Carpenter v. United States

MACK, Associate Judge,

concurring in part and dissenting in part:

I would reverse the conviction.

In dissenting from the result reached by the majority, I should say that I applaud the guidance given by Chief Judge Newman for the majority. In today’s complex society where joinder of defendants for trial is not only favored but necessary (see Sousa v. United States, D.C.App., 400 A.2d 1036 , cert. denied, 444 U.S. 981 , 100 S.Ct. 484 , 62 L.Ed.2d 408 (1979)), it is important that judicial guidelines be firmly established for guarding against errors that can surface to the detriment of the individual and the government. I therefore concur in the majority opinion to the extent that it establishes three alternative options. 1 I think, however, that the majority, in its preoccupation with principles, has forgotten the facte.

Thus, although there may be a fair inference that this case involves redaction of a confession gone awry, there also may be a fair inference that it does not. Certainly, the record reveals no discussion relative to sanitization; the government made no representation that it would follow the redaction route and the court made no cautionary instruction or gave no order with respect thereto. Rather the prosecutor repeatedly observed that it was the Bruton 2 problem that gave rise to concern; the government would avoid this problem by using the confession only for impeaching purposes should the codefendant Kitching take the stand. Nothing was said at this point about deleting Mr. Carpenter’s name.

Moreover, the prosecutor, in cross-examining the codefendant Kitching about the confession, specifically named Mr. Carpenter. At a time when the evidence had established that a flagpole had been used as a method of entry through the roof, government counsel asked:

Q. You told him [the officer] about the flagpole and how Mr. Carpenter had put the flagpole over and you had shimmied down the flagpole? [Emphasis added.]

It was only a few minutes later that the prosecutor called the officer in rebuttal testimony, establishing that Kitching had indeed told him that “[h]is co-defendant 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.”

I do not recount this sequence to suggest a deliberate tactic. In my view, the question of whether we have redaction “gone awry” or of whether the officer’s remark was an inadvertent reference is irrelevant to the decision of whether Mr. Carpenter has been prejudiced because the jury has heard inadmissible evidence. Moreover, if the existence of redaction “gone awry” does make a difference, I could not follow the majority to its ultimate conclusion. Granted the truism that “the possibility of inadmissible testimony being uttered inadvertently in front of the jury is a constant but acceptable risk inherent in all oral testimony,” (majority opinion supra at pp. 505-506) that risk should not fall on the de *512 fendant here. Mr. Carpenter in moving for severance did all that he could do. His motion was denied. The government, in choosing redaction as opposed to exclusion of an inherently prejudicial statement, should bear the risk of something going awry.

I do suggest, in recounting the above sequence, that the prosecutor’s question coupled with the testimony of the rebuttal witness constituted more than a single glancing reference that could not have had an impact on the jury. To this extent, at least, able government counsel on en banc consideration appears to have agreed with me; at oral argument counsel candidly acknowledged that it was driven home to the jury that Carpenter was the codefendant. Counsel argued, however, that the existence of substantial independent evidence and the instruction by the court dissipated any impact.

It is at the point of this latter argument that I part firmly with my colleagues. Although the introduction here of unreliable hearsay was not intolerably compounded by the inability to cross-examine as in Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) 3 the extra-judicial statement of the codefendant Kitching was as “powerfully incriminating” as that considered in Bruton . This is so because Kitch-ing’s statement provided the only evidence that appellant was present in the burglarized building or had participated in the break-in. The other evidence was that appellant was seen running from an alley adjacent to the building and that he gave a false identification and offered a not-too-well-received explanation when found lying under an azalea bush. While the latter is competent evidence it is hardly “substantial independent evidence” to support conviction for breaking and entering a building with intent to commit a crime therein. Particularly is this true in view of the fact that no implements of crime or proceeds from the burglary were found on appellant’s person; his clothing, unlike that of Kitching, bore no trace of plaster from the burglarized building.

I therefore think there was prosecutorial error (if inadvertent) in placing before the jury the hearsay confession. In my view, the error could not have been harmless: I cannot say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” Kotteakos v. United States, 328 U.S. 750, 765 , 66 S.Ct. 1239, 1248 , 90 L.Ed. 1557 (1946).

My conviction remains unshaken by the fact that cautionary instructions were given here. There is something fundamentally abhorrent in the idea that an accused may be convicted on the basis of an out-of-court hearsay confession of a codefendant. As a practical matter, in such circumstances, just as in Bruton, 4 there is a “substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining ... guilt.” Bruton v. United States, supra, at 126, 88 S.Ct. at 1622 . “ ‘[T]oo often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors.’ ” Bruton v. United States, 5 supra at 129, 88 S.Ct. at *513 1624 , quoting Mr. Justice Frankfurter, dissenting in Delli Paoli v. United States, 352 U.S. 232, 247 , 77 S.Ct. 294, 302 , 1 L.Ed.2d 278 (1957), overruled in Bruton .

Here the admonition given reduces itself to an anomaly — from the government’s standpoint the jury was to consider the officer’s rebuttal testimony to determine, hopefully, that Kitching was not telling the truth when he denied that he told the officer that appellant rigged up the flagpole, but the jury was at the same time to disregard Kitching’s statement that appellant rigged up the flagpole. This is the “windfall [given to the government] of having the jury ... influenced by evidence against a defendant, which as a matter of law, they should not consider but which they cannot put out of their minds.” Bruton v. United States, supra at 129, 88 S.Ct. at 1624 quoting, Mr. Justice Frankfurter, dissenting in Delli Paoli . I would hold that the trial court’s instructions here did not ameliorate the prejudice and that the court should have granted the motion for mistrial.

. My approval of the guidelines suggested by the majority is of course limited to the three protective alternatives of redaction, severance, or exclusion — a limitation adopted by Judge Ferren in his concurring opinion.

. See Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), holding that a defendant had been denied a Sixth Amendment right to confrontation where he had been incriminated by the introduction of an inadmissible confession of a codefendant who did not take the stand.

. Understandably appellant’s counsel would hardly seek to cross-examine the codefendant about an inculpatory statement the latter denied making.

. The author of the Bruton opinion (Mr. Justice Brennan) reads that opinion as having a second prong — that since instructing juries not to use one defendant’s admissions against the other could not, in fact, prevent them from making such a use, the Sixth Amendment requires reversal. See Nelson v. O’Neil, 402 U.S. 622, 632-35 (1971) (Brennan, J., dissenting).

. Bruton v. United States, supra at 130-31, 88 S.Ct. at 1625 , also quotes the reasoning of the Supreme Court of California in People v. Aranda, 63 Cal.2d 518, 528-29 , 407 P.2d 265, 271-72 , 47 Cal.Rptr. 353, 359, 360 (1965):

“If it is a denial of due process to rely on a jury’s presumed ability to disregard an involuntary confession, it may also be a denial of due process to rely on a jury’s presumed ability to disregard a codefendant’s confession implicating another defendant when it is determining that defendant’s guilt or innocence.

*513 Indeed, the latter task may be an even more difficult one for the jury to perform than the former.... A jury cannot ‘segregate evidence into separate intellectual boxes.’ (People v. Chambers, 231 Cal.App.2d 23, 33 , 41 Cal.Rptr. 551, 558 ).” [Footnote omitted.]

When one adds to the jury’s difficulty which the California court describes, the task of compartmentalizing the evidence for credibility purposes of one defendant, as here, the burden becomes nigh impossible.