Sousa v. United States, 10478.
| Decision Date | 16 March 1979 |
| Docket Number | No. 10511.,No. 10714.,No. 10772.,No. 10478.,10478.,10511.,10714.,10772. |
| Citation | 400 A.2d 1036 |
| Parties | Joseph SOUSA (No. 10478), Joseph W. Eastridge (No. 10511), Richard C. Richter (No. 10714), and Michael A. Diamen, a/k/a Salvatore M. Infantolino (No. 10772), Appellants, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
John E. Kilcarr, Arlington, Va., for appellant Diamen.
E. Thomas Roberts, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., John A. Terry, Joseph Guerrieri, Jr., and Martin J. Linsky, Asst. U. S. Attys., Washington, D. C., were on brief, for appellee.
Before NEWMAN, Chief Judge, GAL-LAGHER, Associate Judge, and PRYOR, Associate Judge, Superior Court of the District of Columbia.*
Appellants Sousa, Eastridge, and Diamen were tried by a jury and found guilty of first-degree murder while armed, D.C.Code 1973, §§ 22-2401 & -3202. Appellant Richter, at the same trial, was found guilty of two counts of assault with a dangerous weapon, D.C.Code 1973, § 22-502, and carrying a dangerous weapon, D.C.Code 1973, § 22-3204.
Appellants raise a number of contentions on appeal. We deem it appropriate to address in detail only those pertaining to joinder and severance, and the sufficiency of the evidence as to appellant Richter. Finding an abuse of discretion in the trial court's refusal to sever the assault and carrying a dangerous weapon charges against appellant Richter from the murder charges against the remaining appellants, and finding that the evidence was insufficient to sustain one of the assault counts, we reverse appellant Richter's convictions. Finding no other reversible error, we affirm the convictions of appellants Sousa, Eastridge, and Diamen.1
On the evening of November 1, 1974, appellants and their companions (the "Richter group", as they were referred to repeatedly at trial) arrived at the Godfather Restaurant located in the 4900 block of Wisconsin Avenue, N.W., Washington, D. C. The Richter group arrived from Virginia in two cars and parked on Fessenden Street, a short distance from the restaurant. They entered the restaurant but were asked to leave by the doorman acting on instructions from the owner who was familiar with the Richter group. They started to leave. Jones,2 one of Richter's companions, picked up a large bag of popcorn and carried it from the restaurant. As they left the restaurant they encountered the decedent Johnnie Battle, Armon Allen, and Joseph Brown (the "Battle group"). Richter accused two members of the Battle group of insulting him, but both men denied the allegation. Both groups left the restaurant with the Richter group following the Battle group towards Fessenden Street. During this walk, the Richter group continued to taunt the Battle group. Allen, who became separated from the Battle group, was frightened, took a metal comb from his pocket, and was pushed into Fessenden Street by a member of the Richter group. The push turned him around so that he was facing Richter who had a knife at his side. Two other members of the Richter group approached Allen, but Richter told them not to do anything and he ended the confrontation without further ado. Allen remained at the corner of Fessenden and Wisconsin, while appellants and their companions walked west on Fessenden. Meanwhile, Brown and Battle went to Battle's car where Battle armed himself with a pistol, started walking back towards Wisconsin Avenue, and there met the Richter group. Jones took the popcorn he was carrying and threw it at Battle while insulting him. Brown observed that persons in the Richter group were armed with knives. Battle drew his pistol and began firing. One shot hit Bruce Hunter, a member of the Richter group. Richter immediately left the scene to take Hunter to Arlington Hospital. Brown began running towards Wisconsin and Fessenden where he saw Allen. Before they both returned to the Godfather to seek refuge, they observed several members of the Richter group chasing Battle across Wisconsin Avenue into a small park. The doorman and owner of the Godfather also observed this chase. Another customer at the Godfather saw the chase, as did David Brady who was getting into his car on Wisconsin Avenue. When Battle reached Emery Street, he tripped, and his pursuers jumped him from two different directions and began beating and kicking him. The Godfather's owner was outside the restaurant and saw two cars with Virginia tags pass. The police arrived and spoke to the owner who pointed out one of the cars. The car then drove through a red light and the officer pursued. When the officer stopped the car it was occupied by Sousa, Diamen, Jones, and Eastridge. The owner identified the four as having been in the Godfather and as part of the group that was harassing Brown, Allen, and Battle. The men were ordered out of the car, and Diamen sat down on a small grassy area. A knife was found under the front seat of the car, and bloody newspapers were found on the back seat. Knives were also found on Eastridge and Jones. Blood was found on Jones' clothing and boots, Diamen's pants, and Sousa's shirt. In the meantime, the body of Johnnie Battle was discovered by four civilians. The appellants Sousa, Eastridge, and Diamen were arrested and charged with murder. Richter was arrested a few blocks from the Virginia hospital, and a knife was seized from his belt. The day after the murder, a witness discovered a knife in a pile of leaves near the grassy spot where Diamen waited while the car was being searched.
Appellants' trial lasted five weeks with the government presenting 36 witnesses and over 75 exhibits. All defendants charged with first-degree murder while armed admitted their presence at the Godfather and in its vicinity on the night of the murder, but denied participation in the murder. Richter's defense to the assault charges was self-defense.
Dorothy Willett testified that Sousa and Eastridge, while free on bond, met her on several occasions. Her testimony revealed that both Sousa and Eastridge admitted their participation in the murder. She testified, in part:
Well, Nick [Sousa] said that it was a nigger that got Kenny and we got us one. And he said — I asked him at that time, I asked him, "Nick, you didn't really do anything like that, did you."
He said, "Not me, he did it." And he looked at Wayne [Eastridge].
And Wayne said to Nick, said, "You're the one that cut his nose off."
And Nick said, "well, yeah, I did that, but you sliced his ear."
She further testified that, in the same conversation, Sousa stated, "If it had not been for the one-way street, I would have gotten away."
Joinder of two or more defendants and multiple offenses in one indictment for trial is authorized by Super. Ct. Cr. R. 8(b) which provides:
Two or more defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.3
This rule has been interpreted to create a presumption "that persons jointly indicted should be tried together," Hall v. United States, 83 U.S.App.D.C. 166, 168, 168 F.2d 161, 163, cert. denied, 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775 (1948), with the proviso that those cases so joined will be severed if necessary to ensure a fair trial. See United States v. Gambrill, 146 U.S.App.D.C. 72, 87, 449 F.2d 1148, 1163 (1971). The "series of acts" referred to in Rule 8(b) has been defined as "one in which the individual offenses are connected or interrelated in such a manner that proof of charges against one defendant would necessarily have to be introduced in proving the jointly-charged offenses, or that the government otherwise will benefit without further prejudicing the defendant." Davis v. United States, D.C. App., 367 A.2d 1254, 1261 (1976), cert. denied, 434 U.S. 847, 98 S.Ct. 154, 54 L.Ed.2d 114 (1977).
The court must strictly monitor joint trials due to the "`presumptive possibility of prejudice to the defendant.'" Davis v. United States, supra at 1263, quoting King v. United States, 355 F.2d 700, 703 (1st Cir. 1966). Nevertheless, joinder will be upheld
(1) where the offenses are committed as a means to a specific common end, or where [the appellants] are directed toward some shared goal; (2) where one offense logically leads to another; and (3) where the offenses are part of a common scheme or plan, involving the same place, a short period of time, and a similar modus operandi. [Davis v. United States, supra at 1262 (footnotes omitted).]
There is also a strong policy favoring joinder because it "expedites the administration of justice, reduces the congestion of trial dockets, conserves judicial time, lessens the burden upon citizens who must sacrifice both time and money to serve upon juries, and avoids the necessity of recalling witnesses who would otherwise be called upon to testify only once." Johnson v. United States, D.C.App., 398 A.2d 354 at 367 (1979), quoting Parker v. United States, 404 F.2d 1193, 1196 (9th Cir. 1968), cert. denied, 394 U.S. 1004, 89 S.Ct. 1602, 22 L.Ed.2d 782 (1969); United States v. Hines, 147 U.S.App.D.C. 249, 266, 455 F.2d 1317, 1334, cert. denied, 406 U.S. 975, 92 S.Ct. 2427, 32 L.Ed.2d 675 (1972); United States v. Robinson, 139 U.S.App.D.C. 286, 289, 432 F.2d 1348, 1351 (1970).
Due to the ever present danger of prejudice to the defendants from a joint trial,...
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