Byrd v. Wainwright

• Decision Date: 24 June 1970
• Docket Number: No. 28245.,28245.
• Citation: 428 F.2d 1017
• Parties: James L. BYRD, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

428 F.2d 1017 (1970)

James L. BYRD, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Director, Florida Division of Corrections, Respondent-Appellant.

No. 28245.

United States Court of Appeals, Fifth Circuit.

June 24, 1970.

Earl Faircloth, Atty. Gen. of Florida, Tallahassee, Fla. Jesse J. McCrary, Jr., Asst. Atty. Gen., Miami, Fla., for respondent-appellant.

Gerald F. Richman, Miami Fla., for petitioner-appellee.

Before GODBOLD, DYER and MORGAN, Circuit Judges.

GODBOLD, Circuit Judge:

This is an appeal from an order of the District Court granting Byrd's petition for a writ of habeas corpus. We affirm.

On April 6, 1966 Byrd was indicted in Florida state court for rape, along with six other defendants. In May he moved for a severance, stating that his defense would vary from that of the codefendants, that he would require the testimony of certain of the codefendants and could not at any stage of the trial expect or compel any of them to be witnesses in his behalf, and that he could not resolve his dilemma unless the codefendants were tried separately from and earlier than he.

The motion was denied by an order entered immediately before trial in September. Byrd was convicted, along with three of the other defendants, and was given a life sentence. Two defendants pleaded guilty during the trial. One defendant was acquitted on a directed verdict. He exhausted his state remedies. Following an evidentiary hearing the federal District Court granted habeas on the ground that the denial of a severance was a violation of due process, relying upon United States v. Echeles, 352 F.2d 892 (7th Cir. 1965) and DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962).

We examine the matters known to the trial judge at the time he ruled on the motion to sever, recognizing that a motion for a separate trial is addressed to the discretion of the court, reviewable for abuse of discretion, Sosa v. State, 215 So.2d 736 (Fla. 1968), Smith v. United States, 385 F.2d 34 (5th Cir. 1967), and bearing in mind that in cases of this nature safeguarding the rights of defendants and the interests of the courts in efficient and expeditious administration of criminal justice is necessarily approached on a case by case basis. Echeles, supra, 352 F.2d at 897.

All seven defendants were charged with the mass rape of the same young woman on a single occasion. The other six defendants confessed, some only to presence at the scene, others to actual participation in the rape. Five confessions purported to name all persons present at the commission of the crime; only one of these five named Byrd. Another of the five affirmatively stated that Byrd was not present. The sixth confession implicated Byrd as an active participant in the crime.

Motions were filed to suppress the confessions for failure to give Miranda warnings, and on July 26 the court held a hearing on those and other pending motions. The confessions were before the court, and arguments were made concerning them by several of the counsel for various of the defendants. Byrd's counsel was present and argued his pending motion for severance. He pointed out that Byrd was the only nonconfessing defendant, and that his major defense would be alibi. He noted the possibility that the other defendants might not take the stand, and that he could not require them to testify or even call them to the stand as witnesses. E. g., DeLuna v. United States, supra.

As to the one confession which incriminated Byrd (that of Parks), Byrd's counsel told the court that he had talked to Parks who had told him there had been confusion in the taking of his confession (arising from the fact that police were also investigating a different incident, near in time, at which some of the defendants had been present) and, in substance, that Byrd had not been present at the rape scene. Byrd's counsel told the court that he had heard conversations among the other defendants to the effect Byrd was not present at the rape, and that the other defendants had told him their testimony would be that Byrd was not with them on the date of the crime.

The court set the motion to sever for further hearing. Subsequently he suppressed the six confessions. Although the order of suppression is not in the record, colloquy with counsel, which is in the record, indicates that it was based on lack of full compliance with Miranda.

On September 7 the court held the further hearing on the motions of Byrd (and others) for severance. Counsel for Byrd, and the prosecutor, pointed out the likelihood that some of the codefendants might plead guilty. Counsel for defendant Chisholm (who pleaded guilty at trial) reported he was considering the possibility of a guilty plea. All the motions to sever were denied.

In the interest of full understanding we note events which took place at the trial. In so doing, we recognize that we are considering the judge's exercise of discretion at the pre-trial stage when he denied the motion, and that he is not to be found in error for that denial on the basis of matters that became known to him later or events occurring at the trial.¹ On conclusion of the state's case, a verdict of acquittal was directed as to defendant Marshall. Byrd was the only defendant who took the stand. He denied being present at the scene. After his testimony all defendants rested. Two more defendants, Davis and Chisholm, then changed their pleas to guilty. The four remaining defendants, including Byrd, were found guilty.

This case is similar to Echeles, supra, relied on by the court below. There, in the course of a criminal trial, defendant Arrington admitted on the stand that he had engaged in a scheme to present falsified documents and perjured testimony in his defense. In his testimony, and in subsequent statements in open court, he exculpated Echeles, his attorney, of participation. Arrington was indicted for perjury, and Arrington and Echeles (and others) for procuring the perjury, conspiracy, and like offenses.

Echeles faced a prospect, which Byrd did not face, of a trial in which Arrington's incriminating admissions could be introduced into evidence against Arrington and would in some degree prejudice Echeles. But his second problem was the same as Byrd's, inability to get into evidence statements tending to exculpate him made by his codefendant. The 7th Circuit held that the trial court erred in denying a severance, saying:

At this juncture, we hold merely that, having knowledge of Arrington\'s record testimony protesting Echeles\' innocence, and considering the obvious importance of such testimony to Echeles, it was error to deny the motion for a separate trial. It should have been clear at the outset that a fair trial for Echeles necessitated providing him the opportunity of getting the Arrington evidence before the jury, regardless of how we might regard the credibility of that witness or the weight of his testimony. (Emphasis in original.)

352 F.2d at 898.

When a trial court is presented with a motion to sever based on the desire to offer exculpatory testimony of a codefendant, there are several areas of inquiry, sometimes overlapping, which the court well may pursue for guidance in determining what it should do:

(1) Does the movant intend or desire to have the codefendant testify? How must his intent be made known to the court, and to what extent must the court be satisfied that it is bona fide?

(2) Will the projected testimony of the codefendant be exculpatory in nature, and how significant must the effect be? How does the defendant show the nature of the projected testimony and its significance?² Must he in some way validate the proposed testimony so as to give it some stamp of verity.

(3) To what extent, and in what manner, must it be shown that if severance is granted there is likelihood that the codefendant will testify?

(4) What are the demands of effective judicial administration and economy of judicial effort? Related to this is the matter of timeliness in raising the question of severance.³

(5) If a joint trial is held, how great is the probability that a codefendant will plead guilty at or immediately before trial and thereby prejudice the defendant, either by cross-defendant prejudice or by surprise as it relates to trial preparation?

There is no duty to sever merely because potentially exculpatory testimony of a codefendant exists. The defendant-movant must desire to use it. Brown v. United States, 126 U.S.App.D. C. 134, 375 F.2d 310, 317, cert. denied, 388 U.S. 915, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967). The desire of Byrd was plain and was asserted earnestly and repetitiously by his counsel, with full exploration of reasons. We reject the underlying implication of the state that as a matter of law there must be either formal testimony of defense counsel under oath, or an affidavit from him, stating his intent to use the codefendant's testimony. In this instance the transcripts of the July and September hearings reveal not merely argument but extensive dialogue and exchange between attorneys and the court on many aspects of the case, in an atmosphere of apparent candor and trust. It is clear that the court treated as trustworthy the statements of the numerous counsel, as officers of the court.⁴

We turn to the second area of inquiry, the exculpatory nature, and the significance, of the codefendant's testimony and the showing of those factors. This might be restated in terms of the extent of potential prejudice to the defendant if the defendant is tried without the opportunity to elicit the codefendant's testimony.⁵

It must be shown that the testimony would be exculpatory in effect. Smith v. United States, supra, 385 F.2d at 38. The movant must make a clear showing of what the codefendant would testify to. United States v. Kaufman, 291 F.Supp. 451 (S.D.N.Y. 1968). Such a showing was made in this case. The confessions were before the court at the July hearing and their contents discussed. Again, we reject...