State v. Fox, 83

Decision Date09 October 1968
Docket NumberNo. 83,83
Citation163 S.E.2d 492,274 N.C. 277
PartiesSTATE of North Carolina v. Donald FOX, Roy Lee Fox, and Robert Carson McMahan.
CourtNorth Carolina Supreme Court

T. E. L. Lipsey, Asheville, for Roy Lee Fox, defendant.

John H. Giezentanner, Asheville, for Robert Carson McMahan, defendant.

SHARP, Justice.

Each appellant assigns as error the court's denial of his motion for a separate trial. These assignments raise the question whether a defendant, who is jointly indicted with another or others and moves for a severance, has a right to a separate trial when the State will offer in evidence the confession or admission of a codefendant which implicates the movant in the crime charged and is inadmissible against him.

At the time this case was tried below, we followed the general rule that whether defendants jointly indicted would be tried jointly or separately was in the sound discretion of the trial court, and, in the absence of a showing that a joint trial had deprived the movant of a fair trial, the exercise of the court's discretion would not be disturbed upon appeal. State v. Battle, 267 N.C. 513, 148 S.E.2d 599; State v. Hines, 266 N.C. 1, 145 S.E.2d 363; State v. Bryant, 250 N.C. 113, 108 S.E.2d 128; Annot., Right to severance where codefendant has incriminated himself, 54 A.L.R.2d 830 (1957). In State v. Bonner, 222 N.C. 344, 23 S.E.2d 45, this Court held that a joint trial had resulted in prejudice to the defendants and ordered a severance. The two defendants were tried jointly under separate bills of indictment for the first degree murder of Ira L. Godwin. The State relied for conviction solely upon each defendant's separate confession, which incriminated the other defendant, who had not acquiesced in it. Motions for separate trials were overruled and each was convicted. Upon appeal, this Court held that, despite the court's instructions to the jury to consider a confession only against the maker, the admission of the incriminating statements of one defendant had obviously prejudiced the trial of the other and that at the close of all the evidence the judge should have declared a mistrial and ordered a severance. See State v. Battle, supra; 1 Strong, N.C. Index, Criminal Law § 87 (1957).

Ordinarily, however, the admission of the extrajudicial confession of one codefendant, even though it implicated another against whom it was inadmissible, was held not to be error, Provided the trial judge instructed the jury that the confession was evidence only against the confessor and must not be considered against another. State v. Lynch, 266 N.C. 584, 146 S.E.2d 677; Stansbury, N.C. Evidence § 188 (2d ed. 1963). In countenancing that rule, the court realized fully that the jury might find it difficult to follow the court's instructions and to put out of their minds those portions of a confession which implicated codefendant(s), yet, after weighing all the circumstances, the court thought that procedure the best solution of the difficult problem, and that it could not assume a jury would ignore the trial judge's instructions. State v. Kerley, 246 N.C. 157, 97 S.E.2d 876. A confession legally obtained is clearly competent against the defendant who made it and the best evidence of his guilt. A severance requires multiple trials on exactly the same evidence, except as to the confessions, and, as in the instant case, the State's evidence frequently warrants an indictment against all the defendants for conspiracy to commit the crimes charged. State v. Egerton, 264 N.C. 328, 141 S.E.2d 515.

The North Carolina rule was also the federal rule. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957). In Delli Paoli, the District Court admitted in evidence the confession of one of two defendants but instructed the jury that it was to consider it only in determining the guilt of the confessor. In affirming the appellant's conviction the Supreme Court of the United States said:

'* * * Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court's instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.

"To say that the jury might have been confused amounts to nothing more than an unfounded speculation that the jurors disregarded clear instructions of the court in arriving at their verdict. Our theory of trial relies upon the ability of a jury to follow instructions.' * * * Opper v. United States, 348 U.S. 84, (75 S.Ct. 158, 99 L.Ed. 101).' Id. at 242, 77 S.Ct. at 300, 1 L.Ed.2d at 286.

On 20 May 1968, however, 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 overruled Delli Paoli v. United States, supra. In Bruton, the two defendants, Bruton and Evans, were tried jointly in the District Court on a federal charge of armed postal robbery. Evans' confession, which implicated Bruton, was admitted in evidence. Relying upon Delli Paoli, the trial judge instructed the jury that Evans' confession was incompetent hearsay against Bruton and should not be considered in determining his guilt or innocence. In reversing the decision of the United States Court of Appeals for the Eighth Circuit, which had affirmed Bruton's conviction, the Supreme Court repudiated the basic premise of Delli Paoli and quoted a statement by Chief Justice Traynor in People v. Aranda, 63 Cal.2d 518, 529, 47 Cal.Rptr. 353, 407 P.2d 265, 271--272 (1965):

'* * * A jury cannot 'segregate evidence into separate intellectual boxes.' * * * It cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A.'

Mr. Justice Brennan, delivering the opinion of the Court in Bruton, said:

'* * * We hold that, because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner's guilt, admission of Evans' confession in this joint trial violated petitioner's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. We therefore overrule Delli Paoli and reverse.

'* * *

'* * * Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.' Id. 391 U.S. at 126 and 136, 88 S.Ct. at 1622 and 1628, 20 L.Ed.2d at 479 and 485.

In Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), the Supreme Court held that Bruton is to be applied retroactively. In Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), it was held that 'the Sixth Amendment's right of an accused to confront the witnesses against him is * * * a fundamental right and is made obligatory on the States by the Fourteenth Amendment.' Id. at 403, 85 S.Ct. at 1068, 13 L.Ed.2d at 926. Bruton, therefore, is binding upon this Court and controls decision here.

The result is that in joint trials of defendants it is necessary to exclude extrajudicial confessions unless all portions which implicate defendants other than the declarant can be deleted without prejudice either to the State or the declarant. If such deletion is not possible, the State must choose between relinquishing the confession or trying the defendants separately. The foregoing pronouncement presupposes (1) that the confession is inadmissible as to the codefendant (see State v. Bryant, supra), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra, 246 N.C. at 160, 97 S.E.2d at 879.

In this case, Arrlie Fox testified and was cross-examined by his codefendants. His statement, therefore, did not come within the ban of Bruton. However, no other defendant testified, and the confession of each--which implicated all the others--was admitted in evidence over their objections as were the statements of Carson McMahan (S--52 and S--53) with reference to two previous robberies. Thus, the decision in Bruton requires that appellants' convictions be set aside and a new trial awarded each of them.

A new trial requires consideration of the assignments of error by which each appellant challenges the admissibility of his confession. The confessions in question were made in November 1964. Their admissibility therefore is not dependent upon whether McMahan and Fox were given the warnings specified in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), decided 13 June 1966; Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). The question remains, however, whether they were freely and voluntarily given and whether the officers obtaining the confessions employed the procedural safeguards then applicable. We consider first the confession of Carson McMahan.

It has been the law of this State from its beginning that an extrajudicial confession of guilt by an accused is admissible against him only when it is voluntary. State v. Vickers, 274 N.C. 311, 163 S.E.2d 481; State v. Gray, 268 N.C. 69, 150 S.E.2d 1; State v. Warren, 235 N.C. 117, 68 S.E.2d 779; State v. Roberts, ...

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