State v. Parrish

• Decision Date: 21 January 1969
• Docket Number: No. 823,823
• Citation: 275 N.C. 69,165 S.E.2d 230
• Parties: STATE of North Carolina v. Lonnie PARRISH.
• Court: North Carolina Supreme Court

Page 230

165 S.E.2d 230

275 N.C. 69

STATE of North Carolina v. Lonnie PARRISH.

No. 823.

Supreme Court of North Carolina.

Jan. 21, 1969.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Deputy Atty. Gen., for the State.

James E. Long, Graham, for defendant-appellant.

HUSKINS, Justice.

Defendant Parrish contends that the Talalah and Mansfield houses had been vacated and left open and the items of personal property located in them abandoned. He requested numerous special instructions with respect to abandoned property and assigns as error the court's refusal to give them. We have reviewed the evidence and the requested instructions. There is no merit in defendant's position. The Court of Appeals correctly held that there was no evidence which would justify or require instructions with respect to abandoned property.

Defendant filed a supplemental brief in this Court asserting, for the first time, that his constitutional rights were violated in that the trial court, in a joint trial where the confessor did not take the stand, admitted in evidence the extrajudicial confession of Jimmy Harris implicating this defendant in the crimes for which they were both on trial. He asserts this violated his constitutional right 'to be confronted with the witnesses against him' as guaranteed by the Sixth Amendment to the Federal Constitution.

Defendant's position was unsound at the time this case was tried below. At that time (January 1968) it was not error to admit the extrajudicial confession of one defendant, even though it implicated a codefendant against whom it was inadmissible, provided the trial judge instructed the jury to consider the confession only against the defendant who made it. State v. Lynch, 266 N.C. 584, 146 S.E.2d 677; State v. Bennett, 237 N.C. 749, 76 S.E.2d 42. The federal rule likewise sanctioned the admission of the confession of one defendant in a joint trial if the court instructed the jury to consider it only against the confessor. Delli Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957).

Since the trial of this case, however, the United States Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (May 20, 1968), overruled Delli Paoli and held that in a joint trial the admission of the confession of one defendant, who did not take the stand, implicating the other violated the codefendant's right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. The decision in Bruton is retroactive, Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100, (1968); and the right of confrontation is obligatory on the states by the Fourteenth Amendment to the Federal Constitution. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

The rule now applicable in North Carolina is summarized by Sharp, J., with her usual clarity, in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (October 9, 1968), as follows: '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, 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, 97 S.E.2d 876.

Fox would control decision here had the question been raised in the court below and passed on in the Court of Appeals. This was not done. The Supreme Court reviews the decision of the Court of Appeals for errors of law allegedly committed by it and properly brought forward for review. G.S. § 7A--31. It will not ordinarily pass upon a constitutional question unless it affirmatively appears that such question was timely raised and passed upon in the trial court if it could have been, or in the Court of Appeals, if, as here, the question arose after the trial. State v. Colson, 274 N.C. 295, 163 S.E.2d 376. Even so, we have discussed the question since Fox will control admissibility of the Harris confession at the next trial.

Although not brought forward for review in compliance with our rules, the Court considers it appropriate to take cognizance of the following excerpts from the charge, which was defendant's Assignment of Error No. 9 in the Court of Appeals:

'* * * and that the defendants Or either of them intentionally broke and entered the said dwelling house with the intent to commit the felony of larceny as I have heretofore defined that term to you, then it would be your duty to return a verdict of guilty as charged in the first count in this bill of indictment Against both or either of these two defendants. If you do not find from the evidence and beyond a reasonable doubt it will be your duty to return a verdict of Not Guilty Against either or both of the defendants; or, upon the whole evidence in the case there remains in your mind a reasonable doubt as to Both or either one of these defendants' guilt, it would be your duty to give Either him or them the benefit of that reasonable doubt and to Acquit him or them, on the first count in the bill of indictment as to breaking and entering of the Talalah home.'

'So, you are instructed if you find from the evidence and beyond a reasonable doubt that on or about the 19th day of October, 1967, in this county, the defendant Lonnie Parrish and the defendant Jimmy Robert Harris or Either of these two defendants without the consent of Frances Talalah took and carried away the personal...