          IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

                              AT KNOXVILLE            FILED
                           JANUARY 1999 SESSION
                                                        March 8, 1999

                                                      Cecil Crowson, Jr.
                                                      Appellate C ourt Clerk

STATE OF TENNESSEE,                )    C.C.A. NO. 03C01-9712-CC-00549
                                   )
     Appellee                      )    BLOUNT COUNTY
                                   )
v.                                 )    HON. D. KELLY THOMAS, JR.,
                                   )    JUDGE
DEMETRIUS ROBINSON,                )
                                   )    (Delivery of cocaine)
     Defendant/Appellant           )




FOR THE APPELLANT:                      FOR THE APPELLEE:

Gerald C. Russell                       John Knox Walkup
125 E. Broadway Avenue                  Attorney General & Reporter
Maryville, TN 37804
                                        R. Stephen Jobe
                                        Assistant Attorney General
                                        Criminal Justice Division
                                        425 Fifth Avenue North
                                        2d Floor, Cordell Hull Building
                                        Nashville, TN 37243-0493




OPINION FILED


AFFIRMED
JOHN K. BYERS
SENIOR JUDGE
                                    OPINION

      On October 15, 1997, the defendant was convicted of delivering cocaine and

he was sentenced to serve four years in the penitentiary.

      The defendant was tried along with a co-defendant Reggie Barton. In the

course of the trial, statements made by Barton implicated the defendant.

      The defendant raises the following issues:

      1.     Whether the defendant’s Motion To Sever the trial should have
             been granted?

      2.     Whether the co-defendant’s statement to the confidential
             informant should have been excluded or redacted?

      We affirm the judgment of the trial court.

      The evidence presented by the State and accredited by the jury shows that

on June 11, 1997 Jake Cleveland, an undercover drug buyer, went to the Howe

Street Park area in Blount County to attempt to develop a case specifically involving

Robinson. The officer drove through the area once without making contact. He

drove through a second time and the defendant yelled to Barton, the co-defendant,

to stop Cleveland and see what he wanted.

      Cleveland stopped and Barton got into his car and informed him that

Robinson was selling “two for forty,” which meant two twenty dollar rocks of crack

cocaine for $20 total. Cleveland told Barton he wished to buy four rocks, but Barton

told him Robinson did not have that much cocaine. Cleveland then gave Barton the

money to buy two rocks, and Barton approached Robinson. Robinson reached into

his clothing and retrieved a bag that he gave to Barton. Barton delivered the money

to Robinson, took possession of the bag, and delivered it to Cleveland. The bag

contained cocaine.

      This transaction was tape recorded and the recording was played to the jury.

Of course, it contained Barton’s statements about Robinson. Additionally,

Cleveland testified about the statements made to him by Barton about Robinson.




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       The defendant asserts that the trial of him and Barton together violated his

right to cross examine Barton because Barton did not testify. It is Robinson’s

position that this procedure violates the rule in Bruton v. United States, 391 U.S.

123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), which prohibits the use of a non-

testifying co-defendant‘s statements which implicate a co-defendant.

       The use of co-defendant statements may not be generally admitted against

another at trial in defiance of the confrontation right of an accused. However, if it is

shown that the defendants conspired with each other or others to commit the crime

being prosecuted, the Bruton rule is not applicable.

       A conspiracy is a combination of two or more persons to do a criminal act.

State v. Lequire, 634 S.W.2d 608 (Tenn. Crim. App. 1981). The facts in this case

clearly show Barton and Robinson were acting in concert to sell cocaine. This being

the case, the statement of one of the conspirators was admissible in the case

whether that defendant testifies or not. Tenn. R. Evid. 803(1.2)(E). The trial judge

did not err in refusing to sever the two defendants for trial or for not redacting

Barton’s statements.

       The judgment of the trial court is affirmed. It appearing that the defendant is

indigent, costs of the appeal are taxed to the State.




                                           John K. Byers, Senior Judge



CONCUR:




James Curwood W itt, Jr., Judge




Norma McGee Ogle, Judge




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