Severance and Bruton Issues
Last Updated: 02/01/22
- Offenses may be severed for trial when they are so distinct and separate from each other that consolidation for trial would be unjust.
- Codefendants who were joined for trial may be severed when antagonistic defenses, confrontation clause violations, or other factors would deny either defendant a fair determination of his guilt or innocence.
Grounds for Severance of Offenses
In ruling on a motion to sever offenses, just as in determining whether to grant a motion to join offenses, the trial court must decide whether the various offenses are so separate in time or place, or so distinct in circumstances, as to make consolidation unjust and prejudicial. State v. Bracey, 303 N.C. 112 (1981); State v. Knight, 262 N.C. App. 121 (2018) (where a transactional connection existed between two gang-related shootings and murder charges, trial court did not err in denying motion to sever). In other words, the key issue is whether joinder will prevent a defendant from receiving a fair trial. See G.S. 15A-927(b). For more information on these factors, see the preceding entry on Joinder of Offenses or Defendants.
Grounds for Severance of Defendants
- The Bruton Rule
One of the most common grounds for a motion to sever concerns the potential use of one defendant’s statement which implicates another codefendant. See G.S. 15A-927(c)(1), (c)(3); Bruton v. United States, 391 U.S. 123 (1968). An out-of-court statement by a defendant who has chosen not to take the stand at trial is inadmissible against his or her codefendants, unless it falls within one of the established exceptions to the hearsay rule (e.g., statements made in the course and in furtherance of a conspiracy, an adopted statement, or an excited utterance). In Bruton, the Court ruled that, in a trial of multiple defendants, it is insufficient for the judge to instruct the jury to only consider such a confession against the declarant and not against any of his or her codefendants. The likelihood that the jury will be unable to perform such “mental gymnastics” is so great that the codefendant’s Sixth Amendment right of confrontation would be violated if the statements were admitted into evidence. Id.
In State v. Fox, 274 N.C. 277 (1968), the North Carolina Supreme Court applied Bruton and ruled that extra-judicial statements by non-testifying defendants can only be admitted into evidence if all portions which implicate codefendants are deleted, and what remains is not prejudicial to the defendant or the state. The general rule in Bruton and the specific provisions found in Fox are reflected in G.S. 15A-927(c)(1). Under this statute, if a defendant objects to the use of a non-testifying codefendant’s confession at their joint trial, and if the confession would not otherwise be admissible against defendant, then the prosecutor must either: (a) sever defendant’s trial from the codefendant’s trial; (b) not admit the codefendant’s statement into evidence; or (c) delete all references to defendant from the codefendant’s statement before using it at their joint trial—that is, “sanitize” the statement. See G.S. 15A-927(c)(1).
In considering how to redact a statement, cases applying Bruton have held that it is insufficient to simply replace the codefendant’s name with a blank space or some other obvious placeholder, such that it remains clear to the jury that the statement implicates the other codefendant. See, e.g., Gray v. Maryland, 523 U.S. 185 (1998) (error to allow detective to testify that Defendant A said “me, (blank), (blank), and a few other guys” committed the crime, and that based on this statement the detective then arrested defendants B and C – jury could easily deduce that Defendant A must have named Defendants B and C in his statement). However, the Court did indicate that it would have been permissible to redact the confession to only state “Me and a few other guys,” since then it would no longer directly implicate a codefendants. Id.; accord, Richardson v. Marsh, 481 U.S. 200 (1987) (Bruton rule does not bar admission of codefendant’s confession at joint trial of defendant and codefendant, when codefendant’s confession has been redacted to eliminate completely any reference to the defendant, even though defendant is inferentially linked to the confession by other evidence properly admitted at trial); State v. Boozer, 210 N.C. App. 371 (2011) (no Bruton violation occurred when the trial court admitted a codefendant’s admission to police that “I only hit that man twice” - codefendant’s statement that does not mention or refer to the defendant does not implicate the confrontation clause or Bruton); see also State v. Barnes, 345 N.C. 184 (1997) (no error to admit statement from one of three codefendants about how he got a stolen ring in which he called it a “three-person secret” because the statement was admissible under two other rules of evidence: Rule 804(b)(3) as a statement against penal interest and Rule 801(d)(E) as a statement made by a coconspirator during the course of and in furtherance of the conspiracy to commit robbery); State v. Littlejohn, 340 N.C. 750 (1995) (error to admit statement which implicated codefendant, but error was harmless beyond a reasonable doubt).
- Antagonistic Defenses
The test for severance based on “antagonistic defenses” is whether the conflict in the defendants’ respective positions at trial is such that, considering all of the other evidence in the case, a defendant would be denied a fair trial. Merely contradictory testimony or different trial strategies among the defendants does not necessarily result in prejudice to a defendant sufficient to require severance. See, e.g., State v. Johnson, 164 N.C. App. 1 (2004) (codefendant’s different defenses at trial were not so irreconcilable that the jury would unjustifiably infer that a conflict demonstrated that both were guilty); State v. Pendergrass, 111 N.C. App. 310 (1993) (severance is not necessarily required simply because two defendants may offer antagonistic or conflicting defenses – no error to deny severance where one defendant testified consistent with state’s evidence and implicated codefendant while absolving himself, and codefendant had the opportunity to cross-examine the testifying defendant); but see State v. Pickens, 335 N.C. 717 (1994) (trial judge erred in denying the defendants’ motions to sever their trials from each other when there was conflicting testimony about various altercations and shootings inside and outside various apartments in the apartment complex where a child was killed, and both defendants blamed each other and presented evidence that challenged the credibility of each other’s witnesses ).
- Other Reasons to Sever
- At the end of the state’s case, if the state has failed to present sufficient evidence to support the allegation upon which the defendants were joined for trial, the court may grant a motion to sever to ensure a fair determination of the other defendant’s guilt or innocence. See G.S. 15A-927(d).
- To protect a defendant’s right to a speedy trial. See G.S. 15A-927(c)(2)a; State v. Marlow, 310 N.C. 507 (1984).
- For any other reason that prevents defendant from receiving a “fair determination of the guilt or innocence of the defendant” if tried jointly. See G.S. 15A-927(c)(2)b.; State v. Porter, 303 N.C. 680 (1981).
Procedure and Timing for Severance
- On its own motion, the court may order severance of offenses or deny joinder of defendants before trial. G.S. 15A-927(e).
- A prosecutor may only make a motion for severance before trial, unless the defendant consents to severance during trial. G.S. 15A-927(a)(3).
- If severance is granted during trial on defendant’s motion, or on a prosecutor’s motion with the defendant’s consent, the trial judge must grant a mistrial. G.S. 15A-927(a)(4).
- In superior court, a motion for severance of offenses must be made by a defendant before trial, or else the defendant waives any right to severance. G.S. 15A-952; 15A-927(a)(1). However, a defendant may make a motion for severance of offenses during trial, at or before the close of the state’s evidence, if the motion is based on grounds not known to the defendant before trial. G.S. 15A-927(a)(1). The statutory requirement regarding making a motion pre-trial does not apply to motions to sever defendants, rather than offenses. See State v. Melvin, 377 N.C. 187 (2021).
- A defendant may renew a pretrial motion for severance at or before the close of the state’s evidence. If, during the presentation of the state’s evidence, severance is warranted based on a ground not previously known to the defendant, the defendant may preserve any right to severance by renewing the motion during trial. A defendant waives any right to severance during trial if the defendant fails to renew the severance motion. G.S. 15A-927(a)(2); State v. Silva, 304 N.C. 122 (1981); State v. Spivey, 102 N.C. App. 640 (1991).