State v. Gonzalez

Justice MEYER

dissenting.

I respectfully dissent from the majority’s conclusion that the defendant is entitled to a new trial for violation of his sixth amendment right of confrontation because of the admission of codefendant Crawford’s extrajudicial statement. The record clearly supports the finding by the Court of Appeals that defendant waived his objection to the reading of the statement. Nor do I agree with the majority that Crawford’s statement incriminates the defendant. The decision in Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476 (1968), does not dictate the result reached in this case. Our decision in State v. Jones, 280 N.C. 322, 185 S.E. 2d 858 (1972), supports a contrary result.

The majority boldly concludes that defendant’s motion to strike the allegedly inculpatory portion of Crawford’s statement “was timely made” in view of the State’s “belated tender” of the sanitized version of the statement because “it appears that the defendant’s counsel did not have a reasonable amount of time to review the extrajudicial statement.” In short, the majority adopts *97a novel, as yet undefined, “reasonable amount of time” rule to excuse defense counsel’s failure to object prior to the reading of the statement.

On the subject of “reasonable amount of time to review” the statement in question, the majority says this:

Contrary to the conclusion of the Court of Appeals, we find no evidence to support a finding that defendant’s counsel waived his right to object to the admissibility of the statement .... The record evidence shows that on 21 June 1982 the trial court ordered the State to sanitize the extrajudicial statements of all the defendants before the statements would be deemed admissible. However, the allegedly sanitized versions of the codefendants’ statements were not given to defendant’s counsel until two days later, on 23 June 1982, during the course of the trial and immediately preceding the admission of the statement of codefendant Gonzalez. Thereafter, the trial continued with the State presenting its evidence. Aside from one fifteen minute recess during the trial and prior to the admission of the statement of codefendant Crawford, it appears that the defendant’s counsel did not have a a reasonable amount of time to review the extrajudicial statements.7

One can draw several possible inferences from the majority’s discussion of its new “reasonable amount of time” rule: first, counsel was not afforded a reasonable amount of time to review the sanitized statement because it was not disclosed until during the trial; or second, we must automatically assume conclusively that fifteen minutes is never a sufficient amount of time; or, third, that one must make that same assumption whenever the record fails to reflect what amount of time in excess of fifteen minutes *98counsel had to review the sanitized statement. I find no support for any of these propositions.

I read nothing in G.S. § 15A-927(c)(l) or G.S. § 15A-903(b), under our discovery statute, that would require a codefendant’s sanitized extrajudicial statement to be disclosed prior to trial. The fact that defense counsel is not afforded pretrial statements of the State’s witnesses until after those witnesses have testified at trial on direct examination, see G.S. § 15A-903(f), militates strongly against the argument that counsel cannot be expected (or is unable) to review the sanitized version of a codefendant’s statement during trial. As the majority notes, prior to the admission of Crawford’s statement, the trial judge ordered a recess. Had defense counsel required more time to review the statement, he was free to so request, as is the procedure adopted in G.S. § 15A-903(f). That section provides that upon defendant’s request, the court “may recess proceedings in the trial for a period of time that it determines is reasonably required for the examination of the statement . . . .”

Additionally, I find no basis in case law or statute to support the majority’s assumption that counsel’s failure to object to a portion of a sanitized statement is inevitably due to a lack of sufficient time to review the statement. Defense counsel’s own admission to the trial judge belies such a conclusion, but rather attributes the failure to the fact that counsel himself had overlooked that portion when he reviewed the statement:

I move to strike that portion of the statement as follows; I was with some guys but I didn’t rob anyone, they did. I think that ties and puts all meaning back into the statement as was originally there. And I’m sorry I overlooked this when I read the statement, but apparently — I don’t think it’s being sanitized enough, to use the D.A.’s termonology [sic].
The Court: All right. Motion denied. Let the record show that the Court prior to statements being presented in open court instructed the District Attorney to make all statements available to counsel for the defendants, that the Clerk made copies of the statements and a copy of each statement from Gonzalez and Crawford were presented to the defendants and their counsel, that no objections were made to the statements in the form presented at that time. Let the *99record further show that at the time the officer read the statement no objections were made to anything that was stated at that time. The objection came after the statement had been completed. Motion denied.

I believe the trial judge properly denied defendant’s motion to strike and furthermore I would hold, as did the Court of Appeals, that defendant waived any objection by failing to timely object.

Nor can I agree with the majority’s conclusion that “the introduction of this extrajudicial statement constitutes error and, without a doubt, violated Bruton, Fox, and N.C. Gen. Stat. 15A-927(c)(l).” Embedded within the straightforward, innocuous account of Crawford’s version of the events, is the objected-to statement: “I told him I was with some guys, but that I didn’t rob anyone, they did.” (Emphasis added.) This one statement, containing a reference to some guys, unnamed and unidentified, at most, may be said only to obliquely incriminate the defendant, and certainly does not rise to the level of the “powerfully incriminating extrajudicial statements of a codefendant,” which were “deliberately spread before the jury” in Bruton. Id. at 135-36, 20 L.Ed. 2d at 485. If the Bruton rule is to be applied with practicality and common sense, it affords no precedent whatsoever which would redound to defendant’s benefit in this case. I consider the majority’s broad extension of the Bruton rule completely unwarranted and very unwise. I find no precedent in any jurisdiction which would support it.

This Court, as well as the Court of Appeals,1 has, in the past, taken a practical and common sense approach to the rule *100enunciated in Bruton. In State v. Jones, 280 N.C. 322, 185 S.E. 2d 858, this Court considered statements attributed to a codefendant which defendant contended were inculpatory. These statements consisted of the following: “that there were six of us involved,” “the stamps were stolen out of a safe in Lumberton,” “they had to use a truck.” We noted that “[n]o statement attributed to Sterling [the codefendant] contains a reference to Phillip [the defendant] by name or 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.” Id. at 340, 185 S.E. 2d at 869. I find the facts in the present case more compelling than in Jones and would hold that defendant was not incriminated by Crawford’s one reference to “some guys.”

Justices Copeland and Mitchell join in this dissenting opinion.

. The transcript does show that the trial was stopped in order for the clerk to make copies of the “sanitized” versions of the extrajudicial statements of the defendants prior to the admission of the Gonzalez statement. However, we cannot determine how much time the attorneys had to review these statements after the clerk returned with their respective copies.

. In State v. Freeman, 31 N.C. App. 335, 337-38, 229 S.E. 2d 238, 240 (1976), the original statement read:

“Me and Lawrence I don’t know his last name, he is Bill’s half brother, were riding around in Lawrence’s car, a ’66 or ’67 Pontiac gray station wagon. We went to Eddie’s Grocery. Lawrence had a shotgun. We parked beside the store. We both went inside and demanded the money. We picked up Bill Alexander at Mooresville Drug. We went toward Coddle Creek and had a flat tire. Me and Bill went through the woods. Lawrence stayed with the car. We went to James Reid’s house to get him to take us to Bill’s house. We took the shotgun and rifle and asked him to keep them for us. Shortly after we left the police got behind us. I threw the money out of the car. Then the police stopped us.”
Together the State and defense attorney sanitized the statement as follows:
*100“Me and two other guys were riding around in a car. We went to Eddie’s Grocery: we had a shotgun; we parked beside the store — I and one of the other guys went in the store and demanded the money; then we went toward Coddle Creek and had a flat tire. Then I and one of the men went through the woods; the other guy remained with his car. I and the other man went to •James Reid’s house to get him to take us home; we took the shotgun and a rifle and asked Reid to keep them for us. Shortly after the police got behind us and I threw the money out of the car; then the police stopped us.”
The Court of Appeals concluded:
“In reviewing the above portions of the trial record, it is apparent to this Court that the trial judge admitted Nichols’ statement only after modifying it in accordance with the Fox decision. He admitted the extrajudicial confession only after deleting all parts that referred to or implicated the defendant. It is manifest that the statement admitted into evidence did not tend to incriminate the defendant Freeman. The statement merely indicated that Nichols had an accomplice and it in no way indicated the identity of that accomplice. Defendant’s right to confrontation was therefore not infringed and the trial judge did not err in admitting the modified confession.”