United States v. John Edwards Soares ( 1972 )

LEWIS, Chief Judge

(concurring).

I concur but in so doing wish to recognize subjectively the prejudice inherent in the act of informing a jury that a co-defendant has pleaded guilty and the lack of validity in the assumption that an instruction to draw no adverse inference from that fact realistically protects the defendant from all harm. Cf. Bru-ton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L.Ed.2d 476. However, I likewise recognize that the trial of a criminal case to a jury should not contain avoidable overtones of mystery and dissatisfaction as to their knowledge of all the facts. I would leave the matter within the discretion of the trial court in the first instance, negativing any judicial duty to comply with a simple prosecution pre-trial request to “keep the record straight” and imposing the duty to consider each case under its particular circumstances. When, as in Richards v. United States, supra, the pleading codefendant testifies in the main case and when, as in Wood v. United States, supra, pleas of guilty are entered after the trial is in progress, an explanation of the facts is clearly proper.

In the case at bar, the codefendant Lee was present during the trial and participated passively. Consequently I concur and agree, but with hesitancy, that the trial court did not abuse its discretion.