Bruton rule in Indiana

2016Id. (citing Richardson v. Marsh, 481 U.S. 200, 211 (1987)). [23] Indiana Code section 35-34-1-11(b) provides: Whenever two (2) or more defendants have been joined for trial in the same indictment or information and one (1) or more defendants move for a separate trial because another defendant has made an out-of-court statement which makes reference to the moving defendant but is not admissible as evidence against him, the court shall require the prosecutor to elect: (1) a joint trial at which the statement is not admitted into evidence; Court of Appeals of Indiana | Memorandum Decision No. 15A

2016See Fayson, 726 N.E.2d at 294 (citing Richardson, 481 U.S. at 211 ) (noting that to be subject to Bruton rule, the co-defendant’s out-of-court statement must facially incriminate the defendant); I.C. § 35-34-1-11(b) (requiring that co-defendant’s out-of-court statement “make[] reference to the moving defendant”). [26] Here, the out-of-court statements at issue—Comer’s telephone calls with Beetz—did not make reference to Johnson at all, much less facially incriminate him.

2016Fayson, 726 N.E.2d at 294-95 . [21] We agree that the challenged testimony implicated Crume in Williams’ murder, although it proved only that McSwain directed Crume to shoot Williams and not that Crume actually did so.

2016See Fayson, 726 N.E.2d at 294 (citing Richardson, 481 U.S. at 211 ) (noting that to be subject to Bruton rule, the co-defendant’s out-of-court statement must facially incriminate the defendant); I.C. § 35-34-1-11(b) (requiring that co-defendant’s out-of-court statement “make[] reference to the moving defendant”). [26] Here, the out-of-court statements at issue—Comer’s telephone calls with Beetz—did not make reference to Johnson at all, much less facially incriminate him.

2016See Small v. State, 736 N.E.2d 742 , 745 n.5 (Ind. 2000); Houchin v. State, 581 N.E.2d 1228, 1233 (Ind. 1991).3 [24] Johnson claims that the admission of audiotapes made of Comer’s telephone calls with Beetz constitutes a violation of the Bruton rule and Indiana Code section 35-34-1-11(b) because it was an out-of-court statement made by Comer about which he was unable to cross-examine Comer.

2016See Small v. State, 736 N.E.2d 742 , 745 n.5 (Ind. 2000); Houchin v. State, 581 N.E.2d 1228, 1233 (Ind. 1991).3 [24] Johnson claims that the admission of audiotapes made of Comer’s telephone calls with Beetz constitutes a violation of the Bruton rule and Indiana Code section 35-34-1-11(b) because it was an out-of-court statement made by Comer about which he was unable to cross-examine Comer.

2016See Small v. State, 736 N.E.2d 742 , 745 n.5 (Ind. 2000); Houchin v. State, 581 N.E.2d 1228, 1233 (Ind. 1991).3 [24] Johnson claims that the admission of audiotapes made of Comer’s telephone calls with Beetz constitutes a violation of the Bruton rule and Indiana Code section 35-34-1-11(b) because it was an out-of-court statement made by Comer about which he was unable to cross-examine Comer.

2016See Small v. State, 736 N.E.2d 742 , 745 n.5 (Ind. 2000); Houchin v. State, 581 N.E.2d 1228, 1233 (Ind. 1991).3 [24] Johnson claims that the admission of audiotapes made of Comer’s telephone calls with Beetz constitutes a violation of the Bruton rule and Indiana Code section 35-34-1-11(b) because it was an out-of-court statement made by Comer about which he was unable to cross-examine Comer.

2015See Fox, 384 N.E.2d at 1170 (stating that “it is our opinion that the 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”).

2015See Fox, 384 N.E.2d at 1170 (stating that “it is our opinion that the 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”).

2015See also Hopper v. State, 539 N.E.2d 944, 947 (Ind. 1989) (affirming the trial court’s denial of the defendant’s motion to separate his trial from his co-defendant, who was absent from the trial, where the trial court gave the jury an almost identical instruction as the trial court did in this case).17 17 Additionally, Riley appears to argue that the trial court’s denial of his oral motion for a separate trial— which was based on an argument that Archer’s testimony of Carter’s statement prejudiced him—was erroneous because it resulted in a Bruton violation and a denial of his right to cross-ex

2015See also Hopper v. State, 539 N.E.2d 944, 947 (Ind. 1989) (affirming the trial court’s denial of the defendant’s motion to separate his trial from his co-defendant, who was absent from the trial, where the trial court gave the jury an almost identical instruction as the trial court did in this case).17 17 Additionally, Riley appears to argue that the trial court’s denial of his oral motion for a separate trial— which was based on an argument that Archer’s testimony of Carter’s statement prejudiced him—was erroneous because it resulted in a Bruton violation and a denial of his right to cross-ex

2012However, “[a] petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error.” Shepherd v. State, 924 N.E.2d 1274, 1281 (Ind. Ct. App. 2010) (quoting Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006)), trans. denied.

2012However, “[a] petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error.” Shepherd v. State, 924 N.E.2d 1274, 1281 (Ind. Ct. App. 2010) (quoting Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006)), trans. denied.

2012Brock v. State, 540 N.E.2d 1236, 1240 (Ind. 1989) (holding no Bruton violation occurred where Brock‘s co-defendant told police that they were lucky ―we‖ did not decide to resist the police with the large number of firearms present in the house and Brock and co-defendant were only two of a number of occupants).

2012However, “[a] petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error.” Shepherd v. State, 924 N.E.2d 1274, 1281 (Ind. Ct. App. 2010) (quoting Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006)), trans. denied.

2012However, “[a] petitioner for post-conviction relief cannot escape the effect of claim preclusion merely by using different language to phrase an issue and define an alleged error.” Shepherd v. State, 924 N.E.2d 1274, 1281 (Ind. Ct. App. 2010) (quoting Reed v. State, 856 N.E.2d 1189, 1194 (Ind. 2006)), trans. denied.

2012D.B. also attempts to avoid res judicata by arguing that the Bruton issue was not previously decided on the merits because this court did not address the holdings of Cruz v. New York, 481 U.S. 186 (1987), and Lee v. Illinois, 476 U.S. 530 (1986).

2012D.B. also attempts to avoid res judicata by arguing that the Bruton issue was not previously decided on the merits because this court did not address the holdings of Cruz v. New York, 481 U.S. 186 (1987), and Lee v. Illinois, 476 U.S. 530 (1986).

2012Co. v. Salts, 698 N.E.2d 856, 859 (Ind. Ct. App. 1998).

2012Co. v. Salts, 698 N.E.2d 856, 859 (Ind. Ct. App. 1998).

2004However, even if we assume that Edwards's counsel contributed to a Bruton violation, "a denial of the right of confrontation can be harmless error where there is evidence supporting the conviction that is so convincing that the jury could not properly find otherwise." Wright v. State, 593 N.E.2d 1192, 1198 (Ind.1992), cert. denied, 506 U.S. 1001 , 113 S.Ct. 605 , 121 LEd.2d 540 (1992).

2004However, even if we assume that Edwards's counsel contributed to a Bruton violation, "a denial of the right of confrontation can be harmless error where there is evidence supporting the conviction that is so convincing that the jury could not properly find otherwise." Wright v. State, 593 N.E.2d 1192, 1198 (Ind.1992), cert. denied, 506 U.S. 1001 , 113 S.Ct. 605 , 121 LEd.2d 540 (1992).

2004However, even if we assume that Edwards's counsel contributed to a Bruton violation, "a denial of the right of confrontation can be harmless error where there is evidence supporting the conviction that is so convincing that the jury could not properly find otherwise." Wright v. State, 593 N.E.2d 1192, 1198 (Ind.1992), cert. denied, 506 U.S. 1001 , 113 S.Ct. 605 , 121 LEd.2d 540 (1992).

2004However, even if we assume that Edwards's counsel contributed to a Bruton violation, "a denial of the right of confrontation can be harmless error where there is evidence supporting the conviction that is so convincing that the jury could not properly find otherwise." Wright v. State, 593 N.E.2d 1192, 1198 (Ind.1992), cert. denied, 506 U.S. 1001 , 113 S.Ct. 605 , 121 LEd.2d 540 (1992).

2003Garland v. State, 719 N.E.2d 1184, 1186-87 (Ind.1999).

2002In State v. Golphin, 352 N.C. 364 , 533 S.E.2d 168, 196 (2000), cert. denied, 532 U.S. 931 , 121 S.Ct. 1379 , 1380, 149 L.Ed.2d 305 (2001), the North Carolina Supreme Court held that a Bruton claim was waived when the defendant signed a document waiving any objection he may have had under Bruton and also failed to object to the admission of the co-defendant's statement at trial.

2002In State v. Golphin, 352 N.C. 364 , 533 S.E.2d 168, 196 (2000), cert. denied, 532 U.S. 931 , 121 S.Ct. 1379 , 1380, 149 L.Ed.2d 305 (2001), the North Carolina Supreme Court held that a Bruton claim was waived when the defendant signed a document waiving any objection he may have had under Bruton and also failed to object to the admission of the co-defendant's statement at trial.

2001See Trueblood v. State, 715 N.E.2d 1242, 1248 (Ind.1999) (issues known and available but not raised on direct appeal are waived for postconviction proceedings).