Carpenter v. United States

KERN, Associate Judge,

with whom Associate Judges NEBEKER and HARRIS join, concurring:

A jury convicted appellant and Lawrence Kitching, his codefendant, of second-degree burglary and related offenses arising out of the nighttime breaking into and entering of a drug store. 1

At trial, the codefendant Kitching testified in his own defense with an assertion of innocent presence at the scene of the crime. The prosecution then presented a rebuttal witness to impeach him: the police officer who had questioned Kitching immediately after his arrest. The officer testified as to an incriminatory statement Kitching had made and the trial court gave to the jury the standard cautionary instruction that the jurors were to “consider it [the statement] only in connection with your evaluation of the credence to be given his [Kitching’s] present testimony here in court.” The court further cautioned the jury that “you must not draw any inference of guilt against the defendant [Kitching] from his alleged confession.” A similar cautionary instruction was repeated to the jury in the court’s final charge.

The police officer, while testifying on rebuttal as to what Kitching had told him at the stationhouse, failed to omit from his recount to the jury of Kitching’s statement a reference to appellant. Specifically, the officer testified:

He [the codefendant Kitching] stated that he had mentioned people had come in a car to the scene of the offense. They’d gone to the building. They had cut a hole through the roof. His code-fendant had jumped from the roof into the building, and then slid a flagpole over the hole in the roof, and that he and another accomplice had then slid down the flagpole. They had then chopped through the wall into the false ceiling to the Peoples Drugstore and pushed piles in there and dropped through that into the Peoples Drugstore. [Emphasis added.]

Appellant moved for a mistrial, incorrectly relying on Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), in which the confessing codefendant did not testify. The trial court denied the motion, concluding that the problem adequately could be solved by instructing the jury then and again in its final charge that Kitching’s statement was to be considered only with respect to him and not “in any way in your deliberations with respect to any other defendant.”

A division of this court consisting of Judges Kelly, Harris, and Ferren heard the appeal. A majority — Judges Kelly and Fer-ren, with Judge Harris dissenting — voted to reverse appellant’s conviction. The majority seized upon the fact that the trial court had denied a pretrial motion by appellant to sever his case from that of his codefendant Kitching 2 and proceeded in its opinion, later vacated by the entire court, to adopt for *508 this jurisdiction a new rule. The rule sought to be adopted was that whenever a defendant, prior to trial, moves for a severance “because an out of court statement of a codefendant makes reference to him but is not admissible against him” the trial court must require the prosecutor to follow one of three courses: (1) to proceed with the joint trial without using the statement, or (2) to proceed with the joint trial and delete all reference contained in the statement to the defendant moving for severance, or (3) to sever for a separate trial the movant’s case.

The majority further concluded that if a trial court failed to require the prosecutor to follow this course, such failure would constitute error which could not be considered harmless unless there was substantial independent evidence of guilt. In reversing the conviction, the majority of the division was not persuaded there was substantial independent evidence of guilt here despite what I consider to be extremely strong evidence introduced by the government.

At the en banc stage of the proceeding, Judges Kelly and Ferren vote to affirm the convictions, although Judge Ferren’s “concurring” opinion (like the dissenting opinion of Judge Mack) reflects that those three judges still would prefer to have a virtual per se reversible error rule in a situation of this type. 3

We face what ultimately is seen to be a rather narrow issue in this case. 4 The question is: Given the rebuttal witness’ glancing and undoubtedly inadvertent one-word reference to appellant as he recounted to the jury Kitching’s prior incriminatory statement, coupled with the very strong evidence adduced against appellant, did the trial judge abuse his discretion in denying the motion for a mistrial and concluding that cautionary instructions would adequately protect appellant’s rights? 5 I readily conclude that he did not. No extreme circumstances are present here. 6 Beyond that, it is well settled that juries are presumed to follow their instructions from the trial judge. Parker v. Randolph, 442 U.S. 62, 72 , 99 S.Ct. at 2138 (1979). 7

With respect to the preference of Judge Ferren and Judge Mack, as expressed in their opinions, for a virtual per se reversible error rule (notwithstanding authority such as Harrington v. California, 395 U.S. 250 , 89 S.Ct. 1726 , 23 L.Ed.2d 662 (1969), which *509 rejected a per se rule even in a Bruton-type of case), I call attention to this jurisdiction’s codification of the harmless error rule. 8 Section ll-721(e) of the District of Columbia Code provides:

On the hearing of any appeal in any case, the District of Columbia Court of Appeals shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.

See also Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239, 1248 , 90 L.Ed. 1557 (1946).

Accordingly, in my opinion we clearly are bound to affirm appellant’s convictions.

. The store’s silent burglar alarm was triggered by the break-in. When police promptly responded they saw two men run from an alley adjacent to the store. They recovered on the scene a bag containing burglary tools. Of the two defendants, one was quickly arrested nearby and the other was found shortly thereafter, hiding under some shrubbery.

. Appellant apparently feared the “rub-off’ prejudice to his case should Kitching testify and his incriminatory statement then be introduced by the government.

. Judge Ferren, joined by Judge Kelly, appears to prefer following People v. Aranda, 63 Cal.2d 518 , 47 Cal.Rptr. 353 , 407 P.2d 265 (1965), and its progeny rather than the relevant Supreme Court precedents, which I consider controlling.

. Chief Judge Newman’s opinion ranges somewhat afield, discussing, inter alia, the subject of joinder, which is not and never has been an issue.

. We note also that the prosecutor made no reference in her jury arguments to this minimal reference to appellant.

. In Bruton v. United States, 391 U.S. 123, 135-36 , 88 S.Ct. 1620, 1627-28 , 20 L.Ed.2d 476 (1968), in which the confessing codefendant did not take the stand, the Supreme Court stated: “[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great ... that the practical and human limitations of the jury system cannot be ignored. Such a context is ... where the powerfully incriminating extrajudicial statements of a codefendant ... are deliberately spread before the jury in a joint trial [and] ... [t]he unreliability of such evidence is intolerably compounded when the alleged accomplice [the codefendant] ... does not testify and cannot be tested by cross-examination.” Cf. Smith v. United States, D.C.App., 312 A.2d 781 (1973).

The Supreme Court has made it clear that the basic constitutional principle of Bruton does not apply when, as occurred here, the confessing codefendant takes the stand. Nelson v. O’Neil, 402 U.S. 622 (1971); see also Borrero v. United States, D.C.App., 332 A.2d 363 (1975). Thus, while Chief Judge Newman’s opinion somewhat blurs the distinction between Bruton and non-Bruton type cases, there remains a significant difference between the two.

. In Parker v. Randolph (which was a Bruton-type case), in reliance upon Opper v. United States, 348 U.S. 84 , 75 S.Ct. 158 , 99 L.Ed. 101 (1954), the Court made a statement which is applicable a fortiori to this case:

And an instruction directing the jury to consider a codefendant’s extrajudicial statement only against its source has been found sufficient to avoid offending the confrontation right of the implicated defendant in numerous decisions of this Court. [ 442 U.S. at 73-74 , 99 S.Ct. at 2139 (footnote omitted).]

. See also Michigan v. Tucker, 417 U.S. 433, 446 , 94 S.Ct. 2357, 2364 , 41 L.Ed.2d 182 (1974), in which the Court stated that “the law does not require that a defendant receive a perfect trial, only a fair one.”