State v. Heard

• Decision Date: 10 April 1974
• Docket Number: No. 61,61
• Citation: 285 N.C. 167,203 S.E.2d 826
• Parties: STATE of North Carolina v. Calloway HEARD and Ronald Excell Jones.
• Court: North Carolina Supreme Court

Page 826

203 S.E.2d 826

285 N.C. 167

STATE of North Carolina v. Calloway HEARD and Ronald Excell Jones.

No. 61.

Supreme Court of North Carolina.

April 10, 1974.

Atty. Gen. Robert Morgan by Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.

Ward, Tucker, Ward & Smith by Michael P. Flanagan and C. H. Pope, Jr., New Bern, for defendant appellant Ronald Excell Jones.

BRANCH, Justice.

Defendant Jones contends that the trial judge erred by admitting into evidence the confession of his codefendant Calloway Heard who did not testify at their trial.

Defendant particularly points to that portion of Heard's confession which stated: 'That he and two other men went to the store; that all of them knew what they were going there for and what they were going to do after they got there, and he and two other persons stated and agreed that if they got caught they would not tell on the other.'

Prior to the decision in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (decided 20 May 1968), it was the federal and North Carolina rule that the admission of the extrajudicial confession of one codefendant which implicated another codefendant against whom it was inadmissible was not error when the trial judge instructed the jury that it was admissible only against the confessor and must not be considered against another.

In Bruton, the United States Supreme Court held that an accused's Constitutional right of cross-examination is violated at his joint trial with a codefendant who does not testify, when the Court admits the codefendant's confession inculpating the accused, notwithstanding jury instructions that the confession must be disregarded in determining the accused's guilt or innocence.

Recognizing the binding effect of the decision in Bruton on this Court, Justice Sharp, speaking for the Court in State v. Fox, 274 N.C. 277, 163 S.E.2d 492, stated the rule that is now the recognized law in this jurisdiction, to wit:

'. . . 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 (250 N.C. 113, 108 S.E.2d 128)), 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 (246 N.C. 157), at 160, (97 S.E.2d 876), at 879.'

In instant case, the Court of Appeals adhered to the rule stated in Bruton and Fox and correctly found that the trial judge erred when he admitted the confession of the codefendant Heard, who did not testify and who was not subjected to a cross-examination. The Court of Appeals, however, held the admission of this evidence to be 'harmless error'.

We must now decide whether the admission of this evidence complained of was, in fact, harmless error.

We recognize that all Federal Constitutional errors are not prejudicial, and under the facts of a particular case, they may be determined to be harmless, so as to not require an automatic reversal upon conviction. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Nevertheless, before a court can find a Constitutional error to be harmless it must be able to declare a belief that such error was harmless beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340; Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705; Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171; State v. Cox and State v. Ward and State v. Gary, 281 N.C. 275, 188 S.E.2d 356; State v. Jones, 280 N.C. 322, 185 S.E.2d 858; State v. Swaney, 277 N.C. 602, 178 S.E.2d 399; State v. Brinson, 277 N.C. 286, 177 S.E.2d 398.

The State relies heavily on Harrington v. California, Supra. In Harrington, the defendants...