State v. Heard

BRITT, Judge.

Defendant Heard’s Appeal

Defendant Heard assigns as error the consolidation of his and defendant Jones’ cases for trial, contending that he was prejudiced by the joint trial of the cases and particularly the evidence relating to the in-custody statement made by defendant Jones. We find no merit in the assignment.

It is well settled that ordinarily the trial court may order that prosecutions of several defendants for offenses growing out of the same transaction be consolidated for trial. 2 Strong, N. C. Index, Criminal Law, § 92, pp. 623-624. However, this principle appears to be subject to the holding stated in State v. Fox, 274 N.C. 277, 291, 163 S.E. 2d 492, 502 (1968), as follows:

“. . . [I]n joint trials of defendants it is necessary to exclude extrajudicial 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 codefendant (see State v. Bryant, supra [250 N.C. 113, 108 S.E. 2d 128]), and (2) that the declarant will not take the stand. If the declarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra [246 N.C. 157, 97 S.E. 2d 876] at 160, 97 S.E. 2d at 879.” (Emphasis added.)

See also State v. Wright, 282 N.C. 364, 192 S.E. 2d 818 (1972).

In the case at bar, defendant Jones (the declarant) took the witness stand and was cross-examined by defendant Heard. Therefore, we perceive no prejudice to defendant Heard.

Defendant Jones’ Appeal

Although in his brief defendant Jones argues several assignments of error, he placed greatest stress on assignment number 2 in which he contends the trial judge erred by allowing into evidence the in-custody confession of codefendant Heard. The part of the confession that defendant Jones contends was most damaging to him was the following statement: “That he and two other men went to the store; that all of them knew what they were going there for and what they were going to do after they got there, and he and two other persons stated and agreed that if they got caught they would not tell on the other,”

Inasmuch as defendant Heard did not take the witness stand, we think the holding in Fox, quoted above, applies and the court committed error as to defendant Jones in admitting that part of defendant Heard’s confession implicating defendant Jones. However, considering the strong admissible evidence presented against defendant Jones, we hold that the error was harmless beyond a reasonable doubt. State v. Cox, 281 N.C. 275, 188 S.E. 2d 856 (1972); State v. Doss, 279 N.C. 413, 183 S.E. 2d 671 (1971); State v. Jones, 280 N.C. 322, 185 S.E. 2d 858 (1972); Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284, 89 S.Ct. 1726 (1969).

We have considered the other assignments of error brought forward and argued in defendant Jones’ brief but find them to be without merit.

In the trial of both defendants, we find

No error.

Judges Morris and Baley concur.