Carpenter v. United States

Thus, sometimes approach, different rule, CARPENTER, Randy

called the is considered Lamb-Weston2 a/k/a Elton G. equita- Johnson, some to be more balanced Appellant, ble solution. v. It does not one of the arbitrarily pick STATES, Appellee. UNITED it; give effect to conflicting clauses and No. 12044. deprive it does not insured of

coverage; giving it is not prejudicial Appeals. District of Columbia Court expense windfall to one at the insurer 11, 1980. En Banc Jan. Argued another; does encourage litigation it April 1981. Decided delay set between insurers. It does hand, tlements. On other it does the losses predict

enable underwriters to accurately;

of the insurers more does illogical the use rules devel

preclude time,

oped by (e. g., first in courts general tort-fea-

specific primary doctrines); give

sor and it does a basis addition,

uniformity prorat of result. the loss is a rule among all insurers can be applied regardless regard

number insurers involved and are cre type

less of the of conflicts that

ated clauses. “other insurance” the rule more conve

Finally, simpler,

nient, major and easier than the apply [Note, rule. Between “Oth

ity Conflicts Lia

er Insurance” in Automobile Clauses Policies, 1292, 1304 L.J.

bility Hastings

(1969),cited in Services Werley United Association, 112, 117 498 P.2d

Automobile

(Alaska 1972).]

For the reasons forth in the set division, Medox, Inc., D.C.App., Jones our en vacated May

banc order the Lamb-Weston burden- prove

rule is favored. It should not They to insurance need companies.

some present avoid the and state in practices fashion their intend-

a clearer the extent of coverage.

ed Co., Lamb-Weston, Oregon Ins. Auto. Inc. v. 341 P.2d 110

219 Or. property, 22-

struction of D.C.Code § testify did not but At trial 403.1 permitted The court his codefendant did. through rebuttal testimo- government, officer, impeach the code- by police ny which, on cross- with a confession fendant examination, making. That he had denied implicated appellant. confession hearsay trial, apprised Before the that it would use defense and the court the the codefendant impeach this confession involve- the stand and denied if he took then moved Appellant’s counsel ment. ground the trials on sever that the state- “indicated government had would be intro- ment of the evidence, prej- and this would duced into motion but denied the The court udicial.” closing jury, prior later cautioned retired, again and before argument could be considered the confession only for the the codefendant—and evaluating credibility. purpose issues raises two related Appellant O’Toole, C., for Washington, D. Jeffrey B. contends, first, that the trial He appeal. on appellant. his denying its discretion court abused Farrell, Atty., Michael W. Asst. U. S. A motion disagree. We motion to sever. C., John A. with whom Washington, D. properly prejudicial joinder for to sever C., Washington, D. Terry, Atty., Asst. U. S. where, here, preju of the excision denied En Rehearing Banc. was on the Petition extraju of the codefendant’s portions dicial Rauh, Washington, D. Atty., Carl S. U. S. is a feasible alternative. dicial statement C., Rehearing En Petition for while the attempt to sanitize present case the P. Rogers, and Martha pending, Banc was with the result awry, went the statement C., Washington, D. Atty., Asst. U. S. inadmissible, incriminatory refer that an appellee. through out appellant came ence to second con Appellant’s testimony. officer’s NEWMAN, Judge, and Before Chief that, attempt at redac after the tention — tion KERN, GALLAGHER,* NEBEK KELLY, trial court committed awry, went ER, HARRIS, MACK, and FERREN a limit concluding that error in reversible PRYOR, Judges. Associate corrective— was a sufficient instruction that the rejected. We conclude is likewise NEWMAN, Judge: Chief ameliorated adequately instructions appel- and affirm. appellant found January On and a codefendant lant Elton I (two burglary second-degree guilty m., the silent 29, 1976, at 5:44 a. counts), grand April D.C.Code On § Peoples Drug Store 1973, 22-2201, system and de- alarm D.C.Code larceny, § * concurrent Judge Gallagher result 1. The court sentenced concurs Associate burglary years Judge on each only. Judge Gallagher of four to twelve an Associate terms count, years argument. on both the His and of one to three of the court at the time of Retired, property grand larceny Judge, destruction of changed on status to Associate February counts. Avenue, N.W., him. signalled ac- as the man who had eluded Subse- 4445 Wisconsin the sus- quent revealed monitor soon notified the identification tivity. The alarm Carpen- Elton Department; pect actually appellant, Police Officers Metropolitan ter. responded. As quickly Sevilla and Haworth approached the

they approximately area scene of investigating While m., a. a man in a they 5:50 observed dark crime, officers near police discovered entranceway coat from the emerge alley bag green gym entranceway stairs alongside Temple, the Masonic which was screwdriver, crowbars, a containing two adjacent drugstore. proceeded He and sev- and fourteen watches tape, roll along officers, Wisconsin Avenue. The Masonic Tem- When both the eral radios. slowly cruising past entranceway, spot- locked, the proved to be drugstore ple looking ted two other men toward the en- for a means of began to search police the car stopped street. The officers trance, discovering a hole in ultimately As they reversed direction. reached the (which was accessible Temple roof of the they saw same two men entranceway, the entranceway). rear of the ladder at the begin opposite run in directions. Officer flagpole a investigation Further revealed pursued Sevilla left the vehicle and the hole, the the in the area beneath Temple foot, maroon-jacketed man on northward leading hole from the Tem- well as another while Officer the Haworth turned car There, the radio ple drugstore. the into white-jack- southward and drove the after been and and counter had rifled wristwatch eted individual. narcotics cabinet there was evidence the agents FBI com- had also been disturbed. Although his momentarily, he lost suspect the tools and pared collected from debris down, Officer Haworth soon tracked him Kitching’s clothing plas- with him, arrested searched and found a burglarized premises and ter from the ladies’ its wristwatch still mounted on vel- quite found similar. Examination them vet The man holder. was later identified as however, yielded no simi- appellant’s jacket, Kitching, Lawrence appellant’s codefend- lar, incriminating evidence. ant. no trial, defense appellant At introduced Officer lost suspect. Sevilla his Never- however, Kitching, Codefendant evidence. theless, officers, had other who learned detailed, testified, expla- a innocent giving police from a suspect “lookout” that one presence in the area. On nation of his large, spotted person was still at soon a who cross-examination, any participa- he denied description running matched the not far hav- and further denied tion the break-in from the place suspect the second incriminating to the ing made an newly had eluded This Officer Sevilla. seen of the appellant’s entry his and police about individual sight, fled from but he was soon rebuttal, of- Temple.2 discovered, dogs, the aid police lying with Gaine, spoken with fered who had Officer backyard beneath an azalea bush in a The officer police at the station. arrestee, wearing dusty house. The ma- given a state- Kitching had testified that jacket, falsely roon identified himself as appel- both himself and implicating ment explana- Randy Johnson. He offered the lant in crimes.3 waiting tion that he had been bus and Later, police government’s had fallen at the sta- asleep. After conclusion tion, case, during proposed suspect Officer identified this buttal discussion Sevilla you? flag- he tell 2. You told him about What did [Prosecutor:] Q A pole put people had and how Mr. mentioned He stated he had you flagpole over and had shimmied down car to of the offense. had the scene come flagpole? They building. They’d gone to the had cut ****** through hole the roof. His codefendant No, [Kitching:] building, about jumped 1 ain’t tell him all that. from the roof into roof, flagpole over the hole then slid a you Did then discuss [Prosecutor:] [co- Kitching] burglary? defendant facts of Yes, I did. [Officer Gaine:] court, against not admissible appellant’s instructions with the codefendant. Un evidence, counsel, der traditional rules it con apropos pretrial of his severance hearsay and has no motion, stitutes inadmissible unsuccessfully moved for a mistrial the non- legitimate probative against force based on testimony Officer Gaine’s about Sousa codefendant. declarant Kitching’s appellant. confession implicating States, D.C.App., arguments, Immediately prior closing States, see Bruton (1979); however, jurors the court admonished the 123, 128 n.3, n.3, U.S. Kitching’s confession could be con- Krulewitch v. United (1968); L.Ed.2d impeachment only sidered 93 L.Ed. Kitching’s Again, codefendant’s case.4 Fiswick v. United (1949); trial, general charge at the end of (1946); 91 L.Ed. repeated these instructions and fur- Jones v. United U.S.App.D.C. ther, confession, referring specifically (1964) (en 284, 287-88, 342 F.2d jurors warned the to consider the evidence McCormick, Evidence banc); C. § each separately.5 Sousa 1972). we noted in (2d ed. As deliberated, jurors appellant then convicted supra “a fair trial Kitching. and codefendant After sentenc- factfinder determine the requires that ing, noted this appeal. compe issues based on relevant and solely party,” to each and accord tent evidence as II appropriate must take ingly the trial court We a defendant is not emphasize steps outset that to ensure that confessing one defendant’s of a co- by testimony out-of-court confession is prejudiced accomplice charged. alleged and that he and another had then The defendant’s confession They solely your flagpole. slid down the chopped through had then is into evidence for con- admitted credibility evaluating a the wall ceil- sideration in his as into the false may Peoples Drugstore pushed testimony to the and The of a defendant witness. piles showing dropped through impeached by in there and that into be discredited or Peoples Drugstore. previously which are he has made statements you testimony. having present At time were this discus- inconsistent with his prior Q sion with Mr. person Kitching, is into evidence was there another statement admitted solely evaluating your that had also been arrested that was consideration nearby? credibility of the defendant. It is not Yes, A there was. be considered as evidence of the defendant’s guilt charged. Who was that? of the offense with which he’s Q Johnson, Randy may alleged A That was at that time as You not consider the confession him, any establishing 1 knew but con- later to be identified as Elton the truth of fact it, Carpenter. you any tained in must not draw Kitching opportunity guilt against from Had Mr. had an inference of the defendant Q person? alleged may see this other his You consider it confession. Yes, your A he did. in connection with evaluation present When was that? the credence to be ny his testimo- Q A When Mr. Kitching sitting was here in court. room, open voluntary interview confession constitutes evidence door A only against making it. It is interview room when the defendant Defendant brought against any into the Detectives’ other defendant. Office not evidence way any taken to a second interview room. The two You must not consider it deter- adjacent mining credibility any rooms are other defendant. each other. there, brought When he was walk did he Q THE COURT: by the door of the room where Mr. only with re- evidence was admitted Certain spect was seated? particular and not to a defendant Yes, A he did. against any This is refer- other defendant. Kitching facing Was Mr. in that di- Q rection? may ring to the consider confession. You testimony only respect to the de- such with Yes, A he was. against You fendant whom it was offered. way your any it in 4. THE ... must consider COURT: any respect other de- Evidence de- deliberations has been introduced that fendant confessed the crime as fendant. he committed testimony government, to redact defendant’s out-of-court statement. See States, n.6, Kitching’s supra Bruton v. United garding 1626-27; n.6, 133-34, appel- 88 S.Ct. at reference to any order to eliminate Sousav. at 1043. Fur supra applicable Under the rules Carpenter.7 lant thermore, sever although severance, motion to is governing law case pretrial, made once severance properly feasible, may proper- severance presented continuing issue is the court has ly be denied. duty adequate guard to take measures to joinder. unfair prejudice from A Schaffer v. United joinder prejudicial to sever for Motions 945, 948, (1960); L.Ed.2d 14, which Super.Ct.Cr.R. governed by are 1041; supra at Sousa v. United provides: Leonard, U.S.App.D.C. States or the appears that a defendant If (1974); 494 F.2d joinder of by a prejudiced Wilson, 140 U.S.App.D.C. States in an indict offenses or of defendants 434 F.2d joinder by such or information or ment an may order together, for trial the court Ill counts, grant separate election or trials Appellant urges us to reverse his provide of defendants severance on grounds conviction the trial requires. justice other relief whatever Super.Ct. court abused its discretion under on a defendant ruling a motion Cr.R. 14 by failing grant his motion to prose order the severance the court sever, inadmissible, with the result inspection to the court for cutor deliver incriminating appellant’s reference to in or confessions in camera statements volvement was heard burglary which the defendants made See, e.

jury.6 g., Bittle v. United in evi government intends to introduce 1383, 1387(1980); D.C.App., A.2d Sousa [Emphasis dence the trial. added.][8] States, 1043; v. United supra at v. Smith (“whatever States, Rule 14 781, language broad D.C.App., United 312 A.2d 788 permits the (1973); Lemonakis, justice requires”) other relief United States v. 158 162, remedy drastic U.S.App.D.C. (1973). 485 941 trial court to fashion a less F.2d We severance, appropriate find no abuse where of discretion in the trial than States, refusal v. United court’s to sever. The record reflects Sousa circumstances. See States, an attempt, whether the court or the In Smith v. United supra at 1043.9 6.Appellant (1979). to hold that Fifth Amend- also contends that the admission of We decline Kitching’s process per requires codefendant statement into evidence due se exclusion ment joint regardless at process their trial the due denied of the all codefendant confessions prejudice attempts of law under Fifth Amendment. to alleviate extent of process requires Due that a defendant receive a prejudice. such prohibit fair but trial does not of limit use Spencer instructions in all cases. See v. testimony, 7. his from Officer Gaine modified Texas, 554, 654, 565, 648, 87 S.Ct. 17 proceedings stating pretrial in Smith, (1967); L.Ed.2d 606 cf. Bassett v. 464 Carpenter, explicitly trial testimo- named his (5th 1972), denied, F.2d 347 991, 410 Cir. cert. ny, “codefend- wherein used the word Gaine 1509, (1973) (due 36 190 L.Ed.2d supra. See note 3 ant” instead. process permits clause latitude in states wide framing procedure). rules of evidence and Ad 1973, (codifica- § 8. See also D.C.Code mission of a codefendant’s confession with lim iting (identical 14); in Rule 14 tion of Fed.R.Crim.P. instructions, even if an error in the exer 14). Super.Ct.Cr.R. substance 14, cise of the court’s Rule discretion under necessarily would not ally constitute a constitution stated: 9. In Sousa we procedure. unfair Severance under Rule panoply provides 14 trial Rule traditionally 14 has been committed accomplish Severance tools this task. sound discretion trial court. See Sousa However, appropriate States, 1041; is one circumstances, them. supra v. United Johnson v. at may 354, suffice. States, other remedies D.C.App., 398 A.2d 367 8(b),

supra, guidelines joint certain because recognized we for Cr.R. trials “do conserve funds, a trial court faced with a situation where diminish state inconvenience to wit authorities, of one extrajudicial public “an defend- and avoid de nesses ant, his implicates codefendant[,] lays which those accused of crime to bringing States, supra, Id. at trial.” Bruton v. United be introduced.” sought at 1626; v. see Johnson United guidelines require judge that a trial These 88 S.Ct. at States, 367; supra Baxter v. United consider “delet[ing] first from the state- at States, (1976); ment all references to the nondeclarant co- D.C.App., A.2d Robinson, is not feasible then a defendant. If this States U.S.App. 286, 289, severance under 14 should be 432 F.2d Super.Ct.Cr.R. D.C. motion, consent, stated, court,

granted on or with of As we have often the trial sever, Id. (foot- exercising the nondeclarant defendant.” its discretion to “must omitted). defenses, (some less than such conflict in clause is Rule 14 re problem presented. from guilt will infer antagonism quires appropriate that the trial court take alone, allowed). the conflict in steps prejudice to minimize the inherent which codefendant confessions are inadmis to the defend- weighing prejudice In against sible the nondeclarant defendant. advantages judicial of econ- against ant alleged the trial court must look to the omy,

B Williams v. United “category prejudice,” States, 1, is, (1978). 8 In traditionally, pre D.C.App., There 382 A.2d context, see of evidence have sumption joinder, Super.Ct. types in favor of some see, recordings, g., tape United is e. Lemonakis v. One such to sanitize the confession 949, States, 170, supra an oral admission to delete all references to the non- at 485 F.2d at See, g., declarant v. United e. codefendants. statement also be sanitized. [Sousa States, States, supra (citing supra Smith v. United 1043. Rule 14 Sousa v. United at States, 788, supra specifically provides at and Oliver v. United of state- for examination 302, 305-06, U.S.App.D.C. 335 118 in ments or confessions the trial court cam- (1964)).] one, era, cases, F.2d 727-28 although many in as in this it presented pretrial will to the Although prejudicial references deletion hearing. suppression will often or in be easier in written statements

503 Green, 213 (1970); v. inherently prejudicial, been to be such California held 1930, 1933-34, 149, 155-56, 26 as of other crimes. See Drew v. 15-17, also Harrison v. (1970). F.2d at supra L.Ed.2d United at D.C.App., (other presumed crimes evidence is Lemonakis, (1979); supra joined v. prejudicial unless evidence two States 949; v. at at United States distinct”). is See also 485 F.2d “simple offenses Leonard, (Ba supra A.2d F.2d at 981 Tinsley D.C.App., J., zelon, part and dissent (1976). concurring C. in opportuni part). plainly, Just States, supra, In v. United Bruton ty operate does not cross-examine that the out- Supreme recognized Court extrajudicial state incriminating make the which of-court statement against ment admissible nondeclarant is implicates nonconfessing defendant Leonard, su codefendant. United States Confessions inherently prejudicial. likewise (Bazelon, 62-63, 494 F.2d at 981-82 pra at that are incrim “powerfully admissions J., concurring part dissenting C. an risk inating” present especially great Brown, Cal.App.3d part); People v. limiting instructions will not be fol 656-57, Per potentially great prejudice lowed at force, defendant’s Sixth satisfaction of a non-confessing codefendant. 391 U.S. at to confrontation under right Amendment 135-36, 88 The S.Ct. 1627-28. Court standard does termi Bruton-Nelson incriminating held that where the refer judge’s continuing duty to nate the trial ences were not deleted and the declarant steps reduce or eliminate adequate take stand, limiting codefendant did not take the joinder. arising from any prejudice an instructions were insufficient alternative and severance was the con mandated C frontation clause of the Amendment. Sixth states, as The several highest Court further the Bruton The courts of explicated courts, O'Neil, federal have holding Nelson U.S. 91 well as a number of standards, we similar to those L.Ed.2d 222 announced Smith, held in which govern that when the cases adopted declarant codefendant takes is to introduce evi- proposes the stand and available for cross- the prosecution examination, by one of an confrontation clause dence out-of-court implicates violated. Both a codefendant. the Bruton and Nelson hold defendant ings California, Supreme example, were based on the Amendment Sixth right practice appli- confrontation and did not address held under its rules Court trial court can additional whether the trial cable to severance that the question “if ruling joint parts court abused all permit its discretion on a implicating any co- joinder.11 extrajudicial motion to sever for statements prejudicial effectively delet- has that the confron defendants can be and are emphasized Court declarant;” oth- equated tation clause is not to with the ed without Evans, erwise, the state- evidence, rules if the to use prosecution Dutton v. it, 74, 81-82, who made 27 L.Ed.2d ment O’Neil, supra (1979), and holding Nelson v. O’Neil 11. in at 713 reaffirmed The Nelson v. 629-30, 1727-28, “interlocking” explicitly 91 confessions S.Ct. at nar- that where held introduced, “|T]he no are row: defendant has been denied codefendants each two rights protected although the Sixth and Fourteenth is not violated confrontation clause plurali- Amendments.” In Bruton the never A takes the stand. neither codefendant sever, a motion to v. United ty per made Evans adopted rule with se of four Justices 355, States, 1967), (8th confessions, 375 F.2d 361 Cir. rev’d “interlocking” regard id. at 69- States, supra, sub v. 2137-2141, nom. Bruton United so 76, while a fifth Justice 99 S.Ct. at appellate neither the nor addressed courts judgment on a error harmless concurred analysis, question. 14 Rule severance 77-81, at 2141-2143 id. at opinion (Blackmun, J., concurring). The Court’s recent v. Ran- Parker 62, dolph, 2132, 442 U.S. 99 60 L.Ed.2d 504 spective declarant codefendant. The separate People

there must be trials. v. Sims 530-31, 265, Aranda, 518, regarded 63 P.2d error as a Rule 14 Cal.2d 407 court sever- 353, 272-73, Cal.Rptr. question, 47 360-61 a confrontation ance clause accord, Brown, People J.);C. v. (Traynor, Bruton and problem, applied and Kramer 657, 145 134; supra Cal.Rptr. People at at v. without indicating whether several de- 692, 695 Barbaro, 264, 270, 395 Ill. 69 N.E.2d also clarants had testified. See Jones v. Rosen, 339, (1946); v. 151 St. State Ohio States, 342 United at F.2d at supra 24, 342, (1949); 26 86 N.E.2d see United (ineffective 866-67 redaction statements Cleveland, 24, (1st 590 F.2d 28 States v. Cir. which are inadmissible nondeclarant Grant, 942, 1978); v. United 549 F.2d States reversal). Nothing requires codefendants 948 (4th 1977); United States v. Trus Cir. Kramer, Oliver, and subsequent Sims low, (4th 530 F.2d 261-62 & n.3 Cir. in those suggests applied rule cases that the 1975); Johnson, v. United States 478 F.2d Indeed, should be or modified. abandoned 1973); (5th 1129 v. Cir. Schaffer United this authority by court in Sims cited as 17, 19 States, (5th 1955); 221 F.2d Cir. Reed States, at supra v. and Smith United 43, 49, 110, 113 v. 174 Colo. 482 P.2d People, Smith, Oliver, as au- along we cited with Fullen, (1971); 7 Wash.App. v. State States, thority supra v. United at Sousa denied, (1972), P.2d 893 cert. 411 U.S. 1043, see supra. note 9 (1973).12 36 L.Ed.2d adopted Smith guidelines The Indeed, more perhaps importantly, for approved “non-Bruton” Sousa which redaction a defendant’s admissions situations, 1043, allow 400 A.2d at implicate a codefendant has required been of a in lieu of severance. A third Appeals the United Court of for States alternative, exclusion, added can be the District of Columbia Circuit in cases guidelines. de Smith precedential weight that have statement, cide to use of the forego any Ryan, D.C.App., court. M.A.P. v. See thereby eliminating any prejudice States, (1971). In v. A.2d 310 Oliver United People avoiding need for severance. See (1964), 335 F.2d 724 U.S.App.D.C. Aranda, 530-31, 407 v. P.2d at supra at Supreme opinion case preceding Court’s 272-73,47 These 360-61. three Cal.Rptr. at States, in Bruton v. the court supra, exclusion, redaction, or sever applied a “non-Bruton” situation alternatives — proper standard for use comprise the rule of Kramer v. United ance — in most under Rule when the cases13 (1963) (a “Bruton- 50, 317 App.D.C. F.2d presented a motion sever before case, although also decided type” confession, ance based on a codefendant’s Bruton), which states that references ato whether takes the or not the codefendant nondeclarant codefendant must be deleted v. United stand and testifies. See Sousa granted. for severance a motion Sims 1043; v. at Smith 111, 113, supra U.S.App.D.C. v. People also v. supra at 788. See F.2d the court Aranda, People, supra; Peo Reed v. supra; per brief curiam held that sever Rosen, v. Barbaro, su ple supra; instances State required multiple ance was Fullen, ABA supra; Project subject pra; were admitted to in State v. hearsay for Criminal Jus- on limiting structions to each Minimum Standards admissibility O’Neil, Appeals, supra, A Court of how- After Nelson the California California Aranda, ever, empha- solely recently Supreme decided two on the has reaffirmed Court cases Aranda, sizing principles set forth basis of a Bruton-Nelson Sixth Amendment that the constitutionally regarded, analysis, expressly dealing “are to not as without with Aran- compelled, judicially the state declared rules of da’s reliance on severance rules. but as ” Brown, supra Steger, practice People People v. 16 Cal.3d P.2d .... Aranda, 665, 672-73, supra (1976); Cal.Rptr. (quoting 939, 530, 272, Rosoto, Cal.Rptr. 360). re 519 P.2d P.2d at at Cal.3d 1073, 641, denied, cert. accompanying L.Ed.2d note 15 infra. 13. But see text tice, Relating practicable15 to Joinder and and the references are not Standards Sev- Draft, 1968).14 2.3(a) incriminating, may ap- erance it (Approved significantly § court, weighing trial after propriate for the not, however, adopt We need alternatives, recognizing the desira- Aranda, per se rule of Barbaro and evidence, bility excluding inadmissible never limiting may Rosen that instructions limiting instruc- admit the statement with suffice from a con prejudice to eliminate tions. fessing hearsay codefendant’s statement. Indeed, Randolph, in Parker v. D (1979), plu L.Ed.2d case, judge prop- In the instant rality opportunity to reit Court motion erly appellant’s pretrial denied the assump erate the maxim that crucial “[a] The record indicates that an at- sever. underlying jury] system tion is that [the tempt at redaction was made instead. Re- juries will follow the instructions in this case because proper daction was by judge.” them the trial Id. at 73. Never substituting “ac- easily could be achieved theless, the trial court is under a duty to complice”or some other neutral term in lieu potential prejudice minimize to a codefend- Carpenter by of a direct reference to name ant. The admission of portions those of a (or “codefendant”) in Gaine’s tes- as Officer codefendant’s statement that contain inad timony regarding Kitching’s statement. missible, incriminating references to a non- “accomplice” The use of the term would be disfavored, confessing defendant is properly burglary neutral since the fact that the see Sousa v. United supra at 1043. persons already carried out several Thus, whenever such portions may be effec The mere cor- established the evidence. tively deleted and the statement thus “sani by Kitching’s roboration of this fact confes- tized,” is the proper course for the trial prejudicial appel- sion cannot be deemed court to follow. As government counsel in Herd, Wash.App. lant. See State conceded, this case has with commendable 546 P.2d 1222 candor, legitimate has no “[t]he interest in smuggling before the jury evi IV Yet, dence which is inadmissible.” certain, cases, redaction, limited class of where the Despite attempt references nonconfessing incriminating Carpenter’s an reference to are so intertwined confessing within the was included participation burglary defendant’s statement that redaction is im- testimony. Appellant Officer Gaine’s 2.3(a) provides: effectively 14. ABA Standard § daction must eliminate from the out- to the nonde- 2.3 of-court statement all references Severance of defendants. (a) When a defendant clarant codefendant. This includes references which, moves for sever- ance placed conjunction because an out-of-court statement of a when with the codefendant makes statement, reference to him but is redacted make it clear the deleted him, not admissible the court should portions or names refer to the codefendant. prosecution determine whether the intends to n.3, Randolph, supra See Parker v. offer the statement in evidence at the trial. (substitution S.Ct. at 2136 n.3 of “blank” or so, require prosecut- If the court should person” possible “another left “no nevertheless ing attorney following to elect one of the jurors’ concerning ‘per- doubt in the minds courses: (i) (citation omitted); referred to” son[s]’ joint trial at which the is not Danzey, (2d 1979) States v. 594 F.2d 905 Cir. evidence; admitted into (ii) (substituting “blank” for name codefendant’s joint trial at which the statement eliminating prejudice); ineffective in Jones v. admitted into after all refer- 866; States, supra 342 F.2d at moving ences to the deleted, defendant have been Dawson, Joint Trials of Defendants in Criminal that, deleted, provided the confes- Analysis Preju- Cases: An dices, of Effíciencies and defendant; moving sion will not (1979) (ex- 77 Mich.L.Rev. or (iii) that state- cisions call attention to fact moving severance defendant. implicates persons). ment other effectively safeguard 15. To a codefendant’s right prejudicial joinder, to severance for 506 Chee, United 52, even if his motion to sever See States 422 F.2d

contends that denied, reference, properly single (9th 1970) (witness stopped was Cir. mid-sen instructions, rever- despite limiting requires testimony of prevent tence to inadmissible States, goes sal. At the point v. United cf. Scott prior act); bad the trial court must determine awry, 364, (1980) (pos D.C.App., 412 A.2d will be a cautionary whether instructions from witness’ sibility of contamination jury must be sufficient corrective or a mistrial conference). during remarks bench of considering the nature declared. After has evidence When inadmissible reference, limiting in- scope of of grant come before a or denial jury, structions, evidence and the other motion for mistrial is committed to the case, cautionary instruc- we hold that court. Rink v. sound discretion of the trial any prej- tions were sufficient to ameliorate A.2d D.C.App., inadmissible, incriminating udice from the (1978) (improper prosecutorial question); appellant Carpenter. reference to States, D.C.App., Hammond United oral, the trial court Where statements are (courtroom outburst); (1975) A.2d appropriate steps preju- take delete may States, D.C.App., 392 cf. Evans v. United references, dicial there still exists the yet (1978) (unauthorized 1026 n.15 A.2d slips of inadvertent that could possibility introduced into and unrelated evidence codefendant. potentially giving not err in room). trial court did The Nevertheless, possibility of inadmissible granting of limiting instructions in lieu testimony being inadvertently uttered mistrial. The reference accepta- front of is a constant but a direct but testimony was Officer Gaine’s As testimony. ble risk inherent in all oral gave two sets limited one. The trial court the Court noted in Bruton v. United instructions, one set after the limiting supra: part set as testimony rebuttal and a second hear- every Not admission of inadmissible In addi general charge jury. of the say or other evidence can be considered tion, properly the trial court could consider through be reversible error unavoidable quantity nature of the quality instructions; instances occur in limiting against Carpenter the evidence determin almost inadmissible evi- every trial where limiting whether instructions would in, creeps usually inadvertently. dence a sufficient corrective.16 “A is entitled to a fair trial but established government’s The perfect not a one.” [Id. alarm v. that minutes after the silent Lutwak (quoting wearing a triggered, appellant spotted the en- (1953)).] jacket maroon and crouched 97 L.Ed. 593 preju- 16. the trial is to avoid contends that The function [Rule 14] trials; by segmenting may rely the the court independent on the existence of “substantial dice before the fact question presented evidence,” (quoting the rule is that of Borrero proper guides D.C.App., and standards for exercise has (application court discretion when the defendant of harmless error stan- joinder.... prejudicial dard) ) justify for relief from admission of an unredact- moved limiting subject of whether instructions. the fact determinations ed confession [A]fter grant proper relief has been the failure to cured ... dice ations ed in order to While the existence of other evidence considered in structions are sufficient where redaction awry, identify preju- limiting determining in- fail to the cause whether goes and[,] they specify situ- since do not grant- single generally ap- in which trials should be will not be the trial court they provide prevent prejudice, quality quantity prised nature of the meaningful standards trial courts with no of the evidence at the when a severance the to time addition, guide exercise of discretion under motion the existence of their is made. In avoiding Rule 14. other evidence is no basis for Decker, generally Joinder and Severance See exercise of the trial court’s discretion. Note, Single Federal Criminal Cases: An Examination Joint and Trials Under Rules 8 and Rules, Procedure, Interpretation Judicial of the Federal of the Federal Rules of Criminal (1965): Notre Dame Law. 74 Yale L.J. to tranceway alley adjacent alleged an to the bur- A cautionary confession.” similar gled drugstore. repeated jury He was seen from instruction was to the running and alley pursued, eluding capture charge. was court’s final by additional police only officers for a few officer, The while on re- police testifying minutes. The officers found hid- appellant Kitching buttal as to what had told him at ing under an azalea bush in yard the back stationhouse, from his failed to omit of a gave house. He a false identification jury Kitching’s recount to the of statement and explanation an incredible inherently appellant. Specifically, a reference to presence his under en- the bush. At the officer testified: tranceway alley to the from which he had Kitching] He codefendant stated [the fled gym bag containing goods was found a that he had mentioned had come people drugstore stolen from the and tools used to in a car to the scene of the offense. break into the store. In view of this evi- had They’d gone building. They dence, the limited nature the inadmissi- through cut a hole the roof. His code- reference, incriminating ble and the two into jumped fendant had from the roof limiting instructions, sets of we find that flagpole slid a over building, then the trial court did not err in denying the roof, the hole in the and that he and motion for a mistrial. slid down accomplice another had then

Affirmed. flagpole. They chopped had then ceiling false to through the wall into the KERN, Judge, Associate with whom As- piles Peoples Drugstore pushed Judges sociate NEBEKER and HARRIS dropped through there and that into the join, concurring: Peoples Drugstore. [Emphasis added.] A jury convicted and Lawrence mistrial, Appellant moved for a incorrect- Kitching, codefendant, his second-degree on ly relying Bruton United burglary and related arising offenses out of 20 L.Ed.2d 476 nighttime breaking into and entering of confessing in which the drug store.1 did not The trial court denied the testify. motion, concluding problem that the ade- trial, At the codefendant Kitching testi- quately by instructing could be solved fied in his own defense with an assertion of jury again charge then and in its final presence innocent at the scene of the crime. Kitching’s was be considered statement to The prosecution then presented a rebuttal “in respect any with to him and not impeach witness to police him: the officer way your respect deliberations with to who had questioned Kitching immediately any other defendant.” after his arrest. The officer testified as to an incriminatory Kitching consisting A division of this court made gave and the trial court to Harris, and Ferren heard the Judges Kelly, the standard cautionary instruction that the appeal. Kelly A and Fer- majority Judges— jurors were to “consider it ren, Judge dissenting Harris [the statement] —voted only in connection with your evaluation of majori- The appellant’s reverse conviction. [Kitching’s] credence to be his ty upon seized the fact that trial court present testimony here in court.” The pretrial by appellant had denied a motion court further cautioned “you sever of his codefendant his case from that inference guilt must not draw proceeded opinion, la- Kitching2 its court, the defendant [Kitching] adopt from his by ter vacated the entire thereafter, burglar triggered shortly 1. The store’s silent alarm was and the other was found shrubbery. police promptly hiding the break-in. some When under sponded they alley saw two men run from an adjacent Appellant apparently They feared the “rub-off’ the store. on the recovered testify bag to his case should containing burglary scene a tools. theOf incriminatory defendants, and his statement then be intro- quickly two one near- arrested government. duced (like jurisdiction curring” opinion dissenting opinion a new rule. rule Mack) three Judge that whenever a of reflects those sought adopted defendant, trial, for a judges moves sever- would to have a virtual prior prefer still statement of rule in a situation of per ance “because an out se reversible error to a codefendant makes reference him but this type.3 him” the against is not admissible trial to be a ultimately what seen We face prosecutor must to require the follow ques- case.4 The rather narrow issue in this (1) proceed one of courses: three glanc- the witness’ tion is: Given rebuttal statement, joint using the the trial without inadvertent one-word ing undoubtedly and (2) proceed joint or with the trial and as he recounted to reference delete all contained in the state- reference incriminatory jury Kitching’s prior the for moving ment to the defendant sever- statement, strong coupled very with the ance, separate or to sever a trial the appellant, did the adduced evidence movant’s case. denying trial abuse his discretion judge concluding The if for a mistrial and majority further concluded that the motion ade- require prosecutor cautionary trial court failed to the instructions would course, rights?5 I readi- follow quately protect appellant’s such failure would not. No extreme ly which not be that he did constitute error could con- conclude Beyond are here.6 present sidered harmless unless was substan- circumstances there that, juries pre- are independent tial is well settled that guilt. evidence of In conviction, the versing instructions from majority the of the sumed to follow their the Randolph, 442 U.S. there trial v. persuaded judge. division was not was sub- Parker (1979).7 guilt stantial of here 2138 independent evidence 99 S.Ct. I despite extremely what consider to Judge of respect preference With strong govern- evidence introduced Mack, Judge expressed as Ferren and ment. per se reversible their a virtual opinions, authority such stage proceeding, (notwithstanding At the en banc error rule California, 395 89 Harrington to affirm the v. U.S. Judges Kelly and Ferren vote as (1969), which convictions, 23 662 although Judge Ferren’s “con- L.Ed.2d Ferren, testify Kelly, Judge joined Judge appears and cannot ... does not codefendant] 3. Aranda, prefer following People v. to 518, v. Cal.2d Cf. Smith tested cross-examination.” (1965), (1973). D.C.App., P.2d progeny Supreme its rather than the relevant Supreme made it Court has clear controlling. precedents, Court which I consider principle of does Bruton basic constitutional when, here, apply the confess- occurred ranges Judge opinion 4. Chief Newman’s some- v. Nelson takes the stand. codefendant alia, afield, discussing, subject what inter O’Neil, (1971); v. see also Borrero 402 U.S. 622 joinder, has been an which is and never D.C.App., 332 A.2d 363 issue. Thus, Judge while Chief Newman’s prosecutor We no 5. note also that made between Bruton blurs the distinction somewhat jury arguments reference in her to this minimal cases, type there remains and non-Bruton appellant. reference to significant the two. difference between Bruton v. United U.S. (which Randolph was a Bruton- 7. In Parker 135-36, 1620, 1627-28, 20 L.Ed.2d 476 case), upon Opper type reliance (1968), confessing codefendant did which the U.S. 99 L.Ed. stand, Supreme not take the Court stated: which is a statement the Court made which risk are some contexts in “[T]here applicable this case: a fortiori to not, cannot, that the will or follow instruc- directing jury to con- And an instruction great practical tions is so ... extrajudicial statement sider a codefendant’s jury system human limitations of the cannot be only against suffi- its has been found source ignored. pow- a context where the Such is ... offending the to avoid confrontation cient erfully incriminating extrajudicial statements implicated right in numer- deliberately spread of a ... are decisions of this Court. joint [442 ous before in a ... [and] [t]he omitted).] (footnote intolerably unreliability 99 S.Ct. at of such compounded alleged accomplice when the [the rejected Bruton-type recognizing desirability se of ex- per rule even evidence, to admit case), jurisdiction’s cluding I call attention to this inadmissible limiting instructions. rule.8 the statement with codification of the harmless error (footnote ll-721(e) omitted).] of Colum- Section the District [Ante bia provides: Code A agree proposition. I cannot with that non- hearing any appeal

On the implicating confession codefendant’s case, Court of any respect the District of Columbia is in- confessing defendant ex- limit Appeals give judgment prejudicial. shall after an I would herently (to a sever- authority “grant court’s regard amination of the without Rule record whatever provide ance of defendants errors or defects which do not affect the first justice requires”) other relief rights parties. substantial Aranda, People options.1 three also Kotteakos v. United 265, 272-73, 518, 530-35, 407 P.2d Cal.3d 750, 765, 1248, 90 L.Ed. U.S. 66 S.Ct. J.) Cal.Rptr. (Traynor, C. (1946). (endorsed American Bar Association by the are Accordingly, my opinion clearly we Justice, Join- in its Standards Criminal bound appellant’s to affirm convictions. 2.3(a) (Approved Draft der and Severance § 1968)quoted n.14). ante at 505 FERREN, Judge, Associate with whom answer; pre- is it Ideally, redaction KELLY, Associate Judge, joins, concurring: lim- joint properly serves both the After rehearing and further considera- redaction is hearsay. ited use of the If tion, judgment affirming I concur in the however, case, I impractical particular in a Carpenter’s conviction. court, no reason to invite the trial perceive compromise fourth to through option, I. hearsay testimo- against the traditional rule Judge opinion Chief NEWMAN’s states that ny. great There is too a risk that trial, court, that when the joint is justify joint will be used in trials to option confronted evidence of a code- hearsay un- damaging hearsay admission of that implicates fendant’s confession which also a a questionably would be excluded nonconfessing defendant, the court has nonconfessing government if the three principal ways protect to the latter trials and separate to elect between trials; defendant: severance of the redac- joint at a trial. hearsay exclusion of the tion of the inadmissible portion of the state- puts high too option Inclusion of the fourth ment; or, when impractical, redaction is joint great a trials and too a premium on joint continuation of a trial from which the ability to follow jury’s confidence in hearsay altogether. statement is excluded limiting agree instructions. I unfollowable three, To these the court adds a fourth: Judge Traynor: with Chief certain, cases, a limited class of confes determine that a jury] [I]n cannot [A where the references to the nonconfess- A sion is insofar as it admits that true ing defendant are so intertwined within B and has committed criminal acts with confessing defendant’s effectively ignore at the same time redaction is and the impracticable that B has commit inevitable conclusion that significantly are not incrimi- A. references same criminal acts with ted those 529, 407 for the trial P.2d at nating, may appropriate [Aranda, supra, alternatives, court, weighing after at 360.] Tucker, MACK, Judge Michigan perceive options. 8. See also and I three 2357, 2364, however, I, formally joined 41 L.Ed.2d 182 KELLY and have Judge in which “the law does the Court stated that that Chief NEWMAN’s to assure require perfect not majority that a defendant receive a court will be understood trial, only a fair one.” clearly analysis prefer that one in which over allowed to use of the trial court is make freer Judge Judge 1. Chief NEWMAN and PRYOR curative instructions this context. KELLY, test; adopt four-option Judges would rehearing and further if the review—that II. permitted the inad- knowingly trial court important Judge It note is that Chief any error here harm- hearsay, missible justify NEWMAN does not the trial court’s less under Kotteakos approach in this case reference 90 L.Ed. Instead, he option. perceives fourth this to be a case of that “went attempted redaction however, is If, NEWMAN Judge Chief awry” reference Officer inadvertent —an concluding that is case correct Kitching’s (appel- Gaine to “codefendant” I gone “awry,” agree Carpenter). lant its discre court did err—did abuse is clear me that this The record not so mistrial, failing declare a tion—in attempted Although is case of redaction. (an analysis akin to the evidence of record interpretation plausible,2 there under Kottea approach the harmless error some court denied indication that the trial kos, re the trial court does supra). When severance, knowing Carpenter’s motion for government’s wit quire redaction and might later seek to reason, comply, ness, fails to hearsay. introduce “unsanitized” See Tr. have erred itself cannot be said to court knowingly permit If the did 60-61. into evidence. comes when the statement hearsay, intending protect rather, becomes whether question, e., if limiting instructions —i. a that denying in mistrial at court erred effect, did, in elect the trial court the abuse of discretion point inquiry into —an to be er- option fourth would hold that —I analy requiring type appellate the of same (if all) the ror. all evi- virtually Until sis, context, would be if in this that dence has been the trial court presented, the hear affirmatively permitted the court cannot have confidence that the reasonably had to the trial and this court say into an hearsay will find unredacted confes- error.4 review for harmless sion incrimina- significantly to be “not court errs Accordingly, whether the trial ting.”3 Ante best, at 505. At the trial hearsay testimony permitting in unredacted play reviewing court can a a hunch that comply to government witness fails a record, court, in the will examining entire order, may be no with redaction there a admitting that in the conclude error to reviewing the court reverse reason for unredacted statement turned out to be nonconfessing defendant a the conviction of harmless. out, it on the (such Carpenter) if turns as appears Judge NEWMAN’s Chief record, the trial the that basis of entire acknowledge concern. ante at slipup was not error or the witness’ court’s Thus, 506 n.16. his opinion prejudicial. I find contra- option, the fourth which dictory creating III. permits speculate the trial court about only summary, such inadmissible evidence. the trial court inherently In I believe hearsay con- said, agree permit With a codefendant’s that I would should —after impeachable practical whether an alterna- evaluate before trial Redaction this case government particular witness had the tive. If Officer Gaine used word “ac- conviction “codefendant,” complice” No has instead of redaction the one will be material to outcome. accomplished gift would have been without neces- prophecy”). that Kitching sarily tipping (through the off testimony) directly impli- Gaine’s had however, court, give great- reviewing will 4.The Carpenter. cated judgment trial court’s own er the deference the contrast with not to declare a mistrial—in reviewing States, D.C.App., 3. Cf. Lewis v. United independent review of the court’s (1979), modifying A.2d bases the extent that the trial court record—to govern- (impeachable convictions already admitted on evidence its determination automatically produced witness ment must substantially progress. Cf. a trial material, request Brady upon as tri- defense Agurs, States al, materiality; analysis probable without 49 L.Ed.2d 342 way objective, hoc “there can be no ad

5H fession if joint prosecutor repeatedly into evidence at a trial it can thereto. Rather the purged implicating references a non- problem it was observed that the Bruton2 Otherwise, concern; confessing defendant. there gave rise exclusion; should be severance or admission the con- problem using would avoid this statement, limiting unsanitized should impeaching purposes fession only instructions, integrity will not preserve the Kitching take the stand. approach, of the trial. Consistent with this point about delet- Nothing was said at this if the court mistakenly permits Carpenter’s Mr. name. evidence, into harmless error Moreover, the in cross-exam- prosecutor, analysis always Similarly, available. if Kitching about ining the codefendant attempted goes “awry,” open confession, Carpen- named specifically Mr. reviewing to find no error —no ter. time had At a when abuse of discretion —in trial court’s re- had used flagpole that a been established fusal to grant a mistrial. through roof, entry govern- method of ment asked: counsel MACK, Judge, concurring Associate Q. him You told about part and dissenting part: officer] [the how had flagpole put Mr. I would reverse the conviction. you over and had shimmied flagpole In dissenting from the result reached flagpole? [Emphasis down the added.] I majority, say applaud should that I It only a few minutes later that the guidance given Judge Chief New prosecutor tes- called officer rebuttal man for the majority. today’s complex had in- timony, establishing society joinder for tri defendants deed told him that co-defendant “[h]is al is (see necessary favored but jumped building the roof from into Sousa v. United D.C.App., A.2d then flagpole slid a over hole denied, cert. roof, accomplice and that he and another 484, 62 L.Ed.2d (1979)), important it is flagpole.” then slid down the that judicial guidelines firmly estab lished for guarding against errors that can sequence suggest I do not recount this surface to the detriment of the individual view, my ques- deliberate tactic. In the and the government. I therefore concur in “gone tion of we whether have majority the opinion the that extent it remark awry” or of whether the officer’s establishes three I options.1 alternative was an is irrelevant inadvertent reference think, however, majority, that the in its Carpenter the of Mr. decision whether preoccupation principles, forgotten with has jury has has prejudiced been because the the facte. Moreover, heard if inadmissible evidence.

Thus, although may there be a fair infer- “gone awry” the existence of redaction does ence difference, that this case involves redaction of a make a I could not follow the gone confession may there also be a its awry, majority to ultimate conclusion. Grant- fair Certainly, inference that it does not. ed the truism that “the inad- possibility the record being reveals no discussion relative to missible testimony uttered inadvert- sanitization; government rep- the no ently made in is front the a constant but that resentation it follow redac- in all acceptable would the risk inherent oral testimo- tion route cautionary and the court made no ny,” (majority supra pp. 505- or gave respect instruction no order 506) with that risk should not fall the on de- My approval by guidelines suggested 2. See v. United 391 U.S. Bruton majority (1968), holding the protective is of the that course limited to three S.Ct. 20 L.Ed.2d 476 redaction, severance, Amend- defendant had been denied a Sixth alternatives of right adopted by Judge or ment had been exclusion —a limitation to confrontation he opinion. concurring the inadmis- Ferren in his incriminated introduction an did not sible confession a codefendant who take the stand. moving an azalea bush. While latter Carpenter under the is fendant here. Mr. hardly did that could do. His it is “substantial competent severance all he evidence government, independent support evidence” conviction motion was denied. building with choosing opposed breaking entering redaction as to exclusion statement, Particu- inherently prejudicial of an intent to commit a crime therein. that no going true view of the fact something larly should bear the risk of this from the awry. implements proceeds of crime person; on burglary appellant’s were found recounting above suggest, I do the Kitching, that of bore clothing, his unlike question prosecutor’s that sequence, plaster burglarized from the no trace of the rebuttal coupled testimony with building. single than a witness constituted more prosecutorial have had I therefore think there was glancing reference that could not extent, (if inadvertent) placing before the impact jury. an on the To error view, least, hearsay my on en confession. able counsel banc harmless: I error could not have been appears agreed consideration have with assurance, me; pon- after argument candidly at oral counsel ac- “with fair say cannot stripping without knowledged dering happened that was to the driven home all whole, erroneous action from jury that was codefendant. however, substantially swayed argued, judgment Counsel that the existence was the error.” Kotteakos independent of substantial evidence 750, 765, 66 dissipated any instruction the court im- 328 U.S.

pact. L.Ed. by the unshaken point argument My It is at the of this latter conviction remains instructions were part my colleagues. cautionary that I Al- fact that firmly fundamentally something though the introduction of unreliable here. There here in the idea that an accused hearsay intolerably compounded by abhorrent as in Bruton on of an out-of-court convicted the basis inability cross-examine As a v. hearsay codefendant. confession circumstances, matter, just in such (1968)3 extra-judicial practical 20 L.Ed.2d Bruton,4 there is a “substantial risk as in statement of instructions “powerfully incriminating” jury, despite as that con- incriminating extra- sidered in Bruton. This is so because contrary, Kitch- looked to the determining judicial ... ing’s statements provided States, supra, at Bruton v. United burglar- guilt.” in the appellant present that was “ 126, at often such building participated ized or had 1622. S.Ct. ‘[T]oo intrinsically against misuse ap- break-in. The evidence was that admonition other such a the effect of pellant running alley seen from an ineffective that wiped gave cannot adjacent building and that he nonadmissible declaration to ” Bruton v. jurors.’ a not-too- from the brains of the false identification offered 129, States,5 supra at 88 S.Ct. at lying when explanation well-received found 130-31, States, supra Understandably appellant’s would v. United 3. counsel 5. Bruton 1625, reasoning quotes hardly seek to the codefendant also cross-examine People v. inculpatory Supreme Aran of California about an the latter de- Court statement da, making. 271- 407 P.2d 63 Cal.2d nied (1965): (Mr. opinion Justice rely 4. The author of the Bruton process on a “If it due denial of Brennan) having a second ability disregard reads that jury’s presumed an invol- prong instructing juries confession, since use untary also a denial of —that against the other presumed one defendant’s admissions process rely jury’s on a due not, fact, making prevent them from could ability disregard confes- a codefendant’s use, requires such Sixth Amendment implicating when it is another defendant sion determining O’Neil, guilt versal. See Nelson or inno- that defendant’s J., (Brennan, dissenting). cence. Frankfurter, quoting Mr. Justice dis- senting in Delli Paoli v. United 294, 302, 1 L.Ed.2d overruled in Bruton.

Here the reduces itself admonition

to an government’s anomaly —from

standpoint to consider the jury was determine, testimony

officer’s rebuttal

hopefully, telling

truth when he he denied that told the offi-

cer that appellant rigged up flagpole,

but the same jury was at the time to disre-

gard Kitching’s

rigged This up flagpole. is the “wind- [given government]

fall of having the

jury ... influenced

defendant, law, matter which as a they

should not they consider but which cannot

put out of their minds.” Bruton v. United supra at quot- 88 S.Ct. at 1624

ing, Frankfurter, Mr. Justice dissenting in

Delli Paoli. I would hold that the trial

court’s instructions did not here ameliorate court should granted

have motion mistrial. PENDER, Appellant,

Charles L. COLUMBIA,

DISTRICT OF et

al., Appellees.

No. 79-975. Appeals.

District of Court of Columbia

Argued Nov.

Decided April Indeed, jury’s difficulty the latter task be an even When one adds to the which describes, perform more difficult one for the California the task of com- ‘segre- credibility than A partmentalizing the former.... cannot the evidence gate defendant, here, separate purposes evidence into intellectual box- of one the burden Chambers, (People Cal.App.2d es.’ nigh impossible. becomes 551, 558).” omit- [Footnote ted.] notes incriminating weigh prejudice Deletion of to the defendant caused important references can accomplished joinder against obviously with a mini- mum of expedition effort10 and has the concomitant economy considerations administration.” Drew v. United advantages ju- results of preserving judicial States, 11, 14, 331 dicial economy joint U.S.App.D.C. inherent F.2d States, accord, Bittle v. United while eliminating unnecessary (1964); and unfair 1386; Johnson v. supra prejudice to the codefendant. Implicit 367-68; Smith is a third alternative, supra Samuels United Williams (1978); impracticable, government D.C.App., v. United forego instead choose to introduction A.2d D.C.App., of the statement as an alternative to sever- see C. (1970); Wright, 1 Federal Prac ance. (1969). In tice and Procedure § will this balance some amount of Smith itself reversal was consti permitted judicial economy in favor of tutionally required because the declarant of cases. expedition concomitant stand, did not take the violat Gambrill, See, g., e. United States ing the nondeclarant codefendant’s Sixth 72, 83, U.S.App.D.C. 449 F.2d right Amendment to confront the witnesses (some of evi (1971) disparity in amount against him. Bruton v. United su allowed; if dence codefendants pra. Nevertheless, guidelines set out “ re gross disparity there is is severance force in non-Bru- Smith apply equal ” States, 125 U.S. quired); Rhone v. United ton situations —where the declarant code- App.D.C. 365 F.2d fendant no takes the stand confrontation

Case Details

Case Name: Carpenter v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 13, 1981

Citation: 430 A.2d 496

Docket Number: 12044

Court Abbreviation: D.C.