Bradley v. United States

• Decision Date: 05 November 1969
• Docket Number: No. 20710.,20710.
• Citation: 433 F.2d 1113,140 US App. DC 7
• Parties: George P. BRADLEY, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

140 US App. DC 7, 433 F.2d 1113 (1969)

George P. BRADLEY, Appellant, v. UNITED STATES of America, Appellee.

No. 20710.

United States Court of Appeals District of Columbia Circuit.

Argued September 18, 1968.

Decided November 5, 1969.

COPYRIGHT MATERIAL OMITTED

Mr. Seymour J. Spelman, Washington, D. C. (appointed by this court) for appellant.

Mr. Gene S. Anderson, Asst. U. S. Atty., with whom Messrs. David G. Bress, U. S. Atty., at the time the brief was filed, Frank Q. Nebeker, Asst. U. S. Atty., at the time the brief was filed, and Donald S. Smith, Asst. U. S. Atty., were on the brief, for appellee.

Before WRIGHT, McGOWAN and ROBINSON, Circuit Judges.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Mary Whitten was awakened about 2:00 a. m. on July 4, 1966, by a strange man in the bedroom of her apartment. The man held a sharp object against her neck, choked her, and ordered her to disrobe. She refused and succeeded in pushing him away. The man then turned on the bedroom light and talked with her for about 15 minutes; asked about his entry into the apartment, he stated that "someone was chasing him, and he ran in * * *."¹ He demanded money, searched her handbag, and departed.

The Metropolitan Police Department was immediately notified and was furnished a general description of the intruder. Officer Melvin Hardy, dispatched to the apartment with that description, saw a man standing at a bus stop near the entrance to the apartment building. Officer Hardy conversed with the man for several minutes, during the course of which the man said his name was George Bradley.² The officer continued on to the apartment, where Mrs. Whitten amplified the description, and it fitted the man the officer had just left. Officer Hardy then went back to the bus stop, but the man was gone.

Nine days later, at about 11:45 a. m. on July 13, Courtney Whitten, Mrs. Whitten's 15-year old daughter, left the apartment to go to a store. When she returned, she was accompanied by two friends, James Edward Anderson and Charles Nowlin. Upon reentering the apartment, one of her companions found appellant attempting to hide behind a bedroom door. In explanation, appellant stated that a friend had brought him there and departed, and that he was awaiting the friend's return, due in about a half hour.³ Appellant's captors waited out the half hour and, the alleged friend not reappearing, then summoned the police.

Appellant was tried before a jury in the District Court on a rewritten two-count indictment charging housebreakings⁴ on July 4 and 13.⁵ At the trial, Mrs. Whitten identified appellant as the man in the apartment on July 4, and Officer Hardy identified him as the man at the bus stop on that date. Miss Whitten and her two companions identified appellant as the man in the apartment on July 13. Appellant sought by his own testimony and that of three other witnesses to establish an alibi for July 4, but offered no defense at all to the July 13 charge. The jury convicted on both counts.⁶

Appellant's sole contention on this appeal stems from his unsuccessful motion for a severance of the two housebreaking charges for separate trial. Appellant's trial counsel⁷ argued strenuously that prejudice would flow from the jurors' opportunities to cumulate the evidence as to each of the charges if they were tried together. Counsel also informed the trial judge that appellant wished to testify defensively as to the July 4 incidents but not as to those of July 13, and urged that joint trial of the two charges would present appellant with an irreconcilable dilemma. Before us it is insisted additionally that prejudice to appellant was heightened by allegedly improper comment in the prosecutor's closing address to the jury and by a segment of the judge's charge.⁸ In the succeeding parts of this opinion we discuss these contentions, and in the end we affirm appellant's convictions.

I

The two-count indictment upon which the trial proceeded charged appellant with separate housebreakings into the same apartment within a nine-day period. It seems clear that the two housebreakings were properly joinable in a single indictment as "offenses * * of the same or similar character,"⁹ and appellant does not suggest the contrary. Instead, his contention is that the circumstances, particularly his stated desire to testify on but one of the counts, portended such harm to appellant that the trial judge erred in refusing to sever the counts for trial.¹⁰ The judge, however, deeming evidentiary items of each housebreaking mutually admissible at a trial of the other, foresaw no greater detriment in a joint trial than in separate trials of the charges. The Government argues vigorously that, for the same reason, appellant was not any worse off simply in consequence of their simultaneous trial.

The basic principles by which this controversy is to be resolved are well settled in this jurisdiction. Although counts are permissibly joined in the same indictment for purposes of charging the accused, the court, upon appropriate motion and a showing of prejudice, should order their separate trial or an election by the Government.¹¹ With appellant inviting the trial judge's consideration of dangers long viewed as sources of potential prejudice,¹² it became incumbent upon him to "weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration."¹³

This the judge did, indulging full argument by counsel. The factor of greatest significance in the judge's decision to permit trial of both counts was his view that appellant would not benefit were the counts to be severed. The judge felt that on certain of the issues arising in a separate trial of either housebreaking charge, evidence of circumstances involved in the other would have a legitimate role, so that nothing would be gained by separation. This result, the judge held, would not vary in the event that appellant should take the witness stand in one separate trial but not in the other. We move now to a discussion of the bearing these two considerations had on the issue at hand.

II

Few doctrines are more firmly established than the "principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged."¹⁴ As we have remonstrated, "since the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose."¹⁵ By the same token, "criminal propensity" prejudice will require separate trials of joined offenses where to each its own evidentiary details must be confined.¹⁶

We have, however, in common with the authorities generally,¹⁷ recognized exceptions to these broad formulations.¹⁸ Evidence disclosing another crime is admissible in situations where "the prejudicial effect may be outweighed by the probative value."¹⁹ Correspondingly, where, "under the rules relating to other crimes, the evidence of each of the crimes on trial would be admissible in a separate trial for the other, the possibility of `criminal propensity' prejudice would be in no way enlarged by the fact of joinder."<sup>20</sup> This is so for the rather obvious reason that "in such cases the prejudice that might result from the jury's hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials."<sup>21</sup> Consequently, where evidence of joined offenses would be mutually admissible in separate trials of those offenses, severance is not ordinarily required on account of "criminal propensity" prejudice.<sup>22</sup> And this precept "does not require that every item of evidence relating to one offense be admissible in a separate trial for the other, but rather looks in a broader sense to whether the rules relating to `other crimes' evidence have been satisfied."²³

Appellant concedes the probability that the Government's evidence describing the July 4 housebreaking and associating appellant as the housebreaker could have been let in at a separate trial of the July 13 charge. We ourselves have no doubt as to the propriety of a ruling admitting that evidence for the purpose of showing a criminal motive²⁴ and intent²⁵ underlying the entry appellant indisputably made into the apartment on the latter date. We believe also, contrarily to the position appellant advances, that the trial judge might properly have received evidence of appellant's presence in the apartment on July 13 in a separate trial for the July 4 offense on the issue as to whether he was the party who committed that offense.

Our past decisions, in line with the general American view,²⁶ recognize fully that evidence indicating the accused's identity as the perpetrator of one offense may be admissible for that purpose despite its exposure of his involvement in other crime.²⁷ The basis for admission is but an application of the principle "that, where a circumstance is relevant for some purpose, the incidental revelation, in offering it, of other criminal conduct by a defendant does not stand in the way of receiving the evidence."²⁸ That is not to say that every item having some tendency to show identity is automatically to be made available to the jury. An inexorable requirement, obtaining as to all evidence unveiling another offense, is that its probative virtues must outweigh its prejudicial proclivities.²⁹ "The rule," we have declared, "is that evidence of other offenses is admissible when substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline cases, admissible when its relevance outweighs the undue prejudice that may flow from it, but otherwise inadmissible."³⁰ Thus "other offense" evidence proffered on an issue of identity must promise a real contribution in the...