State v. McDonald

734 S.E.2d 167, 400 S.C. 272, 2012 WL 3972562, 2012 S.C. App. LEXIS 266
CourtCourt of Appeals of South Carolina
DecidedSeptember 12, 2012
DocketAppellate Case No. 2008-104547; No. 5033
StatusPublished
Cited by3 cases

This text of 734 S.E.2d 167 (State v. McDonald) is published on Counsel Stack Legal Research, covering Court of Appeals of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McDonald, 734 S.E.2d 167, 400 S.C. 272, 2012 WL 3972562, 2012 S.C. App. LEXIS 266 (S.C. Ct. App. 2012).

Opinions

SHORT, J.

Derrick McDonald appeals from his convictions of murder and burglary in the first degree. He argues the trial court erred in admitting the statement of his non-testifying co-defendant, given to a law enforcement officer during the course of the investigation, without adequately redacting the portions of the co-defendant’s statement implicating McDonald because it denied him of his right to confront and cross-examine the witness. We affirm.

[274]*274FACTS

Josh Zoch died from multiple blunt force trauma to his head after being beaten with a baseball bat the night of December 12,. 2006. Zoch, McDonald, Christopher Whitehead, and Robert Cannon all worked at the same Sonic Restaurant at one time. McDonald and Cannon both gave statements to police admitting their and Whitehead’s involvement in the murder. Cannon told the police they had beaten Zoch to punish him for being a “snitch.”1 Whitehead told the police he did not know a “damn thing” about Zoch’s murder.

McDonald, Whitehead, and Cannon were tried together as co-defendants in May 2008. None of the three co-defendants testified at trial. The jury found all three guilty, and the trial court sentenced Cannon and McDonald each to two concurrent terms of thirty-five years imprisonment for murder and first-degree burglary. The court sentenced Whitehead to two concurrent sentences of life without parole for murder and first-degree burglary.2 This appeal followed.

LAW/ANALYSIS

McDonald argues the trial court erred in allowing Cannon’s written statement into evidence without adequately redacting the portions of the co-defendant’s statement implicating McDonald because it denied him his right to confront and cross-examine the witness. We disagree.

“The Confrontation Clause of the Sixth Amendment, which was extended to the states by the Fourteenth Amendment, guarantees the right of a criminal defendant to confront witnesses against him, and this includes the right to cross-examine witnesses.” State v. Holder, 382 S.C. 278, 283, 676 S.E.2d 690, 693 (2009); see U.S. Const, amends. VI and XIV. In Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court held that testimonial out-of-court statements are not admissible under [275]*275the Confrontation Clause unless the witness is unavailable and the defendant had prior opportunity to cross-examine the witness.

In Bruton v. United States, 391 U.S. 123, 126-137, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the United States Supreme Court held a non-testifying co-defendant’s confession that inculpates another defendant is inadmissible at their joint trial, even if the jury is instructed that the confession can only be used as evidence against the confessor, because of the substantial risk that the jury would look to the incriminating extrajudicial statements in determining the other’s guilt. In Richardson v. Marsh, 481 U.S. 200, 207-08, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court clarified the rule announced in Bruton is a “narrow” one that applies only when the statement implicates the defendant “on its face,” and the rule does not apply to statements that only become incriminating when linked to other evidence introduced at trial, such as the defendant’s own testimony. In State v. Evans, 316 S.C. 303, 307, 450 S.E.2d 47, 50 (1994), our supreme court held Bruton did not bar a statement that “on its face” did not incriminate Evans even though its incriminating import was certainly inferable from other evidence that was properly admitted against him.

The Richardson court also noted Bruton can be complied with by the use of redaction:

Even more significantly, evidence requiring linkage differs from evidence incriminating on its face in the practical effects which application of the Bruton exception would produce. If limited to facially incriminating confessions, Bruton can be complied with by redaction — a possibility suggested in that opinion itself. If extended to confessions incriminating by connection, not only is that not possible, but it is not even possible to predict the admissibility of a confession in advance of trial.

Richardson, 481 U.S. at 208-09, 107 S.Ct. 1702 (citation omitted); see State v. Page, 378 S.C. 476, 482, 663 S.E.2d 357, 359 (Ct.App.2008) (stating redaction has come into play as a tool to allow admission of a co-defendant’s confession against the confessor in a joint trial because it permits the confession to be used against the non-testifying confessor, while avoiding [276]*276implicating the co-defendant). However, in Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998), the Supreme Court noted the Richardson decision limited the scope of Bruton to instances where the reference to the defendant was on the face of the statement; therefore, a statement that substituted blanks and the word ‘delete’ for the petitioner’s proper name falls -within the class of statements to which Bruton’s protections apply. The court explained:

Redactions that simply replace a name with an obvious blank space or a word such as “deleted” or a symbol or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton’s unredacted statements that, in our view, the law must require the same result.

Id. at 192, 118 S.Ct. 1151. Further, this court has held the “Confrontation Clause is not violated when a defendant’s name is redacted but other evidence links the statement’s application to the defendant, if a proper limiting instruction is given.” Page, 378 S.C. at 482, 663 S.E.2d at 359.

At trial, the State argued replacing the co-defendants’ names in Cannon’s written statement -with “another person” would resolve any confrontation problem.3 Cannon’s attorney objected on behalf of all three co-defendants, arguing the limited redaction would not satisfy Bruton and State v. La-Barge, 275 S.C. 168, 268 S.E.2d 278 (1980), “because the statement clearly implicates someone else and it’s obviously prejudicial to the people who are sitting right here.” Further, he stated “there’s an easier way to do it, which is simply to not put a reference to what someone else did.” The following colloquy occurred between Cannon’s attorney and the judge:

The Court: But that’s not the law.... We’ve been over this. I mean, I’ve been over this many times. And the courts have said when replacing the offensive language with “the other person,” “the other guy” or “we” or “they” when there’s no reference, specific reference to a co-defendant, it satisfies Bruton.
[277]*277Mr.

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Related

State v. McDonald
771 S.E.2d 840 (Supreme Court of South Carolina, 2015)
State v. Jackson
765 S.E.2d 841 (Court of Appeals of South Carolina, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
734 S.E.2d 167, 400 S.C. 272, 2012 WL 3972562, 2012 S.C. App. LEXIS 266, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcdonald-scctapp-2012.