Dunaway v. United States

• Decision Date: 04 June 1953
• Docket Number: 11468.,No. 11467,11467
• Citation: 92 US App. DC 299,205 F.2d 23
• Parties: DUNAWAY v. UNITED STATES.
• Court: U.S. Court of Appeals — District of Columbia Circuit

92 US App. DC 299, 205 F.2d 23 (1953)

DUNAWAY v. UNITED STATES.

Nos. 11467, 11468.

United States Court of Appeals District of Columbia Circuit.

Argued March 27, 1953.

Decided June 4, 1953.

Mr. Herbert S. Marks, Washington, D. C., with whom Mr. Sidney S. Sachs, Washington, D. C. (both of whom were appointed by this Court) and Mr. Dexter M. Kohn, Washington, D. C., were on the brief, for appellant.

Mr. E. Riley Casey, Asst. U. S. Atty., with whom Messrs. Charles M. Irelan, U. S. Atty. at the time of argument, William S. McKinley, Asst. U. S. Atty., and William R. Glendon, Asst. U. S. Atty. at the time of argument, were on the brief, for appellee. Messrs. Leo A. Rover, U. S. Atty. and Joseph M. Howard, Asst. U. S. Atty. at the time the record was filed, also entered appearances for appellee.

Before EDGERTON, CLARK, and FAHY, Circuit Judges.

FAHY, Circuit Judge.

The appeal claims reversible error due to the consolidation in one trial of three separate indictments against one defendant, the appellant. Each indictment charged housebreaking on a different day and at a different place. Two of the indictments contained additional counts charging larceny at the place alleged in the related housebreaking count to have been entered. At the end of all the testimony the court directed acquittals on the larceny counts because of inadequate evidence. The jury acquitted defendant of one charge of housebreaking and convicted of the other two. For convenience we shall refer to this acquittal as the non-fingerprint case and to the other two, resulting in convictions, as the fingerprint cases. Differences in evidence make these descriptions appropriate.

The consolidation, made on motion of the Government when the cases were called for trial, was then objected to by accused as prejudicial in that the offenses were not alleged to have been committed on the same day.¹ Being of the same or similar character their consolidation was nevertheless permissible under the literal language of Rule 13, Fed.R.Crim.P.,² read with Rule 8(a), 18 U.S.C.A.³ Smith v. United States, 1950, 86 U.S.App.D.C. 195, 180 F.2d 775. But the requirements of Rule 14 must also be met; this Rule provides

"If it appears that a defendant * * * is prejudiced by * * * joinder for trial together, the court may order an election or separate trials of counts * * * or provide whatever other relief justice requires."⁴

Therefore, if because of the consolidation prejudice developed and was not cured by requiring an election or by other relief, material error afflicted the trial. Prejudice has consistently been held to occur when consolidation embarrasses or confounds an accused in making his defense. Pointer v. United States, 1894, 151 U.S. 396, 403, 14 S.Ct. 410, 38 L.Ed. 208; Kidwell v. United States, 1912, 38 App.D.C. 566, 570. See, also, McElroy v. United States, 1896, 164 U.S. 76, 78, 17 S.Ct. 31, 41 L.Ed. 355.⁵ Though more than one defendant was involved in the McElroy case the Supreme Court in considering the general subject said that where the accused is deprived of a substantial right the error is revisable, adding,

"* * * even if the defendants are the same in all the indictments consolidated, we do not think the statute Rev.Stat. § 1024 authorizes the joinder of distinct felonies, not provable by the same evidence and in no sense resulting from the same series of acts.

"Under the third clause relating to several charges `for two or more acts or transactions of the same class of crimes or offenses,\' it is only when they `may be properly joined\' that the joinder is permitted, the statute thus leaving it for the court to determine whether in any given case a joinder of two or more offenses in one indictment against the same person `is consistent with the settled principles of criminal law,\' as stated in Pointer\'s case Pointer v. U. S., 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208." 164 U.S. at page 80, 17 S.Ct. at page 32.

On appellate review after trial the courts have hesitated to interfere with the discretion exercised by the trial court. Cataneo v. United States, 4 Cir., 1948, 167 F.2d 820, 823. But in the case cited the appellate court considered that there was but one "transaction" involved in the offenses tried together, unlike the situation before us. And see McNeil v. United States, 1936, 66 App.D.C. 199, 85 F.2d 698. In Rakes v. United States, 4 Cir., 1948, 169 F.2d 739 (opinion by Prettyman, J.), certiorari denied, 335 U.S. 826, 69 S.Ct. 51, 93 L.Ed. 380, the several offenses were said to be based on transactions constituting parts of a common plan, also presenting a different situation. In United States v. Silverman, 3 Cir., 1939, 106 F.2d 750, 752, decided under Rev.Stat. § 1024, it was said,

"The prescription `which may properly be joined\' brings into action no rule of thumb, but rather the sound discretion of the trial court exercised to prevent undue prejudice to the accused";

but the court pointed out that appellant did not at any time feel sufficiently "confounded in his defense" to request the court to compel an election. In United States v. Perlstein, 3 Cir., 1941, 120 F.2d 276, 281, the rule is again stated in terms of a discretion guided by whether the jury would be confused by multiplicity of charges and defendant "embarrassed in his defense". Two conspiracies tried together occupied distinct periods of time. The court, finding the evidence as to one to be irrelevant as to the other, said this might well have justified the trial court in holding the joinder improper, but added that the point had lost its force because the jury evidently were not confused, having acquitted of one conspiracy and convicted of the other.⁶ In United States v. Lotsch, 2 Cir., 1939, 102 F.2d 35, 36, heavily relied upon by the United States, the criterion governing discretion was stated as whether "the trial as a whole may * * * become too confused for the jury", the court indicating that two or more transactions of the same class could be joined "properly" the word then used in Rev.Stat. § 1024, if the "defendant can be fairly tried on all the charges at once", a decision resting "in the discretion of the trial judge."

Whether the criteria are stated in terms of deprivation of a substantial right, or of embarrassing or confounding the making of a proper defense, or more generally in terms of whether a defendant can be fairly tried on one or more charges at once, the principles thus expressed place boundaries, though imprecise, to the discretion of the trial judge. The rule in this jurisdiction leans upon Kidwell v. United States, supra, where the court strongly discountenanced joinder for trial of two or more distinct felonies, though of the same class, alleged to have been committed at different times and places, not part of a common plan, and not dependent upon the same proof. The court below in the present case accordingly would have been justified in refusing to consolidate the distinct and separate charges contained in the three housebreaking counts.⁷ But in deciding whether new trials should be awarded now we must review the record, as indicated in United States v. Perlstein, supra, in the light of what actually occurred after the consolidated trials went forward, not merely in terms of what might have been a proper course for the court to have pursued when the motions respecting consolidation were made.

When the Government had presented its proof in the non-fingerprint case the accused requested⁸ the court to reconsider the consolidation, stating, as we interpret his position, that it would be advisable for him to take the stand in that case in order to explain his presence at or near the scene of the alleged crime; whereas in the other two cases in which, as it turned out, the Government rested primarily upon evidence of his fingerprints found in the premises, it might be unwise for him to testify. The request was denied. The prosecution completed its evidence in support of all three indictments. Defendant then took the stand and testified without limitation. The case...