SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
Mary Whitten was awakened about 2:00 a. m. on July 4, 1966, by a strange man in the bedroom of her apartment. The man held a sharp object against her neck, choked her, and ordered her to disrobe. She refused and succeeded in pushing him away. The man then turned on the bedroom light and talked with her for about 15 minutes; asked about his entry into the apartment, he stated that "someone was chasing him, and he ran in * * *."1 He demanded money, searched her handbag, and departed.
The Metropolitan Police Department was immediately notified and was furnished a general description of the intruder. Officer Melvin Hardy, dispatched to the apartment with that description, saw a man standing at a bus stop near the entrance to the apartment building. Officer Hardy conversed with the man for several minutes, during the course of which the man said his name was George Bradley.2 The officer continued on to the apartment, where Mrs. Whitten amplified the description, and it fitted the man the officer had just left. Officer Hardy then went back to the bus stop, but the man was gone.
Nine days later, at about 11:45 a. m. on July 13, Courtney Whitten, Mrs. Whitten's 15-year old daughter, left the apartment to go to a store. When she returned, she was accompanied by two friends, James Edward Anderson and Charles Nowlin. Upon reentering the apartment, one of her companions found appellant attempting to hide behind a bedroom door. In explanation, appellant stated that a friend had brought him there and departed, and that he was awaiting the friend's return, due in about a half hour.3 Appellant's captors waited out the half hour and, the alleged friend not reappearing, then summoned the police.
Appellant was tried before a jury in the District Court on a rewritten two-count indictment charging housebreakings4 on July 4 and 13.5 At the trial, Mrs. Whitten identified appellant as the man in the apartment on July 4, and Officer Hardy identified him as the man at the bus stop on that date. Miss Whitten and her two companions identified appellant as the man in the apartment on July 13. Appellant sought by his own testimony and that of three other witnesses to establish an alibi for July 4, but offered no defense at all to the July 13 charge. The jury convicted on both counts.6
Appellant's sole contention on this appeal stems from his unsuccessful motion for a severance of the two housebreaking charges for separate trial. Appellant's trial counsel7 argued strenuously that prejudice would flow from the jurors' opportunities to cumulate the evidence as to each of the charges if they were tried together. Counsel also informed the trial judge that appellant wished to testify defensively as to the July 4 incidents but not as to those of July 13, and urged that joint trial of the two charges would present appellant with an irreconcilable dilemma. Before us it is insisted additionally that prejudice to appellant was heightened by allegedly improper comment in the prosecutor's closing address to the jury and by a segment of the judge's charge.8 In the succeeding parts of this opinion we discuss these contentions, and in the end we affirm appellant's convictions.
The two-count indictment upon which the trial proceeded charged appellant with separate housebreakings into the same apartment within a nine-day period. It seems clear that the two housebreakings were properly joinable in a single indictment as "offenses * * of the same or similar character,"9 and appellant does not suggest the contrary. Instead, his contention is that the circumstances, particularly his stated desire to testify on but one of the counts, portended such harm to appellant that the trial judge erred in refusing to sever the counts for trial.10 The judge, however, deeming evidentiary items of each housebreaking mutually admissible at a trial of the other, foresaw no greater detriment in a joint trial than in separate trials of the charges. The Government argues vigorously that, for the same reason, appellant was not any worse off simply in consequence of their simultaneous trial.
The basic principles by which this controversy is to be resolved are well settled in this jurisdiction. Although counts are permissibly joined in the same indictment for purposes of charging the accused, the court, upon appropriate motion and a showing of prejudice, should order their separate trial or an election by the Government.11 With appellant inviting the trial judge's consideration of dangers long viewed as sources of potential prejudice,12 it became incumbent upon him to "weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration."13
This the judge did, indulging full argument by counsel. The factor of greatest significance in the judge's decision to permit trial of both counts was his view that appellant would not benefit were the counts to be severed. The judge felt that on certain of the issues arising in a separate trial of either housebreaking charge, evidence of circumstances involved in the other would have a legitimate role, so that nothing would be gained by separation. This result, the judge held, would not vary in the event that appellant should take the witness stand in one separate trial but not in the other. We move now to a discussion of the bearing these two considerations had on the issue at hand.
Few doctrines are more firmly established than the "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."14 As we have remonstrated, "[s]ince the likelihood that juries will make such an improper inference is high, courts presume prejudice and exclude evidence of other crimes unless that evidence can be admitted for some substantial, legitimate purpose."15 By the same token, "criminal propensity" prejudice will require separate trials of joined offenses where to each its own evidentiary details must be confined.16
We have, however, in common with the authorities generally,17 recognized exceptions to these broad formulations.18 Evidence disclosing another crime is admissible in situations where "the prejudicial effect may be outweighed by the probative value."19 Correspondingly, where, "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."20 This is so for the rather obvious reason that "[i]n 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."21 Consequently, where evidence of joined offenses would be mutually admissible in separate trials of those offenses, severance is not ordinarily required on account of "criminal propensity" prejudice.22 And this precept "does not require that every item of evidence relating to one offense be admissible in a separate trial for the other, but rather looks in a broader sense to whether the rules relating to `other crimes' evidence have been satisfied."23
Appellant concedes the probability that the Government's evidence describing the July 4 housebreaking and associating appellant as the housebreaker could have been let in at a separate trial of the July 13 charge. We ourselves have no doubt as to the propriety of a ruling admitting that evidence for the purpose of showing a criminal motive24 and intent25 underlying the entry appellant indisputably made into the apartment on the latter date. We believe also, contrarily to the position appellant advances, that the trial judge might properly have received evidence of appellant's presence in the apartment on July 13 in a separate trial for the July 4 offense on the issue as to whether he was the party who committed that offense.
Our past decisions, in line with the general American view,26 recognize fully that evidence indicating the accused's identity as the perpetrator of one offense may be admissible for that purpose despite its exposure of his involvement in other crime.27 The basis for admission is but an application of the principle "that, where a circumstance is relevant for some purpose, the incidental revelation, in offering it, of other criminal conduct by a defendant does not stand in the way of receiving the evidence."28 That is not to say that every item having some tendency to show identity is automatically to be made available to the jury. An inexorable requirement, obtaining as to all evidence unveiling another offense, is that its probative virtues must outweigh its prejudicial proclivities.29 "[T]he rule," we have declared, "is that evidence of other offenses is admissible when substantially relevant to the offense charged; inadmissible when its relevance is insignificant; and, in borderline cases, admissible when its relevance outweighs the undue prejudice that may flow from it, but otherwise inadmissible."30 Thus "other offense" evidence proffered on an issue of identity must promise a real contribution in the process of proof of identity, for otherwise its help will be surpassed by its hurt.31 A reasonable need for the evidence must exist,32 and for as much detail as is to be let in,33 lest its value be exceeded by its damage. In sum, admissibility depends upon a plus-quality in terms of its evidentiary capability in balance with its harmful portent.
We find a plus-quality here. Only nine days previous to appellant's apprehension in Mrs. Whitten's apartment, there was an unauthorized entry into that apartment. The entrant on that occasion closely matched appellant's description, a distinctive feature of which is his small size.34 Like appellant did on July 13, the intruder on July 4 gave an explanation for his presence in the apartment which a jury could well regard as bizarre.35 Near 3:00 a. m. on July 4 — minutes after the intruder left the apartment — a man answering appellant's description was at a bus stop outside the apartment, and that man told Officer Hardy that his name was George Bradley. Unquestionably, a George Bradley — the appellant here — was in the apartment on July 13.
The crucial issue developing on the July 4 housebreaking charge was the identity of the housebreaker, and on that issue the evidence was sharply divided. For the Government there was Mrs. Whitten's identification placing appellant inside the apartment, and Officer Hardy's placing him just outside minutes later. On the other hand, there was appellant's testimony, backed by three more witnesses, that he was elsewhere at the time of the offense. The Government had the burden of proof beyond a reasonable doubt, and to help to carry it had nothing occurring on July 4 that tended to confirm the accuracy of the two identifications. Particularly in the face of appellant's alibi, corroboration of the identifications was calculated to play a significant and perhaps decisive role.36 We cannot view the events of July 13 as unnecessary evidentiary additions serving an exclusive or primary function of cumulating unintegrated items of criminal conduct against appellant.
The rule admitting proof disclosing another crime to show the accused's identity as the perpetrator of the offense on trial does not demand that the two episodes possess factual sameness in every detail.37 The inquiry, rather, is whether the two have enough in common to justify a cautious judgment that the probative force of the common details received in evidence is appreciable,38 and so much so as in the scheme of jurisprudential values to outweigh the potential harm to the accused.39 In turn, the substantiality of evidentiary indications of identity goes up in much the same proportion as the chances of misidentification come down.40 In the case before us, a jury could logically find that the several similarities inhering in the two entries into Mrs. Whitten's apartment connoted much more than pure coincidence.41 For the same reason, in a separate trial of the July 4 housebreaking count, the judge, on balance of probative worth and prejudicial propensities, could allow the Government to show appellant's presence in the apartment on July 13 and the circumstances common to both intrusions42 in corroboration of Mrs. Whitten's identification of appellant as the July 4 housebreaker, and of Officer Hardy's identification of him as the man at the bus stop on that date and as the George Bradley who is our appellant.43
Here the trial judge, after hearing counsel on both sides, struck the balance in favor of the Government. He concluded, as he properly could, that even in the event of severance the Government should be permitted to use evidence of the July 13 incident as part of its proof of the July 4 offense. In consequence, he felt that nothing would be gained by a severance, and we have no cause to upset that conclusion either.44 No more than he are we able to perceive in the circumstances any "criminal propensity" prejudice to the defense of the July 4 charge simply because the same jury heard the details of the July 13 offense.45
As we have stated, defense counsel informed the trial judge, in support of the motion for severance, that appellant wished to testify to the July 4 count but not to the July 13 count, and that joint trial of the two charges would prejudice that endeavor. Counsel referred the judge to the discussion in our Cross decision46 of the elements of prejudice that such a situation may prophesy. There we said:
Prejudice may develop when an accused wishes to testify on one but not the other of two joined offenses which are clearly distinct in time, place and evidence. His decision whether to testify will reflect a balancing of several factors with respect to each count: the evidence against him, the availability of defense evidence other than his testimony, the plausibility and substantiality of his testimony, the possible effects of demeanor, impeachment, and cross-examination. But if the two charges are joined for trial, it is not possible for him to weigh these factors separately as to each count. If he testifies on one count, he runs the risk that any adverse effects will influence the jury's consideration of the other count. Thus he bears the risk on both counts, although he may benefit on only one. Moreover, a defendant's silence on one count would be damaging in the face of his express denial of the other. Thus he may be coerced into testifying on the count upon which he wished to remain silent.47
We have, however, been careful to point out that the accused's election to testify on some but not all of the charges on trial does not automatically require a severance.48 "Such a rule," we said in our Baker opinion,49 "in fact, would divest the court of all control over the matter of severance and entrust it to the defendant."50 There remains with the trial judge, we have indicated plainly, a discretion in the matter,51 though a discretion within limits narrowly confined by the exigencies of the situation. In the end, it is incumbent upon the judge "to weigh the considerations of `economy and expedition in judicial administration' against the defendant's interest in having a free choice with respect to testifying,"52 and to grant or deny the severance accordingly.
Careful examination and analysis of the record before us leads inevitably to the conclusion that the elements of prejudice from non-severance were minimal. Unlike Cross, the two joined offenses were not "clearly distinct in time, place and evidence;"53 rather, as we have said, they bore such a relationship that evidence as to each was mutually admissible upon trial of the other.54 Moreover, unlike Cross, our appellant was not "coerced into testifying on the count upon which he wished to remain silent;"55 instead as he told the trial judge he wished to do, appellant took the witness stand and testified to his alibi to the July 4 housebreaking, and said nothing at all as to the events of July 13. This course was greatly facilitated by the prosecutor's abstention from any cross-examination of appellant relative to the July 13 incident;56 additionally, there was no inquiry of appellant as to incriminating admissions he reportedly made to the police concerning that incident,57 and no impeachment by reason of any prior criminal conviction.58 Thus, unlike Cross, our appellant was able to testify on the charge he wished to counter without leaving himself "open to questioning concerning his generally tawdry way of life and his prior convictions."59
We must also reject appellant's claim that non-severance of the charges visited distinctive harm upon him by reason of an odious contrast of his testifying on the July 4 count and his remaining silent on the July 13 charge.60 Any hurtful implication derivable from such a contrast presumably could have worked to appellant's detriment only with respect to the charge on which he did not undertake to testify61 — the housebreaking of July 13 — and on that charge appellant was already in deep trouble. Appellant was caught red-handed inside the apartment on July 13 attempting to secrete himself, and the Government had the witnesses to prove it. Appellant's only explanation for being there was the lame excuse that he was brought there by a friend whose return he was awaiting — a friend who never returned and whose identity appellant refused to disclose to his captors.62
Thus the Government's case of housebreaking on July 13 was strong, and in the absence of some defense by appellant a verdict of guilty was practically inevitable. Defense counsel's arguments to the trial judge for severance of the counts contained no representation that appellant would proffer any sort of defense to the July 13 charge, and the arguments indicated that no such defense was contemplated, for either a joint or a separate trial. On that premise, we fail to see how the contrast in testimonial conduct in a joint trial could have added significantly to the damage inherent in leaving the Government's case on the July 13 incident completely undefended.63 If, on the other hand, a defense to that charge was planned, it was counsel's duty to so advise the trial judge in order that he could with greater intelligence exercise his discretion in the matter.64 By either route, we must hold that the judge's refusal of severance in the face of appellant's planned testimony on the July 4 count only does not constitute ground for a new trial.65
Lastly we reach the contention that appellant was prejudiced, in a manner not possible in separate trials of the two housebreaking counts, by remarks the prosecutor made to the jury and by a passage in the trial judge's charge to the jury. During the course of his closing argument, the prosecutor, addressing the July 13 housebreaking charge, said:
Do you know what he said, "A friend brought me there."
Now, I will tell you something, I would like to know where is that friend today. That's what he told James Anderson and that's what he told Charles Nowlin and that is what he said in the presence of Courtney Whitten, "Oh, I am here. A friend told me to wait here."
Where is the friend? Who is this friend?
If you were on trial and wound up in somebody's house by mistake because a fellow said, a person that you trusted said, "Wait here. I'll be right back. I am going around the corner to run an errand," why, you would be screaming from the roof tops that the friend is John Brown or John Jones or whoever it was that asked you to stay there. He lives at such and such an address and you would have him down here. You would have him here to testify to explain why you were in the house if you have an explanation, if you weren't a thief, if you weren't a burglar.
Appellant insists that this was an allusion to his failure to testify on the July 13 charge,66 but we encounter difficulty in reading the prosecutor's statements that way. The reference, certainly in broad import, was plainly to the explanation — that a friend had brought appellant into the apartment — which he gave Miss Whitten and her companions when he was found in the apartment on July 13, to his refusal to tell them who the alleged friend was, and to his failure to produce the friend as a witness at the trial.67 While it is arguable that one who "would be screaming from the roof tops" would later be testifying from the witness stand, the context would seem to permit at most only a weak inference to that effect.
Even so, as a reference to a missing defense witness, the prosecutor's comments were improper here. Although a witness' "testimony would elucidate the transaction,"68 as clearly the alleged friend's version might easily have done, a party's failure to call him justifies an adverse inference only if it was "peculiarly within his power to produce" the witness.69 Since the record before us is negative on that score, "one must speculate as to appellant's capability, and the more so as to one peculiar to him, to have brought forth * * * the uncalled witness."70 And as ever so recently we emphasized, "[w]e have expressly outlawed comment * * * on absent witnesses which would have the effect of suggesting that an inference be drawn against a defendant because he failed to call to the stand a witness who would have to incriminate himself."71 It is highly unlikely that the friend appellant claimed would not fall in this category.72
Though far less, if any, criticism can be directed toward the judge's charge, the passage under attack does give us pause. The court said:
Now, under our American system of jurisprudence, the defendant in a criminal case does not have to take the stand, does not have to testify in his own behalf. So, the defendant in this case was not required to take the stand in his own defense and had he failed to do so, his failure to take the stand would not be subject to any adverse inference.
The defendant in this case, however, did take the stand and so, while the law makes the defendant a competent witness in this case, you have the right to take into consideration his situation and his interest in the result of your verdict and all the circumstances which surround him, and to give to his testimony only such weight as in your judgment it is fairly entitled to receive. Appellant argues that the jury might possibly have taken this to mean that inasmuch as appellant had taken the witness stand to deny the July 4 housebreaking, an adverse inference could be drawn from his failure to say anything about the charge of housebreaking on July 13.73
In the special circumstances of this case, however, we are of the view that the events complained of do not afford ground for a new trial. There was no objection to the prosecutor's comments,74 and with the lack of objection was the loss of the most opportune occasion for investigating appellant's ability to produce the missing friend, if indeed there was one.75 Nor was there objection to the judge's charge,76 with the result that an opportunity for remedial clarification slipped by. More importantly, neither the prosecutor's statement nor the judge's was a pointed reference to appellant's omission to testify as to the second count;77 their harmful propensity, if any, lay in the domain of uncertain innuendo, and any harm actually ensuing would have affected only the July 13 charge.78 The Government's case on that charge was strong and convincing, considerably more so than on the July 4 count, and the absence of any sort of defense to the July 13 count rather clearly put the verdict thereon beyond peradventure of a doubt.
Under these conditions, we find it unnecessary to consider whether the prosecutor's observations or the judge's instructions were erroneous in the respects asserted by appellant. Other factors aside, the outcome on the second count, by our appraisal, was well nigh dictated by the Government's unopposed proof, irrespective of any adverse inference from appellant's silence in relation to it.79 With this, we are not disposed to conclude that the events now complained of, which went unchallenged in the trial court, could amount to plain error affecting substantial rights.80 And particularly with the added component that the likelihood that the jury actually drew any such inference is dubious, we feel "able to declare a belief that" any error there possibly could have been "was harmless beyond a reasonable doubt."81