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State v. Golphin8/25/2000
will follow the trial judge's instructions to disregard such information.'" Barnes, 345 N.C. at 218, 481 S.E.2d at 62 (quoting Bruton, 391 U.S. at 135, 20 L. Ed. 2d at 484-85). We stated that the statement the defendant complained of was not "powerfully incriminating" when viewed in the context of the evidence against him, that the reference to "them" in the statement was not made in the context of any specific statements about the killings, and that the trial court cautioned the jury with respect to the statement. Id. at 217-18, 481 S.E.2d at 62. We concluded that the statement did not clearly identify the defendant or create a substantial risk that the jury would ignore the trial court's instructions in its determination of the defendant's guilt. Id. at 218, 481 S.E.2d at 62.
Similarly, in the instant case, considering the evidence against Kevin, Tilmon's statement to Kinlaw was not "powerfully incriminating" toward Kevin. Kinlaw testified that Tilmon told him that Tilmon stole the car, that there was a plan to rob a Food Lion in Virginia so Tilmon could get money to go to Jamaica, and that Tilmon got out of the car with an "AK-47" and shot the two officers when he saw them attempting to spray Kevin with "Mace." Although the statement did not eliminate all reference to Kevin and his existence, as was the situation in Richardson, 481 U.S. at 211, 95 L. Ed. 2d at 188, the reference to "they" in the statement was not in connection with the "plan" to rob the Food Lion to get money to go to Jamaica, as Kevin argued, see Barnes, 345 N.C. at 217-18, 481 S.E.2d at 62. In addition, the trial court repeatedly cautioned the jury to consider the evidence against each defendant separately. As in Barnes, we conclude Tilmon's statement to Kinlaw did not clearly make reference to Kevin in relation to the plan or create a substantial risk that the jury would ignore the trial court's instructions in its determination of Kevin's guilt. See id. Therefore, Kevin's assignment of error is overruled.
By assignment of error, Kevin argues the trial court erred in admitting into evidence a portion of his statement to police in violation of his state and federal constitutional rights. Specifically, Kevin contends he had invoked his right to silence with respect to a particular topic, and the investigator continued to ask him questions regarding that topic. We disagree.
Prior to trial, Kevin made a motion to suppress his statement to law enforcement officers on the basis that he did not waive his right to have a parent, guardian, or custodian present during questioning. Following a hearing, the trial court denied the motion, concluding that Kevin freely, voluntarily, and understandingly waived his rights including the right to have a parent, guardian, or custodian present.
Thereafter, during trial, Agent Tilley testified concerning the interview he conducted with Kevin on 23 September 1997. Agent Tilley stated that prior to asking any case-specific questions, he informed Kevin of his juvenile rights, which include the rights to remain silent; to have a parent, guardian, or custodian present during questioning; and to have an attorney. Agent Tilley then read Kevin the waiver of rights form, which Kevin subsequently signed.
Agent Tilley testified that Kevin then told him of the events of 23 September 1997. After Kevin completed his recitation of the events, Agent Tilley informed him he was aware of an incident involving a Jeep. Agent Tilley testified that Kevin said "he didn't want to say anything about the jeep. He did not know who it was or he would have told us." Agent Tilley then asked about the Jeep incident, and Kevin stated that Tilmon shot at the Jeep while Kevin drove past it
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