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03/14/91 KEITH REYNOLDS v. UNITED STATES

March 14, 1991

KEITH REYNOLDS, ISADORE GARTRELL, APPELLANTS
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Reggie B. Walton, Trial Judge

Rogers, Chief Judge, Steadman, Associate Judge, and Mack, Senior Judge.

The opinion of the court was delivered by: Steadman

Appellants Gartrell and Reynolds were jointly charged and convicted of armed robbery, D.C. Code §§ 22-2901, -3202 (1989), carrying a pistol without a license, id. § 22-3204, and malicious destruction of property, id. § 22-403. Three issues are raised on appeal: the right to severance on account of irreconcilable defenses, sufficiency of the evidence to convict of malicious destruction of property, and limitation of cross-examination in violation of the Confrontation Clause. We affirm.

I

Late in the evening of July 12, 1988, Gregory Scott, driving a white Cougar automobile borrowed from a friend, *fn1 stopped to use a telephone at a gas station. After completing his phone conversation, Scott turned to see two men standing near him, later identified as appellants. Gartrell pulled a gun, announced he was taking the car, and got into the driver's seat, while Reynolds entered on the passenger side. After they drove off, Scott called the police and gave a description of the robbers and the car, including the tag numbers.

About an hour and a half later, a police officer on patrol saw the white Cougar and began to follow it. The car accelerated at a high rate of speed. After about ten blocks of high speed chase, the Cougar crashed into a Fire Department call box and was heavily damaged. The officer observed the driver, whom he later identified as Gartrell, flee up a driveway into a wooded lot behind nearby houses, and began a chase. However, when other units arrived and cordoned off the area, the officer went back and recovered a revolver on the floor of the car. He also noted that the windshield had been pushed out on the passenger side and that the person sitting there had probably been injured.

Gartrell was eventually found hiding beneath a mattress and box spring near the back of a house. Reynolds was apprehended lying beside a tree several houses from the crash site, with injuries to his mouth and forehead, and glass fragments in his hair. Reynolds claimed to be running from a crap game that had been robbed, and said he had been hit in the head with a bottle. However, a witness to the crash, Gary Evans, said he had seen Reynolds fleeing through his yard immediately after the crash.

Later that morning, police escorted Scott to the scene of the crash, where he identified the car and the gun. The next day, Scott identified Gartrell and Reynolds in a photo array as the robbers, and later made other line-up and in-court identifications.

At trial, Gartrell offered a misidentification and innocent presence defense. He testified that he was visiting his girlfriend at her apartment in Southeast on the night in question. He and his girl friend stepped outside while their baby was asleep. Intending to go to his mother's house, Gartrell claimed, he then got a ride in a white car from an unidentified man, with Reynolds sitting in the front passenger seat and Gartrell in the middle of the back seat. Although Gartrell subsequently tried to be let out, the driver kept going until a police car noticed and followed the car. At that point, the driver sped up until he crashed, whereupon both appellants ran. Gartrell claimed that he feared he had an outstanding parole warrant, and that explained why he fled and hid until the police found him. Reynolds presented no defense nor cross-examined Gartrell in any manner. In closing argument, his counsel argued misidentification without any specific reference to Reynolds' crap game alibi. However, Reynolds' counsel also argued in closing that Reynolds was resting his case on the government's evidence, which included testimony by the arresting officer concerning Reynolds' explanation for his apparent flight and head injury.

II

As the first and most substantial issue on appeal, appellant Reynolds cites the trial court's failure to grant severance of his trial from that of his codefendant, Gartrell, pursuant to Super. Ct. Crim. R. 14. *fn2 Reynolds argues that since Gartrell's defense placed Reynolds in the Cougar automobile where Reynolds denied being, the defenses were irreconcilable and the joint trial so prejudicial that we must reverse his convictions. The controlling standard was most recently set forth in Garris v. United States, 559 A.2d 323, 329-30 (D.C. 1989) (footnote omitted):

To obtain a severance on the ground of irreconcilable defenses, a defendant must demonstrate a "clear and substantial contradiction between the respective defenses," causing inherent irreconcilability between them, Tillman [v. United States, 519 A.2d 166, 170 (D.C. 1986) (citation omitted)], and that the irreconcilability creates a danger or risk that the jury will draw an improper Conclusion from the existence of the conflicting defenses alone that both defendants are guilty. [Id.] The degree of such risk depends upon the extent of evidence offered against the defendant, independent of the conflicting evidence presented by the codefendant. Id.; Ready [v. United States, 445 A.2d 982, 987 (D.C. 1982), cert. denied, 460 U.S. 1025 (1983)]. Therefore, upon ruling that the defenses are inherently irreconcilable, the Judge must determine whether there would be available at trial enough independent evidence of a defendant's guilt -- beyond that required for the government to survive a motion for judgment of acquittal -- so that the Judge reasonably could find, with substantial certainty, that the conflict in defenses alone would not sway the jury to find the defendant guilty. Tillman, supra, 519 A.2d at 171 (citing Ready, supra, 445 A.2d at 987).

Applying the Tillman-Garris principles to the instant case, we conclude that although Reynolds' defense was "inherently irreconcilable" with that of his codefendant, this irreconcilability alone does ...


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