David M. Robinson v. United States

FAHY, Senior Circuit Judge

(concurring in part, dissenting as to affirmance) :

The scholarly opinion of Judge Robinson for the court has my concurrence except in its treatment of the question of severance in Part III of the opinion. The trial was on a twelve count indictment involving four alleged sales of narcotics on four different dates, each sale leading to charges of three separate offenses under the narcotics laws. Prior to trial, appellant moved for relief from prejudicial joinder. The motion was denied. This I think was reversible error. 1

*861 I do not understand the court to conclude that there was no prejudice in lumping in one trial the evidence in support of all twelve charges growing out of the four sales of narcotics. The dangers arising from a joint trial of multiple crimes is pointed out by the court at pp. 855, supra. Nevertheless the court, as I understand, holds that the obvious prejudice to the defendant which accompanies such a joint trial must be accepted because were a separate trial had for each of the four sales evidence of the other sales would be admissible to support the testimony of Officer James identifying defendant as the one who made the sale involved in the separate trial. Additionally, the court relies on a rule which in some circumstances permits joint trial of offenses when evidence of each is simple and distinct, even though all the evidence of one would not be admissible in a separate trial of the other.

First. I agree that in a separate trial involving any one of the four sales, in turn involving the decisive issue of identity of the alleged offender, evidence of other encounters of Officer James with the accused would be admissible as tending to verify the correctness of the officer’s identification of the accused. I do not agree, however, that the right to introduce evidence of other encounters in aid of identification also carries with it a right of the prosecution on direct examination to adduce from the officer evidence that the encounters involved other sales of narcotics in violation of the laws. 2 If it be said that the added detail of criminal circumstances enhanced the credibility of the identification by underscoring for the jury the reason why Officer James remembered defendant, for the same reasons such detail increased unnecessarily the prejudice to the accused. The purpose of the identification exception would be served without reciting that the encounters with the defendant involved the commission of three similar crimes. 3 Deference to the general rule excluding evidence of other offenses would seem to require that the identification exception not be permitted to open the door to prejudice which is unnecessary to serve the purpose of the exception. 4

Second. As indicated above, the court also seek support in the rule permitting *862 joint trial of offenses when the evidence of each is sufficiently simple and distinct to avoid prejudice because “the jury is unlikely to be confused” or to “misuse” the evidence of one in considering the others. In the first place, the court’s conclusion that the evidence of each transaction was simple and distinct is not borne out by the record. Both the Government’s argument to the jury and the District Court’s instructions treated the evidence relating to defendant’s identification as if a single issue were involved — whether he was the party to all four transactions. 5 To conclude that the jury did not misuse the evidence — that is, did not cumulate the identifying testimony as to each of the four transactions to reinforce the identifying testimony as to the others — is to me incredible.

In the second place, the court’s primary basis for finding no impermissible joinder is that evidence of each narcotics transaction would be admissible in separate trials to support the agent’s identification of defendant, from which it is said to follow that a severance would not relieve defendant from the prejudice. Yet, this basis for permitting the joint trial contradicts the notion that evidence of each offense was so simple and distinct that the jury in the joint trial would not use that with respect to one in considering the others.

Moreover, it is well settled that, if the other-crime evidence appears to come within an exception to the general rule excluding it, such as the identification exception relied upon by the court, nevertheless the evidence will be excluded if its prejudice to the accused is not outweighed by its probative value to the prosecution. United States v. Bussey, 139 U.S.App.D.C. 268 , 432 F.2d 1330 (1970); Bradley v. United States, supra. This balancing of probative value and prejudice is a condition to the admissibility of the evidence. Abandoning the simple and distinct exception as an independent basis for the joint trial, foi% as pointed out above, this would contradict the interrelationship of the evidence relied upon to support identification, nevertheless the court, paradoxically it seems to me, holds that in balancing probative value and prejudice to defendant, the evidence, because simple and distinct, is not sufficiently prejudicial to require exclusion. This amounts to saying that other-crime evidence, although useful to reinforce identification testimony, is nevertheless so simple and distinct as to minimize prejudice. Such a position is logically untenable. Similar evidence which is reinforcing cannot simultaneously be distinct, regardless of its simplicity. In no case which applies the simple and distinct principle is the evidence supporting one of the offenses so nearly identical to the evidence supporting the other offenses as in the present case. The heart of the simple and distinct principle is the disfavor with which the courts view mutual re inforcement — i. e., cumulation. Whatever may be the usefulness of the balancing process in other cases, the situation before us is one in which the prejudice to defendant increases in direct proportion to probative value.

Third. The court in the last paragraph of footnote 74 refers to the discretion which it attributes to the trial judge in “weighting] prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration,” citing Drew v. United States, 118 U.S.App.D.C. at 14, 331 F.2d at 88. In Drew the language referred to occurs in an outline of prinei- *863 pies deemed relevant to the problem of joinder. See also Bradley v. United States, supra. The context surrounding the Drew quotation indicates to me that the court was warning against the use of economy and expedition in judicial administration as a balancing factor where there is prejudice. The court in Drew gave no weight whatever to such economy and expedition in holding that the joinder there of two separate felonies in a single trial was prejudicial error. Indeed, I think we must move away from considering that prejudice to the right of the individual to a fair trial must be permitted in aid of economy and expedition in the administration of justice. The courts should pursue attainment of those ends by other means available.

The simple fact is that as a matter of common sense no abstract evidentiary rule obscures the prejudice that attached to the use in each offense of the evidence of the four offenses in the joint trial. This prejudice is not offset by any acceptable rationale which justifies imposing upon the defendant an exception to the rule which excludes at trial for one crime evidence of a different one. There is no need to analyze the cases cited by the court, see, e. g., footnote 80, supra, in which reversals have not followed from joint trials of more than one offense. Several of the cases fall within the principle to which I adhered in Dunaway v. United States, 92 U.S.App. D.C. 299, 303, 205 F.2d 23, 26-27 . Moreover, no case controls another. The issue is always one of preserving the fairness of the trial, a judgment to be exercised on the facts of each case. 6

While otherwise concurring, I respectfully dissent from affirmance for the reasons stated.

. No additional motion was required under Rule 14, Fed.R.Crim.P. The Govern *861 ment does not contend otherwise, nor does the court now rely upon the absence of such a motion.

. McCormick recognizes the principle that evidence of other criminal conduct may be admissible to prove identity, but be says “that a need for proving identity is not ordinarily of itself a ticket of admission” and that such evidence usually is admitted under another theory, such ns to show a larger criminal plan or motive, clearly not present in the case at bar. McCormick, Daw of Evidence § 157, at 330 (1954). But see Bradley v. United States, 140 U.S.App.D.C. 7 , 433 F.2d 1113 (1909) ; Drew v. United States, 118 U.S.App.D.C. 11 , 331 F.2d 85 (1964).

. Such a rule would not preclude the police from making several buys from a seller of narcotics to verify their identification. Indeed, Officer James testified at trial that of persons from whom he had made buys of narcotics he was able to identify positively only those from whom he had made more than one purchase.

. None of the authorities cited by the court, notes 54 and 71, supra, calls for the application in this case of the identification exception in a manner which admits in evidence on direct examination the criminal aspects of the other encounters of Officer James with appellant. Each case must be evaluated on its facts and circumstances in light of the principles discussed in the court's opinion; and these principles, when examined in more depth, include the .considerations advanced in this dissent. Moreover, it does not appear from the opinions in Blunt v. United States, 131 U.S.App.D.C. 306 , 404 F.2d 1283 (1968), cert. denied, 394 U.S. 909 , 89 S.Ct. 1021 , 21 L.Ed.2d 221 (1969), and Bradley v. United States, supra, that the approach advanced by me in connection with the identification exception was considered.

. Drew v. United States, 118 U.S.App. D.C. at 19-20, 331 F.2d at 93-94 (1964), seems inconsistent with the position of the court that there was no misuse here. In Dreiv the court concluded that joint trial was not permissible though the offenses were far more distinct than those in the present case.

. See McCormick, Law of Evidence § 157, at 332 (1954).

It is rather ironic that all sentences in the present case run concurrently, as though but one offense occurred. Conviction in one or more separate trials would no doubt have entailed no different sentence. The prejudice, however, comes from the fact that if the offenses had been tried separately the identification evidence would appropriately have been freed of the criminal connotations of the separate encounters.