dissenting.
I must respectfully dissent from the majority opinion. The heart of the case is whether defendants suffered prejudicial error by the admission, over objections, of the incriminating statements of Porter, made after he and Ross were arrested. The pertinent parts of the record are not long and are helpful to an understanding of this issue.
After the facts of the armed robbery were established by the witnesses Martin and Lackey, the state called Joe Wilson, Jr., a Mecklenburg County police officer. He testified he received a radio message about the robbery and headed north looking for a suspect vehicle. He located the vehicle, a red 1976 Aspen, followed it at high speed, and finally had to ditch his car to avoid a collision. The Aspen at that point was backing out of a driveway into the highway. He saw a black male run into the woods, and the red car drove off at high speed. Other officers came; they got a bloodhound and a helicopter. The dog took up the trail and they soon came upon two suspects who had covered themselves with a wooden portion of an old bridge. With drawn weapons, the officers ordered the two defendants out from under the bridge. The defendant Porter was handcuffed and was under arrest and had not been advised as to his constitutional rights pursuant to Miranda. Wilson radioed his superior officer. The following testimony was taken in the absence of the jury:
Prior to the radio message from Sergeant Burden I had asked Defendant Porter no questions, other than telling the defendants to come out from under the bridge I had no communications with either of them. None of the officers asked them anything else.
QUESTION BY THE COURT:
Q. Tell me what the statement was.
A. “The bag is in the car” and then I asked “what bank bag?” and Defendant Porter replied “the bag from the robbery.”
*576CROSS EXAMINATION by Mr. Pollard for Defendant Porter:
We were speaking by walkie-talkie and Sergeant Burden heard the message that we had two suspects in custody. The defendant was handcuffed. Mr. Porter had not been read his rights and he was under arrest. After Defendant Porter responded “It is in the car” I asked him the question, “what bag?”
The following testimony was in the presence of the jury:
Sergeant Burden and I were communicating with walkie-talkie radios. After Sergeant Burden asked, “Did you find a bank bag?” defendant Porter replied, as if answering the radio:
“The bank bag is in the car.” At that time I said, “What bank bag”. I was not aware at that time that a bank bag hg.d been taken in the robbery. Then Defendant Porter responded:
“The bag from the robbery” ....
After Mr. Porter made the statements I made radio announcements stating that the suspects said:
“That the bank bag was in the car.”
Later, witness Overcash testified:
Then a voice came over the radio asking if there was a bank bag found.
Q. What happened next?
A. About that time Porter said it was in the car.
Officer Wilson then said what bag, turkey?
*577Q. What happened after Officer Wilson said, “What bag, turkey?”
A. I believe Officer Wilson radioed back the suspect said it was in the car.
Q. What, if anything, did you hear said after Officer Wilson said, “What bag?”
A. He said it was the one that was taken at the store.
Q. Who said, “The one from the store?”
A. Porter.
During his charge to the jury, the judge stated:
That Wilson talked with Officer Burden by radio and was asked if a bank bag had been found, to which the Defendant Porter said it was in the car, and that upon being asked, “What bag?” stated, “The bag from the robbery.”
Now, Members of the Jury, there is evidence which tends to show that the Defendant Porter has admitted a fact relating to the crime charged in this case. If you the jury find that the defendant made such an admission, then you should consider all of the circumstances under which it was made in determining whether it was a truthful admission and the weight that you will give to it.
At no time during the trial did the trial judge give any cautionary or limiting instruction to the jury concerning how they should consider the testimony of Porter.
ROSS’S APPEAL
The statements by Porter allowed into evidence over Ross’s objections are extremely prejudicial to Ross, and their admission is reversible error. The statements admit the very crime charged, even though redacted to some extent. The very effort to “sanitize” the statements as to Ross indicates their prejudicial nature.
*578Porter, the out-of-court declarant, did not testify in the trial. Ross had no way to cross-examine Porter. Ross’s right of cross-examination, secured by the Confrontation Clause of the sixth amendment of the United States Constitution and section 23 of article I of the Constitution of North Carolina, was violated by the admission of this testimony. Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476 (1968); State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968); State v. Johnson, 29 N.C. App. 534, 225 S.E.2d 113 (1976).
I cannot say that the erroneous admission of the testimony was harmless error beyond a reasonable doubt. The evidence against Ross was primarily circumstantial. There is a reasonable possibility that the evidence complained of contributed to the conviction. Fahy v. Connecticut, 375 U.S. 85, 11 L. Ed. 2d 171 (1963).
The majority in effect holds that if the extrajudicial statement is credible and reliable, the non-declarant defendant’s rights to cross-examination have been fulfilled and there is no violation of the Bruton rule. This is the reverse of the purpose of cross-examination. It is the credible witness whom the defendant needs to cross-examine. Where the testimony is so incredible as to be unbelievable by a jury, defendant may well waive his right to cross-examine. At the very least, constitutional rights cannot be made to turn on whether this Court, or any other, is of the opinion that the extrajudicial statement is credible. Further, the opinion implies that Bruton is limited to “confessions.” Bruton itself states that its rule applies to a context “where the powerfully incriminating extrajudicial statements of a codefendant... are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36, 20 L. Ed. 2d at 485 (emphasis added). A thorn bush by another name is just as prickly. Constitutional rights cannot be determined by the name tag given to the prejudicial extrajudicial statement.
In my opinion Bruton is applicable to this case, and Ross is entitled to a new trial.
PORTER’S APPEAL
I vote a new trial for Porter because of the vital incriminating question put to him by the officer while in custody and without complying with the Miranda rules. The majority says officer Wilson was “still getting the big picture” and that there “was no focus on the accused” when the question was put to defendant. Wilson had *579knowledge of the armed robbery and some description of the car involved. He had chased the car, saw a man run into the woods, tracked the man with a bloodhound that unerringly identified Porter with its nose, found Porter hiding, and arrested him with drawn weapon. Porter was handcuffed, under arrest and in custody. Surely, Wilson believed that he had handcuffed one of the robbers.
It is true that Porter’s first statement, “the bag is in the car,” apparently was a response to a radio message not directed to him. That statement alone was ambiguous; it could have referred to any type “bag.” Then, however, without any compliance with Miranda, Wilson asked Porter “What bank bag?” or “What bag, turkey?” and Porter replied, “the one that was taken at the store” or “the bag from the robbery.” All the quoted statements were before the jury. Wilson further testified that when he asked Porter the question about the bag, he (Wilson) did not know that a bank bag had been taken in the robbery.
Although the first statement by Porter made in response to the radio transmission was volunteered and can be fairly categorized as spontaneous, and therefore is not protected by Miranda, the subsequent question and answer of defendant certainly violated Porter’s constitutional rights as set out in Miranda. Clearly, all the elements invoking Miranda procedures were present: defendant was in custody, handcuffed; from the circumstances of the chase, tracking and arrest, suspicion was properly focused on Porter. Officer Wilson referred to him as a “suspect” when Porter was arrested. Porter was entitled to be advised of his rights under Miranda before he was asked the question, “What bag, turkey?” and made his devastating reply. Officer Wilson reasonably knew that any answer by Porter would be incriminating. That was why he asked the question. According to Wilson, he used the words “What bank bag?” He wasn’t inquiring about just any bag but a bank bag in connection with an armed robbery.
By the failure to safeguard Porter’s constitutional rights, prejudicial error was committed and he is entitled to a new trial.