State v. HeardAnnotate this Case
203 S.E.2d 826 (1974)
285 N.C. 167
STATE of North Carolina v. Calloway HEARD and Ronald Excell Jones.
Supreme Court of North Carolina.
April 10, 1974.
*828 Atty. Gen. Robert Morgan by Asst. Atty. Gen. Walter E. Ricks, III, Raleigh, for the State.
Ward, Tucker, Ward & Smith by Michael P. Flanagan and C. H. Pope, Jr., New Bern, for defendant appellant Ronald Excell Jones.
Defendant Jones contends that the trial judge erred by admitting into evidence the confession of his codefendant Calloway Heard who did not testify at their trial.
Defendant particularly points to that portion of Heard's confession which stated: "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."
*829 Prior to the decision in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (decided 20 May 1968), it was the federal and North Carolina rule that the admission of the extrajudicial confession of one codefendant which implicated another codefendant against whom it was inadmissible was not error when the trial judge instructed the jury that it was admissible only against the confessor and must not be considered against another.
In Bruton, the United States Supreme Court held that an accused's Constitutional right of cross-examination is violated at his joint trial with a codefendant who does not testify, when the Court admits the codefendant's confession inculpating the accused, notwithstanding jury instructions that the confession must be disregarded in determining the accused's guilt or innocence.
Recognizing the binding effect of the decision in Bruton on this Court, Justice Sharp, speaking for the Court in State v. Fox, 274 N.C. 277, 163 S.E.2d 492, stated the rule that is now the recognized law in this jurisdiction, to wit:". . . in 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 [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 [246 N.C. 157], at 160, [97 S.E.2d 876], at 879."
In instant case, the Court of Appeals adhered to the rule stated in Bruton and Fox and correctly found that the trial judge erred when he admitted the confession of the codefendant Heard, who did not testify and who was not subjected to a cross-examination. The Court of Appeals, however, held the admission of this evidence to be "harmless error".
We must now decide whether the admission of this evidence complained of was, in fact, harmless error.
We recognize that all Federal Constitutional errors are not prejudicial, and under the facts of a particular case, they may be determined to be harmless, so as to not require an automatic reversal upon conviction. The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction. Nevertheless, before a court can find a Constitutional error to be harmless it must be able to declare a belief that such error was harmless beyond a reasonable doubt. Schneble v. Florida, 405 U.S. 427, 92 S. Ct. 1056, 31 L. Ed. 2d 340; Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284; Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705; Fahy v. Connecticut, 375 U.S. 85, 84 S. Ct. 229, 11 L. Ed. 2d 171; State v. Cox and State v. Ward and State v. Gary, 281 N.C. 275, 188 S.E.2d 356; State v. Jones, 280 N.C. 322, 185 S.E.2d 858; State v. Swaney, 277 N.C. 602, 178 S.E.2d 399; State v. Brinson, 277 N.C. 286, 177 S.E.2d 398.
The State relies heavily on Harrington v. California, supra. In Harrington, the defendants were jointly tried upon charges of first degree murder and attempted robbery. Three of the defendants confessed and their confessions were offered into evidence. Only one of the confessing defendants took the stand so as to be subjected to cross-examination. The confessions of the two codefendants who did not testify were admitted into evidence. These confessions placed defendant Harrington at the scene of the crime, but did not place a gun in his hand. Harrington also made a statement which was offered into evidence *830 in which he admitted being at the scene of the crime, but denied that he had a gun, or that he took any part in the crime. There was testimony by other persons which placed Harrington at the scene, with a gun in his hand actively participating in the crime. Harrington was convicted of murder. The United States Supreme Court affirmed and, inter alia, held that the admission of the confessions of the two codefendants who did not testify was "harmless error beyond a reasonable doubt" because of the other overwhelming evidence against Harrington.
Harrington is distinguishable from instant case. In Harrington one of the codefendants testified in court and placed the defendant at the scene with a gun in his hand at the time of the murder. Other persons testified that he was at the scene with a gun and was an active participant in the crimes. The challenged confessions placed him at the scene but did not place a gun in his hands. Harrington, by his own statement, admitted he was at the scene without a gun. Thus in Harrington the challenged confessions did not contradict defendant's statement or conflict with the theory of his defense.
In instant case, the credibility of the testimony of the witnesses Mumford and Wilson was seriously impaired by cross-examination. Defendant, although admitting that he was present at the scene of the crime, strongly denied any part in the planning or execution of the robbery. The erroneously admitted statement of his codefendant Heard unequivocally implicated defendant Jones in the planning and execution of the robbery. When defendant Jones was arrested shortly after the robbery he did not have a weapon in his possession. Defendant Heard had two pistols in his pocket at the time of the arrest.
Under the facts of this case, we are of the opinion that Heard's erroneously admitted confession might have contributed to Jones' conviction. Certainly, we are unable to say beyond a reasonable doubt under the special circumstances of this case that the jury would have convicted defendant Jones without benefit of the challenged evidence.
For reasons stated, there must be a new trial.