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.
Ibid. Id. at 328. Ibid. Id. at 329.
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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 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 degree.
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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