Bruton violation in Georgia

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2014See Krause, supra. Likewise, even if the introduction of this evidence was a Bruton violation, it was harmless error under Schneble v. Florida, 405 U. S. 427, 430 ( 92 SCt 1056 , 31 LE2d 340) (1972), where the Supreme Court held: In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.

2014See Krause, supra. Likewise, even if the introduction of this evidence was a Bruton violation, it was harmless error under Schneble v. Florida, 405 U. S. 427, 430 ( 92 SCt 1056 , 31 LE2d 340) (1972), where the Supreme Court held: In some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.

1997“For the admission of a co-defendant’s statements to constitute a Bruton violation *180 . . . the statements standing alone must clearly inculpate the defendant.” (Punctuation omitted.) Owens v. State, 193 Ga. App. 661, 662 ( 388 SE2d 712 ) (1989).

1997“For the admission of a co-defendant’s statements to constitute a Bruton violation *180 . . . the statements standing alone must clearly inculpate the defendant.” (Punctuation omitted.) Owens v. State, 193 Ga. App. 661, 662 ( 388 SE2d 712 ) (1989).

2022Because an opening statement is not evidence, our Supreme Court has observed that “the appropriateness of a Bruton challenge in the situation of comments made in the course of [an attorney’s] opening statement is subject to question.” Zackery v. State, 286 Ga. 399, 402 (3) ( 688 SE2d 354 ) (2010).

2022See, e. g., Collins, ___ Ga. at ___ (8) (b) (assuming without deciding that the defendant could raise a Bruton challenge to comments the prosecutor made during opening statement, the challenge would fail because the prosecutor’s comments were not clearly inculpatory of the defendant); Simpkins v. 6 State, 303 Ga. 752 , 756-57 & n.4 (II) ( 814 SE2d 289 ) (2018) (same); Zackery, 286 Ga. at 402 (3) (same).

2017But the motion to sever filed by Wilkins was based on a potential Bruton violation, Bruton v. United States, 391 U. S. 123 ( 88 SCt 1620 , 20 LE2d 476) (1968), and the State’s argument at the pretrial hearing referenced by Wilkins dealt only with Bruton , not the co-conspirator exception to the hearsay rule.

2017But the motion to sever filed by Wilkins was based on a potential Bruton violation, Bruton v. United States, 391 U. S. 123 ( 88 SCt 1620 , 20 LE2d 476) (1968), and the State’s argument at the pretrial hearing referenced by Wilkins dealt only with Bruton , not the co-conspirator exception to the hearsay rule.

2026See also Simpkins v. State, 303 Ga. 752 , 755–56 (2018) (no Bruton violation when co-defendant’s 13 statement did not implicate the appellant directly and left open the possibility of multiple other shooters besides appellant).

2026See also Simpkins v. State, 303 Ga. 752 , 755–56 (2018) (no Bruton violation when co-defendant’s 13 statement did not implicate the appellant directly and left open the possibility of multiple other shooters besides appellant).

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2022Since the testimony “standing alone” did not incriminate Penciel, there was no Bruton violation.14 Additionally, even if there was a violation of the Confrontation Clause, any error was harmless as the testimony did not implicate Penciel, and because there was overwhelming evidence that Penciel was in the vehicle.15 13 Battle v. State, 301 Ga. 694, 700 (4) ( 804 SE2d 46 ) (2017) (citations and punctuation omitted). 14 See Thomas v. State, 300 Ga. 433, 440 (2) (a) (3) ( 796 SE2d 242 ) (2017); Sutton v. State, 295 Ga. 350, 353 (3) ( 759 SE2d 846 ) (2014); Carcamo v. State, 348 Ga. App. 383, 388

2022Since the testimony “standing alone” did not incriminate Penciel, there was no Bruton violation.14 Additionally, even if there was a violation of the Confrontation Clause, any error was harmless as the testimony did not implicate Penciel, and because there was overwhelming evidence that Penciel was in the vehicle.15 13 Battle v. State, 301 Ga. 694, 700 (4) ( 804 SE2d 46 ) (2017) (citations and punctuation omitted). 14 See Thomas v. State, 300 Ga. 433, 440 (2) (a) (3) ( 796 SE2d 242 ) (2017); Sutton v. State, 295 Ga. 350, 353 (3) ( 759 SE2d 846 ) (2014); Carcamo v. State, 348 Ga. App. 383, 388

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2019Moss v. State , 275 Ga. 96 , 98 2, 561 S.E.2d 382 2002 ; see Richardson v. Marsh , 481 U.S. 200 , 211, 107 S.Ct. 1702 , 95 LE2d 176 1987 (declining to extend Bruton beyond facially incriminating confessions of non-testifying co-defendants and holding that, under other circumstances, a limiting instruction may be appropriate); see also Thomas v. State , 268 Ga. 135 , 137-38 (6), 485 S.E.2d 783 (1997) (reiterating that, for the admission of co-defendant's statements to constitute a Bruton violation, the statements standing alone must clearly inculpate the defendant); Owen v. State , 266 Ga. 312

2021Cf. Simpkins v. State, 303 Ga. 752, 755 (II) (814 SE2d 289) (2018) (noting that Bruton applies when the co-defendant’s statement is redacted by replacing a defendant’s name with “an obvious blank, the word ‘delete,’ [or] a symbol,” so as to “notify the jury that a name has been deleted,” because statements redacted in that way still facially incriminate a defendant to whom they obviously refer) (citing Gray v. Maryland, 523 U. S. 185, 195-196 (III) (118 SCt 1151, 140 LE2d 294) (1998)); Ardis v. State, 290 Ga. 58, 60-62 (2) (a) (718 SE2d 526) (2011) (Bruton violation occurs when, despite redact

2021Cf. Simpkins v. State, 303 Ga. 752, 755 (II) (814 SE2d 289) (2018) (noting that Bruton applies when the co-defendant’s statement is redacted by replacing a defendant’s name with “an obvious blank, the word ‘delete,’ [or] a symbol,” so as to “notify the jury that a name has been deleted,” because statements redacted in that way still facially incriminate a defendant to whom they obviously refer) (citing Gray v. Maryland, 523 U. S. 185, 195-196 (III) (118 SCt 1151, 140 LE2d 294) (1998)); Ardis v. State, 290 Ga. 58, 60-62 (2) (a) (718 SE2d 526) (2011) (Bruton violation occurs when, despite redact

2019See Haynes v. State , 269 Ga. 181 , 182 (2), 496 S.E.2d 721 (1998) ("Since there was no Bruton objection at trial, [appellant] is foreclosed from raising this claim on appeal."); see also Horne v. State , 281 Ga. 799 , 804 (5) n.5, 642 S.E.2d 659 (2007) (declining to address Bruton argument on appeal when objection was not made below); Burgess v. State , 276 Ga. 185 , 188 (5), 576 S.E.2d 863 (2003) ("[Appellant] contends that the admission of [the] testimony ... was a violation of his right of confrontation under Bruton v. United States ....

2019See Haynes v. State , 269 Ga. 181 , 182 (2), 496 S.E.2d 721 (1998) ("Since there was no Bruton objection at trial, [appellant] is foreclosed from raising this claim on appeal."); see also Horne v. State , 281 Ga. 799 , 804 (5) n.5, 642 S.E.2d 659 (2007) (declining to address Bruton argument on appeal when objection was not made below); Burgess v. State , 276 Ga. 185 , 188 (5), 576 S.E.2d 863 (2003) ("[Appellant] contends that the admission of [the] testimony ... was a violation of his right of confrontation under Bruton v. United States ....

2017Burgess v. State, 278 Ga. 314, 315 (1) ( 602 SE2d 566 ) (2004).

2017Burgess v. State, 278 Ga. 314, 315 (1) ( 602 SE2d 566 ) (2004).

2012See Munsford v. State, 235 Ga. 38, 43-44 ( 218 SE2d 792 ) (1975) (holding that when the testimony relating each of the statements by co-defendants was admissible against at least one of the co-defendants, the statements were not rendered inadmissible because each statement would be hearsay as to the other two defendants).

2012See Munsford v. State, 235 Ga. 38, 43-44 ( 218 SE2d 792 ) (1975) (holding that when the testimony relating each of the statements by co-defendants was admissible against at least one of the co-defendants, the statements were not rendered inadmissible because each statement would be hearsay as to the other two defendants).

2022See id. (no reversible error under Bruton where evidence of guilt was overwhelming in light of defendant’s own statements and other evidence); Carcamo v. State, 348 Ga. App. 383, 391 (1) (b) ( 823 SE2d 68 ) (2019) (Bruton violation, if any, was harmless, noting the State’s case “was very strong.”); compare Meadows v. State, 264 Ga. App. 160, 165 (5) ( 590 SE2d 173 ) (2003) (reversible error where the evidence was not overwhelming and the only evidence placing defendant at the scene of the crime was non-testifying co-defendant’s improperly admitted statement). 23 6.

2022See id. (no reversible error under Bruton where evidence of guilt was overwhelming in light of defendant’s own statements and other evidence); Carcamo v. State, 348 Ga. App. 383, 391 (1) (b) ( 823 SE2d 68 ) (2019) (Bruton violation, if any, was harmless, noting the State’s case “was very strong.”); compare Meadows v. State, 264 Ga. App. 160, 165 (5) ( 590 SE2d 173 ) (2003) (reversible error where the evidence was not overwhelming and the only evidence placing defendant at the scene of the crime was non-testifying co-defendant’s improperly admitted statement). 23 6.

2022Since the testimony “standing alone” did not incriminate Penciel, there was no Bruton violation.14 Additionally, even if there was a violation of the Confrontation Clause, any error was harmless as the testimony did not implicate Penciel, and because there was overwhelming evidence that Penciel was in the vehicle.15 13 Battle v. State, 301 Ga. 694, 700 (4) ( 804 SE2d 46 ) (2017) (citations and punctuation omitted). 14 See Thomas v. State, 300 Ga. 433, 440 (2) (a) (3) ( 796 SE2d 242 ) (2017); Sutton v. State, 295 Ga. 350, 353 (3) ( 759 SE2d 846 ) (2014); Carcamo v. State, 348 Ga. App. 383, 388

2022Since the testimony “standing alone” did not incriminate Penciel, there was no Bruton violation.14 Additionally, even if there was a violation of the Confrontation Clause, any error was harmless as the testimony did not implicate Penciel, and because there was overwhelming evidence that Penciel was in the vehicle.15 13 Battle v. State, 301 Ga. 694, 700 (4) ( 804 SE2d 46 ) (2017) (citations and punctuation omitted). 14 See Thomas v. State, 300 Ga. 433, 440 (2) (a) (3) ( 796 SE2d 242 ) (2017); Sutton v. State, 295 Ga. 350, 353 (3) ( 759 SE2d 846 ) (2014); Carcamo v. State, 348 Ga. App. 383, 388

2022See Favors v. State, 296 Ga. 842, 845 (2) ( 770 SE2d 855 ) (2015) (“Bruton thus applies only to out-of-court statements by non-testifying co-defendants that are testimonial in nature.”) (punctuation omitted). 22 See Hill v. State, 351 Ga. App. 58, 67 (4) ( 830 SE2d 478 ) (2019) (“[A] Bruton violation may not be prejudicial when the complained-of statements are substantially similar to evidence properly admitted at trial.”) (citation and punctuation omitted).

2022See Favors v. State, 296 Ga. 842, 845 (2) ( 770 SE2d 855 ) (2015) (“Bruton thus applies only to out-of-court statements by non-testifying co-defendants that are testimonial in nature.”) (punctuation omitted). 22 See Hill v. State, 351 Ga. App. 58, 67 (4) ( 830 SE2d 478 ) (2019) (“[A] Bruton violation may not be prejudicial when the complained-of statements are substantially similar to evidence properly admitted at trial.”) (citation and punctuation omitted).

2018See Billings v. State , 293 Ga. 99 , 104 (4), 745 S.E.2d 583 (2013) (concluding that co-defendant's statements to girlfriend were not "testimonial" under Crawford standard, because they were not the product of police investigation intended to produce evidence for trial, and therefore no Bruton violation occurred).

2018See Billings v. State , 293 Ga. 99 , 104 (4), 745 S.E.2d 583 (2013) (concluding that co-defendant's statements to girlfriend were not "testimonial" under Crawford standard, because they were not the product of police investigation intended to produce evidence for trial, and therefore no Bruton violation occurred).

2013See also Davis, 272 Ga. at 332 (outlining cases in which the Bruton violation has been held not so harmful as to require reversal).

2013See also Davis, 272 Ga. at 332 (outlining cases in which the Bruton violation has been held not so harmful as to require reversal).

2012Moss, 275 Ga. at 98 (2); see Thomas v. State, 268 Ga. 135, 137-38 (6) ( 485 SE2d 783 ) (1997) (“For the admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.” (punctuation omitted)); Garlington v. State, 268 Ga. App. 264, 267-68 (1) (a) ( 601 SE2d 793 ) (2004).

2012Moss, 275 Ga. at 98 (2); see Thomas v. State, 268 Ga. 135, 137-38 (6) ( 485 SE2d 783 ) (1997) (“For the admission of a co-defendant’s statements to constitute a Bruton violation the statements standing alone must clearly inculpate the defendant.” (punctuation omitted)); Garlington v. State, 268 Ga. App. 264, 267-68 (1) (a) ( 601 SE2d 793 ) (2004).

2011A Bruton violation, however, does not always result in harm or reversible error. “ ‘[I]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefen-dant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.’ ” Collum v. State, 281 Ga. 719, 721 (2) ( 642 SE2d 640 ) (2007), quoting Schneble v. Florida, 405 U. S. 427, 430 (92 SC 1056, 31 LE2d 340) (1972).

2011A Bruton violation, however, does not always result in harm or reversible error. “ ‘[I]n some cases the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the codefen-dant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the admission was harmless error.’ ” Collum v. State, 281 Ga. 719, 721 (2) ( 642 SE2d 640 ) (2007), quoting Schneble v. Florida, 405 U. S. 427, 430 (92 SC 1056, 31 LE2d 340) (1972).

2021Cf. Simpkins v. State, 303 Ga. 752, 755 (II) (814 SE2d 289) (2018) (noting that Bruton applies when the co-defendant’s statement is redacted by replacing a defendant’s name with “an obvious blank, the word ‘delete,’ [or] a symbol,” so as to “notify the jury that a name has been deleted,” because statements redacted in that way still facially incriminate a defendant to whom they obviously refer) (citing Gray v. Maryland, 523 U. S. 185, 195-196 (III) (118 SCt 1151, 140 LE2d 294) (1998)); Ardis v. State, 290 Ga. 58, 60-62 (2) (a) (718 SE2d 526) (2011) (Bruton violation occurs when, despite redact

2021Cf. Simpkins v. State, 303 Ga. 752, 755 (II) (814 SE2d 289) (2018) (noting that Bruton applies when the co-defendant’s statement is redacted by replacing a defendant’s name with “an obvious blank, the word ‘delete,’ [or] a symbol,” so as to “notify the jury that a name has been deleted,” because statements redacted in that way still facially incriminate a defendant to whom they obviously refer) (citing Gray v. Maryland, 523 U. S. 185, 195-196 (III) (118 SCt 1151, 140 LE2d 294) (1998)); Ardis v. State, 290 Ga. 58, 60-62 (2) (a) (718 SE2d 526) (2011) (Bruton violation occurs when, despite redact

1986But the “ ‘overwhelming evidence of [the appellant’s] guilt as manifested by [her] confession, which completely comported with the objective evidence, and the comparatively insignificant effect of [Hazel Short’s] admission,’ Schneble v. Florida, supra, at p. 427[,]” Bell v. State, 239 Ga. 146, 149 ( 236 SE2d 47 ) (1977), renders any Bruton error harmless in this case. “ ‘The “minds of an average jury” would not have found the state’s case significantly less persuasive had the testimony as to [the] admissions been excluded.’ Schneble v. Florida, supra, p. 432.” Baker v. State, 238 Ga. 389, 392

1986But the “ ‘overwhelming evidence of [the appellant’s] guilt as manifested by [her] confession, which completely comported with the objective evidence, and the comparatively insignificant effect of [Hazel Short’s] admission,’ Schneble v. Florida, supra, at p. 427[,]” Bell v. State, 239 Ga. 146, 149 ( 236 SE2d 47 ) (1977), renders any Bruton error harmless in this case. “ ‘The “minds of an average jury” would not have found the state’s case significantly less persuasive had the testimony as to [the] admissions been excluded.’ Schneble v. Florida, supra, p. 432.” Baker v. State, 238 Ga. 389, 392

2013However, a Bruton violation does not require reversal “if the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the statement was harmless error.” (Citation and punctuation omitted.) Anderson v. State, 311 Ga. App. 732, 736 ( 716 SE2d 813 ) (2011); Richard v. State, 287 Ga. App. 399, 403 (4) ( 651 SE2d 514 ) (2007).

2013However, a Bruton violation does not require reversal “if the properly admitted evidence of guilt is so overwhelming, and the prejudicial effect of the co-defendant’s admission is so insignificant by comparison, that it is clear beyond a reasonable doubt that the improper use of the statement was harmless error.” (Citation and punctuation omitted.) Anderson v. State, 311 Ga. App. 732, 736 ( 716 SE2d 813 ) (2011); Richard v. State, 287 Ga. App. 399, 403 (4) ( 651 SE2d 514 ) (2007).

2021See Mason v. State, 279 Ga. 636, 638 (2) (b) (619 SE2d 621) (2005) (Bruton error was harmless where “essentially identical” statement as that made by non- testifying co-defendant was in evidence without objection by the defense). (b) Pender also argues that the trial court should have excluded the detective’s testimony about statements Whitaker made to the police and the redacted version of a diagram Whitaker drew of the scene of the Scott shooting.

2021See Mason v. State, 279 Ga. 636, 638 (2) (b) (619 SE2d 621) (2005) (Bruton error was harmless where “essentially identical” statement as that made by non- testifying co-defendant was in evidence without objection by the defense). (b) Pender also argues that the trial court should have excluded the detective’s testimony about statements Whitaker made to the police and the redacted version of a diagram Whitaker drew of the scene of the Scott shooting.

2019See Drake v. State , 266 Ga. App. 463 , 465 (2), 597 S.E.2d 543 (2004) (holding that failure to raise motion to sever at trial and to secure a ruling waived issue for appeal); York v. State , 242 Ga. App. 281 , 287 (3) (a) (i), 528 S.E.2d 823 (2000) (same); see also Moss , 275 Ga. at 97-99 (2), 561 S.E.2d 382 (assessing potential Bruton violation in considering whether trial court erred in denying motion to sever).

2019See Drake v. State , 266 Ga. App. 463 , 465 (2), 597 S.E.2d 543 (2004) (holding that failure to raise motion to sever at trial and to secure a ruling waived issue for appeal); York v. State , 242 Ga. App. 281 , 287 (3) (a) (i), 528 S.E.2d 823 (2000) (same); see also Moss , 275 Ga. at 97-99 (2), 561 S.E.2d 382 (assessing potential Bruton violation in considering whether trial court erred in denying motion to sever).