Clark v. United States, 10097.

• Decision Date: 10 December 1976
• Docket Number: No. 10097.,10097.
• Citation: 367 A.2d 158
• Parties: Charlie M. CLARK, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

367 A.2d 158

Charlie M. CLARK, Appellant, v. UNITED STATES, Appellee.

No. 10097.

District of Columbia Court of Appeals.

Submitted September 22, 1976.

Decided December 10, 1976.

Wallace E. Shipp, Jr., Columbia, Md., appointed by the court, for appellant.

Earl J. Silbert, U. S. Atty., Washington, D. C., with whom John A. Terry, William D. Pease, William J. Hardy and C. Madison Brewer, Asst. U. S. Attys., Washington, D. C., were on the brief for appellee.

Before KELLY, NEBEKER and MACK, Associate Judges.

PER CURIAM:

On this appeal from a jury conviction of armed robbery, D.C.Code 1973, §§ 22-2901, -3202, appellant protests the joinder of his trial with that of his codefendant Robert L. Hawkins in the face of a proffer that antagonistic defenses were anticipated as to each defendant. He also alleges as error the denial of his pretrial motion to suppress identification testimony.¹

On July 13, 1974, Officer John J. Mc-Carthy, an undercover narcotics officer, parked his car near 14th and I Streets, N. W., in this city. In the course of his duties, the officer ran into David A. Graham and Robert L. Hawkins, members of the Marine Corps stationed at Quantico, Virginia. As the trio conversed about narcotics, appellant Clark joined them. The four men then got into McCarthy's car and drove to a parking lot in the 1200 block of 12th Street, N.W., ostensibly to purchase drugs. Graham was in the front passenger seat; appellant and Hawkins were in the rear. Once at the lot, appellant pointed a revolver at McCarthy's head and demanded his money. McCarthy gave up his money and the three passengers then fled.

Appellant, Graham, and Hawkins were charged with robbery while armed, D.C. Code 1973, §§ 22-2901, -3202; robbery, D. C.Code 1973, § 22-2901; and assault with a dangerous weapon, D.C.Code 1973, § 22-502. Counsel for Hawkins successfully moved pretrial for a severance on the ground that he wished to call codefendant Graham as his witness.² Thereafter, however, Graham entered a plea of guilty to attempted robbery. The government then moved that the Hawkins and Clark cases be rejoined for trial, and the motion was granted over Hawkins' objection that not only did he now wish to call appellant as a witness in his behalf but also that his own testimony might incriminate appellant Clark. The court indicated that should the latter event materialize it could always sever the cases again and appellant's counsel announced that he was satisfied with this approach. Hawkins renewed his motion at trial again on grounds that appellant's testimony would exculpate him and that their defenses were antagonistic. Appellant declared that he would not testify at this trial but that he would be perfectly willing to do so at a separate trial. The codefendants continued unsuccessfully to seek severance during the trial.³

At the joint trial, both Hawkins and Graham denied having prior knowledge of the robbery and testified that appellant Clark was acting entirely alone. Appellant neither testified nor offered any evidence in his own behalf. He was convicted by the jury of armed robbery. His codefendant Hawkins was acquitted.

It is, of course, settled that a trial judge has extremely wide latitude in granting or denying a motion for severance, United States v. Robinson, 139 U.S.App. D.C. 286, 289, 432 F.2d 1348, 1351 (1970), and that a denial of such a motion will not be disturbed on appeal absent a showing of a clear abuse of discretion. United States v. Wilson, 140 U.S.App.D.C. 220, 434 F.2d 494 (1970). Appellant nevertheless argues that because he and Hawkins had allegedly antagonistic defenses the decision in Rhone v. United States, 125 U.S.App.D.C. 47, 365 F.2d 980 (1966), required separate trials. We do not agree. In Rhone it was said that prejudice from joinder requiring reversal exists when

. . . the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty . . . .

[Id. at 48, 365 F.2d at 981.]

Later cases emphasize the quoted word "alone" in determining whether conflicting defenses show a misjoinder. See, e. g., United States v. Hurt, 155 U.S.App. D.C. 217, 222, 476 F.2d 1164, 1169 (1973). Simply because one codefendant testifies and the other does not is an insufficient showing of prejudice to warrant reversal. Turner v. United States, D.C.App...