Carpenter v. United States

430 A.2d 496, 1981 D.C. App. LEXIS 267

• Court: District of Columbia Court of Appeals
• Decided: April 13, 1981
• Docket: 12044
• Status: Published

Opinions

NEWMAN, Chief Judge:

On January 24, 1977, a jury found appellant Elton Carpenter and a codefendant guilty of second-degree burglary (two counts), D.C.Code 1973, § 22-1801, grand larceny, D.C.Code 1973, § 22-2201, and destruction of property, D.C.Code 1973, § 22-403.¹ At trial appellant did not testify but his codefendant did. The court permitted the government, through rebuttal testimony by a police officer, to impeach the code-fendant with a confession which, on cross-examination, he had denied making. That hearsay confession implicated appellant. Before trial, the government had apprised the defense and the court that it would use this confession to impeach the codefendant if he took the stand and denied involvement. Appellant’s counsel then moved to sever the trials on the ground that the government had “indicated that the statement of the codefendant would be introduced into evidence, and this would be prejudicial.” The court denied the motion but later cautioned the jury, prior to closing argument and again before the jury retired, that the confession could be considered only against the codefendant — and only for the purpose of evaluating credibility.

Appellant raises two related issues on appeal. He contends, first, that the trial court abused its discretion in denying his motion to sever. We disagree. A motion to sever for prejudicial joinder is properly denied where, as here, excision of the prejudicial portions of the codefendant’s extrajudicial statement is a feasible alternative. In the present case the attempt to sanitize the statement went awry, with the result that an inadmissible, incriminatory reference to appellant came out through the officer’s testimony. Appellant’s second contention — that, after the attempt at redaction went awry, the trial court committed reversible error in concluding that a limiting instruction was a sufficient corrective— is likewise rejected. We conclude that the instructions adequately ameliorated any prejudice to appellant and affirm.

I

On April 29, 1976, at 5:44 a. m., the silent alarm system of the Peoples Drug Store at 4445 Wisconsin Avenue, N.W., signalled activity. The alarm monitor soon notified the Metropolitan Police Department; Officers Sevilla and Haworth quickly responded. As they approached the area at approximately 5:50 a. m., they observed a man in a dark coat emerge from the alley or entranceway alongside the Masonic Temple, which was adjacent to the drugstore. He proceeded along Wisconsin Avenue. The officers, slowly cruising past the entranceway, spotted two other men looking toward the street. The officers stopped the car and reversed direction. As they reached the entranceway, they saw the same two men begin to run in opposite directions. Officer Sevilla left the vehicle and pursued the maroon-jacketed man northward on foot, while Officer Haworth turned the car southward and drove after the white-jacketed individual.

Although he lost his suspect momentarily, Officer Haworth soon tracked him down, arrested and searched him, and found a ladies’ wristwatch still mounted on its velvet holder. The man was later identified as Lawrence Kitching, appellant’s codefend-ant.

Officer Sevilla lost his suspect. Nevertheless, other officers, who had learned from a police “lookout” that one suspect was still at large, soon spotted a person who matched the description running not far from the place where the second suspect had eluded Officer Sevilla. This newly seen individual fled from sight, but he was soon discovered, with the aid of police dogs, lying beneath an azalea bush in the backyard of a house. The arrestee, wearing a dusty maroon jacket, falsely identified himself as Randy Johnson. He offered the explanation that he had been waiting for a bus and had fallen asleep. Later, at the police station, Officer Sevilla identified this suspect as the man who had eluded him. Subsequent identification revealed that the suspect actually was appellant, Elton Carpenter.

While investigating the scene of the crime, police officers discovered near the stairs to the entranceway a green gym bag containing two crowbars, a screwdriver, a roll of tape, and fourteen watches and several radios. When both the Masonic Temple and drugstore proved to be locked, the police began to search for a means of entrance, ultimately discovering a hole in the roof of the Temple (which was accessible by ladder at the rear of the entranceway). Further investigation revealed a flagpole in the Temple in the area beneath the hole, as well as another hole leading from the Temple into the drugstore. There, the radio and wristwatch counter had been rifled and there was evidence the narcotics cabinet had also been disturbed. FBI agents compared debris collected from the tools and codefendant Kitching’s clothing with plaster from the burglarized premises and found them quite similar. Examination of appellant’s jacket, however, yielded no similar, incriminating evidence.

At trial, appellant introduced no defense evidence. Codefendant Kitching, however, testified, giving a detailed, innocent explanation of his presence in the area. On cross-examination, he denied any participation in the break-in and further denied having made an incriminating statement to the police about his and appellant’s entry of the Temple.² In rebuttal, the government offered Officer Gaine, who had spoken with Kitching at the police station. The officer testified that Kitching had given a statement implicating both himself and appellant in the crimes.³

After conclusion of the government’s rebuttal case, during discussion of proposed jury instructions with the court, appellant’s counsel, apropos of his pretrial severance motion, moved unsuccessfully for a mistrial based on Officer Gaine’s testimony about Kitching’s confession implicating appellant. Immediately prior to closing arguments, however, the court admonished the jurors that Kitching’s confession could be considered only for impeachment and only in codefendant’s Kitching’s case.⁴ Again, in the general charge at the end of trial, the court repeated these instructions and further, referring specifically to the confession, warned the jurors to consider the evidence against each defendant separately.⁵ The jurors deliberated, then convicted appellant and codefendant Kitching. After sentencing, appellant noted this appeal.

II

We emphasize at the outset that one defendant’s out-of-court confession is not admissible against a codefendant. Under the traditional rules of evidence, it constitutes inadmissible hearsay and has no legitimate probative force against the non-declarant codefendant. Sousa v. United States, D.C.App., 400 A.2d 1036, 1043 (1979); see Bruton v. United States, 391 U.S. 123, 128 n.3, 88 S.Ct. 1620, 1623 n.3, 20 L.Ed.2d 476 (1968); Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949); Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946); Jones v. United States, 119 U.S.App.D.C. 284, 287-88, 342 F.2d 863, 866-67 (1964) (en banc); C. McCormick, Evidence § 262, at 631 (2d ed. 1972). As we noted in Sousa v. United States, supra at 1043, “a fair trial requires that the factfinder determine the issues solely based on relevant and competent evidence as to each party,” and accordingly the trial court must take appropriate steps to ensure that a defendant is not prejudiced by testimony of a confessing co-defendant’s out-of-court statement. See Bruton v. United States, supra at 131 n.6, 133-34, 88 S.Ct. at 1625, n.6, 1626-27; Sousa v. United States, supra at 1043. Furthermore, although a motion to sever is properly made pretrial, once a severance issue is presented the court has a continuing duty to take adequate measures to guard against unfair prejudice from joinder. See Schaffer v. United States, 362 U.S. 511, 516, 80 S.Ct. 945, 948, 4 L.Ed.2d 921 (1960); Sousa v. United States, supra at 1041; United States v. Leonard, 161 U.S.App.D.C. 36, 46, 494 F.2d 955, 965 (1974); United States v. Wilson, 140 U.S.App.D.C. 220, 225-26, 434 F.2d 494, 499-500 (1970).

Ill

Appellant urges us to reverse his conviction on the grounds that the trial court abused its discretion under Super.Ct. Cr.R. 14 by failing to grant his motion to sever, with the result that the inadmissible, incriminating reference to appellant’s involvement in the burglary was heard by the jury.⁶ See, e. g., Bittle v. United States, D.C.App., 410 A.2d 1383, 1387 (1980); Sousa v. United States, supra at 1043; Smith v. United States, D.C.App., 312 A.2d 781, 788 (1973); United States v. Lemonakis, 158 U.S.App.D.C. 162, 485 F.2d 941 (1973). We find no abuse of discretion in the trial court’s refusal to sever. The record reflects an attempt, whether by the court or the government, to redact the testimony regarding defendant Kitching’s statement in order to eliminate any reference to appellant Carpenter.⁷ Under the applicable rules and case law governing severance, where redaction is feasible, severance may properly be denied.

A

Motions to sever for prejudicial joinder are governed by Super.Ct.Cr.R. 14, which provides:

If it appears that a defendant or the government is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the prosecutor to deliver to the court for inspection in camera any statements or confessions made by the defendants which the government intends to introduce in evidence at the trial. [Emphasis added.][⁸]

The broad language of Rule 14 (“whatever other relief justice requires”) permits the trial court to fashion a less drastic remedy than severance, where appropriate in the circumstances. See Sousa v. United States, supra at 1043.⁹ In Smith v. United States, supra, we recognized certain guidelines for a trial court faced with a situation where “an extrajudicial statement of one defendant, which implicates his codefendant[,] is sought to be introduced.” Id. at 788. These guidelines require that a trial judge first consider “delet[ing] from the statement all references to the nondeclarant co-defendant. If this is not feasible then a severance under Super.Ct.Cr.R. 14 should be granted on motion, or with the consent, of the nondeclarant defendant.” Id. (footnotes omitted). Deletion of incriminating references can be accomplished with a minimum of effort¹⁰ and has the concomitant results of preserving the advantages of judicial economy inherent in a joint trial while eliminating unnecessary and unfair prejudice to the codefendant. Implicit in Smith is a third alternative, that where redaction is impracticable, the government may instead choose to forego introduction of the statement as an alternative to severance.

In Smith itself reversal was constitutionally required because the declarant codefendant did not take the stand, violating the nondeclarant codefendant’s Sixth Amendment right to confront the witnesses against him. Bruton v. United States, supra. Nevertheless, the guidelines set out in Smith apply with equal force in “ non-Bru-ton ” situations — where the declarant code-fendant takes the stand no confrontation clause problem is presented. Rule 14 requires that the trial court take appropriate steps to minimize the prejudice inherent in codefendant confessions which are inadmissible against the nondeclarant defendant.

B

There is, traditionally, a presumption in favor of joinder, see Super.Ct. Cr.R. 8(b), because joint trials “do conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial.” Bruton v. United States, supra, at 134, 88 S.Ct. at 1626; see Johnson v. United States, supra at 367; Baxter v. United States, D.C.App., 352 A.2d 383, 385 (1976); United States v. Robinson, 139 U.S.App.D.C. 286, 289, 432 F.2d 1348, 1351 (1970). As we have often stated, the trial court, in exercising its discretion to sever, “must weigh prejudice to the defendant caused by the joinder against the obviously important considerations of economy and expedition in judicial administration.” Drew v. United States, 118 U.S.App.D.C. 11, 14, 331 F.2d 85, 88 (1964); accord, Bittle v. United States, supra at 1386; Johnson v. United States, supra at 367-68; Samuels v. United States, D.C.App., 385 A.2d 16, 18 (1978); Williams v. United States, D.C.App., 263 A.2d 659, 662 (1970); see C. Wright, 1 Federal Practice and Procedure § 223, at 441 (1969). In this balance some amount of prejudice will be permitted in favor of judicial economy and the concomitant expedition of cases. See, e. g., United States v. Gambrill, 146 U.S.App.D.C. 72, 83, 449 F.2d 1148, 1159 (1971) (some disparity in amount of evidence against codefendants allowed; only if there is gross disparity is severance required); Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966) (some conflict in defenses, less than such antagonism that jury will infer guilt from the conflict alone, allowed).

In weighing the prejudice to the defendant against the advantages of judicial economy, the trial court must look to the alleged “category of prejudice,” Williams v. United States, D.C.App., 382 A.2d 1, 8 (1978). In this context, some types of evidence have been held to be inherently prejudicial, such as evidence of other crimes. See Drew v. United States, supra at 15-17, 331 F.2d at 89-91 (other crimes evidence is presumed prejudicial unless evidence of two joined offenses is “simple and distinct”). See also Tinsley v. United States, D.C.App., 368 A.2d 531 (1976).

In Bruton v. United States, supra, the Supreme Court recognized that the out-of-court statement of a codefendant which implicates a nonconfessing defendant is likewise inherently prejudicial. Confessions and admissions that are “powerfully incriminating” present an especially great risk that limiting instructions will not be followed at potentially great prejudice to the non-confessing codefendant. 391 U.S. at 135-36, 88 S.Ct. at 1627-28. The Court held that where the incriminating references were not deleted and the declarant codefendant did not take the stand, limiting instructions were an insufficient alternative and severance was mandated by the confrontation clause of the Sixth Amendment. The Court further explicated the Bruton holding in Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971), where it held that when the declarant codefendant takes the stand and is available for cross-examination, the confrontation clause is not violated. Both the Bruton and Nelson holdings were based on the Sixth Amendment right to confrontation and did not address the additional question whether the trial court abused its discretion in ruling on a motion to sever for prejudicial joinder.¹¹ The Court has emphasized that the confrontation clause is not to be equated with the rules of evidence, Dutton v. Evans, 400 U.S. 74, 81-82, 91 S.Ct. 210, 215-16, 27 L.Ed.2d 213 (1970); California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 1933-34, 26 L.Ed.2d 489 (1970). See also Harrison v. United States, D.C.App., 407 A.2d 683, 686 (1979); United States v. Lemonakis, supra at 170, 485 F.2d at 949; United States v. Leonard, supra at 62, 494 F.2d at 981 (Bazelon, C. J., concurring in part and dissenting in part). Just as plainly, the opportunity to cross-examine does not operate to make the incriminating extrajudicial statement admissible against the nondeclarant codefendant. United States v. Leonard, supra at 62-63, 494 F.2d at 981-82 (Bazelon, C. J., concurring in part and dissenting in part); People v. Brown, 79 Cal.App.3d 648, 656-57, 145 Cal.Rptr. 130, 134 (1978). Perforce, satisfaction of a defendant’s Sixth Amendment right to confrontation under the Bruton-Nelson standard does not terminate the trial judge’s continuing duty to take adequate steps to reduce or eliminate any prejudice arising from joinder.

C

The highest courts of several states, as well as a number of federal courts, have announced standards, similar to those we adopted in Smith, to govern cases in which the prosecution proposes to introduce evidence of an out-of-court statement by one defendant that implicates a codefendant. In California, for example, the Supreme Court held under its rules of practice applicable to severance that the trial court can permit a joint trial only “if all parts of the extrajudicial statements implicating any co-defendants can be and are effectively deleted without prejudice to the declarant;” otherwise, if the prosecution is to use the statement against the defendant who made it, there must be separate trials. People v. Aranda, 63 Cal.2d 518, 530-31, 407 P.2d 265, 272-73, 47 Cal.Rptr. 353, 360-61 (1965) (Traynor, C. J.); accord, People v. Brown, supra at 657, 145 Cal.Rptr. at 134; People v. Barbaro, 395 Ill. 264, 270, 69 N.E.2d 692, 695 (1946); State v. Rosen, 151 Ohio St. 339, 342, 86 N.E.2d 24, 26 (1949); see United States v. Cleveland, 590 F.2d 24, 28 (1st Cir. 1978); United States v. Grant, 549 F.2d 942, 948 (4th Cir. 1977); United States v. Truslow, 530 F.2d 257, 261-62 & n.3 (4th Cir. 1975); United States v. Johnson, 478 F.2d 1129 (5th Cir. 1973); Schaffer v. United States, 221 F.2d 17, 19 (5th Cir. 1955); Reed v. People, 174 Colo. 43, 49, 482 P.2d 110, 113 (1971); State v. Fullen, 7 Wash.App. 369, 499 P.2d 893 (1972), cert. denied, 411 U.S. 985, 93 S.Ct. 2282, 36 L.Ed.2d 962 (1973).¹²

Indeed, and perhaps more importantly, redaction of a defendant’s admissions which implicate a codefendant has been required by the United States Court of Appeals for the District of Columbia Circuit in cases that have precedential weight for this court. See M.A.P. v. Ryan, D.C.App., 285 A.2d 310 (1971). In Oliver v. United States, 118 U.S.App.D.C. 302, 335 F.2d 724 (1964), a case preceding the Supreme Court’s opinion in Bruton v. United States, supra, the court in a “non-Bruton” situation applied the rule of Kramer v. United States, 115 U.S. App.D.C. 50, 317 F.2d 114 (1963) (a “Bruton-type” case, although also decided before Bruton), which states that references to a nondeclarant codefendant must be deleted or a motion for severance granted. In Sims v. United States, 132 U.S.App.D.C. 111, 113, 405 F.2d 1381, 1383 (1968), the court in a brief per curiam opinion held that severance was required where multiple instances of hearsay were admitted subject to instructions limiting admissibility to each respective declarant codefendant. The Sims court regarded the error as a Rule 14 severance question, not a confrontation clause problem, and applied Bruton and Kramer without indicating whether the several de-clarants had testified. See also Jones v. United States, supra at 287-88, 342 F.2d at 866-67 (ineffective redaction of statements which are inadmissible against nondeclarant codefendants requires reversal). Nothing subsequent to Oliver, Kramer, and Sims suggests that the rule applied in those cases should be abandoned or modified. Indeed, Sims was cited as authority by this court in Smith v. United States, supra at 788, and we cited Oliver, along with Smith, as authority in Sousa v. United States, supra at 1043, see note 9 supra.

The guidelines adopted in Smith and approved in Sousa for “non-Bruton” situations, 400 A.2d at 1043, allow redaction of a statement in lieu of severance. A third alternative, exclusion, can be added to the Smith guidelines. The government may decide to forego any use of the statement, thereby eliminating any prejudice and avoiding a need for severance. See People v. Aranda, supra at 530-31, 407 P.2d at 272-73,47 Cal.Rptr. at 360-61. These three alternatives — redaction, exclusion, or severance — comprise the proper standard for use in most cases¹³ under Rule 14 when the court is presented with a motion for severance based on a codefendant’s confession, whether or not the codefendant takes the stand and testifies. See Sousa v. United States, supra at 1043; Smith v. United States, supra at 788. See also People v. Aranda, supra; Reed v. People, supra; People v. Barbaro, supra; State v. Rosen, supra; State v. Fullen, supra; ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance § 2.3(a) (Approved Draft, 1968).¹⁴

We need not, however, adopt the per se rule of Aranda, Barbaro and Rosen that limiting instructions may never suffice to eliminate prejudice from a confessing codefendant’s hearsay statement. Indeed, in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), a plurality of the Court had opportunity to reiterate the maxim that “[a] crucial assumption underlying [the jury] system is that juries will follow the instructions given them by the trial judge.” Id. at 73. Nevertheless, the trial court is under a duty to minimize potential prejudice to a codefend-ant. The admission of those portions of a codefendant’s statement that contain inadmissible, incriminating references to a non-confessing defendant is properly disfavored, see Sousa v. United States, supra at 1043. Thus, whenever such portions may be effectively deleted and the statement thus “sanitized,” that is the proper course for the trial court to follow. As government counsel in this case has conceded, with commendable candor, “[t]he government has no legitimate interest in smuggling before the jury evidence which is inadmissible.” Yet, in a certain, limited class of cases, where the references to the nonconfessing defendant are so intertwined within the confessing defendant’s statement that redaction is impracticable¹⁵ and the references are not significantly incriminating, it may be appropriate for the trial court, after weighing the alternatives, and recognizing the desirability of excluding inadmissible evidence, to admit the statement with limiting instructions.

D

In the instant case, the trial judge properly denied the appellant’s pretrial motion to sever. The record indicates that an attempt at redaction was made instead. Redaction was proper in this case because it could be easily achieved by substituting “accomplice” or some other neutral term in lieu of a direct reference to Carpenter by name (or as “codefendant”) in Officer Gaine’s testimony regarding Kitching’s statement. The use of the term “accomplice” would be neutral since the fact that the burglary was carried out by several persons was already established by the evidence. The mere corroboration of this fact by Kitching’s confession cannot be deemed prejudicial to appellant. See State v. Herd, 14 Wash.App. 959, 546 P.2d 1222 (1976).

IV

Despite the attempt at redaction, an incriminating reference to Carpenter’s participation in the burglary was included in Officer Gaine’s testimony. Appellant contends that even if his motion to sever was properly denied, this single reference, despite limiting instructions, requires reversal. At the point where redaction goes awry, the trial court must determine whether cautionary instructions will be a sufficient corrective or a mistrial must be declared. After considering the nature of the reference, the scope of the limiting instructions, and the other evidence in the case, we hold that the cautionary instructions were sufficient to ameliorate any prejudice from the inadmissible, incriminating reference to appellant Carpenter.

Where statements are oral, the trial court may take appropriate steps to delete prejudicial references, yet there still exists the possibility of inadvertent slips that could potentially prejudice the codefendant. Nevertheless, the possibility of inadmissible testimony being uttered inadvertently in front of the jury is a constant but acceptable risk inherent in all oral testimony. As the Court noted in Bruton v. United States, supra:

Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently. “A defendant is entitled to a fair trial but not a perfect one.” [Id. at 135, 88 S.Ct. at 1627 (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 490, 97 L.Ed. 593 (1953)).]

See United States v. Chee, 422 F.2d 52, 54 (9th Cir. 1970) (witness stopped in mid-sentence to prevent inadmissible testimony of prior bad act); cf. Scott v. United States, D.C.App., 412 A.2d 364, 370-71 (1980) (possibility of jury contamination from witness’ remarks during bench conference).

When inadmissible evidence has come before a jury, the grant or denial of a motion for mistrial is committed to the sound discretion of the trial court. Rink v. United States, D.C.App., 388 A.2d 52, 58 (1978) (improper prosecutorial question); Hammond v. United States, D.C.App., 345 A.2d 140, 141 (1975) (courtroom outburst); cf. Evans v. United States, D.C.App., 392 A.2d 1015, 1026 n.15 (1978) (unauthorized and unrelated evidence introduced into jury room). The trial court did not err in giving limiting instructions in lieu of granting a mistrial. The reference to Carpenter in Officer Gaine’s testimony was a direct but limited one. The trial court gave two sets of limiting instructions, one set after the rebuttal testimony and a second set as part of the general charge to the jury. In addition, the trial court could properly consider the nature of the quality and quantity of the evidence against Carpenter in determining whether limiting instructions would be a sufficient corrective.¹⁶

The government’s evidence established that minutes after the silent alarm was triggered, appellant was spotted wearing a maroon jacket and crouched by the en-tranceway to an alley adjacent to the burgled drugstore. He was seen running from the alley and was pursued, eluding capture by additional police officers for only a few minutes. The officers found appellant hiding under an azalea bush in the back yard of a house. He gave a false identification and an inherently incredible explanation of his presence under the bush. At the en-tranceway to the alley from which he had fled was found a gym bag containing goods stolen from the drugstore and tools used to break into the store. In view of this evidence, the limited nature of the inadmissible incriminating reference, and the two sets of limiting instructions, we find that the trial court did not err in denying the motion for a mistrial.

Affirmed.

1 . The court sentenced appellant to concurrent terms of four to twelve years on each burglary count, and of one to three years on both the grand larceny and destruction of property counts.

2 . [Prosecutor:] You told him about the flagpole and how Mr. Carpenter had put the flagpole over and you had shimmied down the flagpole?

******

[Kitching:] No, 1 ain’t tell him all about that.

3 . [Prosecutor:] Did you then discuss with [co-defendant Kitching] the facts of the burglary?

[Officer Gaine:] Yes, I did.

Q What did he tell you?

A He stated that he had mentioned people had come in a car to the scene of the offense. They’d gone to the building. They had cut a hole through the roof. His codefendant had jumped from the roof into the building, and then slid a flagpole over the hole in the roof, and that he and another accomplice had then slid down the flagpole. They had then chopped through the wall into the false ceiling to the Peoples Drugstore and pushed piles in there and dropped through that into the Peoples Drugstore.

Q At the time you were having this discussion with Mr. Kitching, was there another person that had also been arrested that was nearby?

A Yes, there was.

Q Who was that?

A That was at that time Randy Johnson, as 1 knew him, but later to be identified as Elton Carpenter.

Q Had Mr. Kitching had an opportunity to see this other person?

A Yes, he did.

Q When was that?

A When Mr. Kitching was sitting in the interview room, the door was open to the interview room when Defendant Carpenter was brought into the Detectives’ Office and taken to a second interview room. The two rooms are adjacent to each other.

Q When he was brought there, did he walk by the door of the room where Mr. Kitching was seated?

Q Was Mr. Kitching facing in that direction?

A Yes, he was.

4 . THE COURT: ...

Evidence has been introduced that the defendant confessed he committed the crime as charged. The defendant’s alleged confession is admitted into evidence solely for your consideration in evaluating his credibility as a witness. The testimony of a defendant may be discredited or impeached by showing that he has previously made statements which are inconsistent with his present testimony. The prior statement is admitted into evidence solely for your consideration in evaluating the credibility of the defendant. It is not to be considered as evidence of the defendant’s guilt of the offense with which he’s charged. You may not consider the alleged confession as establishing the truth of any fact contained in it, and you must not draw any inference of guilt against the defendant from his alleged confession. You may consider it only in connection with your evaluation of the credence to be given his present testimony here in court.

A voluntary confession constitutes evidence only against the defendant making it. It is not evidence against any other defendant. You must not consider it in any way in determining the credibility of any other defendant.

5 . THE COURT:

Certain evidence was admitted only with respect to a particular defendant and not against any other defendant. This is referring to the confession. You may consider such testimony only with respect to the defendant against whom it was offered. You must not consider it in any way in your deliberations with respect to any other defendant.

6 .Appellant also contends that the admission of codefendant Kitching’s statement into evidence at their joint trial denied appellant the due process of law under the Fifth Amendment. Due process requires that a defendant receive a fair trial but does not prohibit the use of limiting instructions in all cases. See Spencer v. Texas, 385 U.S. 554, 565, 87 S.Ct. 648, 654, 17 L.Ed.2d 606 (1967); cf. Bassett v. Smith, 464 F.2d 347 (5th Cir. 1972), cert. denied, 410 U.S. 991, 93 S.Ct. 1509, 36 L.Ed.2d 190 (1973) (due process clause permits states wide latitude in framing rules of evidence and procedure). Admission of a codefendant’s confession with limiting instructions, even if an error in the exercise of the court’s discretion under Rule 14, would not necessarily constitute a constitutionally unfair procedure. Severance under Rule 14 has traditionally been committed to the sound discretion of the trial court. See Sousa v. United States, supra at 1041; Johnson v. United States, D.C.App., 398 A.2d 354, 367 (1979). We decline to hold that Fifth Amendment due process per se requires exclusion of all codefendant confessions regardless of the extent of prejudice or attempts to alleviate such prejudice.

7 . Officer Gaine modified his testimony, from stating in pretrial proceedings that Kitching explicitly named Carpenter, to his trial testimony, wherein Gaine used the word “codefend-ant” instead. See note 3 supra.

8 . See also D.C.Code 1973, § 23-313 (codification of Rule 14); Fed.R.Crim.P. 14 (identical in substance to Super.Ct.Cr.R. 14).

9 . In Sousa we stated:

Rule 14 provides the trial court a panoply of tools to accomplish this task. Severance is one of them. However, in appropriate circumstances, other remedies may suffice. One such is to sanitize the confession or admission to delete all references to the non-declarant codefendants. [Sousa v. United States, supra at 1043 (citing Smith v. United States, supra at 788, and Oliver v. United States, 118 U.S.App.D.C. 302, 305-06, 335 F.2d 724, 727-28 (1964)).]

10 . Although deletion of prejudicial references will often be easier in written statements or in tape recordings, see, e. g., Lemonakis v. United States, supra at 170, 485 F.2d at 949, an oral statement may also be sanitized. See, e. g., Sousa v. United States, supra at 1043. Rule 14 specifically provides for examination of statements or confessions by the trial court in camera, although in many cases, as in this one, it will be presented to the court in a pretrial suppression hearing.

11 . The holding in Nelson v. O’Neil, supra at 629-30, 91 S.Ct. at 1727-28, was explicitly narrow: “|T]he defendant has been denied no rights protected by the Sixth and Fourteenth Amendments.” In Bruton the appellant never made a motion to sever, Evans v. United States, 375 F.2d 355, 361 (8th Cir. 1967), rev’d sub nom. Bruton v. United States, supra, so neither the trial nor appellate courts addressed a Rule 14 severance question.

The Court’s recent opinion in Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979), reaffirmed Nelson v. O’Neil and held that where the “interlocking” confessions of each of two codefendants are introduced, the confrontation clause is not violated although neither codefendant takes the stand. A plurality of four Justices adopted a per se rule with regard to “interlocking” confessions, id. at 69-76, 99 S.Ct. at 2137-2141, while a fifth Justice concurred in the judgment on a harmless error analysis, id. at 77-81, 99 S.Ct. at 2141-2143 (Blackmun, J., concurring).

12 . After Nelson v. O’Neil, supra, the California Supreme Court decided two cases solely on the basis of a Bruton-Nelson Sixth Amendment analysis, without expressly dealing with Aran-da’s reliance on the state severance rules. See People v. Steger, 16 Cal.3d 539, 551, 546 P.2d 665, 672-73, 128 Cal.Rptr. 161, 168-69 (1976); In re Rosoto, 10 Cal.3d 939, 951-52, 519 P.2d 1065, 1073, 112 Cal.Rptr. 641, 649, cert. denied, 419 U.S. 897, 95 S.Ct. 177, 42 L.Ed.2d 141 (1974). A California Court of Appeals, however, has recently reaffirmed Aranda, emphasizing that the principles set forth in Aranda, “are to be regarded, not as constitutionally compelled, but as judicially declared rules of practice .... ” People v. Brown, supra at 656, 145 Cal.Rptr. at 134 (quoting Aranda, supra at 530, 407 P.2d at 272, 47 Cal.Rptr. at 360).

13 . But see text accompanying note 15 infra.

14 . ABA Standard § 2.3(a) provides:

2.3 Severance of defendants.

(a) When a defendant moves for a severance because an out-of-court statement of a codefendant makes reference to him but is not admissible against him, the court should determine whether the prosecution intends to offer the statement in evidence at the trial. If so, the court should require the prosecuting attorney to elect one of the following courses:

(i) a joint trial at which the statement is not admitted into evidence;

(ii) a joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been deleted, provided that, as deleted, the confession will not prejudice the moving defendant; or

(iii) severance of the moving defendant.

15 . To effectively safeguard a codefendant’s right to severance for prejudicial joinder, redaction must effectively eliminate from the out-of-court statement all references to the nonde-clarant codefendant. This includes references which, when placed in conjunction with the redacted statement, make it clear the deleted portions or names refer to the codefendant. See Parker v. Randolph, supra at 67 n.3, 99 S.Ct. at 2136 n.3 (substitution of “blank” or “another person” nevertheless left “no possible doubt in the jurors’ minds concerning the ‘person[s]’ referred to” (citation omitted); United States v. Danzey, 594 F.2d 905 (2d Cir. 1979) (substituting “blank” for codefendant’s name ineffective in eliminating prejudice); Jones v. United States, supra at 287, 342 F.2d at 866; Dawson, Joint Trials of Defendants in Criminal Cases: An Analysis of Effíciencies and Prejudices, 77 Mich.L.Rev. 1379, 1413-15 (1979) (excisions may call attention to fact that statement implicates other persons).

16 . The government contends that the trial court may rely on the existence of “substantial independent evidence,” (quoting Borrero v. United States, D.C.App., 332 A.2d 363, 366 (1975) (application of harmless error standard) ) to justify the admission of an unredact-ed confession subject to limiting instructions. While the existence of other evidence may be considered in determining whether limiting instructions are sufficient where redaction goes awry, the trial court will generally not be apprised of the nature of the quality and quantity of the evidence at the time when a severance motion is made. In addition, the existence of other evidence is no basis for avoiding the exercise of the trial court’s discretion. See Note, Joint and Single Trials Under Rules 8 and 14 of the Federal Rules of Criminal Procedure, 74 Yale L.J. 553, 556 (1965):

The function of [Rule 14] is to avoid prejudice before the fact by segmenting trials; the question presented by the rule is that of the proper guides and standards for exercise of trial court discretion when the defendant has moved for relief from prejudicial joinder.... [A]fter the fact determinations of whether the failure to grant the proper relief has been cured ... fail to identify the cause of prejudice and[,] since they do not specify the situations in which single trials should be granted in order to prevent prejudice, they provide the trial courts with no meaningful standards to guide their exercise of discretion under Rule 14.

See generally Decker, Joinder and Severance in Federal Criminal Cases: An Examination of Judicial Interpretation of the Federal Rules, 53 Notre Dame Law. 147, 169 (1977).