the Dubois home.  Another participant in the break-in, Timothy Dumond,
testified in compelling detail concerning Steven's involvement in the
preparation for the crimes and in driving the car away from the house, and
that Steven received a .38 caliber pistol taken from the house.  In light of
McBreairty's and Dumond's testimony, the erroneously admitted evidence
was merely cumulative, tending to corroborate other evidence properly
before the jury.  See Clark v. Maggio, 737 F.2d 471 (5th Cir. 1984) (evidence
admitted in violation of defendant's Sixth Amendment confrontation right
was not crucial to the State's case).
	[¶21]  One of the concerns underlying Bruton is the inherent
unreliability of the codefendant's confession and the absence of an
opportunity to expose that unreliability through cross-examination.  See
Bruton, 391 U.S. at 135-36.  In this case the erroneously admitted evidence
was entirely consistent with the rest of the State's evidence.  This internal
consistency must be considered in determining the significance of the
prejudice to the defendant in comparison to the properly admitted evidence
of guilt.  A review of the record in its entirety leads us to conclude that we
can "in good conscience let the conviction stand."  True, 438 A.2d at 469.
	The entry is:
Judgment affirmed.

Attorneys for State: Neale T. Adams, District Attorney John M. Pluto, Asst. Dist. Atty. 144 Sweden Street Caribou, ME 04736 Attorneys for defendant: Peter S. Kelley, Esq. Christopher M. Leger, Esq. Kelley Law Offices P O Box 66 Caribou, ME 04736
FOOTNOTES******************************** {1}. Steven remained outside as a lookout. {2}. Steven also argues that the court's failure to join the trials until almost a year after he was indicted unfairly prejudiced his preparation for trial, as he was required to prepare for witnesses that would not otherwise testify at his own trial. Steven did not raise his timeliness objection before the trial court, and, in any event, the timing of the joinder was within the court's discretion, especially in these circumstances, where Steven's attorney was also Scott's attorney until two months before the court ordered joinder of the trials, and the trial was held three and one-half months after the trials were joined. See State v. Saucier, 385 A.2d 44, 46 (Me. 1978). {3}. Bruton explicitly overruled Delli Paoli v. United States, 352 U.S. 232 (1957), which had held that a defendant received sufficient protection from the admission in evidence of a codefendant's confession when the court gave the jury sufficiently clear instructions to disregard the confession with respect to the defendant and when it was reasonably possible for the jury to follow the instructions. Id. at 239. {4}. The Bruton requirements are also addressed in the last sentence of Rule 804(b)(3): "A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within [the statement against interest hearsay] exception." {5}. Contrary to Steven's contentions, the testimony of Steven Michaud and Adam McBreairty did not implicate his Sixth Amendment rights under Bruton and Gray. These two witnesses' testimony regarding Scott's confessions did not address the actions of his colleagues or imply the involvement of others in any way.

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