Ray v. United States, 82-948.

• Decision Date: 31 January 1984
• Docket Number: No. 82-948.,No. 82-967.,82-948.,82-967.
• Citation: 472 A.2d 854
• Parties: Kevin J. RAY, Appellant, v. UNITED STATES, Appellee. Jackson T. ELLERBE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

472 A.2d 854

Kevin J. RAY, Appellant, v. UNITED STATES, Appellee.

Jackson T. ELLERBE, Appellant, v. UNITED STATES, Appellee.

No. 82-948.

No. 82-967.

District of Columbia Court of Appeals.

Argued September 21, 1983.

Decided January 31, 1984.

Prudence Bushnell, Bethesda, appointed by the court, with whom Jeffrey Lee Greenspan, Washington, D.C., was on the brief, for appellant Ray.

Richard J. Toth, Washington, D.C., for appellant Ellerbe.

Terence J. Keeney, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, Michael W. Farrell, John R. Fisher, and Steven C. Tabackman, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

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

BELSON, Associate Judge:

Appellants each were convicted of two counts of robbery, D.C.Code § 22-2901 (1981), one count of second-degree burglary, id. § 22-1801(b), and one count of destruction of property, id. § 22-403. The two robbery counts arose out of a single occurrence. The destruction of property count and the burglary count (hereinafter together referred to as "burglary counts") arose out of a second occurrence. Both defendants and all four counts were tried together. Appellants contend before this court that there was a misjoinder of the charges arising out of the respective occurrences, and that the court erred in denying their motion to sever offenses. We conclude that although it was proper to try Ellerbe and Ray jointly, the joinder of the two robbery counts with the burglary counts constituted reversible error.¹

The robberies occurred at about 12:30 p.m. on January 22, 1982, on 15th Place, S.E. Complainants Anthony McClain and Montgomery Foullard were walking to school when Ray and Ellerbe approached them. The four were acquainted, though the evidence differed on how well. Ray threatened McClain and took his new coat. Ellerbe struck Foullard and took his coat. Appellants left their own coats with the two young men, telling them to come to a bus stop later in the afternoon to re-exchange the coats. Their defense to the robbery charge was that the coat exchange was not a taking by force but a voluntary, temporary trade among friends.

Ray and Ellerbe testified that they spent the rest of the day together and went to a party that night. At 4:00 a.m. on January 23, about 15 hours after the robbery, the incident giving rise to the burglary counts occurred. Police officers received a radio call when the burglary alarm of a gas station at 2510 Pennsylvania Avenue, S.E., sounded. When police arrived at the station, they found Ray opening the garage bay door and Ellerbe inside the garage with merchandise in his arms. The police arrested both as they tried to flee. Ray and Ellerbe were wearing McClain's and Foullard's coats at the time of the arrest.

Appellants were convicted of all charges after a joint trial. On appeal, we address the question whether the charges against them were properly joined for trial. A challenge to joinder may give rise to two stages of inquiry. The first concerns whether it was correct initially to join the defendants and charges in a single indictment. This implicates Super.Ct.Crim.R. 8,² which authorizes a court to join multiple offenses or defendants if the offenses or defendants are linked in specified ways. The second stage concerns relief from prejudicial joinder and implicates Super.Ct. Crim.R. 14.³ Even if offenses or defendants are properly joined under Rule 8, a court can sever the offenses or defendants for multiple trials if joinder prejudices any party.

The standard for appellate review of an assertion of error under Rule 8 differs from the standard under Rule 14. Misjoinder under Rule 8 is an error of law. Thus, the appellate court subjects the trial court's Rule 8 decision to de novo review. See Samuels v. United States, 385 A.2d 16, 18 (D.C.1978). Accord United States v. Jackson, 183 U.S.App.D.C. 270, 278 n. 10, 562 F.2d 789, 797 n. 10 (1977). Rule 14 severance for prejudice, on the other hand, is committed to the sound discretion of the trial court. This court will not reverse except for abuse of discretion. Johnson v. United States, 398 A.2d 354, 367 (D.C.1979); Samuels, supra, 385 A.2d at 18.

There are distinctions within Rule 8 as well as between Rules 8 and 14. Rule 8(a) allows joinder of different offenses committed by one defendant. Rule 8(b) controls joinder in any case that involves more than one defendant, whether the issue is joinder of defendants or joinder of offenses. Cupo v. United States, 123 U.S. App.D.C. 324, 326-27, 359 F.2d 990, 992-93 (1966), cert. denied, 385 U.S. 1013, 87 S.Ct. 723, 17 L.Ed.2d 549 (1967); Davis v. United States, 367 A.2d 1254, 1260 & n. 9 (D.C. 1976), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 114 (1977). The headings of the subsections of Rule 8 do not make this distinction clear. Rule 8(a) is labeled "joinder of offenses" and 8(b) is labeled "joinder of defendants." But the weight of authority in this jurisdiction and in the federal circuits supports the application of 8(b) to both joinder of offenses and joinder of defendants in any multiple defendant case. E.g., Sousa v. United States, 400 A.2d 1036, 1040 (D.C.), cert. denied, 444 U.S. 981, 100 S.Ct. 484, 62 L.Ed.2d 408 (1979) (applying 8(b) to joinder of several offenses committed by several defendants); United States v. Jackson, supra, 183 U.S.App.D.C. at 274-75, 562 F.2d at 793-94 (two defendants, two offenses, under 8(b)). Application of the proper subsection of Rule 8 may be consequential because Rule 8(a) joinder is more liberal than Rule 8(b) joinder: under 8(a), offenses may be joined if they are either similar in character or based on the same act or transaction, whereas under Rule 8(b), offenses may be joined only if they are based on the same act or transaction or series of acts or transactions.

In the instant case, Ray and Ellerbe were tried together. Rule 8(b) therefore controls joinder.⁴ Appellants have never asserted that they should have been tried separately. They argue on appeal only that the robbery counts should not have been tried jointly with the burglary counts.⁵ We agree and hold that joinder of the robbery counts with the burglary counts violated Rule 8(b).⁶ The two crimes were not parts of one series of acts.

Davis, supra, 367 A.2d at 1261-62, sets out three categories of cases in which joinder generally has been permitted under Rule 8(b)⁷: (1) cases in which the offenses are committed to achieve a specific common end; (2) cases in which one offense leads logically to the other, and (3) cases in which the offenses are part of a common scheme and are so closely connected in time and place that necessarily proof of the two crimes overlaps substantially.

The robbery and burglary offenses before us do not fall into any of these three categories. As to the first, the government argues that both offenses were directed toward the common goal of obtaining property from others. We believe this goal is too broad to unite the offenses. Under the government's rationale, any two property crimes, no matter how different or how distant in time, could be joined. Davis emphasizes that the common goal must be "specific" and explains further that offenses within the first of the above three categories should depend for their furtherance or success on each other. Davis, supra, 367 A.2d at 1263. The robbery and burglary in this case did not in any way depend on each other for success.

As to the second factor, there is no evidence that the robbery "necessarily led to or caused" the burglary. Id. The second crime simply was not shown to have led logically from the first.

The third factor emphasizes overlap of proof between the two offenses. The overlap must be "substantial" and "necessary." Id. The government argues that the evidence here overlapped in two ways. First, the fact that Ray and Ellerbe were wearing the stolen coats at the time of the burglary could be introduced at a separate robbery trial to prove Ray and Ellerbe did not intend to return the coats. This would undermine the defendants' robbery defense. To prove that, however, the government would need only to introduce evidence that appellants were seen wearing the coats 15 hours after the robbery. Proof of all the surrounding facts of the burglary would be entirely unnecessary. The overlap in this regard was insubstantial.

The second area of possible overlap of evidence is again related to intent: the government argues that evidence of the earlier robbery could help show appellants' intent to steal from the gas station, and so could meet their defense that they were at the station for innocent purposes. When two crimes are as dissimilar as these, however, at best a weak inference of intent to commit the later offense arises from commission of the earlier. There was a good deal of independent evidence of intent to steal from the gas station: the police found Ellerbe with merchandise in his arms; there was evidence that Ray tried to force the garage door open, and both Ray and Ellerbe attempted to flee the scene. In these circumstances we think that the evidence from the robbery would not "substantially" or "necessarily" overlap with that of the burglary, as Davis demands. Indeed, if the burglary were tried separately, evidence of the earlier robbery would be more prejudicial than probative.

Finally, even if there was some small overlap of evidence, separating the presentation of proof of one crime from that of the other was here very easy. One crime was stealing coats from acquaintances, the other breaking into an empty gas station. Davis states that in order for a case to come within category (3), separation of the proof of the offenses must be difficult. 367 A.2d at 1262.

The final question is whether the misjoinder under 8(b) was harmless error. There is some disagreement on whether the harmless...