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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DIEGO BANTAY MAYUYO,
                                                      Court of Appeals No. A-11786
                           Appellant,                Trial Court No. 3UN-12-052 CR

                    v.
                                                             O P I N I O N
STATE OF ALASKA,

                           Appellee.                    No. 2556 — June 2, 2017


             Appeal from the Superior Court, Third Judicial District,
             Unalaska, Patricia Douglass, Judge.

             Appearances: Sharon Barr, Assistant Public Defender, and
             Quinlan Steiner, Public Defender, Anchorage, for the Appellant.
             Nancy R. Simel, Assistant Attorney General, Office of Criminal
             Appeals, Anchorage, and Craig W. Richards, Attorney General,
             Juneau, for the Appellee.

             Before: Mannheimer, Chief Judge, and Allard, Judge.

             Judge MANNHEIMER, writing for the Court.

             Judge ALLARD, concurring.



             Diego Bantay Mayuyo appeals his conviction for first-degree sexual
assault. He argues that the trial judge committed error by (1) allowing the State to
introduce an altered version of a statement that Mayuyo made to his roommate shortly
after the alleged sexual assault, and by (2) prohibiting Mayuyo’s attorney from cross­
examiningthe roommate about the alteration in the statement. Mayuyo contends that the
altered version of his out-of-court statement was substantially misleading (in a manner
unfavorable to him), and that his trial was unfair because the trial judge prohibited his
defense attorney from clarifying the misleading aspects of the altered version of the
statement.
              We agree with Mayuyo that the superior court’s rulings on this issue were
improper, and that Mayuyo’s trialwas rendered unfair because of these rulings. Mayuyo
is therefore entitled to a new trial.
              Mayuyo also contends that the charge against him should be dismissed with
prejudice because he was not brought to trial within the time limits of Alaska Criminal
Rule 45. For the reasons explained in this opinion, we conclude that Mayuyo was
brought to trial within the time limits of Rule 45.


       Why we conclude that the superior court committed error by (1) allowing
       the State to present an altered and misleading version of Mayuyo’s out-of­
       court statement, and by (2) prohibiting Mayuyo’s attorney from asking
       witnesses about the alteration


              Mayuyo and his co-defendant, Ismael Balallo, were charged with sexually
assaulting a woman named L.V. in Unalaska. At Mayuyo’s trial, the State wanted to
introduce an out-of-court statement that Mayuyo made to his roommate, Rommel Viado,
shortly after the alleged sexual assault. According to Viado, Mayuyo told him several
times, “We’re going to jail.” However, Viado understood Mayuyo to be saying that he
(Mayuyo) and Balallo were going to jail because of what Balallo had done.
              Because Mayuyo and Balallo were being tried together, the prosecutor
acknowledged that if Viado was called to testify about Mayuyo’s out-of-court
statements, this would raise a confrontation problem under the United States Supreme

                                           –2–                                      2556

Court’s decision in Bruton v. United States 1 — because Mayuyo’s statements directly
incriminated his co-defendant Balallo.
              In Bruton, as later modified by Richardson v. Marsh, 2 the Supreme Court
held that a defendant’s Sixth Amendment right of confrontation is violated if the
confession of a non-testifying co-defendant is introduced at their joint trial, and if this
confession directly implicates the defendant.
              In Richardson v. Marsh, the Supreme Court set out three alternatives for
resolving this confrontation problem: (1) the government can try the co-defendants
separately, or (2) the government can elect not to introduce the co-defendant’s
confession, or (3) the government can alter the co-defendant’s confession so that it
no longer directly implicates the other defendants — in which case, the trial judge must
instruct the jurors that they can only consider the confession when evaluating the guilt
of the person who made it. 3
              We addressed this third approach — alteration of the confession — in
Pease v. State, 54 P.3d 316, 327 (Alaska App. 2002). While Pease was in jail awaiting
trial on charges related to a homicide, a fellow inmate asked him “if he really did it.”
Pease responded, “We were fucked up. It was bad.” 4 The inmate understood Pease to




   1
       391 U.S. 123, 126, 128-29; 88 S.Ct. 1620, 1623-25; 20 L.Ed.2d 476 (1968).
   2
       481 U.S. 200, 211; 107 S.Ct. 1702, 1709; 95 L.Ed.2d 176 (1987) (limiting Bruton to
instances where the confession of the non-testifying co-defendant directly implicates the
defendant).
   3
       Richardson, 481 U.S. at 208-211, 107 S.Ct. at 1707-09. See also Pease v. State, 54
P.3d 316, 327 (Alaska App. 2002), where this Court explained and summarized the Supreme
Court’s decision in Richardson v. Marsh.
   4
       Id. at 327-28.

                                           –3–                                        2556

be referring to the murder that Pease and his co-defendant, Marvin Roberts, were
charged with committing. 5
               Pease and Roberts were tried jointly, and the prosecutor recognized that
Bruton barred the admission of Pease’s out-of-court statement to the fellow inmate. To
circumvent this Bruton problem, the prosecutor suggested paraphrasing Pease’s
statement: the fellow inmate would be instructed to testify that Pease said, “I was fucked
up” rather than “we were fucked up”. 6 The superior court approved this approach: the
prosecutor was allowed to introduce the altered statement, and the judge gave the jury
a limiting instruction. 7 We affirmed the superior court’s decision on appeal. 8
               In Mayuyo’s case, the prosecutor proposed a similar approach to Viado’s
testimony about Mayuyo’s out-of-court statements. The prosecutor suggested (1) that
she would not ask Viado about Mayuyo’s direct accusations against Balallo, and (2) that
Viado should be instructed to testify that Mayuyo said, “I’m going to jail,” rather than
“We’re going to jail.”
               Mayuyo’s defense attorney objected that this alteration would significantly
change the meaning of Mayuyo’s out-of-court statement. As we have explained, Viado
understood Mayuyo to be saying that he (Mayuyo) would be going to jail because of
what Balallo had done. But if the statement was altered as the prosecutor proposed, and
if (as required by Bruton) no one could ask Viado to clarify that Mayuyo had been
accusing Balallo of sexual assault, then Mayuyo’s altered statement would appear to be
an admission of Mayuyo’s own wrongdoing.


   5
       Ibid.
   6
       Id. at 328.
   7
       Ibid.
   8
       Id. at 329.

                                           –4–                                       2556

              This flaw in the prosecutor’s approach to the Bruton issue should have been
obvious to everyone involved in the trial. Nevertheless, the trial judge adopted the
prosecutor’s suggestion, over the vehement objection of Mayuyo’s attorney (and also the
objection of Balallo’s attorney). The trial judge ruled that Viado could testify to an
altered version of Mayuyo’s words — changing “We’re going to jail” to “I’m going to
jail.”
              After the judge issued this ruling, Mayuyo’s attorney asked if he would be
allowed to cross-examine Viado to elicit the fact that, when Mayuyo spoke about going
to jail, he was referring mainly to what Balallo had done. The trial judge answered no.
She told the defense attorney, “[My] ruling ... definitely preclude[s] you from addressing
that [point] in your cross-examination. Because, otherwise, there would be no point [in
altering Mayuyo’s statement].”
              Later, when Viado took the stand at Mayuyo’s and Balallo’s trial, the
prosecutor asked Viado if Mayuyo had said he was “concerned about going to jail.”
Viado responded, “Yes.” The defense attorney adhered to the superior court’s rulingand
did not try to cross-examine Viado about the reasons Mayuyo gave for fearing that he
would go to jail.
              In closing argument, the prosecutor relied on this evidence to argue that
Mayuyo “knew what happened that night was bad”, and that Mayuyo was already
“talk[ing] about going to jail”.
              We conclude that the superior court erred by allowingthe State to introduce
this altered version of Mayuyo’s out-of-court statement. The alteration of Mayuyo’s
statement certainly protected Balallo’s confrontation rights under Bruton. But the
alteration was unfair to Mayuyo. Compared to Mayuyo’s original statement, the altered
version made it appear that Mayuyo was incriminating himself to a significantly greater
degree.

                                          –5–                                        2556

              Richardson v. Marsh allows a trial judge to resolve a Bruton problem by
letting the government introduce an altered version of a defendant’s out-of-court
statement. But the judge must take care that the altered version of the statement still
accurately reflects what the defendant was saying about the defendant’s own culpability.
              Here, the altered version of Mayuyo’s statement no longer accurately
conveyed the sense of Mayuyo’s original statement. The altered version materially
misrepresented what (according to Viado) Mayuyo had said about his own involvement
in the crime. The trialjudge therefore committed error by allowing the State to introduce
that altered version.
              The State makes no argument that this error was harmless — and, in any
event, we conclude from our independent review of the record that this error was not
harmless beyond a reasonable doubt. Accordingly, we reverse Mayuyo’s conviction.


       Why we conclude that Mayuyo was brought to trial within the time limits
       of Criminal Rule 45


              Mayuyo separately argues that he is entitled to dismissal of his case with
prejudice because he was not brought to trial within the time limits of Alaska Criminal
Rule 45.
              Mayuyo’s speedy trial claim hinges on the resolution of one question:
whether the superior court abused its discretion when it delayed Mayuyo’s trial by 31
days so that Mayuyo’s trial could remain joined with the trial of his co-defendant Balallo.
For the reasons we explain here, we conclude that the superior court’s ruling does not
constitute an abuse of discretion.




                                           –6–                                        2556

              The Rule 45 speedy trial calculation began when Mayuyo was served with
the criminal complaint on March 29, 2012. 9 Thus, Day 1 of the Rule 45 calculation was
March 30, 2012, and the projected 120th day — i.e., the projected last day for bringing
Mayuyo to trial — was July 27, 2012. 10
              At a pre-indictment hearing on April 6th, Mayuyo’s attorney asked for a
continuance to pursue further investigation of the case. Without objection, the court set
Mayuyo’s next pre-indictment hearing for May 1, 2012. The defense attorney’s request
tolled the Rule 45 clock for 25 days — or, rather, the speedy trial clock would have been
tolled for 25 days, except for the fact that Mayuyo was indicted and then arraigned on
that indictment before the scheduled May 1st pre-indictment hearing.
              The grand jury indicted Mayuyo on April 13, 2012, and Mayuyo’s superior
court arraignment took place four days later, on April 17, 2012. Because Mayuyo was
arraigned on his indictment before the requested 25 days elapsed, the Rule 45 clock was
only tolled for the 12 days from April 6th to April 17th (inclusive).
              At Mayuyo’s arraignment on April 17th, the superior court erroneously
calculated the Rule 45 expiration date to be July 28, 2012 (a Saturday). This calculation
mistakenly gave the State 121 days to bring Mayuyo to trial, rather than 120 days, but
neither party objected.
              The superior court’s calculation also mistakenly failed to exclude the 12­
day period that was tolled because of Mayuyo’s request for a continuance of the pre­
indictment hearing. With the added 12 days, the actual Rule 45 expiration date was
August 8, 2012.

   9
        See Criminal Rule 45(c)(1).
   10
       See Criminal Rule 40(a): “Except as otherwise specifically provided ... , in computing
any period of time, the day of the act or event from which the designated period of time
begins to run is not to be included.”

                                            –7–                                         2556

              Mayuyo and his co-defendant Balallo were scheduled to be tried together.
But at the beginning of July, the State alerted the superior court that there was a potential
severance problem: the State believed that one co-defendant would be ready for the
scheduled trial, while the other would ask for a continuance. The State suggested that
the trial of both defendants be delayed until early September 2012.
              On July 3rd, the parties appeared in court to discuss the possibility of
delaying the trial. Mayuyo’s attorney announced that he was ready for trial, and he
objected to the proposed continuance. However, this matter was not resolved on July
3rd, and the court continued the hearing until July 5th (since July 4th was a holiday).
              Both Mayuyo and the State agree that the Rule 45 calculation was tolled for
these additional two days. This meant that the actual Rule 45 expiration date was now
August 10, 2012.
              On July 5th, the superior court ruled that Mayuyo’s trial should remain
joined with his co-defendant Balallo’s trial, and that this joint trial should be continued.
The superior court set the trial for the week of Monday, September 10th — the next
scheduled trial calendar in Dutch Harbor.
              This scheduled trial date of September 10, 2012 was 31 days over the then-
current Rule 45 expiration date of August 10th.
              The following month (on August 8th), the superior court held a status
hearing regarding the feasibility of holding trial during the week of September 10th. The
parties informed the court that they were encountering difficulties in making travel
arrangements and in securing hotel accommodations. Without objection, the court
continued the trial until September 24, 2012. And the trial did, in fact, begin that day.
              Given this series of events, Mayuyo was brought to trial within the time
limits of Criminal Rule 45 unless the superior court committed error when, in response



                                            –8–                                         2556

to the State’s July motion for a continuance, the court rescheduled Mayuyo’s and
Balallo’s joint trial for September 10th.
              The provision of Rule 45 that applies to the superior court’s ruling is
subsection (d)(5), which states that a “reasonable period of delay” shallbe excluded from
the Rule 45 calculation if co-defendants are joined for trial and there is good cause for
not granting a severance.
              In Miller v. State, we explained that the Rule 45 clock will be tolled under
subsection (d)(5) only if the trial court (1) specifically considers the question of
severance, (2) concludes that the requested continuance will constitute only a “modest
extension of the [Rule 45] time limits,” and (3) concludes that holding a joint trial is
important to the prosecution’s case. 11
              In Mayuyo’s case, the superior court expressly addressed the question of
whether Mayuyo’s and Balallo’s trials should remain joined (and should be continued),
or whether the trials should be severed. Applying the test that this Court established in
Miller, the superior court concluded that delaying Mayuyo’s trial until September 10,
2012, constituted a modest extension of time, and that there was a significant interest in
keeping Mayuyo’s and Balallo’s cases joined for trial.
              Regarding this latter prongof the Miller test, the court noted that the State’s
evidence against the two co-defendants was “about as intertwined as you can [possibly]
get.” The court also noted that, because the evidence against the two defendants was so
closely connected, and because Dutch Harbor is a relatively small community, holding
Mayuyo’s trial in late July or early August would probably make it difficult to select a
second jury for Balallo’s trial only a few weeks later, in September.




   11
        706 P.2d 336, 340 (Alaska App. 1985).

                                            –9–                                         2556

              A trial court’s decision under Miller should be reviewed for “abuse of
discretion” because this is a situation where (1) the law does not specify a particular
“right” answer, but instead only specifies the factors or criteria that a judge should
consider, and where (2) reasonable judges, given the same facts and applying the correct
criteria, might come to differing conclusions about how to deal with the problem. 12
              Given the record in Mayuyo’s case, we conclude that the superior court did
not abuse its discretion when the court concluded that the interest in having Mayuyo’s
and Balallo’s cases tried together justified a 31-day extension of the Rule 45 time limit
in Mayuyo’s case.
              We therefore conclude that Mayuyo was tried within the time limits of
Criminal Rule 45.


        Conclusion


              The judgement of the superior court is REVERSED, but Mayuyo may be
retried should the State elect to do so.




   12
        See Booth v. State, 251 P.3d 369, 373 (Alaska App. 2011).

                                           – 10 –                                      2556

Judge ALLARD, concurring.

              I join the majority decision and write separately only to emphasize that the
Bruton problem presented in this case could have been easily solved by the court
granting Mayuyo’s motion to sever (or by the prosecutor choosing to forego use of
Mayuyo’s statement at trial). Instead, the prosecutor opposed the motion to sever and
the trial judge denied the motion and permitted the prosecutor to introduce an altered and
misleading version of Mayuyo’s statement to the jury. As the majority opinion points
out, there are significant risks associated with redacting or altering a non-testifying
defendant’s statement in order to eliminate references to a co-defendant. In some cases,
the redaction will not go far enough and will insufficiently protect the co-defendant’s
rights under the confrontation clause.1 In other cases, as occurred here, the redaction will
go too far, distorting the meaning of the statement and prejudicing the rights of the
defendant who made the statement.2 Given this, courts should carefully consider whether



   1
       See, e.g., Gray v. Maryland, 523 U.S. 185, 193 (1998) (holding that Bruton may be
violated if the act of redaction is obvious); Vazquez v. Wilson, 550 F.3d 270, 280 (3rd Cir.
2008) (reversingconvictions where the references to the two accomplices were replaced with
the terms “my boy” and “the other guy” because, in context, these terms unmistakably
referred to the co-defendant on trial); People v. Archer, 99 Cal. Rptr. 2d 230, 235 (Cal. App.
2000) (reversing a conviction where the jury would likely infer that the pronouns in the
redacted statement referred to the co-defendant).
   2
        See, e.g., Ex parte Sneed, 783 So. 2d 863, 870-71 (Ala. 2000) (reversing a conviction
where the alteration of the defendant’s statements from “we” to “I” distorted the meaning of
the statement and undermined the defendant’s defense); State v. Rakestraw, 871 P.2d 1274,
1281 (Kan. 1994) (reversing a murder conviction where the redacted version of the
defendant’s out-of-court statement distorted its meaning in a way that deprived the defendant
of a fair trial); People v. La Belle, 222 N.E.2d 727, 729 (N.Y. 1966) (reversing a conviction
where the redaction of the defendant’s statement distorted the meaning of the statement and
seriously prejudiced the defendant).

                                            – 11 –                                       2556

the benefits that might be gained by a joint trial are worth the risk of potentially injecting
reversible error into the State’s case.




                                            – 12 –                                       2556

