Criminal Law Blog

A Court Should Grant A Motion To Sever If A Co-Defendant Would Provide “Officially Exculpatory” Testimony


Omar Rollerson and Rolita Burns v. United States (decided December 17, 2015).

Players: Chief Judge Washington, Judge Easterly, Senior Judge Belson. Opinion by Chief Judge Washington. PDS for Mr. Rollerson. Mindy A. Daniels for Ms. Burns.

Facts: Omar Rollerson and Rolita Burns were prosecuted together for two separate events that the government contended stemmed from Ms. Burns’ attempt to determine who had slashed the tires on her car. The first incident, which the Court labeled, “The Elvans Road Incident,” began in the early hours of June 18, 2012. Stefanie Harrington got into an argument with Ms. Burns when Ms. Harrington believed Ms. Burns had accused her of slashing the tires. They continued arguing until Mr. Rollerson intervened, but then the group left the apartment and went outside to the parking lot. When Mr. Rollerson saw that Ms. Harrington had a knife, he retreated and then Ms. Harrington tossed it. But Mr. Rollerson picked it up and approached Ms. Harrington. An unidentified man stopped Mr. Rollerson from getting closer to Ms. Harrington, so he threw the knife at her, hitting her arm. Ms. Burns and Ms. Harrington continued yelling at each other, and Robert Teamer heard Mr. Rollerson say, “[F]orget this, I’m about to go get that,” which he believed to be a reference to a gun that Mr. Rollerson had mentioned earlier. Ms. Harrington and Mr. Teamer then returned to Ms. Harrington’s apartment.

Shortly thereafter, a man “busted inside the door” and said, “I’m going to blow a hole in you guys.” Mr. Teamer said that this man then hit him in the nose with the gun and left. At trial, Ms. Harrington identified Mr. Rollerson as the person who hit Mr. Teamer, but Mr. Teamer testified that Mr. Rollerson, as he appeared at trial, did not look like the man who came to Ms. Harrington’s door the night of the burglary.

The second incident, which the Court identified as “The Bowen Road Incident,” occurred later that same day, around 2:00 p.m. Ms. Burns got into a verbal altercation with Jasmine Patterson over whether Ms. Patterson had slashed Ms. Burns’s tires. As the argument continued, Mr. Rollerson said to Ms. Burns, “F that, we’re going to get Nellie and them,” which Ms. Patterson believed meant they were going to go get a group of people to fight them. Mr. Rollerson and Ms. Burns left and drove away in a van. Ms. Patterson, with several other people, walked towards Ms. Patterson’s grandmother’s house. Along the way, Ms. Patterson saw the van return and Mr. Rollerson and Ms. Burns exit with a group of five girls, whom Mr. Rollerson referred to as his nieces. They caught up to Ms. Patterson, threw her to the ground, and began to beat her, including hitting her with a log. Ms. Patterson’s boyfriend attempted to approach, but Mr. Rollerson warned him to not to get involved or else he was going to “get that out of the car and smoke [him].” Ms. Burns, Mr. Rollerson and the five other girls left and Ms. Patterson got up and went to her grandmother’s house, where her grandmother called the police. After speaking with police, Ms. Patterson went to the hospital by ambulance to receive treatment for a cut over her right eye that required nine stitches.

The jury convicted Mr. Rollerson of the following charges for the Elvans Road incident: first-degree burglary while armed, ADW, two counts of possession of a firearm during a crime of violence, and felony threats. For the Bowen Road incident, the jury convicted Mr. Rollerson of assault with significant bodily injury and felony threats. Though tried together, Ms. Burns only faced charges for the Bowen Road incident and the jury convicted her of assault with significant bodily injury.

Issue 1: Whether the trial court erred in denying Mr. Rollerson’s motion to sever his trial from Ms. Burns’s trial in order to be able to call her as a witness to testify he was not involved in the Elvans Road Incident?

Holding: Yes. While a trial court has discretion whether to grant a motion to sever, a court must grant such a motion if a defendant can show there will be “manifest prejudice” from being tried jointly. Under Jackson v. United States, 329 A.2d 782 (D.C. 1974), when a defendant wants to sever a trial from a co-defendant in order to have that person testify in his defense, the court should grant the motion if it has been established that the co-defendant is 1) likely to testify and 2) the testimony will be “substantially exculpatory.” Here, the proffer was that Ms. Burns would testify that Mr. Rollerson was not present for the Elvans Road Incident. Although the trial court concluded that she was likely to testify and that her testimony would be “officially exculpatory,” it declined to the grant the motion mainly because the government offered to enter into a stipulation with the defense about what her testimony would have been. The Court of Appeals held that was an abuse of discretion. First, a stipulation is not a valid substitute for live testimony because it forecloses the jury’s ability to hear a witness and determine credibility. The Court stated that only in “very limited circumstances” can a party be forced to accept a stipulation in lieu of live testimony or tangible evidence. This was not such a case. Second, the Court emphasized that judicial administration and concerns for judicial efficiency do not outweigh a defendant’s right to a fair trial and are not valid reasons by themselves to deny a motion to sever. And third, the Court of Appeals concluded that when the trial court found that Ms. Burns’s testimony would have been “officially exculpatory,” that was sufficient to meet the requirement from Jackson that her testimony would have been “substantially exculpatory.” Once the court determined that Ms. Burns was likely to testify and that her testimony would have been “officially exculpatory,” the court should have granted the motion. Failure to do so was an abuse of discretion, resulting in reversal of Mr. Rollerson’s convictions from the Elvans Road Incident.

Issue 2: Whether the trial court erred in denying Ms. Burns’s motion to sever the Elvans Road incident from the Bowen Road incident?

Holding: No. Ms. Burns contended the two incidents should have been tried separately because otherwise she would suffer undue prejudice since most of the charged conduct related only to Mr. Rollerson and she was not even charged in the first incident. However, the Court of Appeals determined the trial court did not abuse its discretion. The Court reasoned that though she was not charged for both incidents, she played a central role in both, as the government’s theory was it was her desire to learn who had slashed her tires that led to both incidents. While a trial court should sever charges when one defendant played a “de minimis” role in one incident as compared to another, the Court stated that simply the fact Burns was not charged did not mean her role was “de minimis” in the Elvans Road Incident. Also, the Court said that the trial court “properly protected Burns from manifest prejudice” by giving the jury precise instructions, both during the trial and during jury instructions, on how to use the evidence that had been presented against each defendant and that the evidence from Elvans Road only went to certain counts.

Issue 3: Was the evidence sufficient to convict both Mr. Rollerson and Ms. Burns of assault with significant bodily injury?

Holding: Yes. To establish “significant bodily injury,” there had to be evidence of an injury that would require “hospitalization or immediate medical attention.” The Court determined that Ms. Patterson’s injuries met that definition due to her suffering the injuries in a “violent group attack” where she was pushed to the ground, stomped, punched in the face, and hit in the head with a log. There was evidence she was a “bleeding mess,” and went to the hospital to receive nine stitches. Also, the government presented to the jury photographs of her injuries and her medical records.

Of Note:

  • This is a good case to use any time the government attempts to foreclose the defense from calling a witness or introducing evidence by offering a stipulation. The Court of Appeals very clearly indicates a defense does not have to accept such an offer, and that a trial court should not use the offer by itself as a reason to deny a defense motion. 
  • A trial court should grant a motion to sever if there has been a showing the co-defendant would be likely to testify, and that the testimony would be “substantially exculpatory.” This case indicates that the trial court does not have to use those exact words so long as it is established that the testimony meets the standard. However, when moving to sever from a co-defendant on the basis of wanting the co-defendant to testify, it is likely a good idea to use the exact language from Jackson in order to avoid any confusion. This Case reinforces that once a trial court determines that the two Jackson factors have been met, a trial court should grant the motion. 
  • Similarly, if trying to sever a trial from a co-defendant when there are separate incidents, just the fact your client was not charged in one of the incidents is not sufficient by itself to establish your client had a “de minimis role.”
  • There was a fourth issue raised – whether the court should have merged Mr. Rollerson’s convictions for PFCV. The Court declined to reach that issue after ruling in his favor on issue one and reversing those convictions.  BM

Read full opinion here.