        F 1-I:E
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                                                                        Ronald R. Carpenter
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               IN THE SUPREME COURT OF THE STATE OF WASHINGTON

    STATE OF WASHINGTON,                            )
                                                    )
                     Respondent,                    )                No. 91331-5
                                                    )
          v.                                        )                  EnBanc
                                                    )
    TROY J. WILCOXON,                               )
                                                    )     Filed
                      Petitioner.                   )
                                                    )


          OWENS, J. - The United States Constitution affords criminal defendants the

    right to confront witnesses presented against them, usually by means of cross-

    examination at trial. U.S. CONST. amend. VI. This confrontation right is often

    implicated when statements made outside of court are later presented at trial by

    someone other than the original speaker because the defendant cannot cross-examine

    the original speaker about the statements. However, the United States Supreme Court

    has held that not all out-of-court statements give rise to the protections of the

    confrontation right because not all speakers are acting as a "witness" against the

    accused as described in the Sixth Amendment. Crawford v. Washington, 541 U.S.
State v. Wilcoxon
No. 91331-5


36, 51, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). As the Court explained, only

those who '"bear testimony"' against the accused are "'witnesses"' within the

meaning of the Sixth Amendment. ld. (quoting 2 NOAH WEBSTER, AN AMERICAN

DICTIONARY OF THE ENGLISH LANGUAGE (1828)). That United States Supreme Court

precedent is controlling in this case. Today, petitioner Troy Wilcoxon asks us to find

that his confrontation right was violated when his codefendant's out-of-court

statement was admitted at trial and Wilcoxon did not have the opportunity to cross-

examine his codefendant. However, since the out-of-court statements were not

testimonial, they are not subject to the confrontation right. Consequently, we find that

Wilcoxon's confrontation right was not violated and affirm his conviction.

                                        FACTS

       Someone attempted to burglarize Lancer Lanes and Casino around 2:00a.m. on

May 14, 2013. Video surveillance showed that the burglar wore a large black plastic

garbage bag. The burglar cut the surveillance feed. However, the burglar's activities

awoke Eric Glasson, an individual who occasionally slept overnight at Lancer Lanes,

and Glasson's presence apparently spooked the burglar into leaving without taking

anything.

        On May 23, Wilcoxon, a card dealer at Lancer Lanes, invited Glasson, James

Nollette, and two other casino employees to a "strip club" called the Candy Store.

Verbatim Report of Proceedings (VRP) (Jan. 7, 2014) at 118 (Volume A). The



                                            2
State v. Wilcoxon
No. 91331-5


State's theory of the case was that the purpose of inviting Glasson and the other

casino employees to the Candy Store was to get them out of Lancer Lanes so the

burglary could occur without any interference. The group arrived around midnight,

but Wilcoxon left by himself less than an hour later after talking privately with

Nollette. Shortly after 2:00a.m., the Candy Store's surveillance footage showed

Nollette talking on his cell phone with someone-the conversation lasted roughly 15

minutes. Cell phone records showed several calls between Nollette and Wilcoxon

around 2:00a.m. Wilcoxon's phone's signal relied on a cell tower near Lancer Lanes.

Soon after Nollette's conversation ended, Nollette, Glasson, and the two casino

employees left the Candy Store.

       That same night, surveillance footage from Lancer Lanes showed the same

garbage-bag-wearing burglar enter the building just before 2:00 a.m. The burglar

again cut the surveillance feed, but this time, the cameras were backed up by batteries

and recorded the burglary. Surveillance footage showed the burglar take $29,074

from Lancer Lanes's money drawer.

        Sometime after 2:00a.m., Wilcoxon and Nollette went to their friend Eric

Bomar's house. Wilcoxon and Nollette both appeared "excited." VRP (Jan. 9, 2014)

at 503 (Volume C). Bomar testified that Wilcoxon discussed going to Lancer Lanes

and "getting away with it," referring to the Lancer Lanes burglary. Id. at 504-05.

Bomar testified that Wilcoxon described to him how he had burglarized Lancer Lanes,



                                            3
State v. Wilcoxon
No. 91331-5


including that he had entered through the back door, disabled the security cameras,

and used keys to access the money drawer. Bomar also testified that in the past he

had heard both Wilcoxon and Nollette discuss how easy it would be to break in and

steal money from Lancer Lanes.

       In June, Nollette confided in his friend Gary Solem. Nollette told Solem that

he had been "at a friend's house" and that his "friend asked him, ... ifyou were going

to rob a place or hold a place up in town, ... what [place] would you do?" VRP

(Jan. 8, 2014) at 301 (Volume B). Nollette responded to his friend that "if it was

me, ... I would ... rob ... Lancer's Lane." !d. Additionally, Nollette told Solem

that "his friend had ... broken into ... Lancer's and that ... in the middle of the

burglary, [Nollette] was over at the Candy Store," and that "while they were over

there, [Nollette] received a phone call and he went outside to talk to his friend in the

middle of the burglary." !d. at 304. Nollette did not directly identify Wilcoxon as the

"friend" to Solem. See id. at 304-11.

       Later in June, the State charged Wilcoxon with second degree burglary, first

degree theft, and second degree conspiracy to commit burglary. Wilcoxon's case was

joined for trial with Nollette's case. 1 Prior to trial, Wilcoxon moved to sever his trial

from Nollette's trial pursuant to CrR 4.4(c)(2), arguing that since Nollette would




1
 The State charged Nollette with second degree burglary, first degree theft, and second
degree conspiracy to commit burglary. See Clerk's Papers at 31, 54.

                                             4
State v. Wilcoxon
No. 91331-5


likely not testify, Wilcoxon would be unable to cross-examine him regarding the

statements Nollette made to Solem. The trial court denied Wilcoxon's motion.

Wilcoxon did not renew his motion to sever before or at the close of all the evidence.

Wilcoxon did not object to Solem's testimony regarding Nollette's statements, and

Wilcoxon did not request a limiting instruction.

       The jury convicted Wilcoxon of all three charges. It returned a special verdict

that his theft and burglary convictions were "major economic offense[s]" and that

Wilcoxon abused a position of trust to commit those crimes. Clerk's Papers (CP) at

86-87. Wilcoxon appealed, arguing that the trial court violated his confrontation right

by denying his severance motion and failing to provide a limiting instruction sua

sponte. 2 The Court of Appeals affirmed Wilcoxon's convictions, finding no

confrontation right violation or requirement to provide a limiting instruction sua

sponte. State v. Wilcoxon, 185 Wn. App. 534, 540, 542, 341 P.3d 1019 (2015). We

granted discretionary review. State v. Wilcoxon, 183 Wn.2d 1002, 349 P.3d 856

(20 15).

                                        ISSUES

        1. Was Wilcoxon's confrontation right violated?

        2. If the trial court erred, was the error harmless beyond a reasonable doubt?


2 Since Wilcoxon did not renew his motion to sever during trial and CrR 4.4(a)(2)
provides that "[s]everance is waived by failure to renew the motion," Wilcoxon does not
rely on his right to severance pursuant to CrR 4.4 on this appeal.

                                            5
State v. Wilcoxon
No. 91331-5


                                      ANALYSIS

   1. The Trial Court Did Not Violate Wilcoxon's Confrontation Right

       Wilcoxon asks us to find that his confrontation right was violated when the

court admitted out-of-court statements by his codefendant, who did not testify at trial.

However, as explained in detail below, the United States Supreme Court has held that

nontestimonial statements do not fall within the scope of the confrontation clause, and

in this case, the statements at issue were not testimonial. Therefore, the statements

did not fall within the scope of the confrontation clause and Wilcoxon's confrontation

right was not violated.

       A. The Confrontation Clause, Out-ofCourt Statements by Nontestifying
          Codefendants, and the Bruton Doctrine

       The confrontation clause of the Sixth Amendment provides, "In all criminal

prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses

against him." U.S. CONST. amend. VI. It ensures protection of the right of criminal

defendants to confront witnesses testifying against him or her at trial. Defendants

generally exercise the confrontation right by cross-examining these witnesses. We

review alleged violations of the confrontation clause de novo. State v. Jasper, 174

Wn.2d 96, 108, 271 P.3d 876 (2012).

        Separately, the Fifth Amendment provides criminal defendants the right against

self-incrimination. U.S. CONST. amend. V. This affords defendants the right to refuse

to testify. Sometimes this right and the confrontation right can create tension when


                                            6
State v. Wilcoxon
No. 91331-5


two defendants are tried together as codefendants for the same offense. Specifically, a

conflict can arise when one defendant makes a statement outside of court that

implicates a codefendant and then that statement is related in the joint trial by a third

party who heard the statement. This can be problematic where the speaker of the

statement chooses to invoke his Fifth Amendment right not to testify in court because

the codefendant does not have the opportunity to cross-examine the actual speaker of

the out-of-court statement.

       The United States Supreme Court addressed this conflict in Bruton v. United

States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). The Court found that

the admission of an out-of-court statement by a nontestifying codefendant violated the

defendant's confrontation right. !d. at 128. There, Bruton and a man named Evans

were prosecuted jointly for an armed postal robbery. !d. at 124. Before trial, a postal

inspector interrogated Evans in jail. !d. Evans confessed to the crime and implicated

Bruton. !d. At trial, Evans did not take the stand but the postal inspector testified that

Evans confessed to committing the crime with Bruton. !d. The trial court instructed

the jury to disregard the confession as to Bruton's guilt or innocence. !d. Ultimately,

the jury convicted Bruton. !d. The Court reversed, holding that the use of Evans's

confession violated Bruton's confrontation right, even with the limiting instruction.

!d. at 128. It reasoned that Evans's confession added "critical" weight to the case

against Bruton, in a form that was not subject to cross-examination. !d. at 127-28.



                                             7
State v. Wilcoxon
No. 91331-5


       Following Bruton, the Supreme Court explored the Bruton doctrine by fleshing

out how a Bruton violation should be handled and what curative measures could be

implemented to avoid the effect a codefendant's confession could have on the

nonconfessing defendant's defense. See, e.g., Harrington v. California, 395 U.S. 250,

252-55, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969) (holding that erroneous admission of

a statement at a joint trial does not necessarily require reversal, as such an error is

subject to harmless error analysis); Parker v. Randolph, 442 U.S. 62, 75, 99 S. Ct.

2132, 60 L. Ed. 2d 713 (1979) (holding that a proper limiting instruction can allow

admission of interlocking confessions to comport with the Sixth and Fourteenth

Amendments to the federal constitution).

       Wilcoxon argues that his case is similar to Bruton and, therefore, his

confrontation right was likewise violated. However, as explained below, the United

States Supreme Court has since refined its confrontation clause jurisprudence, limiting

its scope to testimonial statements.

       B. Limitation of the Confrontation Clause to Testimonial Statements

        In 2004, the Supreme Court effectively changed the landscape of its

confrontation clause analysis in Crawford, 541 U.S. at 42. In Crawford, the Court

considered the admission of an out-of-court recorded statement made to police against

Crawford and held that the confrontation clause barred its admission because the

statement was "testimonial." !d. at 40, 68. The Court examined the historical lineage



                                              8
State v. Wilcoxon
No. 91331-5


of the defendant's right to prior cross-examination of an unavailable witness presented

against him. Id. at 43-50. Using a textual approach, it found that the confrontation

clause "applies to 'witnesses' against the accused-in other words, those who 'bear

testimony."' Id. at 51 (quoting 2 WEBSTER, supra). Thus, it found that the

confrontation clause was primarily concerned with testimonial statements. Id.

       While it was clear under Crawford that the confrontation clause certainly

applied to testimonial out-of-court statements, it was unclear how nontestimonial

statements should be handled. The Court answered that question in Davis v.

Washington, finding that nontestimonial statements are outside of the scope of the

confrontation clause. 547 U.S. 813, 821-24, 126 S. Ct. 2266, 165 L. Ed. 2d 224

(2006). Only testimonial statements "cause the declarant to be a 'witness' within the

meaning ofthe Confrontation Clause." Id. at 821 (quoting Crawford, 541 U.S. at 51).

The Court thus found that "[u]nder Crawford, ... the Confrontation Clause has no

application to [nontestimonial] statements and therefore permits their admission even

if they lack indicia of reliability." Whorton v. Bockting, 549 U.S. 406, 420, 127 S. Ct

1173, 167 L. Ed. 2d 1 (2007). Therefore, if the statement is nontestimonial, it is not

subject to the confrontation clause.

        Crawford and Davis advised on how to answer the threshold question of

whether a statement is testimonial. In general, where the statement is functionally

trial testimony, it is testimonial; where it is just a casual statement made to a friend, it



                                              9
State v. Wilcoxon
No. 91331-5


is nontestimonial. Crawford, 541 U.S. at 51. Only after a court concluded that a

given statement is testimonial would it proceed to analyze the confrontation clause.

       Wilcoxon asks us to disregard Crawford's and Davis's limitation on the

confrontation clause to testimonial statements and apply the Bruton doctrine without

considering whether the statements were testimonial. The next section will examine

whether Crawford's limitation applies to situations covered by the Bruton doctrine.

       C. Harmonizing the Bruton Doctrine and Crawford

       Post-Crawford, the question we must answer is whether the Bruton doctrine

must be viewed through the lens of Crawford, or whether Wilcoxon's case must be

analyzed only under Bruton. Given the scope and reasoning of Crawford, we

conclude that it applies in situations that, like Bruton, involve out-of-court statements

by nontestifying codefendants. Crawford reimagined the scope of the confrontation

clause. As the United States Supreme Court later explained, the core of the

confrontation clause is to protect defendants from testimony against him or her.

Davis, 547 U.S. at 823-34. Thus, it follows that the scope of the confrontation right

encompasses only testimonial statements. Its protections simply do not apply to

nontestimonial statements, whether in the context of a single defendant like in

Crawford or codefendants like in Bruton.

       As support for the limitation, the Court pointed out in Davis that the great

majority of confrontation cases throughout American jurisprudence involved



                                            10
State v. Wilcoxon
No. 91331-5


testimonial statements. !d. at 824-26. Indeed, Bruton itself involved a testimonial

statement-Evans's confession to the postal inspector was received during

interrogation, which he could reasonably expect would be used prosecutorially. 391

U.S. at 124. Although Bruton did not contemplate a distinction between testimonial

and nontestimonial statements, if decided today it would meet the threshold question

and further confrontation analysis would follow. Thus, limiting the Bruton doctrine to

testimonial hearsay is the natural conclusion under Crawford.

       The majority of federal appellate courts that have considered this issue have

come to the same conclusion. They have held that under Crawford and Davis, the

confrontation clause applies only to situations that involve out-of-court statements

made by nontestifying codefendants when such statements are testimonial. See, e.g.,

United States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir. 2010) ("It is ...

necessary to view Bruton through the lens of Crawford and Davis. The threshold

question in every case is whether the challenged statement is testimonial. If it is not,

the Confrontation Clause 'has no application.'" (quoting Whorton, 549 U.S. at 420));

United States v. Berrios, 676 F.3d 118, 128 (3rd Cir. 2012) ("[B]ecause Bruton is no

more than a by-product of the Confrontation Clause, the Court's holdings in Davis

and Crawford likewise limit Bruton to testimonial statements."); United States v.

Dargan, 738 F.3d 643, 651 (4th Cir. 2013) ("Bruton is simply irrelevant in the context

ofnontestimonial statements."); United States v. Johnson, 581 F.3d 320, 326 (6th Cir.



                                            11
State v. Wilcoxon
No. 91331-5


2009) ("Because it is premised on the Confrontation Clause, the Bruton rule, like the

Confrontation Clause itself, does not apply to nontestimonial statements."); United

States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008) ("It is now clear that the

Confrontation Clause does not apply to non-testimonial statements by an out-of-court

declarant."); United States v. Clark, 717 F.3d 790, 816 (lOth Cir. 2013) (concluding

that because a coconspirator's out-of-court statements were nontestimonial, "they

[fell] outside the protective ambit of the Confrontation Clause and, by extension,

Bruton."); Thomas v. United States, 978 A.2d 1211, 1224-25 (D.C. 2009) (concluding

that where "a defendant's extrajudicial statement inculpating a co-defendant is not

testimonial, Bruton does not apply, because admission ... would not infringe the co-

defendant's Sixth Amendment rights").

       We join these courts and hold that when an out-of-court statement made by a

nontestifying codefendant is nontestimonial, Bruton is inapplicable because such

statements are outside the scope of the confrontation clause.

       D. Nollette 's Statement Is Nontestimonial and, Therefore outside the Scope of
          the Confrontation Clause

       Applying this harmonized rule in this case, we first determine whether the out-

of-court statements were testimonial. If they were, we proceed to a confrontation

clause analysis. If not, the confrontation clause does not apply. As the United States

Supreme Court has explained, a statement is "testimonial" if it is the functional

equivalent ofin-court testimony. See Crawford, 541 U.S. at 51-52. A testimonial


                                            12
State v. Wilcoxon
No. 91331-5


statement is designed to establish or prove some past fact, or is essentially a weaker

substitute for live testimony at trial. Davis, 547 U.S. at 827-28. Where the statement

is effectively a substitute for live trial testimony, the statement is testimonial. I d. at

828. Crawford listed some examples such as "'ex parte in-court testimony or its

functional equivalent-that is, material such as affidavits, custodial examinations,

prior testimony that the defendant was unable to cross-examine, or similar pretrial

statements that declarants would reasonably expect to be used prosecutorially. '" 541

U.S. at 51. "Statements taken by police officers in the course of interrogations,"

which was the case in Crawford, are also testimonial. ld. at 52. However, a "casual

remark to an acquaintance" is not testimonial. I d. at 51.

       Here, Nollette's statements to Solem were nontestimonial. Nollette's

statements were that he and a friend had discussed burgling Lancer Lanes and that his

friend had called him while burgling Lancer Lanes. The statements were not designed

to establish or prove some past fact, nor were they a weaker substitute for live

testimony at trial; rather, Nollette was casually confiding in a friend. Nollette would

not have reasonably expected that statement to his friend to be used prosecutorially.

Those statements were merely "casual remark[s] to an acquaintance." ld. Therefore,

the statements were nontestimonial. Since they were nontestimonial, they were




                                              13
State v. Wilcoxon
No.91331-5


outside the scope of the confrontation clause. Therefore, Wilcoxon suffered no

confrontation violation. 3

    2. Even If Wilcoxon's Confrontation Right Had Been Violated, It Would Have
       Been Harmless Error

       Although we conclude that Wilcoxon's confrontation right was not violated and

no error occurred by admitting Nollette's statement, we note that even if his right had

been violated, the outcome would remain the same because, in the context of all of the

evidence presented at trial, the admitted statements did not contribute to Wilcoxon's

conviction.

       Confrontation clause errors are subject to a harmless-error analysis as laid out

in Chapman v. California, 386 U.S. 18, 22-24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967).

Delaware v. VanArsdall, 475 U.S. 673,684, 106 S. Ct. 1431, 89 L. Ed. 2d 674

(1986). Under Chapman, before a constitutional error can be harmless, the State must

show "beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained." 386 U.S. at 24.

       Whether such an error is harmless in a particular case depends upon a host of
       factors, ... includ[ing] the importance of the witness' testimony in the
       prosecution's case, whether the testimony was cumulative, the presence or
       absence of evidence corroborating or contradicting the testimony of the witness



3
  Wilcoxon also argues that the trial court committed reversible error by failing to provide
the jury a limiting instruction regarding the out-of-court statement sua sponte. Wilcoxon
contends that such an instruction was necessary to avoid harming his confrontation right.
However, because we hold that the statement was outside the scope of the confrontation
clause, no limiting instruction was necessary.

                                             14
State v. Wilcoxon
No.91331-5


       on material points, the extent of cross-examination otherwise permitted, and, of
       course, the overall strength of the prosecution's case.

VanArsdall, 475 U.S. at 684.

       Here, Nollette's statements were unimportant to the State's case when

compared with Wilcoxon's own admissions. Wilcoxon bragged to his friend Eric

Bomar that he burgled Lancer Lanes, and Bomar testified as to Wilcoxon's

description of the burglary at trial. This description was corroborated by the

surveillance video of the burglary.

       The nontestimonial statements at issue merely corroborated the cell phone calls

that Wilcoxon made to Nollette during the time of the burglary. However, these calls

were already circumstantially corroborated by the surveillance video and the cell

phone records. Therefore, the statements were unimportant to the State's overall case.

It is clear from the record that the admission ofNollette's statements did not alter the

outcome of the State's case against Wilcoxon. Therefore, any feared error was

harmless beyond a reasonable doubt.

                                        CONCLUSION

        In accordance with the United States Supreme Court's holdings in Crawford

and Davis, we conclude that the confrontation clause is limited to testimonial

statements, even in the context of nontestifying codefendants. Since the statements in

this case were not testimonial, the confrontation clause did not apply and thus was not

violated. Consequently, we affirm Wilcoxon's conviction.


                                            15
State v. Wilcoxon
No. 91331-5




WE CONCUR:




                    16
State v. Wilcoxon, No. 91331-5 (Gonzalez, J. concurring)




                                           No. 91331-5

         GONZALEZ, J. (concurring)-I agree with the lead opinion that Bruton 1 and

the confrontation clause did not apply to the out-of-court statements at issue before

us. A threshold question in determining when the confrontation clause applies is

whether the out-of-court statement was procured by the government. We should

treat statements that were not procured by the government as presumptively

nontestimonial. Thus, their admissibility should be governed by the rules of

evidence, not the confrontation clause.

         In Crawford, the United States Supreme Court noted that the confrontation

clause applies to '"witnesses' against the accused-in other words, those who

'bear testimony."' Crawfordv. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 158

L. Ed. 2d 177 (2004) (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF

THE ENGLISH LANGUAGE (1828)). "An accuser who makes a formal statement to

government officers bears testimony in a sense that a person who makes a casual

remark to an acquaintance does not." !d. The Supreme Court further explained the

label "testimonial" "applies at a minimum to prior testimony at a preliminary

hearing, before a grand jury, or at a former trial; and to police interrogations." Id.


1
    Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
                                                  1
State v. Wilcoxon, No. 91331-5 (Gonzalez, J. concurring)


at 68. When the primary purpose of the government procured statement is to

establish or prove past events potentially related to a criminal prosecution, the

statement is testimonial and subject to a confrontation clause analysis. See, e.g.,

Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 165 L. Ed. 2d 224

(2006).

       On the other hand, statements not procured by the government bear "little

resemblance to the civil-law abuses the Confrontation Clause targeted." Crawford,

541 U.S. at 51. These statements are "less likely to be testimonial" than statements

made to the government for the primary purpose of aiding a potential criminal

prosecution. Ohio v. Clark, _U.S._, 135 S. Ct. 2173,2182,192 L. Ed. 2d

306 (2015). I would hold that a statement that is not procured by the government

is presumptively not testimonial. Aside from explicitly testimonial contexts,

absent some evidence showing that a statement was given or procured as evidence

to be used in a later criminal prosecution, the confrontation clause should

presumptively not apply. If the confrontation clause does not apply, then the

admissibility of those statements is governed by traditional rules of evidence.

Michigan v. Bryant, 562 U.S. 344,359, 131 S. Ct. 1143, 179 L. Ed. 2d 93 (2011);

see Davis, 547 U.S. at 821.

        The statements at issue in this case were not procured by the government as

they were merely "casual remark[s] to an acquaintance." Crawford, 541 U.S. at


                                               2
State v. Wilcoxon, No. 91331-5 (Gonzalez, J. concurring)


51. The statements are presumptively nontestimonial, and there was no evidence

at the time the statements were made to suggest that they would be used in a later

criminal prosecution. The confrontation clause does not apply. Accordingly, I

concur.




                                               3
State v. Wilcoxon, No. 91331-5 (Gonzalez, J. concurring)




                                               4
State v. Wilcoxon (Troy J)




                                         No. 91331-5


      MADSEN, C.J. (dissenting)-! disagree with the lead opinion's conclusion that
       1
Bruton does not apply where nontestimonial statements are involved. Crawford2 and

Davis 3 address whether admitting certain evidence violates the defendant's right of

confrontation. Bruton and its progeny address a different concern-the prejudicial effect

of inadmissible evidence, heard or seen by the jury, in a joint trial. Based on these

fundamentally different purposes, I believe the Bruton doctrine continues to apply, even

to nontestimonial statements.

       As an initial matter, it is important to recall that this case is not about whether

James Nollette's confession implicating Troy Wilcoxon should have been admitted

against Wilcoxon as substantive evidence. Rather, it is about whether Nollette's

confession implicating Wilcoxon, which the trial court ruled was inadmissible against

Wilcoxon, should have been heard by the jury in a joint trial. This is the focus of

Bruton-that a defendant's confrontation clause rights are violated when the jury hears

codefendant statements, inadmissible against the     de~endant,   but that nonetheless

1
  Bruton v. United States, 391 U.S. 123, 137, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).
2
  Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
3
  Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006).
No. 91331-5
Madsen, C.J., dissenting


implicate him, because the prejudice is so great that a limiting instruction is not enough to

cure it. U.S. CONST. amend. VI.

       I would hold that Bruton survives Crawford and applies to both testimonial and

nontestimonial statements, that Nollette's statement of"friend" implicates Wilcoxon so

as to invoke Bruton's protections, and that this constitutional error was not harmless. I

would vacate Wilcoxon's conviction.

                                       DISCUSSION

                                              I

       In Bruton, the Supreme Court held that a codefendant's statement-inadmissible

against Bruton-that the jury heard and for which the judge gave a limiting instruction,

violated Bruton's confrontation clause rights. 391 U.S. at 126. The factors the Court

"deemed relevant in this area [were] the likelihood that the instruction will be

disregarded, the probability that such disregard will have a devastating effect, and the

determinability of these facts in advance of trial." Cruz v. New York, 481 U.S. 186, 193,

107 S. Ct. 1714, 95 L. Ed. 2d 162 (1987) (internal citations omitted). These factors are

different from the concerns of Crawford and Davis, which instead focused on the

reliability of hearsay evidence deemed admissible against the defendant.

        To understand the different harms addressed under the confrontation clause, the

historical underpinnings of Bruton and Crawford are helpful. The Bruton doctrine

developed to address the harmful effect of putting evidence, inadmissible against a




                                              2
No. 91331-5
Madsen, C.J., dissenting


codefendant, before the jury in a joint trial, while Roberts, 4 Crawford, and Davis deal

with the proper means of assessing reliability in determining what evidence may be

admitted directly against the defendant without violating the confrontation clause.

       Bruton finds its beginnings in Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct.

294. 1 L. Ed. 2d 278 (1957), overruled by Bruton, 391 U.S. 123. Delli Paoli involved a

joint trial of five defendants; the confession of one defendant was properly admitted

against him as a statement against interest but was inadmissible against the other

defendants. I d. at 233. The trial judge gave an emphatic instruction to the jury to use the

confession only to determine the confessor's guilt. Id. The Supreme Court affirmed the

trial court, fearing that a contrary decision would undermine the trial-by-jury system.

The Court held that so long as a limiting instruction was given to the jury, the defendant

was protected and it was not reversible error. Id. at 242-43.

       Justice Frankfurter, writing for three other justices, dissented. He acknowledged

that "[o]ne of the most recurring ... difficulties [in a joint trial] pertains to incriminating

declarations by one or more of the defendants that are not admissible against others." Id.

at 247 (Frankfurter, J., dissenting). Justice Frankfurter identified the practical effect of

allowing an inadmissible statement to be put before .the jury: the government receives

"the windfall of having the jury be influenced by evidence against a defendant which, as

a matter of law, they should not consider but which they cannot put out of their minds."


4
 Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531,65 L. Ed. 2d 597 (1980), overruled by
Crawford, 541 U.S. at 68-69.



                                                3
No. 91331-5
Madsen, C.J., dissenting


!d. at 248 (Frankfurter, J., dissenting). This prejudice could not be cured by a limiting

instruction because such an instruction was "intrinsically ineffective in that the effect of

such a nonadmissible declaration cannot be wiped from the brains .of the jurors." Id. at

247 (Frankfurter, J., dissenting).

       Building on Justice Frankfurter's dissent, a majority of the Court began to express

concern with jurors' ability to disregard evidence, even when so instructed. In Jackson v.

Denno, 378 U.S. 368, 371-74, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964), a question was

raised as to the voluntariness of the defendant's confession, which he gave at the hospital

while on medication, awaiting surgery, after being shot in the lung and liver. The jury

was instructed that it should disregard the confession if it found the confession

involuntary and then decide the case based on the other evidence. !d. at 374-7 5. The

Jackson Court was concerned whether, if the jury did find the confession involuntary, it

could "then disregard the confession in accordance with its instructions" or whether "[i]f

there [were] lingering doubts about the sufficiency of the other evidence, [would] the jury

unconsciously lay them to rest by resort to the confession?" Id. at 388. Ultimately, the

Court found that juries should not be trusted to disregard involuntary confessions because

to do so would pose "substantial threats to a defendant's constitutional rights." !d. at 389.

        Bruton expanded on the reasoning of Jackson. In Bruton, George Bruton and

William Evans were tried jointly on the charge of bank robbery. 391 U.S. at 124. After

the arrest, Evans gave a confession to a postal inspector stating that he and Bruton had

 committed the armed robbery. Id. Evans did not testify, but the trial court allowed the



                                               4
No. 91331-5
Madsen, C.J., dissenting


prosecution to introduce the confession, along with a limiting instruction charging the

jury that Evans' confession was inadmissible against Bruton and that they were '"not to

consider it in any respect to the defendant Bruton, because insofar as he is concerned it is

hearsay."' !d. at 125 n.2. The Court reasoned this instruction was insufficient because

"there 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." Id. at 135.

Bruton's joint trial presented such a context, "where the powerfully incriminating

extrajudicial statements of a codefendant, who [stood] accused side-by-side with the

defendant, [were] deliberately spread before the jury in a joint trial." Id. at 135-36. This

prejudice is compounded by the fact that the alleged accomplice invokes his Fifth

Amendment right not to testify and therefore cannot be cross-examined; "[i]t was against

such threats to a fair trial that the Confrontation Clause was directed." Id. at 136. The

Court went on to hold that "in the context of a joint trial we cannot accept limiting

instructions as an adequate substitute for petitioner's constitutional right of cross-

examination. The effect is the same as ifthere had been no instruction at all." Id. at 137.

The focus of the Bruton Court was the constitutional harm to the defendant from a

codefendant's statement, inadmissible against the defendant, being heard by the jury; it

was not the reliability of a codefendant's statement or whether it was admissible against

the defendant.




                                               5
No. 91331-5
Madsen, C.J., dissenting


       In 1980, a new line of confrontation clause jurisprudence began with Ohio v.

Roberts. The Roberts Court did not deal with the harm caused by presenting a

codefendant's statement in a joint trial. Instead, it was concerned with the reliability of

hearsay admitted directly against the defendant and whether or not this violated the

confrontation clause. The Court initiated the "adequate 'indicia of reliability'" test to

determine whether or not a hearsay statement was admissible against a defendant. I d. at

66. Under Roberts, if a declarant's hearsay statements were admissible against a

defendant under an exception to the hearsay rule and that declarant was not available for

cross-examination, the statements were inadmissible unless the State proved ( 1) the

declarant is unavailable and (2) the statement bore "adequate 'indicia of reliability."' Jd.

Reliability may be established if the statement "falls within a firmly rooted hearsay

exception" or bears "particularized guarantees of trustworthiness." ld. Roberts'

importance to the present case is that it dealt with reliability when determining the

admissibility of evidence under the confrontation clause, as opposed to Bruton, which

dealt with the prejudice from inadmissible evidence.

       Lee v. Illinois, 476 U.S. 530, 106 S. Ct. 2056, 90 L. Ed. 2d 514 (1986), highlights

the distinction between Bruton and Roberts and the harm each case addresses. In Lee,

Lee and her codefendant Thomas were tried jointly in a bench trial for a double murder.

Jd. at 531. Both defendants confessed, and those confessions were admitted at trial

against the confessor. ld. at 536-37. Counsel for both defendants withdrew their motions

for severance because they trusted the court would consider only the "evidence proper to



                                              6
No. 91331-5
Madsen, C.J., dissenting


each defendant." !d. at 536. Instead, the "trial judge expressly relied on Thomas'

confession and his version of the killings" in convicting Lee. !d. at 538. In overturning

the conviction, the Supreme Court distinguished Bruton, stating, "We based our decision

in Bruton on the fact that a confession that incriminates an accomplice is so 'inevitably

suspect' and 'devastating' that the ordinarily sound assumption that a jury will be able to

follow faithfully its instructions could not be applied." !d. at 542 (quoting Bruton, 391

U.S. at 136). Because Lee was tried to the bench, the Court said it was not "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" and thus found Bruton inapposite. !d. (emphasis added). Instead, the Court

identified a different issue: whether, under Roberts, Thomas' confession bore adequate

"indicia of reliability" such that it could be admitted directly against Lee 5 without

violating her confrontation clause rights. The Court found the "indicia of reliability"

lacking and held that the confession was inadmissible. !d. at 546.

        The Court returned to its Bruton line of cases with Richardson v. Marsh, 481 U.S.

200, 107 S. Ct. 1702,95 L. Ed. 2d 176 (1987). The Marsh Court held that Bruton's

protections are unnecessary when a codefendant's confession is redacted to "eliminate

not only the defendant's name, but any reference to his or her existence" and a limiting

instruction is given. !d. at 211. The court reiterated the harm against which Bruton


 5
  The evidence technically was not admitted against Lee, but because the judge relied so heavily
 on it in convicting her, the Court treated it as a de facto admission of evidence.



                                                7
No. 91331-5
Madsen, C.J., dissenting


protects when it stated that "while it may not always be simple for members of the jury to

obey the instruction that they disregard an incriminating inference, there does not exist

the overwhelming probability of their inability to do so that is the foundation of Bruton's

exception to the general rule." Id. at 208.

       In the same year, the Court decided Cruz, overruling Parker v. Randolph, 442 U.S.

62, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979). Cruz, 481 U.S. 186. Cruz held that "where

a nontestifying codefendant confession incriminating the defendant is not directly

admissible against the defendant, the Confrontation Clause bars its admission at their

joint trial, even ifthe jury is instructed not to consider it against the defendant, and even

if the defendant's own confession is admitted against him." Id. at 193 (citation omitted).

Explaining why the interlocking nature of the confession was irrelevant to a Bruton

analysis, Cruz further distinguished between harm and reliability in the two lines of

confrontation clause case law. The Court found that

        what the "interlocking" nature of the codefendant's confession pertains to is
        not its harmfulness but rather its reliability: If it confirms essentially the
        same facts as the defendant's own confession it is more likely to be true.
        Its reliability, however, may be relevant to whether the confession should
        (despite the lack of opportunity for cross-examination) be admitted as
        evidence against the defendant, but cannot conceivably be relevant to
        whether, assuming it cannot be admitted, the jury is likely to obey the
        instruction to disregard it, or the jury's failure to obey is likely to be
        inconsequential. The law cannot command respect if such an inexplicable
        exception to a supposed constitutional imper~tive is adopted. Having
        decided Bruton, we must face the honest consequence of what it holds.

I d. at 192-93 (citations omitted). The honest consequence of Bruton is that hearsay that

is inadmissible against the defendant under the rules of evidence, yet still put before the



                                               8
No. 91331-5
Madsen, C.J., dissenting


jury, violates the confrontation clause in a joint jury trial because it is harmful. In

contrast, Roberts declared that certain hearsay-admissible under a hearsay exception-

nonetheless violates the confrontation clause because it is unreliable. Therefore, the

interlocking nature of the codefendants' confessions-much like the interlocking nature

ofNollette's and Wilcoxon's alleged confessions-was relevant to whether a

codefendant's statement could be admitted against the defendant, but not relevant to the

prejudice of putting an inadmissible statement before the jury in a joint trial. What Cruz

makes clear is that the Roberts reliability test had no effect on the Bruton doctrine, which

protects against harm. 6

       In 2004, the Court decided Crawford, which overruled Roberts. The Court

abandoned the "adequate indicia of reliability" test and held that in order to admit an out-

of-court testimonial statement, the person against whom it is admitted must have had the

opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68-69. Central to the

decision was the meaning of"witnesses against." Id. at 42-43. Citing the history ofthe

confrontation clause, the Court found that to witness against someone is to "'bear

testimony.'" !d. at 51 (quoting 2 NOAH WEBSTER, AN AMERICAN DICTIONARY OF THE


6
  The concurrence states "[i]fthe confrontation clause does not apply, then the admissibility of
those statements is governed by traditional rules of evidence." Concurrence at 2. This statement
highlights the problem of trying to force Bruton through the lens of Crawford because how can
the Rules of Evidence apply to evidence not offered against Wilcoxon, but that nonetheless
results in spillover prejudice? For example, ER 403 would not bar the admission ofNollette's
statements against Nollette because they were more prejudicial than probative to Wilcoxon. The
Rules of Evidence would prevent the jury from hearing Nellette's statements only if Wilcoxon
were tried separately.



                                                9
No. 91331-5
Madsen, C.J., dissenting


ENGLISH LANGUAGE       (1828)). While leaving a comprehensive definition of"testimont'

for another day, it included at least "prior testimony at a preliminary hearing, before a

grand jury, or at a former trial; and to police interrogations." !d. at 68. The effect of

Crawford was that if a statement offered against a defendant at trial was not testimonial,

and no other evidentiary or procedural rule operated to exclude it, the confrontation

clause would not bar its admission. !d.

       Notably, Crawford did not address the confrontation clause as it related to the

prejudice stemming from inadmissible evidence being put before the jury in a joint trial.

In fact, in Crawford, which many courts hold limits Bruton only to testimonial

statements, the Court explicitly acknowledged that Crawford and Bruton address

different concerns. Referencing Parker, a Bruton case, the Court noted, "Our only

precedent on interlocking confessions had addressed the entirely different question

whether a limiting instruction cured prejudice to codefendants from admitting a

defendant's own confession against him at trial." Crawford, 541 U.S. at 59 (first

emphasis added). Although testimonial hearsay is the primary object of the confrontation

clause, that is not its sole concern, and Crawford implicitly, if not explicitly, found the

Sixth Amendment offers different protections. !d. at 53.

        Davis further delineated the testimonial/nontestimonial dichotomy, holding that

statements made to police officers "under circumstances objectively indicating that the

primary purpose" is to assist officers in meeting an ongoing emergency are

nontestimonial. 547 U.S. at 822. On the other hand, statements given under



                                              10
No. 91331-5
Madsen, C.J., dissenting


circumstances that indicate "that the primary purpose of the interrogation is to establish

or prove past events potentially relevant to later criminal prosecution" are testimonial.

ld. Finally, in Whorton v. Bockting, the Court stated that "[u]nder Crawford . .. the

Confrontation Clause has no application to [nontestimonial] statements and therefore

permits their admission even if they lack indicia of reliability." 549 U.S. 406, 420, 127 S.

Ct. 1173, 167 L. Ed. 2d 1 (2007) (emphasis added). Whorton reaffirms that Roberts,

Crawford, and Davis dealt with admissibility and reliability, not harmfulness.

       In summary, under Crawford, a codefendant's nontestimonial confession, which

the trial court properly determines is admissible against the defendant, will not be barred

by the confrontation clause. However, if the trial court rules that the nontestifying

codefendant's nontestimonial confession, which implicates the defendant, is inadmissible

against the defendant, Bruton dictates that the confession either not be introduced or be

redacted to eliminate even the existence of an accomplice, or that a severance be granted.

Gray v. Maryland, 523 U.S. 185, 192, 118 S. Ct. 1151, 140 L. Ed. 2d 294 (1998). As one

court summarized,

        Crawford ensures the procedural guarantee of the Confrontation Clause by
        requiring that the reliability of testimonial hearsay presented against the
        defendant be assessed in a particular manner, i.e., by testing in the crucible
        of cross-examination. Bruton, and its progeny, on the other hand, act to
        neutralize the incriminating effect on the defendant of properly admitted
        confessions from a non-testifying co-defendant presented against the co-
        defendant at a joint trial.

 Commonwealth v. Whitaker, 878 A.2d 914, 922 (Pa. Super. Ct. 2005) (citation omitted).




                                              11
No. 91331-5
Madsen, C.J., dissenting


       Following the trend that Bruton does not apply to nontestimonial statements, the

lead opinion finds company. But nowhere in Crawford, Davis, or Whorton did the Court

even mention Bruton, let alone overrule it. Because Bruton and Crawford address

different harms, I would decline to follow the siren call.

       I recognize it is both easy and tempting to decide that Bruton applies only if the

statement at issue is testimonial. However, I find such a result untenable under the case

law through which Bruton and Crawford evolved. It is contrary to Bruton's original

intent: to prevent the prejudice-incurable by a limiting instruction-that occurs when

the jury hears an incriminating confession or statement, properly admitted against the

codefendant yet inadmissible against the defendant, in a joint trial. IfNollette and

Wilcoxon had been tried separately, it would have been error for the trial judge to allow

the prosecutor to introduce Nollette's inadmissible confession at Wilcoxon's trial.

Evidence that would be inadmissible in a severed trial should not be put before the jury in

a joint trial solely because the confrontation clause would not bar its admission against

the defendant under a hearsay exception. The lead opinion's holding circumvents

Bruton's protections and makes manifest Justice Frankfurter's concern that the

prosecution receives the windfall of having inadmissible evidence against the defendant

heard by the jury.

        In this case, the question is not whether Noll~tte's statements are admissible

against Nollette-or Wilcoxon-which Crawford would answer. Rather, here we must

answer "the entirely different question" of how to "cure[] prejudice to codefendants from



                                              12
No. 91331-5
Madsen, C.J., dissenting


admitting a defendant's own confession against him in a joint trial." Crawford, 541 U.S.

at 59. The answer is nothing new: the trial court must either not allow the statements at

all, redact them to eliminate all reference to the defendant, or grant a severance.

       The "primary object" of the Sixth Amendment to the federal constitution is

testimonial hearsay, but that is not its sole concern. !d. at 53. It is not a static, solitary

clause. The confrontation clause is "multifaceted enough to support an independent

justification for the continued vitality of Bruton and its progeny." 30B CHARLES WRIGHT

& ARTHUR MILLER, FEDERAL PRACTICE & PROCEDURE§ 7034.1 n.5, at 500-01 (2011

ed.). Forcing Bruton through the lens of Crawford renders the constitutional protections

of Bruton irrelevant; it places Fifth Amendment protections over Sixth Amendment

protections. U.S. CONST. amends V, VI. Saying that Bruton applies only to testimonial

statements leads us to two equally unacceptable conclusions: either it is an implicit

admission that whether the jury hears inadmissible evidence in a joint trial no longer

matters, or it stands for the proposition that Crawford's transition to the

testimonial/nontestimonial dichotomy for confrontation clause purposes has somehow

granted juries the ability to effectively ignore inadmissible evidence-regardless of

whether it is testimonial or not-when deciding the guilt or innocence of the defendant.

These I cannot accept. Therefore, I conclude that the introduction of nontestimonial

codefendant statements in a joint trial, admissible only against the codefendant and that




                                                13
No. 91331-5
Madsen, C.J., dissenting


implicate the defendant, violates the defendant's confrontation clause rights and Bruton

applies. 7

        Because I would hold that Bruton applies to nontestimonial statements, it is

necessary to answer whether Nollette's statements implicated Wilcoxon, and whether that

error was harmless.

                                                II

        The protections of Bruton are triggered where the codefendant's statements

facially incriminate the defendant. Marsh, 481 U.S. at 211. If Bruton applies and a

violation occurs, that constitutional error is subject to a harmless-error analysis.

Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969).

Therefore, I must answer the question of whether Nollette's reference to his "friend" in

his confession implicates Wilcoxon. If it does not, then there was no constitutional error.

If "friend" does implicate Wilcoxon, then it is necessary to determine whether or not the

error was harmless. Because "friend" is an obvious reference to Wilcoxon, and because

the remaining untainted evidence was not overwhelming as to guilt, I would hold the

error was not harmless.

        In addressing whether "friend" implicates Wilcoxon, Marsh and Gray guide my

analysis. In Marsh, the Supreme Court addressed the issue of whether a redacted

confession that does not actually name the defendant is incriminating for purposes of

7
  Due process offers another avenue through which to enforce Bruton; however, given the case
law and the different protections afforded, the confrontation clause is still an appropriate means
to ensure Bruton's protections.



                                                 14
No. 91331-5
Madsen, C.J., dissenting


Bruton. 481 U.S. at 203. The case involved a joint inurder trial of petitioner Marsh and

her codefendant, Williams. The trial court admitted the confession of Williams against

him, but redacted it to "'omit all reference' to his codefendant, Marsh-' indeed, to omit

all indication that anyone other than ... Williams' and a [named] third person had

'participated in the crime."' Gray, 523 U.S. at 190-91 (first alteration in original)

(quoting Marsh, 481 U.S. at 201). The Court held that "admission of a nontestifying

codefendant's confession with a proper limiting instruction" that was "redacted to

eliminate not only the defendant's name, but any reference to his or her existence" did

not implicate Bruton and thus did not violate the confrontation clause. Marsh, 481 U.S.

at 211.

          The Court revisited the issue in Gray and further refined the parameters of

Bruton's reach. In Gray, the confession at issue substituted blanks or the word "deleted"

for defendant Gray's name. 523 U.S. at 188. The Court held that this "so closely

resemble[d] Bruton's unredacted statements" that it fell within Bruton's protective rule.

!d. at 192. Finding that the jury will "often realize that the confession refers specifically

to the defendant," the Court reasoned:

          A juror somewhat familiar with criminal law would know immediately that
          the blank, in the phrase "I, Bob Smith, along with , robbed the bank,"
          refers to defendant Jones. A juror who does not know the law and who
          therefore wonders to whom the blank might refer need only lift his eyes to
          Jones, sitting at counsel table, to find what will seem the obvious answer, at
          least if the juror hears the judge's instruction not to consider the confession
          as evidence against Jones, for that instruction will provide an obvious
          reason for the blank. A more sophisticated juror, wondering if the blank
          refers to someone else, might also wonder how, if it did, the prosecutor



                                                15
No. 91331-5
Madsen, C.J., dissenting


       could argue the confession is reliable, for the prosecutor, after all, has been
       arguing that Jones, not someone else, helped Smith commit the crime.

Id. at 193. Although the Court conceded some inference would be necessary to connect

the redacted confession with the defendant, it stated that "inference pure and simple

cannot make the critical difference ... "and that "[Marsh] must depend in significant part

upon the kind of, not the simple fact of, inference." Id. at 195-96. The Court went on to

hold that the inferences at issue involve statements that "despite redaction, obviously

refer to someone, often obviously the defendant, and which involve inferences a jury

ordinarily could make immediately, even were the confession the very first item

introduced at trial." Id. at 196.

       Marsh and Gray left open the question of whether the use of neutral pronouns may

be used instead of a blank space or the word "deleted" and still satisfy Bruton. In Marsh,

the Court "express[ed] no opinion on the admissibility of a confession in which the

defendant's name has been replaced with a symbol or neutral pronoun." 481 U.S. at 211

n.S. Later, dicta in Gray mused about whether neutral pronouns might be substituted

when the majority wondered why the confession could not have been altered to read,

"Me,          and a few other guys." Gray, 523 U.S. at 192.

        Neither the Supreme Court nor this court have addressed this scenario, but our

Court of Appeals has. In State v. Medina, 112 Wn. App. 40, 51, 48 P .3d 1005 (2002), the

court affirmed the admission of the codefendant's statement because the redactions were

so varied ("'other guys,"' '"the guy,"' "'one guy,"' and "'they'") among six possible

accomplices that it was impossible to clearly infer that one codefendant's statement

                                              16
No. 91331-5
Madsen, C.J., dissenting


referred to either the appellant or the other codefendant. In contrast, in a joint trial of

three defendants, where the State introduced two codefendants' confessions admitting

that "we" saw a good service station to rob, "we" pulled around the corner, and "we" got

out of the car, the court held that it was improper to admit the statements against the third

codefendant because a jury could "readily conclude that [the defendant] was included in
                                                '

the 'we's' ofthe codefendants' statements." State v. Vannoy, 25 Wn. App. 464,473-75,

610 P.2d 380 (1980). Similarly, the Court of Appeals has rejected the use of an "other

guy" redaction where only two accomplices committed the crime and only two

defendants were on trial. State v. Vincent, 131 Wn. App. 147, 154, 120 P.3d 120 (2005).

Finally, in State v. Fisher, 184 Wn. App. 766, 770, 774-76, 338 P.3d 897 (2014), review

granted, 183 Wn.2d 1024, 355 P.3d 1153 (2015), thecourt found that changing the

defendant's name to "'the first guy'" was an insufficient redaction under Bruton because

the only reasonable inference the jury could have drawn is that the defendant was "the

first guy." It is clear from our lower courts' interpretation of Marsh and Gray that what

is important is not the form the redaction takes, but rather whether it obviously refers to

the defendant. 8


8
  Circuit courts, on the other hand, have interpreted Gray such that the use of a neutral pronoun
in lieu of a redaction satisfies Bruton. For example, the Sixth Circuit, in United States v.
Winston, acknowledged that "several of our sister circuits have noted that a Bruton violation can
be avoided by replacing the co-defendant's name with a neutral pronoun or other generalized
phrase." 55 F. App'x 289, 294 (6th Cir. 2003). I would decline to adopt the bright line rule of
some circuit courts that a neutral pronoun always satisfies Bruton, and hold that whatever the
form of the redaction, it must be clear that the redaction does not obviously refer to the
defendant.



                                                17
No. 91331-5
Madsen, C.J., dissenting


       Applying that rule to this case, the State's theory was that only two people

committed this crime. Even though Nollette's use of the word "friend" is not an obvious

redaction and does not implicate Wilcoxon by name, it obviously refers to him, and

therefore falls within the category of redactions or substitutions forbidden by Bruton.

The only inference necessary would be for the juror to look over at Mr. Wilcoxon sitting

at counsel table. It is an obvious, immediate inference of the kind described in Gray, 523

U.S. at 193. For if"friend" referred to someone else, and the State's position was that

only two people committed this crime, then for what other reason would Wilcoxon be on

trial if he was not the "friend" being referenced? 9 At oral argument, in reference to

whether "friend" implicated Mr. Wilcoxon, counsel for the State conceded that "given the

fact that there are only two defendants on trial, perhaps the jury would naturally assume

that the statement did refer to Mr. Wilcoxon." Wash. Supreme Court oral argument,

State v. Wilcoxon, No. 91131-5 (Sept. 10, 2015), at 20 min., 3 sec., audio recording by

TVW, Washington State's Public Affairs Network, http://www.tvw.org. Given the

standard set forth by Marsh and Gray, Nollette's confession that he and a "friend" had

robbed the casino implicates Wilcoxon and falls within the scope of Bruton.

        The admission ofNollette's statements during his joint trial with Wilcoxon

amounted to constitutional error. It is now necessary to determine whether or not that

error was harmless.

9
 Even if the jury did not know the State's position, Nollette's confession only implicates himself
and Wilcoxon. The natural result of that is that even if the confession were the first piece of
evidence presented at trial, the jury would know it referred to Wilcoxon.



                                                18
No. 91331-5
Madsen, C .J., dissenting


        I disagree with the lead opinion's conclusion that even ifthere were a Sixth

Amendment violation, "any feared error was harmless beyond a reasonable doubt." Lead

opinion at 15. A constitutional error is presumed to be prejudicial, and the State bears the

burden of proving harmless error. State v. Guloy, 104 Wn.2d 412, 425, 705 P.2d 1182

(1985). "[B]efore a federal constitutional error can be held harmless, the court must be

able to declare a belief that it was harmless beyond a reasonable doubt." Chapman v.

California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967); see also State v.

Watt, 160 Wn.2d 626, 635, 160 P.3d 640 (2007) ("A constitutional error is harmless if the

appellate court is convinced beyond a reasonable doubt that any reasonable jury would

have reached the same result in the absence ofthe error." (citing Guloy, 104 Wn.2d at

425)). The test is whether the untainted evidence is so overwhelming that it necessarily

leads to a finding of guilt. State v. Lui, 179 Wn.2d 457, 495, 315 P .3d 493, cert. denied,

134 S. Ct. 2842 (2014). Under that test, "a conviction will be reversed where there is any

reasonable possibility that the use of inadmissible evidence was necessary to reach a

guilty verdict." Guloy, 104 Wn.2d at 426. Nollette'_s confession was necessary to reach a

guilty verdict; the remaining untainted evidence was not so overwhelming that his

conviction was inevitable.

        This court first adopted the "'overwhelming untainted evidence"' test in Guloy,

because that test allows appellate courts to avoid reversal based on a technicality while

still ensuring a conviction will be reversed if the improper evidence was necessary to

 convict. Id. In Guloy, the admission of two out-of-court statements by a subsequently



                                              19
No. 91331-5
Madsen, C.J., dissenting


arrested suspect violated the codefendants' confrontation clause rights. Id. at 424-25.

This court held the error harmless because the remaining untainted evidence consisted of

(1) testimony from a witness who observed the defendants leaving the scene of the

murder and (2) the dying declaration of one of the victims identifying the defendants as

his attackers. Id. at 415,426.

       The following year, in State v. Hieb, 107 Wn.2d 97, 109-10, 727 P.2d 239 (1986),

we reaffirmed our adherence to the "overwhelming untainted evidence" test. The

defendant, Hieb, was convicted of the murder of his girlfriend's 20-month-old daughter.

!d. at 98. Without deciding the confrontation clause_ issue presented, this court held that

any error was harmless. Id. at 111-12. Even excluding the potentially tainted evidence,

the untainted evidence included ( 1) testimony of medical examiners regarding numerous

injuries sustained in the three months prior to her death-injuries which could not be self-

inflicted by a 20-month-old child, (2) statements from the victim's older sister that Hieb

had hit the child in the stomach and put a pillow over her face, (3) dents and blood on the

apartment walls, and (4) the neighbor's testimony that four days before her death, when

Hieb was alone with the girls, they heard what sounded like doors slamming for 45

minutes. !d. at 110-11.

        In Watt, 160 Wn.2d at 637, this court held a confrontation clause violation was

harmless error because the untainted evidence satisfied our harmless error test.

Defendant Watt challenged her conviction for manufacture of methamphetamine,

possession of methamphetamine, and second degree criminal mistreatment. !d. at 628.



                                             20
No. 91331-5
Madsen, C.J., dissenting


The State improperly introduced her codefendant husband's statements that he had made

anhydrous ammonia and that he had made methamphetamine while the children were on

the property. Id. at 630. However, the remaining untainted evidence included (1)

methamphetamine in Watt's wallet and bedroom, (2) extensive evidence of a

methamphetamine lab in the garage, (3) testimony from the defendant's stepdaughter that

she lived on the property and Watt sometimes went into the garage, and (4) testimony

from a paint store employee that Watt purchased five gallons of toluene-a key

ingredient for making methamphetamine-amounting to a two-year supply for a

professional painter. Id. at 637-38.

       In State v. Anderson, 171 Wn.2d 764, 766,   2~4   P.3d 815 (2011), the defendant

was tried for child molestation. Testimony of another alleged victim of the defendant

was introduced through a nurse practitioner who had examined him. The State conceded

that the statements were testimonial and the issue was whether it was harmless error. Id.

at 769-7 0. The remaining untainted evidence consisted of ( 1) unrefuted testimony by the

victim of the molestation, which was corroborated by a counselor to whom the

molestation was disclosed and a police detective, and (2) the defendant's statements that

he had molested a different child on at least two prior occasions. Id. at 770. In light of

the overwhelming evidence, this court found the error harmless. !d.

        Finally, in Lui, 179 Wn.2d at 494-95, we found a confrontation clause violation in

the admission of a toxicology report and statements taken from an autopsy. Again we

held the error was harmless. Id. at 497. The toxicology report was irrelevant as to the



                                             21
No. 91331-5
Madsen, C.J., dissenting


charges against the defendant, and the statements taken from the autopsy report were

largely corroborated by properly admitted evidence. I d. at 496-97. Furthermore, the

remaining "untainted evidence necessarily led to a finding of guilt." Id. at 497. A

sampling of the remaining evidence included (1) DNA evidence linking the defendant to

the murder, (2) evidence that a bloodhound led investigators directly to the defendant, (3)

numerous inconsistencies in the testimony of the defendant, detracting from his

credibility, and (4) "evidence suggesting that [the victim] had died before she could dress

or put on her customary makeup; evidence suggesting that [she] had been dressed and her

bags packed by 'somebody who doesn't know anything about women."' I d.

       In addition to this court's harmless error jurisprudence, a look back at Harrington,

395 U.S. at 254, the case in which the Supreme Court first applied the harmless error

analysis to a Bruton violation, is helpful. In Harrington, four men were tried jointly for

attempted robbery and first degree murder. Two codefendant confessions implicating

Harrington were admitted against the codefendants. I d. at 252. Finding a Bruton

violation, the Court went on to examine whether the· error was harmless beyond a

reasonable doubt. The untainted evidence included (1) petitioner's own statements

placing him at the scene of the crime, admitting that one of the codefendants was the

trigger man, that he fled with the other codefendants, and that he dyed his hair and shaved

his mustache after the murder, (2) testimony of several eye witnesses placing him at the

scene of the crime, and (3) testimony of one defendant who took the stand, placing

Harrington in the store with a gun at the time of the robbery and murder. Id. at 252-53.



                                             22
No. 91331-5
Madsen, C.J., dissenting


The Court found the inadmissible confessions cumulative and the remaining untainted

evidence so overwhelming that to call it harmless error would be to say that any Bruton

violation is per se error. Id. at 254.

         These cases illustrate the type and strength of the remaining untainted evidence

necessary to find harmless error. The untainted evidence here rises nowhere near this

level.

         In making a harmless error determination, we will review the entire record.

United States v. Hasting, 461 U.S. 499, 509, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983).

The trial transcript reveals that-contrary to the majority's conclusion-Gary Solem's

testimony (N ollette' s confession) was vital to the State's case. 10 During direct

examination of Solem, the State repeatedly elicited testimony regarding what N ollette

told him about his "friend." The prosecutor led Solem's testimony back to the "friend"

no less than eight times. B Verbatim Report of Proceeding (VRP) at 303-07, 312 (Jan. 8,

2014). In closing argument, the State relied heavily on Solem's testimony regarding the

"friend." See, e.g., D VRP at 687 (Jan. 10, 2014) ("When his friend asked him, what-

what place would you hit? He not only recommended a casino, he recommended [Lancer

Lanes]."), 690 ("[I]sn't it interesting that [Eric Bomar] comes into nearly $15,000, and

isn't that the number that Mr. Nollette specifically mentioned to Mr. Solem when he was

saying that his friend owed a guy money and he stated it was $15,000?"), 689

 10
  Although we look only to the untainted evidence to detennine whether any jury would find the
defendant guilty beyond a reasonable doubt, the inadmissible evidence is still important insofar
as how it would have affected the remaining untainted evidence at trial.



                                              23
No. 91331-5
Madsen, C.J., dissenting


("[R]emember, he told Mr. Solem, my friend committed the burglary, he called me while

the burglary was being committed."). In the State's rebuttal closing argument, when

referring to Solem's testimony, the prosecutor argued, "And the big thing: only one

person called Mr. Nollette. Mr. Nollette said he got a call from the burglar during the

commission of the crime. There's only one person that called Mr. Nollette during the

time ofthe burglary." Id. at 734. The State repeatedly hammered home the point that

Solem testified that Nollette said he received a phone call from his friend. See, e.g., id. at

744 ("he gets a call from his friend saying, hey, dude, I'm in [Lancer Lanes] and I'm

doing it"; "He tells [Solem] I got a call from my friend while he was committing the

burglary."); see also id. at 732, 736, 742. It is clear that Solem's testimony greatly

strengthened the State's case.

       The lead opinion concludes beyond a reasonable doubt that any jury would have

convicted Wilcoxon based on two pieces of evidence: Wilcoxon's statements to Bomar,

and the circumstantial corroboration of the call log between Wilcoxon and Nollette by the

surveillance video. Lead opinion at 15.

        The first piece of evidence the lead opinion cites is Bomar's testimony that

Wilcoxon "bragged [to him] that he burgled Lancer Lanes" and described the burglary.

I d. However, contrary to the lead opinion's assertions, there is nothing in Bomar's

testimony about Wilcoxon "bragging" about the burglary:


        Q. Do you, ah--do you recall-ah, can you state whether or not you recall
           him saying, ah--he used the words "pulled it off'?
        A. Ah, it was-honestly, not exactly, but it was something to that effect.


                                              24
No. 91331-5
Madsen, C.J., dissenting




       Q. Can you state whether or not you told [Sergeant Richard Muszynski],
              ah, that [Wilcoxon] said, "We pulled it off'?

       A. Ah, honestly, I'm not sure the exact verbiage. It was I or we. Ah-
       Q. -Do you-can you state whether or not you recall him using the-
          the-the term "Lancer thing"?
       A. I believe that was used, yes.

C VRP at 505 (Jan. 9, 2014).

       As to Bomar's recounting of Wilcoxon's description ofthe burglary, it is minimal

at best:

           Q. Had you ever heard Mr. Wilcoxon and Mr. Nollette discuss, ah, the
              Lancer Casino and how easy it would be to-to break into and-and
              steal the money?
           A. Yes.
           Q. Okay. Did they talk about, ah-what did they talk about about that?
           A. Ah, the same as everyone else. Just, ah, that there wasn't much security
              and that it would be fairly simple to do. ·

           Q. Did Mr. Wilcoxon describe how he got into the building?
           A. Ah, something about the backdoor and security cameras.
           Q. And what about the security cameras?
           A. Ah, that they were killed.
           Q. Okay. Did he indicate how he killed the security cameras?
           A. Ah, not really. Ah, down-like going downstairs or something like
           that.
           Q. Did he say, ah, what he did then?
           A. Ah-ah, went to the cage and got the money.
           Q. Did he say how he got into the cage?
           A. Ah, as far as I recollect, ah, there were keys involved.
           Q. Did he say how much was taken?
           A. No.

!d. at 506-07. Perhaps more importantly, Bomar's testimony is inherently suspect. In

addition to numerous inconsistencies, Bomar was the one initially under scrutiny from

law enforcement, and he was the one who deposited $15,000 in his bank account in the


                                                25
No. 91331-5
Madsen, C.J., dissenting


days following the robbery. 11 In his first interview with investigators, he denied knowing

anything about the robbery. Then, after the recorder was turned off, he was told that if he

did not cooperate, charges would be filed against him and he could go to jail. On cross-

examination, Bomar testified that he was threatened to say what the investigators were

asking him to say. This was confirmed on redirect examination:

       Q. [I]sn't it true that they told you that they didn't have any interest in
          charging you, they just wanted you to be honest?
       A. Ah, that is incorrect. I was made very aware of the possible charges
          that could come against me.

!d. at 541.

       Bomar's testimony is the strongest evidence that Wilcoxon committed the crime.

However, I cannot say that the inconsistent testimony of an initial suspect, given under

threat of being prosecuted himself, and guided by the State's leading questions, would

lead any jury to necessarily find Wilcoxon guilty beyond a reasonable doubt. Moreover,

the defense elicited testimony regarding evidence of three other suspects who may have

been the burglar captured on the surveillance footage. It is Nollette's confession

implicating Wilcoxon that gives strength to Bomar's testimony.

        The second piece of evidence on which the lead opinion relies is the call log

between Wilcoxon and Nollette. The lead opinion says that Nollette's statements to

Solem "merely corroborated the cell phone calls that Wilcoxon made to Nollette during

the time ofthe burglary." Lead opinion at 15. "[T]hese calls were already

 11
   Even the State's own money laundering expert could not determine where the $15,000 Bomar
 deposited came from.



                                              26
No. 91331-5
Madsen, C.J., dissenting


circumstantially corroborated by the surveillance video and the cell phone records." Jd.

This too, is not supported by the record. Sergeant Muszynski testified that three phone

calls between Wilcoxon and Nollette took place during the burglary: one at 1:59:54 a.m.

lasting 84 seconds, one at 2:07a.m. lasting 69 seconds, and one at 2:08a.m. lasting 74

seconds. That is almost four minutes of call time, one-third of the total time the suspect

was in the casino. Sergeant Muszynski also testified to the three surveillance cameras

that recorded the burglary. At no point during the burglary is the suspect seen holding or

speaking on a cell phone. Only Nollette's improperly admitted statements combined with

the cell phone records allow the jury to conclude that the man behind the garbage bag-

who the surveillance video never shows talking on aphone-was Wilcoxon.

       Unlike the remaining untainted evidence in Guloy, Hieb, Watt, Anderson, Lui, and

Harrington, we do not have such "overwhelming untainted evidence" here. Without

Nollette's confession, the State's case against Wilcoxon is "woven from circumstantial

evidence." Harrington, 395 U.S. at 254. Nollette's confession adds credibility to

Bomar's testimony and strengthens the fabric of the remaining circumstantial evidence.

As the lead opinion points out, "before a constitutional error can be harmless, the State

must show 'beyond a reasonable doubt that the error complained of did not contribute to

the verdict obtained."' Lead opinion at 14 (quoting Chapman, 386 U.S. at 24).

Admittedly, there is some evidence remaining against Wilcoxon. However, the test is not

that of "some" evidence of guilt, or even "a lot" of evidence of guilt, it must be

"overwhelming." Anything less than overwhelming evidence of guilt runs the risk of



                                             27
No. 91331-5
Madsen, C.J., dissenting


invading the province of the jury, a concern we articulated in State v. Robinson, 24

Wn.2d 909,917, 167 P.2d 986 (1946):

       Jurors and courts are made up of human beings, whose condition of mind
       cannot be ascertained by other human beings. Therefore, it is impossible
       for courts to contemplate the probabilities any evidence may have upon the
       minds of the jurors. The state attempts to safeguard the life and liberty of
       its citizens by securing to them certain legal rights. These rights should be
       impartially preserved. They cannot be impartially preserved if the appellate
       courts make of themselves a second jury and then pass upon the facts.


Although the lead opinion claims, "Nollette's statements were unimportant to the State's

case," lead opinion at 15, that is simply not true. I would conclude that the admission of

Nollette's statements, in violation of Bruton and the confrontation clause, was not

harmless error.

                                      CONCLUSION

       Bruton and Crawford address different concerns under the confrontation clause.

Bruton addresses the prejudice of having inadmissible codefendant statements put before

a jury in a joint trial. Crawford, on the other hand, addresses the proper means for

assessing the reliability of evidence admitted directly against a defendant. Because of

these distinctly different concerns and the protections that evolved in the case law to

guard against them, I would hold that Bruton and its progeny remain good law, applicable

even to nontestimonial statements.

        Here, Nollette confessed to Solem that he and a "friend" robbed the casino. Being

a joint trial, with only two defendants, "friend" obviously implicates Wilcoxon. This




                                             28
No. 91331-5
Madsen, C.J., dissenting


required application of Bruton's protections, and the trial court's failure to do so was

constitutional error.

       Nollette's confession played a crucial role in the State's case. Without it, the

remaining untainted evidence was not so overwhelming as to necessarily lead to a finding

of guilt, the constitutional harmless error standard. Accordingly, admitting Nollette's

confession violated Wilcoxon's confrontation clause rights, it was not harmless error, and

his conviction should be vacated. For these reasons, I respectfully dissent.




                                              29
No. 91331-5
Madsen, C.J., dissenting




                           30
