Severance Part I – A Primer on Severance of Counts and Defendants
“DIVIDE AND CONQUER” – A PRIMER
ON SEVERANCE OF DEFENDANTS AND COUNTS
By Robert C. Bonsib, Esq. and Megan E. Coleman, Esq.
What to do when you find your client has been indicted with others whose presence with you and your client at the trial table increases the likelihood that you will all “go down together?” Do you suffer the potential consequences of hostile defenses, or “spill-over” prejudice because your client, who comes to the trial table with little or no historical “baggage” will be tainted by sitting next to a “ne’er-do-well” whose history looks like an index to the Criminal Law Article?
Issues pertaining to when you can successfully move to sever defendants and counts that were joined for trial in the original charging document, or when and how you can resist having defendants and/or counts joined for trial that may have originally been charged separately are the focus of this series on severance and joinder.
In this first article, we will focus on the Maryland Rules, the standards courts have used to decide issues of severance and then review many reported cases for guidance as to the legal standards to be utilized and the fact-specific circumstances that have caused courts to grant or deny motions to sever/join defendants and counts. Hopefully this review of representative severance/joinder cases can serve as a quick reference resource when these issues occur.
As always, the best arguments become meaningless if you do not timely and appropriately advocate your position before the court – thus we start with a review of the Rules.
Joinder of Offenses
Two or more offenses may be charged in separate counts of the same charging document, “if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a commons scheme or plan.” Maryland Rule 4-203(a).
“If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges. In ruling on the motion, the court may inquire into the ability of either party to proceed at a joint trial.” Maryland Rule 4-253(b).
Joinder of Defendants
Two or more defendants may be charged in the same charging document, “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 it is not necessary to charge all defendants in each count.” Maryland Rule 4-203(b).
“On motion of a party, the court may order a joint trial for two or more defendants charged in separate charging documents 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. Maryland Rule 4-253(a).
Time to Request Joinder or Severance
A request for joint or separate trials of defendants or offenses must be made in writing within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court, except when discovery discloses the basis for a motion, the motion may be filed within 5 days after the discovery is furnished. Maryland Rules 4-252(a)(5) and (b).
Trial by Court vs. Jury
The rules governing joinder of separate cases for trials apply to both jury trials and bench trials. Reidnauer v. State, 133 Md.App. 311, 318, cert. denied, 361 Md. 233 (2000); however, the consideration of whether evidence that may not be “mutually admissible” as to defendants or counts is different in a court trial than in a jury trial. Id. In a court trial, joinder of similar but unrelated offenses where evidence as to each individual offense is not mutually admissible at separate trials, does not prejudice the defendant as a matter of law. Graves v. State, 298 Md. 542, 547 (1984). “A judge has discretion to permit joinder of offenses or defendants even if there is no mutual admissibility of offenses because it may be presumed that a judge will not transfer evidence of guilt as to one offense to another offense.” Conyers v. State, 345 Md. 525, 552-53 (1997).
By contrast, in a jury trial, the trial court does not have discretion to join multiple offenses in one trial when evidence of each crime is not mutually admissible. Bussie v. State, 115 Md.App. 324, 332-33 (1997). Likewise, severance is absolutely mandated with respect to a jury trial when evidence with respect to separate defendants or separate offenses would not be mutually admissible. Solomon v. State, 101 Md.App. 331, 340, cert. denied, 337 Md. 90 (1994).
Mutual Admissibility – Prong (1):
Similar Character? Same Transaction? Mutually Admissible? Prejudice?
In order to determine whether the evidence is mutually admissible, for purposes of a joinder analysis, the trial court must apply the first step of the “other crimes” analysis announced in State v. Faulkner, i.e., it must determine whether the evidence is prima facie admissible because it fits within any exception to the presumptive rule of exclusion. Reidnauer v. State, 133 Md. App. 311, 319, cert. denied, 361 Md. 233 (2000).
Mutual Admissibility Not Established…
“[M]ere physical closeness and chronological syncopation of criminal activity are not alone sufficient to render evidence of other crimes mutually admissible based upon ‘same transaction’ relevance,” for purposes of determining whether joinder/severance of charged offenses is required. Bussie v. State, 115 Md.App. 324, 335 (1997). In Bussie, evidence of assault which occurred at a fast food restaurant, and evidence of possession of drugs which were discovered incident to arrest, were not “mutually admissible” under “same transaction” relevancy foundation. The trial judge committed error by conducting a joint trial for both charges, even though assault and discovery of drugs occurred in close physical and chronological proximity, where there was no evidence that the assault was connected to possession of drugs, the assault charges and drugs charges each required different evidence relating to “independent stories,” and the assault and drug charges could be independently proven. Id. at 338.
Another example where the evidence was not prima facie admissible was in Reidnauer v. State. There, evidence related to two separate incidents involving allegedly non-consensual sex acts with two different prostitutes, identity was not at issue, similarities in manner in which sexual assault were committed did not establish that offenses were part of common scheme, and because there was no evidence of propensity, the fact that one woman did not consent to sex act did not make it more likely that another woman also did not consent. Reidnauer v. State, 133 Md.App. 311, 321-23, cert. denied, 361 Md. 233 (2000). Thus, erroneous joinder of those unrelated cases required reversal of convictions for rape, sexual assault, and related offenses. In order for cases to be joined based on the common scheme exception to the “other crimes” rule, it is necessary that the crimes, including the crime charged, so relate to each other that proof of one tends to establish the other; moreover, there must be not merely a similarity in results, but such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations. Id.
Mutual Admissibility Established…
Evidence was mutually admissible in Solomon v. State. There, evidence of two unconsummated carjackings and a consummated carjacking which resulted in charges of first degree murder and kidnapping was mutually admissible where evidence showed intent with respect to each of the assaults, evidence served to show identity of defendant, crimes were closely related in time and location, crimes had similar modus operandi, evidence established consciousness of guilt, and evidence showed defendant’s level of participation, which was relevant to the issue of whether defendant was eligible for capital punishment. Solomon v. State, 101 Md. App. 331, 368-79, cert. denied, 337 Md. 90 (1994).
Evidence was also mutually admissible in Harper v. State. There, the defendant used a false name when questioned by police about robbery in a trial concerning the robbery and related counts to establish he had knowledge of those offenses, and evidence regarding the robbery would have been relevant in a trial concerning the making of a false statement to establish the motive for making the statement, and thus, it would not have been an abuse of discretion to deny a motion to sever a count relating to the false statements from the other counts related to the robbery. Harper v. State, 162 Md.App. 55, 89 (2005).
Proof of Prejudice
“If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents, or defendants, the court may, on its own initiative or on motion of any party, order separate trials of counts, charging documents, or defendants, or grant any other relief as justice requires.” Maryland Rule 4-253(c).
“Prejudice” within meaning of these rules refers only to prejudice resulting to defendant from reception of evidence that would have been inadmissible against the defendant had there been no joinder. Maryland Rule 4-253(c). Galloway v. State, 371 Md. 379, 394 (2002).
To prove that misjoinder of charges prejudiced the defendant in the form of improper testimonial access to the defendant, the defendant must demonstrate that he had important testimony to give on one count and strong need to refrain from testifying on other. Bussie v. State, 115 Md.App. 324, 343 (1997).
Defendant’s bare allegation that he wished to testify on less than all counts charged did not mandate severance, where defendant did not indicate nature or importance of testimony. Grandison v. State, 305 Md. 685, 708, cert. denied, 479 U.S. 873 (1986).
Joinder for trial may be prejudicial to the defendant because he is embarrassed or confounded in presenting separate defenses, because the jury may cumulate the evidence of the various crimes charged and find guilt when it would not have done so if the offenses were considered separately, because multiple charges may produce a latent hostility that prejudices the defendant’s case, or because the jury may use evidence of one of the crimes or connected group of them to infer a criminal disposition on part of the defendant. McKinney v. State, 82 Md.App. 111, 119, cert. denied, 320 Md. 222 (1990).
Mutual Admissibility – Prong 2: Judicial Economy
In considering the second prong of the mutual admissibility analysis, determination of whether the interest in judicial economy in a joint trial of defendants and/or counts outweighs any other arguments favoring severance, is within the discretion of the trial judge and will not be disturbed absent an abuse of discretion. Lee v. State, 186 Md.App. 631, 671-73, cert. granted, 411 Md. 355, reversed, 418 Md. 136.
Judicial economy is a heavy counterweight in determining joinder and severance issue with respect to multiple offenses. Solomon v. State, 101 Md.App. 331, 346, cert. denied, 337 Md. 90 (1994).
Cases Where Severance Should Have Been Granted
Multiple Counts of Burglary
For purposes of joinder/severance law, break-in and theft offenses were not mutually admissible under either common scheme or plan, or identity exception to rule excluding other crimes evidence, even though both burglaries at issue occurred in same neighborhood on same weekend, both homes were entered through rear window that was pried open, neither of homes were ransacked during burglary, and property taken from both residences was later recovered from defendant’s apartment when police executed search warrant. Wynn v. State, 117 Md.App. 133, cert. granted, 348 Md. 207, reversed, 351 Md. 307 (1997).
Multiple Sexual Offense Counts
Joinder for trial of three charges of third degree sexual offense was prejudicial where the offenses were not mutually admissible, and where joinder resulted in each child’s testimony being reinforced by that of the others. McKinney v. State, 82 Md. App. 111, cert. denied, 320 Md. 222 (1990).
Murder and Separate Act of Attempted Murder of Police Officer
Defendant was prejudiced by joint trial of indictments arising out of murder, indictment arising out of attempted murder of police officer who arrested defendant for murder, and indictment alleging escape from confinement after the arrest. Details of attempted murder would have been inadmissible in separate trial for murder and conspiracy to murder; details of murder and conspiracy to murder would have been inadmissible in separate trial for attempted murder and escape; and evidence of defendant’s flight from officer and of details of attempted murder would be inadmissible in separate trial for escape. State v. Edison, 318 Md. 541 (1990).
Assault and Handgun Counts
Failure to sever assault and handgun charges arising when defendant shot his brother from assault and handgun charges arising when defendant threatened convenience store clerk one-half hour earlier was reversible error; evidence supporting each set of charges was not mutually admissible, and charges were not sufficiently connected to be part of single transaction. Wieland v. State, 101 Md.App. 1 (1994).
Four Robberies
Trial court abused its discretion in not granting separate trials where defendant charged in four independent and distinct offenses that occurred in same neighborhood over the course of a one-month period. The COA reversed the CSA and held that the evidence offered to prove the defendant’s guilt on each of the four robbery charges would not have been mutually admissible had he been prosecuted in separate trials. McKnight v. State, 280 Md. 604 (1977).
Two Arsons
Relying upon the State’s pre-trial representation that “the means by which the fires were set were basically the same” the trial court denied the defendant’s pre-trial request for separate trials as to the two arsons. The defendant renewed his request mid-trial after two fire investigators offered no evidence that there was any similarity in the manner between the fires and again renewed it at the close of the State’s case. The CSA noted that the defendant’s pre-trial motion did not provide a detailed factually based argument for severance, even though a proper motion was made. This, when taken together with the proffer made by the State that the manner in which the fires were set were the same, put the trial court at a disadvantage in ruling on the motion for severance. However, when it became clear at the end of the State’s case that the proffer had not been fulfilled, it was reversible error, at that time, not to grant the defendant’s motion for severance. Ellerba v. State, 41 Md. App. 712 (1979).
Two Kidnapping Indictments
The defendant was convicted of kidnapping and assault for an offense that occurred on January 18th and for felony murder, kidnapping and handgun offenses on a different victim that occurred on January 21st. The CSA concluded that the trial court correctly determined that the offenses were of a same or similar character, but that it erred in concluding that the “other crimes” evidence of the two events was mutually admissible. While the evidence of the January 18th kidnapping would be admissible at the trial for the murder as tending to establish intent and knowledge, the reverse was not true. Any evidence regarding the murder would not have been admissible to prove the earlier kidnapping. Concluding that any prejudice that affected the earlier kidnapping conviction did not taint the murder conviction, the CSA vacated the conviction for the January 18th offenses but affirmed the convictions for the January 21st offense.
Kearney v. State, 86 Md. App 247 (1991).
Cases Where Severance Was Denied
Both Defendants Charged with Same Crimes Based On Same Acts
Defendant was not entitled to severance of his trial from codefendant, where both men were charged with identical crimes based on same substantive acts, both men were placed in vicinity of the murders shortly before shots were fired, and defendant was alleged to have been in possession of handgun. Holt v. State, 129 Md.App. (1999).
Both Defendants – Same Charges – Pro Se Co-Defendant Not Grounds for Severance
The defendant did not establish “technical prejudice” to support motion to sever codefendant’s case, which involved identical charges under separate indictment, where he did not establish any particular incriminating facts that would have been inadmissible but for joinder; argument that codefendant was proceeding pro se and therefore might inadvertently say or do things adverse to defendant was insufficient and did not constitute technical prejudice. Ogonowski v. State, 87 Md.App. 173, cert. denied, 323 Md. 464 (1991).
Joint Trial of Co-conspirators
The defendants were not entitled to severance in prosecution for conspiracy to distribute heroin; each defendant had direct dealings with one or more codefendants or charged co-conspirators; it could be inferred that each defendant was aware of roles of others in the scheme; and acts and statements of each defendant during the conspiracy were admissible against other defendant. Manuel v. State, 85 Md.App. 1, cert. denied, 322 Md. 131 (1990).
Incriminating Statement by One Defendant Adopted by Co-Defendant
Testimony by inmate that he overheard incriminating conversation between defendant and codefendant did not require severance of the trials of the two in the theory that the conversation involved damaging admission by the codefendant which should not have rubbed off on defendant where it was obvious that the two were in full agreement with each other and that the defendant adopted the statement made by the codefendant. Ball v. State, 57 Md.App. 338 (1984).
Solicitation to Commit Murder and Felony Murder
Evidence concerning felony murder charge and solicitation of murder charge was mutually admissible, such that trial court had discretion as to whether to join or sever the charges for that trial; evidence of the murder was relevant to show motive for solicitation charge, in which alleged target was a potential witness in murder prosecution, and evidence relating to soliciting of murder was admissible to show consciousness of guilt as to murder charge. Lee v. State, 186 Md.App. 631, cert. granted, 411 Md. 355, reversed, 418 Md. 136 (2009).
Murder and Drugs Offenses
Severance of drug offenses from murder charges was not warranted, where murders arose from drug distribution conspiracy, and murders were overt acts in furtherance of conspiracy. Holt v. State, 129 Md.App. 194 (1999).
Multiple Burglary Counts
Defendant was not prejudiced by joinder for trial by the court of indictments charging him with two separate incidents of burglary and theft where court was not confused by joinder and each conviction was reached only upon such evidence before the court as was relevant and material to the individual charge. Graves v. State, 298 Md. 542 (1984).
Discharge of Firearm and Possession of Firearm By Convicted Felon
Denial of a severance motion would have been proper in a possession of a regulated firearm by one previously convicted of a crime of violence, possession of a regulated firearm by underage person, and unlawful discharge of a firearm within city; the offenses depended upon proof of the single act of firing a handgun into the air, and evidence of prior conviction of a crime of violence was not unduly or unfairly prejudicial to defense against other counts. Carter v. State, 145 Md.App. 195, cert. granted, 371 Md. 261, reversed, 374 Md. 693 (2002).
Obstruction of Justice and Kidnapping and Assault Offenses
Trial court did not abuse its discretion in refusing to sever obstruction of justice charge from other charges arising from kidnapping and assault on victim, notwithstanding that defendant was charged with obstruction of justice on theory that his motive for assaulting victim was to intimidate or to prohibit him from being able to testify at murder trial, and that defendant argued that if jury were presented with evidence that implicated defendant in a murder, it might improperly convict him because of belief that he was a bad person. Marks v. State, 84 Md.App. 269, cert. denied, 321 Md. 502 (1990).
Possession of Firearm and Possession of Firearm after Conviction for Crime of Violence
Denial of motion to sever trial for possessing pistol from trial for possessing revolver after being convicted of crime of violence did not unduly prejudice defendant; same evidence as to each charge would support finding that defendant unlawfully possessed handgun; presumption of prejudice was inapplicable; and trial judge gave cautionary instructions. Frazier v. State, 318 Md. 597 (1990).
Joinder of Defendants Multiple Robbery Counts Where Defendant Did
Not Participate in One Robbery
Trial court did not err in permitting joint trial of defendant with codefendant, all of whom participated in conspiracy to rob stores at shopping center; although defendant did not participate in one charged robbery, evidence of that robbery was admissible as having natural connection with overall conspiracy, and there was ample evidence to link defendant to other robbery. Battle v. State, 65 Md. App. 38, cert. denied, 305 Md. 243 (1985).
Four Defendants Joined in Bank Robbery Prosecution
Joint trial proper were four defendants charged in a bank robbery were all charged with committing the same offenses and that such offenses flowed from a bank robbery in which they all participated. Nearly all the evidenced needed to prove guilt in a joint trial would have been introduced in separate trials and would have been admissible. Stevenson v. State, 43 Md. App. 120 (1979).
Defendant Tried Jointly With Co-Defendants in Four Robberies in Which He Was Charged Jointly With Two Co-Defendants But Also With Co-Defendants Charged in Three Robberies in Which Defendant Not Charged
Five individuals were charged with participating in five robberies of liquor stores. All were convicted of one or more of crimes charged in eleven indictments. The COA held that the trial court erred in forcing the defendant to go to trial with his co-defendants were the trial consisted of joined offenses, including three cases in which he had not been charged with any offenses. McChan v. State, 238 Md. 149 (1065).
Multiple Robberies Within Short Time In Same Geographical Area
Defendant and co-defendants committed robberies over the course of two and one-half hours, in the same geographical area. The denial of the defendant’s motion for severance of counts was error as there was no evidence that the participants in the robberies had agreed that they would commit more than one robbery or that they would keep robbing until the obtained enough money to buy drugs. Each establishment that was robbed was selected at random or on impulse and that only after one robbery was attempted was a decision made to rob another place. The COA rejected the State’s argument that the evidence from the robberies as mutually admissible to establish a common scheme or plan and, further, rejected the State’s position that the defendant was not prejudiced by the denial of his motion. It noted that “mere proximity in time and location within which several offenses may be committed does not necessarily make one offense. State v. Jones, 284 Md. 232 (1979).
Severance Part II
In Part II of this series we will discuss Bruton issues as affecting severance, severance issues in the federal courts and practice pointers regarding ligating severance issues.