Opinion
No. 5609.
Opinion delivered October 11, 1971
1. CRIMINAL LAW — CROSS-IMPLICATING CONFESSIONS — ADMISSIBILITY. — In a joint trial admission of cross-implicating confessions of two defendants which were cross-implicating as to each declarant who did not testify and as to the other defendant who did testify but denied any complicity in the alleged crime held error. 2. CRIMINAL LAW — CROSS-IMPLICATING CONFESSIONS — ADMISSION AS VIOLATIVE OF CONSTITUTIONAL RIGHTS. — Admission of cross-implicating confessions in a joint trial is violative of the basic right to be confronted by an adverse witness with the accompanying right of cross-examination as guaranteed by the federal sixth amendment. 3. CRIMINAL LAW — CROSS-IMPLICATING CONFESSIONS, ADMISSION OF — CAUTIONARY INSTRUCTION AS REMOVING PREJUDICE. — Prejudice resulting from admission of cross-implicating confessions of defendants cannot be removed by cautionary instructions to the jury that the admission of one defendant cannot be considered as evidence against a codefendant.
Appeal from Jefferson Circuit Court, Randall L. Williams, Judge; reversed and remanded.
Reinberger, Eilbott, Smith Staten and Harold Flower, for appellants.
Ray Thornton, Attorney General; Robert H. Crank, Asst. Atty. Gen., for appellee.
The appellants were charged with the crime of robbery. Upon a joint trial a jury found each appellant guilty and assessed James' punishment at 3 years, Strickland 7 years, and Byrd 5 years imprisonment in the State Penitentiary. From the judgments on those verdicts comes this appeal.
For reversal it is contended that it was error for the court to admit into evidence cross-implicating confessions and, further, the trial court erred by refusing to give appellants' requested cautionary instructions that any reference in a confession by one codefendant to another codefendant should not be considered by the jury.
The written confessions of appellants James and Strickland, neither of whom testified, were admitted into evidence. These confessions were cross-implicating as to each declarant and, also, as to appellant Byrd who testified and denied any complicity in the alleged crime. In the case of Mosby Williamson v. State, 246 Ark. 963, 440 S.W.2d 230 (1969), we held that it was prejudicial error to allow cross-implicating confessions in a joint trial, as in the case at bar, since this is violative of the basic right to be confronted by an adverse witness with the accompanying right of cross-examination as is guaranteed by the federal Sixth Amendment. Further, this resulting prejudice could not be removed by a cautionary instruction to the jury that the admission of one declarant could not be considered as evidence against a codefendant. There we also said that the answer to the problem of cross-implicating admissions would be to delete any of the offending portions with reference to a codefendant, if a deletion is feasible and could be done without prejudice, or to grant separate trials. See, also, Bruton v. United States, 391 U.S. 123 (1968) and Roberts v. Russell, 392 U.S. 293 (1968).
Reversed and remanded as to each appellant.
HARRIS, C.J., not participating.