Appeal by defendant Rankin from Albright, Judge. Judgment entered 27 March 1981 in Superior Court, Guilford County. Heard in the Court of Appeals 5 February 1982.
Arnold, Judge. Judges Clark and Whichard concur.
Defendant's first assignment of error is that the trial court erred in allowing a joint trial of defendant and Whilhite and in not requiring the State to make the election required by G.S. 15A-927(c)(1) when defendant objected to joinder and moved for severance. The statute on which defendant relies provides that:
(1) When a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court must require the prosecutor to select one of the following courses:
a. A joint trial at which the statement is not admitted into evidence; or
b. A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him; or
c. A separate trial of the objecting defendant.
While the statute clearly dictates an election where its provisions are found to apply, this Court has held that the election requirement is inapplicable where the codefendant testifies. State v. Johnston, 39 N.C. App. 179, 249 S.E.2d 879 (1978), cert. denied 296 N.C. 738, 254 S.E.2d 179 (1979). In explaining this exception, the Court noted in Johnston that:
G.S. 15A-927(c)(1) codifies substantially the decision in Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), which held that the receipt in evidence of the confession of one co-defendant posed a substantial threat to the
other co-defendant's Sixth Amendment right of confrontation and cross-examination because the privilege against self-incrimination prevents those who are implicated from calling the defendant who made the statement to the stand. Id. at 182, 249 S.E.2d 881.
Thus, since the defendant here was able to cross-examine Whilhite at trial concerning his out-of-court statement, the trial court correctly found that G.S. 15A-927(c)(1) did not apply and no election was required.
Defendant further argues that the trial court's refusal either to suppress Whilhite's statement or to sever the trial was an abuse of discretion. The court's instruction that the statement was to be considered for impeachment purposes only was insufficient, according to defendant, to prevent prejudicial effect. In view of the cumulative nature of the evidence against defendant, and ...