Bittle v. United States, 13174.

• Citation: 410 A.2d 1383
• Decision Date: 13 February 1980
• Docket Number: No. 13174.,No. 13300.,No. 13439.,13174.,13300.,13439.
• Parties: Marion BITTLE, Jr., Appellant, v. UNITED STATES, Appellee. Ralph L. CLARK, Appellant, v. UNITED STATES, Appellee. William T. LAWSON, Appellant, v. UNITED STATES, Appellee.
• Court: Court of Appeals of Columbia District

410 A.2d 1383

Marion BITTLE, Jr., Appellant, v. UNITED STATES, Appellee.

Ralph L. CLARK, Appellant, v. UNITED STATES, Appellee. William T. LAWSON, Appellant, v. UNITED STATES, Appellee.

No. 13174.

No. 13300.

No. 13439.

District of Columbia Court of Appeals.

Argued October 17, 1979.

Decided February 13, 1980.

Albert A. Rapoport, Washington, D. C., appointed by the court, was on the brief for appellant Bittle and submitted the brief without oral argument.

Irvin P. Foster, Washington, D. C., appointed by the court, was on the brief for appellant Clark and submitted the brief without oral argument.

Carol Garfiel Freeman, Washington, D. C., appointed by the court, for appellant Lawson.

J. Ramsey Johnson, Asst. U. S. Atty., Washington, D. C., with whom Carl S. Rauh, U. S. Atty., Washington, D. C., at the time the brief was filed and the case was argued, John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before KELLY, GALLAGHER and MACK, Associate Judges.

PER CURIAM:

Appellants were convicted by a jury of assault with intent to kill while armed (D.C Code 1973, §§ 22-501, -3202), armed robbery (id., §§ 22-2901, -3202), and various related offenses¹ arising out of two robberies. On appeal, they challenge the trial court's denial of their motions to sever the trial of the charges arising from these two offenses.² We find that the trial judge did not abuse her discretion and affirm.

Both robberies occurred on September 18, 1977. The first incident began shortly before noon when Eugene Logan, a cab driver, picked up two men, later identified as appellants Lawson and Bittle, who asked to be taken to an address in Southeast Washington. As they neared their destination, Lawson put a gun to Mr. Logan's head, told him to pull the cab to the side of the road, and demanded all of his money. Once he complied, Lawson suggested to Bittle that they take him to a wooded area and kill him. However, when Bittle warned Lawson that another car was approaching, Lawson ordered Logan to drive on. A few moments later, Logan pulled his cab to the side of the road, where two women were standing. Logan pleaded with the men to leave the cab, but Lawson demanded that he drive on. When Logan refused, Lawson put the gun to the right side of Logan's head and shot him. Mr. Logan fell out of the cab and made several attempts to get up. When he finally stood, he saw Bittle and Lawson driving off in his cab. Mr. Logan was taken to the hospital by a passing motorist.

At trial, Mr. James Johnson, an acquaintance of Bittle, testified that he saw Bittle and another man drive a cab into an alley off of Stanton Road in Southeast Washington on the day of the robbery. He watched the two men get out of the cab and saw Bittle wipe off the door handle and the other man wipe off the steering wheel. A sergeant from the robbery squad testified that Bittle gave him a statement and admitted being in the cab at the time of the robbery.³ Mr. Logan identified Lawson from a photographic array, at a lineup, and in court.

Approximately nine hours after the shooting and robbery of Logan, Tyrone Johnson and Marilyn Thomas were sitting in a van in Southeast Washington when they were approached by appellants Lawson, Bittle, and Clark. Lawson asked for a ride to another address in Southeast and Johnson agreed. All three men got into the van. Lawson seated himself directly behind Johnson, and, when Johnson missed a turn, stuck a gun in his side and announced that he was robbing him. Johnson pleaded that he had no money and Lawson ordered him out of the van. Clark and Lawson led Johnson toward a wooded area while Bittle stayed behind with Ms. Thomas. When the three men reached a dark spot approximately twenty-five yards from the van, Clark and Lawson took Johnson's watch and two rings. Lawson then told Johnson that, because he had already done something like this and had been identified, he would have to shoot Johnson. He ordered Johnson onto his knees and hit him on the back of the head with the gun. Lawson and Clark dragged Johnson to a creek and rolled him in. Lawson then shot Johnson in the head. When Clark and Lawson left, Johnson got up and escaped in the opposite direction.

Mr. Johnson later identified Lawson from a photographic array, at a lineup, and in court. Ms. Thomas positively identified all three men in court. A crime scene search officer testified that he fingerprinted and photographed Johnson's van and found a .32 caliber Smith and Wesson gun there. A fingerprint expert identified a fingerprint taken from the van as Bittle's and a fingerprint taken from Mr. Logan's cab as Lawson's. A firearms expert testified that the gun found in Johnson's van fired the bullet found in Mr. Logan's head.⁴

Neither Clark nor Bittle presented any evidence. Lawson offered an alibi defense. The jury found all three appellants guilty as charged.

Appellants contend that the trial judge erred in failing to sever the counts of the indictment for trial. Superior Ct.Cr.R. 8(a) and D.C.Code 1973, § 23-311(a) allow the joinder of two or more offenses in one indictment if the offenses "are of the same or similar character . . ." If the joinder is prejudicial, however, a defendant may seek relief under Super.Ct.Cr.R. 14 and D.C.Code 1973, § 23-313, which allow the court to "order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires." The decision on severance is left to the discretion of the trial court. This court will disturb that decision only if there has been an abuse of discretion. See Samuels v. United States, D.C.App., 385 A.2d 16 (1978); 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, 22 L.Ed.2d 221 (1969); 1 C. Wright, Federal Practice and Procedure § 227 (1969).

In Johnson v. United States, D.C.App., 398 A.2d 354, 363-67 (1979), this court identified the questions a reviewing court must address in determining whether there has been an abuse of discretion. Once we have decided, as we do in this case, that the decision is committed to the trial court's discretion, that the trial court recognized its discretionary power and purported to exercise it, and that the decision is supported by sufficient facts in the record, we must ask whether the trial court exercised its discretion erroneously. Id. at 365. To do so, we must review the principles governing severance.

There is a presumption favoring joinder of trials. Id. at 367 (citing Baxter v. United States, D.C.App., 352 A.2d 383, 385 (1976)). In deciding whether to sever, the trial judge must balance the possibility of prejudice to the defendants against the legitimate probative force of the evidence and the interest in judicial economy. See Crisafi v. United States, D.C.App., 383 A.2d 1, 3, cert. denied, 439 U.S. 931, 99 S.Ct. 322, 58 L.Ed.2d 326 (1978); Tinsley v. United States, D.C.App., 368 A.2d 531, 533 (1976). In Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964), the court enumerated three types of possible prejudice to the defendant:

(1) he may become embarrassed or confounded in presenting separate defenses; (2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. [Id. at 14, 331 F.2d at 88.]

See also 1 C. Wright, Federal Practice and Procedure, supra at § 222. It is generally conceded, however, that joinder presents no prejudice to the defendant if evidence of the crimes charged would be admissible in a separate trial for the other offense. See Crisafi v. United States, supra at 3; Bridges v. United States, D.C.App., 381 A.2d 1073, 1075 (1977), cert. denied, 439 U.S. 842, 99 S.Ct. 135, 58 L.Ed.2d 141 (1978).

As a rule, evidence of other crimes committed by a defendant is not admissible to show the defendant's disposition to commit crimes. Evidence of other crimes is admissible, however, if it is relevant to the issues of motive, intent, absence of mistake or accident, common scheme or plan, or identity, and the probative value of the evidence outweighs the potential prejudice to, the defendant. Drew v. United States, supra at 16, 331 F.2d at 90. If the trial judge was correct in deciding that the evidence of the crimes charged against appellants was relevant to one of the foregoing categories and that the probative value of the evidence outweighed the prejudice, the denial...