STATE of North Carolina
v.
McKeithan JONES et al.
No. 132.
Supreme Court of North Carolina.
January 28, 1972.*864 Atty. Gen. Robert Morgan and Asst. Atty. Gen. Millard R. Rich, Jr., and Associate Atty. Henry E. Poole, for the State.
Musselwhite & Musselwhite, by Fred L. Musselwhite, Lumberton, for defendant appellants.
BOBBITT, Chief Justice.
Preliminary to consideration of the specific questions presented by the surviving two appellants, it is noted: First, that much of the evidence at trial and in the record before us relates to codefendants who are not parties to this appeal; second, that no objection was made by Phillip or on his behalf at trial to the consolidation of the cases for trial or to the admission of any of the evidence proffered by the State; and third, that defendants' counsel did not bring forward the charge to the jury, stating he had "been unable to find prejudicial error" therein.
A joint brief was filed in behalf of the three appellants prior to the death of James Edward Locklear. Hereafter, unless otherwise specified, the word "appellants" will refer to Sterling Jones and to Phillip Jones.
Appellants contend the court erred by consolidating for trial the charges in the four indictments. Pertinent to this contention, the record shows: "Motion by the State to consolidate Cases Nos. 70-Cr11226, 70 Cr 11343, 70 Cr 10374, 70 Cr 10373, involving five (5) defendants growing out of the same transaction and at the same time. Objection by James Edward Locklear and by Sterling Jones." The case on appeal *865 states, "This constitutes appellants' Exception No. 1."
We adhere to "the general rule that whether defendants jointly indicted [should] be tried jointly or separately [is] in the sound discretion of the trial court, and, in the absence of a showing that a joint trial [has] deprived the movant of a fair trial, the exercise of the court's discretion [will] not be disturbed upon appeal." State v. Fox, 274 N.C. 277, 288, 163 S.E.2d 492, 500 (1968). Ordinarily, unless it is shown that irreparable prejudice will result therefrom, consolidation for trial rather than multiple individual trials is appropriate when two or more persons are indicted for the same criminal offense(s). Nothing appears to indicate that either appellant asserted any fact or stated any reason in support of his general objection. Clearly, there was no error in the consolidation per se of the charges in the four indictments for the purposes of trial.
The two indictments (#70CR11266 and #70CR11343) against McKeithan Jones, Phillip Jones, Frank Jacobs, Jr., Redell Locklear and James Edward Locklear, and the two indictments (#70CR10373 and #70CR10374) against Sterling Jones, charged identical offenses. The trial judge, in granting the motion to consolidate, rightly considered the four indictments the same as if there were a single indictment charging six defendants jointly with (1) "safecracking," (2) felonious breaking and entering and (3) felonious larceny.
At no time during the trial did either appellant move for a separate trial. Whether the evidence presented at trial prejudiced appellants to such extent that the failure to order separate trials, though no motions for separate trials were made, constituted a denial of due process of law, will be discussed below.
Counsel for appellants direct our attention to State v. Cotton, 218 N.C. 577, 12 S.E.2d 246 (1940), and State v. Bonner, 222 N.C. 344, 23 S.E.2d 45 (1942), for the proposition that their cases should not have been consolidated, or, if consolidated, they should have been severed when it became apparent that certain of the State's witnesses had testified, and would continue to testify, about statements attributed to one defendant which implicated other defendants.
In Cotton, husband and wife were separately indicted for the same homicide. Over their objections, the cases were consolidated for trial. The State's case against the wife consisted of testimony as to her confession in which she stated she had killed her mother under circumstances related by her in detail. As a witness in her own behalf, the wife testified to facts tending to show that her husband had killed his mother-in-law and that her confession had been coerced by her husband and was untrue. As to the husband, the jury returned a verdict of guilty of murder in the first degree; as to the wife, the jury returned a verdict of not guilty. Upon the husband's appeal, a new trial was awarded. The reason was this: In Cotton, the wife's confession did not incriminate the husband at all; it was her testimony at trial, repudiating her confession, which incriminated him. Since the statute, C.S. 1802 (now G.S. § 8-57), provided that a wife was not a competent witness against her husband, she could not testify to any facts which tended to incriminate him. On this ground, it was held that the court erred by the denial of the husband's motions at the conclusion of the evidence for severance and mistrial and therefore the husband was awarded a new trial.
Consideration of State v. Todd, 222 N.C. 346, 23 S.E.2d 47 (1942), is necessary to an understanding of State v. Bonner, supra. Bonner, Fowler, McDaniel and Todd were prosecuted upon separate bills of indictment, each charging the defendant named with the murder of one Ira L. Godwin. Overruling appellants' motions for separate trials, the four indictments were consolidated for trial and tried together. McDaniel was acquitted. Bonner, Fowler *866 and Todd were convicted of murder in the first degree. The joint appeal of Bonner and Fowler was considered by this Court in State v. Bonner, supra. The separate appeal of Todd was considered in State v. Todd, supra.
The State offered evidence that Godwin was shot and killed in the perpetration of a robbery. To identify the defendants as the persons who committed the robbery-murder, the State offered and relied solely upon in-custody statements made by the several defendants. The statement of each defendant was admitted in evidence only against him. Thus, the statements of Bonner, Fowler and McDaniel, although they tended to incriminate Todd, were not admitted in evidence against Todd. The only evidence admitted against Todd was his own written statement. This statement tended to exculpate Todd, not to incriminate him; thus, in State v. Todd, supra, his conviction was reversed. However, Todd's statement, although not competent or admitted against Bonner and Fowler, told in explicit detail the manner in which Bonner and Fowler had committed the robbery and murder. Thus, State v. Bonner, supra, did not involve a factual situation in which a statement was admitted in evidence because it incriminated the person who made the statement and also incriminated a codefendant against whom the statement was not admitted. On the contrary, Todd's statement did not incriminate himself but included a full account of all circumstances pertaining to the robbery-murder of Godwin by Bonner and Fowler.
The general rule relating to the admission of the testimony of a codefendant under instructions limiting its competency to the declarant is stated and discussed below. The rationale thereof presupposes that the declaration in fact incriminates the declarant. State v. Bonner, supra, is to be distinguished from cases such as the present in which the declarant incriminates himself. Hereafter the appeals of Sterling Jones and of Phillip Jones will be considered separately.
APPEAL OF STERLING JONES.
Sterling contends the admission of evidence of statements made by McKeithan and by Phillip which incriminated Sterling was sufficiently prejudicial to constitute a denial of due process of law notwithstanding the court instructed the jury that such statements were for consideration only against the persons who made them.
Of the seventeen exceptions cited as the basis for this contention, only Exceptions Nos. 18 and 19 are discussed in the brief. According to Strickland, on June 2nd, between the time (4:30 a. m.) he saw McKeithan, Phillip and Sterling and three others leave I-95 Trailer Park and the time (later that morning) when he, Phillip and Sterling went to the place in the woods where the stamps had been hidden, Mc-Keithan told him "[t]hat he, McKeithan, Phillip, Sterling, Jimmy and Redell and Frank Junior Jacobs had went in, had broken into Robeson County Social Services and carried away a safe and stamps in the safe." Strickland's testimony that Mc-Keithan made the quoted statement, which was admitted only against McKeithan, constitutes the basis of Sterling's Exceptions Nos. 18 and 19. The prejudicial impact, if any, of the testimony to which Exceptions Nos. 18 and 19 relate, notwithstanding the court's instruction that this evidence was not to be considered against Sterling, can be evaluated only when considered in the light of the competent incriminating evidence admitted against Sterling.
Strickland's testimony included the following: About 8:00 a. m. on Tuesday, June 2nd, McKeithan had returned to the I-95 Trailer Park and had a quantity of food stamps in his possession. Two hours or so later, Strickland accompanied Mc-Keithan and Phillip to a place in the woods where Phillip had hidden the stamps, and they waited until Sterling drove up in his truck. Sterling said he had a sale for the stamps. Sterling had a portion of the stamps in his possession when he drove away in his truck. Strickland was present *867 on another occasion when McKeithan, Phillip and Sterling were looking for the safe: He heard them talking about where they had taken the safe "in the woods and dropped it off," about procuring tools to open the safe, and about whether money as well as stamps had been removed from the safe.
Brown's testimony included the following: "Sterling Jones told me that the stamps were stolen out of a safe in Lumberton, where they got some office supplies he was trying to sell me at the same time."
Lee's testimony included the following: Sterling told Lee when both were confined in the Robeson County Jail that he (Sterling) was in jail for safecracking and that "they didn't have anything on him, but the police came out and got some paint off of his truck." Lee testified: ". . . I asked him about the safe. He said they had to use a truck, but they couldn't drive it, and he used it. That he could get a man to come up and say his truck was in the shop at the time." Lee also testified: "He said they got the safe, lots of stamps in it, wasn't much money, about seventy dollars in money."
The foregoing indicates that there was sufficient competent admitted evidence against Sterling to minimize or remove such prejudice as might otherwise have been caused by the statements attributed to Mc-Keithan on which Exceptions Nos. 18 and 19 are based. The issue turned largely on whether the jury would give credence to the testimony of Strickland, Brown and Lee. Evidence offered in behalf of defendants tended to show that the persons charged were not involved in any way in the alleged safecracking, felonious breaking and entering and felonious larceny.
It is apparent why Sterling's counsel emphasized Exceptions Nos. 18 and 19, since the testimony referred to therein implicated Sterling more directly than any other testimony. We have examined each of the other exceptions cited by Sterling but not discussed in the brief. The pertinent matters referred to in these other exceptions when considered in the light of the entire testimony are not significantly prejudicial, if prejudicial at all.
Prior to the decisions of the Supreme Court of the United States in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), and Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L. Ed. 2d 1100 (1968), the general rule in North Carolina governing admission of declarations of one defendant in a joint trial was stated in State v. Lynch, 266 N.C. 584, 588, 146 S.E.2d 677, 680 (1966), as follows: "Where two or more persons are jointly tried, the extrajudicial confession of one defendant may be received in evidence over the objection of his codefendant(s) when, but only when, the trial judge instructs the jury that the confession so offered is admitted in evidence against the defendant who made it but is not evidence and is not to be considered by the jury in any way in determining the charges against his codefendant(s). State v. Bennett, 237 N.C. 749, 753, 76 S.E.2d 42, and cases cited; State v. Arnold, 258 N.C. 563, 573-574, 129 S.E.2d 229; Stansbury, North Carolina Evidence, Second Edition, § 188. `While the jury may find it difficult to put out of their minds the portions of such confessions that implicate the codefendant(s), this is the best the court can do; for such confession is clearly competent against the defendant who made it. Compare: Delli Paoli v. United States, 352 U.S. 232, 77 S. Ct. 294, 1 L. Ed. 2d 278.' State v. Kerley, 246 N.C. 157, 161, 97 S.E.2d 876, 879." Accord, State v. Fox, supra, 274 N.C. at 289, 163 S.E.2d at 500-501.
In State v. Fox, supra, this Court interpreted Bruton v. United States, supra, and Roberts v. Russell, supra, to require reversal of the appellants' convictions for first degree burglary and first degree murder. None of the three appellants, Roy Lee Fox, Donald Fox and Carson McMahon, had testified (except on voir dire) at the trial. The fourth defendant, Arrlie Fox, did testify at the trial in his own behalf *868 and was cross-examined by the solicitor and by counsel for each of the other defendants. The State offered evidence as to statements made by each defendant which incriminated himself and incriminated his codefendants. It was held that admission of declarations made by one nontestifying defendant which incriminated another denied the latter's constitutional right of confrontation. The opinion of Justice Sharp in State v. Fox, supra, includes the following: "In Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), it was held that `the Sixth Amendment's right of an accused to confront the witnesses against him is . . . a fundamental right and is made obligatory on the States by the Fourteenth Amendment.' Id. at 403, 85 S. Ct. at 1068, 13 L.Ed.2d at 926." With reference to the statement attributed to Arrlie Fox, the opinion notes this distinction: "If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra, 246 N.C. at 160, 97 S.E.2d at 879. In this case, Arrlie Fox testified and was cross-examined by his codefendants. His statement, therefore, did not come within the ban of Bruton." State v. Fox, supra at 291, 163 S.E.2d at 502.
In Nelson v. O'Neil, 402 U.S. 622, 91 S. Ct. 1723, 29 L. Ed. 2d 222 (1971), the Supreme Court of the United States held that Bruton did not apply in a factual situation substantially the same as that in the present case. O'Neil and Runnels were tried jointly and convicted in a California state court. The State's evidence included the testimony of a police officer that Runnels, in the absence of O'Neil, had made an oral out-of-court statement in which he admitted the crimes charged and implicated O'Neil as his confederate. The trial judge ruled the officer's testimony was competent against Runnels but instructed the jury not to consider it against O'Neil. Runnels, testifying in his own defense, denied having made the statement and asserted that the substance of the statement imputed to him was false. The decision in Bruton was confined to the holding that the right to confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution "is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for `full and effective' cross-examination." Nelson v. O'Neil, supra at 627, 91 S. Ct. at 1726, 29 L.Ed.2d at 227. The opinion further states: "We conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments." Id. at 629-630, 91 S. Ct. at 1727, 29 L.Ed.2d at 228.
Sterling asserts prejudice on account of the admission of portions of statements attributed to McKeithan, Phillip and James Edward Locklear which tended to incriminate Sterling. McKeithan, Phillip and James Edward Locklear took the stand and each testified that the substance of the statements imputed to him was false. Under these circumstances, as held in Nelson v. O'Neil, supra, Bruton does not apply. Cf. California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489, (1970), and Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27 L. Ed. 2d 213 (1970).
Except as modified by Bruton v. United States, supra, and Roberts v. Russell, supra, we adhere to the general rule (quoted above) stated in State v. Lynch, supra. Even so, in each case the prejudicial impact of testimony of out-of-court declarations of a codefendant, even when the right to confrontation is afforded, must be evaluated in the light of the competent admitted evidence against the nondeclarant defendant referred to in such declarations. We do not foreclose the possibility that the gap between the impact of evidence which is not admitted against but incriminates the nondeclarant and of competent evidence of minimal probative value admitted against him in a given case may be so great as to *869 constitute a denial of due process. No such gap exists in the present case.
APPEAL OF PHILLIP JONES.
Phillip contends the admission of evidence of statements made by Sterling violated Phillip's right to confrontation as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States.
The evidence in the record supports the finding that Phillip was "financially able to provide the necessary expense of legal representation." He did not and does not now challenge the court's findings or the supporting evidence. Although financially able to do so, Phillip was not represented at trial and no objections were interposed by him or in his behalf. Unless necessary to obviate manifest injustice, the rule applicable to a represented defendant applies equally to an unrepresented nonindigent defendant. As stated in State v. Mitchell, 276 N.C. 404, 409-410, 172 S.E.2d 527, 530 (1970): "It is elementary that, `nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered.' . . . An assertion in this Court by the appellant that evidence, to the introduction of which he interposed no objection, was obtained in violation of his rights under the Constitution of the United States, or under the Constitution of this State, does not prevent the operation of this rule."
Apart from the foregoing, we find no merit in Phillip's appeal. For the reasons stated above in relation to the appeal of Sterling Jones, Bruton does not apply to statements attributed to McKeithan and James Edward Locklear which implicated Phillip. Since Sterling did not testify, Phillip contends that Bruton does apply to statements attributed to and admitted agains Sterling. However, the brief fails to point out, and our examination of the record fails to disclose, any instance in which a witness testified to a statement made by Sterling which in fact implicated Phillip. The following indicate the type of statement attributed to Sterling which Phillip contends implicated him. Brown testified that Sterling told him that "there are six of us involved" and that "the stamps were stolen out of a safe in Lumberton." Lee testified that Sterling told him that "they had to use a truck" and that "they got the safe, lots of stamps in it, wasn't much money." No statement attributed to Sterling contains a reference to Phillip by name nor identifies him in any other way. The sine qua non for application of Bruton is that the party claiming incrimination without confrontation at least be incriminated.
If it were conceded that Phillip was obliquely incriminated by the above statements attributed to Sterling, the constitutional error was harmless "beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-711 (1967); Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284 (1969). Any incrimination of Phillip by statements attributed to Sterling was of insignificant probative value in relation to the mass of competent and admitted evidence against him, a portion of which is included in our preliminary statement and also in our review of evidence in connection with the appeal of Sterling Jones.
The conclusion reached is that neither appellant has shown prejudicial error. Hence, the verdicts and judgments will not be disturbed.
No error.