Smith v. United States

STEADMAN, Associate Judge

(concurring in part and dissenting in part):

Smith at trial never objected to joinder, moved for severance, or attempted to limit the introduction or use of Harris’ redacted statement. In this posture, I am unable to join in the reversal of Smith’s convictions.

With respect to the Fitzsimmons robbery, the majority acknowledges that the evidence quite apart from the redacted Harris confession is sufficient to convict Smith. In my view, in plain error analysis, as here, reversal under the Foster principle should occur only where the redacted statement added critical weight to the government’s evidence; otherwise, I do not perceive the requisite “miscarriage of justice.” E.g., Bundy v. United States, 422 A.2d 765, 768 (D.C.1980). Here, besides Fitzsim-mons’ testimony, there was expert testimony as to the manner in which pickpockets work in teams. Smith was with Harris both in the store and subsequently when arrested. The redacted statement did not constitute a powerfully incriminating additional piece of evidence warranting plain error reversal.1 Cf. Foster v. United States, 548 A.2d 1370, 1381 (D.C.1988) (Pryor, J., concurring).

With respect to the Adami incident, the majority looks at the evidence in isolation. With plain error analysis applying to the joinder/severance issue,2 I think it permissible to view the proceedings as a whole. Here, as indicated, the jury could properly have found Smith to have been a proven confederate of Harris in the Fitzsimmons event. Harris by his own admission participated in both the Fitzsimmons and Adami robberies,3 the latter occurring about two and one-half hours before the former and each within a block of the other. Adami testified that two men were involved in her robbery, giving a general description, especially clothing, that was consistent with a fuzzy contemporaneous videotape recording and with Harris' and Smith’s appearance both in the Fitzsimmons robbery and upon their arrest some three hours later in the same vicinity. I cannot say that on the entire record before it, a reasonable jury could not have found beyond a reasonable doubt that Smith was the coparticipant with Harris in the Adami robbery. E.g., Grogan v. United States, 435 A.2d 1069, 1071 (D.C.1981).

. That no limiting instruction was given to the jury as to the proper use of the Harris confession is Smith’s responsibility. Allen v. United States, 495 A.2d 1145 (D.C.1985) (en banc).

. I recognize that the majority reverses the order of my approach to the convictions, and views the joinder/severance issues only in light of their effect on Smith’s involvement in the Fitzsimmons robbery. I am not convinced that my order of analysis demonstrates such prejudice with respect to those issues as to "jeopardize the very fairness and integrity of the trial." Watts v. United States, 362 A.2d 706, 709 (D.C.1976) {en banc); cf. Byrd v. United States, 551 A.2d 96 (D.C.1988) (harmless error in misjoin-der where other crime evidence admissible on issue of identity).

.While Harris’ confession may not be directly admissible evidence as against Smith, it may of course be used to establish Harris’ participation in the robberies, which in turn may implicate Smith.