Bell v. United States

332 A.2d 351, 1975 D.C. App. LEXIS 318
CourtDistrict of Columbia Court of Appeals
DecidedJanuary 30, 1975
Docket7208
StatusPublished
Cited by25 cases

This text of 332 A.2d 351 (Bell v. United States) is published on Counsel Stack Legal Research, covering District of Columbia Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. United States, 332 A.2d 351, 1975 D.C. App. LEXIS 318 (D.C. 1975).

Opinion

KELLY, Associate Judge:

Appellant was charged in separate indictments with numerous crimes relating to a liquor store holdup on May 4, 1972, and a kidnapping and related sexual offenses on May 5, 1972. He was thereafter convicted by a jury of armed robbery and two assaults with a dangerous weapon in connection with the incident of May 4th. In the companion case, the jury convicted appellant of armed robbery, assault with a dangerous weapon, kidnapping while armed, rape while armed and sodomy. In all, appellant was sentenced to a term of from twenty to sixty years in prison.

It is first urged on appeal that the join-der of the indictments for trial was so prejudicial to appellant as to require reversal despite the fact that it was defense counsel who moved for consolidation. We disagree.

As a general rule, where offenses in an indictment are misjoined and the *353 accused does not timely object, the objection is lost on appeal. Young v. United States, 109 U.S.App.D.C. 414, 288 F.2d 398 (1961), cert. denied, 372 U.S. 919, 83 S.Ct. 734, 9 L.Ed.2d 72S (1963). Similarly, if the court orders two or more indictments to be tried together pursuant to Super.Ct. Cr.R. 13 1 and it later appears that joinder is inappropriate, there must be a timely objection so that the court may fashion a suitable remedy under Super.Ct.Cr.R. 14. 2 In this case, however, it was appellant himself who initiated the joinder, so there was no objection at any stage of the proceedings to the joint trial. As a consequence, appellant cannot prevail on the issue of prejudicial misjoinder absent a finding that the trial judge should at some point have sua sponte ordered a severance.

Three kinds of prejudice warrant relief under Rule 14. If it appears that (1) the jury may cumulate evidence of separate crimes to find guilt; (2) the jury may improperly infer a criminal disposition and treat the inference as evidence of guilt, or (3) the defendant may become embarrassed or confounded in presenting different defenses to different charges. Blunt v. United States, 131 U.S.App.D.C. 306, 311, 404 F.2d 1283, 1288 (1968), cert. denied, 394 U.S. 909, 89 S.Ct. 1021, 22 L. Ed.2d 221 (1969). As to the latter potential for prejudice, there was no danger in this case that appellant would become embarrassed in presenting different defenses to the different charges since he presented only one, that of insanity.

The remaining types of prejudice may be negated in the two circumstances: (1) where the evidence of the offenses is mutually admissible at separate trials, and (2) where the evidence of each offense is sufficiently simple and distinct so as not to confuse the jury. Baker v. United States, 131 U.S.App.D.C. 7, 401 F.2d 958 (1968), cert. denied, 400 U.S. 965, 91 S.Ct. 367, 27 L.Ed.2d 384 (1970); Drew v. United States, 118 U.S.App.D.C. 11, 17-18, 331 F.2d 85, 91-92 (1964). If either of these standards is met, prejudice due to the^ tendency to infer criminal propensity and to the cumulative use of the evidence is negated! 3

In this case evidence of the two offenses would not be mutually admissible at separate trials; however, the evidence as to each crime charged was sufficiently simple and distinct to meet the test of Drew v. *354 United States, supra at 17-18, 331 F.2d at 91-92, that:

[I]f, 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 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 there is a possibility that the jury will become or has become confused, then, upon proper motion, the trial judge should order severance.

From a reading of this record we are satisfied beyond any reasonable doubt that the jury was properly able to relate the testimony to each of the offenses with which appellant was charged.

Moreover, in our judgment, there can be no claim of prejudice where a defendant himself moves for joinder and does not object to the admission of evidence of other crimes at trial for strategic reasons in order to prove a defense of insanity. Prejudice must be considered “in the light of what actually occurred after the consolidated trials went forward, not merely in terms of what might have been a proper course . . . when the motions . were made.” Dunaway v. United States, 92 U.S.App.D.C. 299, 302, 205 F.2d 23, 25 (1953). As the trial developed, it became apparent that counsel considered evidence of appellant’s antisocial behavior an aid in his case. When told at a bench conference that the rape victim would testify that appellant told her he had raped another woman and had spent time in jail before, counsel said: “I have no objection to that. It is consistent with our defense in fact.” The witness also testified, without objection, that appellant told her he had robbed a liquor store the day before. Counsel himself elicited testimony from the witness on cross-examination about these same matters and, in defense, introduced a great deal of evidence to show that appellant’s mental faculties were substantially impaired, including testimony that appellant was an alcoholic, had stabbed his brother, had stolen money from his father, and had tried to rape his sister. No objection was made to testimony elicited by the prosecutor that appellant had been in an institution for juveniles. Thus, much of the evidence of these crimes would have been introduced regardless of joinder, and the possibility of prejudice was certainly not enlarged by that factor alone. Under these circumstances, we are unable to say that the trial court’s failure to order a severance, sua sponte, was plain error requiring reversal.

II

The defense to the charges arising out of both incidents was insanity. Appellant’s mother related instances of his odd behavior in childhood and his prior contacts with penal authorities and psychiatrists. His father and sister corroborated this testimony, as did appellant himself. Additionally, Dr. Harold Kaufman, a psychiatrist, testified that appellant was suffering from a schizophrenic reaction, a psychotic disorder, and gave the basis for his diagnosis.

In rebuttal Dr. Robert H. Robertson, a staff psychiatrist at St. Elizabeths Hospital, explained the results of psychological tests given appellant at the hospital. He spoke of appellant’s familiarity with psychiatric terms and the criminal correctional procedures at St. Elizabeths. He said that appellant manifested no real psychiatric symptoms and showed strong signs of malingering. In his opinion, appellant’s actions on May 4 and 5, 1972, were the result of a free exercise of choice.

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Cite This Page — Counsel Stack

Bluebook (online)
332 A.2d 351, 1975 D.C. App. LEXIS 318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-united-states-dc-1975.