State appeals from the trial court's order granting
Roderick Parrish's pretrial motion in limine to exclude a
statement made by one of his co-defendants, Kevin
Smith. The trial court granted the motion,
concluding that Crawford v. Washington, 541 U.S. 36
(124 S.Ct. 1354, 158 L.Ed.2d 177) (2004), precluded the
admissibility of Smith's statement. For the following
reasons, we reverse and remand.
and several others were charged in a 59-count indictment for
various crimes, including murder and attempted robbery, in
the shooting death of Rebecca Foley. The State expects the
evidence to show that Parrish, Smith, and Jordan Campbell
approached Foley as she arrived home to her apartment,
attempted to rob her, and then shot and killed her as she
attempted to drive away. The three then fled the scene in a
vehicle driven by James Pastures. The State also plans to show
that the perpetrators were all members of the Bloods gang.
Smith was later arrested for an unrelated aggravated assault
and had in his possession a firearm that ballistics testing
matched to the one used to kill Foley. During questioning by
police, Smith was asked where he bought the gun. He explained
that he purchased it in March 2013, which was two months
after Foley's murder, from someone he met "on the
street" named "Jarod or Rod" Parrish. Parrish
moved to prohibit the use of Smith's custodial statement
at trial on the ground that he was implicated in the
statement and had a right to confront Smith.
a hearing, the trial court ruled that because Smith's
statement was not clearly inculpatory, severance of
defendants under Bruton v. United States, 391 U.S.
123 (88 S.Ct. 1620, 20 L.Ed.2d 476) (1968) was not required,
but that Crawford, supra, precludes admissibility in
the event Smith does not testify and Parrish has no
opportunity to cross-examine him. It is from this order that
the State appeals.
appeal, we review the trial court's grant of a motion in
limine for abuse of discretion." (Citations and
punctuation omitted.) State v. Wilkins, 302 Ga. 156,
160 (805 S.E.2d 868) (2017). The State argues that
Crawford has no application here because Smith's
statement does not facially incriminate Parrish, and under
Bruton, the statement is admissible against Smith
with an appropriate limiting instruction. Parrish argues that
Crawford applies to prohibit Smith's testimonial
statement to police, "regardless of whether it is
inculpatory or not."
Sixth Amendment's Confrontation Clause
provides that, "[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the
witnesses against him." . . . [I]n Crawford,
the Court adopted a fundamentally new interpretation of the
confrontation right, holding that "[t]estimonial
statements of witnesses absent from trial [can be] admitted
only where the declarant is unavailable, and only where the
defendant has had a prior opportunity to cross-examine."
(Citation omitted.) Williams v. Illinois, 567 U.S.
50, 64-65 (II) (A) (132 S.Ct. 2221, 183 L.Ed.2d 89) (2012)
(plurality opinion). Crawford states the general
rule governing the admissibility of an out-of-court
testimonial statement. Here, Smith's statement to
officers was clearly testimonial in nature, and as the trial
court found, pursuant to Crawford, it would be
inadmissible against Parrish if Smith were unavailable and
Parrish not given an opportunity to cross-examine him. See
Colton v. State, 292 Ga. 509, 512 (2) (739 S.E.2d
380) (2013) (error to admit co-defendant's testimonial
statement against defendant in joint trial). Smith's
statement would be admissible, however, against
Smith himself. See OCGA § 24-8-801 (d) (2) (a)
(a statement offered against a party which is the party's
own statement is an admission not excluded by the hearsay
rule). However, because the State seeks to try Smith and
Parrish together, we must consider whether the admission of
the statement against Smith would violate Bruton.
context of a joint trial, the United States Supreme Court
held in Bruton that a co-defendant's confession
to police that powerfully incriminates the defendant may be
barred if the co-defendant does not testify and face
cross-examination. 391 U.S. at 132-137. The high court later
recognized, however, "that in many circumstances a
limiting instruction will adequately protect one defendant
from the prejudicial effects of the introduction at a joint
trial of evidence intended for use only against a different
defendant." Gray v. Maryland, 523 U.S. 185, 190
(118 S.Ct. 1151, 140 L.Ed.2d 294) (1998).
Richardson v. Marsh, 481 U.S. 200, 211 (II) (107
S.Ct. 1702, 95 L.Ed.2d 176) (1987), the Supreme Court held
that the Confrontation Clause was not violated by the
admission of a non-testifying co-defendant's confession
that was redacted to remove all references to the defendant,
and when the trial court instructed the jury not to consider
the confession against the defendant. The court held further
that where the "confession was not incriminating on its
face, and became so only when linked with evidence introduced
later at trial . . . . it is a less valid generalization that
the jury will not likely obey the instruction to disregard
the evidence." Id. at 208 (II).
courts and this Court have interpreted Bruton and
Richardson "to exclude only those statements by
a non-testifying defendant which directly inculpate a
co-defendant." (Citations and punctuation omitted.)
United States v. Arias, 984 F.2d 1139, 1142 (II) (B)
(11th Cir. 1993); see Sutton v. State,
295 Ga. 350, 353 (3) (759 S.E.2d 846) (2014); Owen v.
State, 266 Ga. 312, 314 (4) (467 S.E.2d 325) (1996).
trial court found that because Smith's statement was not
"clearly inculpatory" of Parrish, severance of
Smith's trial from Parrish's trial was not mandated.
See Moss v. State, 275 Ga. 96, 98-99 (2) (561 S.E.2d
382) (2002) (no Bruton violation where statements by
co-defendant did not directly inculpate defendant and only
later became incriminating when linked with other evidence at
trial); Thomas v. State, 268 Ga. 135, 137-138 (6)
(485 S.E.2d 783) (1997) (no Bruton violation when
co-defendant's statement, that Thomas had bought gun
later determined to be murder weapon, did not clearly
inculpate defendant). But the trial court's analysis
should not have ended there. Since the court found that
Smith's statement did not directly inculpate Parrish, it
should have concluded further that the statement would be
admissible against Smith with an instruction to the jury to
consider the statement only against him. See
Richardson, supra, 481 U.S. at 206 (II)
("Ordinarily, a witness whose testimony is introduced at
a joint trial is not considered to be a witness
'against' a defendant if the jury is instructed to
consider that testimony only against a co[-]defendant").
As explained in Richardson, even where the
co-defendant's statement is facially incriminating, in
some circumstances, if the statement is redacted to remove
all references to the defendant, and the court instructs the
jury not to consider the confession against the defendant,
there may be no Confrontation Clause violation. Id.
at 211 (II).
Smith's statement that he bought the gun from Parrish
after the murder is not directly inculpatory of Parrish, and
so it would be admissible against Smith with an instruction
to the jury to consider the statement only against Smith. The
trial court therefore erred in ruling that the statement is
wholly inadmissible. The court may wish to consider whether
the references to Parrish's name should be redacted.
therefore reverse the trial court's ruling on the motion
in limine and remand this case for further ...