Opinion
ID No. 9809019760
Submitted: September 19, 2001
Decided: December 5, 2001
UPON DEFENDANT'S MOTION TO SEVER OFFENSES. DENIED.
Donald R. Roberts, Esquire, Deputy Attorney General, Wilmington, Delaware, for the State.
Andrew Witherell, Esquire, Wilmington, Delaware, for the Defendant.
MEMORANDUM OPINION
This is the decision of the Court on a Motion to Sever Offenses filed by the Defendant, William Hammons. The motion seeks to bifurcate the trial of defendant's criminal charges so that those related to an incident on one day are separately tried from those stemming from an incident two days later. After carefully considering the parties' arguments, as well as the record, the Court concludes that Defendant's motion must be denied.
BACKGROUND
Defendant has been charged in an eleven count indictment with two counts of Rape in the First Degree ( 11 Del. C. § 773), two counts of Kidnapping First Degree ( 11 Del. C. § 783A), one count of Attempted Rape in the First Degree ( 11 Del. C. § 531), three counts of Forgery Second Degree ( 11 Del. C. § 861), one count of misdemeanor Assault ( 11 Del. C. § 611) and two counts of misdemeanor Criminal Impersonation ( 11 Del. C. § 907). These counts arise from two separate incidents, each involving a different victim. The first incident occurred on September 22, 1998 and involved the kidnapping and rape (oral and vaginal) of an individual on Papermill Road near Newark, Delaware. The second incident occurred on September 24, 1998, and involved the kidnapping and attempted rape of a different individual on New London Road near Newark, Delaware.
FACTS
On September 22, 1998, at approximately 10:00 p.m., a young woman was attacked while walking alone in the 200 block of Papermill Road in Newark, Delaware. According to the Affidavit of Probable Cause, as the victim walked by a wooded area, an unidentified white male emerged, then put something in the victim's back and threatened her to do as he said. The unidentified attacker then placed a colored t-shirt over the victim's head and forced her to engage in oral and vaginal intercourse. When he was finished, he let the victim go.
According to the Affidavit of Probable Cause, the victim was able to provide a further description of her attacker as a 5 foot 6 inch tall male who smelled of tobacco and cigarette smoke and who used a lot of profanity.
Two days later, on September 24, 1998, at approximately 11:00 p.m., a second victim was attacked on New London Road in Newark, Delaware, as she was walking to her apartment from her parked car. The police report indicates that a male seized the victim by her throat and arms and attempted to drag her into the bushes alongside a house. This victim was able to fight off the attacker. The attacker did not make a demand for money or property from her. While the attacker ran away toward New London Road, the victim was able to observe him as he passed under a street light.
Less then an hour after the September 24, 1998 attack, an officer observed a male matching the description of the assailant given by the second victim. The Affidavit of Probable Cause indicates that the assailant initially gave the name of Gregory Broadwater, but later admitted that his real name was Jesse Allen Hammons after the second victim positively identified him.
As the police later discovered, this was not Defendant's real name either.
On September 28, 1998, the Newark Police Department was informed by an employee of Gander Hill that the individual arrested and charged as Jesse Allen Hammons was in fact William Hammons, the brother of Jesse Allen Hammons. Further investigation by a detective of the Newark Police Department resulted in a statement by an independent witness implicating the defendant. According to a former cellmate of William Hammons, Harry Smith, Defendant confided to Smith that he had raped a girl on Papermill Road and threw her shirt away because it had semen on it. Hammons also told Smith that he made the victim perform oral sex and that he had plucked out his pubic hairs. Smith further stated that the Defendant also told him about the attack at New London Road. In addition, Hammons admitted to Smith that he used his brother's name when he was arrested.
CONTENTIONS OF THE PARTIES
Defendant argues that joinder of the two incidents is inappropriate for several reasons. First, the defense contends that the State's "independent witness" is a jailhouse snitch and presumably unreliable. Second, the defense submits that the incidents are not of the same or similar character because the acts involved do not constitute a "signature" on the crime itself. Finally, relying upon the standard set forth in Weist v. State, defendant asserts that joinder will create such prejudice as to outweigh any competing interest of judicial economy.
Del. Supr., 542 A.2d 1193 (1988) ((1) that a jury may cumulate the evidence relating to one incident to convict defendant of the other or (2) that a jury may rely on evidence relating to one or more of the incidents to infer that he has a general criminal disposition in order to find guilt of the other crime or crimes).
The State argues that the two incidents are of the same general character and that they are connected as part of a common scheme or plan. Further, the State contends that, even if the modus operandi does not rise to the level of a "signature crime," reciprocal admissibility should be considered by the court in determining whether severance is warranted. In response to Defendant's argument regarding the unreliability of the State's independent witness, the State argues that his credibility is a matter for the trier of fact. Finally, the State contends that Defendant has not satisfied any of the tests set out in the Supreme Court's decision in Weist to meet his burden of demonstrating substantial prejudice resulting from a joint trial.
In addition, the State submits that Defendant's Motion to Sever Offenses is untimely. Although the State is correct that the Superior Court's current Criminal Case Management Plan requires pretrial motions under Rules 12, 14, 16, and 41 of the Superior Court Criminal Rules to be filed within ten days following the initial case review, due to the complexity of the procedural history of this case, the Court will consider Defendant's Motion to Sever notwithstanding its untimeliness.
The Court notes that defendant's motion was filed on December 7, 2000. The decision on the motion was deferred, however, until the results of DNA testing were made available to counsel and a ruling on the admissibility of the scientific evidence was rendered. On September 19, 2001, the Court ruled that the mitochondrial DNA results would be admissible in favor of defendant.
DISCUSSION I.
Pursuant to Super. Ct. Crim. R. 8(a), two or more offenses may be joined in the same indictment provided that one of the following circumstances exists: 1) the offenses are of the same or similar character; 2) the offenses are based on the same act or transaction; 3) the offenses are based on two or more connected acts or transaction; or 4) the offenses are based on two or more acts constituting parts of a common scheme or plan. The rule of joinder is designed to promote judicial economy and efficiency, so long as defendant's rights are not compromised by the joinder.
Super. Ct. Crim. R. 8(a) provides as follows:
Two or more offenses may be charged 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 on two or more acts or transaction connected together or constituting parts of a common scheme or plan.
See also Weist v. State, 542 A.2d 1193, 1195 (1988).
Mayer v. State, Del. Supr., 320 A.2d 713 (1974).
Rule 8(a) must be read in conjunction with Super. Ct. Crim. R. 14, which gives the Court discretion to order severance if it appears that either party will be prejudiced by joinder of either offenses or defendants. The defendant bears the burden of showing prejudice sufficient to require severance. A hypothetical assertion of prejudice is not enough. If a defendant makes unsubstantiated claims of prejudice, the defendant's interests are outweighed by the interest of judicial economy. A motion to sever is addressed to the sound discretion of the trial judge.
Super. Ct. Crim. R. 14 provides in pertinent part as follows:
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.
Younger v. State, Del. Supr., 496 A.2d 546, 549-50 (1985); see also Wiest, 542 A.2d at 1195 (citing Bates v. State, Del. Supr., 386 A.2d 1139, 1141 (1978)).
Bates, 386 A.2d 1139.
Sexton v. State, Del. Supr., 397 A.2d 540 (1979), overruled on other grounds, Hughes v. State, Del. Supr., 437 A.2d 559 (1981).
Weist, 542 A.2d at 1195; Younger, 496 A.2d at 549; Lampkins v. State, Del. Supr., 465 A.2d 785 (1983).
Joinder is proper pursuant to Rule 8(a) where the charged offenses are of the same general nature and the evidence supports a similar modus operandi. Defendant argues that the incidents of September 22nd and September 24th were not of a similar nature and were not connected by a common scheme or plan. Defendant reasons that "simply attacking women at night in Newark does not constitute a `modus operandi'."
Defendant's Ltr. Memorandum dated January 26, 2001, at 2.
In the Court's judgment, Defendant's argument is not sufficiently persuasive to overcome the interest of judicial economy. The two incidents in this case involve a common scheme or plan. The Defendant intended to attack women on both evenings, near the same location, in the same manner, and at approximately the same time of night. Both offenses occurred within several hundred yards of one another, near wooded areas adjacent to the University of Delaware campus. Both offenses involved young white female victims. Both offenses occurred within an hour of 10:00 p.m. Since Rule 8 is designed to promote the important objectives of judicial economy and efficiency, consistent with the rights of the accused, the Court concludes that judicial economy would best be served by a single trial on all of the charges.
Case law supports this conclusion. In Younger v. State, the defendant was charged with two rapes and an attempted rape, each of which had occurred within a period of two months and each in the same general vicinity. In affirming the Court's denial of severance, the Younger Court stated that "`where offenses are of the same general character, involve a similar course of conduct and are alleged to have occurred within a relatively brief span of time, it is proper to try the offenses together.'" Joinder is likewise appropriate in the case at bar, as the facts here are nearly the same as in Younger.
Del. Supr., 496 A.2d 546 (1985).
State v. Garden, Del. Super., ID No. 9912015068, 2000 Del. Super. LEXIS 415, Barron, J., *9 (Nov. 1, 2000), quoting Id. at 550 (citing Brown v. State, Del. Supr., 310 A.2d 870, 871 (1973)).
II.
Having concluded that the offenses are of the same general character does not end the matter, however. The Court must next consider whether defendant has shown prejudice sufficient to warrant severance pursuant to Rule 14. Defendant must demonstrate that there is a reasonable probability that "substantial injustice" would result from joinder of offenses. In Weist v. State, the Delaware Supreme Court described three circumstances where such prejudice might be sufficient to overcome joinder. A defendant might suffer prejudice from joinder because: (1) a jury may cumulate the evidence relating to one incident to convict him of the other; (2) a jury may rely on evidence relating to one or more of the incidents to infer that he has a general criminal disposition in order to find guilt of the other crime or crimes; and (3) the defendant may be subject to embarrassment or confusion in attempting to present different defenses to different charges. Where the offenses charged are of the same general nature and there is evidence of a modus operandi, severance has been denied, even in the face of obvious prejudice to the defendant. The defendant has the burden of demonstrating prejudice if the motion to sever is denied.
State v. McKay, Del. Super., 382 A.2d 260, 262 (1978); Weist, 542 A.2d 1193.
See, e.g., Howard v. State, Del. Supr., 704 A.2d 278 (1990); McKay, 382 A.2d at 262 (citing Brown v. State, 310 A.2d 870 (three drug sales in an eight day period). See also Arnold v. United States, D.C. Cir., 358 A.2d 335 (1976) (two rapes under identical circumstances within two week period).
1) No risk that the jury will cumulate the evidence of the two incidents.
Defendant initially claimed that severance is warranted because of the "diversity of evidence" in this case. At that time (December 2000), the State was in possession of physical evidence thought by the Defendant to be an extremely persuasive piece of circumstantial evidence of identity, which would have linked him to the first incident. This evidence, a pubic hair, has since been analyzed using mitochondrial DNA analysis, and the defendant has been scientifically excluded as a possible donor. Under these circumstances, the risk of a jury inferring that defendant intended to commit rape in the second incident is substantially minimized.
At the hearing on September 19, 2001, this Judge gave a provisional ruling from the bench, finding that the DNA analysis on the pubic hair is reliable for use at trial. Memorandum Opinion regarding DNA ruling to follow. serve to exclude, rather than include, Defendant as to the September 22nd incident, it does not appear to the Court on these facts that there is a reasonable probability that a jury would cumulate this evidence.
With regard to cumulating the evidence, this Court is likely to grant severance where there are numerous incidents and a multitude of charges. For example, in State v. Howard, there were seven incidents of rape spread over a three-year period. The court found that if all the charges were tried together, the defendant would be prejudiced by the cumulative nature of the evidence. Similarly, in State v. McKay, there were eight incidents, including various offenses such as rape, kidnapping and robbery, which took place over a seventeen-week period. The court found that the sheer mass of charges warranted severance to avoid the potential that the jury would cumulate the evidence.
See, e.g., McKay, Howard.
Howard, 704 A.2d at 278.
McKay, 382 A.2d at 262.
Unlike either of the foregoing cases, the charges in the instant case involve only eleven counts which stem from only two incidents. Therefore, the case will not require the jury to possess "an unusual degree of detachment" in order to consider each charge separately. In addition, since the results of the DNA analysis
Id.
Moreover, in a joint trial, the risk of prejudice to defendant due to jury confusion and accumulation can be minimized through the use of proper jury instructions. Generally, an instruction to the jury not to cumulate the evidence will avoid any prejudice to the defendant. In this case, the jury will be instructed to consider liability for, and the elements of, each charge separately, and an instruction will be given that evidence admitted for one offense is not to be used in determining the guilt for another. In doing so, the Court will eliminate the potential "spillover" effect resulting from the joint trial.
2) Little risk that the jury will infer a general criminal disposition from the two incidents.
See, e.g., Pandiscio v. State, Del. Supr., 604 A.2d 418 (1991) (ORDER).
2 Wayne R. Lafave and Jerold H. Israel, Criminal Procedure § 17.1(e), at 358 (1984).
Skinner v. State, 575 A.2d at 1120.
In a case such as State v. McKay, where severance was granted when the defendant was charged with 35 counts in eight separate incidents, there was a real risk that a jury would impute to the defendant a criminal disposition. The case at bar does not encompass the sheer number or complexity of charges that would create such a risk. Rather, it is similar to the facts in State v. Garden, where the defendant was charged with two separate incidents of armed robbery, with a gun, only one of which ended in a brutal murder. The court held that the fact that one of the episodes ended in a murder does not change the fact that defendant formed and carried out the same plan on both nights. The court further determined that "there is no reasonable probability that the jury will infer from two incidents that. . . . defendant has a general criminal disposition and convict on that basis." The Court emphasized that the jury would be properly instructed at trial "to determine guilt or innocence as to each charge separately."
Id.
2000 Del. Super. LEXIS 415.
Id. at *16.
Id. at *17.
Defendant submits that joinder of the two incidents in this case would have a prejudicial effect since the State intends to introduce the testimony of the alleged victims. Defendant argues that the attack which occurred on September 24th involved the defendant simply grabbing the victim's arm and struggling with her. Since there was never any unlawful sexual contact with the alleged victim or any direct or implied communication to the victim that the defendant intended to sexually assault her, defendant contends that the jury will infer a general criminal disposition merely as a result of the September 22nd incident. The crux of this argument is that defendant will suffer irreparable prejudice because the jury will cumulate the evidence of the crimes, use the evidence of one crime to infer a general criminal disposition, and improperly conclude from the existence of a sexual assault in one case that there was an intent to rape in the second case.
For the reasons previously discussed, the Court is satisfied that there is no reasonable probability that the jury will infer a criminal disposition from only two separate incidents, and convict without due regard to the elements of each offense.
3) Little risk of embarrassment or confusion.
In the case at bar, the Defendant does not argue that he will suffer embarrassment or confusion in presenting his defense. In fact, the issue in this case is one of identity and neither embarrassment nor confusion has been asserted.
Finally, there exists in this case a factor that outweighs any hypothetical prejudice that defendant claims results from a denial of severance of the separate alleged sexual assault incidents. That is, defendant himself has apparently confessed his involvement in both incidents in a statement to an independent witness. Since this statement would be admissible pursuant to DRE 404(b) in each of two separate trials, there is no prejudice in having a joint trial.
Bates v. State, 386 A.2d at 1142 (citing Drew, 331 F.2d at 90) (where evidence concerning one crime would be admissible in the trial of another, there is no prejudicial effect in having a joint trial).
In the instant case, the State has represented that an independent witness will testify that Defendant confessed to the September 22nd rape and September 24th attack. While this witness has been characterized by the defense as a "jailhouse snitch," wholly lacking in reliability, he is nevertheless the source of evidence, whether weak or strong, of defendant's involvement in both incidents. The extent of his reliability is a matter for the trier of fact, and not the Court to decide. This witness supplies the link that justifies one trial as the inculpatory statement defendant made to him will be admissible to prove all charges, including criminal impersonation. The important point is that the witness will testify to defendant's single confession whereby defendant admitted his involvement in both incidents.
CONCLUSION
For all of the above reasons, the Court concludes that joinder of the charges stemming from the incidents of September 22, 1998, and September 24, 1998, is appropriate under Rule 8(a). Therefore, Defendant's Motion to Sever is hereby DENIED.
IT IS SO ORDERED.