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State v. Golphin8/25/2000
ng Maced, and that a deputy sheriff had pulled up and got out. And as he [the deputy sheriff] was running over to where the trooper, uh, and his brother were, he was --
. . . He was pulling out his Mace. And when he seen that, he got out of the car with a AK-47 and shot the two officers. (Emphasis added.)
On appeal, Kevin contends the trial court's redactions were not sufficient to preserve Kevin's rights under Bruton because the reference to "a plan" implicated him. Pursuant to Rule 10(b)(1) of the North Carolina Rules of Appellate Procedure, however, "a party must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make" in order to preserve a question for appellate review. N.C. R. App. P. 10(b)(1). Kevin's only objection came prior to the voir dire of Kinlaw. Kevin did not object to the trial court's suggested redaction, nor did he object when Kinlaw actually testified as instructed by the trial court. As there was no further objection to the trial court's response to the original objection, Kevin violated Rule 10(b)(1). Because of the constitutional nature of Kevin's argument, in our discretion pursuant to N.C. R. App. P. 2, we will address the merits of Kevin's argument.
As we have previously stated, the Supreme Court in Bruton, 391 U.S. 123, 20 L. Ed. 2d 476, held the defendant's Confrontation Clause rights were violated by the admission of a non-testifying co-defendant's confession that implicated the defendant in the crime. See Barnes, 345 N.C. at 214, 481 S.E.2d at 60. The Supreme Court noted that the confession was "powerfully incriminating" and then explained that because there was a substantial risk the jury would look to the extra-judicial statements in determining the defendant's guilt, despite instructions to the contrary, admission of the co-defendant's confession violated the defendant's right of cross-examination guaranteed by the Confrontation Clause of the Sixth Amendment. See id. at 214-15, 481 S.E.2d at 60.
Kevin contends the instant case is more like Gray v. Maryland, 523 U.S. 185, 140 L. Ed. 2d 294 (1998). In Gray, the Supreme Court held Bruton's protective rule applied to the co-defendant's confession, which merely substituted blanks and the word "delete" for the defendant's actual name. See id. at 188, 140 L. Ed. 2d at 298. The State, on the other hand, argues the case is more similar to Richardson v. Marsh, 481 U.S. 200, 95 L. Ed. 2d 176 (1987). In Richardson, the Supreme Court held the Confrontation Clause was not violated where a non-testifying co-defendant's confession was redacted so as to eliminate the defendant's name as well as any reference to the defendant's existence. See id. at 211, 95 L. Ed. 2d at 188.
We find the instant case more similar to Barnes, 345 N.C. at 217, 481 S.E.2d at 62, wherein this Court found Bruton distinguishable. A co-defendant in Barnes stated, "I shouldn't have gone with them," and the defendant argued that the statement was prejudicial in that it was "particularly significant" and that it violated his due process and confrontation rights. Id. This Court recognized that while the Supreme Court in Bruton held the introduction of a co-defendant's hearsay statement "posed a substantial threat to [the defendant's] right to confront the witnesses against him" and therefore constituted reversible error, Bruton, 391 U.S. at 137, 20 L. Ed. 2d at 486, the Supreme Court also stated that "` ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions . . . . It is not unreasonable to conclude that in many such cases the jury can and
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