Bruton Claim Bows to Crawford

State v. Usee, Minn.Ct.App., 6/20/2011.  The state charged Mr. Usee and Mr. Ali with three counts of attempted first degree murder among other charges.  The two were tried together.  During the trial, the state introduced Mr. Ali’s out of court statement that he made to a jail informant that Mr. Usee had been one of the shooters.  The trial court instructed the jury that it could consider Mr. Ali’s statement only in deciding whether Mr. Ali was guilty, and not in deciding whether Mr. Usee was guilty. 

Mr. Usee complained on appeal that introduction of Mr. Ali’s statement violated his confrontation rights.  Because there had been no objection at trial, the standard of review is plain error.  Under Bruton v. United States, 391 U.S. 123 (1968) admission of an out of court confession of a non-testifying codefendant that implicates the defendant is a confrontation violation.  Bruton, of course, was long before Crawford, which the court of appeals says limits Bruton to non-testimonial out of court statements, relying on opinions from the First, Sixth, Eighth and Tenth federal circuit courts of appeal for that conclusion. 

The court of appeals concludes that Mr. Ali’s statement to the jail informant was non-testimonial, – not likely to show up at trial -  in the apparent belief that Mr. Ali would never, ever, think that the informant would go screaming to the prosecutor with this get out of jail information.  See State v. Brist, here.This removes any confrontation problem, leaving only the rules of evidence.  Mr. Ali’s statement was a statement against interest and thus admissible against Mr. Usee.