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Mayuyo v. State

Court of Appeals of Alaska

June 2, 2017

DIEGO BANTAY MAYUYO, Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, Unalaska, Patricia Douglass, Judge Trial Court No. 3UN-12-052 CR.

          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.

          OPINION

          MANNHEIMER, Judge

         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- 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.

         We 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.

         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 misleadingversion 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 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 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, "Iwas 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.

          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 j ail." Viado responded, "Yes." The defense attorney adhered to the superior court's ruling and did not try to cross-examine Viado ...


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