Jasch v. State , 1977 Wyo. LEXIS 247 ( 1977 )

RAPER, Justice.

The defendant-appellant was found guilty by a jury of a controlled substance (marijuana) delivery in violation of § 35-347.31(a)(ii), W.S.1957, Cum.Supp., and sentenced.¹ His appeal raises two issues: (1) He was prejudicially joined for trial with a codefendant Jevne, and (2) A statement made by codefendant implicating defendant was constitutionally inadmissible. We will affirm.

Codefendant Jevne was joined over the timely objection of defendant. At the trial, the evidence disclosed that Ted Moore, a volunteer deputy sheriff, while working part-time evenings as an undercover agent, asked a bartender to introduce him to someone who would peddle him some marijuana. Defendant Jasch and the agent were introduced and a deal was made in the bar restroom for the sale of a lid of marijuana for $15.00, delivery to be made at a different bar. Before leaving, the agent paid Jasch for the lid. Delivery was later made to the agent by codefendant Jevne at the different bar. Over objection of the defendant on hearsay grounds and following an instruction from the trial judge that the jury was to ignore the statement as to defendant, the agent was permitted to testify that the codefendant told him, “I have the lid of grass from Jasch.” Codefendant elected not to testify but the defendant did. Codefendant was therefore not available for cross-examination concerning the statement testified to. Other facts will be set out as required.

We will first discuss the second issue because in this manner its interaction with the first will develop more coherently. The defendant relies on Bruton v. United States, 1968, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, appeal after remand 8 Cir., 416 F.2d 310, cert. den. 397 U.S. 1014, 90 S.Ct. 1248, 25 L.Ed.2d 428. In that case a joint trial of the defendant and one Evans was held, both charged with armed robbery. There, the postal inspector had received a post-arrest confession from Evans, the co-defendant, expressly implicating the defendant. The court gave an instruction to the jury limiting its receipt in evidence only as to the defendant Bruton. It was held that:.

“ * * * [Bjecause of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. * * * ”²

At first blush, one might be deluded into believing that Bruton is applicable but, in the first place, the codefendant’s utterance here was not a confession as in Bruton and, secondly, as will be developed, it is well settled law in massive dimensions that in the trial of defendants tried at the same time, jointly or separately charged as coac-tors in the commission of a crime, the statements of a coconspirator or actor made during and in furtherance of the commission of a crime are admissible as an exception to the hearsay rule and survive coexistent with the Confrontation Clause.

The Sixth Amendment to the United States Constitution provides in pertinent part that, “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him; * * Since 1965, that provision has been fully applicable to the states under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Pointer v. State of Texas, 1965, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923, mandate conf. to Tex.Cr.App., 391 S.W.2d 62; Douglas v. State of Alabama, 1965, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934. Moreover, § 10, Article I, Wyoming Constitution, provides that “In all criminal prosecutions the accused shall have the right * * * to be confronted with the witnesses against him, * * The Bruton doctrine is applicable to the states. Dutton v. Evans, infra.

We will first clear away any suggestion that Bruton has application to the case before us. Within the context of Bruton itself, consideration of the concept of hearsay exceptions (the declaration by codefendant here) was specifically excluded from its application, when the court said in footnote 3:

“ * * * There is not before us, therefore, any recognized exception to the hearsay rule insofar as petitioner is concerned and we intimate no view whatever that such exceptions necessarily raise questions under the Confrontation Clause. * * *” (391 U.S. 128, 88 S.Ct. 1623, 20 L.Ed.2d 481)

The Court then cited several cases and texts which have particular pertinence. There is a world of difference between a defendant’s post-conspiracy statement implicating another and a statement implicating another made during the progress of a crime jointly committed.

As far as we are concerned in this case, the Supreme Court answered the question reserved in Bruton in Dutton v. Evans, 1970, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213, on remand 5 Cir., 441 F.2d 657, where at issue was a Georgia statute which provided, “ ‘After the fact of conspiracy shall be proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.’ ” A statement of an accomplice implicating Evans was received in evidence.³ The court stated:

“ * * * [W]e do not question the validity of the coconspirator exception applied in the federal courts.

“ * * * It is settled that in federal conspiracy trials the hearsay exception that allows evidence of an out-of-court statement of one conspirator to be admitted against his fellow conspirators applies only if the statement was made in the course of and in furtherance of the conspiracy, and not during a subsequent period when the conspirators were engaged in nothing more than concealment of the criminal enterprise. Lutwak v. United States, 344 U.S. 604, 97 L.Ed. 593, 73 S.Ct. 481; Krulewitch v. United States, 336 U.S. 440, 93 L.Ed. 790, 69 S.Ct. 716. * * * »

The point we make is easier to reach in that the court in Dutton went further and allowed the state formula permitting the rule to protrude into the concealment phase of the conspiracy and in citing its case of the previous term, California v. Green, 1970, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489, on remand, 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998, reaffirmed its position that the exceptions to the hearsay rule and the rule itself are not in congruence with and there is no automatic conclusion that confrontation rights have been denied if there is violation of a hearsay rule or application of its exceptions. The facts of the case before us are within the federal rule and we cannot and do not make any ruling as to what our decision would be with respect to a declaration made in the concealment phase of a conspiracy. In Dutton, the court noted that the defendant had, as here, his right of confrontation fulfilled by cross-examination of the witness as to whether the statement was actually made, unreliable or unreal.

The court in Dutton closed its opinion, quoting Justice Cardozo in Snyder v. Commonwealth of Massachusetts, 1934, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575, a statement well worth repeating:

“ ‘There is danger that the criminal law will be brought into contempt — that discredit will even touch the great immunities assured by the Fourteenth Amendment — if gossamer possibilities of prejudice to a defendant are to nullify a sentence pronounced by a court of competent jurisdiction in obedience to local law, and set the guilty free.’ 291 U.S. [at] 122 [54 S.Ct. at 338], 78 L.Ed. at 687.”

There is nothing in Bruton or Dutton giving any hint that it would upset a doctrine that has prevailed for years. See also Wong Sun v. United States, 1963, 371 U.S. 471, 491, 83 S.Ct. 407, 419, 9 L.Ed.2d 441, 457, for a further statement of the rule that a coconspirator’s hearsay statements may be admitted for no purpose unless made during and in furtherance of the conspiracy.⁴

We have been discussing a rule applicable to conspiracy. No conspiracy was charged here, so why do we discuss it? While the crime of conspiracy is one of popular application in the federal courts and in many states as well, it did not become one of statutory origin in Wyoming until 1969 and 1971, when the legislature by § 1, Ch. 164, S.L.Wyo. 1969, and § 1, Ch. 121, S.L.Wyo. 1971, adopted what is now § 6-16.1, W.S. 1957, Cum.Supp., as follows:

“If two or more persons conspire to (a) commit a felony in the State of Wyoming or to commit an act beyond the State of Wyoming which if done in this state would be a felony, and (b) one or more of such persons do any act, within or without the State of Wyoming, to effect the object of the conspiracy, each, upon conviction, shall be fined not more than one thousand dollars ($1,000.00) or imprisoned in the penitentiary not more than ten (10) years or both. A conspiracy may be prosecuted in the county where the conspiratorial agreement or combination was entered into, or in any county where any act or acts evidencing the conspiracy or in any county wherein the furtherance of its purpose took place.”

Hence, Wyoming therefore recognized the crime of conspiracy before the case before us ever arose. Because of the recentness of the conspiracy enactment, there is no useful Wyoming state jurisprudence. However, conspiracy was known when this state was a territory. In Haines v. Territory, 1887, 3 Wyo. 167, 13 P. 8, there was a prosecution against several defendants for obtaining property by false pretenses. A claim of error was made in permitting the victim to testify as to the declarations of one of the coconspir-ators before the fact of an existing conspiracy had been fully proven. While the court did not get into the exact question that we have in this case, our answer that such declarations are admissible is reflected in the ruling of the court that in an action for conspiracy, it is within the discretion of the trial court to allow evidence of the declaration of one of the alleged conspirators to be given prior to proof of the conspiracy itself so long as there is proof of the conspiracy entered thereafter. It is also interesting to see that no conspiracy was charged but the rule prevailed as to defendants jointly involved in the substantive crime. We will cover the principle involved and the significance of the preceding sentence.

A conspiracy is an agreement between two or more persons to do an unlawful act. The crime of conspiracy is complete when an agreement has been made and overt acts performed to further the unlawful design. Goldsmith v. Cheney, 10 Cir. 1971, 447 F.2d 624. It was said by Judge Learned Hand in United States v. Olweiss, 2 Cir. 1943, 138 F.2d 798, cert. den. Olweiss v. United States, 321 U.S. 744, 64 S.Ct. 483, 88 L.Ed. 1047, with his usual simplicity and clarity:

“ * * * [A]nd any evidence admissible against Olweiss was admissible against them, so far as it consisted of conduct in furtherance of the joint venture in which all three were engaged. The notion that the competency of the declarations of a confederate is confined to prosecutions for conspiracy has not the slightest basis; their admission does not depend upon the indictment, but is merely an incident of the general principle of agency that the acts of any agent, within the scope of his authority, are competent against his principal. * * * ”

In the case before us, Jasch is charged with delivery as follows:

“ * * * that, Ron Jasch, on the 17th day of March, 1975, in Fremont County, Wyoming, did unlawfully, intentionally and knowingly deliver a controlled substance at or around Bernie’s Liquors and Lounge on East Main, Riverton, Fremont County, Wyoming, to Ted Moore, to-wit: The said Ron Jasch did offer for sale and take $15.00 for the delivery of marihuana, and Steve Jevne, as agent for Ron Jasch, did deliver to Ted Moore, marihuana, * * * if

The State’s case, though not charging conspiracy is grounded on the same principles arising from agency.

A statement made in the course and in furtherance of the conspiracy, even though an out-of-court statement by one conspirator, may be admitted against his fellow conspirators and is not hearsay. McCormick on Evidence 2d Ed. HB, § 267 at p. 645; 4 Wigmore, Evidence § 1079, p. 180 (Chadbourn rev. 1972). Rule 801(d), Federal Rules of Evidence, carries forward that long-standing rule:

“(d) A statement is not hearsay if—

“The statement is offered against a party and is (A) his own statement, in either his individual or a representative capacity or (B) a statement of which he has manifested his adoption or belief in the truth, or (C) a statement by a person authorized by him to make a statement concerning the subject, or (D) a statement by his agent or servant concerning a matter within the scope of his agency or employment, made during the existence of the relationship, or (E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.”

The Supreme Court of the United States traces the rule to an agency concept in like circumstances in a civil setting. In Hitchman Coal & Coke Company v. Mitchell, 1917, 245 U.S. 229, 249, 38 S.Ct. 65, 72, 62 L.Ed. 260, 275, L.R.A. 1918C, 497, Ann.Cas. 1918B, 461, mandate stayed 38 S.Ct. 190, involving a similar situation in a civil context, it was explained:

“ * * * The rule of evidence is commonly applied in criminal cases, but is of general operation; indeed, it originated in the law of partnership. It depends upon the principle that when any number of persons associate themselves together in the prosecution of a common plan or enterprise, lawful or unlawful, from the very act of association there arises a kind of partnership, each member being constituted the agent of all, so that the act or declaration of one, in furtherance of the common object, is the act of all, and is admissible as primary and original evidence against them. * * * ”

Here, Jevne was the agent of Jasch. See <®=>423, Criminal Law, Digest system.

We hold with the majority of courts that receipt into evidence in a joint trial of one coactor’s declaration implicating another coactor, under the exception to the hearsay rule that a statement by a coconspirator of a party during the course and in furtherance of the conspiracy is not hearsay, does not violate the other coactor’s constitutional right of confrontation. United States v. Register, 5 Cir. 1974, 496 F.2d 1072, cert. den. Cochran v. United States, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 819, and Hornsby v. United States, 419 U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 819 (heard by an undercover agent); Lowther v. United States, 10 Cir. 1972, 455 F.2d 657, cert. den. Lowry v. United States, 409 U.S. 857, 93 S.Ct. 114, 139, 34 L.Ed.2d 102, reh. den. 409 U.S. 1050, 93 S.Ct. 511, 34 L.Ed.2d 502; United States v. Clayton, 1 Cir. 1971, 450 F.2d 16, cert. den. 405 U.S. 975, 92 S.Ct. 1200, 31 L.Ed.2d 250; Migliore v. United States, 5 Cir. 1969, 409 F.2d 786, cert. den. 396 U.S. 975, 90 S.Ct. 449, 24 L.Ed.2d 444 (heard by undercover agents); Commonwealth v. Gordon, Mass.App. 1976, 344 N.E.2d 218; People v. Schlepp 1974, 184 Colo. 28, 518 P.2d 824; State v. Skinner, 1973, 110 Ariz. 135, 515 P.2d 880; Dooley v. State, Okl.Cr. 1971, 484 P.2d 1324; State v. Boiardo, 1970, 111 N.J. Super. 219, 268 A.2d 55, certif. den. 57 N.J. 130, 270 A.2d 33, cert. den. 401 U.S. 948, 91 S.Ct. 931, 28 L.Ed.2d 231 (heard by undercover agent); People v. Brawley, 1969, 1 Cal.3d 277, 82 Cal.Rptr. 161, 461 P.2d 361, cert. den. 400 U.S. 993, 91 S.Ct. 462, 27 L.Ed.2d 441.

In order to receive in evidence a conspirator’s extrajudicial statement against a fellow coconspirator, a conspiracy need not be charged. McCormick on Evidence, 2d Ed. HB, § 267, p. 646; State v. Skinner, 1973, supra; State v. Shaw, 1965, 195 Kan. 677, 408 P.2d 650. Where there is concerted action between codefendants, evidence of the declarations of one, during and in furtherance of the common design or plan, is admissible against the other defendants, even though no conspiracy is charged. State v. Rush, Iowa 1976, 242 N.W.2d 313; Green v. State, 1975, 25 Md.App. 679, 337 A.2d 729; People v. Stewart, 1974, 24 Ill.App.3d 605, 321 N.E.2d 450; Lewis v. People, 1942, 109 Colo. 89, 123 P.2d 398. And where a joint venture is shown, declarations made during and in furtherance of the venture are admissible against the party not present even though no conspiracy is alleged. United States v. Buschman, 7 Cir. 1976, 527 F.2d 1082; United States v. Riddick, 8 Cir. 1975, 519 F.2d 645; United States v. Grant, 5 Cir. 1975, 519 F.2d 64; Park v. Huff, 5 Cir. 1975, 506 F.2d 849, cert. den. 423 U.S. 824, 96 S.Ct. 38, 46 L.Ed.2d 40; United States v. Tanner, 7 Cir. 1972, 471 F.2d 128, cert. den. 409 U.S. 949, 93 S.Ct. 269, 34 L.Ed.2d 220; United States v. Schroeder, 8 Cir. 1970, 433 F.2d 846, cert. den. Allen v. United States, 400 U.S. 1024, 91 S.Ct. 590, 27 L.Ed.2d 636, and 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224.

There must be evidence showing the conspiracy, other than the statement alone. See Annotation 46 A.L.R.3d 1148, entitled “Necessity and Sufficiency of Independent Evidence of Conspiracy to Allow Admission of Extrajudicial Statements of Coconspirators.” While slight is not enough, prima facie evidence is sufficient. Within State v. Thompson, 1966, 273 Minn. 1, 139 N.W.2d 490, cert. den. 385 U.S. 817, 87 S.Ct. 39, 17 L.Ed.2d 56, is an excellent discussion of the use of conspirator’s statements in a prosecution for a crime where conspiracy was not charged; the court said:

“ * * * The term ‘prima facie’ in this context is rather a nebulous one that defies exact definition. It can probably be defined only in terms of sufficient evidence to permit the trial court reasonably to infer that there existed a conspiraCy. * * * ”⁵

That same court also determined in this regard that a conspiracy is usually established by circumstantial evidence and the order of proof is not significant, as long as the record as a whole shows facts from which the existence of a conspiracy can be inferred. Neither does it need be established beyond a reasonable doubt because that doctrine applies only to the issue of guilt.

In cases cited in the 46 A.L.R.3d annotation, § 22, dealing with narcotics offenses, the technique of a narcotics transaction being in two parts, the deal with one and delivery by another, is most common. That procedure was followed by the defendant here. The evidence is more than adequate to connect the defendant and his co-defendant in a joint operation. Jasch and Jevne had been long-time friends. Code-fendant was present in the first bar when Jasch made the deal with the undercover agent. Codefendant left the bar a few minutes before the defendant and the undercover agent. Defendant was paid for the marijuana. A little later in the bar that defendant had designated, codefendant appeared, possessed and handed the undercover agent a lid of marijuana. All of this conduct would lead a reasonable person to believe that Jasch and Jevne were associated in an unlawful venture even without the statement of codefendant, “I have the lid of grass from Jasch.” The established association between defendant and his codefend-ant made the statement admissible as an exception to the hearsay rule; conspiracy was present.

It was not necessary for the trial judge to give any limiting instruction. Kay v. United States, 9 Cir. 1970, 421 F.2d 1007, 1011; United States v. Buschman, supra. The leading Supreme Court case dealing with conspiracy gives no suggestion that any limiting instruction be given before or after the receipt into evidence of the excepted declaration. Lutwak v. United States, 1953, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593, reh. den. 345 U.S. 919, 73 S.Ct. 726, 97 L.Ed. 1352, nor do Wong Sun, Bruton and Dutton, supra. The statement was clearly made while the conspiracy was underway and in its furtherance, these being the other conditions of admissibility. The limiting instruction by the trial judge gave the defendant an advantage to which he was not entitled; he could not have been prejudiced.

There is no unfairness in this rule. Frequently, one defendant in making a confession after apprehension attempts to show that he is less, or his codefendant is more blameworthy, in the hope of receiving preferential treatment. When a statement is made during the course of the commission of the crime, that element is absent. There is no reliance on the faulty recollection of the codefendant; there is no assertion of a past fact. The circumstances under which the statement is made do not provide any reason to believe that misrepresentation of defendant’s involvement is present.

The information charged and the evidence, if believed, proved that Jasch and Jevne jointly participated in the drug sale and they therefore could be joined under Rule 12, W.R.Cr.P.⁶ Although Jasch could have been tried separately pursuant to Rule 13, W.R.Cr.P.,⁷ no persuasive reason for separation is presented. The evidence to which defendant objects could have been presented against him even in a separate trial, since agency was alleged in the information. In fact, the trials would have been identical. 1 Federal Practice and Procedure, Wright, Criminal § 213, p. 430, discussing joinder of defendants under Federal Rule 13, which is identical to our Rule 12, observes:

“ * * * The strongest case for ordering a joint trial is where the evidence to support the charges against the several defendants is virtually identical.”

Wright cites United States v. Fancher, D.C. D.Conn.1960, 195 F.Supp. 634, where it is said:

“ ‘One might almost say that it would have been an abuse of discretion to require separate trials as to the two defendants since it would have required unnecessary repetition of substantially the same evidence.’ ’’ [Citing Turner v. United States, C.A. 4th, 1955, 222 F.2d 926, 932, cert. den. 350 U.S. 831, 76 S.Ct. 65, 100 L.Ed. 742.]

There must be compelling reasons for separate trials. As said with approval in Linn v. State, Wyo.1973, 505 P.2d 1270, cert. den. Lucas v. Wyoming, 411 U.S. 983, 93 S.Ct. 2277, 36 L.Ed.2d 959, reh. den. 412 U.S. 944, 93 S.Ct. 2780, 37 L.Ed.2d 405, joint trials of defendants charged with committing the same offense are the rule rather than the exception. Joint trials serve the public interest by expediting the administration of justice, reducing docket congestion, conserving judicial time as well as that of jurors along with avoiding the recall of witnesses to duplicate their performances.

Severance is a matter of discretion with the trial judge and its denial is not subject to reversal unless clear abuse is shown. United States v. Troutman, 10 Cir. 1972, 458 F.2d 217; United States v. Schroeder, supra. We see not even a hint of abuse.

Affirmed.

1 . Section 35-347.31(a) provides that it is “unlawful for any person to * * * deliver, * * * a controlled substance.” Marijuana is a Schedule I controlled substance. Section 35-347.14(d)(10). The felony penalty of up to 10 years imprisonment is provided by § 35-347.31(a)(ii).

2 . Even so, the rule of Bruton is overcome and overridden when an appellate court is convinced that the defendant was not subjected to a substantial risk of incurable prejudice as a result. In other words, error of constitutional dimensions does not inevitably occur. There may be harmless error; the principles laid down in Bruton must be applied with practicality and common sense. Brown v. United States, 1973, 411 U.S. 223, 93 S.Ct. 1565, 36 L.Ed.2d 208; Harrington v. California, 1969, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; United States v. Walton, 8 Cir. 1976, 538 F.2d 1348; United States ex rel. Stanbridge v. Zelker, 2 Cir. 1975, 514 F.2d 45, cert. den. Stanbridge v. Zelker, 423 U.S. 872, 96 S.Ct. 138, 46 L.Ed.2d 102; United States v. DeBerry, 2 Cir. 1973, 487 F.2d 448; United States ex rel. Ortiz v. Fritz, 2 Cir. 1973, 476 F.2d 37, cert. den. 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed.2d 482; United States v. Spinks, 7 Cir. 1972, 470 F.2d 64, cert. den. 409 U.S. 1011, 93 S.Ct. 456, 34 L.Ed.2d 305; Tasby v. United States, 8 Cir. 1971, 451 F.2d 394, cert. den. Bryant v. United States, 405 U.S. 992, 92 S.Ct. 1262, 31 L.Ed.2d 459, and Feggett v. United States, 405 U.S. 992, 92 S.Ct. 1273, 31 L.Ed.2d 459, and Burkhalter v. United States, 405 U.S. 992, 92 S.Ct. 1273, 31 L.Ed.2d 459, cert. den. 406 U.S. 922, 92 S.Ct. 1787, 32 L.Ed.2d 122; United States v. Fountain, 8 Cir. 1971, 449 F.2d 629, cert. den. 405 U.S. 929, 92 S.Ct. 981, 30 L.Ed.2d 802; Metropolis v. Turner, 10 Cir. 1971, 437 F.2d 207; United States ex rel. Catanzaro v. Mancusi, 2 Cir. 1968, 404 F.2d 296, cert. den. 397 U.S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123.

In Brown v. United States, supra, the court stated, “ * * * We reject the notion that a Bruton error can never be harmless. ‘[A] defendant is entitled to a fair trial but not a perfect one,’ for there are no perfect trials.* * *"

3 . After arraignment, one of the defendants stated to a fellow prisoner, “ ‘If it hadn’t been for that dirty son-of-a-bitch Alex Evans, we wouldn’t be in this now.’ ”

4 . For a full discussion of the Bruton rule, see the Annotation, 1972, 29 L.Ed.2d 931. It is noted there that numerous courts have held the Bruton rule inapplicable to conspiratorial statements made prior to the termination of a conspiracy, since the admission against all conspirators of statements made during the pendency of the conspiracy is a recognized exception to the hearsay rule. However, a few representative cases dealing with post-conspiratorial statements have been included, the Bruton rule being applicable to the latter, with respect to which we make no holding.

5 . See also Fish v. State, Nev.1976, 549 P.2d 338. The trial judge has considerable discretion in determining the sufficiency of evidence of a joint undertaking and the purpose of the exception should not be defeated. United States v. James, 5 Cir. 1975, 510 F.2d 546; United States v. Nixon, 1974, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (footnote 14).

6 . Rule 12 provides:

“The court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants, if there is more than one, could have been joined in a single indictment or information. The procedure shall be the same as if the prosecution were under such single indictment or information.”

7 . Rule 13 provides:

“If it appears that a defendant or the State is prejudiced by a joinder of offenses or of defendants in an indictment or information, or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance, the court may order the prosecuting attorney to deliver to the court for inspection in camera any statements or confessions made by the defendant which the State intends to introduce in evidence at the trial.”