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Mayuyo v. State (6/2/2017) ap-2556

Mayuyo v. State (6/2/2017) ap-2556


                The text           of   this opinion can be corrected before the opinion is published in the                                           

               Pacific Reporter                   .   Readers are encouraged to bring typographical or other formal                                             

                errors to the attention of the Clerk of the Appellate Courts:    

                                                           303 K Street, Anchorage, Alaska  99501  

                                                                              Fax:  (907) 264-0878  

                                                                 E-mail:  corrections@  

                                  IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                   



                                                                                                                      Court of Appeals No. A-11786  


                                                              Appellant,                                           Trial Court No. 3UN-12-052 CR  


                                                                                                                                     O  P  I  N  I  O  N  



                                                              Appellee.                                                    No. 2556 - June 2, 2017  


                               Appeal   from  the   Superior   Court,  Third  Judicial                                                                 District,  


                               Unalaska, Patricia Douglass, Judge.  


                               Appearances:                       Sharon  Barr,  Assistant  Public  Defender,  and  


                               Quinlan Steiner, Public Defender, Anchorage, for the Appellant.  


                               Nancy R. Simel, Assistant Attorney General, Office of Criminal  


                               Appeals, Anchorage, and Craig W. Richards, Attorney General,  


                               Juneau, for the Appellee.  


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


                               Judge MANNHEIMER, writing for the Court.


                               Judge ALLARD, concurring.


                               Diego   Bantay   Mayuyo   appeals   his   conviction   for   first-degree   sexual  

assault.    He argues that the trial judge committed error                                                                           by   (1) allowing the State to                                

introduce an altered version of a statement that Mayuyo made to his roommate shortly                                                                                                    

after the alleged sexual assault, and by (2) prohibiting Mayuyo's attorney from cross-                                                                                                    

----------------------- Page 2-----------------------


examiningthe roommate about the alteration in the statement.  Mayuyo contends that the  


altered version of his out-of-court statement was substantially misleading (in a manner  


unfavorable to him), and that his trial was unfair because the trial judge prohibited his  


defense attorney from clarifying the misleading aspects of the altered version of the  




                    We agree with Mayuyo that the superior court's rulings on this issue were  


improper, and that Mayuyo's trialwas rendered unfair because of these rulings.  Mayuyo  


is therefore entitled to a new trial.  


                    Mayuyo also contends that the charge against him should be dismissed with  


prejudice because he was not brought to trial within the time limits of Alaska Criminal  


Rule 45.        For the reasons explained in this opinion,  we conclude  that Mayuyo was  


brought to trial within the time limits of Rule 45.  


           Why we conclude that the superior court committed error by (1) allowing  


          the State to present an altered and misleading version of Mayuyo's out-of- 


          court statement, and by (2) prohibiting Mayuyo's attorney from asking  


          witnesses about the alteration  


                    Mayuyo and his co-defendant, Ismael Balallo, were charged with sexually  


assaulting a woman named L.V. in Unalaska.   At Mayuyo's trial, the State wanted to  


introduce an out-of-court statement that Mayuyo made to his roommate, Rommel Viado,  


shortly after the alleged sexual assault.   According to Viado, Mayuyo told him several  


times, "We're going to jail."  However, Viado understood Mayuyo to be saying that he  


(Mayuyo) and Balallo were going to jail because of what Balallo had done.  


                    Because Mayuyo and Balallo were being tried together,  the prosecutor  


acknowledged  that  if  Viado  was  called  to  testify  about  Mayuyo's  out-of-court  


statements, this would raise a confrontation problem under the United States Supreme  

                                                              - 2 -                                                          2556

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Court's decision in                 Bruton v. United States                       - because Mayuyo's statements directly                        

incriminated his co-defendant Balallo.                                 

                                                                                                                        2  the Supreme Court  

                        In  Bruton, as later modified by                        Richardson v. Marsh                    ,                            

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.  


                        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."  


                                                                                               4   The inmate understood Pease to  

Pease responded, "We were fucked up.  It was bad."  


      1     391 U.S. 123, 126, 128-29; 88 S.Ct. 1620, 1623-25; 20 L.Ed.2d 476 (1968).                                                

      2     481 U.S. 200, 211; 107 S.Ct. 1702, 1709; 95 L.Ed.2d 176 (1987) (limiting Bruton to  


instances where  the confession of the non-testifying co-defendant directly implicates the  




      3     Richardson , 481 U.S. at 208-211, 107 S.Ct. at 1707-09.  See also Pease v. State , 54  


P.3d 316, 327 (Alaska App. 2002), where this Court explained and summarized the Supreme  


Court's decision in Richardson v. Marsh .  




            Id . at 327-28.  

                                                                           - 3 -                                                                      2556

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be   referring to         the   murder   that   Pease   and   his   co-defendant,   Marvin   Roberts,   were  

charged with committing.                5  

                     Pease and Roberts were tried jointly, and the prosecutor recognized that  


Bruton barred the admission of Pease's out-of-court statement to the fellow inmate.  To  


circumvent  this  Bruton  problem,  the   prosecutor  suggested  paraphrasing  Pease's  


statement: the fellow inmate would be instructed to testify that Pease said, "I was fucked  


                                                           6   The superior court approved this approach:  the  

up" rather than "we were fucked up".  


prosecutor was allowed to introduce the altered statement, and the judge gave the jury  


                                 7   We affirmed the superior court's decision on appeal. 8  

a limiting instruction.  


                     In Mayuyo's case, the prosecutor proposed a similar approach to Viado's  


testimony about Mayuyo's out-of-court statements.  The prosecutor suggested (1) that  


she would not ask Viado about Mayuyo's direct accusations against Balallo, and (2) that  


Viado should be instructed to testify that Mayuyo said, "I'm  going to jail," rather than  


"We're going to jail."  


                     Mayuyo's defense attorney objected that this alteration would significantly  


change the meaning of Mayuyo's out-of-court statement.  As we have explained, Viado  


understood Mayuyo to be saying that he (Mayuyo) would be going to jail because of  


what Balallo had done.  But if the statement was altered as the prosecutor proposed, and  


if (as required by Bruton) no one could ask Viado to clarify that Mayuyo had been  


accusing Balallo of sexual assault, then Mayuyo's altered statement would appear to be  


an admission of Mayuyo's own wrongdoing.  


     5    Ibid.   

     6    Id.  at  328.  

     7    Ibid.  

     8    Id. at 329.  


                                                                 - 4 -                                                           2556

----------------------- Page 5-----------------------


                     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  




                     After the judge issued this ruling, Mayuyo's attorney asked if he would be  


allowed to cross-examine Viado to elicit the fact that, when Mayuyo spoke about going  


to jail, he was referring mainly to what Balallo had done.  The trial judge answered no.  


 She told the defense attorney, "[My] ruling ... definitely preclude[s] you from addressing  


that [point] in your cross-examination.  Because, otherwise, there would be no point [in  


altering Mayuyo's statement]."  


                     Later,  when Viado took the stand at Mayuyo's and Balallo's  trial,  the  


prosecutor asked Viado if Mayuyo had said he was "concerned about going to  jail."  


Viado responded, "Yes."  The defense attorney adhered to the superior court's rulingand  


did not try to cross-examine Viado about the reasons Mayuyo gave for fearing that he  


would go to jail.  


                     In closing argument, the prosecutor relied on this evidence to argue that  


Mayuyo "knew what happened that night was bad",  and that  Mayuyo was already  


"talk[ing] about going to jail".  


                     We conclude that the superior court erred by allowingthe State to introduce  


this altered version of Mayuyo's out-of-court statement.   The alteration of Mayuyo's  


statement  certainly  protected  Balallo's  confrontation  rights  under  Bruton.                                       But  the  


alteration was unfair to Mayuyo.  Compared to Mayuyo's original statement, the altered  


version made it appear that Mayuyo was incriminating himself to a significantly greater  



                                                               - 5 -                                                          2556

----------------------- Page 6-----------------------


                    Richardson v. Marsh allows a trial judge to resolve a Bruton problem by  


letting  the  government  introduce  an  altered  version  of  a  defendant's  out-of-court  


statement.   But the judge must take care that the altered version of the statement still  


accurately reflects what the defendant was saying about the defendant's own culpability.  


                    Here,  the  altered  version  of  Mayuyo's  statement  no  longer  accurately  


conveyed the sense of Mayuyo's original statement.                                   The altered version materially  


misrepresented what (according to Viado) Mayuyo had said about his own involvement  


in the crime.  The trialjudge therefore committed error by allowing the State to introduce  


that altered version.  


                    The State makes no argument that this error was harmless - and, in any  


event, we conclude from our independent review of the record that this error was not  


harmless beyond a reasonable doubt.  Accordingly, we reverse Mayuyo's conviction.  


           Why we conclude that Mayuyo was brought to trial within the time limits  


          of Criminal Rule 45  


                    Mayuyo separately argues that he is entitled to dismissal of his case with  


prejudice because he was not brought to trial within the time limits of Alaska Criminal  


Rule 45.  


                    Mayuyo's  speedy  trial claim  hinges  on  the  resolution  of  one  question:  


whether the superior court abused its discretion when it delayed Mayuyo's trial by 31  


days so that Mayuyo's trial could remain joined with the trial of his co-defendant Balallo.  


For the reasons we explain here, we conclude that the superior court's ruling does not  


constitute an abuse of discretion.  

                                                              - 6 -                                                          2556

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                        The Rule 45 speedy trial calculation began when Mayuyo was served with                                                     


the criminal complaint on March 29, 2012.                                                                                                          

                                                                              Thus, Day 1 of the Rule 45 calculation was  


March 30, 2012, and the projected 120th day - i.e., the projected last day for bringing  



Mayuyo to trial - was July 27, 2012.  

                        At a pre-indictment hearing on April 6th, Mayuyo's attorney asked for a  


continuance to pursue further investigation of the case.  Without objection, the court set  


Mayuyo's next pre-indictment hearing for May 1, 2012.  The defense attorney's request  


tolled the Rule 45 clock for 25 days - or, rather, the speedy trial clock would have been  


tolled for 25 days, except for the fact that Mayuyo was indicted and then arraigned on  


that indictment before the scheduled May 1st pre-indictment hearing.  


                        The grand jury indicted Mayuyo on April 13, 2012, and Mayuyo's superior  


court arraignment took place four days later, on April 17, 2012.  Because Mayuyo was  


arraigned on his indictment before the requested 25 days elapsed, the Rule 45 clock was  


only tolled for the 12 days from April 6th to April 17th (inclusive).  


                        At Mayuyo's arraignment on April 17th, the superior  court erroneously  


calculated the Rule 45 expiration date to be July 28, 2012 (a Saturday).  This calculation  


mistakenly gave the State 121 days to bring Mayuyo to trial, rather than 120 days, but  


neither party objected.  


                        The superior court's calculation also mistakenly failed to exclude the 12- 


day period that was tolled because of Mayuyo's request for a continuance of the pre- 


indictment hearing.   With the added 12 days,  the actual Rule 45 expiration date was  


August 8, 2012.  


      9     See  Criminal Rule 45(c)(1).                     

      10    See Criminal Rule 40(a):  "Except as otherwise specifically provided ... , in computing  


any period of time, the day of the act or event from which the  designated period of time  


begins to run is not to be included."  


                                                                         - 7 -                                                                    2556

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                     Mayuyo and his co-defendant Balallo were scheduled to be tried together.  


But at the beginning of July, the State alerted the superior court that there was a potential  


severance problem:  the State believed that one co-defendant would be ready for the  


scheduled trial, while the other would ask for a continuance.  The State suggested that  


the trial of both defendants be delayed until early September 2012.  


                     On July 3rd,  the  parties appeared in court to discuss the possibility of  


delaying the trial.   Mayuyo's attorney announced that he was ready for trial,  and he  


objected to the proposed continuance.  However, this matter was not resolved on July  


3rd, and the court continued the hearing until July 5th (since July 4th was a holiday).  


                     Both Mayuyo and the State agree that the Rule 45 calculation was tolled for  


these additional two days.  This meant that the actual Rule 45 expiration date was now  


August 10, 2012.  


                     On July 5th, the superior court ruled  that  Mayuyo's trial should remain  


joined with his co-defendant Balallo's trial, and that this joint trial should be continued.  


The superior court set the trial for the week of Monday, September 10th - the next  


scheduled trial calendar in Dutch Harbor.  


                     This scheduled trial date of September 10, 2012 was 31 days over the then- 


current Rule 45 expiration date of August 10th.  


                     The following month (on August 8th),  the superior  court held a status  


hearing regarding the feasibility of holding trial during the week of September 10th.  The  


parties  informed  the  court  that  they  were  encountering difficulties  in  making travel  


arrangements  and  in  securing hotel accommodations.                                  Without  objection,  the  court  


continued the trial until September 24, 2012.   And the trial did, in fact, begin that day.  


                     Given this series of events, Mayuyo was brought to trial within the time  


limits of Criminal Rule 45 unless the superior court committed error when, in response  

                                                               - 8 -                                                          2556

----------------------- Page 9-----------------------

to   the   State's   July   motion   for   a   continuance,   the   court   rescheduled   Mayuyo's   and  

Balallo's joint trial for September 10th.                                                           

                                  The   provision   of   Rule   45   that   applies   to   the   superior   court's   ruling is   

 subsection (d)(5), which states that a "reasonable period of                                                                                   delay" shallbe                      excluded from  

the Rule 45 calculation if co-defendants are joined for trial and there is good cause for                                                                                                                       

not granting a severance.                                        

                                  In  Miller v. State                       , we explained that the Rule 45 clock will be tolled under                                                                   

 subsection   (d)(5)   only   if   the   trial   court   (1)   specifically   considers   the   question   of  

 severance, (2) concludes that the requested continuance will constitute only a "modest                                                                                                          

extension of the [Rule 45] time limits," and (3) concludes that holding a                                                                                                                 joint trial is           


important to the prosecution's case.                                                           

                                  In Mayuyo's case, the superior court expressly addressed the question of  


whether Mayuyo's and Balallo's trials should remain joined (and should be continued),  


or whether the trials should be severed.                                                               Applying the test that this Court established in  


Miller, the superior court concluded that delaying Mayuyo's trial until September 10,  


2012, constituted a modest extension of time, and that there was a significant interest in  


keeping Mayuyo's and Balallo's cases joined for trial.  


                                  Regarding this latter prongof the Miller test, the court noted that the State's  


evidence against the two co-defendants was "about as intertwined as you can [possibly]  


get."  The court also noted that, because the evidence against the two defendants was so  


closely connected, and because Dutch Harbor is a relatively small community, holding  


Mayuyo's trial in late July or early August would probably make it difficult to select a  


 second jury for Balallo's trial only a few weeks later, in September.  


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

                                                                                                       - 9 -                                                                                                 2556

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                                  A   trial court's decision under                                               Miller   should be reviewed for "abuse of                                                            

discretion" because this is a situation where (1) the law does not specify                                                                                                                     a particular   

"right" answer,                          but   instead only specifies the factors or criteria that a judge should                                                                                          

consider, and where (2) reasonable judges, given the same facts and applying the correct                                                                                                                   


criteria, might come to differing conclusions about how to deal with the problem.                                                                                                                                   

                                  Given the record in Mayuyo's case, we conclude that the superior court did  


not abuse its discretion when the court concluded that the interest in having Mayuyo's  


and Balallo's cases tried together justified a 31-day extension of the Rule 45 time limit  


in Mayuyo's case.  


                                  We therefore conclude that Mayuyo was tried within the time limits of  


Criminal Rule 45.  



                                  The judgement of the superior court is REVERSED, but Mayuyo may be  


retried should the State elect to do so.  


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

                                                                                                       -  10 -                                                                                                    2556

----------------------- Page 11-----------------------

Judge ALLARD, concurring.                                                                         

                                             I join the majority decision and write separately only to emphasize that the                                                                                                                                                           

Bruton   problem   presented   in   this   case   could   have   been   easily   solved   by   the   court  

granting Mayuyo's motion to sever (or by the prosecutor choosing to forego use                                                                                                                                                                                                       of  

Mayuyo's statement at trial).                                                                    Instead, the prosecutor opposed the motion to sever and                                                                                                                          

the trial judge denied the motion and permitted the prosecutor to introduce an altered and                                                                                                                                                                                        

misleading version of Mayuyo's statement to the jury.                                                                                                                                 As the majority opinion points                                                      

out,   there   are   significant   risks   associated   with   redacting or                                                                                                                                 altering a                         non-testifying  

defendant's statement in order to eliminate references to a co-defendant.                                                                                                                                                                   In some cases,                

the redaction will not go far enough and will insufficiently protect the co-defendant's                                                                                                                                                    

                                                                                                                         1  In other cases, as occurred here, the redaction will  

rights under the confrontation clause.                                                                                                                                                                                                                                            

go too far,  distorting the meaning of the statement and prejudicing the rights  of the  


defendant who made the statement.2   Given this, courts should carefully consider whether  


            1         See, e.g.                   ,  Gray v. Maryland                                          , 523 U.S. 185, 193 (1998) (holding that                                                                                       Bruton  may be   

violated if the act of redaction is obvious);                                                                                           Vazquez v. Wilson                                         , 550 F.3d 270, 280 (3rd Cir.                                                  

2008) (reversingconvictionswhere                                                                              the references to the                                           two accomplices                                       were replaced                               with  

the   terms   "my boy" and "the                                                                  other   guy" because,                                                in context,                          these   terms   unmistakably  

referred to the co-defendant on trial);                                                                               People v. Archer                                      , 99 Cal. Rptr. 2d 230, 235 (Cal. App.                                                              

2000) (reversing a conviction where                                                                                     the jury would likely infer that the pronouns in the                                                                                                        

redacted statement referred to the co-defendant).                                                           



                      See, e.g., Ex parte Sneed , 783 So. 2d 863, 870-71 (Ala. 2000) (reversing a conviction  


where the alteration of the defendant's statements from "we" to "I" distorted the meaning of  


the statement and undermined the defendant's defense); State v. Rakestraw, 871 P.2d 1274,  


 1281  (Kan.  1994)  (reversing  a  murder  conviction  where  the  redacted  version  of  the  


defendant's out-of-court statement distorted its meaning in a way that deprived the defendant  


of a fair trial); People v. La Belle , 222 N.E.2d 727, 729 (N.Y. 1966) (reversing a conviction  


where the redaction of the defendant's statement distorted the meaning of the statement and  


 seriously prejudiced the defendant).  

                                                                                                                                      -  11 -                                                                                                                                    2556

----------------------- Page 12-----------------------

the benefits that might be gained by a joint trial are worth the risk of potentially injecting                                                                                                                                                                                                                                                                                                

reversible error into the State's case.                                                                                                                                                      

                                                                                                                                                                                                      -  12 -                                                                                                                                                                                                      2556

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