United States v. Oliver

14 C.M.A. 192, 14 USCMA 192, 33 C.M.R. 404, 1963 CMA LEXIS 203, 1963 WL 4876

• Court: United States Court of Military Appeals
• Decided: August 16, 1963
• Docket: No. 16,670
• Status: Published

Opinions

Opinion of the Court

Quinn, Chief Judge:

Appellant contends he was deprived of a fair trial because he was tried jointly with a co-accused who entered a plea of guilty in open court. The Government maintains that since the accused failed to move at trial for a severance he waived any error that might be present. See United States v Baca, 14 USCMA 76, 33 CMR 288.

In the Baca case, we noted the general rule that failure to move for a severance “at an appropriate time constitute a waiver.” Id. at page 78. Here, the accused moved for a severance before the convening authority before the charges were referred to trial, but he did not renew the motion at trial. It would appear, therefore, that the Government’s argument raises two preliminary questions: (1) Is a motion for a severance made at an appropriate time, if it is made to the convening authority before reference of the charges to trial; (2) if a motion before the convening authority is appropriate, is the accused entitled to appellate review of an adverse ruling, without renewing the motion at trial? The questions invite discussion, but we prefer to pass directly to the merits of the accused’s contention.¹

At the time of the offenses, the accused was eighteen years old. His partner in crime was his roommate, Vivion Hadley, a thirty-five-year-old airman with more than sixteen years of service. The offenses with which they were jointly charged were housebreaking, and larceny of a tape recorder, a television set, and a stereo record player, from fellow airmen. During the Air Police investigation, both accused initially denied knowledge of the offenses, but later each separately gave a statement confessing the crimes. A number of variations of detail appear in the statements; the main difference is that Hadley charged the accused with originating the idea for the-offenses and with effecting the arrangements for concealing the stolen property, whereas the accused said Hadley was responsible for these parts of the transaction.

After the Article 32 investigation, but before the charges were referred to trial, the accused asked the convening authority for a severance. Unfortunately, the request was not made part of the record. See United States v Dean, 7 USCMA 721, 23 CMR 185. However, the staff judge advocate discussed the request at length in his pretrial advice, and the accused does not now challenge the accuracy or the completeness of his statement of its terms. We are satisfied that the grounds relied upon by the accused are adequately indicated in the pretrial advice. In substance, the accused contended Had-ley forced him to participate in the offenses. He said Hadley threatened to “whip” him. Hadley had “bullied” him generally in the months they had been roommates, and on a number of occasions had threatened him with a knife. He weighed about one hundred pounds more than the accused, and the accused was afraid of him. The staff judge advocate concluded the accused’s request was insufficient to raise the defense of duress. He also indicated that a separate trial would not give the accused “any more opportunity to place the blame on Hadley for being ringleader than” he would have in a joint trial. However, he recognized the “dilemma” of defense counsel in representing both the accused and Hadley. Consequently, he recommended that separate counsel be appointed. See United States v Faylor, 9 USCMA 547, 26 CMR 327.

No direct ruling on accused’s request appears in the record, but the convening authority noted his concurrence in the pretrial advice and, in fact, appointed separate counsel for Hadley. At trial, the motion for a severance was not renewed. Hadley pleaded guilty to both offenses, but the accused pleaded not guilty. The accused testified in his own behalf substantially in line with the statement submitted in connection with the request for a severance, as indicated in the pretrial advice.

Two separate grounds for a severance are presented by the material facts. The first concerns the accused’s defense of coercion; the second relates to Hadley’s plea of guilty and the introduction of his confession.

Antagonistic defenses among co-accused are not uncommon; and the existence of a conflict does not necessarily require the grant of a severance. United States v Johnson, 14 CMR 842, 846. Assuming, without deciding, that coercion of one by another is sufficient to justify a severance, the person who allegedly exerted the coercion, not the purported victim, is the one burdened by the defense. See Dauer v United States, 189 F2d 343 (CA10th Cir) (1951), cert den, 342 US 898, 96 L ed 672, 72 S Ct 232 (1951). Obviously, use of an innocent person to effectuate a crime aggravates the wrong. Consequently, Hadley, not the accused, was the one who could claim disadvantage by a joint trial. In fact, at trial, Hadley’s lawyer did complain; he maintained that the accused’s testimony that he was coerced by Hadley prejudiced his client “without any opportunity for . . . [him] to answer it.” We conclude that so far as antagonism of defense between the accused and Hadley is concerned, no prejudice resulted to the accused from the joint trial.

As to Hadley’s plea of guilty and the admission in evidence of his confession, we are mindful, as we pointed out in the Baca case, that a potential for prejudice exists against an accused who pleads not guilty before a court-martial, when a co-accused is allowed to plead guilty before ■ the same court. We are also aware of the ineffectiveness of an instruction to limit consideration óf a confession to the accused who made it, where the confession implicates a co-accused, and the two are “inseparably connected” with the crime. See United States v Baca, supra, and cases cited, at page 78. However, the evidence in this case compellingly indicates there was no possibility of harm to the accused from either Hadley’s plea or confession. Both in his pretrial statement to the Air Police, which was admitted into evidence without objection, and in his testimony at trial, the accused confessed he committed the offenses with Hadley. To escape liability, he contended he was coerced by Hadley. His defense stands completely apart from Hadley’s plea and confession. It was submitted "to the court-martial, along with other instructions that none of the evidence against Hadley could be considered in “connection with the guilt or innocence of the accused Oliver.” As the case was tried, therefore, there is no fair risk that the court-martial drew any inferences adverse to the accused from Hadley’s plea and confession. United States v Baca, supra.

The decision of the board of review is affirmed.

1 It is worth noting that matters advanced in support of a preliminary motion for a severance may sometimes be better appraised in light of the conditions actually existing at trial; and sometimes events intervening between the motion and trial may materially affect the circumstances upon which the movant initially relies. See United States v Kahaner, 203 F Supp 78 (SD NY) (1962); United States v Van Allen, 28 FRD 329 (SD NY) (1961); United States v Haupt, 136 F2d 661, 673-674 (CA7th Cir) (1943).