Appeals from the United States District Court for the Southern District of Illinois, East St. Louis Division. No. 80-Cr-30013 -- William L. Beatty, Judge.
Posner, Circuit Judge, Davis,*fn* Associate Judge, and Coffey, Circuit Judge.
This case repres ents an appeal from the defendants' convictions in the United States District Court for the Southern District of Illinois of conspiracy to kidnap, 18 U.S.C. § 371, kidnapping, 18 U.S.C. § 1201(a) (1), and transporting a stolen motor vehicle in interstate commerce, 18 U.S.C. § 2312. Affirmed.
The appellant James Best contends that the trial court erred in denying his motion to sever his case from that of appellant Madison. Best further contends that the trial court erred in denying his motion to suppress the statements he made to police officers because he alleges that he was forced to give the statements in violation of his fifth amendment right to remain silent. Finally, Best asserts the trial court erred in denying his motion to suppress his confession and challenges the government's calling only three to five witnesses present at the time he gave his confession.
Appellant Byron Madison challenges his conviction and asserts that the trial court erred in allowing a government witness to testify that Best made the statement that "someone else" had held the gun Best was accused of using to threaten the kidnap victim, and that this ruling denied Madison his sixth amendment right to confrontation. Madison further asserts that the evidence introduced at trial was insufficient to establish his guilt beyond a reasonable doubt. Finally, Madison alleges that the trial court abused its discretion in using a presentence report that recited criminal offenses that he had allegedly participated in but which in fact had either been dropped or were pending.
At the trial of the defendants, witnesses testified that on the evening of April 8, 1980, Alana Fahland and Denise Johns left work at Stouffer's Riverfront Towers in downtown St. Louis, Missouri and went to Alana's car approximately two blocks away intending to drive around and talk during Alana's thirty minute lunch break. Both women entered the vehicle, with Alana in the driver's seat and Denise in the passenger seat. Each of these women testified that they observed two men, identified as the defendants Madison and Best, walking toward their car, causing each of them apprehension, anxiety and fear for their safety. At this time they locked the car doors. The defendants walked past the vehicle and stopped to talk behind the car. Next the defendants approached the car on the driver's side and one of them tapped on the window. Alana rolled down the window approximately four inches and asked the defendants what they wanted. Alana testified that one of the defendants held up a rolled up plastic bag and offered to sell them some "reefer." The other defendant asked the women if they had jumper cables and would they assist them (the defendants) in starting their automobile. The women declined both suggestions. At this moment Best thrust his hand through the open driver's window and pointed a gun at Denise and yelled "Don't move, I will shoot," and Madison ran to the other side of the car. Alana started rolling up the window and started the car, and Best began hitting her on the back of her head with the gun, shouting "open the door." Both women opened their doors and started to exit from the car. Best forced Alana back into the car while Denise exited from the passenger side and proceeded toward the street. Defendant Madison followed Denise, and ordered her to "Get in the car or I will shoot." Denise refused to return to the car and attempted to flag down a passing vehicle. Alana testified that at this point Madison gave up the pursuit of Denise, returned to the car and entered the back seat area.
Best, after demanding the car keys and receiving them, drove the stolen vehicle with the kidnap victim over various streets in St. Louis, crossing over the MacArthur Bridge, which spans the Mississippi River between the states of Missouri and Illinois. While crossing the bridge, Madison ordered Alana to turn her purse over to him and after she complied, and Madison, when unable to find any money, demanded she tell him where the money was located. Alana answered that she had no money on her person and placed her hand on the door handle, in an attempt to escape. When Best, the driver, noticed Alana's hand on the door handle he said "Don't think about jumping out" and ordered Madison to lock all the doors. At this point, Best forced Alana's head downward between her knees resulting in her no longer being able to see the surroundings of the area she was passing through.
Next, as Madison ordered Alana to get into the back seat with him, he grabbed her left arm while pulling her through the opening between the bucket seats into the back seat. Once Alana was in the back seat, Madison forced her head onto his lap, unbuttoned her vest and shirt and placed his hand inside her shirt.
Best continued driving the stolen car into East St. Louis, Illinois, while Madison continued to molest Alana. At this point, Madison unzipped his pants and ordered Alana to commit oral sodomy upon him. Alana refused and continued to protest and object to Madison's advances.
After driving for a short period, Best stopped the car in the rear of a building and then proceeded into an adjacent yard, a more secluded area, and parked the car and departed therefrom. At this time, Madison again ordered Alana to commit an act of oral sodomy and Alana again refused, until Madison threatened her with a gun, stating "make your choice, this or this." In fear for her life, Alana complied, and then Madison proceeded to force Alana down onto the seat, removed her undergarments and "started having intercourse."
After a period of time, as Madison observed Best returning to the car, he directed Alana to put her clothes back on. Madison got into the front seat as Best approached the car, and at this time Best queried Madison what Alana was doing in the back seat and stated that she "looked hurt or something." Madison replied that nothing had happened and Best left. Madison put on a pair of gloves and drove the vehicle back out of the yard near the building onto the street. At this point, Madison exited the car and directed Alana, his kidnap/rape victim, to drive back to Missouri and tell the police she had been picked up, taken to East St. Louis and robbed. While Madison remained in East St. Louis, Alana drove her car from the Illinois side of the river back across the MacArthur Bridge to St. Louis. She returned to the same parking lot and was met by Denise and the police, who after taking statements began to conduct an investigation.
That same evening, while investigating the abduction and rape of Alana Fahland, one of the officers of the St. Louis Police Department observed through the window of an automobile parked in the Stouffer's parking lot several pillows reported stolen from a van earlier that evening. Believing that the automobile might belong to someone connected to the abduction of Alana Fahland, and because it contained what he believed was stolen property, the officer seized the car and had it towed to the police station as evidence. The officer checked the vehicle's registration and Best was identified as the owner of the vehicle, and when he (Best) appeared at the police station the following day to claim his car, he was put under arrest. Alana Fahland, the rape/kidnap victim, and Denise Johns were called to the police station to view a line-up and after each of the young ladies viewed the line-up independent of each other, each of them identified Best as being involved in the kidnapping. Thereafter, Best admitted his guilt in the kidnaping and told the officers that Madison was also involved. Byron Madison was arrested shortly thereafter.
The defendants were indicted for conspiracy to kidnap, kidnaping, and transporting a stolen vehicle across state lines. At the trial, the prosecution presented the testimony of Alana Fahland, Denise Johns and Detective Carl Clifton. Neither Madison nor Best testified nor presented any evidence. The jury rendered verdicts of guilty as to each defendant on all three counts.
1. Did the district court err in denying Best's motion to sever his case from that of appellant Madison?
2. Did the trial court err in denying Best's motion to suppress the statements made by Best to the police officers on the grounds that Best's statements were given in violation of his "fifth amendment right" to remain silent?
3. Did the trial court err in denying Best's motion to suppress his confession where the government called only three of the five witnesses present at the time Best gave his confession? Madison
1. Was Madison deprived of his sixth amendment right of confrontation, as he contends in violation of the Bruton rule, when a government witness was permitted to answer "yes" when queried by Best's attorney as to whether Best told the witness "someone else" had the gun which was used to threaten the kidnap victim?
2. Was the evidence sufficient to support Madison's conviction?
3. Did the trial court abuse its discretion in the sentencing of Madison when it relied upon a presentence report reciting criminal offenses that he had allegedly participated in but which in fact had either been dropped or were pending? Best
Best argues that the district court erred and abused its discretion in denying his (Best's) pretrial motion to sever his case from Madison's and grant separate trials. It is Best's position that he was prejudiced by the trial court's denial of severance on the grounds that the respective defenses of the co-defendants were antagonistic and inconsistent with each other because each defendant was guilty. Best argues that denying his motion to sever resulted in prejudice to both defendants. "It [is] within the sound discretion of the trial judge as to whether the defendants should be tried together or severally . . ." Opper v. United States, 348 U.S. 84, 95, 99 L. Ed. 101, 75 S. Ct. 158 (1954), and the trial court's ruling on a motion to sever will be overturned on appeal only if the defendant can clearly establish an abuse of discretion. Id. Since our review of the record reveals no abuse of discretion in the trial court's denial of Best's motion for severance, we hold this argument is without merit.
"The general rule is that persons jointly indicted should be tried together, especially in conspiracy cases." United States v. Edwards, 488 F.2d 1154, 1160 (5th Cir. 1974). "If the indictment invites joint proof . . . prima facie joinder is shown." Haggard v. United States, 369 F.2d 968, 974 (8th Cir. 1966), cert. denied, 386 U.S. 1023, 87 S. Ct. 1379, 18 L. Ed. 2d 461 (1967). The rules relating to joinder and severance "are designed to promote economy and efficiency and to avoid a multiplicity of trials, where these objectives can be achieved without substantial prejudice to the right of the defendant to a fair trial." United States v. Roselli, 432 F.2d 879, 899 n.35 (9th Cir.), cert. denied, 401 U.S. 924, 91 S. Ct. 883, 27 L. Ed. 2d 828 (1970). "A mere showing of some prejudice has usually been insufficient, for qualitatively it must be the most compelling prejudice against which the trial court will be unable to afford protection." Edwards, 488 F.2d at 1160 (emphasis in original). "The denial of a severance motion will not be disturbed on appeal absent abuse of discretion by the trial court," United States v. Black, 684 F.2d 481, 484 (7th Cir. 1982), "or plain error effecting substantial rights." United States v. Isaacs, 493 F.2d 1124, 1158 (7th Cir.), cert. denied, 417 U.S. 976, 94 S. Ct. 3183, 41 L. Ed. 2d 1146 (1974). Because "the burden of demonstrating prejudice is a difficult one, and the ruling of the trial judge will rarely be disturbed on review," Tillman v. United States, 406 F.2d 930, 935 (5th Cir. 1969), and because our review of the record reveals no prejudice to Best or abuse of discretion by the trial court, we hold that the trial court's denial of Best's motion for severance was proper.
Best alleges that he was prejudiced by the denial of severance because his defense and the defense presented by co-defendant Madison were inconsistent with each other in that each of the defendants accused the other of being the main perpetrator of the offense, as is often the case with co-defendants. However, Best fails to cite any case law in support of this allegation of error and our independent review of relevant case law reveals that:
"The mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another are insufficient grounds to require separate trials. To obtain a severance on the grounds of conflicting defenses, at the very least, it must be demonstrated that a conflict is so prejudicial that differences are irreconcilable, and that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty."
United States v. Ehrlichman, 178 U.S. App. D.C. 144, 546 F.2d 910, 929 (D.C. Cir.1976), cert. denied, 429 U.S. 1120, 51 L. Ed. 2d 570, 97 S. Ct. 1155 (1977).
It should be pointed out that neither of the defendants took the witness stand nor offered the testimony of any other witness which tended to exculpate themselves and inculpate the other defendant. On the other hand, during the closing arguments, each defense counsel for the first time in the trial attempted to make the other defendant the main perpetrator of the crimes, but each counsel avoided saying that his respective defendant did not participate in some manner in the offenses alleged in the indictment. The evidence introduced at trial shows that Madison and Best acted in concert, with Best in the main driving the stolen vehicle and Madison restraining and molesting the kidnap victim in the back seat. The bare and unsupported allegations made by the defense counsel during closing arguments that it was the other defendant who was the instigator of the crime does not create a "conflict [which] is so prejudicial and . . . irreconcilable that the jury will unjustifiably infer that this conflict alone demonstrates that both [defendants] are guilty." Indeed, both defense counsels pointed out to the jury that nothing defense counsel ...