LeKendrick Bernard Passmore was convicted of felony murder in the shooting death of James Jackson. 1
Passmore appeals, contending that the admission of his co-defendant's statement implicated Passmore and required a severance of the two trials. Because the co-defendant testified, his statement was admissible as substantive evidence, and severance was not required. Therefore, we affirm.
1. The evidence at trial showed that late in the evening of October 10, 1996, Passmore and his co-defendant Darrick Collins 2
were stopped by police as they were driving away from Collins's apartment. The police had a warrant to search Collins's apartment and asked for permission to search Passmore's car, in which they found a loaded .9 mm handgun in the glove compartment. After returning to the apartment with Passmore and Collins and conducting a search, the police unloaded the gun, returned it to Passmore, and left. Collins believed that Rita Lewis, his former girlfriend, had informed the police of his drug activities. Several hours after the search, Passmore drove Collins to Lewis's apartment to confront her. After Lewis would not answer the door, Passmore fired several shots through a window. The shots struck and killed James Jackson, who was inside Lewis's apartment. After reviewing the evidence in the light most favorable to the jury's determination of guilt, we conclude that a rational trier of fact could have found Passmore guilty of the crime charged. 3
2. Passmore contends that the trial court erred in failing to sever his trial from that of his co-defendant Collins. Before trial, Passmore argued that a severance was required because Collins's statement implicated Passmore and the introduction of his statement would violate the rule of Bruton v. United States. 4
However, Collins testified at trial, thus eliminating any Bruton problem. 5
In this circumstance, Passmore has failed to demonstrate clear prejudice from the trial court's denial of severance. 6
3. Passmore contends that his trial counsel was ineffective for failing to recognize earlier the problems presented by a joint trial. The record indicates, however, that trial counsel made a timely motion for severance. Passmore also asserts that trial counsel was ineffective for failing to cross-examine Collins. However, Collins testified that Passmore was not the shooter and that his statement to the police implicating Passmore was untrue. Therefore, the failure to cross-examine Collins does not fall below the wide range of reasonable professional assistance. 7
5. Passmore contends the trial court erred in refusing to excuse an elderly juror who had difficulty understanding English. Passmore, however, failed to challenge the juror for cause and did not expressly adopt his co-defendant's challenge. Therefore, this error is not preserved for appellate review. 9
Likewise, Passmore's claim regarding the procedure for jury selection is not preserved for review.
Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, Thurbert E. Baker, Attorney General, Daniel G. Ashburn, Assistant Attorney General, for appellee.