People v. Banks

475 N.W.2d 769, 438 Mich. 408

• Court: Michigan Supreme Court
• Decided: September 9, 1991
• Docket: Docket 86945; Calendar 12
• Status: Published

Opinions

Griffin, J.

The question presented in this case is whether the trial court erred in permitting the prosecutor to introduce into evidence at a joint trial, with limiting instructions, the redacted statements of two nontestifying codefendants and, if so, whether the error was harmless with regard to this defendant. We hold that admission of the redacted statements denied defendant his right of confrontation guaranteed by US Const, Am VI and Const 1963, art 1, § 20. The error was not harmless beyond a reasonable doubt when considered in the context of other properly admitted evidence. We therefore reverse the decision of the Court of Appeals and remand this case to the trial court for a new trial.

i

Defendant Melvin Banks was convicted of first-degree murder, MCL 750.316; MSA 28.548, possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and three counts of assault with intent to commit murder, MCL 750.83; MSA 28.278, in the shooting death of Leonard Ingram, a Redford high school student, and the armed attack on three of his companions, one of whom was wounded.

Defendant Banks was tried jointly with two codefendants, Theodore Burley and Aaron Funches.¹ The prosecution’s theory was that Banks was the person who fired the gun, aided and abetted by Funches and Burley. The prosecutor submitted that the gun in question belonged to Funches, that Burley handed it to the defendant and pointed out Ingram and his friends, and that the defendant then confronted and shot at them.

Funches and Burley chose not to testify at trial. However, each of them had given the police a statement. A redacted version of their statements was read to the jury.² In each instance, the word "blank” was substituted for the name of Banks and for the name of the other codefendant.³ The original or unredacted written statements of Funches and Burley were not introduced into evidence. The trial court instructed the jurors that each of the statements as read in open court was to be considered only in deciding the culpability of the person who gave the statement, and was not to be used in determining the guilt or innocence of any other defendant.

The defendant, Banks, testified in his own behalf. He asserted that although he had been in Funches’ car, and later at Funches’ home on the day in question, he had not been at the shooting site and was not involved in the shooting. He contended that he had met Burley for the first time that day at Funches’ house. Defendant’s counsel also argued misidentification, emphasizing that there had been no corporeal lineup, that none of the eyewitnesses had known the defendant previously, and that the witness who had participated in the photographic showup likely had seen the defendant’s photograph in the newspaper.

The prosecution’s witnesses included Ingram’s three companions — Lawrence Jordan, Sean Davis, and Larry Harris. Each identified the defendant as the triggerman. None of the companions had known the defendant before the shooting, and Jordan and Davis admitted that they had learned his name from a newspaper article. Although Jordan picked out the defendant’s photograph from an array of six during a showup, he admitted that he had previously seen the defendant’s photograph in the newspaper. None of the victim’s companions participated in a corporeal or voice lineup.

The jury acquitted codefendants Funches and Burley of all counts,⁴ but convicted the defendant. He was subsequently sentenced to serve a non-parolable term of life imprisonment for first-degree murder, parolable life terms for the three assault counts, and a mandatory two-year term for felony-firearm.

The Court of Appeals held that the nontestifying codefendants’ statements had been admitted in violation of Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968). However, the panel was persuaded that the error was harmless. Unpublished opinion per curiam of the Court of Appeals, decided August 2, 1989 (Docket No. 106741).

Defendant’s application for leave to appeal was granted by this Court, limited to the issues (1) whether the trial court erred in permitting the prosecutor to introduce into evidence at this joint trial the statements of two nontestifying codefen-dants, and (2) if so, whether the error was harmless.⁵ 435 Mich 867 (1990).

II

The Sixth Amendment of the United States Constitution provides, in part, that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him . . . .” This Sixth Amendment right is applicable to the states, Douglas v Alabama, 380 US 415; 85 S Ct 1074; 13 L Ed 2d 934 (1965), and the same right is guaranteed by Const 1963, art 1, § 20.⁶

In California v Green, 399 US 149, 158; 90 S Ct 1930; 26 L Ed 2d 489 (1970), the United States Supreme Court explained that the Confrontation Clause

(1) insures that the witness will give his statements under oath — thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the "greatest legal engine ever invented for the discovery of truth”; (3) permits the jury that is to decide the defendant’s fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility.

In Pointer v Texas, 380 US 400, 405; 85 S Ct 1065; 13 L Ed 2d 923 (1965), the Court observed:

There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country’s constitutional goal.

In Bruton v United States, supra, the Court held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating unredacted confession of a nontestify-ing codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. In Bruton, defendants Bruton and Evans were tried jointly for armed postal robbery. A postal inspector, the government’s witness, testified regarding an oral confession allegedly made by Evans, which inculpated both Evans and Bruton. Evans did not testify. The trial court instructed the jury to disregard the confession in judging Bruton’s guilt or innocence and to consider it only for the purpose of deciding Evans’ culpability. The jury found both defendants guilty. The United States Court of Appeals for the Eighth Circuit affirmed, but the United States Supreme Court reversed, stating:

[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 incrimina-tions devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed. [Bruton, supra, pp 135-136.]

In a footnote, the Bruton Court noted that other courts had tried to accommodate the interests of both the defendant and the prosecution by utilizing the process of redaction. The Court further noted, however, that redaction had been criticized as ineffective by some legal authorities. Id., p 134, n 10.

The Court subsequently had the opportunity to address the Bruton problem in the context of a redacted statement. In Richardson v Marsh, 481 US 200; 107 S Ct 1702; 95 L Ed 2d 176 (1987), the Court held that the admission of a nontestifying codefendant’s confession with a limiting instruction did not violate the Confrontation Clause when the confession was redacted to eliminate all references to the nonconfessing defendant.⁷ Defendant Marsh was convicted of felony murder and assault with intent to murder. The prosecution’s theory was that defendant Marsh rode in the back seat of an automobile to the crime scene with her codefen-dant and a third person and, because she overheard the front seat occupants’ conversation — a scheme to rob and kill the victims — she acquired the requisite intent. The prosecution offered the confession of the codefendant which stated that, during the ride, the codefendant and the driver formulated plans for the crime. Defendant Marsh admitted her presence in the back seat of the automobile, but denied that she heard the conversation because the car radio drowned out the front seat conversation. She testified that she was therefore surprised when her friends stole money from the victims and then shot them. The key issue in the case, the defendant’s intent to commit the crime, thus turned on whether she had heard the conversation.

The prosecutor redacted the codefendant’s confession to delete all references to Marsh not only by name but her existence as well. The trial court admitted the confession into evidence and gave the jury limiting instructions. The defendant argued that admission of the confession violated Bruton, supra, because the jury could infer from the confession that the defendant had heard the front seat conversation. However, the Supreme Court held that admitting the confession did not deny the defendant her right to confrontation. The Court distinguished Bruton, supra:

There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant’s confession "expressly implicat[ed]” the defendant as his accomplice. Id., at 124, n 1. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove "powerfully incriminating.” Id., at 135. By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony).

Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that "the defendant helped me commit the crime” is more vivid than inferential incrimination, and hence more difficult to thrust out of mind.

The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process. On the precise facts of Bruton, involving a facially incriminating confession, we found that accommodation inadequate. As our discussion above shows, the calculus changes when confessions that do not name the defendant are at issue. . . . We hold that the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence. [Richardson, supra, pp 208-211.]

The Court rejected outright the alternative of separate trials whenever a codefendant’s statement is sought to be used against him where it might also incriminate the defendant:

It would impair both the efficiency and the fairness of the criminal justice system to require, in all these cases of joint crimes where incriminating statements exist, that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last-tried defendants who have the advantage of knowing the prosecution’s case beforehand. [Id., p 210.]

Ultimately, because the prosecutor in his closing argument may have undone the effect of the limiting instructions by urging the jury to consider the codefendant’s confession in assessing Marsh’s guilt, the Richardson Court remanded the case for consideration of whether the error could serve as the basis for granting a writ of habeas corpus, despite the defendant’s failure to object to the prosecutor’s comments. Id., p 211.

The Richardson Court expressly limited its ruling to those situations in which redaction eliminates not only the defendant’s name, but also any reference to the defendant’s existence or role in the crime:

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., p 211, n 5.]

Since the Richardson holding stops short of the situation presented in this case, we are left to determine the effect of Bruton, when read in conjunction with Richardson, on a "partially” redacted statement.

The Richardson "facially incriminating” analysis does not easily lend itself to the present circumstances. Indeed, the line between inferential incrimination and direct implication is a thin one when the fact of a defendant’s existence is not totally eliminated from a codefendant’s statement. In such situations, where the defendant’s name is merely replaced by a neutral pronoun or "blank,” the statement may be "powerfully incriminating” within the meaning of Bruton, but not necessarily "facially incriminating” according to Richardson, because the jury must technically infer who "blank” might be. Certainly a jury can draw strong inferences even from a partially redacted confession if the confession is connected with other evidence at trial. The concerns voiced by Justice Stevens in his dissenting opinion in Richardson, supra, pp 213-214, are particularly germane to the present facts:

Today the Court nevertheless draws a line between codefendant confessions that expressly name the defendant and those that do not. The Court relies on the presumption that in the latter category "it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence.” Ante, at 208. I agree; but I do not read Bruton to require the exclusion of all codefendant confessions that do not mention the defendant. Some such confessions may not have any significant impact on the defendant’s case. But others will. If we presume, as we must, that jurors give their full and vigorous attention to every witness and each item of evidence, the very acts of listening and seeing will sometimes lead them down "the path of inference.” Indeed, the Court tacitly acknowledges this point; while the Court speculates that the judge’s instruction may dissuade the jury from making inferences at all, it also concedes the probability of their occurrence, arguing that there is no overwhelming probability that jurors will be unable to "disregard an incriminating inference.” Ibid. Bruton has always required trial judges to answer the question whether a particular confession is or is not "powerfully incriminating” on a case-by-case basis; they should follow the same analysis whether or not the defendant is actually named by his or her codefendant. [Emphasis in the original.]

In cases such as the one before us now, where redaction is achieved through replacement of the defendant’s name with a neutral pronoun or "blank,” the ease with which a jury will be able to fill in a blank will vary from case to case, depending upon the overall evidentiary context in which it is introduced to the jury. A rule of admissibility per se is simply not appropriate for the form of redaction used in the case at bar.

We therefore return to the basic tenets of Bruton. Because codefendant statements are "inevitably suspect” because of the strong potential for blame shifting, Bruton, supra, p 136, even redacted confessions like the one challenged here should be clothed with a presumption of unreliability. If a "substantial risk” exists that the jury, despite cautionary instructions, will consider a codefen-dant’s out-of-court statement in deciding the defendant’s guilt, the statement — even though redacted to delete the defendant’s name — will be rendered inadmissible at a joint trial. Bruton, supra, p 126. Other independent evidence may, by necessity, have to be considered:

[T]he court must decide whether the statement incriminates, the defendant against whom it is inadmissible in such a way as to create a "substantial risk” that the jury will look to the statement in deciding on that defendant’s guilt. Such an assessment may require consideration of other evidence in order to determine whether mere deletion of the defendant’s name will be effective in making the statement non-incriminating as to him. But consideration of the weight of independent evidence is both improper and unnecessary to determination of the Bruton issue at the trial court level.[⁸] [Hodges v Rose, 570 F2d 643, 647 (CA 6, 1978), cert den 436 US 909 (1978). See also Foster v United States, 548 A2d 1370 (DC, 1988) (and cases cited therein).]

We believe that this case-by-case approach best protects the Confrontation Clause rights of a defendant in situations where redaction is used to edit an otherwise inadmissible out-of-court statement.

In the instant case, the prosecution charged that Funches and Burley aided and abetted the defendant, who allegedly did the shooting. Funches and Burley, through their statements, which were read to the jury, admitted that they were at the scene of the crime, but claimed that they had nothing to do with the shooting, and that they had no prior knowledge that defendant was going to shoot anyone. Burley’s statement read in pertinent part:

Then the three of us me, blank and blank, drove off. We saw four boys walking on St. Marys going away from Grand River with their backs to us. Me said, yeah, it looks like them. As blank was turning the car, blank got the gun. Blank parked the car and he and I waited. Blank got out and walked up to the corner. He had his hand in his jacket pocket. He stood there for about a minute or so, said something, pulled out a gun and started shooting.

He fired about five shots, then ran back to the car and jumped in. Blank drove off. After we drove off I saw a towel in the glove box and I gave it to blank. It was in the front seat and blank was behind me in the rear seat.

I gave him the towel and he wiped the gun off.

Aaron Funches’ statement read in pertinent part:

I heard one shot and then I saw blank running back to the car. He got in.

I didn’t see it [the gun] on him. I saw the gun when he got back in the car. It was a small black gun like a .22.

One other thing I didn’t mention was that when blank got out of the car to go around to where the guys were at on St. Mary’s—

These statements directly contradicted defendant’s testimony that he was elsewhere at the time of the shooting. Defendant claimed that he had gone to the high school on the afternoon in question to return some books. He had been enrolled in night school, but had decided to quit. Defendant left the school after about ten minutes, having learned from his younger brother that the teachers he wanted to see were not there. Defendant asked Funches for a ride home. Funches agreed, but said that he first had to pick up his sister. Funches drove across the street from the high school to wait for his girl friend. When she arrived, the group left to pick up Funches’ sister, then went to Funches’ home. The defendant testified that he met Burley for the first time while at Funches’ house, and that he left Funches’ residence at about 5:15 p.m., before the shooting occurred. He denied being at the site of the shooting or being involved in the shooting in any way.

We conclude that the process of redaction used in the instant case was ineffective in avoiding a Bruton error. Unlike Richardson, supra, the redaction here did not eliminate all reference to the existence of the defendant. To the contrary, the jury knew from both Funches’ and Burley’s statements that a third person had taken possession of a gun, had left the car while Burley and Funches remained in it, and had returned to the car after Burley and Funches heard shots. This "third person” and his actions were so described as to leave no doubt that it was the third person on trial — the defendant. The defendant rightfully complains that he might as well have been mentioned by name in each of the two statements by Burley and Funches.

Any lingering doubts regarding the transparency of the redaction are eliminated after a review of the closing arguments of the prosecutor and codefendants’ counsel. As in Richardson, supra, p 211, the prosecutor in the instant case urged the jury to use the nontestifying codefendants’ statements to evaluate the defendant’s case, thereby effectively undoing the trial court’s cautionary instructions. In his summation to the jury, the prosecutor argued:

Okay. Jerry Pringle is being dropped off and now left in the car is Melvin Banks, Aaron Funches, and Theodore Burley. Okay. What do we know what happens next? The statement indicates, Theodore Burley’s, that he saw four guys walking down St. Mary’s and says, yes, that looks like them, and then Aaron Funches, in his statement, indicates I was going to turn down the street, but I don’t want to do that because they might recognize me or my car. Why didn’t he want to be recognized or didn’t want his car to be recognized? So, the car goes down the street other than St. Mary’s because the four boys who were on St. Mary’s never saw the car again. At that point the four boys walking down the street see Melvin Banks come up the street.

Something happened at that school. These boys were together in that white Tempo and Mr. Banks indicates — strike that. Mr. Burley indicates in his statement that he sees four guys walking down St. Mary’s and says, yes, that looks like them. He might as well have took out a death warrant and signed his name to it. If it wasn’t for Mr. Burley pointing out who was them, who were the guys who were in the dispute, then we wouldn’t even be here.

Well, what does Mr. Funches do? Okay. There’s an argument. There’s a dispute at the school. Well, I’m going to give my buddies a ride home and he does. He gives Jerry Pringle a ride home and he gives Marty Williams a ride home, but not Ted. Ted stays in the car. Ted, the guy who’s in the middle of all this, and not Melvin, because Melvin is, what, I don’t know, bad or what. I don’t know. But Melvin doesn’t get a ride home and Mr. Funches indicates as he’s driving that he says I was going to turn down the street, but I didn’t want to. I didn’t want those guys to recognize me or my car.

I think the evidence clearly shows Leonard Ingram died for no reason. He died. The other boys were shot at. Melvin Banks did those acts and they wouldn’t have happened, couldn’t have happened without the assistance of his buddies, Mr. Burley and Mr. Funches. Couldn’t have happened.

The prosecutor drew a vivid picture for the jury: There were three persons in the car — Burley, Funches, and the defendant. Burley mid Funches admitted they were there, but it was the third person in the car who did the shooting.

The closing argument of Aaron Funches’ counsel was even more direct:

And it’s important that he [the prosecutor] show you when because, for example, if his theory is that Mr. Banks — and he says it was Mr. Banks, but whoever he says the shooter was — premeditated this killing, planned it, decided when he got out of the car, then he did that when he got out of the car and how do you bootstrap whatever claimed assistance my client was supposed to have provided when the premeditation occurred after he got out of the vehicle?

At another point, the same counsel said:

Now, you’re going to be given some lesser included offenses, voluntary manslaughter and some other things. Listen to them. Evaluate them, but what I don’t want you to do is compromise. Don’t go back there and play let’s make a deal and say we believe Banks is the murderer so let’s get him in murder one.

I don’t know what Funches did. He should have stopped or something. Let’s go get him for something else.

The closing argument of counsel for Theodore Burley stressed the testimony of three witnesses "who saw Melvin Banks and they point him out clearly doing the shooting,” and other testimony "that the rest of the people did nothing . . . .” Burley’s counsel also responded to the prosecutor’s allegation that his client had pointed out the victims:

I don’t care what that out of context statement says because it doesn’t say that I intended Melvin Banks to have committed a murder, a shooting, an assault, anything, and it doesn’t say that I knew that Melvin Banks intended an assault, a murder, a shooting, anything and it’s hard to look at the paper or it’s hard to hear what someone else says and read into things, read into it, things that are not there.

It doesn’t say that he was anything but a passenger in a motor vehicle which he was not operating, which he had no control over and he certainly had no control over Melvin Banks.

The explicit accusations made against the defendant in these closing arguments leave no doubt that the redaction was totally ineffective in buffering the defendant from the prejudicial effects of the admitted statements. Under the circumstances, "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.” Bruton, supra, p 135.

We conclude that the cautionary instructions given by the trial court were constitutionally inadequate. The instructions failed to insure that the jury would consider the codefendants’ statements in a limited fashion — as evidence against the codefendants but not the defendant. The admission of Funches’ and Burley’s statements into evidence deprived the present defendant of his right of confrontation.

hi

A Bruton violation does not automatically require reversal of the defendant’s conviction:

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. [Schneble v Florida, 405 US 427, 430; 92 S Ct 1056; 31 L Ed 2d 340 (1972). See also Brown v United States, 411 US 223; 93 S Ct 1565; 36 L Ed 2d 208 (1973); Harrington v California, 395 US 250; 89 S Ct 1726; 23 L Ed 2d 284 (1969); People v Wright, 408 Mich 1, 26-27, 30; 289 NW2d 1 (1980); People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).]

The questionable reliability of a codefendant’s statement is the theoretical underpinning of the Bruton rule. In the instant case, the statements of Funges and Burley constitute presumptively unreliable hearsay — statements of self-exoneration which are favorable, not adverse, to the penal interests of the codefendants.⁹ It was recognized, even before Bruton, that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another (and exculpating himself), the accusation is presumptively suspect and therefore must be subject to cross-examination. Douglas v Alabama, supra. In Douglas, the accomplice’s confession, admitted in the guise of cross-examination to refresh the testifying accomplice’s recollection, was "of crucial importance” because it identified the defendant as the person who fired the gun. Id., p 417. One shot had been fired and it was certainly in the accomplice’s interest to inculpate the defendant. The Court in Douglas reversed the defendant’s conviction:

This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State’s case against petitioner. The circumstances are therefore such that "inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Namet v United States, 373 US 179, 187 [83 S Ct 1151; 10 L Ed 2d 278 (1963)]. [Id., p 420.]

Similarly, in the case at bar, the codefendants’ statements provided a critical element of the prosecution’s case. Each claimed total innocence for himself and pointed to the defendant as the one who shot the gun. Their statements served a dual purpose — to diminish their culpability and enhance the guilt of the defendant. Unfortunately, the defendant was denied the opportunity to cross-examine them despite these prejudicial circumstances.

The evidence introduced by the prosecutor in this case, apart from the out-of-court statements of the two codefendants, included the testimony of the decedent’s three companions. Lawrence Jordan, the young man who was wounded, testified that he saw the defendant pull a gun from his jacket pocket and start shooting after he said 'T have a present for you all . . . .” Jordan identified the defendant "[f]rom the clothes he was wearing.”

Sean Davis, who was not shot, testified that defendant said "he had a surprise for us” and that "[w]e seen the gun coming out of his jacket pocket” and "[h]e started shooting.” Larry Harris testified that he saw the defendant "walk around the corner and said I have a surprise for you and started shooting and started running.”

Although this testimony without a doubt weakens the defendant’s defense, it is not without its own vulnerabilities. This is not a case in which the eyewitnesses identified someone they knew well. Jordan, Davis, and Harris had never seen the defendant before the shooting incident. Jordan and Davis admitted that they had learned his name from a newspaper article and, although Jordan had picked out the defendant’s photograph during a showup, he admitted that he had seen the defendant’s photograph in a newspaper.

Moreover, Jordan, Davis, and Harris were all friends and members of a rival group which had allegedly been involved in prior confrontations with at least one of the codefendants. Obviously, their friendship and rivalry are factors which arguably could have influenced their testimony at trial and which provided legitimate grounds for attacking their credibility.

Although two of the three companions and several other witnesses identified the defendant as getting into a car near the high school just before the incident, the defendant admitted being in the car. He denied, however, that he went to the shooting site.

In Schneble, supra, p 432 the Court explained:

[W]e must determine on the basis of "our own reading of the record and on what seems to us to have been the probable impact ... on the minds of an average jury,” Harrington v California, supra, at 254, whether Snell’s admissions were sufficiently prejudicial to petitioner as to require reversal. In Bruton, the Court pointed out that "[a] defendant is entitled to a fair trial but not a perfect one.” 391 US at 135 quoting Lutwak v United States, 344 US 604, 619 [73 S Ct 481; 97 L Ed 593] (1953). Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required. See Chapman v California, 386 US 18, 24 [87 S Ct 824; 17 L Ed 2d 705] (1967).

In the instant case, we conclude that the "minds of an average jury” would have found the prosecution’s case "significantly less persuasive” had the statements of the codefendants been excluded. Schneble, supra, p 432. There is a very real possibility that the improperly admitted statements swayed the jury. The testimony of the three companions, while damaging to the defendant, would have born considerably less weight in the context of the defendant’s defense of misidentification, without the accusations of defendant by Funches and Burley. Under these circumstances, we conclude that the error in admitting the codefendants’ statements was not harmless.

We reverse the decision of the Court of Appeals and remand to the trial court for a new trial.

Levin, Brickley, and Mallett, JJ., concurred with Griffin, J.

1 Defendant made a timely motion for a separate trial. Separate preliminary examinations were held, but the prosecutor successfully sought to consolidate the cases for trial, over defense objection. The court thereafter refused to vacate the order of consolidation, and another judge denied a subsequent motion for a separate trial. The Court of Appeals declined interlocutory review.

2 A redacted statement is one from which, minimally, direct reference to the defendant is deleted.

3 The parties also agreed to excise any description of defendant Banks from the statements and to delete certain hearsay evidence contained within the statements.

4 Funches and Burley faced charges identical to those of the present defendant: first-degree murder, MCL 750.316; MSA 28.548, possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2), and assault with intent to commit murder, MCL 750.83; MSA 28.278.

5 The Court further ordered that the instant case be argued and submitted together with People v Watkins (Docket No. 86776), People v Hunter (Docket No. 86806), and People v Phillips (Docket No. 87091).

6 In every criminal prosecution, the accused shall have the right ... to be confronted with the witnesses against him .... [Const 1963, art 1, § 20.]

7 On the same day that Richardson was decided, the Court decided Cruz v New York, 481 US 186; 107 S Ct 1714; 95 L Ed 2d 162 (1987), which dealt with an alleged Bruton error involving "interlocking” confessions — where the defendant has made a full, voluntary confession which is nearly identical to the confession of his codefendant. The Cruz Court held that, although introduction of the defendant’s own interlocking confession cannot cure the Confrontation Clause violation caused by the introduction of a nontestifying codefendant’s confession, it might, in some instances, render that violation harmless. Since the defendant in the instant case did not confess, we do not address the distinctive concerns which arise in interlocking confession cases. See id., pp 191-193.

8 Whether or not the codefendant’s statement is crucial to the prosecution’s case—i.e., has a "devastating” effect on the defendant— bears on the harmlessness of a Bruton violation, not the existence of such an error. Cruz v New York, n 7 supra, pp 191-192.

9 In the instant case, as in Bruton, supra, p 128, n 3, the inadmissibility of the codefendants’ statements against the defendant is not contested. See also Lee v Illinois, 476 US 530, 542; 106 S Ct 2056; 90 L Ed 2d 514 (1986):

[W]e are not here concerned with the effectiveness of limiting instructions in preventing spill-over prejudice to a defendant when his codefendant’s confession is admitted against the codefendant at a joint trial. Rather . . . [hjere . . . the State sought to use hearsay evidence as substantive evidence against the accused.