Justin Bennett and Jalani Jacobs were tried jointly before a jury and were both convicted on one count of armed robbery arising out of the robbery of a furniture store. Bennett appeals, claiming that the court erred in not severing the trials, in admitting his confession, and in denying his motion for new trial based on ineffective assistance of counsel. Jacobs also appeals, arguing that Bennett’s out-of-court confession implicated Jacobs and that its admission (with no in-court testimony from Bennett) therefore violated his Sixth Amendment right to confront witnesses. We hold that Bennett waived the severance argument and that evidence supported the court’s decisions to admit his confession and to find he did not carry his burden of showing ineffective assistance. Therefore, his conviction is affirmed. With regard to Jacobs, we hold that admitting Bennett’s confession in this joint trial with no cross-examination available to Jacobs infringed Jacobs’s constitutional right to confront witnesses; nevertheless, we hold the error was harmless and therefore affirm his conviction also.
Construed in favor of the verdict, the evidence showed that a man wearing a red bandanna entered a furniture store, pointing a gun at a store employee behind the counter and making no statements. When the employee backed away, the gunman reached behind the sales counter, took the store’s cashbox, and exited the store. The employee witnessed the gunman enter a small, dark car waiting just outside the entrance that was being driven by a second man. As the employee cried for help, other store employees came to the front of the store and witnessed the two men drive off. Several employees jumped into two cars and chased the fleeing vehicle, which one employee recognized as belonging to Bennett (whom the store had formerly employed).
The employees in the two pursuing vehicles momentarily lost sight of Bennett’s car but within seconds spotted the car in a nearby parking lot with Bennett and Jacobs standing next to the car. Upon seeing the pursuing vehicles, Bennett and Jacobs jumped back into the car (Bennett as passenger, Jacobs as driver) and raced away. The two pursuing vehicles gave chase until Bennett’s car slowed (allowing Bennett to exit), made a U-turn, and passed by the two pursuing
After receiving Miranda warnings and being told that his “partner” had just been apprehended nearby, Bennett admitted that there were only two of them and that they had just robbed a furniture store where Bennett had recently worked, but emphasized that he had been the driver (the car belonging to him) and that the other man had been the gunman and had tossed the gun into some bushes. Jacobs, on the other hand, told police that he knew nothing of any robbery but that he did reside with and know Bennett. Police found $744 on Bennett’s person and discovered the empty cash box in the parking lot where the two men had both stood outside the getaway car. Both men were indicted on one count of armed robbery.
Jacobs moved to sever his trial from Bennett’s, claiming that in a joint trial the admission of Bennett’s confession would inculpate Jacobs but would prevent him from cross-examining Bennett, which would violate Jacobs’s Sixth Amendment rights. Bennett did not join in the severance motion. The court declined to sever the trials. Bennett did move to exclude his confession as an involuntary statement, but the court found the confession was voluntary and admissible. At trial Bennett’s and Jacobs’s statements to police were admitted, although with cautionary jury instructions that the statements were only to be used against the defendant making the statement. The jury found both men guilty of armed robbery. Bennett appeals in Case No. A03A2439, and Jacobs appeals in Case No. A03A2440.
Case No. A03A2439
1. In his appeal, Bennett first contends that the trial court erred in not severing the trials. Bennett, however, did not join in Jacobs’s motion to sever. There is no authority requiring a court to sever the trial of a defendant who has made no motion to sever nor joined in a co-defendant’s motion.
Way v. State,
Moreover, even if Bennett had properly preserved this argument for review, the failure to sever the trials was harmless error. The only additional evidence that was admitted against Bennett as a result of Bennett being tried jointly with Jacobs was Jacobs’s statement to police that did not implicate Bennett but only confirmed that Jacobs and Bennett resided together. In light of Bennett’s confession that he
and Jacobs had just committed the robbery of Bennett’s former work place, Jacobs’s statement would have had little impact on Bennett’s conviction. Similarly, the argument of Jacobs’s counsel that Bennett was the gunman was not evidence and was of little relevance since Bennett had confessed to being involved in the robbery at a minimum as the getaway driver. As a party to the crime, Bennett would still be guilty of the crime. OCGA § 16-2-20; see
Fleming v. State,
2. Bennett claims the court erred in admitting his statement to police. He argues that the confession was involuntary in that police withheld water from him until he began confessing.
“The findings of a trial court as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal unless clearly erroneous.” (Citation and punctuation omitted.)
Wiley v. State,
3. Bennett claims that he received ineffective assistance of counsel in that his counsel failed to move to sever the trials or to object to statements of Jacobs’s counsel (in opening statement and closing argument) that Bennett was the gunman. To prove ineffective assistance, Bennett was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense.
Ellison v. State,
Here evidence supported the trial court’s finding that Bennett did not meet his burden of showing deficient performance by his trial
counsel. Bennett’s trial counsel testified at the motion for new trial hearing that he did not join in the motion to sever because he did not perceive that Bennett would be prejudiced from a joint trial. As we held in Division 1 above, that perception was quite accurate. Bennett’s counsel also testified that he did not object to the arguments of Jacobs’s counsel that Bennett was the gunman because such arguments were not evidence, once again an accurate appraisal. See
Hazelrigs v. State,
We discern no clear error in the trial court’s determination that Bennett did not carry his burden of showing ineffective assistance. Since (as discussed above) Bennett’s other enumerations are also without merit, we affirm his conviction.
Case No. A03A2440
4.
Jacobs contends that the court erred in admitting Bennett’s out-of-court statement, which inculpated Jacobs, since Bennett did not testify at the joint trial. We agree that admitting this evidence violated Jacobs’s Sixth Amendment rights as explained in
Bruton v. United States,
(a) In
Bruton,
supra, the United States Supreme Court determined that a defendant’s constitutional right of confrontation is violated when: “(a) co-defendants are tried jointly; (b) one co-defendant’s statement is used to implicate the other co-defendant in the crime; and (c) the co-defendant who made the implicating statement employs his Fifth Amendment right not to testify and thus does not take the stand to face cross-examination about the statement.” (Footnote omitted.)
Boone v. State,
Conceding that the first and third criteria for a
Bruton
violation are met here, the State argues that the second criterion was not met in that Bennett’s statement did not implicate Jacobs.
Moss,
supra, held “that
Bruton
only excludes statements by a non-testifying co-defendant that directly inculpate the defendant, and that
Bruton
is not violated if a co-defendant’s statement does not incriminate the defendant on its face and only becomes incriminating when linked with other evidence introduced at trial.” (Footnote omitted.)
Bennett stated in his confession that (i) only Bennett and one other person were involved in the robbery of Bennett’s former employer that had just occurred, (ii) Bennett was the driver and the passenger in the car with him (just apprehended up the street in Bennett’s car) was the gunman in the robbery, and (iii) this second man threw the gun out of the vehicle into some bushes. Even though Bennett did not name Jacobs as the second man, since Jacobs was the only co-defendant, a jury would readily infer that the man was Jacobs. See
McDonald v. State,
(b) The question then becomes whether the error was harmless in light of the evidence against Jacobs. “To be harmless, a
Bruton
error must be harmless beyond a reasonable doubt.” (Citation, punctuation and footnote omitted.)
Goins v. State,
Here evidence showed that Jacobs was driving the getaway car in an armed robbery of a furniture store and had parked the car just outside the store’s entrance in such a way as to allow a quick getaway. Jacobs effected such a getaway once the gunman (sporting a red bandanna) returned to the car with the store’s cashbox. Jacobs and the other man were chased to a parking lot where the pursuers saw them standing outside the same car and where police later found the empty cashbox. Jacobs and his compatriot jumped back inside the car and fled for some distance until Jacobs slowed the car sufficiently so his compatriot could exit and run away. A pursuer (who identified Jacobs at trial) saw Jacobs’s face as Jacobs drove by and then followed Jacobs until police apprehended him. A red bandanna was found in the vehicle. Jacobs admitted that he knew and resided with the compatriot, on whom $744 was found.
In light of the overwhelming evidence against Jacobs, we hold that the
Bruton
error was harmless. For these same reasons, Jacobs’s challenge to the sufficiency of the evidence (see OCGA §§ 16-8-41 (a) and 16-2-20;
Fleming,
supra,
5. Jacobs’s remaining enumeration of error is that the court erred in denying his motion to strike the entire jury panel. One potential juror stated during voir dire that he worked as a deputy sheriff at the local jail and had had contact with Jacobs and Bennett there when the two had been in his units. He was removed for cause. Nothing more came of the matter until near the end of voir dire, when one potential juror (later dismissed for cause) said he interpreted the deputy’s comment to possibly mean the defendants had been repeat offenders. Jacobs moved to strike the entire jury panel as tainted. The court denied the motion, finding that the earlier comment from the deputy was innocuous since the defendants would have obviously been in that jail in connection with this crime and no evidence indicated they were repeat offenders.
We review a court’s denial of a motion to strike the panel under an abuse of discretion standard. See
Hughey v. State,
Similarly, in
Hughey,
supra,
Specifically, we have applied this principle to find no inherent prejudice when the comment is that the accused was in jail and there is no evidence that the accused was in jail for any reason other than as a result of the charges in the case at issue. See
Lee v. State,
Judgment in both cases affirmed.