State v. Jackson

GEATHERS, J.,

concurring in a separate opinion.

I concur in the majority’s conclusions that the admission of Canty’s redacted statements was a Bruton violation and the violation was not harmless beyond a reasonable doubt. However, I do not agree that a juror hearing the statements would have to consider evidence outside the four corners of the statements in order to infer that Canty was referring to Jackson. Further, I do not agree that had the State removed Canty’s reference to the purchase of the Little Debbie cake, this case may have turned out like State v. McDonald, 400 S.C. 272, 734 S.E.2d 167 (Ct.App.2012), cert. granted in part (Feb. 21, 2014). The blunt and repetitive substitutions of “another person” or “the other person” for Jackson’s name, especially “Another person was one of the males, ... and I don’t know who the other two were,” were obvious redactions that “performed the same accusatory function as using the defendant’s name.” State v. Henson, 407 S.C. 154, 163, 754 S.E.2d 508, 513 (2014) (discussing the State’s substitution of obvious blanks for the defendant’s name in Gray v. Maryland, *610523 U.S. 185, 193-94, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998)). These substitutions, by themselves, impermissibly refer to Jackson’s existence because they “obviously refer directly to someone,” Gray, 523 U.S. at 196, 118 S.Ct. 1151, and Jackson was Canty’s sole co-defendant.

APPENDIX: Text of Canty’s Fifth Statement

This appendix contains the text of Canty’s fifth statement as Investigator West read it to the jury. We have omitted objections and other interruptions so that what appears below is simply the text of the statement:

I was standing by the mailbox of the O.C. Mobile Home Park when another person I know by another name came up to me and asked whether I wanted to be a part of robbing a pizza man, and I said yes because I didn’t want the other guys to laugh and pick at me. Another person told me to ask my cousin to take us to the store. I was going to get the — I was going to get batteries. My cousin name is Desmond Canty. He told me he was going to call Sambino’s and order some pizzas. We went to Cherryvale Grocery. Another person used the pay phone right next to the trash can, green, and called Sambino’s. Another person ordered three large pizzas. Pepperoni and cheese is all heard he asked for. We went — we then went into the store. I looked for the batteries, but they didn’t have any. Another person brought a Debbie snack cake donut sticks. We went back to the house and we went into the back where the trash cans were, and I sat on a blue Caprice next to Toya’s house. Toya stays next door to us. Toya left. I then went and sat on my porch until the pizza man came. I saw a silver in color Chrysler van pulled up, and it pulled up to the back where another person was — the other person was. The pizza man stayed in his vehicle for approximately three minutes, and he then — and then — he then got out and went to the abandoned residence, lot number 7, and saw the door open and turn around and went back to his vehicle real fast. The pizza man was met by three males with hoodies. Another person was one of the males, and I didn’t — and I don’t know who the other two were. The pizza man was trying to take the gun rifle away from the black male, and the black male told the pizza man to stop, and then the gun *611fired. After I saw the man got shot, I ran in the house and told my moms I heard a gunshot.