U.S. v. Moore

• Decision Date: 09 October 1990
• Docket Number: 88-5942,Nos. 88-5932,s. 88-5932
• Citation: 917 F.2d 215
• Parties: 31 Fed. R. Evid. Serv. 1117 UNITED STATES of America, Plaintiff-Appellee, v. George E. MOORE (88-5932) and Charles R. Morse, (88-5942), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 215

917 F.2d 215

31 Fed. R. Evid. Serv. 1117

UNITED STATES of America, Plaintiff-Appellee, v. George E. MOORE (88-5932) and Charles R. Morse, (88-5942) Defendants-Appellants.

Nos. 88-5932, 88-5942.

United States Court of Appeals Sixth Circuit.

Argued April 18, 1989.

Decided Oct. 9, 1990.

Louis DeFalaise, U.S. Atty., John M. Compton, Asst. U.S. Atty., Michael Baer, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Lexington, Ky., for U.S.

J. Guthrie True (argued), Stoll, Keenan & Park, Frankfort, Ky., for George E. Moore.

John K. West (argued), McCoy, Baker & Newcomer, Lexington, Ky., for Charles R. Morse.

Before JONES and RYAN, Circuit Judges; and HORTON, Chief District Judge. ^*

HORTON, Chief District Judge.

Defendants, George E. Moore and Charles R. Morse appealed from their convictions by a jury of offenses arising out of the armed robbery of the United States Post Office in Waddy, Kentucky, on March 23, 1987. The indictment contains two counts. Count 1 charges Moore and Morse with aiding and abetting each other in committing the armed robbery of the post office during the course of which they placed in jeopardy the lives of the postmistress and a rural letter carrier, in violation of Title 18, United States Code, Sections 2114 and 2. Count 2 charges Moore and Morse with aiding and abetting each other in relation to a crime of violence by knowingly carrying a firearm during the commission of the post office robbery, in violation of Title 18, United States Code Sections 924(c) and 2.

Because we find no reversible error occurred during the trial of this case, the convictions of both Moore and Morse are affirmed.

I. Facts

On July 15, 1987, defendants, Moore and Morse, were indicted by a federal grand jury in the Eastern District of Kentucky, in a two Count indictment charging them with armed robbery of the United States Post Office at Waddy, Kentucky, carrying a firearm during the commission of a crime of violence and aiding and abetting each other in the commission of the offenses in violation of Title 18, U.S.C. Sec. 2114, Sec. 924(c) and Sec. 2 respectively. Moore and Morse were tried jointly.

The defendants were convicted of taking during the armed robbery a total of ninety-seven postal money orders, two hundred eleven dollars and sixty-five cents ($211.65) in cash, a postal money order imprinting machine and a United States Post Office mail bag, from the person and presence of Postmistress ¹ Linda Waites and rural letter carrier Judy Mackey. The taking of the property of the United States was effected by placing in jeopardy the lives of Linda Waites and Judy Mackey with a dangerous weapon, a semi-automatic pistol.

As part of the investigation leading to the conviction of Moore and Morse, Beverly Kopp, the live-in girlfriend of Moore, contacted Detective Charles Maxey, of the Indiana State Police and informed him that Moore had instructed her to retrieve some of the stolen money orders which were hidden under a chest-of-drawers in their bedroom and deliver them to an individual called Monkey Man at a certain location in Jeffersonville, Indiana. Nineteen money orders were recovered from the bedroom by Detective Maxey with the consent of Ms. Kopp and introduced into evidence during the defendants' trial. Detective Maxey and Ms. Kopp both testified at trial describing the recovery of the nineteen money orders. Ms. Kopp also testified about her telephone conversation with Moore regarding the money orders. Prior to trial, Moore moved to suppress the evidence and Kopp's testimony. Following a hearing, the district court denied the motion. In addition, prior to trial, Moore filed a motion for separate trials and the district court denied the motion.

After the jury had been impaneled and the trial began, Morse moved for severance and a continuance because of back pain. The district court denied both motions and advised Morse to inform the court if his pain reached the point where he could not continue. If so, the court would stop the trial and take a recess.

On July 13, 1988, after a three day trial, the jury returned verdicts of guilty against each defendant on both counts in the indictment. Subsequently, on August 15, 1988, the defendants were sentenced to twenty-five (25) years on the armed robbery charge, and to a consecutive five (5) years on the firearm charge. The defendants appeal their convictions.

II. Discussion

The appellants claim their convictions should be reversed for a plethora of reasons. Although, this is a consolidated appeal, each appellant has asserted grounds which he alleges constitute reversible error. There is some overlap among appellants' claims and Morse has adopted all arguments presented by his co-defendant, Moore. Therefore, for clarity sake we will discuss the issues topically making references as necessary to the facts pertaining individually to appellants' arguments.

A. Severance or in the Alternative Mistrial

Once defendants have been properly joined under Federal Rule of Criminal Procedure 8(b), a "strong showing of prejudice" is required to justify severance. United States v. Hessling, 845 F.2d 617, 619 (6th Cir.1988). Denial of a Rule 14 ² severance will not be disturbed on review unless the district court abused its discretion in denying the motion. United States v. Warner, 690 F.2d 545, 552 (6th Cir.1982).

To show a district court abused its discretion, the defendants must make a strong showing of prejudice. Id. Specifically the defendants must show an inability by the jury to separate and to treat distinctively evidence that is relevant to each particular defendant on trial. United States v. Gallo, 763 F.2d 1504, 1525 (6th Cir.1985). Even if a defendant may establish some potential jury confusion, this must be balanced against society's need for speedy and efficient trials. Id. As a general rule, persons jointly indicted should be tried together. United States v. Stull, 743 F.2d 439, 446 (6th Cir.1984). This is particularly true when, as here, the offenses charged may be established against both defendants with the same evidence, See United States v. Licavoli, 725 F.2d 1040, 1051 (6th Cir.1984), and result from the same series of acts. United States v. Hamilton, 689 F.2d 1262, 1275 (6th Cir.1982).

However, a single joint trial is impermissible if it violates a defendant's right to a fundamentally fair trial. Licavoli, 725 F.2d at 1051. The defendants have the burden of showing compelling prejudice. Stull, 743 F.2d at 446.

A defendant may move for a mistrial where there is a legitimate claim of seriously prejudicial error. United States v. Dinitz, 424 U.S. 600, 609-10, 96 S.Ct. 1075, 1080-81, 47 L.Ed.2d 267 (1976); see also United States v. Atisha, 804 F.2d 920, 926 (6th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987).

The denial of a mistrial is generally within the discretion of the trial court. Atisha, 804 F.2d at 926. Further, the standard of review of the trial court's ruling is whether the trial court has abused its discretion. Id.

We believe that a determination of the fairness to the accused is the primary concern in ruling upon a mistrial motion; if, by admitting [the objected to] evidence, the trial was not rendered unfair, we do not believe the district court can be said to have abused its discretion by denying defendant's motion for a mistrial. Atisha, 804 F.2d at 925-26.

Defendants claim the district court erred by failing to grant Moore's multiple motions for severance or, in the alternative, motions for a mistrial. This claim raises issues concerning the effect the trial court's actions had on the ability of the jury to decide fairly and separately the guilt or innocence of each defendant.

Moore claims, inter alia, the disparity in the quality and quantity of evidence against his co-defendant Morse required a severance. However, a defendant is not entitled to a severance simply because the evidence against a co-defendant is far more damaging than the evidence against him. United States v. Causey, 834 F.2d 1277, 1287 (6th Cir.1987). As we noted in United States v. Warner, 690 F.2d 545, 553 (6th Cir.1982):

We recognize that, in a joint trial, there is always a danger that the jury will convict on the basis of the cumulative evidence rather than on the basis of the evidence relating to each defendant. However, we adhere to the view, as previously stated by our court, that '[t]he jury must be presumed capable of sorting out the evidence and considering the case of each defendant separately.'

Causey, 834 F.2d at 1288 (quoting Warner, 690 F.2d at 553). The presentation of evidence applicable to more than one defendant is simply a fact of life in multiple-defendant cases. Causey, 834 F.2d at 1288 (citing United States v. Jackson, 549 F.2d 517, 525 (8th Cir.1976)), cert. denied, 430 U.S. 985, 97 S.Ct. 1682, 52 L.Ed.2d 379 (1977).

Moore claims the substantial testimonial and scientific proof which would be introduced to implicate Morse in the armed robbery of the Waddy, Kentucky, Post Office would create a "spillover" effect prejudicial to him. In Gallo, 763 F.2d at 1526, we articulated that:

The existence of ... a 'spill-over' or 'guilt transference' effect ... turns in part on whether the numbers of conspiracies and conspirators involved were too great for the jury to give each defendant the separate and individual consideration of the evidence against him to which he was entitled.

* * * * * * Id. (quoting United States v. Toliver, 541 F.2d 958, 962 (2d Cir.1976)). Seven persons were indicted in Gallo, only five indicted defendants went to trial. Gallo, 763 F.2d at 1526. The Court did not find a "spill-over" effect existed, in which the jury was unable to relate the evidence to each defendant, hence imputing the guilt to one defendant for the activities of his co-defendants. Id. In comparison to Gallo, this case involves only two defendants who were jointly indicted and subsequently tried...