State v. Hunter

VICTORY, J., concurs and assigns reasons. On the showing made, I find no abuse of discretion by the trial court in denying *1259 defendant’s motion to sever. However, trial of co-defendants may not proceed “if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. 534, 539 , 113 S.Ct. 933, 938 , 122 L.Ed.2d 317 (1993). In a separate trial of defendant, the Confrontation Clause of the Sixth Amendment would bar introduction of his co-defendant’s testimonial statement, made in response to police interrogation and providing a retrospective account of the circumstances surrounding the victim’s death for purposes of facilitating the investigation and prosecution of the offense, unless the co-defendant took the stand and submitted to cross-examination. Crawford v. Washington, 541 U.S. 36, 68 , 124 S.Ct. 1354, 1374 , 158 L.Ed.2d 177 (2004)(“Whatever else the term [testimonial] covers [for confrontation purposes], it applies at a minimum to prior testimony at a preliminary hearing, before a grand Injury, or at a former trial; and to police interrogations.”). To the extent that the co-defendant’s testimonial statement constitutes a “powerfully incriminating extrajudicial statement” which directly implicates defendant in the crimes charged, Bruton v. United States, 391 U.S. 123, 135 , 88 S.Ct. 1620, 1628 , 20 L.Ed.2d 476 (1968), the statement may not be admitted at a joint trial, even under a limiting instruction that jurors are to consider it as evidence only against the co-defendant, id., 391 U.S. at 137 , 88 S.Ct. at 1628 , and even if defendant’s own statement to the police partially interlocks with the co-defendant’s statement, Cruz v. New York, 481 U.S. 186 , 107 S.Ct. 1714 , 95 L.Ed.2d 162 (1987), unless the prosecution redacts the co-defendant’s statement in such a way that it no longer facially or directly implicates defendant in the crime. Gray v. Maryland, 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998). If the prosecutor is unable to redact the co-defendant’s statement in such a fashion, yet intends to use that statement against the co-defendant at trial, the defendants must be severed. See State v. Johnson, 96-0959 (La.6/28/96), 675 So.2d 1098 .