Kramer v. United States

• Decision Date: 24 January 1963
• Docket Number: No. 17293.,17293.
• Citation: 115 US App. DC 50,317 F.2d 114
• Parties: Donald KRAMER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

115 US App. DC 50, 317 F.2d 114 (1963)

Donald KRAMER, Appellant, v. UNITED STATES of America, Appellee.

No. 17293.

United States Court of Appeals District of Columbia Circuit.

Argued December 14, 1962.

Decided January 24, 1963.

Mr. William R. Perlik, Washington, D. C., (appointed by this court), for appellant.

Mr. Tim Murphy, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Frank Q. Nebeker and Arthur J. McLaughlin, Asst. U. S. Attys., were on the brief, for appellee.

Before FAHY and BASTIAN, Circuit Judges, and BELL, Circuit Judge for the Fourth Circuit.^*

FAHY, Circuit Judge.

Appellant and his co-defendant Dewdney were jointly indicted and tried for housebreaking, Section 22-1801, D.C. Code. Dewdney was convicted and did not appeal. Appellant, also convicted on circumstantial and hearsay evidence, brings this appeal. From the circumstantial evidence the jury, although by no means obliged to do so, could have found that appellant acted as a lookout for Dewdney, who entered the premises, and was accordingly an accessory liable as a principal under Section 22-105.¹ The circumstantial evidence included testimony that appellant was seen walking back and forth in an alley in the rear of the house, although at the time of the actual break-in he had gone some distance away from the premises. Whether or not the jury would have convicted appellant on the circumstantial evidence we cannot say; for in addition they were permitted to hear damaging hearsay evidence in the circumstances now to be related.

With the jury excluded, following proper trial practice,² the court heard testimony regarding a confession made by Dewdney to Officer Chambers of the Metropolitan Police Department. The officer testified that Dewdney approached him, wanting to talk with him about the case at the time the officer was going to appear before the Grand Jury. The officer testified about the conversation as follows:

"I said, `what happened,\' and I said, `Did you do this, did you go in his home that night?\' And he said `yes.\' "I said: `Was Kramer with you?\'

He said, `Yes.'"

Counsel for appellant Kramer stated to the court before the jury was recalled: "If he the officer is going to testify, I don't think it is admissible against Kramer, that whole matter of the alleged crime." The court said it would only be admissible against Dewdney.

When the trial resumed before the jury Officer Chambers was examined by the Assistant United States Attorney as follows:

"Q. All right; * * * tell us under what circumstances you saw the defendant John Dewdney on June 26th?

"A. I was out in the hallway down below the Grand Jury room and John Dewdney came up to me and wanted to talk to me.

* * * * * * *

"Q. What did he say in reference, if anything, to what happened on May 26, 1961? A. I asked him: `What did you want, John?\'

"And Mr. Dewdney, he said, `I want to talk to you about this case.\'

"And I said: `Why don\'t you talk to me, and he said that he was sorry about it, because he knows Mr. Watson whose house was entered for so long.\'

"So I said: `Well, did you do it?\' and he said, `Yes.\'

"I said: `Was Kramer with you on it?\' And he said, `Yes.\'"

At the conclusion of the Officer's direct testimony the court advised the jury:

"Anything that was said by the defendant about the defendant Kramer, outside the presence of Kramer, is not admissible as evidence against Kramer, because he was not in a position to either deny the statement which allegedly was made against him, or affirm it, so you will have to disregard anything that was said by the defendant regarding Kramer as against the defendant Kramer."

What Officer Chambers testified Dewdney said to him about appellant Kramer being with him in the house-breaking was pure hearsay as to Kramer and could be received against him only in violation of an elementary rule of evidence. Since it was not admissible against Kramer and was no essential part whatever of Dewdney's own confession of guilt it was not admissible at all. Yet we are urged to disregard this inadmissible and damaging hearsay evidence because, it is said, Kramer's counsel did not make adequate objection. As we have seen he did object that Dewdney's confession could not be considered against appellant. And the court in advising the jury to that effect did so in language, quoted above, which shows the court understood that counsel was objecting to what Dewdney said about appellant. Be that as it may, neither the Assistant United States Attorney nor the court took steps to prevent the officer from repeating on the witness stand the hearsay statement by Dewdney indicating appellant's guilt, which had been clearly disclosed when the jury was not present and when the admissibility of Dewdney's own confession was being inquired into. When the trial was resumed before the jury the question and answer about Kramer's participation should have been omitted. The Assistant United States Attorney who elicited the testimony is an experienced prosecutor. Though the possibility of an oversight on his part may not be excluded it is hardly likely that he was ignorant of the hearsay character of the officer's statement of what Dewdney said to the officer about Kramer. He could readily have refrained from eliciting this hearsay evidence of which he had been made aware when the jury was not present. He was not taken by surprise, and, as we have said, Dewdney's reference to Kramer was no part of and in no manner inseparably intertwined with Dewdney's own admission of guilt. Compare Delli Paoli v. United States, 352 U.S. 232, 237, 77 S.Ct. 294, 1 L.Ed.2d 278, where the impracticality of deletion of a confessor's reference to his co-defendant was accepted by the court.

The trial judge in our case as well as the prosecuting attorney could have taken steps to protect the trial from this inadmissible hearsay evidence.

The suggestion that in the above circumstances the admission of the evidence must be overlooked because of trial tactics of defense counsel, for which the accused must bear the consequence, with its implication that the experienced prosecutor and the trial court were misled, is unacceptable to us. We are unwilling to decide the case on the supposition that defense counsel somehow for Kramer's ends misled the prosecution and the court in a matter which fell within their own responsibility as well as his. To do so would be unjust not only to defense counsel and the appellant but also to the experienced prosecutor and the able trial judge.

Our decision implies no criticism of the trial judge. The course to be taken at a trial is not always clear. On appeal, where there is opportunity for deliberation and reflection, the correct course is sometimes more readily apparent than when a prompt ruling is required during a trial. Appellate review in this case clearly leads to the conclusion that the officer's recitation before the jury of what Dewdney said to him about Kramer's participation should not have been allowed. It was pure hearsay and seriously prejudicial.

We do not pass upon the claim of error in the judge's omission in his final instructions to the jury to warn against giving regard to anything Dewdney said in his confession about Kramer. We note that Kramer's counsel expressed his satisfaction with the instructions. Our decision turns on the admission itself of the hearsay evidence at the instance of the prosecution in circumstances which would readily have permitted the court to avoid injection of this evidence into the trial. In this situation and with the other evidence leaving the issue of guilt in doubt, we need not speculate whether the warning given to the jury to disregard the evidence was sufficient to overcome the harmful effect of the officer's hearsay recitation on the stand of Dewdney's accusation of Kramer. We do not read either Delli Paoli v. United States, supra, or Robinson v. United States, 93 U.S.App.D.C. 347, 210 F.2d 29 (1954), as requiring a different result.

The better rule is that when deletion of the hearsay reference to a co-defendant is feasible, as it was in our case, an instruction by the court that the jury disregard the reference is not an adequate substitute for deletion. It is preferable to avoid altogether the risk that the jury will be unable to put out of mind damaging evidence it has heard from the witness stand.³ United States v. Jacangelo, 281 F.2d 574 (3d Cir., 1960); United States v. Gordon, 253 F. 2d 177 (7th Cir., 1958); United States v. Sansone, 206 F.2d 86 (2d Cir., 1953); Mora v. United States, 190 F.2d 749 (5th Cir., 1951).

Reversed.

BASTIAN, Circuit Judge (dissenting).

I think the judgment of conviction should be affirmed. At the outset, I emphatically disagree that, as the majority states, appellant was convicted even in part on "hearsay evidence." In any event, the so-called hearsay evidence was never admitted against appellant.

Kramer and one Dewdney were jointly indicted, tried and convicted of the crime of housebreaking. The testimony indicated that Dewdney actually broke and entered the dwelling of one Watson, and that Kramer was the "lookout." Kramer's car was used by them to get to the Watson house and was parked a short distance from the front of the dwelling. The testimony also indicated that Kramer was in the alley at the rear, watching the house. Dewdney attempted to pry open the front door of the house without success. He then went to the rear (where Kramer was walking up and down), broke a glass in the rear door, and entered. He fled when he discovered there was an armed person in the house waiting for him, but was later apprehended. Kramer was seen shortly after Dewdney had fled, and was captured some distance away. He had made no attempt to enter his car; in fact, he was walking away from it.

The appeal relates essentially to statements made by Dewdney out of the presence of Kramer. Chambers (the police officer who had made the arrest) testified...