The appellants, Gary Cochran and James Townsend, appeal their conviction of arson in the first degree. Cochran and Townsend were domiciled in the Rome Diversion Center on August 5, 1984. The Diversion Center is a sentencing alternative following a criminal conviction when the judge does not desire to confine the convicted person in prison. Shortly after 11:00 a.m. on August 5, 1984, the duty officer at the Diversion Center heard an explosion which was followed by a fire alarm. The explosion and fire occurred on the second floor over the office area. The odor of gasoline was very strong in the area of the fire. There were approximately 17 or 18 residents in the center at that time. The battalion fire chief investigated the fire and because of the strong odor of gasoline, picked up some debris and placed it in two glass jars which were sent to the State Crime Lab for analysis. It was determined that the debris had been saturated by gasoline.
A police detective, Marshall Smith, investigated the incident and interviewed the residents then living at the Diversion Center. Each person was advised of his Miranda rights and waived the right to have counsel present. Cochran told Smith that he had seen Townsend, with a can of gasoline, go up to the second floor “to burn the building down.” Smith then interviewed Townsend. After being advised of his Miranda rights and waiving his right to counsel, Townsend denied that he had anything to do with the fire. Cochran confronted him and repeated his statement that he had seen him go upstairs with the gas can. Townsend said: “That’s right; I did that, but you throwed the match.” Smith asked Cochran: “Is that right?” Cochran said: “Yes, that’s right.” Smith asked both Cochran and Townsend to go to different rooms and write out in long hand what they had done. Their written statements were introduced in evidence. Both defendants appeal their conviction. Held:
1. Each defendant contends the trial court erred in admitting his co-defendant’s statement without excising his name before it was shown to the jury. Cited in support of their argument is
Bruton v. United States,
Under OCGA § 24-3-52, the confession of a joint offender, made after the enterprise is ended, is admissible only against the maker. A
“Bruton
error” arises in a joint trial by admission of a confession of a co-defendant implicating the defendant, where the co-defendant did not testify and the defendant maintained his innocence. Such error is usually avoided by masking or redacting the name of the defendant from the co-defendant’s statement.
Way v. State,
The United States Supreme Court, in
Parker v. Randolph,
We should also note that
Bruton
applies only when a criminal defendant’s Sixth Amendment right to confront witnesses against him is violated by admission in a joint trial of the co-defendant’s confession implicating the defendant, when the co-defendant did not testify.
Ballard v. State,
2. The chain of custody of state exhibits 2 through 4 is enumerated as error. The battalion fire chief, after extinguishing the fire, detected the heavy odor of gasoline and placed debris from the site in two glass containers. He sealed the glass containers with tape and placed his initials on the tape. He turned those containers over to *473 Officer Smith to carry to the State Crime Lab. Ann Brierly, a clerk with the police department, received the sealed jars from Officer Smith and placed them in a large bag and stapled the bag shut. Ray Bradshaw was present when Officer Smith turned in the two jars to the police department evidence section. He took them to the State Crime Lab in Atlanta. Randy Rydell, a microanalyst for the Georgia Crime Lab, said an associate signed for the sealed evidence and he received the evidence in a sealed container which he had to open with a razor blade; the jars inside were sealed with tape and had not been opened. He tested the material for flammable liquid and obtained a sample which he placed in a test tube. It was marked State Exhibit 4. The fire chief who collected the samples and placed them in the jars, sealed them, initialed them, and carved a “1” and “2” on the lids with a knife to distinguish them. He identified his markings and his initials. The crime lab microanalyst also identified the exhibits.
Although the substance in the jars may have been of a fungible nature, the jars were identifiable by the carved numbers. Where the state seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to show the identity of the evidence.
Anderson v. State,
3. Appellant Cochran argues that his character was impermissibly placed in evidence by testimony of a state witness that he had been in jail with Cochran following this incident. We find no reversible error. First, the answer of the witness was not responsive to the question asked. See
Johnson v. State,
Judgments affirmed.