On June 18, 1962, a grand jury in the United States District Court for the District of Columbia returned an indictment charging that the appellants “carnally knew and abused a female child named Diane Wright, who was then under sixteen years of age, that is to say, about fourteen years of age.”
After mental examinations of three appellants, the final report of which was filed March 1, 1963, the trial began late that month and resulted in a verdict on March 29 finding Oliver, Williams and Crump guilty as charged, and finding Mason guilty of assault with intent to commit rape. The three found guilty of rape were sentenced to imprisonment for a period of nine to thirty years, and Mason received a sentence of from four to fifteen years. All appeal.
Although the appellants were tried together,1 each has filed his own appeal and each has been represented on appeal by his own counsel appointed by this court. These attorneys have ably and diligently responded to their appointment: they have filed voluminous briefs, and reply briefs as well, and were permitted to make oral arguments more lengthy than those usually allowed by us.
Evidence for the Government disclosed a vicious and wholesale rape of a fourteen-year-old girl. Diane Wright, the prosecutrix, testified that on the evening of May 4, 1962, while walking with a friend near a park in the Northeast section of Washington, a rowdy crowd of young men accosted her, put her companion to flight and brutally raped her; the details of the attack are too revolting to be fully set out in a published opinion of the court. Suffice it to say that she described in detail the vicious multiple attacks, identified each of the four appellants as those who had raped her, and said the appellant Crump threatened that if she cried out she would be taken into the woods and hanged.
Diane testified that after assault by the fourth of the appellants, she heard her father and some others calling from the direction of a lighted area, whereupon someone shouted that the police were coming and the boys ran off into the woods. She was taken home by her father and a neighbor and, in response to her father’s inquiry, she tearfully said she had been raped. The police were summoned and she told them a group of boys had attacked her and, responding to the officers’ questions, said she would recognize the boys if she saw them again. She was then taken to a hospital and examined. While on the stand, she identified the garments she was wearing the night of the attack.
A neighbor testified that on the evening of May 4, 1962, she and Diane’s father were looking for the girl and,
Diane’s father testified that on the evening of May 4, 1962, he went to look for her and that a few seconds after he cast his car headlights into a park near Ana-costia Avenue Diane appeared. She was crying and calling for her mother, her clothes were very dirty, and there was straw on her back. Later, at their home, in answer to his question, she told him she had been raped. Diane’s mother testified that when she first saw her daughter on the evening of May 4, 1962, Diane appeared stunned, her hair was “in a wrecked condition” and her clothes were filthy. She helped Diane disrobe and then took her to the hospital. Mrs. Wright also identified the items of apparel that Diane had been wearing the night of the assault.
A resident at D. C. General Hospital testified that he examined Diane Wright on the evening of May 4, 1962; his testimony and that of a witness from the Federal Bureau of Investigation, who had examined certain articles of clothing allegedly worn by Diane that evening, abundantly corroborated her claim of rape.
Such, in brief, was the evidence of the prosecuting witnesses and of those whose testimony corroborated her statement that statutory rape had been committed. In addition to the foregoing, and in corroboration of Diane’s identification of the four appellants as her attackers, the Government offered the testimony of several police officers that each of the appellants voluntarily admitted participating in the multiple rapes:
1. Diane had stated to police that one of the attackers had said he was related to “Tucson.” 'At about 8:30 a. m. on May 5, Detective Eger was approached on a street by a young man; for reasons not entirely clear the detective asked him if he were “Tucson.” When he admitted he was “Tucson” he said his real name was James Oliver. Eger arrested him, later explaining the basis for arrest as an old warrant which he knew to be outstanding, charging an offense unconnected2 with the rape of Diane. The arrest of Oliver was made about 8:40 a. m.; he was taken to a precinct station shortly before 9:00 a. m. and about 9:20 a. m. admitted to Officers Connor and Kuntz that he had criminally assaulted Diane Wright on the evening of May 4.
2. Williams was arrested at his home at 10:00 a. m. May 5, 1962, on information obtained from Oliver while he was in custody, and arrived at the precinct station about 10:20 or 10:25. An officer testified that about five or ten minutes after he was brought in Williams admitted he was the fourth to have intercourse with the victim. He confessed more fully at 11:00 a. m.
3. The appellant Crump was arrested at his home at 6:23 a. m. May 6,1962, because he had been implicated by two men already in custody in the Diane Wright case. Immediately upon arrival at the precinct station, at about 6:30 a. m., af
“I Robert Crump was with Tooson [James Oliver], Larry [Mason], George [Williams], Pete, Clarence Baker, Skip, Godfrey Foster. I Robert Crump said that this boy named Timmy pointed his finger at me and showed me to the wood with the girl. Then I had sexual. The girl didn’t scream; she didn’t put up a fight. The boy names that had relationship was Tooson, Larry, George, Pete and Skip. She was willing to give up. When her mother called, she didn’t answer.
“I have give this statement in the presence of Godfrey Foster. I have not been forced to make this statement and I know that it will be used against me. I also have not been promised anything.”
4. The appellant Mason went voluntarily to the precinct station early in the evening of May 7, 1962, said he understood the police were looking for him concerning a rape on May 4, and admitted he had attempted to rape the victim but, before penetration, had either been pulled to his feet by one of the others or changed his mind. Thereupon the police officers placed him under arrest. Although Diane identified him as one of the rapists, at trial he denied the act and the jury found him guilty only of assault with intent to commit rape.
On appeal Oliver, Williams and Mason contend that the confession of co-defendant Crump should not have been admitted into evidence without prior deletion of all reference to them. Appellant Crump’s purported confession, allegedly written in his own hand, was correctly received against him,3 but before it was admitted into evidence Oliver’s counsel, on behalf of the three other appellants, made a general objection to its admission “insofar as it reflects anything other than what this individual [Crump] himself has done.” The District Judge announced that he would give a limiting instruction and did so in terms, “You should disregard any references in the statement to any other than the defendant Crump.” The statement was then read in full to the jury over defense objection that those portions of the confession relating to appellants Oliver, Williams and Mason should not be read to the jury.4 Counsel did not make specific request or suggestion that those names be masked over under the rule laid down in Kramer v. United States, 115 U.S.App. D.C. 50, 317 F.2d 114 (1963).
The matter of trying four defendants with separate counsel gives rise to numerous and vexing problems for the trial judge, and he is not aided when counsel make only a general objection when a specific course of action is required. Nevertheless, we believe that appellants have voiced timely objection sufficiently definite to preserve their contention for appeal. The question presented therefore is whether in the trial of a capital case, when deletion of reference to co-defendants is entirely feasible, the damaging impact of such reference can be repaired by a limiting instruction so that it can fairly be said that failure to delete the hearsay references did not af-
The Supreme Court has quite clearly established the standard for determining on appeal whether a trial error should be held to have affected substantial rights:
“If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand, except perhaps where the departure is from a constitutional norm or a specific command of Congress. * * * But if one cannot say, with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”
Kotteakos v. United States, 328 U.S. 750, 764-765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946) (Footnotes omitted.) 6 Here we cannot be “sure” with that degree of conviction that the hearsay references to the other appellants by Crump’s written confession did not sway the jury’s judgment on the guilt of Oliver, Williams and Mason. The Government’s evidence was indeed substantial; however, all appellants took the stand to deny their complicity and their alleged oral admissions to the police. I can see no basis for doubt that the writing attributed to Crump would have a tendency to influence the judgment of those jurors, if any, left in doubt as to whether to accept or to reject the stories of Oliver, Williams and Mason. This conclusion is buttressed by the-fact that Crump’s supposed confession allegedly being written in Crump’s hand,, rather than typed, although denied by him, probably added to its probative-value and hence was potentially capable-of greater prejudice to the other defendants. In this case, unlike the confession in Delli Paoli v. United States, 352 U.S. 232, 237, 77 S.Ct. 294, 1 L.Ed.2d 278 (1957), there was no “impraeticality of such deletion.” That the excision of some names would perhaps invite speculation by jurors is inherent; the objective should be to do the best that can be-done to avoid risk of prejudice even, though no steps can perfectly eliminate it.7
“Harmless Error. Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
85, 91-92, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
We find no error warranting reversal as to appellant Crump and judgment as. to him is affirmed.
Reversed and remanded for a new trial as to appellants Oliver, Williams and. Mason.
1.
There was no motion for severance.
2.
Oliver was arrested by the Detective as soon as be identified himself as “James Oliver”; the officer said he had personal knowledge of an outstanding warrant for Oliver’s arrest on an assault charge. At trial defense counsel objected to references to this warrant but did not ask that it be produced or otherwise challenge the existence or validity of the assault warrant on which Oliver was picked up. However, in the course of our consideration of this appeal, the Government informed this court that no record of a warrant for Oliver’s arrest could be found and that it must be assumed at this stage that no such warrant existed. The effect of this on the apprehension of Oliver and in turn the impact of this on the admissibility of Oliver’s confession have not been considered by the District Court and are therefore not ripe for appellate appraisal. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). It is inappropriate for us to undertake an advisory opinion on issues which may or may not arise.
3.
Crump made his statement at the threshold and spontaneously saying, according to police testimony, “I want to get this off my chest. I would like to tell everything.” See United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed. 1140 (1944). Crump denied making any admissions to the police or writing the confession attributed to him.
4.
After the police officer had read to the jury the beginning of Crump’s alleged confession (“I Robert Crump was with Tooson, Larry, George, Pete, Clarence Baker, Skip — ”), the following colloquy occurred between defense counsel and the trial judge:
“Your Honor, I object to what he has just stated. Your Honor has instructed him and he has proceeded to read this, disregarding his Honor’s instructions. [In fact, the trial judge had never so instructed.]
“The Ootjet: The entire statement must be read to the jury. I have told the jury that it is applicable only as to the declar-ant Go ahead.”
5.
Fed.R.Crim.P. 52(a) states:
6.
And see Fahy v. Connecticut, 375 U.S.
7.
We note here that the few sentences relating to the other appellants could quite readily have been deleted from the relatively short statement without impairing the effectiveness of the confession as to. Crump.