In criminal cases, the State may charge a defendant with multiple offenses in the same indictment or information in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or are two or more acts or transactions connected together or constituting parts of a common plan or scheme.201 This rule is designed to promote judicial efficiency and economy, provided that realization of these objectives is consistent with the rights of the accused.202 Joinder is proper when the offenses are of the same general character, include a similar course of conduct and are alleged to have occurred within a relatively brief span of time203 or when proof of one crime is inextricably intertwined with proof of the other crime so as to make proof of one crime impossible without proof of the other.204
In addition to joinder of offenses, the State may also charge two or more defendants in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.205 Ordinarily, defendants indicted jointly as principals should be tried together.206
Apart from these actions by the State, a court may order two or more indictments or informations or both to be tried together if the offenses, and the defendants, if there are more than one, could have been joined in a single indictment or information.207 A decision to join or consolidate indictments is within the discretion of the trial court.208
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 of trial together, the court may order separate trials, grant a severance of defendants or provide whatever relief justice requires.209 Such a request may be upon motion of a party or upon the court’s own motion.210 Any motion for severance may be denied if not made in a timely manner.211
The decision whether to grant a motion for severance is within the discretion of the trial court, taking into consideration the specific facts of a given case.212 The controlling inquiry is whether there is a reasonable probability that substantial injustice may result from a joint trial.213 The moving party has the burden of establishing such injustice.214 Hypothetical prejudice is insufficient.214.1 One relevant (though not dispositive) factor is whether the evidence that would be used in a joint trial would be inadmissible in one of two or more severed trials.215
Severance generally will be granted only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.215.1 A request for a severance will generally be denied where any claimed prejudice could be cured by use of an appropriate jury instruction.215.2
Examples of prejudice warranting severance include circumstances where (i) the jury may cumulate the evidence of various crimes charged and find a defendant guilty where, if considered separately, the jury may not so find; (ii) the jury may use the evidence of one crime to infer a general criminal disposition of the defendant in order to find guilt of the other crime or crimes; or (iii) the defendant may be subject to embarrassment or confusion in presenting different and separate defenses to different charges, 216 (iv) (v) problems involving a co-defendant’s extra-judicial statements, (vi) an absence of substantial independent competent evidence of the movant’s guilt, (vii) antagonistic defenses as between co-defendants, and (viii) difficulty in segregating the State’s evidence as between the defendants.216.1
Where the proof of one crime is not inextricably intertwined with proof of another crime so as to make proof of one crime impossible without proof of another, the offenses should not be separated.217 The fact that the individual crimes were separate and committed against different individuals with a lapse of time between them does not of itself require severance.218 Further, a claim that a single trial of several crimes would interfere with the defendant’s ability to testify as to some counts but not as to others in the event that the defendant takes the stand is not sufficient prejudice to warrant a severance.219 In these circumstances, the risk of jury confusion can be minimized through the use of an instruction that the jury consider liability for each charge separately and that the evidence admitted for one offense not be used in determining guilt of any other offense.219.1
When a defendant raises the defense of mental illness, and seeks to bifurcate the trial to deal with that issue separately, the court must consider the substantiality of the mental illness defense and also of any other defense to be proffered on the merits. When substantial defenses (other than the presumption of innocence and the State’s burden of proof) are demonstrated upon the application for bifurcation and it is shown that either defense may be prejudiced by the other in a simultaneous trial, judicial discretion should dictate bifurcation.220
Severance is not warranted merely because the evidence against one co-defendant is more damaging than the evidence against the moving co-defendant. 221 The proper inquiry is whether the evidence is such that the jury cannot be expected to compartmentalize it and then consider it for its proper purpose.222 A motion by a co-defendant for a separate trial need not be granted merely because an extrajudicial statement of a co-defendant implicating the moving defendant and not admissible as affirmative evidence against the latter will be introduced. There must be an additional factor such as (i) the absence of other substantive, competent evidence of the movant’s guilt; (ii) antagonistic defenses between the movant and the co-defendant; or (iii) difficulty in segregating the evidence between the movant and the co-defendant.223 Similarly, antagonistic defenses or inconsistent trial strategies among co-defendants does not per se require a severance. But where the jury can reasonably accept the core defense offered by one defendant only by rejecting the defenses offered by another defendant, then the defenses are sufficiently antagonistic to require separate trials.224
Severance is not required simply because the charged offenses involve different victims and occurred at different times.224.1
To obtain a severance on the ground that exculpatory testimony of a co-defendant is needed, the movant must demonstrate (i) a bona fide need for the testimony, (ii) the substance of the testimony, (iii) its exculpatory nature and effect, and (iv) that the co-defendant will, in fact, testify if the cases are severed. If the movant makes such a showing, the court should (i) examine the significance of the testimony in relation to the movant’s theory of defense, (ii) assess the extent of prejudice caused by the absence of the testimony, (iii) pay close attention to considerations of judicial administration and economy, and (iv) give weight to the timeliness of the motion.225
An alternative to severance is a single trial with different juries for each defendant. This option is designed to minimize the prejudice at a joint trial of co-defendants who assert antagonistic defenses or make intend to make statements regarding the other co-defendant, for the purposes of judicial economy, and to spare the victim the victim the ordeal of testifying at multiple trials.225.1
Multiple jury procedures should be used only under appropriate circumstances, where there is a substantial amount of evidence common to both defendants, where the procedure will not prejudice the defendants’ right to fair trial, and where guidelines are put in place to protect the integrity of the trial.225.2 Such guidelines may include:
* separate and perhaps mutually exclusive voir dire for each jury, with both the defendant and the defendant’s counsel present throughout jury selection. Co-defendants should be present only briefly to ensure that no potential jurors know any of the defendants. The judge should explain to the jurors that there will be more than one defendant on trial but that each jury is responsible for determining the guilt or innocence of only one defendant, and that they should not consider or speculate about the guilt or innocence of any other defendant. Separation of the venires is important to avoid exposing one defendant’s jury to the antagonistic defense of another co-defendant;
* Each jury should receive separate explanations as to the procedure prior to the start of the trial, explaining why the procedure is being used and why they may be taken out of the court room at times;
* Each jury should be given separate opening statements. Closing arguments may be separate or together depending on whether or not counsel plans to refer to evidence inadmissible against another of the defendants;
* Each jury should receive a copy of the exhibits admissible against their defendant only;
* A jury should be present in the courtroom only if the evidence presented is admissible against its defendant:
* Normal direct examination should occur unless evidence requires otherwise. The trial judge has discretion to hold direct examinations separately for each defendant or to allow all juries to be present. During cross-examination, only the jury of the defendant whose case it pertains to should be present;
* The court reported should, to the extent possible, keep separate records of the proceedings and must notice which juries are present;
* The juries should be separated from each other in the courthouse, using separate jury rooms and restrooms designated for each jury. Lunch should be at separate times. Each jury should be labeled to reduce the likelihood of confusing them. A single court officer should be assigned to each jury and should stay with the jury whenever the judge or counsel is absent from the courtroom; and
* Each jury must render its own verdict and verdicts should be sealed until all verdicts are reached. Each jury may be sequestered until all of the verdicts are reached.225.3
201. Super. Ct. Cr. R. 8(a); Comm. Pls. Ct. Cr. R. 8(a); Fam. Ct. Cr. R. 8(a).
202. Bradley v. State, 559 A.2d 1234, 1240-41 (Del. 1989); Weddington v. State, 545 A.2d 607, 615 (Del. 1988); Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988); Mayer v. State, 320 A.2d 113, 717 (Del. 1974).
203. Younger v. State, 496 A.2d 546, 550 (Del. 1985); Brown v. State, 310 A.2d 870, 871 (Del. 1973).
204. Younger v. State, 496 A.2d 546, 550 (Del. 1985); McDonald v. State, 307 A.2d 796, 798 (Del. 1973).
205. Super. Ct. Cr. R. 8(b); Comm. Pls. Ct. Cr. R. 8(b); Fam. Ct. Cr. R. 8(b). See also Walls v. State, 560 A.2d 1038, 1046 (DeL 1989), cert. denied, 493 U.S. 967 (1989).
206. Shelton v. State, 744 A.2d 465, 486 (Del.), cert. denied, 503 U.S. 1218 (2000); Bradley v. State, 559 A.2d 1234, 1241 (Del. 1989); Jenkins v. State, 230 A.2d 262, 273 (Del. 1967); Garner v. State, 145 A.2d 68, 75 (Del. 1958).
207. Super. Ct. Cr. R. 13; Comm. Pls. Ct. Cr. R. 13; Fam. Ct. Cr. R. 13. See also Draper v. State, 146 A.2d 796, 799 (Del. 1958).
208. See Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990); Younger v. State, 496 A.2d 546, 499-501 (Del. 1985).
209. Super. Ct. Cr. R. 14; Comm. Pls. Ct. Cr. R. 14; Fam. Ct. Cr. R. 14. See also Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988).
210. See Bradley v. State, 559 A.2d 1234, 1241 (Del. 1989).
211. Fullman v. State, 389 A.2d 1292, 1300-01 (Del. 1978) (motion denied where made four days into trial); Simpson v. State, 275 A.2d 794, 795 (Del. 1971) (motion denied where made after the State rested its case).
212. Floudiotis v. State, 726 A.2d 1196, 1210 (Del. 1999); Manley v. State, 709 A.2d 643, 652 (Del. 1998); Stevenson v. State, 709 A.2d 619, 628 (Del. 1998); Outten v. State, 650 A.2d 1291, 1298 (Del. 1994), cert. denied, 515 U.S. 1145 (1995); Robertson v. State, 630 A.2d 1084, 1093 (Del. 1993); Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990); Walls v. State, 560 A.2d 1038, 1044 (Del. 1989), cert. denied, 493 U.S. 967 (1989); Bradley v. State, 559 A.2d 1234 (Del. 1989); Weddington v. State, 545 A.2d 607, 616 (Del. 1988); Wiest v. State, 542 A.2d 1193, 1195 (Del.. 1988); Younger v. State, 496 A.2d 546, 449-50 (Del. 1985); Lainpkins v. State, 465 A.2d 785, 794 (Del. 1983); Bates v. State, 386 A.2d 1139, 1141 (Del. 1978); Garrett v. State, 320 A.2d 745, 748 (Del. 1974); McDonald v. State, 307 A.2d 796, 798 (Del. 1973); Simpson v. State, 275 A.2d 794, 795 (Del. 1971); Jenkins v. State, 230 A.2d 262, 272-73 (Del. 1967); Burton v. State, 149 A,2d 337, 339 (Del. 1959); Garner v. State, 145 A.2d 68, 75 (Del. 1958).
213. Howard v. State, 704 A.2d 278, 280 (Del. 1998); Robertson v. State, 630 A.2d 1084, 1093 (Del. 1993); Bradley v. State, 559 A.2d 1234, 1241 (Del. 1989); Bates v. State, 386 A.2d 1139, 1141 (Del. 1978).
214. Fortt v. State, 767 A.2d 799, 804 (Del. 2001); Outten v. State, 650 A.2d 1291, 1298 (Del. 1994), cert. denied, 515 U.S. 1145 (1995); Lampkins v. State, 465 A.2d 785, 794 (Del. 1983); Bates v. State, 386 A.2d 1139, 1141 (Del. 1978).
214.1. Ashley v. State, 85 A.3d 81, 84-85 (Del. 2014);Jackson v. State, 990 A.2d 1281, 1287 (Del. 2009).
215. Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990); Bates v. State, 386 A.2d 1139, 1142 (Del. 1978); Weddington v. State, 545 A.2d 607, 616 n.15 (Del. 1988).
215.1 Manley v. State, 709 A.2d 643, 653 (Del. 1998); Stevenson v. State, 709 A.2d 619, 630 (Del. 1998); State v. King, ID Nos. 9609003477, slip op. at 4, Goldstein, J. (Del. Super. Feb. 26, 1997).
215.2 State v. King, ID Nos. 9609003591, 9609003477, slip op. at 5,7, Goldstein, J. (Del. Super. Feb. 26, 1997).
216. Ashley v. State, 85 A.3d 81, 84-85 (Del. 2014); Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988); State v. McKay, 382 A.2d 260, 262 (Del. Super. 1978); State v. Howard, ID No. 9506001505, slip op. at 5, Barron, J. (Del. Super. Mar. 12, 1996), aff’d, 704 A.2d 278 (Del. 1998).
216.1 Floudiotis v. State, 726 A.2d 1196, 1210 (Del. 1999): State v. Kman, ID #1511001640 & 160130074377, slip op. at 5, Cooch, J. (Mar. 8, 2017).
217. Younger v. State, 496 A.2d 546, 550 (Del. 1985).
218. Wood v. State, 956 A.2d 1228, 1231 (Del. 2008); Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990); Younger v. State, 496 A.2d 546, 550 (Del. 1985); McDonald v. State, 307 A.2d 796, 798 (Del. 1973).
219. State v. Loper, Cr. A. Nos. 1K90-02-0876-0878, slip op. at 5, Steele, J. (Del. Super. June 19, 1990) (ORDER).
219.1. State v. Siple, Cr. A. Nos. IN94-12-1641-1668 & IN94-12-1669-1672, slip op. at 8-9, Cooch, J. (Del. Super., July 19, 1996).
220. Garrett v. State, 320 A.2d 745, 748 (Del. 1974).
221. Robertson v. State, 630 A.2d 1084, 1093 (Del. 1993); State v. Magathan, Cr.A. Nos. S87-09-0213-0217, slip op. at 1-2, Chandler, J. (Del. Super. June 21, 1988); State v. Horsey, Cr.A. Nos. 585-11-0075-0083, slip op. at 5, Chandler, J. (Del. Super. Apr. 7, 1986).
222. State v. Horsey, Cr.A. Nos. 585-11-0075-0083, slip op. at 5, Chandler, J. (Del. Super. Apr. 7, 1986).
223. Manley v. State, 709 A.2d 643, 652 (Del. 1998); Stevenson v. State, 709 A.2d 619, 629 (Del. 1998); Robertson v. State, 630 A.2d 1084, 1093 (Del. 1993); Walls v. State, 560 A.2d 1038, 1045 (Del. 1989), cert. denied, 493 U.S. 967 (1989); Jenkins v. State, 230 A.2d 262, 273 (Del. 1967); Burton v. State, 149 A.2d 337, 339 (Del. 1959). See also Handy v. State, 268 A.2d 865, 866 (Del. 1970).
224. Manley v. State, 709 A.2d 643, 652 (Del. 1998); Stevenson v. State, 709 A.2d 619, 628 (Del. 1998); Outten v. State, 650 A.2d 1291, 1298 (Del. 1994), cert. denied, 515 U.S. 1145 (1995); Bradley v. State, 559 A.2d 1234, 1241 (Del. 1989); Nocks v. State, No. 285, 1992, slip op. at 3, Moore, J. (Del. Mar. 2, 1993) (ORDER), disposition reported at 622 A.2d 1096 (Del. 1993) (TABLE); State v. Robinson, Cr. A. Nos. IK93-10-0475-0480, slip op. at 3, Ridgely, J. (Del. Super. Oct. 4, 1994).
224.1. State v. Cooke, 909 A.2d 596, 605 (Del. 2006); Fortt v. State, 767 A.2d 799, 803 (Del. 2001).
225. State v. Harris, Cr. A. Nos. 1N88-08-0814-0821 & 1K88-07-0103, slip op. at 3-4, Steele, J. (Del. Super. May 11, 1989).
225.1. State v. Kman, ID #1511001640 & 160130074377, slip op. at 8-9, Cooch, J. (Mar. 8, 2017).
225.2. State v. Kman, ID #1511001640 & 160130074377, slip op. at 14, Cooch, J. (Mar. 8, 2017).
225.3. State v. Kman, ID #1511001640 & 160130074377, slip op. at 16-19, Cooch, J. (Mar. 8, 2017).
© 2019 David L. Finger