#### STATE of Louisiana v. Kenneth HUNTER.

No. 2011-KK-0291.

Supreme Court of Louisiana.

April 8, 2011.

In re Hunter, Kenneth; — Defendant; Applying for Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. F, No. 495-803; to the Court of Appeal, Fourth Circuit, No. 2010-K-1756.

Writ application denied.

VICTORY, J.,

concurs and assigns reasons.

On the showing made, I find no abuse of discretion by the trial court in denying *1259defendant’s motion to sever. However, trial of co-defendants may not proceed “if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” *Zafiro v. United States,*506 U.S. 534, 539, 113 S.Ct. 933, 938, 122 L.Ed.2d 317 (1993). In a separate trial of defendant, the Confrontation Clause of the Sixth Amendment would bar introduction of his co-defendant’s testimonial statement, made in response to police interrogation and providing a retrospective account of the circumstances surrounding the victim’s death for purposes of facilitating the investigation and prosecution of the offense, unless the co-defendant took the stand and submitted to cross-examination. *Crawford v. Washington,*541 U.S. 36, 68, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004)(“Whatever else the term [testimonial] covers [for confrontation purposes], it applies at a minimum to prior testimony at a preliminary hearing, before a grand Injury, or at a former trial; and to police interrogations.”). To the extent that the co-defendant’s testimonial statement constitutes a “powerfully incriminating extrajudicial statement” which directly implicates defendant in the crimes charged, *Bruton v. United States,*391 U.S. 123, 135, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968), the statement may not be admitted at a joint trial, even under a limiting instruction that jurors are to consider it as evidence only against the co-defendant, *id.,*391 U.S. at 137, 88 S.Ct. at 1628, and even if defendant’s own statement to the police partially interlocks with the co-defendant’s statement, *Cruz v. New York,*481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987), *unless*the prosecution redacts the co-defendant’s statement in such a way that it no longer facially or directly implicates defendant in the crime. *Gray v. Maryland,*523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). If the prosecutor is unable to redact the co-defendant’s statement in such a fashion, yet intends to use that statement against the co-defendant at trial, the defendants must be severed. *See State v. Johnson,*96-0959 (La.6/28/96), 675 So.2d 1098.

GUIDRY, Justice,

concurs with reasons.

The only issue currently before the Court is the trial court’s denial of the defendant’s motion to sever. I agree that a joint trial is possible in this case. However, the more difficult question is whether the statements are admissible in their present form pursuant to *Bruton v. United States,*391 U.S. 123, 135, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968). They may require redaction. See *Gray v. Maryland,*523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294(1998).