Carpenter v. United States, 12044.

CourtCourt of Appeals of Columbia District
Citation430 A.2d 496
Docket NumberNo. 12044.,12044.
PartiesElton G. CARPENTER, a/k/a Randy Johnson, Appellant, v. UNITED STATES, Appellee.
Decision Date13 April 1981

Jeffrey B. O'Toole, Washington, D. C., for appellant.

Michael W. Farrell, Asst. U. S. Atty., Washington, D. C., with whom John A. Terry, Asst. U. S. Atty., Washington, D. C., was on the Petition for Rehearing En Banc. Carl S. Rauh, U. S. Atty., Washington, D. C., while the Petition for Rehearing En Banc was pending, and Martha P. Rogers, Asst. U. S. Atty., Washington, D. C., for appellee.

Before NEWMAN, Chief Judge, and KELLY, KERN, GALLAGHER,* NEBEKER, HARRIS, MACK, FERREN and PRYOR, Associate Judges.

NEWMAN, Chief Judge:

On January 24, 1977, a jury found appellant Elton Carpenter and a codefendant guilty of second-degree burglary (two counts), D.C.Code 1973, § 22-1801, grand larceny, D.C.Code 1973, § 22-2201, and destruction of property, D.C.Code 1973, § 22-403.1 At trial appellant did not testify but his codefendant did. The court permitted the government, through rebuttal testimony by a police officer, to impeach the codefendant with a confession which, on cross-examination, he had denied making. That hearsay confession implicated appellant. Before trial, the government had apprised the defense and the court that it would use this confession to impeach the codefendant if he took the stand and denied involvement. Appellant's counsel then moved to sever the trials on the ground that the government had "indicated that the statement of the codefendant would be introduced into evidence, and this would be prejudicial." The court denied the motion but later cautioned the jury, prior to closing argument and again before the jury retired, that the confession could be considered only against the codefendant — and only for the purpose of evaluating credibility.

Appellant raises two related issues on appeal. He contends, first, that the trial court abused its discretion in denying his motion to sever. We disagree. A motion to sever for prejudicial joinder is properly denied where, as here, excision of the prejudicial portions of the codefendant's extrajudicial statement is a feasible alternative. In the present case the attempt to sanitize the statement went awry, with the result that an inadmissible, incriminatory reference to appellant came out through the officer's testimony. Appellant's second contention — that, after the attempt at redaction went awry, the trial court committed reversible error in concluding that a limiting instruction was a sufficient corrective — is likewise rejected. We conclude that the instructions adequately ameliorated any prejudice to appellant and affirm.

I

On April 29, 1976, at 5:44 a. m., the silent alarm system of the Peoples Drug Store at 4445 Wisconsin Avenue, N.W., signalled activity. The alarm monitor soon notified the Metropolitan Police Department; Officers Sevilla and Haworth quickly responded. As they approached the area at approximately 5:50 a. m., they observed a man in a dark coat emerge from the alley or entranceway alongside the Masonic Temple, which was adjacent to the drugstore. He proceeded along Wisconsin Avenue. The officers, slowly cruising past the entranceway, spotted two other men looking toward the street. The officers stopped the car and reversed direction. As they reached the entranceway, they saw the same two men begin to run in opposite directions. Officer Sevilla left the vehicle and pursued the maroon-jacketed man northward on foot, while Officer Haworth turned the car southward and drove after the white-jacketed individual.

Although he lost his suspect momentarily, Officer Haworth soon tracked him down, arrested and searched him, and found a ladies' wristwatch still mounted on its velvet holder. The man was later identified as Lawrence Kitching, appellant's codefendant.

Officer Sevilla lost his suspect. Nevertheless, other officers, who had learned from a police "lookout" that one suspect was still at large, soon spotted a person who matched the description running not far from the place where the second suspect had eluded Officer Sevilla. This newly seen individual fled from sight, but he was soon discovered, with the aid of police dogs, lying beneath an azalea bush in the backyard of a house. The arrestee, wearing a dusty maroon jacket, falsely identified himself as Randy Johnson. He offered the explanation that he had been waiting for a bus and had fallen asleep. Later, at the police station, Officer Sevilla identified this suspect as the man who had eluded him. Subsequent identification revealed that the suspect actually was appellant, Elton Carpenter.

While investigating the scene of the crime, police officers discovered near the stairs to the entranceway a green gym bag containing two crowbars, a screwdriver, a roll of tape, and fourteen watches and several radios. When both the Masonic Temple and drugstore proved to be locked, the police began to search for a means of entrance, ultimately discovering a hole in the roof of the Temple (which was accessible by ladder at the rear of the entranceway). Further investigation revealed a flagpole in the Temple in the area beneath the hole, as well as another hole leading from the Temple into the drugstore. There, the radio and wristwatch counter had been rifled and there was evidence the narcotics cabinet had also been disturbed. FBI agents compared debris collected from the tools and codefendant Kitching's clothing with plaster from the burglarized premises and found them quite similar. Examination of appellant's jacket, however, yielded no similar, incriminating evidence.

At trial, appellant introduced no defense evidence. Codefendant Kitching, however, testified, giving a detailed, innocent explanation of his presence in the area. On cross-examination, he denied any participation in the break-in and further denied having made an incriminating statement to the police about his and appellant's entry of the Temple.2 In rebuttal, the government offered Officer Gaine, who had spoken with Kitching at the police station. The officer testified that Kitching had given a statement implicating both himself and appellant in the crimes.3

After conclusion of the government's rebuttal case, during discussion of proposed jury instructions with the court, appellant's counsel, apropos of his pretrial severance motion, moved unsuccessfully for a mistrial based on Officer Gaine's testimony about Kitching's confession implicating appellant. Immediately prior to closing arguments, however, the court admonished the jurors that Kitching's confession could be considered only for impeachment and only in codefendant's Kitching's case.4 Again, in the general charge at the end of trial, the court repeated these instructions and further, referring specifically to the confession, warned the jurors to consider the evidence against each defendant separately.5 The jurors deliberated, then convicted appellant and codefendant Kitching. After sentencing, appellant noted this appeal.

II

We emphasize at the outset that one defendant's out-of-court confession is not admissible against a codefendant. Under the traditional rules of evidence, it constitutes inadmissible hearsay and has no legitimate probative force against the nondeclarant codefendant. Sousa v. United States, D.C.App., 400 A.2d 1036, 1043 (1979); see Bruton v. United States, 391 U.S. 123, 128 n. 3, 88 S.Ct. 1620, 1623 n. 3, 20 L.Ed.2d 476 (1968); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); Jones v. United States, 119 U.S.App.D.C. 284, 287-88, 342 F.2d 863, 866-67 (1964) (en banc); C. McCormick, Evidence § 262, at 631 (2d ed. 1972). As, we noted in Sousa v. United States, supra at 1043, "a fair trial requires that the factfinder determine the issues solely based on relevant and competent evidence as to each party," and accordingly the trial court must take appropriate steps to ensure that a defendant is not prejudiced by testimony of a confessing co-defendant's out-of-court statement. See Bruton v. United States, supra at 131 n. 6, 133-34, 88 S.Ct. at 1625, n. 6, 1626-27; Sousa v. United States, supra at 1043. Furthermore, although a motion to sever is properly made pretrial, once a severance issue is presented the court has a continuing duty to take adequate measures to guard against unfair prejudice from joinder. See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960); Sousa v. United States, supra at 1041; United States v. Leonard, 161 U.S.App.D.C. 36, 46, 494 F.2d 955, 965 (1974); United States v. Wilson, 140 U.S.App.D.C. 220, 225-26, 434 F.2d 494, 499-500 (1970).

III

Appellant urges us to reverse his conviction on the grounds that the trial court abused its discretion under Super.Ct. Cr.R. 14 by failing to grant his motion to sever, with the result that the inadmissible, incriminating reference to appellant's involvement in the burglary was heard by the jury.6 See, e. g., Bittle v. United States, D.C.App., 410 A.2d 1383, 1387 (1980); Sousa v. United States, supra at 1043; Smith v. United States, D.C.App., 312 A.2d 781, 788 (1973); United States v. Lemonakis, 158 U.S.App.D.C. 162, 485 F.2d 941 (1973). We find no abuse of discretion in the trial court's refusal to sever. The record reflects an attempt, whether by the court or the government, to redact the testimony regarding defendant Kitching's statement in order to eliminate any reference to appellant Carpenter.7 Under the applicable rules and case law governing severance, where redaction is feasible, severance may properly be denied.

A

Motions to sever for prejudicial joinder are governed by Super.Ct.Cr.R. 14, which provides:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an...

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