State v. Slate

• Citation: 38 N.C.App. 209,247 S.E.2d 430
• Decision Date: 03 October 1978
• Docket Number: No. 7817SC280,7817SC280
• Court: North Carolina Court of Appeals
• Parties: STATE of North Carolina v. Bill SLATE and Romney Lee Carson.

Page 430

247 S.E.2d 430

38 N.C.App. 209

STATE of North Carolina v. Bill SLATE and Romney Lee Carson.

No. 7817SC280.

Court of Appeals of North Carolina.

Oct. 3, 1978.

Neaves, Everett & Peoples by Charles M. Neaves, Elkin, for defendants-appellants.

MITCHELL, Judge.

APPEAL OF BILL SLATE

The defendant, Bill Slate, assigns as error the trial court's admission into evidence of the extrajudicial statement of his codefendant Carson and the trial court's failure to instruct the jury that Carson's extrajudicial statement could only be considered against him and was not admitted as evidence against Slate. This assignment of error is meritorious.

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 held that the extrajudicial confession of a defendant implicating his codefendant could not be admitted into evidence, where the defendant making the confession did not testify at their joint trial. The court held that to admit such evidence would constitute a denial of the codefendant's rights under the confrontation clause of the Sixth Amendment to the Constitution of the United States, which could not be remedied by a limiting instruction directing the jury to consider such evidence only against the confessing defendant. Here, however, the defendant whose extrajudicial confession was admitted testified in his own defense and denied making the statement. Further, he gave testimony during the joint trial favorable to his codefendant Slate. The defendant Slate could not have hoped for a more effective exercise of his right to confront and cross-examine this witness. Therefore, the extrajudicial confession of Carson implicating Slate was admissible at their joint trial. Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971).

Although the extrajudicial confession of Carson was admissible at the joint trial of the defendants, we hold it was admissible only as evidence against him and not as evidence against his codefendant Slate. After Carson took the stand and testified at the joint trial of the two defendants, the admission of his extrajudicial confession was no longer violative of the Sixth Amendment. Its admission against Slate, however, remained a violation of long established principles of law controlling in this jurisdiction. As to Slate, the extrajudicial statement of Carson was inadmissible hearsay. The extrajudicial statement of Carson did not become exceptionally admissible as corroborative evidence solely by virtue of the fact that Carson took the stand and testified. Instead of corroborating Carson's testimony, the testimony of Captain Scott as to Carson's extrajudicial statement tended to destroy his credibility and greatly reduce the weight of his testimony and was not admissible as corroborative evidence. State v. Lassiter, 191 N.C. 210, 131 S.E. 577 (1926). Although the extrajudicial statement of Carson tending to implicate Slate was admissible at their joint trial, it was admissible only as evidence against Carson. Therefore, the trial court erred in failing to instruct the jury that Carson's statement was admitted into evidence only against him and could not be considered against Slate. When two defendants are jointly tried, the extrajudicial confession of one may be received in evidence over the objection of the other Only when the trial court instructs the jury that the confession is admitted as evidence against the defendant who made it but is not evidence and may not be considered by the jury in any way in determining the charges against his codefendant. State v. Lynch, 266 N.C. 584,

146 S.E.2d 677 (1966); State v. Bennett, 237 N.C. 749, 76 S.E.2d 42 (1953); 2 Stansbury's, N. C. Evidence, § 188 (Brandis Rev.1973). Failure to give the required instruction will necessitate a new trial in Slate's case (76CR9012).

APPEAL OF ROMNEY LEE CARSON

The defendant, Romney Lee Carson, assigns as error that portion of the trial court's final instructions to the jury setting forth the elements of the offense of receiving stolen goods. The defendant contends that the trial court failed to properly instruct the jury that, before they could return a verdict of guilty of receiving stolen goods in violation of G.S. 14-71, they must find from the evidence that the goods were stolen by someone other than the accused. The defendant asserts that this constituted a failure to charge on an essential element of the offense of receiving stolen goods and requires he be granted a new trial.

When a trial court...