Norton v. State

• Decision Date: 12 August 2002
• Docket Number: No. 49A05-0109-CR-390.,49A05-0109-CR-390.
• Citation: 772 N.E.2d 1028
• Parties: Antione NORTON, Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

772 N.E.2d 1028

Antione NORTON, Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 49A05-0109-CR-390.

Court of Appeals of Indiana.

August 12, 2002.

Janice L. Stevens, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

SULLIVAN, Judge.

Antione Norton appeals from his jury trial conviction of Murder, a felony.¹ He presents two issues for our review, one which we find to be dispositive: whether the trial court improperly admitted into evidence a redacted version of the statement of Norton's co-defendant.² We reverse.

Norton and his co-defendant, Sylvester Thomas, were initially charged together; however, the State moved for a severance, and Thomas was tried alone. The trial resulted in a hung jury on the charge of Murder³ and in acquittals on the charges of Felony Murder⁴ and Attempted Robbery.⁵ The State then moved to try Thomas and Norton together. A joint trial was held, resulting in the conviction of Norton and an acquittal on the charge of Murder for Thomas.

The facts underlying the charges arose from an incident on July 24, 2000, which began when Thomas paged Stephan Hooks, the victim of the shooting, at 9:14 p.m. Hooks returned Thomas's call moments later. Soon after, Hooks, Thomas, and Norton proceeded to an alley close to a house where Norton formerly lived. Hooks was later found in the alley in his car, which was stopped against an electric pole. The automobile engine was still running. Hooks died from a single gunshot wound to the head.

At trial a redacted statement from Thomas,⁶ which showed that Thomas had paged Hooks in order to purchase some marijuana from him, and that they had presumably gone to the alley to meet a third party to provide them with the marijuana, was admitted into evidence as State's Exhibit 60 (tape recording) and 61 (transcript) over objections from both defendants.⁷ One witness testified that he saw the car drive into the alley and that he heard what sounded like a gunshot or a firecracker. Another witness, who had been parked in his car in the carport of the house behind the alley where the shooting occurred, testified that he saw Norton, holding a gun in his right hand, attempting to get out of the car through the back passenger side door. That witness also testified that he saw Norton then jump over the front seat and get out through the front passenger door and run up the alley.

Norton's appeal focuses upon the trial court's admission into evidence of the State's redacted version of a statement made by Thomas to a police detective on August 24, 2000, one month after Hooks was killed. At trial, Thomas objected to the use of the redacted statement asserting that it was misleading and requested that the whole statement, including a statement made just days after Hooks was killed, be admitted into evidence under the doctrine of completeness. Norton's attorney also stated that the redacted statement did not give the full version of the events as related by Thomas and that completeness would warrant that the whole statement be admitted. In response to Thomas's request, which was based in part upon Norton's joinder in Thomas's request that the entire statement be admitted, the trial court stated:

"No. I'm not going to do that, because [Norton's] got a right to confront and cross examine the witnesses that relates to that statement and it's my duty as the gate keeper to protect evidence that comes in to this Court and that's what I'm doing, so I'm still not going to allow that in. Okay." Transcript at 444.

In denying the request to admit the whole statement, the trial court was invoking the protections provided to defendants from the admission into evidence of statements made by co-defendants which incriminate the defendant. This principle was established by the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968).

In Bruton, the Supreme Court reconsidered its prior holding in Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), in which the Court had held that it was proper for a co-defendant's statement, which implicated the defendant, to be admitted at a joint trial so long as the jury was instructed that the statement was to be used as evidence only against the co-defendant who made the statement. The Supreme Court reversed its earlier decision and held that the pre-trial statement of one co-defendant, which implicated the other defendant, could not be admitted at trial. Bruton, 391 U.S. at 126, 88 S.Ct. 1620. In reaching its decision, the Supreme Court determined that there was a substantial risk that a jury might consider the incriminating extrajudicial statement of the co-defendant against both the co-defendant who made the statement and against the defendant as to whom the statement could not be used at trial. Id. The Supreme Court recognized that the right to confront and cross-examine the witnesses against oneself was secured by the Sixth Amendment, and that a limiting instruction on the use of an incriminating statement of a co-defendant was not an adequate protection of the defendant's constitutional right of cross-examination. Id. at 137, 88 S.Ct. 1620. Rather, the options for the State are to move to sever the trial, offer into evidence a redacted statement which omits all references to the defendant who did not make the statement, or completely avoid the use of the co-defendant's statement. Ind.Code § 35-34-1-11 (Burns Code Ed. Repl.1998).

For purposes of this appeal, the questions as to the import of the Bruton decision are what protection is afforded to defendants and who determines whether that protection is to be applied. In his brief, Norton asserts that as it is his right to confront and cross-examine witnesses, it is also his right to invoke or not invoke the protection of Bruton. Norton does not believe that it is a right which is properly invoked by either the State or the trial court.

As stated above, the basis for the Supreme Court's decision in Bruton was the defendant's constitutional right to confront and cross-examine witnesses. However, it is a well settled principle of law that a defendant may waive his right to confront and cross-examine witnesses. See Timberlake v. State, 690 N.E.2d 243 (Ind.1997) (failure to cross-examine a witness when given the opportunity waives that right), cert. denied, 525 U.S. 1073, 119 S.Ct. 808, 142 L.Ed.2d 668 (1999); Pierce v. State, 677 N.E.2d 39 (Ind.1997) (failure to request the opportunity to cross-examine a witness at trial called by the opposing party waives the right); Dodson v. State, 502 N.E.2d 1333 (Ind.1987) (absence from the court room during questioning of a witness may waive right to cross-examination); Moore v. State, 479 N.E.2d 1264 (Ind.1985) (entering of a valid guilty plea waives the right to confront accusers), cert. denied, 474 U.S. 1026, 106 S.Ct. 583, 88 L.Ed.2d 565.

It has also been established in Indiana that a defendant may waive his claim of a Bruton violation through error. In Latta v. State, 743 N.E.2d 1121 (Ind. 2001), the Indiana Supreme Court, in review of a denial of post-conviction relief, determined that Latta's right to cross-examine her co-defendant was violated by the admission of the co-defendant's statement without Latta having the opportunity to cross-examine him. Id. at 1126. However, while her claim had merit, the Bruton violation was deemed waived because it was not argued upon direct appeal. Latta, 743 N.E.2d at 1126.

Neither Norton nor the State has directed this court to any cases which specifically address the question presented by Norton as to whether he may voluntarily waive his Bruton protection and thereby cause an entire statement of a co-defendant to be entered into evidence. In our review of cases from other jurisdictions, we have not found any cases directly on point, but we have found several opinions which are instructive.

In State v. Golphin, 352 N.C. 364, 533 S.E.2d 168, 196 (2000), cert. denied, 532 U.S. 931, 121 S.Ct. 1379, 1380, 149 L.Ed.2d 305 (2001), the North Carolina Supreme Court held that a Bruton claim was waived when the defendant signed a document waiving any objection he may have had under Bruton and also failed to object to the admission of the co-defendant's statement at trial. In State v. Buonadonna, 122 N.J. 22, 583 A.2d 747 (1991), the New Jersey Supreme Court addressed the level of scrutiny required in order to find that Bruton rights had been waived at trial. In so doing, the New Jersey Supreme Court relied upon People v. Shell, 152 A.D.2d 609, 543 N.Y.S.2d 510 (N.Y.App.Div.1989), appeal denied, in which the Shell court held that trial counsel was not ineffective for declining the trial court's offer to hold a Bruton hearing upon a co-defendant's statement.

Norton's argument, in light of our Supreme Court's holding in Latta and the decisions of our sister jurisdictions, is persuasive. The significance to the Bruton decision is that a defendant must be given the opportunity to cross-examine the witnesses against him. However, the law is clear that the right to cross-examine witnesses may be waived, both voluntarily and through error. See, e.g., Timberlake, 690 N.E.2d at 255. It therefore is only logical that a Bruton claim may also be voluntarily waived by the defendant against whom an incriminating statement of a co-defendant may potentially be used. However, while we hold that a defendant may voluntarily waive the protections provided by Bruton, we also recognize the difficulty in determining what constitutes a valid waiver and when such waiver may be applied.

When a statement from a co-defendant is offered as evidence at trial, it is generally true that a redacted version of the statement, which does not implicate the defendant, may be properly admitted....