State v. McEachin ( 1973 )

CAMPBELL, Judge.

Rules concerning the use and exclusion of hearsay evidence and the confrontation clause of the Sixth Amendment are generally designed to protect similar values. However, that is not to say that the confrontation clause is nothing more or less than a codification of the rules of hearsay. There may be a violation of the confrontation values even though the statements in issue were admitted under a hearsay exception, just as there may not be a violation of confrontation values in another case just because evidence has been admitted in violation of the hearsay evidence rules. Dutton v. Evans, 400 U.S. 74, 27 L.Ed. 2d 213, 91 S.Ct. 210 (1970).

However, since the Sixth Amendment’s right of an accused to confront the witness against him is a fundamental right made obligatory on the states by the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 13 L.Ed. 2d 923, 85 S.Ct. 1065 (1965), there is some point at which the admission of hearsay evidence is a denial of that constitutional right.

In Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968), there was a joint trial of two defendants in Federal District Court. During the course of the trial a postal inspector testified as to the extrajudicial confession of one of the defendants; that defendant did not testify. The court instructed the jury that the confession testimony could not be used against both defendants, but only against the defendant whom it was alleged had made the statement. Both were convicted, and the United States Supreme Court reversed.

The confession added substantial weight to the government’s case in a form not subject to cross-examination, thereby violating the other defendant’s Sixth Amendment right of cross-examination. This encroachment on Bruton’s constitutional right could not be avoided by a jury instruction to disregard the confession as to him.

“ . The naive assumption that prejudicial effects can be overcome by instructions to the jury ... all practicing lawyers know to be unmitigated fiction. . . .’”

“ . The government should not have the windfall of having the jury be influenced by evidence against a defendant which, as a matter of law, they should not consider but which they cannot put out of their minds.’ . . Bruton v. United States, supra.

In Roberts v. Russell, 392 U.S. 293, 20 L.Ed. 2d 1100, 88 S.Ct. 1921 (1968), the Supreme Court held that the Bruton ruling was applicable to state trials, since the rule corrected a serious flaw in the fact-finding process at trial.

“ ‘[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. . . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant . . . are deliberately spread before the jury in a joint trial.’ ” Roberts v. Russell, supra.

However, in Nelson v. O’Neil, 402 U.S. 622, 29 L.Ed. 2d 222, 91 S.Ct. 1723 (1971), the Supreme Court held that the Bruton rule did not apply to that particular joint trial.

O’Neil involved a joint trial of two defendants; a police officer was allowed to testify to the extrajudicial confession of one of the defendants, and the trial court gave a limiting instruction to the jury. The defendant who allegedly made the confession testified, and denied having made the statement, asserted that the substance of the statement was false and gave testimony favorable to the other codefendant. The Supreme Court held that although the counsel for the nontestifying defendant chose not to cross-examine, he had the opportunity to do so and therefore that defendant was not denied rights protected by the Sixth and Fourteenth Amendments.

“It was clear in Bruton that the ‘confrontation’ guaranteed by the Sixth and Fourteenth Amendments is confrontation at trial — that is, that the absence of the defendant at the time the codefendant allegedly made the out-of-court statement is immaterial, so long as the declarant can be cross-examined on the witness stand at trial. . . . The Constitution as construed in Bruton, in other words, is violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for ‘full and effective’ cross-examination.” Nelson v. O’Neil, supra.

From this review of federal cases it is clear that the out-of-court confession of Wingate is admissible in evidence against Mm in the joint trial where Wingate is available for cross-examination; that is, where Wingate takes the stand to testify, not having exercised his right to remain silent. However, the reception of such hearsay evidence still requires an instruction from the court that it can only be considered against the defendant who allegedly made the confession.

In view of the suspected value of such limiting instructions, and in view of the decision in State v. Franklin, 248 N.C. 695, 104 S.E. 2d 837 (1958), we hold that the trial court’s limiting instruction in the instant case was insufficient to protect Me-Eachin’s right to a fair trial.

Error in overruling McEachin’s objection to the hearsay confession as against him was not cured by a later instruction that such evidence could only be used against Wingate where there was no reference in the charge to the prior erroneous ruling noting its correction, and where there was no instruction that the jury should disabuse their minds of any and all prejudicial impressions lodged by the incompetent evidence. State v. Franklin, supra.

Since the circumstances upon which appellant’s other assignments' of error are based may not occur in a second trial, we refrain from discussing them.

New trial.

Judges Hedrick and Graham concur.