DREW v. UNITED STATES

McGOWAN, Circuit Judge.

This is an appeal from a conviction in the District Court on one count of robbery and one count of attempted robbery (22 D.C.Code §§ 2901 and 2902). Appellant moved, both before and at the commencement of trial, to compel separate trials of the two charges; and, after verdict, he moved for a new trial because of prejudice asserted to have occurred in, and by reason of, the joint trial. The failure to grant this relief is said on this appeal to be a source of reversible error.1

Rule 8(a) of the Federal Rules of Criminal Procedure, set forth in the margin,2 provides for permissible joinder of offenses in certain specified cases. Rule 14 provides:

Thus, even though the joinder is permissible under Rule 8(a), if the defendant makes a timely motion under Rule 14 and shows prejudice, the court should either order an election by the Government or grant separate trials.4 Here the joinder in the indictment under Rule 8(a) was permissible since the two crimes are similar in nature. Having in fact been tried together over the timely protest of appellant before, during, and after the trial, our inquiry now is as to whether the trial record indicates sufficient possibility of prejudice by reason of such joinder for trial as to require reversal. We believe that it does.

I

The justification for a liberal rule on joinder of offenses appears to be the economy of a single trial. The argument against joinder is that the defendant may be prejudiced for one or more of the following 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. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. Thus, in any given case the court must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.

This question has been considered many times by the federal courts, the state courts, and the courts of England.5 In Queen v. King, [1897] 1 Q.B. 214, 216, Hawkins, J., said:

In Pointer v. United States, 151 U.S. 396, 14 S.Ct. 410, 38 L.Ed. 208 (1894), the Supreme Court addressed itself to this problem in the course of holding that a defendant charged in an indictment with four counts involving the murder of two persons on the same day, at the same place, and with the same kind of instrument, was not prejudiced by the joinder, inasmuch as the proof of each crime would have been relevant in a separate trial of the other. The Court, 151 U.S. at pages 403-404, 14 S.Ct. at page 412, 38 L.Ed. 208, said:

In McElroy v. United States, 164 U.S. 76, at 79-80, 17 S.Ct. 31, at 32, 41 L.Ed. 355 (1896), the Court said:

Our own court, in Kidwell v. United States, 38 App.D.C. 566, at 570 (1912), said:

Considering our disposition of the present case, we may put aside the question of whether appellant was embarrassed or confounded in presenting his defenses6 and turn to the question of whether he was prejudiced by the possibility that the jury used the evidence of the one crime to convict of the other or cumulated the evidence to find guilt under both charges.

II

It is a principle of long standing in our law that evidence of one crime is inadmissible to prove disposition to commit crime, from which the jury may infer that the defendant committed the crime charged.7 Since the likelihood that juries will make such an improper inference is high,8 courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose.9 The same dangers appear to exist when two crimes are joined for trial, and the same principles of prophylaxis are applicable.

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.10 When the evidence is relevant and important to one of these five issues, it is generally conceded that the prejudicial effect may be outweighed by the probative value.

If, then, under the rules relating to other crimes, the evidence of each of the crimes on trial would be admissible in a separate trial for the other, the possibility of "criminal propensity" prejudice would be in no way enlarged by the fact of joinder. When, for example, the two crimes arose out of a continuing transaction or the same set of events, the evidence would be independently admissible in separate trials. Similarly, if 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,11 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.12

III

The federal courts, including our own, have, however, found no prejudicial effect from joinder when the evidence of each crime is simple and distinct, even though such evidence might not have been admissible in separate trials under the rules just discussed.13

This rests upon the assumption that, with a proper charge, the jury can easily keep such evidence separate in their deliberations and, therefore, the danger of the jury's cumulating the evidence is substantially reduced. In the leading case of 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), Judge Learned Hand said (102 F.2d at p. 36):

Judge Hand recognizes the possibility, of course, that the jury may misuse the evidence, no matter how simple and separable; his position is merely that the possibility is somewhat reduced. However, the possibility of the jury's becoming hostile or inferring guilt from belief as to criminal disposition is just as substantial. For this reason great care must be exercised to protect the defendant from this possibility when joinder is tolerated under this theory.14

In summary, then, even where the evidence would not have been admissible in separate trials, if, from the nature of the crimes charged, it appears that the prosecutor might be able to present the evidence in such a manner that the accused is not confounded in his defense and the jury will be able to treat the evidence relevant to each charge separately and distinctly, the trial judge need not order severance or election at the commencement of the trial. If, however, it appears at any later stage in the trial that the defendant will be embarrassed in making his defense or that there is a possibility that the jury will become or has become confused, then, upon proper motion, the trial judge should order severance.

IV

Turning now to the case at hand, a detailed exposition of the facts is necessary. The robbery, committed at a neighborhood store belonging to High's Dairy Products Corp., occurred on July 27, 1962. The sales clerk testified that a Negro male,15 wearing sunglasses,16 entered the store. After a short delay the clerk approached the customer and asked if she could help him. He replied: "This is a holdup; I want your money, all of it." When the witness hesitated, he said: "Get it," and pulled a gun part of the way out of his pocket. She gave him the money, and he proceeded to leave the store as another customer entered.

The attempted robbery occurred at a different High's neighborhood store on August 13, 1962 (some two and one-half weeks after the robbery). The sales clerk testified as follows: While she was alone in the store a Negro male entered the store dressed in a coat, cap, and sunglasses.17 When she asked to help him, he asked for a bag of peanuts. She asked whether he wanted the five or ten cent size, and he replied "five." He then said: "Give me all the money," and she replied: "If you want it, come and get it." He repeated himself several times, and each time she repeated her statement. Finally he said: "You are not going to give me that money?" and she replied negatively. At that point a customer entered the store, and appellant left hastily. The clerk testified that she was not threatened in any way. The police apprehended appellant in the vicinity of the store some twenty-five minutes later and returned to the store where the sales clerk identified him as the person who had attempted to rob her.

These facts do not show such a close similarity in the manner of committing the crimes as would make them admissible in separate trials. Viewing the record in its best light, the essential similarity that appears is the nature of the offense, the fact that both offenses were committed against High stores, and the fact that the offender in both instances was a Negro wearing sunglasses. We do not think that these similarities in the manner in which the offenses were committed are sufficient to support a finding of reasonable probability that the two offenses were committed by the same person, from which the jury could be asked to infer that the person was the appellant.18 This conclusion is buttressed by other factors. In the robbery, the assailant, at the first sign of non-compliance, threatened the clerk with a gun. In the attempted robbery, there was no such threat of violence; in fact, the dragon seems to have been a most reluctant one indeed. This circumstance could raise a significant doubt as to whether appellant was involved in both crimes. A fundamental difference between two persons contemplating crimes of this character would be the degree to which each was prepared to use force to achieve his objective. Thus it is that the testimony about the use of the pistol in the one case, and not in the other, takes on enhanced significance. Moreover, neighborhood stores of the High's variety are particularly vulnerable to this kind of crime. They are usually staffed with only one or two female clerks, and are natural targets for both professional and non-professional bandits. These factors render less significant, for these purposes, the fact that both crimes were committed against High's stores, that they occurred on a summer afternoon when no customers were in the store, and that the intruder wore sunglasses. These circumstances all fit into an obvious tactical pattern which would suggest itself to almost anyone disposed to commit a depredation of this sort.

Nor did the two offenses arise out of the same transaction, series of transactions, or continuing state of affairs so that the evidence could have come in under the fourth exception stated above. In short, we cannot find absence of prejudice on the ground that the evidence would have been admissible in separate trials.19

This is not the end of the matter, however. We must still determine whether this case falls within the "simple and distinct" test as formulated in the Dunaway case, supra Note 14. As pointed out above, the very essence of this rule is that the evidence be such that the jury is unlikely to be confused by it or misuse it. It is not mere conjecture to say that the jury may have been confused in this case. A perusal of the record shows that witnesses' responses at times indicated confusion as to which crime counsel were referring to in their questions; the two crimes were repeatedly referred to as of the same order; and the prosecutor in his summation not unnaturally lumped the two together on occasion in his discussion of the evidence.20 These lapses do not appear to have been purposeful, but lack of improper motivation does not lessen their impact on the jury. If separate crimes are to be tried together — and we are not to be understood as intimating any conclusion that this can never, as a practical matter, be successfully undertaken — both court and counsel must recognize that they are assuming a difficult task the performance of which calls for a vigilant precision in speech and action far beyond that required in the ordinary trial. The confusion here was probably the result of the superficial similarity of the two crimes and the way in which they were committed.21 On this record, we cannot say that the jury probably was not confused or probably did not misuse the evidence, as Judge Hand was able to hold in Lotsch.

For these reasons we find that there was prejudice in the joinder and the court below should have granted separate trials. The conviction is reversed and the case is remanded.

It is so ordered.