United States v. Pringle

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.

. Article 80, Uniform Code of Military Justice, 10 U.S.C. § 880.

. Article 39(a), UCMJ, 10 U.S.L.C. § 839(a).

. Defense counsel objected and recommended that another name be substituted.

. Opper v. United States, 348 U.S. 84, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Bastone, 526 F.2d 971 (7th Cir. 1975); United States v. Trudo, 449 F.2d 649 (2nd Cir. 1971); Posey v. United States, 416 F.2d 545 (5th Cir. 1969), cert denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970), reh. denied 397 U.S. 1031, 90 S.Ct. 1267, 25 L.Ed.2d 544 (1970).

. While United States v. Trudo, supra, rejected the contention of contextual inculpation, it must be noted that, unlike the instant case, the statement made no reference to any other party.

. See, e. g., United States v. Gay, 522 F.2d 429 (6th Cir. 1975), where effective redaction included deletion of codefendant’s name and substitution of the phrase “my friend” coupled with instructions to only consider the confession against the maker, and the jury was not permitted to see the document nor take it into deliberation room; United States v. Dority, 487 F.2d 846 (6th Cir. 1973), where substitution of “another party” was made for codefendants and confession was read to the jury; United States v. Trudo, supra; United States v. Panepinto, 430 F.2d 613 (3d Cir. 1970); Posey v. United States, supra, at 550, where names of 17 codefendants were deleted by use of 82 blanks and the confession then read to jury; and Serio v. United States, 131 U.S.App.D.C. 38, 401 F.2d 989 (1968), where phrase “another man” substituted with the confession read to the jury. The court found this ineffective and reversed.

. The Sixth Amendment to the Constitution of the United States provides, in pertinent part, that:

In all criminal prosecutions, the accused shall enjoy the right . . to be confronted with the witnesses against him.

. In doing so, we adhere to the standard in Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963), as clarified in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), as reaffirmed by the majority in Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), and as followed in numerous progeny.