Background
Polo Keoki Salazar was convicted in Dorchester County of murder, first-degree burglary, possession of a stolen vehicle valued between $2,000 and $10,000, attempted murder, possession of a weapon during the commission of a violent crime, and ill treatment of animals, and was sentenced to an aggregate forty-five years’ imprisonment. At trial, Salazar was tried jointly with a co-defendant. The co-defendant (Davis) gave statements during a police interview that were admitted at Salazar’s trial. Salazar argued those statements violated his Confrontation Clause rights under Bruton v. United States, 391 U.S. 123 (1968). Salazar also moved for severance, contending that the joint trial prejudiced his right to cross-examine Davis. Additionally, Salazar challenged the admission of his camouflage jacket into evidence and the admission of expert testimony about gunshot residue (GSR) found on the jacket. The trial court denied these objections and motions and Salazar was convicted on all counts. He appealed all three issues.
The Court’s Holding
The Court of Appeals affirmed on all three issues under Rule 220(b), SCACR.
Bruton / co-defendant statements. The court held that the co-defendant’s statements did not violate Bruton because they referred to a group rather than to Salazar individually. Davis made statements during police interrogation using the neutral pronoun “they”: “If I talk, they’re going to kill me,” “I found it in the car. They had it,” and “Stuff they just told me to get.” Under Bruton, the Confrontation Clause is violated when a nontestifying co-defendant’s confession directly implicates the defendant. But not every statement made in a co-defendant’s confession triggers Bruton. In Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court extended Bruton to statements that “facially incriminate through inference” and “obviously refer directly to someone, often obviously the defendant.” In Richardson v. Marsh, 481 U.S. 200 (1987), the Court held the Confrontation Clause is not violated by a properly redacted statement that eliminates not only the defendant’s name but also any reference to the defendant’s existence. Here, “they” referenced a group of unspecified people and did not directly implicate Salazar as a member of that group. The statements became incriminating only when linked with other evidence introduced at trial—the classic scenario that falls outside Bruton’s protection under Richardson and Gray.
As to the interrogating officer’s statements to Davis—“Were you there when your buddy shot the guy” and “They’re going to jail. They can’t hurt you from there”—the court held these were not protected by Bruton because Davis testified at trial and was therefore subject to cross-examination. Bruton applies only to statements of nontestifying co-defendants.
Severance. Because the co-defendant’s statements did not implicate Salazar under Bruton, the trial court did not abuse its discretion in denying the severance motion. Salazar’s stated basis for severance was his Sixth Amendment right to cross-examine Davis; that foundation collapsed once the court found the statements non-implicating. The court also noted that a severance is warranted only when there is a serious risk that the joint trial would compromise a specific trial right or prevent a reliable verdict. No such showing was made.
GSR testimony (unpreserved). The court held that the challenge to GSR expert testimony was not preserved for appellate review. Although Salazar objected during the testimony, the parties then discussed the objection off the record, and Salazar never placed the basis of his objection, his supporting arguments, or the trial court’s ruling on the record. For an issue to be preserved it must be raised and ruled upon by the trial court. Because the record contained no indication of what objection was made or how the court ruled, there was nothing to review on appeal.
Jacket (chain of custody). The court also affirmed admission of the camouflage jacket. The jacket was non-fungible evidence that was readily identifiable—it had been specifically identified by an officer as the jacket Salazar was wearing on the night of the incident. Under South Carolina law, unique and identifiable items need not be authenticated through a strict chain of custody; testimony identifying the item as the one in question and in substantially unchanged condition is sufficient.
Key Takeaways
- A co-defendant’s statement that uses neutral group pronouns (“they”) and does not refer directly to the defendant by name or obvious implication does not violate Bruton; the Confrontation Clause protects against statements that obviously and directly implicate the defendant, not merely against statements that become incriminating when linked with other trial evidence.
- A severance motion premised on the right to cross-examine a co-defendant about statements fails when those statements are found not to implicate the defendant; the asserted prejudice disappears with the Bruton finding.
- Evidentiary objections that are taken off the record must be placed back on the record—including the grounds, arguments, and the court’s ruling—or they are unpreserved for appellate review; a bare objection that is then resolved in an off-record conference is not sufficient.
- Non-fungible, readily identifiable physical evidence (clothing, weapons, distinctive objects) may be admitted on the basis of testimony identifying it as the item in question and confirming it is in substantially unchanged condition, without strict chain-of-custody documentation.
Why It Matters
The line between statements that violate Bruton and those that do not has practical implications for how prosecutors structure joint trials and how courts handle redaction requests. Salazar illustrates that the neutral-pronoun redaction strategy endorsed by Richardson v. Marsh can survive Bruton challenge when the resulting statement references an undifferentiated group rather than a person obviously identifiable as the defendant. The key question is whether the statement “obviously refer[s] directly to someone, often obviously the defendant” (Gray)—a contextual inquiry that depends on what the jury would immediately infer, not on what could theoretically be pieced together by combining the statement with other evidence.
The GSR preservation holding is a reminder of an easily overlooked trial practice trap: off-the-record sidebars and bench conferences often resolve disputes efficiently, but if the substance of the ruling is never put back on the record, the issue cannot be reviewed on appeal. Defense counsel in criminal cases should make it a practice to ensure that any objection, the court’s ruling, and the basis for each are reflected in the transcript before moving on.