Gladden v. State, 7 Div. 124

• Decision Date: 26 May 1989
• Docket Number: 7 Div. 124
• Citation: 551 So.2d 1141
• Parties: Amos Jethro GLADDEN and Amos Mark Gladden v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1141

551 So.2d 1141

Amos Jethro GLADDEN and Amos Mark Gladden v. STATE.

7 Div. 124.

Court of Criminal Appeals of Alabama.

May 26, 1989.

Rehearing Denied June 30, 1989.

Certiorari Denied Nov. 3, 1989

Alabama Supreme Court 88-1321.

Hubert H. Wright, Gadsden, and Fred Walden Teague, Ashville, for appellants.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

TYSON, Judge.

Amos Jethro Gladden and Amos Mark Gladden, father and son respectively, were separately indicted for attempted rape in the first degree of Michelle Clay. These indictments were consolidated for trial and the appellants were tried together. The jury found the appellants "guilty as charged in the indictments." A sentencing hearing was held at which time the trial judge sentenced both appellants to six years' imprisonment in the penitentiary.

I

Prior to the trial, the State made a motion to consolidate these two cases. As required by Rule 15.4(b), A.R.Crim.P. (Temp.), the trial judge held a hearing on the motion to consolidate.

At the hearing, the State argued that the appellants' cases should be consolidated because they could have been properly joined in the same indictment, i.e., the appellants were accused of being involved in the same criminal transaction. See Rule 15.4(a) and (b), A.R.Crim.P. (Temp.).

The appellants argued against the consolidation because Amos Jethro (hereinafter Amos) gave a statement to the police which implicated his son, Amos Mark (hereinafter Mark). In challenging the consolidation, the appellants contended that it would be error to admit Amos's statement at trial unless Amos took the stand. The State argued that there would be no problem with the statement as long as Amos took the stand. There was no inquiry by the trial court as to whether Amos would take the stand nor did defense counsel indicate that Amos might testify. The trial judge then consolidated the cases for trial.

The appellants made two motions to sever which were denied by the trial court. Furthermore, the appellants made a motion to suppress Amos's statement prior to trial. Then, when the State attempted to introduce Amos's statement into evidence, the appellants objected to the introduction of the statement and asked the court to withhold the statement from evidence until it was determined whether Amos would take the stand. The trial judge overruled the objection and allowed Amos's confession into evidence. Amos did not testify at trial.

In Bruton v. United States, 391 U.S. 123, 88 S.Ct.1620, 20 L.Ed.2d 476 (1968), the U.S. Supreme Court held that it was reversible error to admit into evidence a non-testifying co-defendant's extrajudicial statement which implicates the defendant. The court held that this violates the defendant's Sixth Amendment right to confrontation. See also Holsemback v. State, 443 So.2d 1371 (Ala.Crim.App.1983).

The United States Supreme Court held in Bruton that prejudicial error occurred even though the trial court gave instructions to the jury that the confession could only be used against the co-defendant and must be disregarded with respect to the defendant. ¹

Thus, the appellants argue that it was reversible error for the trial judge to consolidate these cases for trial, knowing that reversible error would occur if Amos did not take the stand and his statement was admitted into evidence. We agree.

Normally, "[t]he consolidation of one defendant's case with that of another defendant is a matter of procedure.... Rules of joinder and consolidation are designed 'to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendants to a fair trial.' " Holsemback v. State, 443 So.2d at 1376 (citations omitted) (emphasis added).

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