{ "id": 8571913, "name": "STATE OF NORTH CAROLINA v. McKEITHAN JONES; PHILLIP JONES; REDELL LOCKLEAR; JAMES EDWARD LOCKLEAR, alias, Jimmy Locklear; and STERLING JONES", "name_abbreviation": "State v. Jones", "decision_date": "1972-01-28", "docket_number": "No. 132", "first_page": "322", "last_page": "341", "citations": [ { "type": "official", "cite": "280 N.C. 322" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "opinion_index": -1, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 3, "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "386 U.S. 18", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168882 ], "weight": 3, "year": 1967, "pin_cites": [ { "page": "24" }, { "page": "710-11" }, { "page": "828" } ], "opinion_index": 0, "case_paths": [ "/us/386/0018-01" ] }, { "cite": "172 S.E. 2d 527", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "530" } ], "opinion_index": 0 }, { "cite": "276 N.C. 404", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561566 ], "year": 1970, "pin_cites": [ { "page": "409-10" } ], "opinion_index": 0, "case_paths": [ "/nc/276/0404-01" ] }, { "cite": "400 U.S. 74", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046557 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/400/0074-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 3, "year": 1970, "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "402 U.S. 622", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11735052 ], "weight": 10, "year": 1971, "pin_cites": [ { "page": "627" }, { "page": "227" }, { "page": "1726" }, { "page": "629-30" }, { "page": "228" }, { "page": "1727" } ], "opinion_index": 0, "case_paths": [ "/us/402/0622-01" ] }, { "cite": "380 U.S. 400", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1525264 ], "weight": 6, "year": 1965, "pin_cites": [ { "page": "403" }, { "page": "926" }, { "page": "1068" } ], "opinion_index": 0, "case_paths": [ "/us/380/0400-01" ] }, { "cite": "97 S.E. 2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "879" } ], "opinion_index": 0 }, { "cite": "246 N.C. 157", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625032 ], "pin_cites": [ { "page": "161" } ], "opinion_index": 0, "case_paths": [ "/nc/246/0157-01" ] }, { "cite": "352 U.S. 232", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6160420 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/352/0232-01" ] }, { "cite": "129 S.E. 2d 229", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "258 N.C. 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561768 ], "pin_cites": [ { "page": "573-574" } ], "opinion_index": 0, "case_paths": [ "/nc/258/0563-01" ] }, { "cite": "76 S.E. 2d 42", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 749", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8619323 ], "pin_cites": [ { "page": "753" } ], "opinion_index": 0, "case_paths": [ "/nc/237/0749-01" ] }, { "cite": "146 S.E. 2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1966, "pin_cites": [ { "page": "680" } ], "opinion_index": 0 }, { "cite": "266 N.C. 584", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561718 ], "year": 1966, "pin_cites": [ { "page": "588" } ], "opinion_index": 0, "case_paths": [ "/nc/266/0584-01" ] }, { "cite": "392 U.S. 293", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6169495 ], "weight": 5, "year": 1968, "opinion_index": 0, "case_paths": [ "/us/392/0293-01" ] }, { "cite": "23 S.E. 2d 47", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "222 N.C. 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630276 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/222/0346-01" ] }, { "cite": "23 S.E. 2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1942, "opinion_index": 0 }, { "cite": "222 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8630253 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/nc/222/0344-01" ] }, { "cite": "12 S.E. 2d 246", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 577", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622687 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0577-01" ] }, { "cite": "163 S.E. 2d 492", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1968, "pin_cites": [ { "page": "500" }, { "page": "500-01" }, { "page": "502" } ], "opinion_index": 0 }, { "cite": "274 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559994 ], "year": 1968, "pin_cites": [ { "page": "288" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0277-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] } ], "analysis": { "cardinality": 1329, "char_count": 44637, "ocr_confidence": 0.545, "pagerank": { "raw": 8.402470761507055e-07, "percentile": 0.975877744223698 }, "sha256": "e396b81e5370cb3818a6a17e4f4dba636192a91d63bc2b1b5955cde6717a1698", "simhash": "1:b1ee5dda7ea4f15a", "word_count": 7385 }, "last_updated": "2023-07-14T16:17:02.302234+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. McKEITHAN JONES; PHILLIP JONES; REDELL LOCKLEAR; JAMES EDWARD LOCKLEAR, alias, Jimmy Locklear; and STERLING JONES" ], "opinions": [ { "text": "BOBBITT, Chief Justice.\nPreliminary to consideration of the specific questions presented by the surviving two appellants, it is noted: First, that much of the evidence at trial and in the record before us relates to codefendants who are not parties to this appeal; second, that no objection was made by Phillip or on his behalf at trial to the consolidation of the cases for trial or to the admission of any of the evidence proffered by the State; and third, that defendants\u2019 counsel did not bring forward the charge to the jury, stating that he had \u201cbeen unable to find prejudicial error\u201d therein.\nA joint brief was filed in behalf of the three appellants prior to the death of James Edward Locklear. Hereafter, unless otherwise specified, the word \u201cappellants\u201d will refer to Sterling Jones and to Phillip Jones.\nAppellants contend the court erred by consolidating for trial the charges in the four indictments. Pertinent to this contention, the record shows: \u201cMotion by the State to consolidate Cases Nos. 70 Cr 11226, 70 Cr 11343, 70 Cr 10374, 70 Cr 10373, involving five (5) defendants growing out of the same transaction and at the same time. Objection by James Edward Lock-lear and by Sterling Jones.\u201d The case on appeal states, \u201cThis constitutes appellants\u2019 Exception No. 1.\u201d\nWe adhere to \u201cthe general rule that whether defendants jointly indicted [should] be tried jointly or separately [is] in the sound discretion of the trial court, and, in the absence of a showing that a joint trial [has] deprived the movant of a fair trial, the exercise of the court\u2019s discretion [will] not be disturbed upon appeal.\u201d State v. Fox, 274 N.C. 277, 288, 163 S.E. 2d 492, 500 (1968). Ordinarily, unless it is shown that irreparable prejudice will result therefrom, consolidation for trial rather than multiple individual trials is appropriate when two or more persons are indicted for the same criminal offense (s). Nothing appears to indicate that either appellant asserted any fact or stated any reason in support of his general objection. Clearly, there was no error in the consolidation per se of the charges in the four indictments for the purposes of trial.\nThe two indictments (#70CR11266 and #70CR11343) against McKeithan Jones, Phillip Jones, Frank Jacobs, Jr., Re-dell Locklear and James Edward Locklear, and the two indictments (#70CR10373 and #70CR10374) against Sterling Jones, charged identical offenses. The trial judge, in granting the motion to consolidate, rightly considered the four indictments the same as if there were a single indictment charging six defendants jointly with (1) \u201csafecracking,\u201d (2) felonious breaking and entering and (3) felonious larceny.\nAt no time during the trial did either appellant move for a separate trial. Whether the evidence presented at trial prejudiced appellants to such extent that the failure to order separate trials, though no motions for separate trials were made, constituted a denial of due process of law, will be discussed below.\nCounsel for appellants direct our attention to State v. Cotton, 218 N.C. 577, 12 S.E. 2d 246 (1940), and State v. Bonner, 222 N.C. 344, 23 S.E. 2d 45 (1942), for the proposition that their cases should not have been consolidated, or, if consolidated, they should have been severed when it became apparent that certain of the State\u2019s witnesses had testified, and would continue to testify, about statements attributed to one defendant which implicated other defendants.\nIn Cotton, husband and wife were separately indicted for the same homicide. Over their objections, the cases were consolidated for trial. The State\u2019s case against the wife consisted of testimony as to her confession in which she stated she had killed her mother under circumstances related by her in detail. As a witness in her own behalf, the wife testified to facts tending to show that her husband had killed his mother-in-law and that her confession had been coerced by her husband and was untrue. As to the husband, the jury returned a verdict of guilty of murder in the first degree; as to the wife, the jury returned a verdict of not guilty. Upon the husband\u2019s appeal, a new trial was awarded. The reason was this: In Cotton, the wife\u2019s confession did not incriminate the husband at all; it was her testimony at trial, repudiating her confession, which incriminated him. Since the statute, C.S. 1802 (now G.S. 8-57), provided that a wife was not a competent witness against her husband, she could not testify to any facts which tended to incriminate him. On this ground, it was held that the court erred by the denial of the husband\u2019s motions at the conclusion of the evidence for severance and mistrial and therefore the husband was awarded a new trial.\nConsideration of State v. Todd, 222 N.C. 346, 23 S.E. 2d 47 (1942), is necessary to an understanding of State v. Bonner, supra. Bonner, Fowler, McDaniel and Todd were prosecuted upon separate bills of indictment, each charging the defendant named with the murder of one Ira L. Godwin. Overruling appellants\u2019 motions for separate trials, the four indictments were consolidated for trial and tried together. McDaniel was acquitted. Bonner, Fowler and Todd were convicted of murder in the first degree. The joint appeal of Bonner and Fowler was considered by this Court in State v. Bonner, supra. The separate appeal of Todd was considered in State v. Todd, supra.\nThe State offered evidence that Godwin was shot and killed in the perpetration of a robbery. To identify the defendants as the persons who committed the robbery-murder, the State offered and relied solely upon in-custody statements made by the several defendants. The statement of each defendant was admitted in evidence only against him. Thus, the statements of Bonner, Fowler and McDaniel, although they tended to incriminate Todd, were not admitted in evidence against Todd. The only evidence admitted against Todd was his own written statement. This statement tended to exculpate Todd, not to incriminate him; thus, in State v. Todd, supra, his conviction was reversed. However, Todd\u2019s statement, although not competent or admitted against Bonner and Fowler, told in explicit detail the manner in which Bonner and Fowler had committed the robbery and murder. Thus, State v. Bonner, supra, did not involve a factual situation in which a statement was admitted in evidence because it incriminated the person who made the statement and also incriminated a codefendant against whom the statement was not admitted. On the contrary, Todd\u2019s statement did not incriminate himself but included a full account of all circumstances pertaining to the robbery-murder of God-win by Bonner and Fowler.\nThe general rule relating to the admission of the testimony of a codefendant under instructions limiting its competency to the declarant is stated and discussed below. The rationale thereof presupposes that the declaration in fact incriminates the de-clarant. State v. Bonner, supra, is to be distinguished from cases such as the present in which the declarant incriminates himself. Hereafter the appeals of Sterling Jones and of Phillip Jones will be considered separately.\nAppeal of Sterling Jones\nSterling contends the admission of evidence of statements made by McKeithan and by Phillip which incriminated Sterling was sufficiently prejudicial to constitute a denial of due process of law notwithstanding the court instructed the jury that such statements were for consideration only against the persons who made them.\nOf the seventeen exceptions cited as the basis for this contention, only Exceptions Nos. 18 and 19 are discussed in the brief. According to Strickland, on June 2nd, between the time (4:30 a.m.) he saw McKeithan, Phillip and Sterling and three others leave 1-95 Trailer Park and the time (later that morning) when he, Phillip and Sterling went to the place in the woods where the stamps had been hidden, McKeithan told him \u201c[t]hat he, McKeithan, Phillip, Sterling, Jimmy and Redell and Frank Junior Jacobs had went in, had broken into Robeson County Social Services and carried away a safe and stamps in the safe.\u201d Strickland\u2019s testimony that McKeithan made the quoted statement, which was admitted only against McKeithan, constitutes the basis of Sterling\u2019s Exceptions Nos. 18 and 19. The prejudicial impact, if any, of the testimony to which Exceptions Nos. 18 and 19 relate, notwithstanding the court\u2019s instruction that this evidence was not to be considered against Sterling, can be evaluated only when considered in the light of the competent incriminating evidence admitted against Sterling.\nStrickland\u2019s testimony included the following: About 8:00 a.m. on Tuesday, June 2nd, McKeithan had returned to the 1-95 Trailer Park and had a quantity of food stamps in his possession. Two hours or so later, Strickland accompanied McKeithan and Phillip to a place in the woods where Philip had hidden the stamps, and they waited until Sterling drove up in his truck. Sterling said he had a sale for the stamps. Sterling had a portion of the stamps in his possession when he drove away in his truck. Strickland was present on another occasion when Mc-Keithan, Phillip and Sterling were looking for the safe: He heard them talking about where they had taken the safe \u201cin the woods and dropped it off,\u201d about procuring tools to open the safe, and about whether money as well as stamps had been removed from the safe.\nBrown\u2019s testimony included the following: \u201cSterling Jones told me that the stamps were stolen out of a safe in Lumber-ton, where they got some office supplies he was trying to sell me at the same time.\u201d\nLee\u2019s testimony included the following: Sterling told Lee when both were confined in the Robeson County Jail that he (Sterling) was in jail for safecracking and that \u201cthey didn\u2019t have anything on him, but the police came out and got some paint off of his truck.\u201d Lee testified: \u201c. . . I asked him about the safe. He said they had to use a truck, but they couldn\u2019t drive it, and he used it. That he could get a man to come up and say his truck was in the shop at the time.\u201d Lee also testified: \u201cHe said they got the safe, lots of stamps in it, wasn\u2019t much money, about seventy dollars in money.\u201d\nThe foregoing indicates that there was sufficient competent admitted evidence against Sterling to minimize or remove such prejudice as might otherwise have been caused by the statements attributed to McKeithan on which Exceptions Nos. 18 and 19 are based. The issue turned largely on whether the jury would give credence to the testimony of Strickland, Brown and Lee. Evidence offered in behalf of defendants tended to show that the persons charged were not involved in any way in the alleged safecracking, felonious breaking and entering and felonious larceny.\nIt is apparent why Sterling\u2019s counsel emphasized Exceptions Nos. 18 and 19, since the testimony referred to therein implicated Sterling more directly than any other testimony. We have examined each of the other exceptions cited by Sterling but not discussed in the brief. The pertinent matters referred to in these other exceptions when considered in the light of the entire testimony are not significantly prejudicial, if prejudicial at all.\nPrior to the decisions of the Supreme Court of the United States in Bruton v. United States, 391 U.S. 123, 20 L.Ed. 2d 476, 88 S.Ct. 1620 (1968), and Roberts v. Russell, 392 U.S. 293, 20 L.Ed. 2d 1100, 88 S.Ct. 1921 (1968), the general rule in North Carolina governing admission of declarations of one defendant in a joint trial was stated in State v. Lynch, 266 N.C. 584, 588, 146 S.E. 2d 677, 680 (1966), as follows: \u201cWhere two or more persons are jointly tried, the extrajudicial confession of one defendant may be received in evidence over the objection of his codefendant (s) when, but only when, the trial judge instructs the jury that the confession so offered is admitted in evidence against the defendant who made it but is not evidence and is not to be considered by the jury in any way in determining the charges against his codefendant (s). S. v. Bennett, 237 N.C. 749, 753, 76 S.E. 2d 42, and cases cited; S. v. Arnold, 258 N.C. 563, 573-574, 129 S.E. 2d 229; Stansbury, North Carolina Evidence, Second Edition, \u00a7 188. \u2018While the jury may find it difficult to put out of their minds the portions of such confessions that implicate the codefendant(s), this is the best the court can do; for such confession is clearly competent against the defendant who made it. Compare: Paoli v. United States, 352 U.S. 232, 77 S.Ct. 294, 1 L.Ed. 2d 278.\u2019 S. v. Kerley, 246 N.C. 157, 161, 97 S.E. 2d 876.\u201d Accord, State v. Fox, supra at 289, 163 S.E. 2d at 500-01.\nIn State v. Fox, supra, this Court interpreted Bruton v. United States, supra, and Roberts v. Russell, supra, to require reversal of the appellants\u2019 convictions for first degree burglary and first degree murder. None of the three appellants, Roy Lee Fox, Donald Fox and Carson McMahon, had testified (except on voir dire) at the trial. The fourth defendant, Arrlie Fox, did testify at the trial in his own behalf and was cross-examined by the solicitor and by counsel for each of the other defendants. The State offered evidence as to statements made by each defendant which incriminated himself and incriminated his code-fendants. It was held that admission of declarations made by one nontestifying defendant which incriminated another denied the latter\u2019s constitutional right of confrontation. The opinion of Justice Sharp in State v. Fox, supra, includes the following: \u201cIn Pointer v. Texas, 380 U.S. 400, 13 L.Ed. 2d 923, 85 S.Ct. 1065 (1965), it was held that \u2018the Sixth Amendment\u2019s right of an accused to confront the witnesses against him is ... a fundamental right and is made obligatory on the States by the Fourteenth Amendment.\u2019 Id. at 403, 13 L.Ed. 2d at 926, 85 S.Ct. at 1068.\u201d With reference to the statement attributed to Arrlie Fox, the opinion notes this distinction: \u201cIf the de-clarant can be cross-examined, a codefendant has been accorded his right to confrontation. See State v. Kerley, supra at 160, 97 S.E. 2d at 879. In this case, Arrlie Fox testified and was cross-examined by his codefendants. His statement, therefore, did not come within the ban of Bruton.\u201d State v. Fox, supra at 291, 163 S.E. 2d at 502.\nIn Nelson v. O\u2019Neil, 402 U.S. 622, 29 L.Ed. 2d 222, 91 S.Ct. 1723 (1971), the Supreme Court of the United States held that Bruton did not apply in a factual situation substantially the same as that in the present case. O\u2019Neil and Runnels were tried jointly and convicted in a California state court. The State\u2019s evidence included the testimony of a police officer that Runnels, in the absence of O\u2019Neil, had made an oral out-of-court statement in which he admitted the crimes charged and implicated O\u2019Neil as his confederate. The trial judge ruled the officer\u2019s testimony was competent against Runnels but instructed the jury not to consider it against O\u2019Neil. Runnels, testifying in his own defense, denied having made the statement and asserted that the substance of the statement imputed to him was false. The decision in Bruton was confined to the holding that the right to confrontation guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution \u201cis violated only where the out-of-court hearsay statement is that of a declarant who is unavailable at the trial for \u2018full and effective\u2019 cross-examination.\u201d Nelson v. O\u2019Neil, supra at 627, 29 L.Ed. 2d at 227, 91 S.Ct. at 1726. The opinion further states: \u201cWe conclude that where a codefendant takes the stand in his own defense, denies making an alleged out-of-court statement implicating the defendant, and proceeds to testify favorably to the defendant concerning the underlying facts, the defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.\u201d Id. at 629-30, 29 L.Ed. 2d at 228, 91 S.Ct. at 1727.\nSterling asserts prejudice on account of the admission of portions of statements attributed to McKeithan, Phillip and James Edward Locklear which tended to incriminate Sterling. McKeithan, Phillip and James Edward Locklear took the stand and each testified that the substance of the statements imputed to him was false. Under these circumstances, as held in Nelson v. O\u2019Neil, supra, Bruton does not apply. Cf. California v. Green, 399 U.S. 149, 26 L.Ed. 2d 489, 90 S.Ct. 1930 (1970), and Dutton v. Evans, 400 U.S. 74, 27 L.Ed. 2d 213, 91 S.Ct. 210 (1970).\nExcept as modified by Bruton v. United States, supra, and Roberts v. Russell, supra, we adhere to the general rule (quoted above) stated in State v. Lynch, supra. Even so, in each case the prejudicial impact of testimony of out-of-court declarations of a codefendant, even when the right to confrontation is afforded, must be evaluated in the light of the competent admitted evidence against the nondeclarant defendant referred to in such declarations. We do not foreclose the possibility that the gap between the impact of evidence which is not admitted against but incriminates the nondeclarant and of competent evidence of minimal probative value admitted against him in a given case may be so great as to constitute a denial of due process. No such gap exists in the present case.\nAppeal of Phillip Jones\nPhillip contends the admission of evidence of statements made by Sterling violated Phillip\u2019s right to confrontation as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States.\nThe evidence in the record supports the finding that Phillip was \u201cfinancially able to provide the necessary expense of legal representation.\u201d He did not and does not now challenge the court\u2019s findings or the supporting evidence. Although financially able to do so, Phillip was not represented at trial and no objections were interposed by him or in his behalf. Unless necessary to obviate manifest injustice, the rule applicable to a represented defendant applies equally to an unrepresented nonindigent defendant. As stated in State v. Mitchell, 276 N.C. 404, 409-10, 172 S.E. 2d 527, 530 (1970) : \u201cIt is elementary that, \u2018nothing else appearing, the admission of incompetent evidence is not ground for a new trial where there was no objection at the time the evidence was offered.\u2019 . . . An assertion in this Court by the appellant that evidence, to the introduction of which he interposed no objection, was obtained in violation of his rights under the Constitution of the United States, or under the Constitution of this State, does not prevent the operation of this rule.\u201d\nApart from the foregoing, we find no merit in Phillip\u2019s appeal. For the reasons stated above in relation to the appeal of Sterling Jones, Bruton does not apply to statements attributed to McKeithan and James Edward Locklear which implicated Phillip. Since Sterling did not testify, Phillip contends that Bruton does apply to statements attributed to and admitted against Sterling. However, the brief fails to point out, and our examination of the record fails to disclose, any instance in which a witness testified to a statement made by Sterling which in fact implicated Phillip. The following indicate the type of statement attributed to Sterling which Phillip contends implicated him. Brown testified that Sterling told him that \u201cthere are six of us involved\u201d and that \u201cthe stamps were stolen out of a safe in Lumberton.\u201d Lee testified that Sterling told him that \u201cthey had to use a truck\u201d and that \u201cthey got the safe, lots of stamps in it, wasn\u2019t much money.\u201d No statement attributed to Sterling contains a reference to Phillip by name nor identifies him in any other way. The sine qua non for application of Bruton is that the party claiming incrimination without confrontation at least be incriminated.\nIf it were conceded that Phillip was obliquely incriminated by the above statements attributed to Sterling, the constitutional error was harmless \u201cbeyond a reasonable doubt.\u201d Chapman v. California, 386 U.S. 18, 24, 17 L.Ed. 2d 705, 710-11, 87 S.Ct. 824, 828 (1967); Harrington v. California, 395 U.S. 250, 23 L.Ed. 2d 284, 89 S.Ct. 1726 (1969). Any incrimination of Phillip by statements attributed to Sterling was of insignificant probative value in relation to the mass of competent and admitted evidence against him, a portion of which is included in our preliminary statement and also in our review of evidence in connection with the appeal of Sterling Jones.\nThe conclusion reached is that neither appellant has shown prejudicial error. Hence, the verdicts and judgments will not be disturbed.\nNo error.", "type": "majority", "author": "BOBBITT, Chief Justice." } ], "attorneys": [ "Attorney General Morgan and Assistant Attorney General Rich for the State.", "Musselwhite & Musselwhite, by Fred L. Musselwhite, for defendant appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. McKEITHAN JONES; PHILLIP JONES; REDELL LOCKLEAR; JAMES EDWARD LOCKLEAR, alias, Jimmy Locklear; and STERLING JONES\nNo. 132\n(Filed 28 January 1972)\n1. Criminal Law \u00a7 92\u2014 consolidation of charges against multiple defendants\nOrdinarily, unless it is shown that irreparable prejudice will result therefrom, consolidation for trial rather than multiple individual trials is appropriate when two or more persons are indicted for the same criminal offense.\n2. Criminal Law \u00a7 92\u2014 charges against six defendants \u2014 consolidation for trial\nWhere five defendants were jointly charged in two indictments with safecracking, felonious breaking and entering and felonious larceny, and a sixth defendant was separately charged in two indictments with the identical crimes, there was no error in the consolidation per se of the charges in the four indictments for the purposes of trial.\n3. Constitutional Law \u00a7 30; Criminal Law \u00a7 95\u2014 codefendant\u2019s confession implicating defendant \u2014 due process\nThe admission of a testifying codefendant\u2019s extrajudicial statements which incriminated defendant under instructions limiting their competency to the codefendant did not deny defendant due process of law where there was sufficient competent evidence admitted against defendant to minimize or remove such prejudice as might otherwise have been caused by the statements attributed to the codefendant.\n4. Constitutional Law \u00a7 31; Criminal Law \u00a7 95\u2014 confession implicating codefendant \u2014 declarant who took the stand\nExtrajudicial statements made by defendants which implicated a codefendant were not rendered inadmissible by the decision of Bruton v. United States, 391 U.S. 123, where each declarant took the stand and testified that the substance of the statements attributed to him was false.\n5. Constitutional Law \u00a7 30; Criminal Law \u00a7 95\u2014 confession implicating codefendant \u2014 confrontation of declarant \u2014 due process\nEven when the right of confrontation is afforded to a defendant implicated in the out-of-court declarations of a codefendant, the prejudicial impact of testimony of the codefendant\u2019s declarations must be evaluated in the light of the competent evidence admitted against the nondeclarant defendant, since the gap between the impact of evidence which is not admitted against but incriminates the non-declarant and of competent evidence of minimal probative value admitted against him in a given case may be so great as to constitute a denial of due process.\n6. Criminal Law \u00a7\u00a7 162, 169\u2014 admission of incompetent evidence \u2014 failure to object \u2014 defendant unrepresented by counsel\nThe admission of incompetent evidence is ordinarily not ground for a new trial where there was no objection at the time the evidence was offered, even though defendant asserts on appeal that the evidence was obtained in violation of his constitutional rights; unless necessary to obviate manifest injustice, this rule applies to an unrepresented nonindigent defendant as well as to a defendant represented by counsel,\n7. Constitutional Law \u00a7 31; Criminal Law \u00a7 95\u2014 nontestifying code-fendant\u2019s extrajudicial statements \u2014 incrimination of defendant \u2014 harmless error\nThe admission of extrajudicial statements attributed to a non-testifying codefendant \u2014 e.g., that \u201cthere were six of us involved\u201d and that \u201cthey got the safe\u201d \u2014 did not violate defendant\u2019s right of confrontation since the statements did not in fact incriminate defendant; if defendant was obliquely incriminated by such statements, the constitutional error was harmless beyond a reasonable doubt in light of the mass of competent and admitted evidence against defendant.\nBelated appeal (permitted by our writ of certiorari) by Phillip Jones, James Edward Locklear and Sterling Jones from Braswell, J., October 1970 Regular Criminal Session of Robeson Superior Court, transferred for initial appellate review by the Supreme Court under general order of July 31, 1970, entered pursuant to G.S. 7A-31(b) (4).\nAppellants Phillip Jones and James Edward Locklear, alias Jimmy Locklear, together with McKeithan Jones, Frank Jacobs, Jr., and Redell Locklear, were charged in a one-count indictment (70CR11266) with \u201csafecracking\u201d in violation of G.S. 14-89.1, and in a separate two-count indictment (70CR11343) with (1) felonious breaking and entering and (2) felonious larceny.\nAppellant Sterling Jones was charged in a separate one-count indictment (70CR10373) with \u201csafecracking\u201d in violation of G.S. 14-89.1, and in a separate two-count indictment (70CR10374) with (1) felonious breaking and entering and (2) felonious larceny.\nThe charges in the separate indictments against Sterling Jones were the same as those in the indictments against Phillip Jones, James Edward Locklear, McKeithan Jones, Frank Jacobs, Jr., and Redell Locklear.\nThe record indicates that McKeithan Jones, represented by J. C. Ward, Esq., and Redell Locklear, represented by E. E. Page, Esq., were placed on trial with appellants. The record is unclear as to whether Frank Jacobs, Jr., was also placed on trial with appellants. The record is silent as to the verdicts or other disposition of the cases against McKeithan Jones, Redell Locklear and Frank Jacobs, Jr.\nAt trial, appellant James Edward Locklear was represented by F. L. Musselwhite, Esq., privately employed, and appellant Sterling Jones was represented by W. C. Watts, Esq., privately employed. At trial, appellant Phillip Jones was not represented by counsel. His request for court-appointed counsel was denied on the basis of findings that he was \u201cfinancially able to provide the necessary expense of legal representation\u201d and was not an indigent within the meaning of the law.\nOn motion of the State, and over objections made on behalf of appellants James Edward Locklear and Sterling Jones (Sterling) by their respective counsel, the four indictments were consolidated for trial. Appellant Phillip Jones was not represented by counsel and made no objection.\nUncontradicted evidence offered by the State tends to show: Between 5:00 p.m. on June 2, 1970, and 7:00 a.m. on June 3, 1970, the building occupied by the Robeson County Department of Social Services was broken into and articles of personal property of Robeson County were stolen therefrom, to wit: A safe containing food stamps valued at $67,824.00, $62.00 in cash, and $373.50 in cashier\u2019s checks; also a Remington electric typewriter; and a Burroughs adding machine. Officers found the safe \u201cduring the month of June,\u201d 1970, in the woods, about three miles east of Maxton, off of U. S. 74. The bottom of the safe was completely cut out and the contents of the safe had been removed.\nOn June 1-3, 1970, McKeithan Jones (McKeithan), age 33, lived in a trailer at the 1-95 Trailer Park. The other occupants of his1 trailer were Phillip Jones (Phillip), his nephew, and Clara Mae Clark and her seven-year-old son. State\u2019s witness Bobby Strickland (Strickland) and his wife then lived in another trailer at the 1-95 Trailer Park. Sterling, brother of McKeithan, lived on Highway #710 between Rowland and Pembroke, about fifteen miles from Lumberton and about twelve miles from 1-95.\nStrickland, age 29, worked for McKeithan from \u201caround the first of 1970\u201d until the last part of July or the first of August. During the first week in June, McKeithan, a steel erector, was subcontractor on a textile institute and school building being built \u201ctwo miles out of New Bern.\u201d Strickland, Phillip and others were working for McKeithan on the New Bern job. McKeithan, Phillip and Strickland would leave the 1-95 Trailer Park between 4:00 and 5:00 a.m. and get back from the New Bern job in the evening.\nSterling was not working anywhere during the first week in June, 1970. From June 15, 1970, Sterling worked for State\u2019s witness William Woodrow Brown, Jr. (Brown) on a steel erection job at a hospital in Charleston, S. C. While on this job Sterling and co-workers stayed at a motel at Moncks Corner, S. C., going from there each work day to the Charleston job.\nSummarized except when quoted, the testimony of Strickland, Brown, Deputy Sheriff Stone, and Edison DeLane Lee (Lee), offered by the State, is set forth below.\nStrickland testified:\nStrickland, McKeithan and Phillip worked at the New Bern job on Monday, June 1st, but not on Tuesday, June 2nd, or on Wednesday, June 3rd. About 4:30 a.m. on Tuesday, June 2nd, Strickland saw McKeithan, Sterling, Phillip, and \u201cthree other fellows\u201d he could not identify, leave the 1-95 Trailer Park. Later, about 8:00 a.m., McKeithan came to Strickland\u2019s trailer; and, in response to Strickland\u2019s inquiry why they did not go to work that morning, McKeithan said \u201che had made a big hustle.\u201d When asked what he had hustled and who had helped him, McKeithan replied \u201c[t]hat he, McKeithan, Phillip, Sterling, Jimmy and Redell and Frank, Jr. Jacobs had went in, had broken into Robeson County Social Services and carried away a safe and stamps in the safe.\u201d (The court admitted the testimony as to what McKeithan said to Strickland only against McKeithan. The admission thereof is the basis of Sterling\u2019s Exceptions Nos. 18 and 19.) Shortly thereafter, in Strickland\u2019s presence, McKeithan opened the trunk of his car. Strickland saw \u201ctwo boxes of stamps in the car, twenty dollar books, five dollar stamps,\u201d which they carried to McKethan\u2019s trailer. About two hours later, McKeithan, accompanied by Strickland, went \u201con the other side of where Sterling lives\u201d to a trash pile where McKeithan said \u201cthe stamps were,\u201d but \u201cthey were not there.\u201d McKeithan and Strickland then located Phillip, who told McKeithan that \u201che had took the stamps.\u201d (This testimony as to what Phillip said was admitted only against McKeithan and Phillip.) McKeithan, Phillip and Strickland went in McKeithan\u2019s car and Phillip directed them to the place where he had hidden the stamps, \u201cdown some side roads, back of the paved road, to Smiling\u2019s house in the woods.\u201d They stopped there, got out of the car and walked about fifty yards to \u201cwhere Phillip* had the stamps laying on the ground, except ten thousand McKeithan had at his trailer.\u201d Phillip said \u201cthat Sterling had sale for the stamps, was to meet him at the crossroads where the stamps was.\u201d\nAfter waiting \u201ca half hour\u201d Sterling came along in a truck and conversed with McKeithan and Phillip. Sterling said he had a sale for the stamps. Phillip took the truck, went back in the woods, brought the stamps and truck back to Sterling and Sterling took the truck and left. Then McKeithan and Strickland took Phillip to his house and thereafter went back to the 1-95 Trailer Park. (The testimony as to statements attributed to them on this occasion was admitted only against McKeithan, Phillip and Sterling.)\nTwo days later McKeithan, accompanied by Strickland, picked up Phillip, Redell, James Edward Locklear and Frank Jacobs, Jr. He drove to a location \u201cdown 1-94 and 74\u201d and parked. McKeithan got out, unlocked the car, and dumped stamps from a burlap bag on the ground, and said, \u201clet\u2019s divide them up and let each one get rid of his own.\u201d (This testimony was admitted against all defendants except Sterling.) McKeithan put on the ground \u201cblank tickets and six thousand dollars worth of stamps.\u201d \u201cThe boys said they would leave the rest and let McKeithan get rid of them.\u201d McKeithan left the group and took what was left of the stamps and hid them. He came back about twenty minutes later and picked up the others. Later McKeithan told Strickland that \u201che was going to carry the stamps to South Carolina to his brother.\u201d\nMcKeithan and his wife, and Sterling\u2019s wife, riding in McKeithan\u2019s car, and Strickland, accompanied by his wife, riding in a truck which \u201cpulled the trailer,\u201d \u201cwent to South Carolina to carry the stamps.\u201d The women knew nothing about the real purpose of the trip, the stated purpose being that they were going to \u201cpick up the car Oceanus [co-worker of Sterling\u2019s] had wrecked that night.\u201d Twenty miles before they got to Moncks Corner, McKeithan stopped at \u201cthe big bridge across the river\u201d and pulled into a side road to the right. After driving \u00bflong this side road, they came to a wooded area and there McKeithan tossed the stamps out of the car into the woods. All then proceeded to Moncks Corner where Frank Jacobs, Jr., Sterling and Oeeanus Lowery were living in a motel.\nStrickland parked the trailer next to a service station near the motel. Then he, McKeithan, Sterling, Frank Jacobs, Jr., and Oeeanus Lowery got in McKeithan\u2019s car and drove back to the river where McKeithan showed \u201cSterling where he had throwed the stamps.\u201d They drank some vodka and McKeithan \u201cgot high and couldn\u2019t drive.\u201d The trailer and wrecked car were left in Moncks Corner. They returned to North Carolina that night.\nSome three or four days after the safe was broken into, clippings from the papers indicated that a small amount of money had been in the safe. McKeithan, Phillip and Sterling said that they had not gotten any money out of the safe, and they wanted to go back to the safe to check it. Strickland carried them there in his car, drove back into the woods and parked the car beside a canal. They walked farther down the road to where the safe was lying in a small ditch on the left. They turned it over, looked in it with a flashlight to see if there were any drawers in it with any money, but did not find anything. McKeithan, Phillip and Sterling \u201cwere talking about the night the safe was gotten that morning\u201d and said that they \u201ctook the safe up there in the woods and dropped it off.\u201d Sterling, McKeithan and Phillip were doing the talking at that time. \u201cThey were talking about when they carried the safe up in the woods that morning, [and] left Frank Junior Jacobs and Redell with the safe, and Jimmy,\u201d while they went to look for tools to open the safe. They said that they had two crowbars and an axe and that while they were gone Redell, Jimmy and Frank, Jr., stayed there with the safe. McKeithan remarked that the money in the safe \u201chad to have been gotten out by Jimmy, Redell and Frank Junior, while they were gone to get tools to open the safe with.\u201d (This testimony as to statements attributed to them was admitted only against McKeithan, Phillip and Sterling.)\nSitting in the woods on the ground, Strickland heard a conversation when Phillip, Frank Jacobs, Jr., Redell Locklear and Jimmy Locklear were present. (Objection by Sterling was sustained.) Phillip was discussing with Redell and Jimmy Lock-lear how they opened the safe and whether there was money in it. They kept saying there was no money in the safe when they opened it. They stated they opened the safe by cutting the bottom off. Phillip said there was money in it; that he thought they had found a lot of money.\nStrickland saw two crowbars and an axe under McKeithan\u2019s trailer. Phillip picked up the tools and threw them into the woods. Phillip \u201csaid he wanted [Strickland] to help him take the tools away from the trailer, that he was scared the law might come and find the tools and get the markings from the tools that would correspond with some on the safe.\u201d\nStrickland testified that he worked for McKeithan a day or two during each of the two weeks following June 3rd; that he quit because McKeithan \u201cwouldn\u2019t pay [him] for working for him\u201d and \u201chad been running his mouth about [him] \u201d; and that he had voluntarily reported what he knew to Deputy Sheriff Stone \u201cthe latter part of July or first of August, at which time [he] was not in custody.\u201d\nBrown testified:\nIn June, 1970, Brown was engaged in the erection of steel at the Charleston (S.C.) Hospital. He hired Sterling on June 15th and on June 18th hired Oscar Lowery, Frank Jacobs, Jr., and Donald Jones. On June 19th, Sterling went to Brown\u2019s office and told him he had food stamps of a value of approximately $24,000.00 for which he would take $5,000.00. Later, on June 23rd, about 6:00 p.m., Brown asked to see the stamps. Sterling said he did not have them but said he could get them and went to Brown\u2019s house about 9:30 that night. Sterling had some of the stamps in a bag and left them with Brown. On June 29th, Brown asked Sterling if he had the rest of the stamps. Sterling told Brown that, instead of the $24,000.00, \u201c[they had] approximately twenty-eight thousand\u201d but would take the same amount in exchange. Sterling also told Brown he had an electric typewriter and a \u201cprinting machine\u201d he wanted to sell.\nIn reply to Brown\u2019s inquiry about the other stamps, Sterling said he would have to make a telephone call. Later Brown met Sterling at Sterling\u2019s motel and asked if he had gotten the stamps. Sterling replied that he had not but the stamps would be there soon. Later Sterling advised Brown that he had the stamps but they were on the other side of Jamestown; that his car was wrecked; and that Brown would have to take him there. They went to Jamestown, crossed the Santee River bridge and then drove onto a little dirt road. While Brown was turning around, Sterling went into the woods and came back with a wet brown bag. Inside it there was a plastic bag which contained stamps. The bag was put in the truck and Brown drove to Moncks Corner.\nThe stamps were not counted but those first delivered to Brown by Sterling ($9,960.00 worth of stamps) and those now delivered ($18,000.00) were supposed to complete the transaction. The stamps were put in a Havoline Oil box by Brown. He told Sterling he could not get $5,000.00 for the stamps but only $3,000.00. Sterling told Brown to go ahead and take them and he would give him $600.00 for delivering the stamps to the man in charge. Brown received possession on or about June 30th and was arrested by federal officers on July 1st. He had paid Sterling at the Berkley Restaurant. Brown had checks made up \u201cfor all four.\u201d\nBrown told Sterling that he had been caught with the stamps. In response to Brown\u2019s inquiry, Sterling told him \u201cthat the stamps were stolen out of a safe in Lumberton, where they got some office supplies he was trying to sell me at the same time.\u201d (This testimony was admitted only against Sterling.)\nDeputy Sheriff Stone testified:\nHe had seen the safe prior to his first conversation with Strickland, which occurred \u201cabout the second week in July,\u201d at which time Strickland told him \u201cthat the persons who broke into the Department of Social Services were Frank Jacobs, Redell Locklear, Jimmy Locklear, Phillip Jones, Sterling Jones and McKeithan Jones.\u201d No warrants were issued until after his second conversation with Strickland, which was on August 13th. Strickland then made a full statement which was offered and admitted in evidence only as it might tend to corroborate Strickland\u2019s testimony at trial. (No objection or motion to strike was made by any defendant to the admission of the quoted statement from Strickland to Stone, which was admitted only to corroborate the testimony of Strickland.) Strickland took him to the wooded area off from the intersection of 74 and 1-95 where they found the axe and some cardboard food stamp boxes and some plastic bags.\nLee testified:\nIn August, 1970, Lee was in the Robeson County jail charged with armed robbery. In a discussion with Sterling in the jail, Sterling told Lee that he (Sterling) was in jail \u201cfor safecracking\u201d; that \u201cthey didn\u2019t have anything on him, but the police came out and got some paint off his truck\u201d; that \u201cthey had to use a truck, but they couldn\u2019t drive it, and he used it\u201d; that \u201che could get a man to come up and say his truck was in the shop at the time\u201d; that \u201cthey got the safe\u201d; that \u201cthere was approximately seventy dollars in the safe, a lot of food stamps1, about sixty-eight thousand dollars worth\u201d; and that \u201che went to South Carolina with about eighteen thousand dollars worth of stamps, thinking he was going to sell them for twenty thousand, [but] that they had numbers on them and had to be gotten rid of.\u201d (This testimony as to what Sterling told Lee was admitted only against Sterling.)\nLater, in the Robeson County Jail, Lee had a conversation with McKeithan and Phillip. McKeithan said that he had heard Lee\u2019s name called in court and Phillip asked what Lee \u201cknowed on them.\u201d McKeithan told Phillip all Lee knew was what had been told him and he did not think \u201cit would hold up in court.\u201d Then McKeithan told Lee he would give him $10,000.00 if he would say that he \u201cwas going to testify for the State and then testify for them.\u201d (This testimony as to what McKeithan and Phillip said to Lee was admitted only against McKeithan and Phillip.)\nLee also testified to statements made by McKeithan when Phillip was not present and statements made by James Edward Locklear and Redell Locklear. (When objections were made, this testimony was admitted only against the persons referred to as having made the statements.)\nThe State offered other evidence which tended to show that paint scrapings from the safe corresponded to paint scrapings from Sterling\u2019s truck; that food stamps negotiated by McKeithan to a grocer and that food stamps delivered by Sterling to Brown were stamps which had been removed from the safe of the Robeson County Department of Social Services; and that the safe found in the woods was the safe of the Robeson County Department of Social Services.\nEvidence offered by or on behalf of defendants included the testimony of McKeithan, Phillip, James Edward Locklear and Redell Locklear. Sterling did not testify. The testimony of McKeithan and of Phillip, in direct contradiction of Strickland\u2019s testimony, tended to show that they and Strickland worked on the New Bern job on Monday, June 1st; on Tuesday, June 2nd; and on Wednesday, June 3rd. McKeithan testified that he, Strickland, and others, made a trip to Moncks Corner, South Carolina, for the purpose of taking \u201ca trailer to O. D. Lowery,\u201d and that they returned home after delivering the trailer. McKeithan denied any connection with the crimes charged and denied having made any statements either to Strickland or to Lee with reference thereto. Phillip denied any connection with the crimes charged, denied having made any statement to Lee and denied being present on any occasion when McKeithan made a statement to Lee.\nEvidence offered on behalf of Sterling tended to show his truck was in process of being repaired and was not in use during June 1st, June 2nd, and June 3rd of 1970.\nA review of other evidence for the State and for defendants is unnecessary to consideration of the questions presented for decision.\nThe agreed case on appeal, tendered by F. L. Musselwhite as counsel for all appellants, states: \u201cVerdict: The jury returned a verdict that the defendants, and each of them, are guilty of felonies as charged in the Bills of Indictment.\u201d\nJudgments imposing the following prison sentences upon appellants were pronounced:\nAs to Sterling Jones: For \u201csafecracking,\u201d twenty years; for felonious breaking and entering, ten years; for felonious larceny, ten years; all sentences to run concurrently.\nAs to Phillip Jones: For \u201csafecracking,\u201d fifteen years; for felonious breaking and entering, ten years; for felonious larceny, ten years; all sentences to run concurrently.\nAs to James Edward Locklear: For \u201csafecracking,\u201d ten years; for felonious breaking and entering, five years; for felonious larceny, five years; all sentences to run concurrently.\nAfter verdicts, judgments and appeal entries, the court, upon findings that each of the appellants was \u201cfinancially unable to provide the necessary expenses of legal representation\u201d incident to their appeals, appointed F. L. Musselwhite, Esq., to represent all appellants in connection with their appeals.\nIt appears from a death certificate attached to a motion filed in this Court by F. L. Musselwhite, Esq., that appellant James Edward Locklear died October 2, 1971. In accordance with the motion, the action against appellant James Edward Locklear and his appeal to this Court are abated.\nAttorney General Morgan and Assistant Attorney General Rich for the State.\nMusselwhite & Musselwhite, by Fred L. Musselwhite, for defendant appellants." }, "file_name": "0322-01", "first_page_order": 342, "last_page_order": 361 }