Drew v. United States, 17611.

• Decision Date: 13 February 1964
• Docket Number: No. 17611.,17611.
• Citation: 118 US App. DC 11,331 F.2d 85
• Parties: Nathan L. DREW, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

118 US App. DC 11, 331 F.2d 85 (1964)

Nathan L. DREW, Appellant, v. UNITED STATES of America, Appellee.

No. 17611.

United States Court of Appeals District of Columbia Circuit.

Argued June 18, 1963.

Decided February 13, 1964.

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Mr. Harold Leventhal, Washington, D. C. (appointed by this court), for appellant.

Mr. Robert A. Levetown, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Barry Sidman, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WASHINGTON and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

This is an appeal from a conviction in the District Court on one count of robbery and one count of attempted robbery (22 D.C.Code §§ 2901 and 2902). Appellant moved, both before and at the commencement of trial, to compel separate trials of the two charges; and, after verdict, he moved for a new trial because of prejudice asserted to have occurred in, and by reason of, the joint trial. The failure to grant this relief is said on this appeal to be a source of reversible error.¹

Rule 8(a) of the Federal Rules of Criminal Procedure, set forth in the margin,² provides for permissible joinder of offenses in certain specified cases. Rule 14 provides:

"If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires."³

Thus, even though the joinder is permissible under Rule 8(a), if the defendant makes a timely motion under Rule 14 and shows prejudice, the court should either order an election by the Government or grant separate trials.⁴ Here the joinder in the indictment under Rule 8(a) was permissible since the two crimes are similar in nature. Having in fact been tried together over the timely protest of appellant before, during, and after the trial, our inquiry now is as to whether the trial record indicates sufficient possibility of prejudice by reason of such joinder for trial as to require reversal. We believe that it does.

I

The justification for a liberal rule on joinder of offenses appears to be the economy of a single trial. The argument against joinder is that the defendant may be prejudiced for one or more of the following reasons: (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. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. Thus, in any given case the court must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.

This question has been considered many times by the federal courts, the state courts, and the courts of England.⁵ In Queen v. King, 1897 1 Q.B. 214, 216, Hawkins, J., said:

"* * * I pause here to express my decided opinion that it is a scandal that an accused person should be put to answer such an array of counts containing, as these do, several distinct charges. Though not illegal, it is hardly fair to put a man upon his trial on such an indictment, for it is almost impossible that he should not be grievously prejudiced as regards each one of the charges by the evidence which is being given up on the others."

In Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894), the Supreme Court addressed itself to this problem in the course of holding that a defendant charged in an indictment with four counts involving the murder of two persons on the same day, at the same place, and with the same kind of instrument, was not prejudiced by the joinder, inasmuch as the proof of each crime would have been relevant in a separate trial of the other. The Court, 151 U.S. at pages 403-404, 14 S.Ct. at page 412, 38 L.Ed. 208, said:

"While recognizing as fundamental the principle that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment * * *, and while conceding that regularly or usually an indictment should not include more than one felony, the authorities concur in holding that a joinder in one indictment, * * * of different felonies, at least of the same class or grade, and subject to the same punishment * * * does not, in every case, by reason alone of such joinder, make it the duty of the court, upon motion of the accused, to compel the prosecutor to elect upon what one of the charges he will go to trial. * * * If it be discovered at any time during a trial that the substantial rights of the accused may be prejudiced by a submission to the same jury of more than one distinct charge of felony among two or more of the same class, the court * * * can compel an election by the prosecutor. * *"

In McElroy v. United States, 164 U.S. 76, at 79-80, 17 S.Ct. 31, at 32, 41 L.Ed. 355 (1896), the Court said:

"* * * in our opinion, they the indictments were not for two or more acts or transactions of the same class of crimes or offenses which might be properly joined, because they were substantive offenses, separate and distinct, complete in themselves and independent of each other, committed at different times and not provable by the same evidence. In cases of felony, the multiplication of distinct charges has been considered so objectionable as tending to confound the accused in his defense, or to prejudice him as to his challenges, in the matter of being held out to be habitually criminal, in the distraction of the attention of the jury, or otherwise, that it is the settled rule in England and in many of our States, to confine the indictment to one distinct offense or restrict the evidence to one transaction. * * * We do not think the statute^* authorizes the joinder of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of acts." (Emphasis added.)

Our own court, in Kidwell v. United States, 38 App.D.C. 566, at 570 (1912), said:

"It is doubtful whether separate and distinct felonies, involving different parties, not arising out of the same transaction or dependent upon the same proof, should ever be consolidated. But it should not be permitted where the crimes charged are of such a nature that the jury might regard one as corroborative of the other, when, in fact, no corroboration exists."

Considering our disposition of the present case, we may put aside the question of whether appellant was embarrassed or confounded in presenting his defenses⁶ and turn to the question of whether he was prejudiced by the possibility that the jury used the evidence of the one crime to convict of the other or cumulated the evidence to find guilt under both charges.

II

It is a 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.⁷ Since the likelihood that juries will make such an improper inference is high,⁸ courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.⁹ The same dangers appear to exist when two crimes are joined for trial, and the same principles of prophylaxis are applicable.

Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial.¹⁰ When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value.

If, then, 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. When, for example, the two crimes arose out of a continuing transaction or the same set of events, the evidence would be independently admissible in separate trials. Similarly, if the facts surrounding the two or more crimes on trial show that there is a reasonable probability that the same person committed both crimes due to the concurrence of unusual and distinctive facts relating to the manner in which the crimes were committed,¹¹ the evidence of one would be admissible in the trial of the other to prove identity. 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.¹²

III

The federal courts, including our own, have, however, found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials under the rules just discussed.¹³

This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury's cumulating the evidence is substantially reduced. In the leading case of United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939), Judge Learned Hand said (102 F.2d at p. 36):

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