State v. Moore

ON PETITION TO REHEAR

TATUM, Judge.

The appellant, James Carter, has filed a petition to rehear, requesting this court to suspend the requirements of Rule 27(a)(7) of the Tennessee Rules of Appellate Procedure, and Rule 10(b) of the Rules of the Court of Criminal Appeals and to consider on its merits the issue of whether the trial court erred in not granting his Motion for Severance so as to allow him to be tried separately from the defendant James Moore. We held that this issue had been waived due to Carter’s failure to make appropriate reference to the portion of the record relied upon (as required by Rule 27(a)(7), T.R.A.P.), as to where in the record an order denying a severance was made. In the Petition for Rehearing, defense counsel has cited the portion of the voluminous record dealing with the trial court’s oral denial of the appellant’s Motion for Severance. No written order was entered on the pre-trial motion but we elect to grant the petition, limited to a reconsideration of the above-stated issue.

The appellant argues that the joint trial with defendant Moore violated Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The appellant says that a statement made by defendant Moore to police implicated him as being with Moore at the car lot when the getaway vehicle was purchased. The testimony of the police officer as to Moore’s oral statement is as follows:

“Well, he was quick to tell us that he had been in the park up by Lincoln Courts and that somebody had approached him up there and asked him if he knew where that he could buy a cheap automobile and stated that he did know, and then he said either later that day or a day or so following that that somebody came by and picked him up and told him he had the money and wanted him to show him where to get the car. He said that he went to — rode with this fellow to a — either a maroon Oldsmobile or Cadillac and got in that and rode out to Frazier’s Used car Lot where a deal was made on a ’73 maroon and white Pontiac, but he said that the deal couldn’t be closed because they didn’t have a $300.00 car; that they only had a $400.00 car, but finally reached an agreement to buy one for the sum of $350.00, and that after the car was bought that he merely drove it out on Hollywood Drive and parked it and put an ‘out of gas’ sign on it and left it, and that’s the last time he saw the car.”

In his brief, the defendant argues that there was other evidence in the record that he owned a maroon Oldsmobile and that the jury could relate this fact to Moore’s statement that he rode with the other “fellow” to the used car lot in a maroon Oldsmobile or in “a maroon Oldsmobile or a Cadillac.” We still do not have a reference as to where in the record this evidence may be found. However, as summarized in the main opinion, there is positive and clear testimony from other sources that Carter was at the used car lot with Moore. Other evidence of Carter’s guilt is overwhelming. Therefore, any Bruton violation was harmless beyond a reasonable doubt. See Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967). We overrule this issue.

We adhere to our original judgment affirming the appellant’s convictions.