dissenting:
The majority concludes that the trial court’s denial of defendant’s motion to sever was an abuse of discretion. In so doing, it misconstrues the applicable law in Illinois. I dissent.
People v. Ross (1968), 41 Ill. 2d 445, cert. denied (1969), 395 U.S. 920, 23 L. Ed. 2d 237, 89 S. Ct. 1771, is authority for the general rule that where one or more defendants are jointly indicted for the commission of a crime, they are to be tried together; and whether a separate trial should be granted is largely within the sound judicial discretion of the trial court. In Ross, Ross and Pawlak were jointly tried for arson. Prior to his second trial, Ross moved to sever his prosecution from that of Pawlak. The basis for the motion was a conversation between a police officer and Pawlak where the officer suggested to Pawlak that a co-indictee, Mauricaux, had discussed with her Ross’ participation in the crime. To this Pawlak replied, “* * * Yes, but you don’t believe him, do you? ° * *” Relying on Rruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, the Illinois Supreme Court found no prejudice in a joint prosecution, since Pawlak’s admission did not directly involve Ross in the crime, but was merely evidence of association with Pawlak. Additionally, the court noted that Pawlak took the witness stand and was subject to cross-examination concerning the statement.
In the case at hand, the basis for Phillip McVay’s motion, filed on the day of trial, was his sister’s testimony that co-defendant, John Reed, had telephoned Cindy McVay a week before trial and said if he (Reed) “went down,” she and Phillip would “go down” with him. The next day Cindy McVay contacted the police and turned over several items stolen from the Booth household.
People v. Clark and People v. Miller, both of which predate Bruton, and upon which the majority relies, are not germane to this cause for two reasons. First, both these cases contained clear admissions by co-defendants which implicated a co-defendant in the crime charged. Secondly, the majority’s magnanimous “fair trial” approach is fraught with ambiguity.
Like Ross, McVay’s motion for severance was properly denied. The fact that John Reed reportedly said that Phillip, as well as Cindy McVay, would “go down” with him does not directly implicate the defendant or his sister in the crime. While the statement might be considered a threat of sorts, it is not evidence of any wrongdoing on Phillip McVay’s part. Such a remark does not detail McVay’s role in the crime, nor does it identify him as an accomplice in the burglary. In a word, it was not incriminating. More importantly, Reed was available for cross-examination, since he took the witness stand.
I find equally erroneous the majority’s conclusions that denial of defendant’s severance motion violated McVay’s right to a fair trial in an even broader sense than they feel is indicated by Bruton. The majority’s view of this theory is not only undefined, but is problematic as to the scope of its application. A defendant’s sixth amendment right to a fair trial, as well as his rights after indictment under the Illinois Constitution, are essentially the same. Succinctly enumerated, the constituent parts of a “fair trial” include impartial local jury, speedy trial, right to counsel, subpoenaing witnesses, apprisal of the nature of the charge, and confrontation and cross-examination of witnesses. Only the right to confrontation and cross-examination is alleged violated in this cause. McVay neither argued nor briefed the infringement of any other sixth amendment guarantee.
The majority, in reaching out for a “fair trial” concept, grounded in “fundamental principles of justice,” as the basis for reversal, oversimplifies the breadth of the specific guarantees the sixth amendment incorporates. Such reasoning parallels a medical diagnosis that finds a patient “sick” and then commits him to the hospital. If the patient is truly “sick,” it is due to a specific disease or ailment. So it is with the majority’s “fair trial” theory. And quite apart from its wrongness, it lacks definition, analysis and critical diagnosis.
The Illinois Supreme Court has explicitly referred to the confrontation clause as the guarantee invoked by the Bruton-type challenge MeVay advances in his motion to sever. (People v. Ross (1968), 41 Ill. 2d 445, 461-62.) Unlike People v. Clark (1959), 17 Ill. 2d 486, which the majority cites to sustain its “fair trial” theory, the Ross opinion positively refers to Rruton as the source for its holding denying Ross’ motion to sever. In so doing, the more limited confrontation clause argument, akin to that which McVay argues, is rejected. The majority’s “fair trial” theory is not addressed. It is beyond argument that if such a view is the law, the supreme court was compelled to discuss it since such a conception of the right to a fair trial necessarily encompasses a greater spectrum of rights than just confrontation and cross-examination of witnesses. Because it was not, I believe Clark, as well as People v. Miller (1968), 40 Ill. 2d 154, should not be followed.
The trial judge, who was in the best position to gauge the effect the remark had on the jury, gave a limiting instruction to the jury as to the pertinent use of the remark. Also, as indicated, Reed testified, thereby allowing cross-examination as to the statement’s purpose, as well as its suggestions, in the context uttered. Any prejudice was thus defused. I cannot subscribe to the majority’s catchall “fair trial” view since the guarantee of confrontation and cross-examination was not violated in this cause. McVay received a fair trial. He may not have received a perfect one; but perfect trials are not mandated and should not be expected.