Carpenter v. United States

FERREN, Associate Judge,

with whom KELLY, Associate Judge, joins, concurring:

After rehearing and further consideration, I concur in the judgment affirming Carpenter’s conviction.

I.

Chief Judge NEWMAN’s opinion states that when the court, in a joint trial, is confronted by hearsay evidence of a code-fendant’s confession which also implicates a nonconfessing defendant, the court has three principal ways to protect the latter defendant: severance of the trials; redaction of the inadmissible portion of the statement; or, when redaction is impractical, continuation of a joint trial from which the hearsay statement is excluded altogether.

To these three, the court adds a fourth:

[I]n a certain, limited class of cases, where the references to the nonconfess-ing defendant are so intertwined within the confessing defendant’s statement that redaction is impracticable and the references are not significantly incriminating, it may be appropriate for the trial court, after weighing the alternatives, and recognizing the desirability of excluding inadmissible evidence, to admit the statement with limiting instructions. [Ante at 505 (footnote omitted).]

I cannot agree with that proposition. A codefendant’s confession implicating a non-confessing defendant in any respect is inherently prejudicial. I would limit the court’s Rule 14 authority (to “grant a severance of defendants or provide whatever other relief justice requires”) to the first three options. 1 See People v. Aranda, 63 Cal.3d 518 , 530-35, 407 P.2d 265, 272-73 , 47 Cal.Rptr. 353, 360-61 (1965) (Traynor, C. J.) (endorsed by the American Bar Association in its Standards for Criminal Justice, Join-der and Severance § 2.3(a) (Approved Draft 1968) quoted ante at 505 n.14).

Ideally, redaction is the answer; it preserves both the joint trial and properly limited use of the hearsay. If redaction is impractical in a particular case, however, I perceive no reason to invite the trial court, through the fourth option, to compromise the traditional rule against hearsay testimony. There is too great a risk that that option will be used in joint trials to justify admission of damaging hearsay that unquestionably would be excluded as against a nonconfessing defendant if the government had to elect between separate trials and exclusion of the hearsay at a joint trial. Inclusion of the fourth option puts too high a premium on joint trials and too great a confidence in the jury’s ability to follow unfollowable limiting instructions. I agree with Chief Judge Traynor:

[A jury] cannot determine that a confession is true insofar as it admits that A has committed criminal acts with B and at the same time effectively ignore the inevitable conclusion that B has committed those same criminal acts with A. [Aranda, supra, at 529 , 407 P.2d at 272 , 47 Cal.Rptr. at 360 .]

*510 II.

It is important to note that Chief Judge NEWMAN does not justify the trial court’s approach in this case by reference to the fourth option. Instead, he perceives this to be a case of attempted redaction that “went awry” — an inadvertent reference by Officer Gaine to Kitching’s “codefendant” (appellant Carpenter).

The record is not so clear to me that this is a case of attempted redaction. Although that interpretation is plausible, 2 there is some indication that the trial court denied Carpenter’s motion for severance, knowing that the government later might seek to introduce “unsanitized” hearsay. See Tr. 60-61. If the court did knowingly permit the hearsay, intending to protect Carpenter only with the limiting instructions — i. e., if the trial court did, in effect, elect the fourth option — I would hold that to be error. Until virtually all (if not all) the evidence has been presented, the trial court cannot reasonably have confidence that the jury will find an unredacted hearsay confession to be “not significantly incriminating.” 3 Ante at 505. At best, the trial court can play a hunch that a reviewing court, in examining the entire record, will conclude that any error in admitting the unredacted statement turned out to be harmless.

Chief Judge NEWMAN’s opinion appears to acknowledge this concern. See ante at 506 n.16. Thus, I find his opinion contradictory in creating the fourth option, which permits the trial court to speculate about such inherently inadmissible evidence. With that said, I would agree — after rehearing and further review — that if the trial court knowingly permitted the inadmissible hearsay, any error here was harmless under Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239, 1248 , 90 L.Ed. 1557 (1946).

If, however, Chief Judge NEWMAN is correct in concluding that this is a case of redaction gone “awry,” I agree that the court did not err — did not abuse its discretion — in failing to declare a mistrial, given the evidence of record (an analysis akin to the harmless error approach under Kotteakos, supra). When the trial court does require redaction and the government’s witness, for any reason, fails to comply, the court itself cannot be said to have erred when the statement comes into evidence. The question, rather, becomes whether the court erred in denying a mistrial at that point — an inquiry into abuse of discretion requiring the same type of appellate analysis, in this context, that would be given if the court affirmatively permitted the hearsay into the trial and this court had to review for harmless error. 4

Accordingly, whether the trial court errs in permitting unredacted hearsay testimony or a government witness fails to comply with a redaction order, there may be no reason for the reviewing court to reverse the conviction of a nonconfessing defendant (such as Carpenter) if it turns out, on the basis of the entire record, that the trial court’s error or the witness’ slipup was not prejudicial.

III.

In summary, I believe the trial court only should permit a codefendant’s hearsay con *511 fession into evidence at a joint trial if it can be purged of references implicating a non-confessing defendant. Otherwise, there should be severance or exclusion; admission of the unsanitized statement, with limiting instructions, will not preserve the integrity of the trial. Consistent with this approach, if the trial court mistakenly permits the statement into evidence, harmless error analysis is always available. Similarly, if attempted redaction goes “awry,” it is open to a reviewing court to find no error — no abuse of discretion — in the trial court’s refusal to grant a mistrial.

. Chief Judge NEWMAN and Judge PRYOR would adopt a four-option test; Judges KELLY, MACK, and I perceive three options. Judge KELLY and I, however, have formally joined in Chief Judge NEWMAN’s opinion to assure that a majority of the court will be understood clearly to prefer that analysis over one in which the trial court is allowed to make freer use of curative instructions in this context.

. Redaction in this case was a practical alternative. If Officer Gaine had used the word “accomplice” instead of “codefendant,” redaction would have been accomplished without necessarily tipping off the jury that Kitching (through Gaine’s testimony) had directly implicated Carpenter.

. Cf. Lewis v. United States, D.C.App., 408 A.2d 303, 307 (1979), modifying 393 A.2d 109, 115 (1978) (impeachable convictions of government witness must be produced automatically as Brady material, upon defense request at trial, without analysis of probable materiality; “there can be no objective, ad hoc way to evaluate before trial whether an impeachable conviction of a particular government witness will be material to the outcome. No one has that gift of prophecy”).

.The reviewing court, however, will give greater deference to the trial court’s own judgment not to declare a mistrial — in contrast with the reviewing court’s independent review of the record — to the extent that the trial court bases its determination on evidence already admitted at a trial substantially in progress. Cf. United States v. Agurs, 427 U.S. 97, 114, 96 S.Ct. 2392, 2402 , 49 L.Ed.2d 342 (1976).