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State v. Golphin8/25/2000
he states by way of the Fourteenth Amendment. See Pointer, 380 U.S. at 403, 13 L. Ed. 2d at 926; State v. Parrish, 275 N.C. 69, 73-74, 165 S.E.2d 230, 234 (1969).
"The result is that in joint trials of defendants it is necessary to exclude extra-judicial 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 co-defendant . . . , and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a co-defendant has been accorded his right to confrontation." State v. Tucker, 331 N.C. 12, 23-24, 414 S.E.2d 548, 554 (1992) (quoting State v. Fox, 274 N.C. 277, 291, 163 S.E.2d 492, 502 (1968)) (alteration in original).
Tilmon, however, waived any Bruton objection by signing the "Notice of Waiver of Right" in which he explicitly "waive any constitutional or statutory objection that may have under [Bruton] and N.C.G.S. § 15A-927 regarding the redaction and/or admission of the statement of a non-testifying co-defendant." Additionally, Tilmon's attorney stated in open court there was "no objection to the introduction of the statement of Kevin Golphin [taken by the agents on the date of his arrest] as it relates to Tilmon Golphin." See United States v. Flaherty, 76 F.3d 967, 971 (8th Cir. 1996) (holding the defendant waived a Bruton challenge when he did not mention Bruton when the co-defendant's statements were admitted and the trial court gave the cautionary instruction requested by defendant); State v. Hutchins, 303 N.C. 321, 341-42, 279 S.E.2d 788, 801 (1981) (holding constitutional guarantees are not absolute as defendants "may waive the benefit of constitutional guarantees by express consent, failure to assert it in apt time, or by conduct inconsistent with a purpose to insist upon it"). Therefore, we conclude Tilmon waived appellate review of severance based on a Bruton violation.
Tilmon further contends, pursuant to State v. Boykin, 307 N.C. 87, 296 S.E.2d 258 (1982), and State v. Alford, 289 N.C. 372, 222 S.E.2d 222, death sentence vacated sub nom. Carter v. North Carolina, 429 U.S. 809, 50 L. Ed. 2d 69 (1976), that severance was appropriate because he was precluded from offering exculpatory evidence that would have been available if the cases had not been joined. However, contrary to Tilmon's argument, this case is distinguishable from Boykin and Alford. In Boykin, this Court held the defendant "was prejudiced by the court's consolidation of cases because he was prevented from testifying as to his motive in making his `false confessions.'" Boykin, 307 N.C. at 91, 296 S.E.2d at 260. The trial court allowed the State to introduce the admission, but because of the joint trial, the trial court did not permit the defendant to explain that the "confessions" were intended to protect the co-defendant, who had previously been convicted of murder. Id. This Court also held the defendant was prevented from eliciting testimony that the co-defendant had also confessed to the crime. Id. The instant case is distinguishable in that Tilmon was not prevented from providing a motive for his own statements as was the case in Boykin. Tilmon contends other witnesses did not wish to testify because of the negative effect on Kevin. Tilmon's inability to elicit information about a possible motive Kevin may have had is also dissimilar from the situation in Boykin where the defendant was prevented from actually testifying about his own motive for giving false confessions.
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