The right of confrontation and cross-examination
does not apply to sentencing pursuant to a criminal
conviction. U.S. ex rel. Gerchman v. Maroney, 355 F.2d
302, 308 (3d Cir. 1966)
C. Use of co-defendant’s statements
In a joint trial, admission of non-testifying co-
defendant’s confession which implicated defendant
violated right to confrontation even though the trial court
gave a clear, concise and understandable instruction that
the confession could only be used against co-defendant
and must be disregarded with respect to defendant.
Bruton v. United States, 391 U.S. 123 (1968). A “limiting
instructions as an adequate substitute for petitioner’s
constitutional right of cross-examination,” is unaccept-
able. The effect is the same as if there had been no
instruction at all. Id. at 137.
When the confession of any co-defendant involving
any other co-defendant cannot be effectively excised, the
trial court should order separate trials. State v. Young, 46
N.J. 152 (1965); R. 3:15-2(a). See State v. Lyons, 211
N.J. Super. 403, 406 (App. Div. 1986) (trial court’s
denial of severance motion by joint defendants was error,
but harmless under the circumstances).
When a defendant has confessed and his confession
interlocks with that of his co-defendant, admission of the
interlocking confessions in a joint trial with proper
limiting instructions does not violate Sixth Amendment.
Richardson v. Marsh, 481 U.S. 200, 211 (1987); Parker
v. Randolph, 442 U.S. 62, 75 (1979). See State v.
Guzman, 313 N.J. Super. 363, 382 (App. Div.), certif.
denied 156 N.J. 424 (1998) (trial court’s admission of co-
defendant’s statements without limiting instruction was
not reversible error since the statements only
incriminated defendant when they were linked with
other evidence presented by the prosecution, which was
overwhelming without those co-defendant’s state-
ments).
Bruton error occurred during trial when detective, in
response to question by co-defendant’s defense counsel,
testified about non-testifying co-defendant’s out-of-
court confession which inculpated defendant. Holland v.
Attorney General of NJ, 777 F.2d 150 (3d Cir. 1985);
State v. LaBoy, 270 N.J. Super. 296 (App. Div. 1994)
(admission of testimony relating to non-testifying co-
defendant’s confession directly incriminating defendant
violated defendant’s right of confrontation). See State v.
Bowser, 297 N.J. Super. 588 (App. Div. 1997).
Absent co-defendant’s flight was not an incriminat-
ing statement under Confrontation Clause; in any event
the trial court’s limiting instructions cured any
impairment of defendant’s rights. State v. Melendez, 129
N.J. 48 (1992).Co-conspirator’s brief appearance on stand and his
invocation of Fifth Amendment privilege against self-
incrimination did not deprive defendant of his right to
adequate opportunity for cross-examination, absent any
showing that co-conspirator’s brief appearance added
critical weight to prosecution’s case in form not subject
to cross-examination. Todaro v. Fulcomer, 944 F.2d
1079 (3d Cir. 1991), cert. denied 503 U.S. 909 (1992)D. Co-conspirator’s statementsCo-conspirator hearsay exception does not violate
Confrontation Clause. Bourjaily v. United States, 483
U.S. 171 (1987); United States v. Inadi, 475 U.S. 387
(1986).However, “co-conspirator exception” to hearsay rule
requires that statement be made in furtherance of the
conspiracy. State v. Phelps, 96 N.J. 500 (1984) (setting
forth standards for determining admissibility of co-
conspirator’s hearsay statement); State v. D’Arco, 153
N.J. Super 258 (App. Div. 1977) (hearsay statements
made by co-conspirators is admissible as long as there is
independent proof of the conspiracy and defendant’s
participation in it). See also Lambert v. Avonio, 1995 WL
526538 (D.N.J.) (finding co-conspirator hearsay
statement did not violate federal constitutional rights
and that there was ample evidence to support a finding
that a conspiracy existed and that defendant participated
in it).The right of confrontation is not violated when a
police officer explains the reasons he apprehended a
suspect or went to the scene of a crime by stating that he
did so “upon information received,” because such
testimony shows the officer was not acting arbitrarily.
State v. Bankston, 63 N.J. 263, 268 (1973). However,
when the testimony becomes more specific by repeating
what some other person told him concerning a crime by
the accused, both the hearsay rule and the right of
confrontation are violated. Id; see State v. Alston, 312 N.J.
Super. 102 (App. Div. 1998) (repeated, express
references to anonymous information directly pointing
to defendants as suspects, which was included in the
State’s opening, summation and testimony, constituted
hearsay that violated their confrontation rights as
explained in State v. Bankston, supra); State v. Maristany,