           THE STATE OF SOUTH CAROLINA 

                In The Supreme Court 


   The State, Respondent,

   v.

   Derrick McDonald, Petitioner.

   Appellate Case No. 2012-213686



ON WRIT OF CERTIORARI TO THE COURT OF APPEALS



                Appeal from Kershaw County
          G. Thomas Cooper, Jr., Circuit Court Judge


                    Opinion No. 27515 

        Heard December 11, 2014 – Filed April 22, 2015 



                AFFIRMED AS MODIFIED


   Chief Appellate Defender Robert M. Dudek, of
   Columbia, for Petitioner.

   Attorney General Alan M. Wilson, Chief Deputy
   Attorney General John W. McIntosh, Senior Assistant
   Deputy Attorney General Donald J. Zelenka, Senior
   Assistant Attorney General Melody J. Brown, and
   Solicitor Daniel E. Johnson, all of Columbia, for
   Respondent.
JUSTICE KITTREDGE: Petitioner Derrick McDonald and two codefendants
were convicted of murder and first-degree burglary. The court of appeals affirmed,
rejecting McDonald's argument that his Confrontation Clause rights were violated
when the trial court admitted the redacted confession of one of his nontestifying
codefendants. We granted a writ of certiorari to review the court of appeals'
decision in State v. McDonald, 400 S.C. 272, 734 S.E.2d 167 (Ct. App. 2012). We
find the court of appeals erred, for the jury would readily infer from the face of the
codefendant's confession that it referred to and incriminated McDonald. We
nevertheless affirm McDonald's conviction, for the error was harmless in light of
the overwhelming evidence of guilt.

                                          I.

McDonald, Christopher Whitehead, Robert Cannon and Joshua Zoch (Victim)
worked together at various times at a Sonic fast food restaurant in Columbia, South
Carolina. On the evening of December 12, 2006, Victim was brutally murdered in
his Kershaw County home. McDonald, Whitehead, and Cannon were charged,
tried together, and convicted of burglarizing Victim's home and murdering him.

Earlier on the day of the murder, Whitehead called a co-worker looking for Victim.
Whitehead wanted to know if Victim would be home that evening. According to
the co-worker, Whitehead wanted to go over to Victim's home to fight him.
Whitehead was upset because he believed Victim was a "snitch" who was
cooperating with the police in various drug investigations.

At approximately 10:00 in the evening, Whitehead, McDonald and Cannon arrived
together at Sonic in Whitehead's car. Cannon was wearing a ski mask, and the
assistant manager on duty told all three men to leave the premises. The trio left
Sonic together in Whitehead's car and drove to a Wal-Mart, where they purchased
a ski mask and latex gloves.

Victim's brutally beaten body was discovered in his home the next day by his
girlfriend. Victim was beaten to death by multiple objects. The forensic
pathologist testified that he identified between six and eight injuries to Victim's
head that were each independently capable of causing death.

The investigation quickly focused on Whitehead, McDonald, and Cannon
(Defendants). Investigators spoke to Cannon, who gave a detailed confession
implicating all of the Defendants in Victim's murder. Following Cannon's
confession, McDonald and Whitehead were arrested. McDonald also confessed
and admitted that the Defendants, after going to Wal-Mart, drove to Victim's home
and broke in and killed him. Defendants punched and kicked Victim repeatedly
and hit him with a baseball bat and a lamp.

                                        II.

Defendants were indicted on charges of first-degree burglary and murder. The
State chose to try the Defendants jointly and sought to introduce McDonald's and
Cannon's confessions during its case-in-chief. Defense counsel and the State
argued about how the confessions should be redacted in order to comply with the
Confrontation Clause. The State contended redacting the confessions using the
neutral phrase "another person" was sufficient, while defense counsel insisted on
redacting all references to anyone other than the confessing defendant in each of
the statements. The trial court overruled defense counsel's objections and
instructed the State to redact the confessions using the phrase "another person."
The confessions were admitted over counsel's objection.

According to Cannon's statement, with "another person" substituted for the names
of the codefendants:

      On Tuesday the 12th December 2006 at 2:00 p.m. another person got
      off of work and picks me up. We go to the mall and I got a new cell
      phone and shoes. We then went to pick up another person and then
      we went to McDonalds in Blythwood and eat and from there we went
      to Sonic. I had on a ski mask and was joking around while another
      person talked to a girl in the back and another person was talking to
      Leroy. I don't know Leroys last name. We then left Sonic and went
      to the Two Notch Walmart and and another person got a ski mask.
      So we went riding and another person said you know we need to do
      something with these mask, and I ask and another person ask like
      what. And another person said like beat Josh's ass because he's a
      snitch, and I told another person I didn't think he was a snitch.
      Another person then ask if me and another person wanted to ride and
      we said whatever.

      Because I had nothing else to do and no certain time to be home, that
      was about 11 p.m. Another person was real quiet in the car while we
      were going to Josh's house. We pulled up to Josh's about 11:30 p.m.
      another person knocked on the front door and Josh didn't answer. So
      another person said that he was going to pull one of my moves and
kick the door. So another person went to the side door and he
another person busted it in.

He went in first and me and another person followed him to watch the
fight. Josh was asleep on the couch and another person yelled hey
bitch, and when Josh looked up, another person hit him with a glass
lamp. Right after that Josh was in a daze and another person drags
him off the couch part of the way. Then another person started
pressuring another person to hit Josh with the bat that was in the
house and another person then hit Josh in the back of head. After that
Josh was basicly crawling trying to get up, and the whole time
another person was talking shit to him about being a snitch. At that
time another person kicked Josh in the ribs and ask Josh where the
weed was and Josh was just grunting. That when another person ask
me to check the room and we started pulling draws and another
person flipped the mattress and another person was just standing
their. Then Josh went unconscious and I got Josh a towel and put it to
his head. Another person said fuck we don't have anything and
pushed the Christmas tree over on Josh. Another person then got mad
again and took the house phone. But before another person left he got
some frozen chicken from the freezer and put it on Josh's head to try
and stop the bleeding. After that we went back out the same way we
came in.

We left and another person dropped another person off 1st and me
second and I guess he went home.

Q: Did you, another person, and another person have on gloves?
A: Yes.

Q: What kind of gloves?
A: Purple latex and I had on 2 pair white and purple ones on top.

Q: Where was the bat from that was used to hit Josh?
A: It was in Josh's house. I just looked over their and another person
   picked it up.

Q: What were you, another person, and another person wearing that
   night?
A: Black pants and shirts and ski mask.
      Q: What color was the ski mask?
      A: Mine was black and theirs was black or dark blue.

      Q: Did you change cloths that night after the incident?
      A: Yes and another person done something with them.

No defendant testified.

The jury found Defendants guilty of both charges. McDonald appealed,1
contending that his Confrontation Clause rights were violated by the admission of
Cannon's redacted confession, arguing that given the context, Cannon's written
confession clearly implicated McDonald in the crimes. The court of appeals
affirmed, "find[ing] that the neutral phrase 'another person' inserted into Cannon's
statement avoided any [Confrontation Clause] violation."2 State v. McDonald, 400
S.C. at 279, 734 S.E.2d at 170. We now review the court of appeals' Confrontation
Clause determination.

                                        III.

"The Confrontation Clause of the Sixth Amendment, extended against the States
by the Fourteenth Amendment, guarantees the right of a criminal defendant 'to be
confronted with the witnesses against him.'" Richardson v. Marsh, 481 U.S. 200,
206 (1987) (quoting U.S. Const. amend. VI). This constitutional right "include[s]
the right to cross-examine those witnesses." Pointer v. Texas, 380 U.S. 400, 401
(1965). In Bruton v. United States, the United States Supreme Court held that a
defendant's Confrontation Clause rights are violated when a nontestifying
codefendant's confession that implicates the defendant is admitted during a joint
trial. 391 U.S. 123, 127–28 (1968). The Court noted that these "powerfully
incriminating extrajudicial statements of a codefendant" are not only "devastating

1
 Whitehead also raised a Confrontation Clause challenge on appeal, and the court
of appeals affirmed his conviction in an unpublished opinion. State v. Whitehead,
Op. No. 2012-UP-526 (S.C. Ct. App. filed Sept. 12, 2012). This Court granted a
writ of certiorari to review the court of appeals' decision.
2
  McDonald also argued in the court of appeals that the admission of Cannon's
statement violated Crawford v. Washington, 541 U.S. 36 (2004). The court of
appeals held that issue to be unpreserved. State v. McDonald, 400 S.C. at 279–80,
734 S.E.2d at 171. This Court denied certiorari as to the Crawford issue.
to the defendant but [also] their credibility is inevitably suspect." Id. at 135–136.
"While appearing to establish a bright-line rule against the admission of a
codefendant's confession which incriminates a defendant, the [Bruton] Court
acknowledged there are alternatives which may allow the admission of a
confession while still protecting a defendant's Confrontation Clause rights and in a
footnote, mentioned redaction as one of those alternatives." State v. Henson, 407
S.C. 154, 162, 754 S.E.2d 508, 512 (2014) (citing Bruton, 391 U.S. at 133–34. 134
n.10).

The Supreme Court has revisited the issue twice since Bruton. In Richardson v.
Marsh, the Court addressed the issue of whether the Confrontation Clause is
violated "when the codefendant's confession is redacted to omit any reference to
the defendant, but the defendant is nonetheless linked to the confession by
evidence properly admitted against him at trial." 481 U.S. 200, 202 (1987). The
Court held that there was no Confrontation Clause violation "by the admission of a
nontestifying codefendant's confession with a proper limiting instruction" when
"the confession is redacted to eliminate not only the defendant's name, but any
reference to his or her existence." Id. at 211. The Court expressly declined to
opine "on the admissibility of a confession in which the defendant's name has been
replaced with a symbol or neutral pronoun." Id. at 211 n.5.

Eleven years later, the Supreme Court reached that issue in Gray v. Maryland, 523
U.S. 185 (1998). The defendant's name in Gray was redacted by using the word
"deleted" or inserting a blank space, and the Court found that "redaction that
replaces a defendant's name with an obvious indication of deletion, such as a blank
space, the word 'deleted,' or a similar symbol, still falls within Bruton's protective
rule" as it "refers directly to the 'existence' of the nonconfessing codefendant." Id.
at 192. The Court noted that "the obvious deletion may well call the jurors'
attention specially to the removed name." Id. at 193. "By encouraging the jury to
speculate about the reference, the redaction may overemphasize the importance of
the confession's accusation—once the jurors work out the reference." Id. "In other
words, the Court brought within Bruton's prohibition those confessions which
facially incriminate through inference." Henson, 407 S.C. at 164, 754 S.E.2d at
513.

This Court has followed Gray. First, in State v. Holder, the Court held that the
admission of a nontestifying codefendant's oral statement which replaced the
defendant's name with "she" violated the Confrontation Clause "because the jury
could readily determine that the statement referred to [defendant] as she was the
only female defendant." 382 S.C. 278, 285, 676 S.E.2d 690, 694 (2009). More
recently, in Henson, we found that the State's use of a nontestifying codefendant's
confession that replaced defendant's name with "the guy," "he," and "him" violated
the Confrontation Clause because "the jury could infer from the face of
[nontestifying codefendant's] confession without relying on any other evidence,
that the confession referred to and incriminated [the defendant.]" 407 S.C. at 166,
754 S.E.2d at 514.

In the instant case, Cannon's confession was redacted using the phrase "another
person." However, even a casual reading of the confession makes it apparent that
the confession describes the actions of Cannon and two other male individuals.
For example, Cannon's confession begins: "On Tuesday the 12th December [sic]
2006 at 2:00 p.m. another person got off of work and picks [sic] me up. We go
[sic] to the mall and I got a new cell phone and shoes. We then went to pick up
another person . . . ." Moreover, the redacted version of Cannon's statement
repeatedly uses the pronouns "he" and "him," clearly indicating that the unnamed
individuals in the confession were male. In light of the fact that there were three
male defendants in the trial, the jury was left with the inescapable conclusion that
Cannon's confession referred to McDonald and Whitehead, who were seated at
counsel table.3 Under Bruton and its progeny, this is insufficient to satisfy the
demands of the Confrontation Clause. See Gray, 523 U.S. at 196 ("The inferences
at issue here involve statements that, despite redaction, obviously refer directly to
someone, often obviously the defendant, and which involve inferences that a jury
ordinarily could make immediately . . . ."); Henson, 407 S.C. at 164, 754 S.E.2d at
513 (stating that Bruton prohibits statements "which facially incriminate through
inference").

Moreover, we reject the State's invitation to find no Confrontation Clause violation
based on the trial court's limiting instruction. The presence of a limiting
instruction is not curative here, as it was not in Bruton, for "there are some contexts
in which the risk that the jury will not, or cannot, follow instructions is so great,
and the consequences of failure so vital to the defendant, that the practical and
human limitations of the jury system cannot be ignored." Bruton, 391 U.S. at 135
(citations omitted). We hold that the court of appeals erred in finding that the


3
  We also note that immediately after the investigator read Cannon's confession to
the jury, the solicitor asked, "What happened next in the investigation? What did
you do next?" The investigator responded, "After obtaining [Cannon's] statement,
we then obtained an arrest warrant for Mr. Derrick McDonald." The inescapable
conclusion is that Cannon's statement inculpated McDonald.
admission of Cannon's redacted confession did not violate McDonald's
Confrontation Clause rights.

"The mere finding of a violation of [the Confrontation Clause] in the course of the
trial, however, does not automatically require reversal of the ensuing criminal
conviction." Schneble v. Florida, 405 U.S. 427, 430 (1972). "In some cases the
properly admitted evidence of guilt is so overwhelming, and the prejudicial effect
of the codefendant's admission is so insignificant by comparison, that it is clear
beyond a reasonable doubt that the improper use of the admission was harmless
error." Id. In this case, we find that the overwhelming evidence of McDonald's
guilt renders the error harmless beyond a reasonable doubt.

We first note the presence of strong evidence of guilt, apart from the erroneous
admission of Cannon's confession. On the evening of the murder, Whitehead
informed a co-worker that he intended to go over to Victim's home to fight him.
Later that evening, around 10:00 p.m., Defendants arrived at the Sonic, with
Cannon donning a ski mask. The shift manager told the Defendants to leave. An
on-duty employee then observed Defendants leave together. That employee
testified that Whitehead drove a four-door sedan with a noticeably loud muffler
sound. Investigators obtained a receipt from the Wal-Mart on Two Notch Road in
Columbia, which confirmed that a ski mask and purple latex gloves were
purchased at 10:43 p.m. on the night of the murder. At approximately 11:30 p.m.,
near the time of Victim's murder, Victim's neighbor took his dog outside and heard
"a lot of knocking noise[s], loud, like somebody kicking something or slamming
doors." About ten minutes later, the neighbor heard "a lot of noise" and "a lot of
people getting excited." He then heard a loud muffler sound and observed
headlights in the road. A short time later, at about 1:30 a.m., McDonald showed
up at a co-worker's house and was visibly upset. The co-worker testified that,
although McDonald did stay at his house from time to time, this was the first time
McDonald had showed up so late. In addition, the morning after the murder,
Whitehead showed up to work at the Sonic with a scratch under one of his eyes
and a limp. He began acting strange and lied to his manager about the source of
the injuries, claiming that he fell at work. Several days later, he walked out of
work during a shift and told his manager that he's "got problems" and was "about
to move to Aiken." We find this evidence of guilt, independent of Cannon's
confession, compelling.

Beyond the independent evidence of guilt, McDonald gave a confession that was
entirely consistent with Cannon's confession. McDonald's confession detailed
going to the restaurant with Whitehead and Cannon, purchasing a ski mask and
gloves from Wal-Mart, arriving at Victim's home, kicking in the door, hitting
Victim repeatedly in the body and head with a baseball bat, and stealing various
items from Victim's home. The properly admitted evidence at trial aligns with the
details McDonald provided in his confession. In addition to the corroboration of
the purchase at Wal-Mart, part of a purple latex glove was found at the crime
scene. Victim's girlfriend further testified that Victim kept a baseball bat at his
home, which investigators also found at the crime scene.

Given the extensive evidence of guilt, we conclude that the Bruton violation was
harmless beyond a reasonable doubt. See Schneble, 405 U.S. at 431 (finding a
Bruton violation to be harmless error when the "details of petitioner's [confession]
were internally consistent, were corroborated by other objective evidence, and
were not contradicted by any other evidence in the case").4

                                         IV.

We conclude that the admission of Cannon's redacted confession violated
McDonald's Confrontation Clause rights. However, in light of the overwhelming
evidence of guilt, we determine that that the error in this case was harmless beyond
a reasonable doubt. We affirm the court of appeals as modified.


AFFIRMED AS MODIFIED.

TOAL, C.J., PLEICONES, BEATTY and HEARN, JJ., concur.




4
  Although we find the error in this case harmless, we take this opportunity to
repeat our cautionary warning from almost three decades ago when we "urge[d] the
[S]tate to carefully consider all the available alternatives before deciding to try co-
defendants jointly." State v. Bellamy, 293 S.C. 103, 106, 359 S.E.2d 63, 65 (1987),
overruled on other grounds by State v. Torrence, 305 S.C. 45, 69 n.5, 406 S.E.2d
315, 328 n.5 (1991). "While we realize there will be circumstances in which a
joint trial will be the best route to follow, the decision to pursue this route should
be made only after giving due deliberation to the inherent problems, such as
redacted statements, which arise from joint trials." Id.
