On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Sullivan, Pashman, Clifford, Schreiber, Handler and Pollock. For reversal -- none. The opinion of the Court was delivered by Sullivan, J.
Defendant Michael Corsi and defendant Ralph Belverio were convicted of conspiracy to commit robbery in violation of N.J.S.A. 2A:98-1, armed robbery with a dangerous instrument in violation of N.J.S.A. 2A:141-1 and N.J.S.A. 2A:151-5 and murder in violation of N.J.S.A. 2A:113-1 and -2. In addition, defendant Belverio was convicted of atrocious assault and battery in violation of N.J.S.A. 2A:90-1. The trial judge merged all of the convictions and sentenced each defendant to a term of life imprisonment in State Prison on the murder convictions.
The charges were based on a brutal assault on the victim of the robbery with a tire iron, resulting in his death about two weeks later. Corsi and Belverio were tried jointly before separate juries sitting in the same courtroom. The reason for this was that part of the State's case against Corsi included the testimony of State's witness Victor Giaimo that Corsi had told him of his (Corsi's) and Belverio's involvement in the particular criminal episode. This evidence was admissible against Corsi but could not be used against Belverio because of his right,
secured by the Confrontation Clause of the Sixth Amendment, to cross-examine the declarant of an out-of-court statement inculpating him.*fn1 See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968). Belverio, in a pretrial motion, had asked for separate trials or, in the alternative, for a two-jury trial. Belverio rested his motion directly on the Bruton rule. Corsi, who was the driver of the car used during the criminal episode, did not have standing to raise the Bruton issue. He joined in the motion, however, claiming he was unaware of the criminal plans of his associates and that a joint trial before a single jury might result in his being found guilty by mere association with the actual criminals.
The trial judge denied the motions for severance but granted the application for a two-jury trial because of the Bruton problem. During jury selection, counsel for Belverio again moved for a severance. This motion was denied and two juries were drawn, one for Belverio and the other for Corsi. Separate openings and closings were made. Evidence relating to both defendants was presented to the two juries jointly. The Bruton problem was handled by having the Belverio jury withdrawn from the courtroom when evidence admissible only against Corsi was presented. The court charged each jury separately, each jury deliberated separately and separate verdicts were returned. As heretofore noted, both defendants were found guilty and sentenced to life imprisonment. The Appellate Division affirmed the judgments of conviction.
In the petition for certification filed on behalf of defendants, it was stated that:
The question presented to this court is whether the procedure adopted by the trial judge in trying the two defendants simultaneously before separate juries was prejudicial to the defendants. The issue was raised as plain error because the suggestion of using two juries was made by defense counsel with the acquiescence of the prosecutor.
Certification was granted to consider this question, 85 N.J. 461 (1980). We now affirm.
The basic issue is whether the procedure adopted by the trial court in its effort to avoid a Bruton problem prejudiced defendants' right to a fair trial.
Prior to Bruton, this Court, in State v. Young, 46 N.J. 152 (1965), had held that at a joint trial of co-defendants where the State introduced an out-of-court confession of one defendant which also implicated a co-defendant, an instruction to the jury that the confession had evidential value solely against the declarant was inadequate to protect the co-defendant's right to a fair trial. 46 N.J. at 156-157. In Young, we outlined the procedure to be used at a joint trial, if the State intended to use a defendant's confession which implicated a co-defendant. It required the State, prior to trial, to move for a judicial determination of whether there could be an effective deletion of all references to any co-defendant without prejudice to the confessing defendant. If this was ...