Russell v. State, 76-1446

• Court: Florida District Court of Appeals
• Writing for the Court: PER CURIAM; BOARDMAN
• Citation: Russell v. State, 349 So.2d 1224 (Fla. App. 1977)
• Decision Date: 23 September 1977
• Docket Number: No. 76-1446,76-1446
• Parties: Jerry Wayne RUSSELL and Sally Tucker Jolly, Appellants, v. STATE of Florida, Appellee.

Page 1224

349 So.2d 1224

Jerry Wayne RUSSELL and Sally Tucker Jolly, Appellants, v. STATE of Florida, Appellee.

No. 76-1446.

District Court of Appeal of Florida, Second District.

Sept. 23, 1977.

Jack O. Johnson, Public Defender, Paul J. Martin, Asst. Public Defender, and Paul C. Helm, Legal Intern, Bartow, for appellants.

Robert L. Shevin, Atty. Gen., Tallahassee, and Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, for appellee.

PER CURIAM.

The appellants, Jerry Wayne Russell and Sally Tucker Jolly, were charged by indictment with: Count I, first degree murder; Count II, robbery; and Count III, grand larceny. They were tried together and convicted by a jury on all three counts and sentenced to: Count I, life imprisonment with credit for time served; Count II, 15 years to run consecutively with Count I; and Count III, one year in county jail to run concurrent with any other sentences.

On this appeal appellant Russell raises the question of whether it was error for the trial judge to admit into evidence a confession by Mrs. Jolly which served to incriminate him, when Mrs. Jolly did not testify at trial. Both appellants raise the question of whether it was error for the trial judge to allow the indictment by which the appellants were charged to be amended to add appellants' names to the robbery and grand larceny counts. For the reasons set forth below, we find it necessary to reverse appellant Russell's conviction on all counts, to reverse appellant Jolly's conviction on the robbery and grand larceny counts, and to remand the cause for a new trial on those counts.

At trial, Russell's counsel objected to the admission of one sentence in a confession which Mrs. Jolly had made. The sentence was the only evidence which directly linked him with the robbery. The trial judge refused to delete the sentence, and the entire confession was read to the jury. Mrs. Jolly did not testify at any time during the proceedings.

The trial judge's refusal to delete the sentence was error because evidence of the confession of one co-defendant which incriminates a second co-defendant may not be admitted where the confessing co-defendant does not testify even if the court instructs the jury to disregard the confession in determining guilt or innocence of the second co-defendant. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Seidel v. State, 240 So.2d 521 (Fla.4th DCA 1970).

We cannot agree with appellee's argument that the appellant should not be able to suppress the harmful part of a confession and then allow the rest of it into evidence. Clearly, if a defendant is...