Delaware Trial Handbook § 2:13. MOTION FOR SEPARATE TRIALS IN CRIMINAL CASES

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

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

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).

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).

© 2014 David L. Finger