Johnson v. United States

• Decision Date: 31 January 1979
• Citation: 398 A.2d 354
• Parties: James W. JOHNSON, Jr. (No. 11752), Darrone J. Sampson (No. 11755), Fred L. Smith (No. 11765), and Gene E. George (No. 11832), Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

398 A.2d 354

James W. JOHNSON, Jr. (No. 11752), Darrone J. Sampson (No. 11755), Fred L. Smith (No. 11765), and Gene E. George (No. 11832), Appellants, v. UNITED STATES, Appellee.

District of Columbia Court of Appeals.

Argued April 13, 1978.

Decided January 31, 1979.

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Robert P. Mosteller, Public Defender Service, Washington, D. C., for appellant Smith.

James R. Klimaski, Washington, D. C., appointed by this court, with whom David W. Brinkman, Washington, D. C., appointed by this court, was on the brief, for appellants Johnson and George.

Donald E. Cope, Washington, D. C., filed a brief for appellant Sampson.

Noel Anketell Kramer, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry and Michael W. Farrell, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

NEWMAN, Chief Judge:

Appellants, seeking reversal of their convictions for kidnapping, robbery, sodomy, assault, and attempted murder, advance numerous claims of reversible error. Concluding that the trial court committed reversible error in denying appellants' motions for severance, we need not — and thus, do not — consider their other contentions with one exception.¹ In section I we set forth the relevant evidence and trial court proceedings. In section II we discuss the nature of those determinations committed to the trial court's discretion and reviewable for abuse of its exercise. In addition, we analyze the nature of an appellate court's review to determine whether the trial court's exercise of discretion was proper. In section III we discuss briefly the law concerning the severance of trials of jointly-charged defendants, and in section IV we apply the principles enunciated in sections II and III to the instant case. We reverse.

I.

A.

The evidence viewed in its light most favorable to the government, showed that on January 22, 1976, at about 5:30 p. m., Rene Fletcher received a phone call from Marshall Yancy asking her to come to his apartment to help his sister move. She agreed and arrived between 6:00 and 6:30. She had known Yancy and his roommate, Melvin Newton, (who was there when she arrived) for several months. Yancy told Fletcher that his sister would be there soon, and he left the apartment, purportedly to do some laundry. About ten minutes after Yancy returned, Darrone Sampson, Gene George, James Johnson, and Fred Smith arrived. Fletcher had known Sampson and Smith for about two years; she had seen the others several times in the previous few months. The group apparently believed that Fletcher knew the identity of several men who had robbed Johnson the night before, and they demanded that she reveal their names. When she failed to comply, they ordered her to take off her clothes. Feeling threatened, she did so.

Fletcher was forced into the bathroom where some of the appellants physically and sexually abused her. George pushed her head under water and then beat her across the face with a coat hanger. He suggested killing her with an overdose of drugs, but this idea was abandoned because no one had any drugs. Sampson cut her across the breast and thigh. She was forced to fellate Johnson who slapped her several times afterwards.

Fletcher was then allowed to dress. Sampson tied her hands, she was gagged, and a window in Yancy's fifth-floor apartment was opened. Sampson and another man took her to the open window and pushed her half way out. When she screamed, she was brought back inside.

Appellants conferred among themselves for a time. When they finished, Sampson threw Fletcher her coat. When appellants were ready to leave the apartment, Fletcher asked that her personal property be returned, but she was told that her property now belonged to Johnson who was given three dollars of her money. Yancy and Newton remained in the apartment while the other four took Fletcher down the stairs to where Sampson's van was parked. They drove to 14th and U Streets to look for Johnson's robbers, but Fletcher failed to identify anyone. She was then driven to the southwest section of the city.

Sampson stopped the van at Haines Point and parked next to the Potomac River. The side door of the van was opened and Sampson kicked Fletcher in the face. Sampson and George dragged her from the van and, with her hands still tied behind her back, threw her over the railing into the water. The river was covered with a thin crust of ice. After some struggling she was able to free her hands, but she was unable to pull herself out because of the ice and the ache in her hands. More than half-an-hour later, around 10:00 p. m., she managed to attract the attention of some motorists who had stopped nearby.

B.

On March 10, 1976, the six men were charged in a ten-count indictment with kidnapping while armed (D.C.Code 1973, §§ 22-2101, -3202); kidnapping (D.C.Code 1973, § 22-2101); armed robbery (D.C.Code 1973, §§ 22-2901, -3202); robbery (D.C. Code 1973, § 22-2901); assault with intent to kill while armed (D.C.Code 1973, §§ 22-501, -3202); assault with intent to kill (D.C. Code 1973, § 22-501); two counts of assault with a dangerous weapon (D.C.Code 1973, § 22-502); and sodomy (D.C.Code 1973, § 22-3502).²

Prior to the jury being selected, the trial court learned that Sampson allegedly had threatened his codefendant, Yancy. These threats were in anticipation that Yancy's testimony in his own defense would admit his presence at the apartment and would place Sampson there, thus directly contradicting Sampson's alibi defense. The court conducted a hearing, concluded that such a threat had been made, and revoked Sampson's bond. All the appellants, except Sampson, thereupon moved for severance based on two grounds — conflicting defenses and manifest antagonism among appellants. The court denied these motions.³ Part of the exchange between counsel and the court went as follows:

[COUNSEL]: Your Honor, I would like at this time to make a motion for severance on these grounds: Number one; there are — an apparent Bruton problem lies. I understand certain statements —

THE COURT: I understand the Government is not going to use the statements as part of its case in chief.

[COUNSEL]: Maybe they're not, but —

[ASSISTANT UNITED STATES ATTORNEY]: We're not going to use that. We've advised counsel.

THE COURT: All right.

[COUNSEL]: Number two; as I gather, two of the recipients of this threat may or may not testify, which would give conflicting defenses.

THE COURT: So —

[COUNSEL]: Well, which would clearly be, if there's a case justifying a severance —

THE COURT: No.

[COUNSEL]: — we ask where there is a situation, for example, "A" says he was there, comes in and constructs an alibi, and "B" says, "No, I wasn't there, I didn't see them." I think it's perfectly valid grounds at this time for a severance.

THE COURT: Denied.

[COUNSEL]: In addition, third ground: Clearly, in light of these allegations, there's going to be hostility between the defendants. I think, in the interest of justice, to provide my client with a fair trial —

THE COURT: I think justice dictates that they stay together.

[COUNSEL]: Well, my problem is this, Your Honor —

THE COURT: It may be your problem; it's not mine, . . . . Your motion is denied. It's on the record.

[COUNSEL]: May I just finish, sir?

THE COURT: No; I've heard enough.

[COUNSEL]: May I ask the Court this, then?

THE COURT: No; don't ask me questions. I just ruled.

[COUNSEL]: Well, what it's going to be —

THE COURT: [Counsel], it's going to be a difficult one. They could hate each other down there, but they'll all stand together and they'll all be tried together. Their problem as to whether they're going to take the stand or not is their situation.

After the jury was sworn and the government made its opening statement, Yancy's counsel made an opening statement. His defense, as outlined by counsel, was that although Yancy was present during the time of the commission of at least some of the offenses charged as were Fletcher, Newton, and "some other individuals," he was personally innocent of any crime. At the conclusion of that opening statement, a bench conference occurred during which all appellants joined in a motion for severance which was denied as to all of them. The following exchange between counsel and the court occurred:

[COUNSEL]: Your Honor, based on [counsel for Yancy's] statements of what his defense would be, I would move for a mistrial as to Mr. George and a severance because it's clearly apparent that you are going to have inconsistent defense. There's no way my client, Mr. George, can get a fair trial when [Yancy's] defense, in essence, makes him a second prosecutor against Mr. George when the statement clearly supports everything that the Government says.

THE COURT: I suggest that's why you prosecute two people caught in the automobile at the same time. One hangs the other.

Denied.

The government presented its case, and at its close the court denied all motions for acquittal. At that point defendants Smith and Newton rested their cases.

Defendant Johnson offered an alibi defense involving himself, and defendants Sampson, George, and Smith. Defendants Sampson and George offered evidence consistent with this theory of defense. When Yancy took the stand defense counsel stated:

[COUNSEL]: Your Honor, just for the record, it's this witness' testimony that I think shows why all of us were requesting a severance —

THE COURT: And that's why they should be tried together, more than ever.

Yancy's account of the events was similar to that presented in the government's evidence, although he averred that his role in the general proceedings was minor and that he took no steps to inflict harm upon the victim. He also testified that when Sampson, Smith, George, and Johnson left the apartment with the victim there was...