People v. Pipes

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JUNE 14, 2006

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 129152

CEDRIC PIPES,

Defendant-Appellee.

_______________________________

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 129154

JULIAN DALE KEY,

Defendant-Appellee.
_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

Defendants were convicted of first-degree premeditated murder following a

joint trial before one jury. The Court of Appeals reversed defendants’ convictions

on the bases that the admission of each codefendant’s statements to the police
against the other was a violation of Bruton v United States,1 and that the error was

not harmless. In Bruton, the United States Supreme Court held that a defendant is

deprived of his Sixth Amendment confrontation rights when a nontestifying

codefendant’s confession that inculpates the defendant is introduced at a joint

trial.2

We agree with the Court of Appeals that defendants’ Sixth Amendment

confrontation rights were violated. However, we disagree with the Court of

Appeals that the error warranted reversal of defendants’ convictions.

Unpreserved, constitutional errors are reviewed for plain error affecting substantial

rights. Because defendants have failed to show reversible prejudice, actual

innocence, or that the confrontation error “‘“seriously affect[ed] the fairness,

integrity or public reputation”’”3 of the trial, reversal of their convictions was

improper. Accordingly, we reverse the Court of Appeals judgment and reinstate

defendants’ first-degree murder convictions.

FACTS AND PROCEDURAL HISTORY

On March 23, 2002, three-year-old Destiney Thomas sustained a fatal

gunshot wound as the result of a drive-by shooting. The prosecution charged

1
391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968).

2
Id. at 126.

3
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (citations

omitted).

2

defendants Cedric Pipes and Julian Key with first-degree premeditated murder,4

assault with intent to commit murder,5 and possession of a firearm during the

commission of a felony6 in connection with the shooting.7

Pursuant to MCR 6.121(C),8 defendants moved for separate trials or

separate juries, arguing that their defenses were “mutually exclusive.”9 In support

of the motion, defendant Key made an offer of proof that he would testify that he

was not present and had no involvement in the shooting. Meanwhile, defendant

Pipes made an offer of proof that he would testify that he was present when

defendant Key shot at the house, but that Pipes had no involvement in the

4
MCL 750.316(1)(a).
5
MCL 750.83.
6
MCL 750.227b.
7
Defendant Pipes was also charged with being a felon in possession of a
firearm. MCL 750.224f(1).
8
MCR 6.121(C) provides that “[o]n a defendant’s motion, the court must
sever the trial of defendants on related offenses on a showing that severance is
necessary to avoid prejudice to substantial rights of the defendant.”
9
In People v Hana, 447 Mich 325, 349; 524 NW2d 682 (1994), this Court
held that “[i]nconsistency of defenses is not enough to mandate severance [under
MCR 6.121(C)]; rather, the defenses must be mutually exclusive or
irreconcilable.” (Internal citations and quotation marks omitted.) In other words,
“[t]he tension between defenses must be so great that a jury would have to believe
one defendant at the expense of the other.” Id. (Internal citations and quotation
marks omitted.)

3

shooting. Neither defendant argued for severance based on the possibility of a

Bruton error.10

The trial court denied defendants’ motion, determining that defendants

could not make the requisite showing of prejudice necessary to sustain the motion.

The trial court concluded that although defendants’ proposed defenses involved

blame shifting, they were not “mutually exclusive.” Furthermore, the trial court

specifically noted that, given defendants’ offer of proof, no Bruton problem was

present in this case. If the codefendant testifies at trial, then his statements to the

police are admissible because the maker of the statements is subject to cross-

examination. The trial court relied on the offers of proof presented by both

defendants where each unequivocally stated his intention to testify at trial. The

trial court noted multiple times its determination that no Bruton problem was

present because both defendants planned to testify.11

The prosecution’s theory at trial was that the victim died in a drive-by

shooting that resulted from a territorial dispute between defendants and rival drug

dealers. According to the prosecution, rival drug dealers shot defendant Key’s

10
Under Hana, a Bruton error may provide grounds for severance. Id. at
346 n 7; Zafiro v United States, 506 US 534, 539; 113 S Ct 933; 122 L Ed 2d 317
(1993).
11
The first proceeding ended in a mistrial. Before the commencement of
the second trial, which is the subject of the present appeal, counsel for defendant
Key asked that the earlier motion for separate trials or juries be reconsidered. The
trial court declined to reconsider the motion, noting that none of the circumstances
had changed.

4

girlfriend’s automobile, a green Jeep Cherokee, in response to an argument with

defendants. Defendant Key frequently used the green Jeep and had it in his

possession when it was shot. The drive-by shooting that killed the victim was an

act of retaliation for the damage done to the automobile.

The trial court admitted into evidence multiple statements given by both

defendants to the police.12 Both defendants’ admissions recounted the argument

with the rival drug dealers and discussions regarding retaliation for the shooting of

the Jeep. Initially, each defendant shifted all blame for the shooting to his

codefendant. Subsequently, each codefendant made statements that inculpated

himself as well as his codefendant. Defendant Key conceded that both he and

defendant Pipes committed the drive-by shooting. Key admitted that he and Pipes

obtained a car from a drug customer, which they used in the drive-by shooting,

while others followed in the Jeep as backup. Likewise, Pipes admitted that he

rented a car for Key to use in the shooting and admitted following behind Key in

the Jeep in order to “watch his [codefendant’s] back” during the shooting.

After the prosecution presented its case-in-chief, the trial court inquired of

defendants regarding how they planned to proceed. At that point, counsel for each

defendant equivocated regarding whether his client would testify. The trial court

12
The trial court instructed the jury that each statement was only to be
considered against the defendant who made the statement. The jury was instructed
on this point when the statements were admitted into evidence and when the trial
court gave final jury instructions. However, as explained infra, such instructions
do not cure a Bruton error.

5

acknowledged that defendants were free to not testify, but reiterated that its denial

of their motion for separate trials and juries was specifically premised on the

unequivocal offers of proof that defendants would testify at trial.

Ultimately, however, defendants exercised their Fifth Amendment right and

did not testify at trial.13 However, defendants never sought a mistrial when the

Bruton error became apparent. The jury convicted both defendants of first-degree

premeditated murder, but acquitted defendants on all other charges. Defendants

were sentenced to life imprisonment without the possibility of parole.

The Court of Appeals reversed defendants’ convictions and remanded for

new trials.14 The Court of Appeals majority concluded that the trial court denied

defendants a fair trial by denying their motion for separate trials or separate juries,

thus causing a Bruton error when defendants chose not to testify. Furthermore, the

Court of Appeals majority concluded that the admission of these statements in

violation of defendants’ confrontation rights was not harmless. The Court of

Appeals majority, however, failed to determine whether defendants properly

preserved the Bruton error for appeal, as required by People v Carines.15

Furthermore, the Court of Appeals majority did not cite or apply the proper

standard of review delineated in Carines for unpreserved, constitutional error. In

13
Defendants then rested. They presented no evidence or witnesses.
14
Unpublished opinion per curiam of the Court of Appeals, issued May 31,
2005 (Docket Nos. 247718, 247719).
15
460 Mich 750; 597 NW2d 130 (1999).

6

applying a harmless error analysis, the majority gave little weight to the highly

self-incriminating nature of defendants’ statements.

The dissent, however, would have affirmed defendants’ convictions on the

basis that the offers of proof submitted by the defendants, unequivocally

representing that they would testify, waived any claim of error with regard to

separate trials or separate juries.

The prosecution sought leave to appeal in this Court. After directing the

parties to address whether the offers of proof by defendants waived any right to

claim a confrontation error, we heard oral argument on whether to grant the

application or take other peremptory action permitted by MCR 7.302(G)(1).16

STANDARD OF REVIEW

Constitutional questions, such as those concerning the right to confront

witnesses at trial, are reviewed de novo.17 The effect of an unpreserved claim of

constitutional error is reviewed for plain error affecting substantial rights.18 To

avoid forfeiture under the plain error rule, a defendant must show actual

prejudice.19 Under the plain error rule, reversal is only warranted if the defendant

16
474 Mich 918 (2005).
17
People v Hickman, 470 Mich 602, 605; 684 NW2d 267 (2004).
18
People v McNally, 470 Mich 1, 5; 679 NW2d 301 (2004).
19
Id.

7

is actually innocent or the error seriously undermined the fairness, integrity, or

public reputation of the trial.20

ANALYSIS

In Bruton, the United States Supreme Court held that a defendant is

deprived of his Sixth Amendment right to confront witnesses against him when his

nontestifying codefendant’s statements implicating the defendant are introduced at

their joint trial.21 There is no error, however, if the codefendant testifies.22 The

Court held that giving limiting instructions to the jury that the statements can only

be used against the declarant is not sufficiently curative 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.”23

In Cruz v New York,24 a codefendant’s statements were admitted against the

defendant along with the defendant’s own confession. The Cruz Court revisited

the plurality opinion in Parker v Randolph.25 In Parker, which involved the same

20
Id.
21
Bruton, supra at 126.
22
Id.
23
Id. at 135.
24
481 US 186; 107 S Ct 1714; 95 L Ed 2d 162 (1987).
25
442 US 62; 99 S Ct 2132; 60 L Ed 2d 713 (1979).

8

factual predicate as Cruz, four justices determined that Bruton was inapplicable

and that there was no Sixth Amendment violation in cases where the defendant’s

own statement is admitted alongside the defendant’s nontestifying codefendant’s

incriminating statement. Concurring in part and concurring in the judgment,

Justice Blackmun stated that the admission of the codefendant’s statement was a

Sixth Amendment violation under Bruton, but any error was harmless beyond a

reasonable doubt.26 In Cruz, the Court adopted Justice Blackmun’s approach,

holding that a Confrontation Clause violation is not ameliorated when the

defendant’s confession is introduced at trial alongside a nontestifying

codefendant’s statement that inculpates the defendant.27 Thus, “where a

nontestifying codefendant’s confession incriminating the defendant is not directly

admissible against the defendant . . . the Confrontation Clause bars its admission at

their joint trial, even if the jury is instructed not to consider it against the

defendant, and even if the defendant’s own confession is admitted against him.”28

However, the Court found that the defendant’s own confession was relevant in a

manner applicable to the instant case. The Court held that the defendant’s

26
Id. at 77-81. Three justices dissented, and Justice Powell did not
participate in the case.
27
Cruz, supra at 193.
28
Id.

9

confession “may be considered on appeal in assessing whether any Confrontation

Clause violation was harmless . . . .”29

We agree with the Court of Appeals that a Bruton error occurred in this

case.30 However, a Bruton error does not require automatic reversal of a

defendant’s conviction.31 The Supreme Court has recognized that a Bruton

violation is nevertheless subject to harmless error analysis,32 and in such a case a

defendant’s own confession “may be considered on appeal in assessing whether

any Confrontation Clause violation was harmless . . . .”33

29
Id. at 194.
30
The Supreme Court’s recent decision in Crawford v Washington, 541 US
36; 124 S Ct 1354; 158 L Ed 2d 177 (2004), buttresses the point that both
defendants’ confrontation rights were violated by the admission of the
nontestifying codefendant’s incriminating statements. The statements clearly fall
within the class of “testimonial” statements that are only admissible at trial if the
declarant is available for cross-examination, or if the declarant is unavailable to
testify and the defendant had a prior opportunity to cross-examine. Id. at 59.
31
There is a “‘“very limited class of cases”’” involving “structural errors”
where errors are so “intrinsically harmful, without regard to their effect on the
outcome, so as to require automatic reversal.” People v Duncan, 462 Mich 47, 51,
52; 610 NW2d 551 (2000), quoting Neder v United States, 527 US 1, 8; 119 S Ct
1827; 144 L Ed 2d 35 (1999), quoting Johnson v United States, 520 US 461, 468;
117 S Ct 1544; 137 L Ed 2d 718 (1997). This limited class of cases has never
been recognized by either the United States Supreme Court or this Court to
encompass Bruton errors. Because a Bruton error is not structural, it is subject to
harmless error review.
32
“We reject the notion that a Bruton error can never be harmless.” Brown
v United States, 411 US 223, 231; 93 S Ct 1565; 36 L Ed 2d 208 (1973).
33
Cruz, supra at 194.

10

 To determine whether the Bruton error warrants reversal, we must first

identify the proper standard of review to be applied in this case. In People v

Carines,34 this Court discussed the governing standards of review for claims of

alleged error in criminal trial proceedings. The standard of review differs

depending on whether the error is constitutional in magnitude and whether the

defendant properly preserved the error at trial. As we have noted, a Bruton error is

of constitutional magnitude.

The other inquiry of consequence is whether the issue was preserved at

trial. In order to properly preserve an issue for appeal, a defendant must “raise

objections at a time when the trial court has an opportunity to correct the error . . .

.”35 Preservation serves “the important need to encourage all trial participants to

seek a fair and accurate trial the first time around . . . .”36 In this case, defendants

never objected to the admission of the statements on Bruton grounds.37

Defendants also expressly approved the limiting instructions given to the jury

upon the introduction of each statement. Defendants were aware that the trial

court predicated its decision to have a joint trial in front of one jury on defendants’

34
Carines, supra.

35
People v Grant, 445 Mich 535, 551; 520 NW2d 123 (1994).

36
Id. (Internal citations and quotation marks omitted); Carines, supra at

761.
37
Defendant Pipes did object to the introduction of one of his own
statements because he had refused to sign it. However, this objection did not raise
or preserve the Bruton error. See MRE 103(a)(1).

11

representations that they were going to testify at trial.38 When each defendant

exercised his right to not testify, thereby causing the Bruton error with regard to

the other defendant, neither defendant objected or moved for a mistrial on the

basis of the Bruton error. Rather, each defendant allowed the trial to proceed to a

verdict without ever affirmatively arguing that his confrontation rights had been

violated. By failing to object or move for a mistrial on Bruton grounds,

defendants failed to properly preserve the Bruton error for appeal.39 The Court of

Appeals erred in failing to determine whether the Bruton error was properly

preserved, and thereby failed to apply the proper standard of review. The Court of

Appeals should have reviewed this unpreserved, constitutional error for “plain

error that affected substantial rights” under Carines.40

38
Absent an express waiver by defendants of their Fifth Amendment rights,
we agree with the Court of Appeals majority that the trial court should not have
relied on defendants’ representations that they intended to testify at trial when
deciding whether to grant separate trials or juries. We reject the Court of Appeals
dissent’s argument that defendants waived the Bruton error. See People v Riley,
465 Mich 442, 449; 636 NW2d 514 (2001). Defendants’ silence in the face of a
Bruton error amounts to forfeiture, not waiver, because waiver requires “the
intentional relinquishment or abandonment of a known right.” People v Carter,
462 Mich 206, 215; 612 NW2d 144 (2000) (internal citations and quotation marks
omitted).
39
Any other conclusion would be contrary to the rule that defendants
cannot “harbor error as an appellate parachute.” People v Carter, 462 Mich 206,
214; 612 NW2d 144 (2000). “The rule that issues for appeal must be preserved in
the record by notation of objection is a sound one,” id., and that rule is totally
eviscerated in situations, such as this, where defendants never address appealable
issues with the trial court.
40
Carines, supra at 774.

12

 Under the plain error rule, defendants must show that (1) error occurred, (2)

the error was plain, i.e., clear or obvious, and (3) the plain error affected a

substantial right of the defendant.41 Generally, the third factor requires a showing

of prejudice—that the error affected the outcome of the trial proceedings.42

Defendants bear the burden of persuasion. The failure to establish a plain error

that affected a substantial right precludes a reviewing court from acting on such an

error. However, even if defendants show plain error that affected a substantial

right, reversal is only warranted “when the plain, forfeited error resulted in the

conviction of an actually innocent defendant or when an error seriously affect[ed]

the fairness, integrity or public reputation of judicial proceedings . . . .” 43

In this case, the first two requirements are satisfied because the introduction

of the defendants’ statements that incriminated each other violated defendants’

Sixth Amendment confrontation rights. Once defendants exercised their rights not

to testify, admission of the statements was in direct contradiction of the rules laid

down in Bruton and Cruz.

The next question then is whether the Bruton error affected defendants’

substantial rights. Stated otherwise, the error must have been outcome

41
Carines, supra at 763.
42
Id.
43
Id. at 763 (internal citations and quotation marks omitted); United States
v Olano, 507 US 725, 736; 113 S Ct 1770; 123 L Ed 2d 508 (1993); Johnson v
United States, 520 US 461, 469-470; 117 S Ct 1544; 137 L Ed 2d 718 (1997).

13

determinative. Relying on Bruton, Cruz, and this Court’s decision in People v

Banks,44 the Court of Appeals majority found that the Bruton error created

prejudice that required reversal. The Court of Appeals majority determined that

the evidence properly admitted against defendants was not overwhelming and that

the prejudicial effect of the codefendants’ statements against each other was

significant. Therefore, the Court of Appeals found that the Bruton error was not

harmless.

We disagree. The Court of Appeals failed to give sufficient weight to the

evidence that was properly admitted against each defendant, particularly the

proper admission of each defendant’s self-incriminating statements, and therefore

erroneously reversed defendants’ convictions. As held in Cruz, it was not error for

each defendant’s own confessions to be admitted against that defendant.45 The

only error was the introduction of the nontestifying codefendant’s incriminating

statement in a case where both defendants were tried before a single jury. While

44
438 Mich 408; 475 NW2d 769 (1991). In Banks, this Court held that a
Bruton error does not require reversal where “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. at 427 (internal
citations and quotation marks omitted). This “harmless beyond a reasonable doubt
standard” would be the correct standard of review if the Bruton error was
preserved. Carines, supra at 774. However, this case deals with an unpreserved,
constitutional error, so the Court of Appeals should have reviewed for plain error
affecting substantial rights. Id.
45
See also MRE 801(d)(2)(A), which provides for admission at trial of
party admissions.

14

the Court of Appeals acknowledged that a defendant’s confession “may be

considered on appeal in assessing whether any Confrontation Clause violation was

harmless,”46 it accorded no weight to the strongly self-inculpating nature of each

defendant’s confession.

Given each defendant’s statements, there is little question of actual

innocence with regard to the first-degree murder convictions. This Court has

recognized that “[o]ften . . . when the defendant confesses, there can be little doubt

concerning his guilt.”47 Indeed, “‘“the defendant’s own confession is probably the

most probative and damaging evidence that can be admitted against him.”’”48

Because each defendant’s own statements were self-incriminating, we cannot

conclude that either defendant was prejudiced to the point that reversal is required

by the erroneous admission of his codefendant’s incriminating statements. Each

defendant individually admitted the territorial dispute with rival drug dealers, and

each defendant’s statements exposed the motive behind the homicidal shooting—

retaliation for shooting the green Jeep Cherokee. In his second statement to the

police, defendant Key explicitly admitted being the triggerman in the drive-by

shooting and using an AK-47 rifle. Although Pipes did not confess to being the

46
Cruz, supra at 194.
47
People v Dunn, 446 Mich 409, 424; 521 NW2d 255 (1994).
48
Id. at 423, quoting Arizona v Fulminante, 499 US 279, 296; 111 S Ct
1246; 113 L Ed 2d 302 (1991) (White, J., with Marshall, Blackmun, and Stevens,
JJ., concurring), quoting Bruton, supra at 139 (White, J., dissenting); Cruz, supra
at 195 (White, J., dissenting). (Original emphasis omitted; emphasis added.)

15

gunman, he admitted procuring a vehicle to transport defendant Key to the drive-

by shooting and admitted following Key in the Jeep in order to “watch [Key’s]

back.” Taken in isolation, these statements provide more than enough “damaging

evidence,” if believed by a jury, for the jury to find each defendant guilty beyond a

reasonable doubt as a principal or as an aider or abettor of first-degree

premeditated murder.49

Furthermore, other probative and properly admitted evidence at trial

corroborated defendants’ confessions. One witness, who was on the front porch of

the victim’s residence at time of the shooting, testified that a green Jeep Cherokee

pulled in front of the house and someone opened fire from the passenger side of

the vehicle. The witness, who was a friend of defendant Key, testified that the

vehicle was similar to the vehicle Key was known to drive. Another witness, who

was walking toward the victim’s house, testified that he was approximately one

block away from the house when he heard gunfire. After the gunfire ceased, the

witness observed a green Jeep Cherokee headed toward him at a “kind of fast”

pace. From a distance of ten to 12 feet away, the witness positively identified both

defendants in the green Jeep Cherokee, driving in the opposite direction from the

scene of the crime. The witness was familiar with both defendants, and testified

that Key was known to drive a green Jeep Cherokee. Another witness, who was

49
See MCL 767.39. The jury was instructed regarding the elements
required to find guilt under an aiding or abetting theory.

16

on the side of the assaulted house at the time of the shooting, testified that he

observed a small blue car and a green Jeep Cherokee drive to the residence. The

witness ran toward the alley as soon as he observed a gun being pointed at the

residence from the small blue car. The witness did not observe the gunshots being

fired.

Key’s girlfriend testified that she owned a green Jeep Cherokee and that she

allowed defendant Key to drive her automobile “almost daily.” At the time of the

shooting, she was out of town and returned to find her vehicle missing.50 When

the witness retrieved her automobile from the police two weeks later, one window

was “shot out” and the car had two or three bullet holes in it.

An inconclusive amount of gunshot residue was found in the Jeep.

However, shell casings and bullet fragments collected at the scene of the crime

were consistent with an AK-47 rifle. Two Detroit Police officers testified that the

information provided to 911 operators implicated a green Jeep Cherokee with a

partial license plate number of 341. The officers testified that the “numbers were

inverted,” because the license plate sequence on the green Jeep Cherokee owned

by defendant Key’s girlfriend had a partial plate number of 431.

50
The witness testified that her automobile was parked at her residence
when she left town, and that defendant Key did not have permission to drive her
automobile on the weekend the shooting occurred. A second set of car keys was
missing from the witness’s residence.

17

 This evidence, coupled with each defendant’s own highly self-inculpating

confession that was properly admitted against the defendant who made the

statements, provided strong evidence of guilt from which the jury could convict

these defendants. In light of this overwhelming evidence of guilt, the prejudicial

effect posed by the Bruton error was minimal, and therefore the Bruton error was

harmless.

Under plain error review, reversal is only appropriate when the plain error

that affected substantial rights “seriously affected the fairness, integrity, or public

reputation of the proceedings” or when the defendant shows “actual innocence.”

In this case, for the same reasons that we find that defendants cannot show

prejudice, defendants cannot show that the error “seriously affected the fairness,

integrity, or public reputation of the proceedings” or that they are actually

innocent. The properly admitted evidence of guilt, including each defendant’s

own highly self-inculpating confession as properly used against him, was

sufficient to render the Bruton error harmless. Indeed, it would be the reversal of

convictions for error that did not affect the judgment that would seriously affect

“‘the fairness, integrity or public reputation of the judicial proceedings.’”51

CONCLUSION

The Court of Appeals erred in reversing defendants’ first-degree murder

convictions. Defendants failed to object or move for a mistrial on Bruton grounds.

51
Carines, supra at 773, quoting Johnson, supra at 470.

18

Therefore, defendants failed to properly preserve the Bruton error for appeal. The

Court of Appeals should have reviewed this unpreserved, constitutional error for

plain error affecting defendants’ substantial rights. Because defendants failed to

show prejudice requiring reversal, actual innocence, or that the error seriously

affected the fairness, integrity, or public reputation of the trial, reversal was not

warranted in this case. Accordingly, we reverse the Court of Appeals judgment

and reinstate defendants’ first-degree murder convictions.

Robert P. Young, Jr.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Stephen J. Markman

19

 STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 129152

CEDRIC PIPES,

Defendant-Appellee.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

V No. 129154

JULIAN DALE KEY,

Defendant-Appellee.

CAVANAGH, J. (dissenting).

I believe that this case represents a textbook example of when separate

trials or separate juries should be used. I agree with the majority that Bruton v

United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), was violated in

this case. Defendants’ Sixth Amendment Confrontation Clause rights were

violated when the statements of each defendant’s nontestifying codefendant were

heard by the single jury at defendants’ joint trial.
 However, I disagree with the majority’s conclusion that this violation was

not plain error that affected defendants’ substantial rights. If the statements by

each codefendant are not considered, the evidence is not overwhelming. No

witness was able to identify who was actually responsible for the shooting. There

were varying accounts of the vehicles involved in the shooting. And the jury’s

uncertainty about who was the shooter is evident in the jury’s failure to convict

either defendant of possession of a firearm during the commission of a felony.

Further, the effect on the jury of hearing each codefendant’s unchallenged

statements was great. See, e.g., Bruton, supra at 135-136. Each defendant’s

statements minimized any role he may have played and maximized the other

defendant’s role in the shooting. Moreover, hearing these unchallenged and

inculpatory statements essentially rendered futile defendants’ questioning of police

officers, as well as contentions made during closing argument, that called into

question the validity of the alleged statements made. The jury was unlikely to

question the validity of the statements allegedly made when it heard that they were

supported to some degree by statements made by each defendant’s codefendant.

Accordingly, I believe the Bruton violation was plain error that affected each

defendant’s substantial rights, and I would affirm the decision of the Court of

Appeals and remand each case for its own new trial.

Michael F. Cavanagh
Marilyn Kelly

2