Opinion
No. 31741
Decided November 23, 1949.
Criminal law — First degree murder — Two defendants jointly indicted — Error to require joint trial, when — One defendant's confession implicated other defendant — Instruction to jury to disregard confession as against nonconfessing defendant — Right to fair trial not adequately protected.
1. Where one of two defendants jointly indicted for murder in the first degree has, in the absence of the other, made admissions or confessions implicating such other, and where it is disclosed that such admissions or confessions will be introduced in evidence, it is error to require a joint trial of the two defendants over the objection of the nonconfessing defendant.
2. Where two defendants are jointly indicted for murder in the first degree and the confession of one of the defendants implicating the other defendant in the commission of the crime is introduced in evidence, unless the nonconfessing defendant consented to a joint trial, an instruction to the jury to disregard the confession as against the nonconfessing defendant does not adequately protect the latter in his right to a fair trial.
APPEAL from the Court of Appeals for Butler county.
This is an appeal of the defendant from a judgment affirming a conviction of murder in the second degree.
Marie Abbott, her husband, Morris Abbott, and two children, ages 13 and 8, resided on a farm in Butler county. In 1946, Cyril "Scotty" Gordon, unmarried, was employed by the Abbotts as a farm hand and he resided with them.
About three or four months after Gordon came into the Abbott home, an infatuation developed between Gordon and Marie Abbott and a sexual relationship between them ensued and continued until a few weeks prior to Morris Abbott's death.
In January 1948, Morris Abbott became aware of the illicit relationship between his wife and Gordon and Gordon was discharged, whereupon he worked for another farmer in the same neighborhood, during which time he and Marie continued to see each other on frequent occasions.
About April 24, 1948, as a result of a conference between Gordon and Marie, it was decided that she should ask her husband for a divorce. A few days later, Marie discussed the matter with her husband and she was told by him that she must choose between Gordon and her children. In a few days Marie informed her husband that she had determined to remain with him and her children. At that time she confessed to him her illicit relationship with Gordon and asked and received her husband's forgiveness. Marie then, with her husband's consent, saw Gordon and informed him of her decision to remain with her husband and children.
However, she saw Gordon at times during the month of May 1948. Gordon planned a trip to Indianapolis to attend the automobile races on Memorial Day 1948, and Marie gave him $30 to defray expenses. On May 31, Gordon called Marie from Indianapolis by telephone and inquired whether Morris would be home that evening and whether she was going to a musical recital that night as she had planned and as she had previously advised Gordon. Upon being advised in the affirmative, Gordon told Marie that he might drive down to see Morris that night and requested her to leave $10 for him (Gordon) behind his picture which had remained on the piano in the Abbott home. That evening Marie left $10 behind Gordon's picture and took her children, her mother, Morris' mother and a lady friend to Hamilton to a piano recital in which Marie's daughter, Phyllis, took a part.
Gordon arrived from Indianapolis at the Abbott home about 10 p.m. that night and met Abbott. They went back a lane on the Abbott farm to some farm buildings where an altercation took place and Gordon killed Abbott by striking him with a mattock. When Marie returned from the recital some time after 10:30 p.m., she noticed that the $10 was gone from behind Gordon's picture and in place of the money was a note from Gordon which read: "If you get home before Morris does, I will see you." Later that night, Gordon came back to the Abbott home and advised Marie that he had killed her husband.
Marie made some suggestions as to various means to make Morris' death appear as suicide or accident. Gordon finally placed Morris' body on a railroad near a crossing so as to make it appear that Morris had been killed by accident.
Gordon then returned to Indianapolis by automobile, arriving there early the next morning. The following afternoon he returned to Butler county and was taken into custody. Two days later, June 3, 1948, he made a complete confession of his killing of Morris. This was supplemented by two later statements as to the killing.
In these typewritten question-and-answer confessions signed by Gordon, he implicated Marie with the crime by stating that he had had illicit sexual relations with her ever since a time about three months after he went to the Abbott home; that he saw Marie the same night after the killing and told her what had happened, whereupon she said that she "regretted it happened that way"; that he called her by telephone from Indianapolis the day of the murder and asked her if Morris would be at home that evening and she said, "yes," and told Gordon she would not be at home; that Morris' body was still in the barnyard when Gordon saw Marie that night; that he returned to the barnyard after he told Marie it was "all over with"; that she said she was sorry it had to end that way; and that he then went to the barnyard and placed the body on a truck and took it to the railroad.
The confession continued as follows:
"Q. When was the first time that you and she talked about maybe you would have to get rid of Morris or something like that? A. About five or six weeks ago."
In answer to other questions he stated:
"* * * she said something would have to happen to Morris. * * * I told her I wasn't very fond of that. * * * She wanted me to come back [from Indianapolis] and see Morris."
Gordon then answered, as follows, the question:
"Q. Was that her suggestion that it would make a good alibi? A. It was, yes."
When Gordon told Marie he had struck and killed Morris, "she made some remark about whether I could cover it up well enough or something like that. Said to lay him up there and make it look like an accident."
The confession continued:
"Q. Who was it that suggested that you could put him on the tracks and make it like an accident? A. She did. * * * She gave me a blanket out of the car so I wouldn't get so much blood on me. * * * She gave me one of his shirts because mine was bloody."
"Q. * * * did she ever say anything to you about if there is no other way, you'll have to kill him? A. She never put it in those words but she led me to believe she would have no objection — she said that Morris would have to have an accident or commit suicide or something like that."
Marie was arrested on June 3, 1948, when she was questioned. She at first denied intimacy with Gordon but soon thereafter admitted adultery, a trip to a hotel in Indianapolis, a visit to a tourist cabin, and that she and Gordon on several occasions discussed a divorce. However, she denied that she at any time entered into any plan to murder her husband.
Gordon and Marie were jointly indicted for murder in the first degree. Before trial the state made an application for joint trial of Gordon and Marie for reasons, among others, stated as follows:
"1. The evidence of the state will disclose that the death of Morris Abbott was the result of a plan, plot or conspiracy between the two defendants.
"2. In the event of a joint trial, all of the evidence pertaining to such plan or conspiracy would be submitted so that the jury, although they would be enabled to separate the part that applied to each defendant, nevertheless would have a complete picture of the whole plan.
"3. If the jury is given the complete picture of the plan or conspiracy, they can better appraise the part, if any, each defendant had in it and will be enabled to arrive more intelligently at a proper conclusion.
"4. Only a joint trial would result in a fair, intelligent and complete submission of all the evidence so that the trial would result in justice being done, not only to the defendants, but also to the public.
"5. The state must prove a plan or conspiracy to commit this murder and when such evidence is produced it must apply to both defendants and, by reason thereof, no undue advantage can be taken as to one over the other defendant."
The court granted the motion of the state. Later, counsel for Marie moved the court to vacate the order for joint trial, which motion was overruled.
By the verdict of a jury Gordon was found guilty of murder in the first degree with a recommendation of mercy, whereas Marie was found guilty of murder in the second degree. The court overruled separate motions for a new trial and entered judgments upon the verdicts.
Each defendant perfected an appeal to the Court of Appeals, which court affirmed the judgments of the court below.
The appeal of Marie is in this court by reason of the allowance of a motion for leave to appeal.
Mr. Jackson Bosch, prosecuting attorney, for appellee.
Mr. William F. Hopkins and Mr. Gilbert E. Condo, for appellant.
The principal question in the appeal to this court is whether, where two defendants are jointly indicted for first degree murder and it is disclosed, preceding the trial of the codefendants, that signed confessions by one of them made in the absence of the other will be offered in evidence, which confessions implicate such other, it is prejudicial error as to the latter codefendant for the trial court to grant, over such codefendant's objection, the state's motion for a joint trial.
A collateral question is whether, where such joint trial is ordered and a confession is admitted in evidence as against the maker, an instruction to the jury to disregard the confession as against the other codefendant, gives adequate protection to him.
In the absence of statutory provisions regulating the matter, there is a sharp conflict of judicial opinion on this subject. In many cases where one of several defendants jointly indicted for a capital offense has made admissions implicating others, the courts have held that a severance should be ordered. Typical of such cases is the case of People v. Sweetin, 325 Ill. 245, 156 N.E. 354, wherein the court said:
"While it is generally a matter of discretion with the court as to whether a separate trial shall be granted, such discretion is not arbitrary but should be so exercised as to prevent injustice, wherever possible. While the court instructed the jury that Height's confessions were not admissible as against plaintiff in error, such instruction could by no possibility eradicate the testimony from the minds of the jury. While theoretically the instruction withdrew the evidence from the consideration of the jury, practically the human mind is so constructed that inevitably the prejudicial effect remained therein. * * * To obviate the evils arising from the possibility of the jury being misled by the confessions of a codefendant, the rule is general that where one of several defendants jointly indicted has made admissions or confessions implicating others, a severance should be ordered unless the attorney for the state declares that such admissions or confessions will not be offered in evidence on the trial." People v. Buckminster, 274 Ill. 435, 113 N.E. 713; People v. Patris, 360 Ill. 596, 196 N.E. 806; People v. Barbaro, 395 Ill. 264, 69 N.E.2d 692; People v. Serritello, 385 Ill. 554, 53 N.E.2d 581; People v. Feolo, 282 N.Y. 276, 26 N.E.2d 256.
Some courts hold that the existence of a confession of a codefendant, which confession implicates the other codefendant, is not enough to require severance, and that by repeated warnings the jurors will dismiss the confession from their minds as against everyone but the maker, and, therefore severance is not required. United States v. Newhoff, 83 F.2d 942; Commonwealth v. Bingham, 158 Mass. 169, 33 N.E. 341; State v. Mathis, 174 S.C. (N.S.), 344, 177 S.E. 318; Commonwealth v. Millen, 289 Mass. 441, 194 N.E. 463; State v. Lord, 42 N.M. 638, 84 P.2d 80; People v. Campbell, 301 Mich. 670, 4 N.W.2d 51; Kennon v. State, 181 Tenn. 415, 181 S.W.2d 364; Bennett v. State, 201 Ark. 237, 144 S.W.2d 476; Nolan v. State, 205 Ark. 103, 167 S.W.2d 503. See annotations, 70 A.L.R., 1185, 1187; 104 A.L.R., 1519; 131 A.L.R., 917.
The statutes of this state relating to joinder of defendants in felony cases make a clear distinction between capital offenses and other felonies. When the Ohio Code of Criminal Procedure was revised and recodified in 1929, Section 13442-11, General Code (113 Ohio Laws, 123, 181), was enacted as follows:
"When two or more persons are jointly indicted for a felony, except a capital offense, they shall be tried jointly unless the court for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, order that one or more of said defendants be tried separately."
On the other hand, Section 13443-3, General Code (113 Ohio Laws, 123, 183), as enacted in 1929, then provided as follows:
"When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately."
This section was amended in 1935 (116 Ohio Laws, 301) and in its present form provides:
"When two or more persons are jointly indicted for a capital offense, each of such persons shall be tried separately unless the court for good cause shown on application therefor by the prosecuting attorney or one or more of said defendants, order said defendants be tried jointly."
Since the applicable statute provides that persons jointly indicted for a capital offense shall be separately tried unless for good cause shown the court orders otherwise, the burden of showing good cause is necessarily upon the party or parties making the application for a joint trial, and such good cause must necessarily be some operative factor not present in every case of joint indictments of defendants in capital cases. For instance, the additional time and labor required of the state or court, or the expense to the state, made necessary by separate trials, cannot be assigned or considered as good cause.
Neither the state which made the application for a joint trial nor Gordon who orally joined in it, so far as the record discloses, offered any evidence to sustain the burden cast upon them, as applicants for a joint trial, to show good cause as the basis for the order made by the court.
The trial court at the time the application for a joint trial was heard was advised of the fact that there was in existence a written confession of guilt on the part of Gordon (implicating Marie as a conspirator in the crime), and in passing upon the motion the court took the position that the confession was competent evidence against Gordon but incompetent as against Marie. These facts are disclosed in the opinion of the trial court in passing upon the application for a joint trial.
The trial court, in sustaining the application for joint trial, as disclosed by his opinion, relied on the holding of the Court of Appeals of the same district in the case of State v. Jenkins, 76 Ohio App. 277, 64 N.E.2d 86. That case held that a court does not abuse its discretion in ordering a joint trial in a capital case, where one defendant's confession implicating the other is admitted in evidence, provided the court carefully instructs the jury that it should not consider the confession except as against the confessor.
In justice to the trial court in the instant case, it should be stated that in passing upon this question the court did not have the benefit of the views of this court on a similar question later decided in the case of State v. Rosen, 151 Ohio St. 339, 86 N.E.2d 24, to which reference will hereinafter be made.
At the very outset of the trial of the instant case, the state, in its opening statement to the jury, said that its statement would be an attempt "to give you a picure of the case as we expect it to unfold, and to tell you what we expect to produce by way of evidence." The state then proceeded to give all the circumstances surrounding the killing of Morris, and a detailed statement of Gordon's confession, including as a part of it the statements which Gordon alleged Marie made to him and which were incriminating as to her.
Everett L. McSavaney, who soon after the killing of Morris interviewed Gordon and procured the confession from him, was called as a witness for the state and in his testimony the statements of Gordon constituting the confession and implicating both himself and Marie were given to the jury. At the close of McSavaney's testimony the written signed confession of Gordon was introduced in evidence. The state then rested.
The court, from time to time during the trial, and in its general charge instructed the jury that the statements which Gordon made in his confession or confessions should not be considered by it and should not be given any weight in determining the guilt or innocence of Marie.
The state claims that these admonitions and charge of the court fully protected the rights of Marie and the trial court did not abuse its discretion in granting a joint trial in this case. On the other hand Marie insists that it is practically impossible for the average juror, without experience or skill in weighing and applying evidence, to divest his mind of such testimony, and for that reason, under the circumstances of this case, a joint trial should not have been required.
The question of the right of a defendant to a separate trial, in a case where he has been implicated in the crime covered by the indictment by the confession of a codefendant, was squarely before this court in the recent case of State v. Rosen, supra. That case, however, had to do with a confession of one of three defendants jointly indicted for armed robbery and the situation was therefore governed by Section 13442-11, General Code, providing that where two or more persons are jointly indicted for a felony, excepting capital offense, they shall be tried jointly unless the court for good cause shown orders the defendants to be tried separately. There the burden was on the defendant Rosen to show cause why he should be tried separately, the reverse of the situation in the case at bar.
In the Rosen case this court held that where it is disclosed, preceding the trial of codefendants jointly charged with the commission of a felony, that a signed confession by one of the defendants, made in the absence of his codefendants, will be put in evidence, which confession contains statements showing the guilt of a codefendant, and based thereon an application for separate trial is duly made by that codefendant, it is the duty of the trial court either to grant the application or to order the prejudicial matter withheld or deleted before admitting the confession in evidence.
In commenting on the rule applied in the Rosen case, Judge Matthias, speaking for the court, appropriately said:
"The fact must be recognized, however, that in many cases the admission of such ex parte statements creates impressions so adverse that they may not be eradicated from the minds of the members of the jury. The prejudicial matter should be stricken out or deleted before the confession is admitted in evidence."
For greater reason, in the instant case, where Marie was charged with a capital offense and entitled under the statute to a separate trial, unless good cause was shown for a joint trial, the burden to establish which was not on Marie but on the applicants therefor, she was entitled to a separate trial.
The court, having denied Marie a separate trial and having failed to exclude the prejudicial matter in Gordon's confession from the jury, abused its discretion.
Marie Abbott claims also that the court erred in not limiting its charge to the jury as to her to first degree murder for the reason that there was no evidence offered upon which to convict her of murder in the second degree or of manslaughter. However, since murder in the second degree is an included offense in an indictment for murder in the first degree, there was no error in the court's charge in that respect.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court for further proceedings according to law.
Judgment reversed and cause remanded.
MATTHIAS, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.