U.S. v. Tootick

• Decision Date: 17 December 1991
• Docket Number: Nos. 90-30140,90-30142,s. 90-30140
• Citation: 952 F.2d 1078
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Moses TOOTICK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Evans FRANK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1078

952 F.2d 1078

UNITED STATES of America, Plaintiff-Appellee, v. Moses TOOTICK, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Evans FRANK, Defendant-Appellant.

Nos. 90-30140, 90-30142.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 8, 1991.

Decided Dec. 17, 1991.

John E. Storkel, Storkel & Grefenson, Salem, Or., for defendant-appellant Tootick.

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Or., for defendant-appellant Frank.

William Youngman, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN, ALARCON and HALL, Circuit Judges.

GOODWIN, Circuit Judge:

Charles Frank and Moses Tootick were jointly tried and convicted of assault resulting in serious bodily injury under 18 U.S.C. § 113(f) and 1153. They appeal on the ground that the district court erred in denying their timely motions for severance made before and during trial. 736 F.Supp. 1047. Frank also argues on appeal that the court erred in permitting the jury to hear the incriminating statement given by Tootick to the police.

I

Aaron Hart was stabbed on the Warm Springs Indian Reservation, after a night of drinking with Frank and Tootick. Hart was also run over by an automobile at the scene of the stabbing. He survived and testified.

Hart testified that Frank stabbed him. The government's case also included testimony by several of Frank's relatives. One of Frank's sisters testified that, on the morning of the assault, an intoxicated and emotionally upset Frank had arrived at her home with Tootick and said that he and Tootick had just killed someone. Frank then informed her of his intention to flee to Canada. She further testified that she had noticed blood on one of Frank's hands and that later that afternoon she had driven to Portland to bring Frank and Tootick back to Warm Springs where they surrendered to reservation police. The sister's husband confirmed most of her testimony and added that Tootick had nodded his head when Frank asked him whether they had just killed someone. A second sister of Frank testified that Frank and Tootick had arrived at her home the morning of the incident. She said that Frank had appeared frightened and had revealed the location of the stabbing, which she afterward confirmed by driving there and finding Hart.

The roommate of one of Frank's cousins testified that, at a party several hours before the assault, Frank and Tootick had openly expressed their intention to cut Hart. The cousin explained that Frank had passed Tootick a knife which Tootick had then placed in his pocket. According to the cousin, both Frank and Tootick were visibly intoxicated. Later at the trial, Frank's nephew testified that Frank and Tootick had arrived at his house in Portland and that Frank had stated that he and Tootick might have killed somebody. Another witness who was present at the house in Portland testified that Tootick had asked to wash his shirt, one sleeve of which was stained with blood.

II

Federal Rule of Criminal Procedure 8 allows the joinder of defendants who are alleged to have committed the same crime. Generally, defendants who are indicted together in federal court should be jointly tried. United States v. Escalante, 637 F.2d 1197, 1201 (9th Cir.), cert. denied, 449 U.S. 856, 101 S.Ct. 154, 66 L.Ed.2d 71 (1980).

Joinder is favored in federal criminal cases largely for reasons of judicial economy and efficiency, despite some degree of bias inherent in joint trials. See United States v. Walker, 720 F.2d 1527, 1533 (11th Cir.1983), cert. denied, 465 U.S. 1108, 104 S.Ct. 1614, 80 L.Ed.2d 143 (1984); 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). Rule 14 states, however, that if codefendants are prejudiced by joinder, the trial court may order severance.

We review a denial of severance for abuse of discretion. United States v. Sherlock, 865 F.2d 1069, 1078 (9th Cir.1989). Defendants must meet a heavy burden to show such an abuse, and the trial judge's decision will seldom be disturbed. See Escalante, 637 F.2d at 1201. Merely showing that a comparative advantage would result from separate trials will not satisfy this burden. United States v. Adler, 879 F.2d 491, 497 (9th Cir.1988); Escalante, 637 F.2d at 1201. In deciding whether reversal is required, the defendant must show that joinder " 'was so manifestly prejudicial as to require the trial judge to exercise his discretion in but one way, by ordering a separate trial.' " United States v. Ramirez, 710 F.2d 535, 546 (9th Cir.1983) (quoting United States v. Abushi, 682 F.2d 1289, 1296 (9th Cir.1982)).

In this case, both defendants claim that their antagonistic and mutually exclusive defenses resulted in reversible prejudice. Mere inconsistency in defense positions is insufficient to find codefendants' defenses antagonistic. United States v. Mazzanti, 888 F.2d 1165, 1172 (7th Cir.1989), cert. denied, 495 U.S. 930, 110 S.Ct. 2167, 109 L.Ed.2d 497 (1990). Inconsistency, alone, seldom produces the type of prejudice that warrants reversal. The probability of reversible prejudice increases as the defenses move beyond the merely inconsistent to the antagonistic.

Mutually exclusive defenses are said to exist when acquittal of one codefendant would necessarily call for the conviction of the other. Adler, 879 F.2d at 497. "The prototypical example is a trial in which each of two defendants claims innocence, seeking to prove instead that the other committed the crime." United States v. Holcomb, 797 F.2d 1320, 1324 (5th Cir.1986). In United States v. Crawford, 581 F.2d 489 (5th Cir.1978) the court found mutually exclusive defenses where defendants, charged with possession of an unregistered firearm, each claimed that the other owned the weapon. Id. at 491-92.

In the present case, the principle defense of each defendant was that the other alone committed the assaults. Frank swore that he drove to an isolated spot at the side of a hill and remained in the car while Tootick, to his surprise, stepped out with Hart and stabbed him. Frank testified that he watched in horror as codefendant Tootick repeatedly stabbed Hart and then licked Hart's blood off the weapon.

Tootick did not testify. Tootick's lawyer claimed that his client was highly intoxicated and was either passed out or was asleep during the entire episode.

While Tootick did not directly accuse his codefendant, he gave a statement to the police concerning his state of intoxication. That statement was used to fashion a mutually exclusive defense. Mutual exclusivity may exist when "only one defendant accuses the other, and the other denies any involvement." United States v. Romanello, 726 F.2d 173, 177 (5th Cir.1984). For a proclamation of innocence to constitute an accusation, the facts of the dispute must be closed in a fashion that does not suggest the intervention of some unknown actor.

Because only Frank and Tootick were present when Hart was attacked, and because there was no suggestion that Hart injured himself, the jury could not acquit Tootick without disbelieving Frank. Each defense theory contradicted the other in such a way that the acquittal of one necessitates the conviction of the other.

III

When severance is requested on the ground that mutually exclusive defenses require it, the trial court must consider the substantial possibility of prejudice. See United States v. Peveto, 881 F.2d 844, 857 (10th Cir.), cert. denied, 493 U.S. 943, 110 S.Ct. 348, 107 L.Ed.2d 336 (1989); Romanello, 726 F.2d at 181; Crawford, 581 F.2d at 492. Language in several Ninth Circuit opinions suggests that a finding of mutually exclusive defenses requires severance under Rule 14. United States v. Sherlock, 865 F.2d 1069, 1081 (9th Cir.1989); Adler, 879 F.2d at 497 ("Severance is required when conspirators' defenses are mutually exclusive ..."); Ramirez, 710 F.2d at 546 ("Only where the acceptance of one party's defense will preclude the acquittal of the other party does the existence of antagonistic defenses mandate severance."); United State v. Gonzales, 749 F.2d 1329, 1333-34 (9th Cir.1984). The defendants argue that these cases establish a per se rule mandating severance whenever mutually exclusive defenses are pled. In none of the cited cases, however, does the language pertaining to severance constitute a holding. The present case is the first occasion in which this Circuit is required to decide whether severance is mandated in the context of mutually exclusive defenses.

Ninth Circuit law provides general guidance in testing discretion in the refusal to sever trials. "The party seeking reversal of a decision denying severance under Rule 14 has the burden of proving 'clear,' 'manifest,' or 'undue' prejudice from the joint trial." Escalante, 637 F.2d at 1201 (citations omitted). The types of prejudice that mandate severance undermine the procedural fairness of the trial. Consequently, the defendant "must show that the magnitude of the prejudice denied him a fair trial." Ramirez, 710 F.2d at 546. In more concrete terms, reversible prejudice exists when one of the defendant's "substantive rights," such as the "opportunity to present an individual defense," is violated. Escalante, 637 F.2d at 1201.

Prejudice cannot be understood in a vacuum. The touchstone of the court's analysis is the effect of joinder on the ability of the jury to render a fair and honest verdict. Prejudice will exist if the jury is unable to assess the guilt or innocence of each defendant on an individual and independent basis.

Rather, the ultimate question is whether under all of the circumstances, it is within the capacity of the jurors to follow the court's admonitory instructions and, correspondingly whether they can collate and appraise the independent evidence against each defendant solely upon ...