Opinion
ID No. 9909016458
Submitted: February 11, 2000
Decided: February 18, 2000
Upon Defendant's Motion to Sever, Denied in part; Granted in part.
Stephen R. Welch, Jr., Deputy Attorney General, Department of Justice.
Sandra W. Dean, Assistant Public Defender, Office of the Public Defender.
Counsel:
Defendant, Robert M. Murphy, is charged with Attempted Murder in the First Degree, 11 Del. C. § 531, Kidnapping in the First Degree, 11 Del. C. § 783, Robbery in the First Degree, 11 Del. C. § 832, Carjacking in the First Degree, 11 Del. C. § 836 (a)(5), Possession of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447, Possession of a Deadly Weapon by a Person Prohibited, 11 Del. C. § 1448, and Escape after Conviction, 11 Del. C. § 1253. Murphy initially filed a Motion to Sever Count 7, however, at the hearing on the motion, Murphy's defense counsel, Sandra Dean, sought to file an additional motion to sever Count 6 as well. This is the Court's decision on both motions.
In the case before the Court, the Defendant claims that in Counts 1 through 6, he is charged with offenses alleged to have occurred on September 30, 1999. Count 6 includes as an element of the offense a prior felony conviction. Count 7 charges the Defendant with Escape after Conviction on September 20, 1999, an offense involving separate and distinct witnesses and evidence, according to the defense. The Defendant asserts that "[i]f all counts are tried together, the jury will learn that the Defendant has a prior criminal conviction even if he does not testify, creating substantial prejudice to him." Therefore, Defendant moves for separate trials on Counts 1 through 5 and Counts 6 and 7.
Pursuant to Superior Court Criminal Rule 14, the Court required the Deputy Attorney General to deliver to the Court for inspection in camera the statement made by the Defendant taken on October 1, 1999. The Court examined the recorded statement in an effort to consider only whether the facts and circumstances of the evidence that would be required to support a conviction on the various counts were interwoven in the statement.
Rule 14. Relief from prejudicial joinder.
If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an 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. In ruling on a motion by a defendant for severance, the court may order the attorney general to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce into evidence at the trial.
Whether to grant or deny severance is a matter within the sound discretion of the trial court. Moreover, the determination by the trial judge in denying a motion for severance will not be reversed except for a clear abuse of discretion, that is, on appeal it must appear that the trial judge had the likelihood of the reasonable probability of prejudice before him when he denied the motion. The Defendant bears the burden of demonstrating prejudice from a denial of a motion to sever. Furthermore, mere hypothetical prejudice from a denial of motion to sever is not sufficient. Severance has been denied where the offenses charged are of the same general nature and give evidence of modus operandi, even though obvious prejudice existed as to the defendant. On the other hand, severance should not be denied when the sheer mass of charges in a case renders it extremely unlikely that a jury will be able to resist the cumulative effect of evidence linking the defendant to separate charges.
Bates v. State, Del. Supr., 386 A.2d 1139 (1978); Lampkin v. State. Del. Supr., 465 A.2d 785 (1983).
Burton v. State, Del. Supr., 149 A.2d 337 (1959).
Bates, supra.
Id.
State v. McKay, Del. Super., 382 A.2d 260 (1969).
Id.
The decision of this Court whether to grant or deny a motion is a fact-specific determination. The Court would note that in the past, this Court has denied motions to sever counts for possession of a deadly weapon by a person prohibited. An alternate methodology can be utilized to protect the Defendant from potential injustice by merely telling the jury that the Defendant does have a prior felony conviction which meets the criteria for the underlying felony in a possession of a deadly weapon by a person prohibited, but not telling the jury the specific crime for which the Defendant has been adjudicated guilty.
In viewing this matter in light of the applicable law stated above, the Court finds that substantial injustice has not been demonstrated that would warrant a severance of Counts 1 through 6. The State in proving Count 6, would have to prove the same elements as charged in Counts 1 through 5, however, Count 7 requires an entirely separate and distinct set of facts. In consequence, this would substantially prejudice the Defendant because it would put in front of the jury the fact that the Defendant was incarcerated and it would prolong the trial because different fact witnesses would have to be called by both parties.
Therefore, the Court will grant a severance as to Count 7, but denies severance as to Count 6.
IT IS SO ORDERED.
WITHAM, Judge.