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Prosecutor’s Circumvention of the Bruton Rule Required Reversal

The Second Department reversed defendant’s conviction because of the misconduct of the prosecutor.  In spite of the pre-trial ruling redacting the confession of the co-defendant pursuant to the Bruton rule (prohibiting the use of a non-testifying codefendant’s confession), the prosecutor repeatedly indicated to the jury that the codefendant had implicated the defendant:

…[D]uring opening statements, the prosecutor told the jury that, after the nontestifying codefendant was arrested, the police learned of the involvement in the crime of someone called “Live,” i.e., the defendant. Thus, the prosecutor improperly implied that the codefendant implicated the defendant in the crime … . In denying the defendant’s mistrial motion based on this conduct, the court nonetheless admonished the prosecutor, … telling him that the court was “not happy with the remarks.”

Despite this admonishment, in summation, the prosecutor again implied that the codefendant had implicated the defendant. Specifically, he unequivocally suggested that the unnamed accomplice referred to in the “question and answer” portion of the statement, whom the codefendant stated had a 9 millimeter gun, was the defendant. Further, the prosecutor projected for the jury, on a video screen, a copy of the codefendant’s statement, with the word “we” highlighted in red, and directly suggested that the jury should draw the inference that “we” in the codefendant’s statement referred to the codefendant and the defendant. Under the circumstances of this case, this conduct constituted “an unjustifiable circumvention” of the Bruton rule …, and deliberate defiance of the pretrial order. People v Singleton, 2013 NY Slip Op 07509, 2nd Dept 11-13-13

 

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