Tinsley v. United States

• Decision Date: 17 December 1976
• Docket Number: No. 9842.,9842.
• Citation: 368 A.2d 531
• Parties: Charles E. TINSLEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

368 A.2d 531

Charles E. TINSLEY, Appellant, v. UNITED STATES, Appellee.

No. 9842.

District of Columbia Court of Appeals.

Argued October 13, 1976.

Decided December 17, 1976.

Charles F. Barker, Washington, D. C., appointed by this court, for appellant.

Frederick A. Douglas, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and Joseph B. Valder, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee. John A. Terry, Asst. U. S. Atty., Washington, D. C., entered an appearance for appellee.

Before GALLAGHER, NEBEKER and HARRIS, Associate Judges.

NEBEKER, Associate Judge:

This is an appeal from a conviction of two counts of voluntary manslaughter after indictment on two counts of second-degree murder, D.C.Code 1973, § 22-2403. It raises the issue of the propriety of joinder of the offenses for trial and the denial of a timely motion for severance. The government took the position that the identity of the perpetrator could probably be proved by certain common factors in the two crimes. We hold the joint trial to have been erroneous because the asserted factors of commonality still left the question of identity to speculation and the probative value of the factors did not outweigh the prejudice they created.¹

Joinder of offenses in certain cases is provided for by Super.Ct.Cr.R. 8(a) and D.C.Code 1973, § 23-311(a), which read identically.² A defendant, however, may seek relief from a prejudicial joinder under Super.Ct.Cr.R. 14 and D.C.Code 1973, § 23-313, which also read identically.³ In the instant case, the offenses were tried together over the timely protest of appellant before trial and, therefore, the question is whether the trial record reveals a sufficient possibility of undue prejudice by reason of such joinder as to require reversal. We believe it does.

The appropriateness of joinder in evidence-of-other-crimes cases must be determined by balancing inevitable prejudice to the defendant caused by the joinder against the legitimate probative force of the evidence and expedition in judicial administration. Drew v. United States, 118 U.S.App.D.C. 11, 331 F.2d 85 (1964). In cases not involving reciprocal admissibility of evidence, joinder may be permitted if the offenses involved are fairly separable by simple and distinct proof. Langford v. United States, 106 U.S.App.D.C. 21, 268 F.2d 896 (1959); Dunaway v. United States, 92 U.S.App.D.C. 299, 205 F.2d 23 (1953); United States v. Lotsch, 102 F.2d 35 (2d Cir.), cert. denied, 307 U.S. 622, 59 S.Ct. 793, 83 L.Ed. 1500 (1939). In such cases the prosecutor is able to present the evidence in such a manner that the accused is not confounded in his defense and the jury is able to treat the evidence relevant to each charge separately and distinctly.

As pointed out in Drew v. United States, supra, a defendant may be prejudiced by joinder for a variety of reasons:

(1) he may become embarrassed or confounded in presenting separate defenses;

(2) the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or (3) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. [Id. at 14, 331 F. 2d at 88.]

We must focus on the last two considerations because no contention is made as to the first.

Generally, undue prejudice will be presumed from evidence of other crimes unless that evidence can be admitted for some substantial and legitimate purpose such as those set out in Drew v. United States, supra.

Evidence of other crimes is admissible when relevant to (1) motive, (2) intent, (3) the absence of mistake or accident, (4) a common scheme or plan embracing the commission of two or more crimes so related to each other that proof of the one tends to establish the other, and (5) the identity of the person charged with the commission of the crime on trial. . . . [Id. at 16, 331 F.2d at 90; footnote omitted.]

When evidence is relevant and important to one of these issues, its probative value is deemed to overshadow an otherwise impermissible prejudicial effect and, thus, the evidence of each crime is admissible at a separate trial of the other offense. Therefore, a joint trial of the offenses would not create the possibility of undue prejudice in such a case and would result in a saving of judicial resources.

As we view its brief, the government argues that joinder for trial here was appropriate because the offenses were sufficiently similar so as to corroborate the identity of the perpetrator.⁴ Thus, it is argued, the evidence of each of the offenses would have been admissible in a separate trial of the other and the possibility of criminal propensity prejudice was in no way enhanced by the joinder. Drew v. United States, supra, states the test for admissibility in separate trials under the identity exception.

[I]f the facts surrounding the two or more crimes on trial show that there is a reasonable probability that the same person committed both crimes due to the concurrence of unusual and distinctive facts relating to the manner in which the crimes were committed, the evidence of one would be admissible in the trial of the other to prove identity. In such cases the prejudice that might result from the jury's hearing the evidence of the other crime in a joint trial would be no different from that possible in separate trials. [Id. at 16, 331 F.2d at 90; emphasis supplied; footnotes omitted.]

We find lacking here the concurrence of unusual and distinctive facts sufficient to conclude that a reasonable probability exists that the same person committed both offenses.

A detailed exposition of the facts of the instant case is necessary to demonstrate that joinder for trial was inappropriate under either the reciprocal admissibility of evidence test for the simple and distinct proof test. The first victim, Butler, was found on the morning of March 17, 1974, fully clad and submerged in running water in the bathtub of his apartment. He had been strangled with bare hands. Appellant is the last person known to have been with him before his death and he admitted to drinking with Butler for about 20 minutes beginning at 11:30 p. m. on March 15. Appellant claims then to have gone upstairs and to bed, his apartment being in the same building as that of the decedent. Appellant's assertion that he stayed in Butler's apartment for about 20 minutes was put in question by the fact that two record albums appellant allegedly listened to with Butler required at least 16 minutes per side to play. In addition, neighbors of the victim heard conversation and other assorted noises emanating from the victim's apartment until about 3 o'clock on the morning of March 16. However, appellant's account of the events was corroborated by his wife. A partially filled bottle of Scotch found in Butler's bathroom contained appellant's fingerprints. In an interview with police on the day Butler's body was found, appellant said that during his visit the decedent had poured all the drinks. However, upon reading a copy of this statement, appellant changed it to read that he had poured a couple of the drinks himself.

According to the government's evidence, Butler's death occurred 12 to 24 hours (or earlier) before the initial examination of his body at 10:45 a. m., March 17. The body had been submerged in the cold running water which could have had a preservative effect. Therefore, Butler could have died between the early morning hours of March 16, and 10 o'clock that night. Thus, the government's evidence puts appellant with Butler only at the earliest possible point of death, leaves many subsequent hours during which death could have occurred, and does not exclude the possibility that another person intervened.

Handy, the second victim, was discovered on September 4, 1974, lying in the back of his truck. He had been strangled with a wire-like ligature. His death occurred five-and-one-half months after that of Butler and at a location 15 blocks away. Appellant and Handy were at times employed by the same person. Handy was last seen alive drinking with appellant and a night watchman at a building owned by their common employer. The son of the employer saw appellant and the night watchman drinking together at 4 a. m. on the night of the killing. However, appellant claims to have been driven home by Handy before that time, arriving between 1:00 and 1:30 a. m., and then going to bed. The night watchman substantiated appellant's story to the extent that he said appellant left with Handy about midnight; the watchman did not see either of them subsequently. Appellant's version of events was again supported by his wife. There was a discrepancy in appellant's testimony to the extent that he claimed that on their way home he and Handy had helped the police in aiding an accident victim. The victim was said to have been pinned in his car and to have had a lacerated right shoulder. Police traffic division records attested to at trial reflected that no police accident report had been filed respecting this asserted event. On cross-examination, the police officer testifying about the record of accidents stated that the fact that there was no entry...