Opinion
No. COA12–1220.
2013-06-18
STATE of North Carolina v. Travis CONNOR and Erica Johnson.
Attorney General Roy Cooper, by Assistant Attorneys General Kathleen N. Bolton and Teresa M. Postell, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant Travis Connor.
Appeal by defendants from judgments entered 10 November 2011 and 29 November 2011 by Judge James G. Bell in Robeson County Superior Court. Heard in the Court of Appeals 28 March 2013. Attorney General Roy Cooper, by Assistant Attorneys General Kathleen N. Bolton and Teresa M. Postell, for the State. Appellate Defender Staples Hughes, by Assistant Appellate Defender Anne M. Gomez, for defendant-appellant Travis Connor.
Michele Goldman for defendant-appellant Erica Johnson.
STEELMAN, Judge.
Where the trial court's jury instructions in a joint trial of co-defendants did not give a separate final mandate as to each defendant or otherwise clearly instruct the jury that the guilt or innocence of one defendant is not dependent upon the guilt or innocence of a co-defendant, the jury instructions were reversible error. Both defendants are granted a new trial.
I. Factual and Procedural Background
On Monday, 7 April 2008, Travis Connor (Connor) and Erica Johnson's (Johnson) eight-month old child, Hailey, was admitted to the emergency room of a hospital in Dillon, South Carolina. When Johnson was asked by medical personnel what had happened to Hailey, Johnson said that Hailey had fallen off of a chair and hit her head on the floor a few days ago. Because of the extent of Hailey's injuries, she was transferred to a Regional Hospital in Florence, South Carolina, where she died. The Chief Medical Examiner of the State of North Carolina, Dr. Deborah Radisch (Dr. Radisch), determined the cause of Hailey's death to be blunt trauma to the head. Dr. Radisch found multiple bruises on Hailey's head, neck, legs, and abdomen; swelling and bruising in her brain; old and new hemorrhages; and multiple skull fractures. An expert in pediatrics and child abuse testified that the fatal injury to Hailey was the trauma to her head that was inflicted within seventy-two hours of her death and “probably happened” that same morning.
On 6 October 2008, Connor and Johnson were indicted for first-degree murder. Johnson submitted pre-trial motions to admit statements made by her and Connor's three-year old child to social workers and to exclude the statement Connor made to police that implicated her in the murder. The trial court denied both motions. The cases against Connor and Johnson were joined for trial and the matters came on for trial at the 24 October 2011 Session of Criminal Superior Court for Robeson County.
During the trial, the State presented the testimony of Detectives Ronald Chance (Chance) and Connie Graham (Graham) who interviewed Connor and Johnson at the hospital in Florence. In Connor's statement to Chance, he said he checked on Hailey at 5:00 a.m. and noticed swelling on her head and decided to take her to the hospital. In Johnson's statement to Graham, she described Hailey's fall from the couch and stated that Hailey seemed fine on Saturday, but on Monday morning when Connor told her Hailey didn't look right, she decided to take her to the hospital. Connor and Johnson were both subsequently interviewed by Chance and Graham at the detectives' office a week later. In Connor's second statement to Chance, Connor stated that he went to bed on Sunday night, leaving Hailey with Johnson. When he checked on Hailey Monday morning, he noticed that her head was swollen. In her second interview with Graham, Johnson's statement remained the same.
On 10 November 2011, the jury found each defendant guilty of second-degree murder. The trial court found Connor to be a level II offender and sentenced him to 160 to 201 months imprisonment. The trial court found Johnson to be a level I offender and sentenced her 125 to 159 months imprisonment.
Connor and Johnson appeal.
II. Jury Instructions
Both Connor and Johnson contend that the trial court erred by failing to instruct the jury to consider the charges against them separately. We agree.
A. Standard of Review
During the jury charge conference, counsel for Connor and Johnson both requested that the trial court charge the jury separately as to each defendant, and they subsequently each renewed this objection after the charge had been given. “On appeal, a defendant is required not only to show that a challenged jury instruction was erroneous, but also that such error prejudiced the defendant.” State v. Barron, 202 N.C.App. 686, 694, 690 S.E.2d 22, 29 (2010); N.C. Gen.Stat. § 15A–1442 (4)(d) (2011).
B. Analysis
An isolated misstatement in the charge to the jury will not require reversal. State v. Tomblin, 276 N.C. 273, 267–77, 171 S .E.2d 901, 903–904 (1970). However, reversible error will exist “where two or more defendants are tried together for the same offense upon jury instructions susceptible to the construction that the jury should convict all of the defendants if they find beyond a reasonable doubt that any of the defendants committed the offense charged.” State v. McCollum, 321 N.C. 557, 559–60, 364 S.E.2d 112, 113 (1988). If the trial judge chooses to explain the law in the cases as to both defendants simultaneously, “[t]he trial judge must either give a separate final mandate as to each defendant or otherwise clearly instruct the jury that the guilt or innocence of one defendant is not dependent upon the guilt or innocence of a codefendant.” State v. Lockamy, 31 N.C.App. 713, 716, 230 S.E .2d 565, 568 (1976).
Our Supreme Court found no error when a trial court “read only one indictment to the jury instructing them that each of the three defendants was charged in an identical bill ... [and] went to great lengths to separate each instruction as to each defendant.” State v. Mitchell, 20 N.C.App. 437, 438, 201 S.E.2d 720, 721 (1974). Similarly, when the trial court clearly explained that “[e]ach defendant has three cases pending against him. They are tried jointly merely as a matter of convenience and each is entitled to separate consideration of your verdict as to each charge against each defendant[,]” and further gave separate final mandates as to each defendant in its instructions, our Supreme Court found no error because the jury could not have been misled by a portion of the charge to which the defendants excepted. State v. Abernathy, 295 N.C. 147, 158–59, 244 S.E.2d 373, 381 (1978). When the trial court repeatedly referenced the jury's duty to consider each defendant's case individually and separately, the Supreme Court again found no error. Tomblin, 276 N.C. at 276–77, 171 S.E.2d at 903–904.
We find this case more analogous to McCollum. In McCollum, defendants were indicted on the charges of first-degree murder and first-degree rape. McCollum, 321 N.C. at 557, 364 S.E.2d at 112. The jury charge included instructions on felony murder and acting in concert. Id. at 560, 364 S.E.2d at 113. While the trial court specifically instructed the jury that they must determine the guilt or innocence of each defendant and at several points used terms, such as “the defendant,” “each defendant,” or “he,” indicative of individual consideration, the Court held that the instructions “were readily susceptible to being interpreted ... to convict each defendant if the jury found that the other defendant had committed the crimes charged.” Id. The Court held the felony murder instruction “misled the jury into believing that they could convict both defendants if only one of them raped the victim, even if the jury did not believe that they were acting in concert.” Id. at 560–61, 364 S.E.2d at 114.
In the instant case, as in McCollum, there were instances where the trial court referred to “the defendant” and “each defendant” throughout the instructions. Initially the trial court instructed the jury that “as to each defendant” they were to return one verdict. The trial court subsequently repeated the initial portion of the instructions when it read the charges a second time:
All right, as to each defendant you are to return a verdict—you are to return a verdict as to one of each of the following for each defendant. You are to consider guilty of first-degree under the felony murder rule, second-degree murder, involuntary manslaughter, or not guilty. Your—your verdict should be one of those four for each defendant.
(emphasis added). However, the trial court's instructions when taken as a whole are readily susceptible to being interpreted as instructions to convict one defendant if the jury found that the other defendant had committed the crimes charged. The defendants were referred to collectively:
The defendant—both defendants have entered a plea of not guilty. The fact that the defendants have been charged is no evidence of guilt.
....
After weighing all the evidence, if you are not convinced of the guilt of the defendants beyond a reasonable doubt, you must find the defendants not guilty.
(emphasis added). After charging on felony murder, the trial court then instructed the jury to consider second-degree murder, involuntary manslaughter, and not guilty. While reading the charge on involuntary manslaughter, the trial court instructed:
If you do not find the defendant guilty of second-degree murder you must consider whether the defendants are guilty of involuntary manslaughter.
... For you to find the defendant guilty of involuntary manslaughter the State must prove two things beyond a reasonable doubt.
....
Second, that the defendants' criminally negligent or unlawful conduct proximately caused the victim's death. If the victim died by accidental misadventure, that is, without criminal negligence or unlawful act on the part of the defendants, the defendants would not be guilty.
(emphasis added).
After giving the instructions, the trial court dismissed the jury. In response to a question from the jury requesting a copy of the jury instructions, the jury was brought back in and the court reread the crimes with the elements and the aiding and abetting instruction. In charging the jury on felony murder, the trial court instructed:
Now I charge you that for you to find the defendants guilty of first-degree murder in the perpetration of a felony the State must prove four things beyond a reasonable doubt.
First, that the defendants or defendant committed felonious child abuse inflicting serious bodily injury.
(emphasis added). Throughout its instructions, the trial court referred to defendants collectively. We are not convinced that it was clear that the guilt of one defendant was not dependent on the guilt of the other. In its final mandate, the trial court failed to give a separate final mandate as to each defendant.
The references to defendants both individually and collectively throughout the instructions, combined with the nature of the charges given and the failure of the trial court to either clearly instruct the jury that the guilt or innocence of one defendant was not dependent on the guilt or innocence of the other defendant or to clearly give a separate final mandate for each defendant amounts to reversible error.
Defendants are granted a new trial.
III. Issues Likely to Occur upon Retrial
Though defendants are granted a new trial, we address two additional issues raised by defendants that are likely to occur upon their retrial.
A. Hearsay
In Johnson's pre-trial motion to admit the statement of Hailey's three-year-old sibling, Johnson argued it was admissible hearsay under several hearsay exceptions, including Rule 803(24), the residual or “catchall” exception. To facilitate appellate review of the admission or exclusion of evidence under Rule 803(24), our Supreme Court has laid out a six-part inquiry that the trial court must “engage in ... prior to admitting or denying proffered hearsay evidence....” State v. Smith, 315 N.C. 76, 92, 337 S.E.2d 833, 844 (1985). The trial court must determine:
(1) Has proper notice been given?
(2) Is the hearsay not specifically covered elsewhere?
(3) Is the statement trustworthy?
(4) Is the statement material?
(5) Is the statement more probative on the issue than any other evidence which the proponent can procure through reasonable efforts?
(6) Will the interests of justice be best served by admission?
Id. at 92–96, 337 S.E.2d at 844–47. The trial court is also required to include in the record findings of fact and conclusions of law on the issues of trustworthiness and probativenss. Id. at 93–96, 337 S.E.2d at 844–46. While the “six-part inquiry is very useful when an appellate court reviews the admission of hearsay under Rule 804(b)(5) or 803(24)[,] ... its utility is diminished when an appellate court reviews the exclusion of hearsay.” State v. Harris, 139 N.C.App. 153, 159, 532 S.E.2d 850, 854 (2000) (quoting Phillips & Jordan Inv. Corp. v. Ashblue Co., 86 N.C.App. 186, 191, 357 S.E.2d 1, 3–4 (1987)). If the evidence fails to meet one of the inquiry steps, the trial court's findings concerning the other steps are unnecessary. Id.
In the instant case, the trial judge found the evidence to be untrustworthy. While no other further steps are necessary after this determination, the record lacks complete findings of fact and conclusions of law under this inquiry. While our Supreme Court has upheld a trial court's generalized finding of trustworthiness based upon a review of the record, State v. Daughtry, 340 N.C. 488, 514, 459 S.E.2d 747, 760 (1995), we would emphasize that by following the analysis outlined in Smith, a trial judge will “necessarily undertake the serious consideration and careful determination contemplated by the drafters of the Evidence Code.” Smith, 315 N.C. at 96–97, 337 S.E.2d at 847.
B. Statement of a Co–Defendant
Johnson contends that the trial court erred in joining the trials over her objection when the trial court allowed the State to introduce Connor's out-of-court statement that implicated her. Because Johnson did not object to the testimony of Connor's statement at trial, she waived review of this issue. State v. Johnson, 71 N.C.App. 90, 94–95, 321 S.E.2d 510, 514 (1984) (holding that where defendant failed to object to the admission of a sanitized confession during the trial the “defendant effectively waived the right to protest its alleged inadmissibility”). Nevertheless, this issue is likely to occur at the new trial and we elect to address it.
In Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476 (1968), the United States Supreme Court held that at a joint trial, the admission of a statement by a non-testifying codefendant that incriminated the other defendant violated that defendant's Sixth Amendment right to confront the witnesses against him. Id. at 124–26, 20 L.Ed.2d at 478–79. Our Supreme Court adopted this rule in State v. Fox, 274 N.C. 277, 163 S.E.2d 492 (1968), stating:
The result is that 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.
Id. at 291, 163 S.E.2d at 502. Later cases modified the Bruton holding and held that the Confrontation Clause is not violated if the confession is redacted to eliminate the defendant's name and any other references to the defendant, and the trial court gives a proper limiting instruction. Richardson v. Marsh, 481 U .S. 200, 211, 95 L.Ed.2d 176, 188 (1987). “A statement is inadmissible as to a codefendant only if it is made outside his presence and incriminates him.” State v. Tucker, 331 N.C. 12, 24, 414 S.E.2d 548, 554–55 (1992). A statement that does not mention or refer to the defendant in any way does not incriminate the defendant. State v. Boozer, 210 N.C.App. 371, 707 S.E.2d 756, 766 (2011). These principles are codified in North Carolina General Statue § 15A–927(c), which states that when a defendant objects to joinder because of an out-of-court statement by a co-defendant that references the defendant, but is not admissible against him the prosecutor has three options: (1) a joint trial at which the statement is not admitted; (2) a joint trial at which the statement is admitted in a sanitized form; or (3) a separate trial for the objecting defendant. N.C. Gen.Stat. § 15A–927(c) (2011).
In the instant case, the statement at issue was Connor's statement to Chance concerning his actions Sunday night and Monday morning. Connor told Chance that he went to bed Sunday night, left Hailey with Johnson, and when he checked on Hailey Monday morning, he noticed that Hailey's head was swollen. Connor's statement to police was made outside the presence of Johnson and directly refers to her by name. The statement implicates her in Hailey's murder by placing Johnson alone with Hailey before Hailey was fatally injured. While Johnson brought a pre-trial motion to exclude the statement, the only material the trial court excluded was an officer's commentary in which the officer noted that Connor's statement “possibly implicated [Johnson].” This redaction was not sufficient to delete the incriminating reference to Johnson. The reference to her by name should have been deleted as well. In its brief, the State contends that the statement Connor made is admissible as an exception to the hearsay rule and therefore Bruton does not apply. Even assuming arguendo this statement met the criteria of an exception to hearsay, it would not be admissible under Crawford v. Washington. See Crawford v. Washington, 541 U.S. 36, 68, 158 L.Ed.2d 177, 203 (2004) (holding testimonial statements made out of court are inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant). The trial court's redaction did not properly sanitize the statement and N.C. Gen.Stat. § 15A–927(c) was not properly followed.
IV. Conclusion
Based upon our analysis of the trial court's jury instructions, we grant both defendants a new trial.
NEW TRIAL. Judges ELMORE and STROUD concur.
Report per Rule 30(e).