concurring in part; dissenting in part.
Although I agree with the majority that the court correctly denied defendant’s motion to suppress, I dissent from its ruling that the court did not err when it denied his motion to sever.
The effect of the admission of Beierle’s edited confession in the joint trial was to seal defendant’s fate. Beierle admitted that he held up the Mobil station on McLoughlin Boulevard with a shotgun. The evidence is conclusive that, immediately after the robbery, defendant drove the white getaway van, in which Beierle was a passenger, that defendant owned the van and also the shotgun that Beierle carried at the time of the robbery and that the police found the shotgun in the van. Beierle’s confession clearly tended to establish defendant’s culpable connection with the robbery.
The majority asserts that it can “find no basis on which to conclude that a joint trial was ‘clearly inappropriate.’ ” 100 Or App at 438. It defies common sense, however, to assert that a jury, even after it had received a limiting instruction from the court, would acquit defendant after it had heard
the edited version of Beierle’s confession. In State v. Jones, 279 Or 55, 62, 566 P2d 867 (1977), the court ordered a new
trial, stating that there may be “cases in which the testimony which the jury is instructed to ‘disregard’ is so prejudicial that, as a practical matter, ‘the bell once rung, cannot be unrung’ by such an admonishment.” Although, ordinarily, we presume that a jury will follow the court’s limiting instruction, see State v. Proctor, 94 Or App 720, 724, 767 P2d 453, rev den 308 Or 33 (1989), in no way would the limiting instruction effect the necessary prophylaxis here. Beierle’s confession, even though edited, was so “powerfully incriminating” to defendant, see Bruton v. United States, 391 US 123, 135, 88 S Ct 1620, 20 L Ed 2d 476 (1968), that the likelihood that the jury would not follow the court’s instruction was overwhelming.
The majority asserts that the confession does not “directly implicate” defendant, because it was edited to eliminate any reference to him. 100 Or App at 439. The majority is simply playing with words. In considering defendant’s guilt or *441innocence, the jury would inevitably consider Beierle’s confession as evidence against defendant, together with the other evidence presented at trial that linked defendant with Beierle and the robbery: Defendant owned the shotgun that Beierle used in the robbery; defendant drove the getaway van; Beierle was a passenger in that van; and the police found the shotgun in it.
The majority contends that the joint trial “did not violate defendant’s confrontation rights,” 100 Or App at 439, but it looks only at the provisions in the federal constitution. What is at issue here, however, is the interpretation of ORS 136.060 and that is, in the first instance, a matter of state law. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). Moreover, defendant did raise below and here the issue of the meaning of the words “clearly inappropriate” in ORS 136.060(1) and did refer to his constitutional rights of confrontation, although he did not specifically refer to the Confrontation Clause of Article I, section ll.1
Furthermore, the state, in its brief, specifically referred to Article I, section 11. Accordingly, this court is not precluded from referring to section 11 to aid in interpreting ORS 136.060. Because of the joint trial, the effect of admitting Beierle’s confession was to make him a witness against defendant without affording defendant an opportunity to cross-examine him. See Or Const, Art I, § 11.
I would hold that it was “clearly inappropriate” within the meaning of ORS 136.060 for defendant and Beierle to be tried jointly. The court erred when it denied defendant’s motion to sever.
In State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988), the court stated:
“We have previously drawn attention to the distinctions between raising an issue at trial, identifying a source for a claimed position, and making a particular argument. * * * The first ordinarily is essential, the second less so, the third least.” (Emphasis in original.)