United States v. Braman

• Decision Date: 18 October 1974
• Docket Number: No. 8719.,8719.
• Citation: 327 A.2d 530
• Parties: UNITED STATES, Petitioner, v. The Honorable Leonard BRAMAN, Respondent.
• Court: D.C. Court of Appeals

Page 530

327 A.2d 530

UNITED STATES, Petitioner, v. The Honorable Leonard BRAMAN, Respondent.

No. 8719.

District of Columbia Court of Appeals.

Argued October 10, 1974.

Decided October 18, 1974.

Rehearing and Rehearing en Banc Denied December 11, 1974.

Earl J. Silbert, U. S. Atty., with Carl S. Rauh, Henry F. Greene, John A. Terry, A. Shaker, John F. Evans, Percy H. Russell, Jr., Hetherton and David R. Addis, Asst. U. S. Attys., were on the petition, for petitioner.

Peter Weisman, Washington, D. C., was on the statement of respondent in response to the petition.

Charles W. Daniels was on the answer to the petition for John Griffin.

Before KERN and YEAGLEY, Associate Judges, and PAIR, Associate Judge, Retired.

PER CURIAM:

This case comes to us on a petition for a writ of mandamus by the government following the grant of a new trial to one of the defendants in a murder conspiracy case on grounds which the government asserts were not raised by that defendant's new trial motion. After review of the record before us we conclude the trial court's action was the grant of a new trial on grounds of prejudicial joinder, a nonappealable order and beyond our reach at this time unless, as the government contends, the court did not have jurisdiction so to act.

Preliminarily, we note that it is only in very exceptional circumstances that there will be justification for the invocation of the extraordinary remedy of mandamus against a trial court.¹ In order for such a writ to issue, the party seeking it must show that its right to the issuance of the writ is "clear and undisputable."² In the instant case, however, the government contends that it is beyond doubt that the respondent trial judge was without jurisdiction to enter the order it challenges here and hence mandamus must issue. We proceed to an examination of the record with that contention in mind.

In discussing defendant Griffin's motion for judgment notwithstanding the verdict or, alternatively, for a new trial³ made after the jury returned a guilty verdict, the trial court said that the government's case against him "was, when considered with the extensive evidence making up the entire fabric of the conspiracy, and its execution, sufficient to require me as trial judge to deny Mr. Griffin's motion for judgment of acquittal. But that does not discharge my responsibilities as the 13th juror to appraise and weigh the evidence on both sides." Continuing his review of the evidence the trial judge stated:

Viewing both sides of the evidentiary scales . . . the court cannot say that the verdicts against Mr. Griffin were contrary to the great weight of the evidence. Nevertheless the evidentiary question was close. In short, this is the kind of case where the verdicts would ordinarily not be disturbed. From the fact finding point of view, it is a typical case for jury resolution.

From these remarks we conclude the court did not find the arguments in defendant's motion for a new trial grounded on insufficiency of the evidence and the prejudicial impact of an impassioned outburst in open court by a government witness to be well taken and was rejecting them. But having thus for all intents and purposes denied the new trial motion the court added:

There is more, however, to be considered. . . . Specifically, the evidentiary scales being so delicately poised in Griffin's case there must be no doubt that the jury was able to weigh the balance without prejudicial extraneous influence.

In Griffin's case, however, the scales may have been tilted by the reflected weight of the mass of evidence against his codefendants Messrs. Clark, Moody and Christian.

Accordingly the judicial conscience cannot, with equanimity, affirm that the jury's resolution of Griffin's fact issues was free of a bandwagon effect.

. . . . . .

I also want to take the opportunity to explicate that in the case of each of the defendants, I have gauged the risk of prejudice from a joint trial and have monitored it continuously through the trial. . . .

. . . . . .

I find that Mr. Griffin's case is not a case where the court can state that the jury properly weighed the evidence applicable against Mr. Griffin free of extraneous influence that may have been improper.

Some weeks later, while discussing with counsel the forthcoming second trial [Tr. at 12, 13, Aug. 13, 1974], the court explained that "this court granted Mr. Griffin a severance because there was more than inequality insofar as the burden of incriminatory evidence was concerned."

The court therefore, while holding that it "cannot say that the verdicts against Mr. Griffin were contrary to the great weight of the evidence", granted defendant Griffin's motion for a new trial on the ground of prejudicial joinder of defendants.

We note the statement respondent trial judge filed in the proceeding before us: "In granting Griffin's motion for a new trial, this respondent perceived the question of prejudice vel non by joinder, a theme stressed at the very outset of the proceeding below and reserved for continuous scrutiny as the circumstances of the trial unfolded, to be within the fair intendment of Griffin's motion for a new trial." (Footnote omitted.)

The footnote we have omitted referred to certain pages of the transcript taken from the proceedings for October 29, 1973, February 21, 1974, and the session of July 9, 1974, held for post-trial motions and sentencing which we discuss hereinafter.

At the proceedings of October 29, 1973, motions for severance were under consideration including one as to defendant Griffin. The court expressed some understanding, if not sympathy, for the contentions of counsel for the defendants but observed that without a crystal ball it could not be foreseen how the evidence might develop and asked "why don't we wait to see what does evolve?" The court denied the motions "without prejudice to their being renewed as may be deemed appropriate." We do not find from the record pages supplied to us that the question was "reserved for continuous scrutiny" although that may well have been the intent of the court.

Transcript pages 616 and 617 of February 21, 1974, relied upon by the trial court, reflect that counsel were discussing with the court motions that were still pending, including motions for severance as to defendants Price, Sinclair and Clark. Those pages do not indicate that defendant Griffin had renewed his motion for severance. When the court at that point recognized counsel for defendant Griffin, he did not continue the discussion regarding severance but instead raised a different point, viz., the question whether the defendants should be present. At transcript page 10,989 for May 8, 1974, when the court and counsel were discussing matters preliminary to the making of closing arguments, the court indicated that a motion to sever had been made in behalf of defendant Griffin, "should Mr. Christian be permitted to argue his part of the case in proper person." Thereupon Griffin's counsel stated: "At this point, with your Honor's permission, I respectfully ask leave to withdraw my motion to sever." The court responded: "I will rule on Friday, at the time that we settle instructions, and on the entitlement of the defendants to argue or participate in final argument."

After verdict the defendants were granted three weeks to file post-verdict motions. [Tr. at 24, May 17, 1974.] When Mr. Shuker, counsel for the government, was arguing a motion as to the felony — murder count — the court interrupted and the following colloquy ensued:

THE COURT: Mr. Shuker, the defendants also rely upon the claimed error involving a failure to sever.

MR. SHUKER: Defendants, Your Honor?

THE COURT: The defendants do. MR. SHUKER: I mean, to sever defendants or to sever counts?

THE COURT: To sever the defendants. And I believe that's incorporated by reference.

MR. SHUKER: If it is incorporated by reference, Your Honor, I must confess I found it exceedingly oblique. I have no memory of it at this moment.

The above exchange seems to us a clear indication that the government did not understand the motion for severance as to Griffin was still pending. The government urges in support of its petition that it strongly disagrees with the court's finding of prejudicial joinder and, had it realized what was at issue, could have in argument directed the court's attention to counter-availing evidence. Whether or not the government is correct it certainly was entitled to the opportunity to present its views on this important issue.

In sum, we have not been provided with any transcript pages indicating that defendant Griffin renewed his motion for severance, other than the implication at the hearing of May 8, 1974, that he may have when he specifically withdrew his motion for severance as mentioned, supra. Neither are we provided any transcript pages regarding any argument Griffin's counsel may have made to the court on such a motion. We cannot ignore the likelihood that his counsel, after all the evidence was in, withdrew his motion for severance as a matter of trial strategy. Counsel may well have viewed the evidence against his client as being sufficiently thin to warrant the taking of a chance on a jury verdict of not guilty rather than pursuing a motion for severance and the risks of another trial and another jury.

Although no motion for severance on behalf of Griffin was pending when the court ruled on his motion for a new trial and although it did not agree with any of defendant's arguments for a new trial, the court nevertheless did hold that in its view there had been a misjoinder and ordered a new trial. This ruling was made well after the time had expired for the making of a new trial motion. Under Super.Ct.Cr.R. 33, as amended in 1966,⁴ a trial court cannot grant a new trial sua sponte.

That leaves for our consideration whether the trial court had jurisdiction from some other source to order severance after...