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How judges don't think: the inadvertent misuse of precedent in the strange career of the Illinois doctrine of antagonistic defenses, 1876-1985.


After more than thirty years of peaceful slumber following Meisenhelter (1942), (527) Braune reappeared in Illinois' antagonistic defenses lineage in People v. Brown (1975), (528) a relatively brief, minor rape case. The most notable thing about Brown regarding antagonistic defenses is that Brown's counsel and the court both treated antagonistic defenses as an entirely separate issue, discussed in an entirely separate part of the opinion, from that of improper questioning of witnesses by a codefendant's counsel, for which issue alone Braune was cited and distinguished. (529)

So although Braune reappeared in Brown, it ironically was not yet recognized to constitute authority on antagonistic defenses.

People v. Davis (1976), (530) a non-fatal stabbing case that came a century after White and forty years after Braune, was the first case in which a court attempted to carefully define the meaning of "antagonism," and recognized the lack of a proper definition, after so many decades in which courts had used the term more cavalierly. The Davis court, of course, came too late, and was only a mid-level appellate court, so its efforts to clarify the situation were hamstrung by earlier decisions that could not be harmonized properly, and Davis inevitably rested on the same shoddy precedential foundation as earlier Illinois cases.

The Davis court cited Canaday on discretionary severance, Gendron on severance where fairness requires it, and Brooks and Henderson for "Separate trials are required when the defenses of the several defendants are so antagonistic that a fair trial can be assured only by a severance." (531) Davis' trial motion for severance was based only on a bald, conclusory allegation that codefendant Huff s defense was antagonistic, and the trial court denied the motion after the prosecution agreed to delete any inculpatory statements from Huff regarding Davis. (532) On appeal, the Davis court explained that Huff s statement had in no way implicated or prejudiced Davis, citing Brooks and Clark (1959). (533) Thus Davis, like so many earlier cases in the antagonism lineage, was a codefendant statement case involving no antagonism.

Returning to the "rule," the court stated, "Our supreme court has said numerous times that in determining whether a severance should be granted, the primary question is whether the defenses of the defendants are so antagonistic that a fair trial can be assured only by a severance. [Citing Canaday, Yonder, Gendron, Henderson, Brinn, and Betson.]" (534) The court added,

Although we have found no Illinois case defining the term 'antagonistic', Webster's Third New International Dictionary defines it as 'characterized by or resulting from antagonism: marked by or arising from opposition, hostility, antipathy, or discord'. Huff testified and was available for cross-examination by defendant. Huff testified that neither he nor defendant stabbed Negron. Huff also denied making any statement to Eshoo. On the other hand, defendant testified that Huff stabbed Negron. Though the defenses contradicted, Huff was helpful to defendant, not antagonistic. To be antagonistic there must be a showing of true conflict in the several defenses; for example, where each defendant attributes the cause of an accident to the wrongful actions of the other [citing Clark (1972)]; where each defendant condemns the other and each declares the other will testify to facts exculpatory of himself and condemnatory of his co-defendant [citing Braune for the second time since 1942 in the antagonism lineage]; where the co-defendant's confession implicating defendant is received into evidence with only an instruction to the jury limiting its admissibility to the maker of the statement [citing Sweetin for the first time since 1959 in the antagonism lineage (535)]; and where each co-defendant makes an admission or confession orally and the references to the co-defendant applying for the severance are not eliminated from the testimony [citing Barbaro]. (536)

Finding no prejudice, the court analogized to the one-sided antagonism in Minnecci, where Minnecci accused a codefendant of the murder but neither codefendant accused him, so Minnecci, like Davis, experienced no antagonism or prejudice. (537)

Thus the Davis court earnestly endeavored to illuminate a murky, muddled situation. Its invocation of the general definition of "antagonistic" in Webster's dictionary was problematic, however, in that the appropriate legal definition of antagonism in the antagonistic defenses context--unlike the joint representation context--required a very strict, strong meaning. Although the dictionary's mention of hostility and antipathy may have been strong enough to strike the right tone, other terms such as opposition and discord were not and opened the door to a looser, more liberal definition of "antagonism" as mere disagreement or contradiction. The court's requirement of "true conflict" did not help much, either, since "conflict" also could be watered down to mean mere contradiction. In citing its four examples of true conflict, the Davis court was properly inclusive, not exclusive--"for example"--but the court followed earlier authorities in improperly lumping purely codefendant statement issues together with antagonistic defense situations as in Braune. For all its conscientious efforts to research the issue, even reaching back to mostly forgotten cases such as Sweetin, Betson, Minnecci, Barbaro, and above all, Braune, the Davis court remained a prisoner of the garbage in the system that by then had muddled the meaning of antagonistic defenses in Illnois case law for almost fifty years. Ironically, the facts in Davis also were evidently clear-cut enough that the court could have reached its conclusion with much less effort. Notably, the Davis court gave an entirely separate, lengthy discussion of an alleged Bruton violation, again citing Brooks and Clark (1972) along with Clark (1959) and clearly recognizing this as a separate issue. (538)

People v. Miner (1977) (539) was a rare example of an Illinois case that involved some degree of actual antagonism beyond conflicting codefendant statements. The case involved a pair of codefendants who sought to steal gasoline from a local mine and wound up killing a mine guard with a shotgun blast to the face. (540) Before trial, the defendants moved for a severance based only upon somewhat differing statements. (541) Although the defendants' statements differed regarding why they went to the mine, both statements agreed that appellant Miner was holding codefendant Ledbetter's shotgun when it discharged, killing the victim. (542) The trial court denied the motions, finding they raised a mere apprehension of antagonistic defenses; the appellate court agreed. (543) At trial, however, both defendants testified. Miner claimed he was innocently holding the shotgun and "'playing'" with the hammer of the weapon while chatting non-threateningly with the victim. (544) The court recounted: "Paul Ledbetter's testimony, however, clearly indicated that defendant was brandishing the shotgun and demanding gasoline from Starnes when the weapon discharged. Ledbetter's testimony was obviously antagonistic to defendant's defense." (545)

Confronted with this situation, the Miner court stated the various relevant rules, citing Brown (1975) regarding joint trial; Brooks for "Separate trials are required only when the defenses of the defendants are so antagonistic that a fair trial can be assured only by a severance"; Rhodes (1969) on a pretrial showing of prejudice from joint trial; Davis and Yonder for the need for specific grounds and the insufficiency of mere apprehension of antagonism; and Pulaski (1959) regarding the trial court's discretion to deny severance absent a showing of prejudice. (546)

Although the court accepted that Ledbetter's actual testimony was antagonistic to Miner's defense, the court distinguished Braune, where "evidence was presented, prior to trial, indicating that each defendant would take the witness stand and testify to a set of facts which would be exculpatory of the witness and condemnatory of his codefendant." (547) Although Miner contended that "a showing of antagonistic defenses may be made either prior to or during trial[,]" the court concluded that such a proposition "contradict[ed] several supreme and appellate court opinions which clearly state that a showing of antagonistic defenses must be made prior to trial." (548)

The court also concluded that notwithstanding the antagonistic testimony from Ledbetter, Miner had received a fair trial. (549) The only evidence admitted at trial that would have been inadmissible in a separate trial was a witness' testimony regarding a statement by Ledbetter. (550) The court noted that although Miner was not denied his confrontation rights as to this statement because Ledbetter testified and was thus available for cross-examination (citing Bruton and its progeny), that alone did not make the statement admissible unless all references to the non-declaring codefendant were deleted. (551) Because a state's witness testified regarding a similar extrajudicial statement from Miner, though, the court followed earlier authority in holding that "the admission of a codefendant's statement inculpating the defendant was harmless error where the defendant had made substantially similar statements and where the other evidence against the defendant was convincing and adequate to support a guilty verdict." (552) The court similarly held that Ledbetter's counsel's cross-examination of Miner concerning a prior conviction for burglary was also harmless error "[i]n light of the overwhelming evidence of [Miner's] guilt[.]" (553)


People v. Precup (1977) (554) involved three jointly represented codefendants all convicted of armed robbery of a tavern. (555) On appeal, two of the defendants alleged plain error from the trial court's failure to sever their trials sua sponte based upon their differing alibis in statements they made to police, particularly where they were jointly represented. (556) Thus, it appears that the appellants wove together the issues of antagonistic defenses, codefendant statements, and joint representation in a jumbled, haphazard fashion that the court then had to try to pick apart--frequently a recipe for trouble.

The court noted that "no defendant undertook to inculpate another, each denied participation in the robbery[,]" and the codefendants' alibi defenses were "consistent" and "compatible." (557) On sua sponte severance, the Precup court distinguished Wheeler (1970), an anomalous case that never mentioned antagonism and is a extremely rare example of an appellate court finding error in the trial court's failure to sever defendants sua sponte, (558) and cited McCasle and Merritt (1973) in rejecting the appellants' argument. (559) The court cited authorities, including Miner, holding that the severance issue should be raised pretrial and not for the first time on appeal. (560) The court also rejected the appellants' contention that their differing statements "create[d] 'a basic antagonistic relationship,'" declaring, "Antagonistic defenses in the context of severance have been confined to those instances where one or more co-defendants testifies implicating the other. [Citing Ware, Johnson (1970), Augustus, and Halluin, ironically all joint representation cases.]" (561) Quoting Davis' four examples of "true conflict" from Clark (1972), Braune, Sweetin, and Barbaro for good measure, the court agreed with the trial court's finding that no defendant had implicated another. (562) The court apparently was unaware that its brief, summarizing statement that antagonistic defenses required that defendants testify against each other went against a wide array of earlier Illinois authorities, namely, all those involving only codefendant statements. Notwithstanding this, Precup's loose language regarding defendants testifying and implicating each other spawned a substantial sublineage of its own. (563)

The court then turned to the appellants' ineffective assistance argument, noting that it "incorporates similar considerations and is essentially the reverse side of the coin." (564) In a thorough review of relevant authorities, the court cited Husar (1974), Barren (1975), Falconer (1975), Robinson (1969), Brown (1976), and Holman to reject the appellants' proposed rule finding conflict per se in the joint representation context and reaffirm the rule that "an actual existing conflict of interest in defenses must appear."(565) The Precup court discussed and accepted Holman's garbling of the proper distinction between the rules on severing antagonistic defenses and appointing separate counsel, observing, "Since there was no implicating of any defendant in the offense, the defenses were not antagonistic and it was not error to deny a motion for severance or to fail to appoint separate counsel," and citing Brooks, a non-joint representation case, as further support. (566) Thus, as so often happened, the Precup court only got itself into trouble and added to the overall confusion by attempting to conscientiously and completely answer the appellants' basically bogus arguments.

Justice Craven further added to the confusion in a dissent, agreeing with the majority that "an attorney is placed in a conflict situation by the representation of two defendants only when the defenses of those defendants are antagonistic. [Citing Smith (1974), which merely referred to antagonistic defenses, and Dickens, which repeated the unfortunate rule-lumping language from Chapman.]" (567) Craven, however, concluded, "The alibi defenses here were antagonistic and mutually exclusive." (568) He cited and quoted Bopp as an example of inconsistent alibis requiring separate counsel, not recognizing that Bopp was considering an entirely different question from antagonistic defenses. (569)

Thus, Precup was a hopeless mess of a case. Nevertheless, it was cited in more than a dozen later opinions. (570)


People v. Jones (1980) (571) involved two African American male defendants, Cedric Jones and Anthony Newbern, convicted of felony theft of roughly $350 from an Urbana pizza shop. (572) At trial, the pizza shop manager and an employee testified that one afternoon as they were preparing to open the shop, first one, then another black man entered the shop. Each requested and was given a glass of water. At around the same time, the manager brought the previous night's cash receipts to a cutting table behind the shop counter at the front of the store for the employee to count, then went back to his office. One of the visitors asked to apply for a job, and the shop employee went back to tell the manager. The manager talked with one visitor, whom he later identified as Newbern, then returned to the back. The shop employee testified that he heard sounds like someone jumping over the counter, ran back to the front of the shop, and found the visitors and part of the money gone. He rushed out into the parking lot and saw two black men in a 1968 white Buick with a black top driving away. Approximately $350 was missing from the previous evening's receipts ($149 of an estimated $500 remained on the cutting table). A woman who was driving by the shop that afternoon testified that she saw two black men run from the store and enter a light-colored car with a dark top. The employee testified that while driving with police a short while later, he saw Newbern in the same Buick in Champaign, and later saw at Newbern's house what appeared to be the same hat Jones had been wearing. (573)

Newbern testified that he drove to the shop to get a job application and found Jones already there. He said he talked with the manager, but had to leave before filling out the application because his mother's dog had escaped from his car, and he ran out of the shop to try to catch the dog. He drove around for a while seeking the dog, unsuccessfully, then went home. Jones was still in the shop when he left. Newbern admitted that he gave a different statement to police before trial. (574) Jones testified that he was not there when the theft occurred. (575)

Although the court rejected Jones' argument that the evidence was insufficient to convict him, it agreed the joint trial had proved problematic. The court repeated the language in Yonder that a "defendant is entitled to a severance upon making a clear showing that a codefendant will rely on a defense which is 'so antagonistic that a fair trial can be had only by severance[,]' " as well as Yonder's requirement of a sufficient showing of antagonism in the pretrial severance petition, not on mere "'apprehensions of antagonism'" or what later happened at trial. (576)

The Jones court then made two fairly sophisticated observations: that actual Illinois case law directly holding that defenses were antagonistic was scarce and hard to find, and that the Bruton situation involving codefendants' extrajudicial statements was a separate, distinct category from antagonistic defenses. (577) The court noted that no Illinois opinion directly "holding that defenses were 'antagonistic' has been called to our attention." (578) The court also distinguished Miner regarding mere apprehension and correctly observed that the language in Precup stating that "'Antagonistic defenses in the context of severance have been confined to ... where one or more co-defendants testifies implicating the other'" was dictum. (579)

Turning to the case at hand, the court described how the two severance hearings indicated that there would be a strong inference that the money was taken by one of the two visitors, Newbern would testify that he and Jones were both there but he did not know what happened after he left, and Jones would testify that he was not there. (580) The Jones court held that notwithstanding Yonder, courts properly "may also consider the representation of counsel made at the hearing on the petition." (581) Here, representations of counsel indicated that there would be a dispute over Jones' presence at the scene, "and that in view of the nature of the circumstantial evidence, the issue would likely be determinative." (582) The court distinguished the alibis in Precup as being only conflicting but not "'implicating the other.'" (583) The court turned to Webster's New World Dictionary (2d Ed. 1974) to define "to implicate" as ' "to show to have a connection with a crime ***.'" (584) The court continued, "Here, although defendant's presence at the scene would not of itself have been enough to convict him, his counsel showed at the hearings on the severance motion that, when combined with the circumstantial evidence, it would infer his guilt. Thus the Newbern defense testimony implied defendant's guilt." (585) The court added, "Indeed, it was apparent that the likely testimony of Newbern would be only slightly more damaging to defendant if he were able to testify to actually having seen defendant take the money." With yet another flash of rare insight, the Jones court noted, "We are unable to discern any hard and fast rule as to when severance should occur in a criminal case and believe that each situation should be judged on its own facts." (586) The court concluded, "In the instant case we believe the defenses were shown to be 'antagonistic' and the trial court should have granted a severance." (587)

Jones was thus an unusual case where, based on the facts rather than a formula, severance was probably the best choice. It is similar to the formulation of the antagonistic defenses doctrine that arose in certain federal jurisdictions: that severance is necessary when at least one of two codefendants must be guilty, and for the jury to believe one, it must convict the other. (588) The Jones court was perceptive in deciding the case on its facts rather than mechanistically on some supposed pre-existing legal rule, in recognizing that the severance decision is necessarily fact-dependent, in distinguishing the Bruton situation from the antagonistic defenses context, and in recognizing the Precup "rule" as dictum (although the court then followed that dictum as though it were more than dictum). Jones' acceptance of pretrial representations of counsel was a salutary move away from the mechanistic petition requirement from earlier cases. Its adoption of the dictionary definition of "to implicate," and its embrace of the Precup dictum requiring that one defendant implicate the other, however, set perhaps too liberal a standard for finding antagonism by stretching the earlier concept of "pointing the accusatory finger" to include potentially almost anything that connected a codefendant with a crime incident. It also left a situation where a defendant could force a severance by offering a conflicting alibi, however implausible. Because the Jones court could find no earlier cases finding antagonistic defenses, it offered a relatively new and independent source of law on the issue.


People v. Lee (1980) (589) involved four codefendants who perpetrated a home invasion armed robbery that led to murder. Defendants Lewis and Chase were convicted only of multiple counts of armed robbery and burglary; defendants Lee and Trosclair were also convicted of murder, attempted murder, aggravated battery, and battery. (590) The defendants, purportedly seeking a particular individual, forced their way into an apartment at gunpoint and forced the occupants to lie on the floor on their backs. Trosclair then said, "Kill them all." A pregnant woman in the apartment pleaded for their lives. Trosclair said not to shoot her. Lee replied, "I have to shoot, I have to kill someone," and indicated that he needed to kill at least two people. As Lee and Trosclair talked, Chase and Lewis took the apartment's stereo system out the front door. Lee then shot, apparently more or less at random, one victim, then another, as Trosclair watched. They then fled. One shooting victim later died; the other survived with a serious abdominal wound. One apartment occupant who had been able to flee out the back door when the defendants forced their way through the front door flagged down a police squad car and identified the fleeing defendants as three of them were attempting to join two other men waiting in an Oldsmobile sedan parked in a nearby alley. She and another victim later identified all four defendants from a 15-man lineup; two others identified Lee, Trosclair, and Chase. A revolver with Lee's fingerprints was found near the Oldsmobile. (591)

Lewis testified that he was with the others and another person, Larry, that night in the Oldsmobile; that he and Chase went to a different apartment to pick up Chase's suitcase; and that as they were returning to the Oldsmobile, they heard gunshots, then saw Larry running toward them with a stereo, Trosclair running close behind. Chase adopted Lewis' testimony. (592) Lee testified that Trosclair was the leader of the gang he was a member of when he was in school; that on the night of the crime, Trosclair entered the apartment with the gun, then apparently at some point gave the gun to Lee and ordered him to kill everyone in the apartment; that Lee said no; that Trosclair poked the gun barrel into Lee's stomach; that Lee said he could not shoot the pregnant woman, so Trosclair then said not to shoot her, but instead "'Shoot them two'"; that Lee feared Trosclair and thought that he might have another gun and might shoot him if he didn't follow his orders; and that Lee fired two shots from near the door, then fled. (593)

On appeal, Lee and Trosclair asserted, inter alia, that the trial court erred in denying their respective severance motions, which were filed several months apart, and that Trosclair's counsel was not present when Lee's motion was argued. (594)

The court reviewed the Illinois severance "rule" at length, citing Jones (1976) for the general rule of joint trial unless fairness required otherwise; Henderson for the trial court's discretion on severance; Precup for the requirement of a pretrial motion for severance; Miner for the requirement that any facts not in the record be supported by an affidavit; Rhodes for the defendant's duty to demonstrate prejudice; Brinn for the requirement that this demonstration be specific; Nickson (1978) for mere apprehension of conflict being insufficient. (595) The court, citing Yonder, observed, "Of paramount concern is whether their defenses are so antagonistic that a severance is imperative to a fair trial"; (596) the court also noted Yonder's requirement that the reviewing court focus on defendants' pretrial petitions, not subsequent happenings at trial. (597) The court added, however, "Nonetheless, the trial court has a continuing duty at all stages of trial to grant a severance if prejudice appears. [Citing Clark (1979)." (598)

Applying these concepts, the court held that Lee's pretrial severance motion, directed at the anticipated testimony of Lewis, was properly denied, because the motion was unclear as to what defense he would use, presented only the "mere apprehension of a conflict," and included no affidavit. (599) Nor was Lee prejudiced at trial, because his compulsion defense was not antagonistic to any other defendant's defense. (600)

The court also held that Trosclair's pretrial severance motion was properly denied, where Trosclair offered only mere apprehensions of conflict with no supporting affidavit. (601) The court, however, found that Trosclair had been prejudiced at trial by Lewis' testimony that Trosclair had been dropped off from the Oldsmobile near the crime scene plus Lee's directly implicating testimony on what happened inside the apartment. (602) The court concluded, "Co-defendants' testimony was patently antagonistic to Trosclair's defense. This was not apparent until trial. They placed Trosclair at the crime scene, indicated his responsibility for the crimes charged and inferred that he was fleeing with stolen property. Co-defendants' testimony may have necessitated Trosclair's decision not to testify." (603) On that basis, the court held, "The cumulative effect of co-defendants' antagonistic defenses prejudiced Trosclair." (604)

People v. Dorsey (1980) (605) involved two men, Ben Dorsey and Leon Harris, convicted of killing a cab driver. Each defendant made a statement to police that was read into evidence at trial, but edited to delete references to the codefendant. (606) Each defendant also made pretrial motions for severance that were denied based upon the prosecution's promise to edit out references to codefendants. (607) Dorsey's statement indicated that he saw two people, Harris and another man named Curtis Nelson, engage in the shooting, but his statement was edited to delete any reference to Harris, so the edited statement read as though Dorsey claimed to have seen only one person, Nelson, do the shooting. (608) Harris' original statement described how Dorsey planned to rob the cab driver and later shot the cab driver as Nelson stood on the other side of the cab, but in the edited version, all references to Dorsey were replaced with "he." (609)

On appeal, Dorsey claimed antagonistic defenses. (610) The court cited Miner on joint trial and severance "only when the defenses are so antagonistic that a fair trial can be achieved only through severance." (611) The court noted that redaction of Dorsey's statement that removed any mention of Harris and mentioned only one shooter made his statement appear unbelievable, given that a witness who was in the back of the cab when the shooting happened testified that there were two people involved, one shooting from each side of the cab. (612) Rejecting the prosecution's argument that Dorsey's severance motion did not adequately spell out the prejudice he would suffer, the Dorsey court cited Jones (1980) at length for its holding that a court should also consider representations of counsel made at a severance hearing, noting that Dorsey's counsel had warned that redaction of the statements would not avert prejudice. (613) As to Harris' statement, the court found a clear Bruton violation, explaining that replacing "Dorsey" with "he" had not eliminated prejudice where "he" clearly implied "Dorsey." (614) On these grounds, the court held that Dorsey and Harris had antagonistic defenses that were clearly disclosed before trial, so their trials should have been severed. (615) Thus, Dorsey clearly involved exclusively codefendant statements, but the court characterized the issue as antagonistic defenses, in addition to lumping Bruton problems together with antagonism.

In People v. McMullen (1980), (616) two mentally handicapped high school students were charged with lewdly fondling a fellow student. (617) The appellant's counsel moved for severance before trial based upon the codefendant's statement to police implicating the appellant, which the prosecutor promised not to use to prevent Bruton problems, but the defense counsel warned that there still would be prejudice if the codefendant testified in keeping with his statement. (618) At trial, the appellant presented a witness who testified that the appellant never got out of his seat; the appellant also testified that he never arose from his seat, but that his codefendant was standing near the victim while the teacher was out of the room. (619) The codefendant testified that both he and the appellant left their seats while the teacher was absent and touched the victim on her breasts and legs, but he claimed that he believed the victim was (16) years old or older. (620) On cross-examination, the prosecutor impeached him with his pretrial statement stating that both he and the appellant had fondled the victim's breasts and legs. (621)

The court noted the appellant's invocation of Strayhorn, "where the supreme court noted in dictum that a motion for severance should be allowed where it appears that defenses of codefendants are antagonistic." (622) Citing dictum from Precup, the appellant contended that "such antagonism existed here since one of the defendants testified implicating the other." (623) Apparently also on the basis of the Precup dictum, the State conceded that the defenses were antagonistic, but cited Yonder regarding the need for prejudice to be demonstrated specifically in a pretrial severance motion. (624) The court, however, reviewed its holding in Jones (1980) regarding representations of counsel at the severance hearing and held that the McMullen trial court had sufficient notice of antagonism from counsel's warning. (625) Because both defendants actually testified and strongly implicated each other, McMullen appears to be another rare example of actual antagonism in Illinois case law. The court, however, in deciding to remand, focused exclusively on the existence of conflicting codefendant statements and did not mention any indications either of defenses the defendants planned to offer or of the intent of either defendant to testify. (626)

People v. Murphy (1981) (627) involved two men, Danny Murphy and Kenneth Bell, convicted of armed robbery for holding up Mae Maxwell at gunpoint outside Perry's Chicken Shack. (628) The victim testified that Bell had a gun and demanded her purse and car keys, while Murphy stood nearby yelling, "'Don't move or I'll shoot.'" (629) Murphy and Bell then drove away in Maxwell's blue Chevrolet Malibu. (630) Police later pulled Murphy over in the Malibu for various serious traffic infractions, and the next day, Maxwell identified him from a police lineup as one of her two assailants. (631) Two weeks later, she identified Bell as the other assailant. (632) Bell, who admitted he was a friend of Murphy, testified that he was at home with his family on the night of the crime, and his brother and grandmother corroborated that alibi. (633) Before Murphy testified, Bell's attorney requested that Murphy, who had requested a bench trial, testify outside the presence of the jury, because the testimony would implicate Bell and contradict his alibi. (634) The court denied the motion, and Murphy testified that he and Bell were both outside Perry's Chicken Shack that night, that he saw Bell approach Maxwell and speak to her, and that Bell then gave him keys to the Malibu and they then drove off. (635) Bell's counsel then moved for a mistrial, claiming the defenses were clearly antagonistic and prejudicial to Bell; the court denied the motion. (636)

Considering the matter on appeal, the Murphy court, like the Davis court, made an impressive effort to summarize all relevant authorities in stating an exclusive version of the rule:

The general rule is that persons jointly indicted should be jointly tried and separate trials are only required when the defenses are so antagonistic that a fair trial can be achieved only through severance. [Citing Barbaro, Dorsey, Miner, and Davis.] However, it is incumbent upon the defendant moving for a separate trial to demonstrate prior to trial how he would be prejudiced by a joint trial. [Citing Stevenson, Miner.] The decision to grant severance rests within the sound discretion of the trial court. [Citing Clark (1979).] However, this discretion should not be exercised arbitrarily, capriciously, or in such a way as to work an injustice. [Citing Barbaro.] The mere apprehension that defenses may prove antagonistic without a showing that such apprehensions are well founded is an insufficient ground for severance. [Citing Moore (1983), Davis.] Nevertheless, the court has a continuing duty at all stages of trial to grant severance if prejudice appears. [Citing Lee (1980), Clark (1979).] Antagonistic defenses have been confined to those instances where one or more co-defendants testify implicating the other. [Citing Jones (1980), Precup.] The verb "to implicate" has been defined as "to show to have a connection with a crime ***." [Citing Jones; Webster's New World Dictionary (2d ed. 1974).] Antagonistic is defined as "that which is characterized by or resulting from antagonism; marked by or arising from opposition, hostility, antipathy or discord." [Citing Davis.] In sum, where there is more than one defendant and the defenses are antagonistic, and one defendant accuses the other, making it impossible for defendant requesting severance to have a fair trial, the severance should be granted. [Citing Lindsay, Minnecci.] (637)

As so often happens when a court attempts to collect all relevant authorities, internal inconsistencies were revealed in the court's own summary of the law: for instance, for defendants to testify and implicate each other is different from defendants accusing each other. Also as usual, the diligently summarizing court did not notice the inconsistency.

As to Murphy, the court, citing Davis and Minnecci, explained that although Bell's alibi defense was inconsistent with Murphy's, it was not antagonistic to Murphy--Bell did not implicate Murphy. (638) Murphy did, however, clearly implicate Bell, even if he did not accuse him of any overt wrongdoing, and on this basis, the court concluded that Murphy's defense was antagonistic to Bell. (639) The court discussed Jones (1980) at length and analogized to Jones in explaining how, given that Murphy's self-exculpatory testimony contradicted Bell's alibi and not only placed Bell at the scene of the crime but also had him talking with the victim and giving Murphy her car keys, "It is apparent that Murphy's testimony could only be more damaging to Bell, if he had testified that he saw Bell rob Ms. Maxwell at gunpoint." (640) The court held that Bell's attorney had given sufficient warning of antagonism, and that the trial court should have granted Bell's motion to have Murphy testify outside the jury's presence. (641)

People v. Powell (1981) (642) basically concerned the requirement that defendants file severance motions before trial. For various reasons, both defendants moved for severance only orally, after the jury was sworn, and did not then clearly indicate what the alleged antagonism would be. (643) The following day, after opening arguments, "both defense counsel were very specific in outlining to the trial judge what the antagonistic testimony of [codefendant] O'Neill would be. As it turned out, the defenses of the two were clearly antagonistic." (644) Notwithstanding that, the court, citing Yonder and Rhodes, held that the defendants were obliged to disclose the other side's "damaging testimony to the trial court at the earliest opportunity" and concluded, "[W]e cannot say that the trial court abused its discretion with what it had to consider prior to trial." (645) Powell was thus an example of Yonder's chickens coming home to roost, and courts elevating the pretrial motion rule above the fundamental requirement that trials be fair.

In People v. Lee (1981), (646) the Illinois Supreme Court reversed the appellate court's earlier finding of antagonism causing prejudice to appellant/defendant Trosclair after the State successfully sought higher review. (647) The court summarized relevant law, citing Rhodes for the requirement of a pretrial severance motion, Yonder for the defendant's burden to demonstrate prejudice from joint trial beyond mere apprehensions, Canaday and the Illinois Revised Statutes for the trial court's discretion, Lindsay for the general rule of joint trial unless fairness demands otherwise. (648) The court then observed that "[a]t least two varieties of prejudice can be readily identified": first, the Bruton variety involving codefendants' extra-judicial statements, which did not apply here, and second,

Prejudice may also occur when a codefendant takes the stand to point a finger at the defendant as the real perpetrator of the offense. No confrontation problems exist because the defendant is free to cross-examine the new accuser. But the procedure may be unfair. For example, as the court observed in People v. Braune (1936), ... "The trial was in many respects more of a contest between the defendants than between the People and the defendants. It produced a spectacle where the People frequently stood by and witnessed a combat in which the defendants attempted to destroy each other." A severance may be ordered where the defendants cannot realistically be aligned on the same side, but care must be taken in such cases to insure that the nature of the defenses are truly inconsistent. [Citing Brooks.] (649)

The court thus identified the Bruton situation and antagonistic defenses as two separate categories. It also appeared to set a fairly strict standard for what would constitute antagonistic defenses--namely, a defendant testifying and implicating a codefendant. Although the court tended to avoid using the term "antagonism," it clearly linked the second variety of prejudice to Braune, the classic example of true antagonism.

Noting that Trosclair claimed the second variety of prejudice, the court cited Gendron for, "The paramount inquiry in such cases is whether the defenses are so antagonistic that a severance is imperative to assure a fair trial"--again, identifying the second variety as the antagonistic defenses situation. (650) The court determined that Trosclair's pretrial motion made no such showing and gave the trial court no reason to sever at that point: "The conclusions set forth in his petition for a severance were no substitute for a detailed recitation of what his defense would be, what the codefendant's defenses would be, and how the two conflicted. [Citing Braune again.]" (651) The court, again noting Gendron, then considered the appellate court's determination that the trial court should have seen the need for a severance as the trial developed, even if the basis for severance was unknown before trial. The court observed that a strict rule requiring a pretrial motion might make more sense regarding the Bruton situation than in the antagonistic defenses context, where a defendant's counsel might not know for certain either a codefendant's anticipated defense or whether that codefendant would take the stand and implicate the defendant. (652) Even granting that, though, the court explained that Trosclair had never detailed antagonisms or inconsistencies between his and codefendant Lee's defenses to the trial court; instead, his stated defense was insufficient evidence. (653) Moreover, codefendant Lewis' placing Trosclair near the scene of the crime, and Lee's testimony as to what happened at the crime scene, were merely cumulative to the testimony of several crime victims. (654) The court noted that the situation might have been different had Trosclair offered an alibi, as his counsel promised to do in opening statements, but that never happened, so the record showed no antagonism between Trosclair's defense and those of his codefendants. (655) The court quoted Meisenhelter "'It is incumbent upon a defendant, moving for a separate trial, to show to the trial judge how he would be prejudiced by a joint trial. If he fails so to do, he cannot, on review, complain of the action of the trial court in denying his motion.'" (656) The court reversed the lower appellate court. (657)

People v. Lumpkin (1982) (658) was another case in which the appellant unsuccessfully invoked Wheeler to argue that the court should have severed his trial sua sponte when the codefendant's out-of-court statement was admitted at trial. (659) The court cited Precup for the general rule that severance motions must be made before trial--though acknowledging the holding in Clark (1979) that "a trial judge has a continuing duty to grant such a motion if prejudice appears during ... trial"--and Appold for its holding that prejudice may not be raised for the first time in a post-trial motion. (660) Lumpkin pointed out that like the appellant in Wheeler, he had notified the court that there might be prejudice from a joint trial. (661) The court replied that Wheeler appeared to be the only Illinois case ever to impose a sua sponte severance obligation upon a trial judge, and added that even under Wheeler, any sua sponte severance would have to occur before trial to avoid serious double jeopardy problems. (662) Lumpkin's counsel had only indicated before trial that a motion to sever then would be premature, and the Lumpkin court, citing Precup, determined that the Wheeler holding did not apply where the need for severance was not apparent before trial. (663) Citing Davis, Precup, and Holman, the court also rejected Lumpkin's parallel ineffective assistance argument because the codefendant's statement did not implicate Lumpkin, was merely contradictory rather than antagonistic to his defense, and thus "was not of such a prejudicial nature as to render a fair trial impossible in the absence of a severance." (664)

People v. Sanchez (1982) (665) involved two defendants accused of raping a woman who drove with them in a pickup truck to an Indiana lake. Both defendants admitted being there in the truck, but denied having done anything wrong or having seen the other defendant do anything wrong, though both said they had fallen asleep for a time and so did not see everything. (666) The court reviewed various authorities, citing Lee (1981) for the defendant's burden to specifically show antagonism and resulting prejudice, Murphy on the trial court's discretion to sever, and McMullen and Jones (1980) on reviewing only the sufficiency of the petitions plus representations of counsel. (667) The court also stated, "The general rule is that separate trials are required only when the defenses are so antagonistic that a fair trial can be achieved only through severance. [Citing Murphy.] Antagonistic defenses have been confined to situations where one or more codefendants testify implicating the other. [Citing Murphy and Jones (1980) and, notably, not Precup).]" (668) The court, citing Allen, rejected the appellant's reliance on a supposedly antagonistic statement that was never introduced at trial. (669) The court also reviewed and distinguished Jones (1980), noting that there, the circumstances indicated that one of the two defendants had likely committed a single act of theft, and the "determination that the defenses were antagonistic stemmed largely from the fact that the codefendant contradicted Jones' defense of alibi. [Citing Murphy.]" (670) In Sanchez, by contrast, the allegations were that each defendant had committed separate acts, and neither had a particularly viable alibi. (671) The court noted the Jones court's recognition that "there are, indeed, no hard and fast rules as to when severance should be granted in a criminal case, and that each situation should be judged on its own facts[,]" but held that its careful review of the facts in Sanchez indicated that the defendants never made a showing of antagonism sufficient to require severance. (672) Sanchez is chiefly notable for its exclusive definition of the severance rule--severance only for antagonistic defenses--further narrowed by the dictum, originally from Precup, that antagonism entailed defendants testifying and implicating each other.

People v. Columbo (1983) (673) involved a pair of cohabitants, Patricia Columbo and Frank DeLuca, convicted of murdering and soliciting murder of Colombo's parents. (674) Although Columbo admitted that she and DeLuca gave police " 'basically consistent'" statements prior to their arrest, she contended that his post-arrest statements to police and others inculpated her, placed her in a position where she would blame him entirely for the murders, negated her alibi, and made it inevitable that any defense of his must be "in conflict with, inconsistent and antagonistic toward hers." (675)

The court ran through the antagonistic defense litany, citing Brooks for the general rule on joint trial, Lindsay for the court's discretion to sever to avoid prejudice, Rhodes for the defendant's duty to demonstrate prejudice before trial, Earl for the abuse of discretion standard for reversal, Yonder for the court's duty to consider only the defendant's severance petition, Brophy (1981), Cart (1981), and Powell for the court's duty not to consider subsequent happenings at trial, and Henderson for "the primary question is whether the defenses of the defendants are of such an antagonistic nature that a severance is imperative to ensure a fair trial." (676) The court further cited Miner for the defendant's obligation to specifically show prejudice, cited Davis for the rule that "In order to be antagonistic, there must be a showing of true conflict between the defenses[,]" and quoted Davis along with Murphy for the Webster's dictionary definition of "antagonism." (677) The court also borrowed and summarized the Davis court's inclusive list of examples of true conflict while discarding any note of their origins:
   Examples of true conflict are: (1) each defendant attributes
   the cause of the offense to the wrongful acts of the other; (2)
   each defendant condemns the other and declares the other will
   testify to facts exculpatory of himself and condemnatory of his
   co-defendant; (3) a co-defendant's confession implicating the
   other would be received into evidence with only a jury instruction
   limiting its admissibility to the maker of the statement; or (4)
   each co-defendant makes an oral admission or confession and the
   references to the defendant requesting the severance are not
   eliminated from the testimony. (678)

Turning to the facts of the case, the court noted that Columbo merely informed the trial court during the severance hearing that, contrary to her earlier statements about her anticipated defense, "she could not vouch for DeLuca's whereabouts at the time of the murders." (679) The trial court wearily observed, in words that many trial judges faced with the issue have doubtlessly felt through the years, "'Now we come down to the trial of this case and sure enough, lo and behold, we're faced here now with antagonistic defenses. One has to wonder.'" (680) The Columbo court explained that Columbo gave no further specifics to the trial court as to what her "new" defense would be, and that to change her tune to say she did not know where he was on the night of the murders was quite different from saying he committed them, while DeLuca never abandoned his alibi that he and Columbo went shopping, returned home, and went to bed that night. (681) As such, neither defense was antagonistic to the other, and the court, citing Yonder, concluded that "Columbo's mere speculation that the defenses would be antagonistic is an insufficient ground for severance." (682)

The court then proceeded to also reject Columbo's arguments based on alleged prejudice from DeLuca's extrajudicial statements--suggesting that both the court and Columbo's counsel recognized that this was an issue separate and distinct from antagonistic defenses. At any rate, the court never mentioned antagonism again through its whole lengthy discussion of DeLuca's statements, the Confrontation Clause, and Bruton. (683) It did, however, dip further into the antagonistic defenses lineage to cite Mutter (1941) to declare, "The mere fact that some evidence is only admissible against one defendant is not justification for a severance"; (684) Barbaro for, "It has been clearly stated that a severance need not be granted where any reference to the codefendant applying for a severance is eliminated from an inculpatory confession"; (685) Williams (1981) to state that "where a statement introduced at trial is not inculpatory of another, there is no error in its admission"; (686) and Strayhorn and Lindsay for "the well-established legal principle that a severance is not required if, in the confessions of the codefendant, all references to the party seeking a severance are eliminated" (687)--further suggesting the court's realization that those cases were about codefendant statements, not about antagonistic defenses. The court also cited Wilson (1973) and Williams in holding that any possible slight mishandling of DeLuca's statements constituted harmless error beyond a reasonable doubt "in view of the overwhelming evidence of Columbo's guilt." (688)


People v. Hargis (1983) (689) was a murder and armed robbery case in which defendant Hargis moved for a severance before trial because his codefendant, Daugherty, had made "an exculpatory statement which implicated [Hargis] in the crime" that in turn made their defenses "'so antagonistic as to result in an unfair and prejudicial trial if they were tried together.'" (690) Hargis' counsel thus apparently lumped codefendants' statements and antagonistic defenses together as one and the same, like so many attorneys and courts before had done. At the severance hearing, counsel could not describe any specific prejudice resulting from a joint trial "but indicated his belief that each defendant would try to shift the blame to the other." (691) The prosecutor then "vowed not to use 'any statement made by either defendant Mr. Daugherty or *** Mr. Hargis in this case[,]'" and the trial court denied the severance motion. (692)

The Hargis court, finding no abuse of discretion, held that Hargis' severance motion lacked sufficient specificity. (693) The court cited Ruiz (1982) for the "primary question" formulation of the severance rule from Henderson. (694) The court also reviewed the discussion in Lee (1981) regarding "at least two possible sources of prejudice" from joint trial: the "use of inculpatory statements made by codefendants in violation of Bruton ..., and the possibility that the trial will become a contest between defendants as opposed to a contest between the State and the defendants. Such a state of affairs was condemned in People v. Braune (1936)[.]" (695) The court concluded that the prosecution's non-use of the codefendants' statements cured the first potential problem, and that "since neither defendant took the stand, the case did not become a contest between the defendants. Ergo, the second possible source of prejudice was also eliminated." (696) In short, the Hargis court followed Lee (1981) and other courts in concluding that by definition, no testimony meant no antagonism.

Hargis also raised a related but slightly different argument in support of severance: "that he was unable to put on a full defense since he had no way to elicit from the testifying officer that the statement he gave to police prior to leading them to the body and murder weapon inculpated his codefendant," presumably, the court surmised, because Daugherty's counsel could have prevented Hargis' counsel from eliciting that statement on Bruton grounds. (697) The court, in confronting this argument, noted that it was basically a Bruton issue for which Hargis offered no supporting authority, but the court sidestepped Bruton analysis because "our disposition of this issue rests firmly on alternate grounds and we need not speculate about one defendant's right to successfully make Bruton objections to prevent a codefendant from fully explaining statements which are introduced against his interest." (698) The court then returned to Lee (1981) and discussed how the trial court there had noted there was a possibility of adverse testimony by a codefendant based upon that codefendant's alleged extrajudicial statements that the State would offer into evidence, but the trial court denied severance, and the state supreme court upheld that ruling based upon the lack of various factors the Lee (1981) court required from defendants seeking severance based on antagonistic defenses, including "'a detailed recitation of what his defense would be, what the codefendant's defenses would be, and how the two conflicted.'" (699) Because Hargis presented "no such detailed allegations[,]" his motion and petition for severance were insufficient. (700) Thus, ironically, even after acknowledging in effect that codefendant statements/Bruton and antagonistic defenses are different categories, the Hargis court fell back on antagonistic defenses to sidestep a vexing Bruton issue.

People v. Daugherty (1984) (701) was a companion case to Hargis that went straight to the Illinois Supreme Court as a death penalty appeal. (702) Randy Daugherty and Clarence Hargis were convicted of the armed robbery and murder of Richard Dark, for which Daugherty received the death sentence, Hargis life in prison. (703) The two defendants were seen with Dark the last day he was seen alive, including at a tavern where the bartender noticed that Daugherty and Hargis, after finishing a pool game, sat at a separate table from Dark talking quietly with each other and grew silent whenever she approached. (704) The next day, both defendants were seen in Dark's car, without Dark. (705) A witness later testified that when he gave them a ride to where Dark's car was parked, Dark's car would not start, so the defendants then took a gray sweater and two pairs of jeans, all with bloodstains, out of the back of Dark's car, put them in a paper bag, and moved them to the trunk of the witness' car. (706) Another witness later saw Daugherty soaking the gray sweater. (707) When police later learned Dark was missing and towed in his car to investigate it, they found bloodstains in the car, plus two of Dark's checks, one made out to Hargis. (708) After interviewing witnesses to the defendants' interactions with Dark and his car, the police searched for Hargis and Daugherty. (709) Hargis talked with officers several times, and ultimately drew a map and accompanied officers to a remote field on a gravel road where Dark's body and wallet were found at the bottom of a well--with no sign of the proceeds of a social security check he had received shortly before his disappearance. (710) The police and Hargis continued down the road to a bridge where an officer recovered a closed folding knife from the creek bed below. (711) A witness later testified that he had seen Daugherty with the same knife earlier that summer. (712) An autopsy showed that Dark had five stab wounds to the chest and abdomen, only one of them fatal. (713)

The Daugherty court then turned to discussing the sentencing phase of the trial, at which both defendants waived a jury. (714) The defendants' statements to police were admitted, with the trial court stating that it would consider such statements only as against the declarant to avoid confrontation clause concerns. (715)

In Daugherty's first statement, he admitted driving with Dark and Hargis on the date of the crime and said that Hargis asked for his knife "because he intended 'to stab or kill *** Dark and get his money.'" (716) Daugherty gave Hargis the knife, not thinking he was serious. (717) Later, when they stopped to urinate, Daugherty, from a distance away, heard Hargis yell, then saw Dark bend over clutching his stomach and fall to the ground. (718) Hargis dropped the knife, found it again, stabbed Dark several more times, then said, "'Didn't think I'd do it, did you?'" (719) Daugherty said there was no preconceived plan to kill Dark, and that he never stabbed him, but split half the money ($13) from Dark's wallet with Hargis, helped dispose of the body and knife, and changed clothes. (720) In a later statement to a polygraph examiner, Daugherty mostly repeated this story, except that he admitted " 'poking'" Dark after Hargis dropped the knife, though he insisted he had not " 'killed'" Dark. (721)

In his first statement Hargis also admitted that he and the defendant were with Dark on the date of the crime. (722) Hargis said that he and Daugherty had a "serious argument" over their pool game, and when Dark later stopped the car, Hargis and Daugherty began quarreling again, Dark attempted to break up the fight, and Daugherty stabbed him. (723) In his first statement, Hargis said that Daugherty put the body in the car, disposed of it in the well, and discarded the knife in the creek. (724) In a second statement made to the polygraph examiner, Hargis said instead that after Dark stopped the car, Daugherty got into a scuffle with Dark, and Hargis, attempting to stop the quarrel, accidentally stabbed Dark in the side, after which he and Daugherty disposed of the body together. (725)

The trial judge noted that although he could not determine which defendant struck the fatal blow to Dark, he nevertheless concluded that both defendants had "'actually killed'" Dark and were eligible for the death penalty. (726) The judge observed that each defendant "'seem[ed] to point the accusing finger at the other person stating well, he really did it[,]'" but their statements indicated that both had participated in the events leading to Dark's death, including wielding the knife, whether it was characterized as an accident, "poking," or whatever. (727) The judge added, "'We cannot get into a situation where when both participate that the intent of the [Illinois death penalty] Statute is denied because of multiple participation."(728) At the second phase of the death penalty hearing, the trial court heard testimony concerning Daugherty's prior conviction for the unrelated murder of a parole officer who was stabbed seventeen times, plus evidence of an unrelated conspiracy between Hargis and Daugherty to rob and murder another victim shortly after Dark's murder. (729)

Noting that each defendant had moved for severance before trial, the Daugherty court declared, "We agree that the cases should have been separated for trial." (730) The court cited Ruiz for no right to a separate trial, Lee (1981) for the default of joint trial absent prejudice and the defendant's duty to demonstrate prejudice beyond mere apprehensions, and Canaday for reversal only for abuse of discretion. (731) Along with those Illinois Supreme Court precedents, the Daugherty court dipped into mid-level appellate court precedent, citing McMullen for the trial judge's duty to consider "the papers presented, the arguments of counsel, and any other knowledge of the case developed from the proceedings[,]" an expansive reading of McMullen, which basically only followed Jones (1980) in allowing the trial court to consider representations of counsel along with the petitions at a severance hearing. (732) The court then explained the "two common forms of prejudice" justifying severance: first, "when a codefendant has made hearsay admissions that implicate the defendant" [citing Lee (1981), Bruton, and Clark (1959)]; and second, "when defenses of the various defendants are so antagonistic that a severance is imperative to assure a fair trial. [Citing Lee (1981).]" (733) The court continued,
   The classic example of antagonistic defenses arose in People v.
   Braune (1936) ..., where each defendant "was protesting his
   innocence and condemning the other." ... In Braune it was apparent
   "that an actual and substantial hostility existed between the
   defendants over their lines of defense. *** Criminations and
   recriminations were the inevitable result."... In Braune each
   defendant attempted to discredit the witnesses of his codefendant.
   "The trial was in many respects more of a contest between the
   defendants than between the People and the defendants. It produced
   a spectacle where the People frequently stood by and witnessed a
   combat in which the defendants attempted to destroy each other."...
   This court held in Braune that to guarantee a fair trial to both
   defendants the motion for severance should have been granted. (734)

In so identifying Braune as the "classic example of antagonistic defenses," the Daugherty court neglected to mention how Braune had been entirely forgotten by the antagonism lineage for more than thirty years, and almost entirely forgotten for nearly forty years, while numerous other courts and opinions had tossed the term "antagonistic defenses" around regarding entirely different situations from that in Braune.

The court described how Daugherty and Hargis had alleged both forms of prejudice--Bruton and Braune:
   They each had made the statements to law-enforcement officers that
   were later admitted in evidence at their sentencing hearing. [More
   significantly, though, the statements were not admitted at trial.]
   In his statement, Hargis accused the defendant of stabbing Dark
   when Dark tried to break up an altercation between the defendant
   and Hargis. [Ignoring Hargis' second statement to the polygraph
   examiner, in which he said that he stabbed Dark while trying to
   break up an altercation between Daugherty and Dark.] Hargis claimed
   that the defendant alone had disposed of the body and the murder
   weapon. [Ignoring Hargis' second statement to the polygraph
   examiner, in which he said he and Daugherty disposed of the body
   together.] The defendant, on the other hand, accused Hargis of
   planning to rob Dark and stabbing him in the chest several times.
   [Thus, notably, only Daugherty implicated Hargis in committing
   murder during the course of armed robbery, the charged offense;
   Hargis, in each of his statements, indicated that the stabbing was
   more or less an accident, and in one version he alone did the
   stabbing--though that of course does not explain the other four
   stab wounds.] Although the defendant admitted helping Hargis
   dispose of the body, he vigorously maintained that he had not
   planned with Hargis to rob and kill Dark, nor had he stabbed the
   victim during the murder. (735)

The court noted that the trial court had been apprised of these "conflicting claims" at the preliminary hearing, even before the severance motions:
   The judge said: "Let me say that the Court heard the preliminary
   hearing, the evidence adduced, and we had a situation where one
   said no, I didn't do it; he did it. That's what they both said in
   fact." The prosecutor then stipulated that he would not use either
   of the codefendants' statements at trial. Although this eliminated
   the source of any problem under the confrontation clause, it did
   nothing to alleviate the codefendants' concerns about their
   antagonistic lines of defense. (736)

The court added, without bothering to cite any authority,
   The trial court's denial of the defendant's motion for severance
   was an abuse of discretion. When codefendants have each made
   statements implicating the other but professing their own
   innocence, it is almost inevitable that their lines of defense at
   trial will become inconsistent and antagonistic and severance is
   necessary to forestall that result and ensure a fair trial. In such
   cases, the hostility between the codefendants is likely to surface
   at trial whether or not they each take the stand themselves. An
   unacceptable spectacle occurs in which the trial becomes as much a
   contest between the defendants as it is a contest between either
   defendant and the prosecution. (737)

Here, the Daugherty court, by sleight of hand, did what earlier opinions had tended to do more by accident or oversight and basically defined conflicting codefendant statements and antagonistic defenses as one and the same thing, always subject to severance automatically. Even if courts and prosecutors could appropriately address Bruton/Buckminster issues in the handling of codefendant statements--even by not using them at all--the Daugherty court seemed to be declaring that the mere existence of such statements required severance. Moreover, rather than letting defendants spell out what their defenses would be, the court second-guessed that process by proclaiming in advance that antagonism was "almost inevitable." In Barbaro, for example, although conflicting statements existed, the actual defenses were that those statements were extracted by coercion. (738) Daugherty also turned its back on various cases in Illinois' antagonism lineage that pointed out that where no defendant testified or offered any defense, by definition there could be no antagonistic defenses. (739) It is noteworthy that the court, in referring to lines of defenses at trial becoming "inconsistent and antagonistic," seemed to be suddenly setting a much lower standard for antagonism, given that "inconsistent" is obviously a much weaker term than "antagonistic" is or should be in the context of antagonistic defenses. Moreover, Hargis' statements, although they implicated Daugherty in being at the scene and participating in an altercation that led to Dark's death (and Daugherty's own statement placed himself at the scene), did not implicate Daugherty in armed robbery or premeditated murder and did not particularly profess Hargis' own innocence--Hargis obviously admitted being at the scene and one way or the other participating in the altercation that led to Dark's death. Thus Hargis' statements were, in effect, as self-inculpatory and exculpatory to Daugherty as they were self-exculpatory and inculpatory of Daugherty.

The court then distinguished Lindsay, a pre-Bruton case purely involving codefendant statements, because the statements there, though incriminating of codefendants, were not self-exculpatory to the declarants. (740) It distinguished Yonder because the codefendants expressed "'mere apprehensions'" that they would incriminate each other "without specifying how their defenses were antagonistic." (741) Justice Simon, author of Daugherty, also distinguished his own earlier opinion, Lee (1981): "Likewise, in People v. Lee ..., one defendant moved for severance claiming "that he believed the codefendants would testify on their own behalf and implicate [him]. The court was not informed of what the substance of such testimony would be" ..., nor how it would be antagonistic to the defendant's defense." (742) Rather, the court continued, "This case is more like the situation in Braune than like Lindsay, Yonder or Lee; the circuit court was apprised that each defendant was incriminating the other while asserting his own innocence, and the court was informed of the statements of each defendant to that effect. It should have been apparent to the trial judge that the danger of prejudice and confusion caused by these antagonistic defenses was great, and the motion for severance should have been granted." (743)

The court added that consistent with Yonder, it would not consider subsequent happenings at trial, but it could not help pointing out that "what actually took place in this case dramatically illustrates the risk of prejudice involved in permitting the joinder of defendants in a case based wholly upon circumstantial evidence, where each defendant has accused the other of the crime while professing his own innocence." (744) The court quoted at length the closing arguments of the defendants' respective counsel, with Daugherty's pointing out that it was Hargis who showed police where the knife was, while Hargis' counsel reminded the jury not to discount the possibility that Daugherty could have done the murder alone and told Hargis about it later, pointing out that it was Daugherty's knife, and Daugherty's sweater that had blood on it. (745) Hargis' counsel also pointed out that the stab wound on Dark's abdomen looked as though it was done by somebody left-handed, and Hargis was not left-handed, but Daugherty was. (746) The court declared resoundingly, "The prejudice that the motion for severance was designed to prevent actually occurred in this case. The closing arguments in this case 'produced a spectacle where the People *** stood by and witnessed a combat in which the defendants attempted to destroy each other.' (People v. Braune (1936)....) Based on the information available to the trial judge the risk of prejudice inherent in this situation was apparent, and severance should have been granted. The defendant's convictions must therefore be reversed, and the cause remanded for a new trial."

Here it is necessary to point out--it is frankly laughable to compare Daugherty to Braune, and indeed, it is only possible to do so if one abstracts the language from Braune (as, admittedly, legal treatises and the whole process of law formation and distillation tend to do), takes it entirely out of context and divorced from its original meaning, and wholly ignores the actual facts of Braune. To illustrate: in Braune, both defendants testified aggressively and at length against each other. Not so in Daugherty, where neither defendant testified. In Braune, both defendants announced before trial that they would testify, and what their defenses and specific conflicting testimony would be. Not so in Daugherty. In Braune, counsel for each defendant aggressively cross-examined the other defendant's witnesses throughout the trial. In Daugherty, the court could only point to some rather feeble and implausible finger-pointing in closing arguments, which are, of course, not evidence. (747) In Braune, counsel brought out extraneous testimony regarding codefendant Dale's Jewish heritage, as well as Dwyer's attempted suicide, to attempt to inflame the jury against Dale. There is no indication of anything similar occurring in Daugherty. Braune was a salacious, scandalous media circus involving illicit cohabitation, miscegenation, attempted suicide, and abortion in the 1930s (748). Daugherty was a run-of-the-mill murder case in the 1980s that drew no media attention. The attorneys in Braune performed their antics before a jury at trial; in Daugherty, only the judge heard about the codefendants' pretrial statements during a non-jury sentencing phase. All in all, to say that Daugherty "produced a spectacle where the People ... stood by and witnessed a combat in which the defendants attempted to destroy each other" as in Braune is ludicrous. Braune is about as similar to Daugherty as the city of Chicago is to a Cuban fishing village: they're both on the water, but otherwise have nothing in common. Yet comparison to Braune was the only basis for treating Daugherty as anything other than the codefendants statement case it essentially was, as the Appellate Court treated Hargis.

This raises the question: what were Justice Simon and the Daugherty court doing? To what extent did they realize they were pulling a new rule out of a hat, and to what extent was this deliberate? It is of course possible that the whole magic trick was done entirely through accident, oversight, and over-abstraction, as with most of the rest of the history of the Illinois antagonistic defenses doctrine. Yet that seems at least a little harder to believe with Daugherty than with some earlier opinions, given its dramatic revival of the long mostly forgotten Braune as the "classic example of antagonistic defenses" even as the facts of Braune were wholly ignored. This raises the possibility that the Daugherty court, consciously or not, felt a need to bring the state of Illinois more into step with then-current practice in various federal circuits, notably the Seventh, which during the late 1970s and early 1980s were actively constructing their own expansive versions of the antagonistic defenses doctrine upon a similarly muddled, shoddy precedential foundation, as has been discussed at excessive length elsewhere. (749) One way or the other, suffice it to say that Daugherty came out of left field.

In People v. Laboy-Rivera (1984), (750) published the same day as Daugherty and hence oblivious to it, the appellant did not specify the nature of either the antagonism or the prejudice in his motion to sever, although counsel for one defendant warned that he would "'point the finger' " at the other as the perpetrator of a robbery. (751) The court, rejecting the appellant's "conclusionary assertions," (752) cited Murphy for the required specific showing of prejudice, Lee (1981) for the trial court's discretion to sever, Guyon for severance where defenses are so antagonistic that fairness demands it, and Cart and Lee (1981) for "truly conflicting and antagonistic defenses marked by opposition, hostility or discord," and not "mere apprehensions," being required. (753)
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Title Annotation:Part 3
Author:Dewey, Scott Hamilton
Publication:The Journal Jurisprudence
Date:Mar 1, 2011
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