from the Superior Court, Third Judicial District, Unalaska,
Patricia Douglass, Judge Trial Court No. 3UN-12-052 CR.
Barr, Assistant Public Defender, and Quinlan Steiner, Public
Defender, Anchorage, for the Appellant.
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.
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- examining the 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.
agree with Mayuyo that the superior court's rulings on
this issue were improper, and that Mayuyo's trial was
rendered unfair because of these rulings. Mayuyo is therefore
entitled to a new trial.
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.
we conclude that the superior court committed error by (1)
allowing the State to present an altered and
misleadingversion of Mayuyo's out-of-court statement, and
by (2) prohibiting Mayuyo's attorney from asking
witnesses about the alteration
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.
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
Court's decision in Bruton v. United
States -because Mayuyo's statements directly
incriminated his co-defendant Balallo.
Bruton, as later modified by Richardson v.
Marsh,  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.
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.
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." The inmate understood Pease to be
referring to the murder that Pease and his co-defendant,
Marvin Roberts, were charged with committing.
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, "Iwas
fucked up" rather than "we were fucked
up". The superior court approved this approach:
the prosecutor was allowed to introduce the altered
statement, and the judge gave the jury a limiting
instruction. We affirmed the superior court's
decision on appeal.
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
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.
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."
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]."
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 j ail." Viado responded,
"Yes." The defense attorney adhered to the superior
court's ruling and did not try to cross-examine Viado