Tillman v. United States, 85-106.

• Decision Date: 31 December 1986
• Docket Number: No. 85-217.,No. 85-117.,No. 85-106.,85-106.,85-117.,85-217.
• Parties: Cornell TILLMAN, Appellant, v. UNITED STATES, Appellee. Larry TILLMAN, Appellant, v. UNITED STATES, Appellee. Louis Larry BELL, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

519 A.2d 166

Cornell TILLMAN, Appellant, v. UNITED STATES, Appellee.

Larry TILLMAN, Appellant, v. UNITED STATES, Appellee.

Louis Larry BELL, Appellant, v. UNITED STATES, Appellee.

No. 85-106.

No. 85-117.

No. 85-217.

District of Columbia Court of Appeals.

Argued October 8, 1986.

Decided December 31, 1986.

John Hogrogian, Washington, D.C., appointed by the court, for appellant Cornell Tillman.

Edward Rosenthal, with whom Joan Gauche, Washington, D.C., was on the brief, for appellant Larry Tillman.

Richard S. Greenlee, Public Defender Service, with whom James Klein and Jennifer P. Lyman, Public Defender Service, Washington, D.C., were on the brief, for appellant Bell.

Saul M. Pilchen, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before NEBEKER, NEWMAN and FERREN, Associate Judges.

NEWMAN, Associate Judge:

After a jury trial, Cornell Tillman, Larry Tillman and Louis Bell were convicted of armed robbery and assault with intent to kill while armed. Larry Tillman was, in addition, convicted of carrying a pistol without a license. On appeal, they claim that the trial court erred in denying their motions to sever on the ground that their defenses were irreconcilable. We affirm.¹

I

The government's evidence showed that on March 22, 1984, Larry Tillman, assisted by Cornell Tillman and Louis Bell, robbed and shot Donald Lewis in a parking lot in Southeast Washington. Lewis, the complainant and the government's primary witness, testified that he was first accosted by Larry Tilman while walking to a 7-11 store on Carrollsburg Place, S.W. Tillman asked Lewis "where Harvey was at"; Lewis replied that he didn't know. Tillman then told Lewis that what he was going to do to him was "going to be his revenge." He grabbed Lewis by the neck, pulled out a gun, and, after demanding money, forced him at gunpoint to the rear of a nearby liquor store. There Cornell Tillman and Louis Bell were waiting, Cornell Tillman sitting in the front seat of his own car, Louis Bell leaning on the trunk. According to complainant Lewis, as he and Larry Tillman arrived, Cornell Tillman and Louis Bell "moved together" and "got sort of in position." Louis Bell, unarmed, took a few steps forward and stopped. Cornell Tillman got out of the car with a pistol in his hand, and went to keep an eye around the corner of the store to see if anyone was coming.

Larry Tillman forced Lewis up against the wall of the building. He ordered Lewis to empty his pockets, then to remove all of his clothing. During these events, Louis Bell, according to Lewis' description, stood "like a lookout . . . [H]e was just standing there looking left, looking right and just watching what was happening between me and Larry." When he was not looking left and right, Bell stared straight at Lewis. At no time did he attempt to prevent the robbery or offer Lewis any assistance.

As Lewis was removing his socks, he heard two shots coming from Larry Tillman's direction. He began to run. He immediately heard a third shot, and felt a bullet go through his hand. He ran across the street to a gas station, not realizing that the first two shots had hit him in the head. The gas station cashier called the police, who arrived shortly thereafter, along with an ambulance. Lewis told the police he had been robbed by Larry and Cornell Tillman. Before Lewis was taken to the hospital, Louis Bell, who had been picked up by the police while running away from the scene of the crime, was brought to the ambulance, where Lewis identified him as one of the robbers.

Donald Lewis' account of his initial encounter with Larry Tillman in front of the 7-11 store was corroborated by the testimony of three eyewitnesses. His testimony concerning events occurring at the gas station after the shooting was corroborated by police officers on the scene, and by the gas station cashier.

Cornell Tillman presented an alibi defense, testifying on his own behalf that he spent the evening and night of March 22 at the home of his girlfriend, Christina Bloodworth. The latter corroborated his testimony.

Larry Tillman presented a partial denial defense. He testified that on his way to the 7-11 to buy a drink he met Lewis, who had previously sold him some bad drugs. He had words with Lewis, at one point putting his hand on Lewis' shoulder. Lewis, angered by the physical contact, challenged him to a fight. The two went behind the liquor store and began to fight. Tillman knocked Lewis down, took a bag containing some drugs from him, and left the scene. He denied having shot Lewis; he also denied having seen Cornell Tillman or Louis Bell in the area at the time.

Louis Bell admitted being present at the events in question, but claimed innocence. He testified that on the night of March 22 he was on his way into the liquor store when he recognized Donald Lewis' voice coming from behind the store. He went around to the back of the store, where he saw Lewis up against the wall, Larry Tillman holding "some type of weapon" to him, and a third man who looked like Cornell Tillman. Lewis was in the process of removing his clothes. Bell did not assist his friend Lewis, because he feared for his life. When he heard gunshots, he ran in the direction of his mothers' house to call for assistance, but was stopped by two men whom he did not recognize as plainclothes police officers. He was then taken to the gas station and identified by Lewis.

During the trial, counsel for all three defendants moved for severance based on irreconcilable differences between Bell's defense and that of each of the Tillmans.² The trial court denied the motions, citing Sweet v. United States, 438 A.2d 447 (D.C. 1981).³

II

Several defendants may be joined for trial pursuant to Super.Ct.Crim.R. 8(b).⁴ When two or more persons are charged with jointly committing a criminal offense, a strong presumption arises that they will be tried together. Jennings v. United States, 431 A.2d 552, 556 (D.C. 1981), cert. denied, 457 U.S. 1135, 102 S.Ct. 2964, 73 L.Ed.2d 1353 (1982). Nevertheless, a defendant may move for a severance under Super.Ct.Crim.R. 14 if it appears that he is prejudiced by joinder with other defendants.⁵ The decision whether or not to grant a motion for severance rests within the discretion of the trial court, and will be reversed by this court only when that discretion has been abused. Ready v. United States, 445 A.2d 982, 986 (D.C. 1982), cert. denied, 460 U.S. 1025, 103 S.Ct. 1279, 75 L.Ed.2d 498 (1983); Sweet, supra, 438 A.2d at 450; Johnson v. United States, 398 A.2d 354 (D.C. 1979).

Appellants' motions for severance are based upon the prejudice alleged to have been caused them by the irreconcilability of their defenses. This jurisdiction has long recognized that

[p]rejudice from joinder of defendants may arise . . . where the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. . . .

Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966). Later decisions of this court have clarified the meaning of this cryptic statement in Rhone.

First, we have stated that the problem which Rhone addresses does not arise from the kind of minor differences which are inevitable among codefendants' presentations, and which are generally left to the jury to sort out. Ready, supra, 455 A.2d at 986. Rather, severance under Rhone requires a "clear and substantial contradiction between the respective defenses," causing inherent irreconcilability between them. Williams v. United States, 382 A.2d 1, 8 (D.C. 1978).

Secondly, we have explained that the existence of irreconcilable defenses in itself is not enough to mandate severance. The irreconcilability must create a danger that the jury will conclude guilt from the conflict alone; it is upon this danger that the trial court must focus its inquiry. Johnson, supra, 398 A.2d at 368 n. 11; Ready, supra, 445 A.2d at 986-87; Sweet, supra, 438 A.2d at 451. "Stated another way, the task of the court is in assessing the risk of the jury's being misled into finding guilt from the existence of the conflicting defenses alone." Johnson, supra, 398 A.2d at 368 n. 11 (emphasis in the original). We have explained further that the degree of such risk depends upon the extent of evidence offered against the defendant, independent of the conflicting evidence presented by the codefendant(s). See, e.g., Ready, supra, 445 A.2d at 987.

Confusion has arisen as to how much independent evidence is necessary in order for the trial court to find that the jury was unlikely to have been swayed to convict by the conflict in defenses alone. Despite the efforts at clarification made in some of our decisions, this confusion appears to have persisted, as is indicated by cases discussed hereinafter. We, in turn, will persist in attempting to dispel it.

In United States v. Leonard, 161 U.S. App.D.C. 36, 47-48, 494 F.2d 955, 966-67 (1974), the United States Court of Appeals, stressing the word "alone" in the above-cited passage from Rhone, concluded that "where independent evidence of each defendant's guilt supports the jury's verdict, the conflict does not necessarily prejudice the defendants to the extent that a district court's refusal to sever must be considered a clear abuse of discretion." (Citations omitted.)⁶ This statement in Leonard was subsequently cited in an opinion by a division of this court, in which an argument put forth by the government was discussed as follows:

The government points to the word "alone" in Rhone v. United States, supra, as meaning that the motion to sever is not improperly denied where there exists any evidence independent of codefendants' or codefendants' witness' testimony upon which a jury could convict. See United States v. Leonard. . . .

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