Third Circuit: Confrontation Clause Violated When Jury Is Told ‘Other Guy’ Referenced in Non-Testifying Codefendant’s Statement Is the Defendant
by Douglas Ankney
The U.S. Court of Appeals for the Third Circuit ruled that Arthur Johnson’s right to confront his accusers was violated when his non-testifying codefendant’s statement identifying “the other guy” as the shooter was read to the jury, and the jury was told that “the other guy” referenced in the statement was Johnson.
Johnson and his codefendant, Tyrone Wright, were tried together for the murder of alleged drug dealer Donnie Skipworth in Philadelphia. Prior to trial, Wright confessed to his involvement in the crime, stating that he and Abbas Parker were sitting in Wright’s van when Johnson approached. According to Wright’s statement, Johnson told the two men that he saw Skipworth up the street and that he was going to talk to him. Parker exited the van and accompanied Johnson. Johnson and Parker both had handguns. Moments later, Wright heard gunshots, and then Parker came running back, jumped into the van, and yelled for Wright to go. While the two were fleeing in the van, Parker told Wright that Johnson had shot Skipworth.
Over Johnson’s objections, Wright’s statement was read to the jury by the detective who had taken it, James Burns. However, the Superior Court ruled that whenever the statement mentioned Johnson by name, Burns had to either substitute the pronouns “he” or “him” or use the phrase “the other guy” or “some guy.” But during opening statements, Wright’s counsel told the jury that Wright had written in his statement that Johnson and Parker went there to shoot Skipworth. And during closing arguments, the prosecutor told the jury that Wright had identified Johnson in his statement.
The trial court instructed the jury that they could not use Wright’s statement against Johnson. After three days, the jury returned a guilty verdict as to Wright. But on the sixth day, the jury asked for guidance because the court had instructed them to use common sense but had also instructed them “to push [Wright’s] statement from [their] minds and pretend it never existed when [they] were considering the case against ... Johnson.”
The trial court repeated that the jury couldn’t use the statement against Johnson. Shortly thereafter, the jury convicted Johnson, and he appealed, arguing that his rights under the Confrontation Clause were violated pursuant to Bruton v. United States, 391 U.S. 123 (1968).
The Pennsylvania Superior Court affirmed, ruling there was no Bruton error. Johnson then sought federal habeas relief. The federal district court ruled that the trial court had erred under Bruton, but the error was harmless. Johnson appealed to the Third Circuit.
The Court observed that “[t]he Confrontation Clause of the Sixth Amendment guarantees a criminal defendant’s right to be ‘confronted with the witnesses against him.’” This includes the right to cross-examine them. Pointer v. Texas, 380 U.S. 400 (1965). When a non-testifying codefendant’s statement is introduced, it is in effect the testimony of a witness who cannot be cross-examined. Bruton. If that statement implicates the other defendant, a trial court’s instructions to the jury to ignore or to not use the statement against the other defendant is insufficient because “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.” Id. However, if a confession is redacted to eliminate “not only the defendant’s name, but any reference to his or her existence,” then there is no constitutional violation. Richardson v. Marsh, 481 U.S. 200 (1987). But the redactions cannot be so ineffectual as to allow the jury to infer that the codefendant’s name was deleted. Gray v. Maryland, 523 U.S. 185 (1998).
Here, only Johnson and Wright were on trial. Wright’s statement mentioned Parker and “the other guy.” “The limited participants in this case made it obvious to a juror who ‘need only lift his eyes to [Johnson], sitting at counsel table,’ to determine that he was ‘the other guy,’ i.e., the shooter.’” Gray. And the remarks of Wright’s counsel and those of the prosecutor clarified this to the jury. The jury’s question about Wright’s statement and using it against Johnson removed any doubt as to whether they understood that “the other guy” was Johnson. The Third Circuit concluded the trial court violated Johnson’s right to confrontation.
The Court further concluded the error was not harmless. If there is grave doubt as to whether an error had an injurious effect in determining a jury’s verdict, courts are to resolve that doubt in the defendant’s favor. O’Neal v. McAnich, 513 U.S. 432 (1995). The Court examined the evidence against Johnson and concluded it was not overwhelming. Further, the jury’s six-day deliberation indicated it wasn’t an easy decision. And the jury’s question about Wright’s statement shortly before returning the verdict revealed the statement played a major role in the verdict.
Accordingly, the Court affirmed the district court’s finding that a Bruton error occurred but reversed the finding that the error was harmless. It remanded with instructions to grant Johnson’s habeas petition and order the State to release him unless he is retried within a time fixed by the district court. See: Johnson v. Superintendent Fayette State Corr. Inst., 949 F.3d 791 (3d Cir. 2020).
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Related legal case
Johnson v. Superintendent Fayette State Corr. Inst.
|Cite||949 F.3d 791 (3d Cir. 2020)|
|Level||Court of Appeals|