Crowder v. State , 237 Ga. 141 ( 1976 )

Hall, Justice,

dissenting.

I dissent to a reversal of this conviction. The majority opinion fails to distinguish between Berry’s statement to the police that, "If I tell you what I know, Crowder will kill me,” and his later confession. The statement was made at a time when both parties were concealing their participation in the crime. This utterance falls clearly Within the scope of Code § 38-306, and is not a "confession” within the meaning of Code § 38-414. It was properly admitted into evidence as an act of a co-conspirator "during the pendency of the criminal project.” See Munsford v. State, 235 Ga. 38 (218 SE2d 792) (1975); Hill v. State, 232 Ga. 800 (209 SE2d 153) (1974); Evans v. State, 222 Ga. 392 (150 SE2d 240) (1966); Burn v. State, 191 Ga. 60 (11 SE2d 350) (1960).

With respect to the erroneous admission of the confession, "The mere finding of a violation of the Bruton rule in the course of the trial . . . does not automatically require reversal of the ensuing criminal conviction . . . [w]e must determine [the issue] on the basis of 'our own reading of the record and on what seems to us to have been the probable impact... on the minds of an average jury.’ Harrington v. California. .. In Bruton the court pointed out that 'a defendant is entitled to a fair trial but not a perfect one’. . . Thus, unless there is a reasonable possibility that the improperly admitted evidence contributed to the conviction, reversal is not required.” Schneble v. Florida, 405 U. S. 427, 430, 432 (1972). For a later decision holding a Bruton violation harmless, see Brown v. United States, 411 U. S. 223 (1973). Harmless error was also found on an inadmissible confession in Milton v. Wainwright, 407 U. S. 371 (1972).

The evidence of guilt as set forth in the majority opinion is overwhelming in this case.

I would affirm the conviction.

I am authorized to state that Chief Justice Nichols and Justice Jordan concur in this dissent.