STATE of North Carolina
v.
Bill SLATE and Romney Lee Carson.
No. 7817SC280.
Court of Appeals of North Carolina.
October 3, 1978.*432 Atty. Gen. Rufus L. Edmisten by Associate Atty. R. W. Newsom, III, Raleigh, for the State.
Neaves, Everett & Peoples by Charles M. Neaves, Elkin, for defendants-appellants.
MITCHELL, Judge.
APPEAL OF BILL SLATE
The defendant, Bill Slate, assigns as error the trial court's admission into evidence of the extrajudicial statement of his codefendant Carson and the trial court's failure to instruct the jury that Carson's extrajudicial statement could only be considered against him and was not admitted as evidence against Slate. This assignment of error is meritorious.
In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court of the United States held that the extrajudicial confession of a defendant implicating his codefendant could not be admitted into evidence, where the defendant making the confession did not testify at their joint trial. The court held that to admit such evidence would constitute a denial of the codefendant's rights under the confrontation clause of the Sixth Amendment to the Constitution of the United States, which could not be remedied by a limiting instruction directing the jury to consider such evidence only against the confessing defendant. Here, however, the defendant whose extrajudicial confession was admitted testified in his own defense and denied making the statement. Further, he gave testimony during the joint trial favorable to his codefendant Slate. The defendant Slate could not have hoped for a more effective exercise of his right to confront and cross-examine this witness. Therefore, the extrajudicial confession of Carson implicating Slate was admissible at their joint trial. Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971).
Although the extrajudicial confession of Carson was admissible at the joint trial of the defendants, we hold it was admissible only as evidence against him and not as evidence against his codefendant Slate. After Carson took the stand and testified at the joint trial of the two defendants, the admission of his extrajudicial confession was no longer violative of the Sixth Amendment. Its admission against Slate, however, remained a violation of long established principles of law controlling in this jurisdiction. As to Slate, the extrajudicial statement of Carson was inadmissible hearsay. The extrajudicial statement of Carson did not become exceptionally admissible as corroborative evidence solely by virtue of the fact that Carson took the stand and testified. Instead of corroborating Carson's testimony, the testimony of Captain Scott as to Carson's extrajudicial statement tended to destroy his credibility and greatly reduce the weight of his testimony and was not admissible as corroborative evidence. State v. Lassiter, 191 N.C. 210, 131 S.E. 577 (1926). Although the extrajudicial statement of Carson tending to implicate Slate was admissible at their joint trial, it was admissible only as evidence against Carson. Therefore, the trial court erred in failing to instruct the jury that Carson's statement was admitted into evidence only against him and could not be considered against Slate. When two defendants are jointly tried, the extrajudicial confession of one may be received in evidence over the objection of the other only when the trial court instructs the jury that the confession is admitted as evidence against the defendant who made it but is not evidence and may not be considered by the jury in any way in determining the charges against his codefendant. State v. Lynch, 266 N.C. 584, *433 146 S.E.2d 677 (1966); State v. Bennett, 237 N.C. 749, 76 S.E.2d 42 (1953); 2 Stansbury's, N. C. Evidence, § 188 (Brandis Rev. 1973). Failure to give the required instruction will necessitate a new trial in Slate's case (76CR9012).
APPEAL OF ROMNEY LEE CARSON
The defendant, Romney Lee Carson, assigns as error that portion of the trial court's final instructions to the jury setting forth the elements of the offense of receiving stolen goods. The defendant contends that the trial court failed to properly instruct the jury that, before they could return a verdict of guilty of receiving stolen goods in violation of G.S. 14-71, they must find from the evidence that the goods were stolen by someone other than the accused. The defendant asserts that this constituted a failure to charge on an essential element of the offense of receiving stolen goods and requires he be granted a new trial.
When a trial court judge undertakes to define the law as required by G.S. 1-180, he must state it correctly, and failure to do so constitutes prejudicial error sufficient to warrant a new trial. The trial court must properly instruct the jury as to all essential elements of the offense charged. State v. Hairr, 244 N.C. 506, 94 S.E.2d 472 (1956). An essential element of the crime of receiving stolen goods in violation of G.S. 14-71 is the stealing of the goods by someone other than the accused. State v. Muse, 280 N.C. 31, 185 S.E.2d 214 (1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2409, 32 L.Ed.2d 674 (1972). Therefore, failure to properly instruct the jury with regard to this element would constitute reversible error requiring a new trial.
Here the trial court first stated as an element of the offense of receiving stolen property the requirement "that the property was stolen" and failed to indicate that the property must have been stolen by someone other than the defendant. Later the trial court stated that the jury could convict if they found that "someone else had stolen them or that they were stolen." This statement would tend to indicate to the jury that they could convict either if the goods were stolen by the defendant or by someone else. Finally, the trial court properly stated that, before returning a verdict of guilty, the jury must find that the defendant knew or had reasonable grounds to believe that "someone else had stolen." No instruction was ever given the jury indicating it should ignore the first two incorrect statements as to this element of the offense.
Such conflicting instructions upon a material aspect of a case must be held to constitute prejudicial error, as the jury may have acted upon the incorrect portion of the instructions. State v. Parks, 290 N.C. 748, 228 S.E.2d 248 (1976). It must be assumed on appeal that, of two conflicting instructions, the jury was influenced by that portion of the charge which is incorrect. State v. Harris, 289 N.C. 275, 221 S.E.2d 343 (1976). It will not be supposed that the jury is able to distinguish between a correct and an incorrect charge. State v. Carver, 286 N.C. 179, 209 S.E.2d 785 (1974). Even though the trial court's instructions must be read in their entirety and are not reversible for inadvertent omissions or inconsequential misstatements, the instructions of the trial court in this case were so conflicting as to require that they be held prejudicial error necessitating a new trial of the case against Carson (76CR8903).
For errors previously discussed herein, both the defendant Bill Slate (76CR9012) and Romney Lee Carson (76CR8903) are entitled to new trials, and we order
New trials.
BROCK, C. J., and MARTIN, J., concur.