State v. Moritz

407 N.E.2d 1268, 63 Ohio St. 2d 150, 17 Ohio Op. 3d 92, 1980 Ohio LEXIS 801
CourtOhio Supreme Court
DecidedJuly 16, 1980
DocketNo. 79-1546
StatusPublished
Cited by242 cases

This text of 407 N.E.2d 1268 (State v. Moritz) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Moritz, 407 N.E.2d 1268, 63 Ohio St. 2d 150, 17 Ohio Op. 3d 92, 1980 Ohio LEXIS 801 (Ohio 1980).

Opinion

Paul W. Brown, J.

Appellant raises four propositions of law. Appellant first contends that the trial court committed prejudicial error when it failed to grant a separate trial in this cause, where extrajudicial statements of a codefendant not subject to cross-examination were used against him.

[153]*153Prior to trial, appellant made a motion for a separate trial under Crim. R. 14, which provides, in pertinent part, that:

“If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder for trial together of indictments, informations or complaints, the court shall order an election or separate trial of counts, grant a severance of defendants, or provide such other relief as justice requires. In ruling on a motion by a defendant for severance, the court shall order the prosecuting attorney to deliver to the court for inspection pursuant to Rule 16(B)(1)(a) any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial.”

Severance of the trials of the two codefendants was sought based upon the case of Bruton v. United States (1968), 391 U.S. 123. The holding of that United States Supreme Court decision was succinctly summarized in United States v. Fleming (C.A. 7, 1979), 594 F. 2d 598, 602, certiorari denied 61 L. Ed. 2d 299, where it was stated:

“In Bruton, the Supreme Court held that in a joint trial of two defendants, a confession of one co-defendant who did not testify could not be admitted into evidence even with a limiting instruction that the confession could only be used against the confessing defendant. The rationale of Bruton was that the introduction of a potentially unreliable confession of one defendant which implicates another defendant without being subject to cross-examination deprives the latter defendant of his right to confrontation guaranteed by the Sixth Amendment.”

In the instant cause appellant’s codefendant, Porter, exercised his privilege against self-incrimination and chose not to take the stand in his own behalf in this joint trial. Prior statements made by Porter were admissible against Porter himself, however, under the exception to the hearsay rule, which allows for admission of statements made against one’s own interests. See, generally, McCormick on Evidence (2 Ed.), 628, Section 262. Appellant contends that some of these statements, like the confession made in Bruton, implicated him, without an opportunity for cross-examination of the declarant.1 It is further contended that the trial court’s [154]*154limiting instruction that directed the jury to consider the evidence against each defendant separately was ineffective, like the instruction given in Bruton.

The situation presented in the instant cause is somewhat different from Bruton in that the codefendant’s statements at issue were not made in a confession to the police but were instead made to a prosecution witness. The constitutional problems with confrontation and cross-examination, however, are the same. We agree with the Supreme Court of Delaware’s treatment of a similar situation. That court, in analyzing the matter before it, stated:

“***The State’s position here, as the Court understands it, simply is that the Bruton Court and others which have dealt with this problem were dealing only with the confession or statement of one defendant made to the police and that here the statement involved was heard by a non-police witness and should be treated via the older method of jury instruction. The Court cannot agree with this argument. A reading of the Court’s rationale in the Bruton case, as well as the Court in People v. Aranda, Cal. Supr., 63 Cal. 2d 518, 47 Cal. Rptr. 353, 407 P. 2d 265 (1965), lead inescapably to the conclusion that it makes no difference from whence cometh the pretrial statement of one defendant implicating another.” State v. Rooks (Del. Super. 1977), 382 A. 2d 1380, 1382.

Appellant focuses on two evidentiary aspects of the state’s case, which he claims prejudiced his defense by being admitted without presenting an opportunity for cross-examination. Objection is made to testimony elicited from Mrs. Pollard concerning conversations she had with appellant’s codefendant, Porter. It was testified that Porter on two occasions stated that “blue coats” (a reference to the policemen he was [155]*155dealing with) said that for “two big ones” ($2,000) the charge against Pollard could either be reduced or dropped. The second specific violation of the Bruton rule is alleged to have occurred when a tape recording of a telephone call between Mrs. Pollard and Porter was introduced in evidence. This recording does not make reference to appellant by name, but the person being discussed is referred to as the Sergeant and as the “blue coats” boss.2

The references made in these statements are not altogether clear, but when taken in context with other testimony and the totality of the evidence, they are sufficiently specific to inculpate the appellant and, thus, bring into play the protections of Bruton. We agree with the statement that:

“***[T]he Bruton rule applies with equal force to all statements that tend significantly to incriminate a co-defendant, whether or not he is actually named in the statement. The fact that the incrimination amounts to a link in a chain of circumstances rather than a direct accusation cannot dispose of the applicability of the Bruton rule. Just as one can be convicted on circumstantial evidence, one can be circumstantially accused.” Fox v. State (Ind. App. 1979), 384 N.E. 2d 1159, 1170.

Our conclusion that appellant was implicated in these two instances contrary to his right of confrontation does not, [156]*156however, mean that his conviction is to be automatically reversed. The line of cases following Bruton have firmly established that an error of this sort may be harmless. In Schneble v. Florida (1972), 405 U.S. 427, 430, the Supreme Court declared:

“The mere finding of a violation of the Bruton rule in the course of the trial, however, does not automatically require reversal of the ensuing criminal conviction. In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.” See, also, Harrington v. California (1969), 395 U.S. 250; Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713; and Elliott v. Thompson (C.A. 6, 1979), 599 F. 2d 767, certiorari denied 62 L. Ed. 2d 190.

In the instant cause there was more than sufficient independent evidence of appellant’s guilt to render admission of the contested statements harmless beyond a reasonable doubt. Mrs.

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Cite This Page — Counsel Stack

Bluebook (online)
407 N.E.2d 1268, 63 Ohio St. 2d 150, 17 Ohio Op. 3d 92, 1980 Ohio LEXIS 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-moritz-ohio-1980.