Opinion
ID Nos: 9912015068, 9912015075.
Submitted: October 30, 2000.
Decided: November 1, 2000.
Upon Defendants' Motions to Sever. Denied.
Mark W. Bunitsky, Esquire, and Caroline L. Cross, Esquire, Deputy Attorneys General, Wilmington, Delaware, for the State.
Timothy J. Weiler, Esquire, and Aaron R. Goldstein, Esquire, Assistant Public Defenders, Wilmington, Delaware, for Defendant Garden.
Anthony A. Fighola, Jr., Esquire, and Sheryl Rush-Milstead, Esquire, Wilmington, Delaware, for Defendant Johnson.
MEMORANDUM OPINION
Defendants Sadiki Garden and Christopher Johnson have been indicted on numerous charges related to a robbery which occurred on December 17, 1999, and an attempted robbery as well as the murder of Denise Rhudy, on December 18, 1999. Each Defendant will be tried separately, and each has moved the Court to order severance of the two sets of charges. Having carefully considered the parties' arguments, as well as the record in its current form, the Court concludes that the motions must be denied.
I. FACTS
The pertinent facts appear to be as follows. On December 17, 1999, at approximately 10:00 p.m., Johnson, Garden and James Hollis, an unindicted co-defendant, drove into the City of Wilmington in a van owned by Constance Webster, Garden's girlfriend. The purpose of the trip was to commit a robbery. Garden parked the van on 8th Street in Wilmington, and the three men went into Garden's apartment at 704 North Tatnall Street. Hollis, an amputee missing his right leg, remained in the apartment while Garden and Johnson went to look for victims. Johnson was armed with a .25 caliber handgun. As a man and woman walked down 8th Street, Defendants approached them, and Johnson aimed the gun in their direction and demanded their money. The woman turned over her purse, and Defendants ran back to Garden's apartment. The three men divided the cash in the handbag, and Garden kept the credit cards. They left the apartment and drove the van out of town on Route 13 South, stopping at the Merit Gas Station and making a $2 purchase with one of the stolen credit cards. They proceeded to Bear, Delaware, where they went to a Wal-mart store located on Route 40, and purchased approximately $450 worth of merchandise using the same stolen credit card. The store security video shows the three men purchasing a Magnavox stereo system, two Sony Playstations, two cassettes and two memory chips for the playstation, and an adaptor system.
The next evening, the three men came into the city again. They drove a maroon, four-door Toyota Camry, which Garden had purchased that same day with proceeds from the previous evening's robbery. After briefly driving around, Garden parked on the 800 block of North Tatnall Street. Hollis waited in the car, while Garden and Johnson walked toward a parking lot on the 800 block of Orange Street, behind Bottlecaps Bar and Restaurant. A car pulled into the lot and parked. As the woman in the right front seat got out of the car, Garden ran up to her, stuck a small handgun in her side and demanded that she give him her money. When she told him she didn't have any money, Garden looked at her male companion, who was standing near the front of the car, and demanded his money. The man also denied having any money. Garden pulled the woman back a little bit and leaned into the car, the gun still in his hand. He demanded money from the woman in the driver's seat, Denise Rhudy. She, too, refused to comply. In response, Garden fired two shots at her and then turned and ran away. As he ran, he looked back at the woman standing by the passenger's side of the car and fired one shot at her, grazing the sleeve of her jacket. Johnson, who had been standing approximately ten feet from the victim's car, also ran away.
Denise Rhudy had been shot in the neck and the chest. By the time the police arrived only a few minutes later, she was dead. In the meanwhile, Johnson, Garden and Hollis went to a party at Lexington Green Apartments in New Castle.
During the murder investigation, the police determined that money and credit cards had been stolen from the victims of the first robbery. By tracing the credit card purchases to the Wal-mart, police obtained the store's security videotape and saw three black men using the stolen card. One of the men was very tall and broad, and was missing his left leg. Because of his unique physical description, the police focused on identifying and locating the amputee, who was, in fact, James Hollis. When he was brought in for questioning, Hollis described the incidents of December 17 and 18, 1999. Garden and Johnson were arrested shortly thereafter. Both defendants have now moved the Court to sever the two incidents for trial.
II. ISSUES
Defendants argue that joinder of the two incidents is inappropriate for the following reasons. First, the incidents are not of the same or similar character, nor do they constitute two or more acts or transactions connected together, as required by Super. Ct. Crim. R. 8 (a). Second, joinder raises a reasonable probability of prejudice that should be ameliorated by severance pursuant to Super. Ct. Crim. R. 14.
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. The State also argues that Defendants have not met their burden of showing prejudice sufficient to warrant severance.
III. DISCUSSION
Pursuant to Super. Ct. Crim. R. 8(a), two or more criminal 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 transactions; 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 the 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 transactions connected together or constituting parts of a common scheme or plan.
See also Wiest v. State, Del. Supr., 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, and a hypothetical assertion of prejudice is not enough. If a defendant makes unsubstantiated claims of prejudice, the defendant's interest are outweighed by the interest of judicial economy. A motion for severance rests within the sound discretion of the trial judge. A. Joinder is proper pursuant to Rule 8(a) where the charged offenses are of the same general nature and give evidence of a similar modus operandi . Both defendants argue that the incidents of December 17 and December 18 were not of a similar nature and were not connected by a common scheme or plan. Their reasoning is that because the second incident ended in murder, the incidents are unrelated in nature. Even a cursory glance at the facts shows otherwise.
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 v. State, 542 A.2d at 1195 (citing Bates v. State, Del. Supr., 386 A.2d 1139, 1141 (1978).
Bates v. State, Del. Supr., 386 A.2d 1139 (1978).
Sexton v. State, Del. Supr., 397 A.2d 540 (1979), overruled on other grounds, Hughes v. State, Del. Supr., 437 A.2d 559 (1981).
Wiest v. State, 542 A.2d at 1195; Younger v. State, 496 A.2d at 549; Lampkins v. State, Del. Supr., 465 A.2d 785, 794 (1983).
On both nights, Hollis, Garden and Johnson drove into Wilmington in a vehicle provided by Garden. On both nights, Johnson and Garden intended to commit an armed robbery. They parked near Garden's apartment and also near Bottlecaps Bar and Restaurant. On both nights, Hollis remained behind while Johnson and Garden, armed with a loaded gun, went to hunt for victims. The same gun and bullets were used on both nights. Having found their prey, Defendants used the same procedure on both nights to threaten and rob their victims. On Friday night, Johnson pulled the gun and demanded money, while Garden acted as a lookout. On Saturday night, they reversed roles.
The fact that Saturday's incident ended in a brutal murder does not change the fact that the Defendants formed and carried out the same plan on both nights. On these facts, the Court finds that the two incidents are of a similar, if not identical, nature, and that they are connected together by a common scheme, as provided for in Rule 8(a). For this reason, the offenses are properly joined for trial.
Case law supports this conclusion. In Younger v. State, the defendant was charged with two rapes and an attempted rape, all of which had occurred within a period of two months in the same general vicinity. In a striking similarity to the case at bar, Younger's method of attack was the same until his third victim put up a fight. In affirming this 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." This statement confirms that joinder is appropriate in the case at bar.
496 A.2d 546 (1985).
Id. at 550 (citing Brown v. State, Del. Supr., 310 A.2d 870, 871 (1973)).
Similarly, in Skinner v. State, the defendants were charged with two robberies and an attempted robbery that culminated in a murder. This Court's denial of the severance motion was upheld on appeal because of the similarity of the incidents and the relatively short time span between them. As the Skinner Court stated, "[t]he mere fact that the crimes were `separate,' and were committed against different individuals with a lapse of time between them, does not require severance." The Court finds that Skinner also demonstrates that joinder is appropriate in this case.
Del. Supr., 575 A.2d 1108, 1119 (1990).
Id.
Defendants argue that the facts of their case are similar to the facts in State v. Flagg, where this Court granted a motion for severance of charges related to two different incidents. In Flagg, each incident involved an unlawful entry into a woman's home followed by multiple rapes. As in the case at bar, the second Flagg incident culminated in murder. This Court found that joinder would have been prejudicial because it would have forced the defendant to present an insanity defense to one set of charges and an identity defense to the other. No such concern is present in this case.
Del. Super., 739 A.2d 797 (1999).
Furthermore, in Flagg, the police did not use evidence from the first incident to lead them to the arrest of Flagg for the second incident, as they did in this case. Severance decisions are fact-intensive, and the Court finds that the facts of Flagg are clearly distinguishable from those in the case at bar.
Younger v. State, 496 A.2d at 550.
The Court concludes that the two incidents in this case involve a common scheme or course of conduct in that Defendants intended to commit an armed robbery on both evenings near the same bar and at the same time of night. In light of these common facts, the additional fact that Saturday's attempted robbery escalated to include the murder of Denise Rhudy is not grounds for severance. The Court concludes that joinder is appropriate under Rule 8(a).
B. Defendants have not shown prejudice sufficient to warrant severance pursuant to Rule 14. Where a defendant shows that there is a reasonable probability that "substantial injustice" would result from joinder of offenses, this Court may not deny a motion for severance. The types of prejudice which a defendant may suffer from inappropriate joinder includes the following: (1) the jury may cumulate the evidence of the charged crimes and find guilt when, if the crimes were considered separately, it would not so find; (2) the jury may use evidence of one of the crimes to infer a genera! criminal disposition on defendant's part as a substitute for finding individualized guilt on separate charges; and (3) the defendant may be subject to embarrassment or confusion by presenting different and separate defenses to different charges)
Ward v. State, Del. Supr., 704 A.2d 278 (1998).
State v. McKay, Del. Super., 382 A.2d 260, 262 (1979).
However, it is also true that where the offenses charged are of the same general nature and give evidence of a modus operandi, severance has been denied even in the face of obvious prejudice to the defendant. 1. No risk that the jury will cumulate the evidence of the two incidents. In 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.
Id. at 262 (quoting Brown v. State, 310 A.2d at 870)).
See, e.g., McKay, Howard.
Howard, 704 A.2d at 278.
Similarly, in State v. McKay, there were eight incidents, including various offenses such as rape, kidnaping and robbery, which took place over a seven-week period. The Court found that the sheer mass of charges warranted severance to avoid the risk that the jury would accumulate the evidence. The facts of these cases differ significantly from the facts in the case at bar. Even though Johnson and Garden are charged with 23 separate counts, the charges stem from only two incidents. On these facts, the Court does not find a "reasonable probability" that jurors will cumulate the evidence.
McKay, 382 A.2d at 262.
Both defendants argue that Flagg demonstrates the type of prejudice they would suffer from joinder. However, severance was granted in Flagg on grounds other than the risk of cumulation, as discussed infra, and the Court explicitly rejected the argument that the jury would be overwhelmed by the evidence of two incidents.
State v. Flagg, 739 A.2d at 800.
In the case of Garden and Johnson, there is no great mass of evidence that would create a risk of cumulation. This case involves only two incidents, and therefore does not require the jury to possess "an unusual degree of detachment" in order to consider each charge separately. Furthermore, as discussed above, Defendants' course of conduct was the same until the victims in the second incident refused to hand over their money. The Court concludes that Defendants have not shown that there is a reasonable probability that their juries will cumulate the evidence of the two incidents.
McKay, 382 A.2d at 262.
2. Little risk that the jury will infer a general criminal disposition from two incidents. In a case such as McKay, where severance was granted because the defendant was charged with 35 counts in eight separate incidents, there is a real risk that a jury will impute to the defendant a criminal disposition. The case at bar is more analogous to Skinner v. State, where the defendants were charged with two robberies and an attempted robbery that culminated in a murder. In Skinner, the Delaware Supreme Court made short shrift of the argument that the jury would infer a criminal disposition from only three incidents. In Johnson and Garden's case, the Court is satisfied that there is no reasonable probability that the jury will infer from two incidents that either defendant has a general criminal disposition and convict on that basis.
Id.
In his Reply Memorandum, Garden reasserts that joinder of the two incidents would create a real risk of cumulation and would have a prejudicial effect on Garden's decision whether or not to testify. He argues that, if he chooses to testify regarding Saturday's incident, the State will introduce part of his confession to Friday's robbery (which was obtained without benefit of Miranda rights), and that the jury might infer guilt on the other charges. In support of this position, Garden refers the Court to Shockley v. State, a case which acknowledges a defendant's constitutional right to testify in his own defense, but does not address the issue that is now before the Court or otherwise support Garden's position.
Del. Super., 565 A.2d 1373, 1376-77 (1989).
Garden could prevail on his argument that joinder would violate his right to testify only if he does more than suggest that jurors might misuse the evidence, which he has not done. As the Delaware Supreme Court has stated, "[t]he mere possibility that a jury may use evidence improperly does not `clearly deprive an accused of a substantial right, or . . . clearly show manifiest injustice.'" Furthermore, the jury will be correctly instructed at trial to determine guilt or innocence as to each charge separately. Although Garden asserts that such an instruction will have no effect, the Delaware Supreme Court has found otherwise. As discussed above, supra, the Court finds that joinder of the two incidents raises no real risk of prejudice and that the jury need not possess "an unusual degree of detachment" to address each charge individually.
Frazier v. State, No. 388, 1990, Walsh, J. (March 13, 1992) (ORDER) (quoting Wainwright v. State, Del. Supr., 504 A.2d 1096, 1100 (1986).
Steckel v. State, Del. Supr., 711 A.2d 5, 9 (1988); Skinner v. State, 575 A.2d at 1118-19.
State v. McKay, 382 A.2d at 262.
3. Little risk of embarrassment or confusion. Defendant Garden acknowledges his involvement in the first incident but denies participation in the robbery-murder. Thus, identity will the primary issue in regard to Garden's involvement in the murder and attempted robbery charges. Garden asserts that joinder will force him to present defenses "which appear inconsistent and subject [him] to embarrassment." However, this is a bare bones assertion which has no support and little logic.
Defendant Johnson's argument does not rest on this form of potential prejudice.
Def. Garden's Opening Brief at 8.
Unlike Flagg, Garden has not indicated that he will present an insanity defense. He merely denies involvement in the robbery-turned-murder. Admitting a robbery and denying a murder are not antagonistic or mutually exclusive defenses. What exactly are the defenses which "appear inconsistent," and why is Garden embarrassed by asserting his innocence of the murder? These are purely hypothetical assertions of prejudice which do not warrant severance. Furthermore, where multiple incidents circumstantially point to the perpetrator's identity, severance has been denied because the evidence is of the same type and impact. The Court concludes that Garden has not shown that there is a reasonable probability that he will be subject to embarrassment or confusion by joinder of the charges.
Younger v. State, 496 A.2d at 549-50.
Howard v. State, 704 A.2d at 281.
C. Reciprocal admissibility. Although reciprocal admissibility is not a prerequisite for joinder, it is a pertinent factor to be considered. In fact, the Delaware Supreme Court stated in Steckel v. State that, "where evidence concerning one crime would be admissible in the trial of another crime, there is no prejudicial effect in having a joint trial." Typically, evidence of one crime is inadmissible to prove a general disposition to commit another crime, even if the crime is of the same nature and character as the charged offense. However, evidence of other offenses is admissible when it has "independent logical relevance" and its probative value to the State has been balanced against the prejudicial effect on the defendant.
Skinner v. State, 575 A.2d at 1118.
Steckel v. State, 711 A.2d at 9 (quoting Bates v. State, 386 A.2d at 1142).
Getz v. State, Del. Supr., 538 A.2d 726, 730 (1988).
Id. at 734.
For example, in Steckel, this Court denied Steckel's motion to sever a charge of aggravated harassment against Susan Gell from the various charges stemming from the murder of Sandra Lee Long. The Court reasoned that the evidence of the aggravated harassment was admissible to prove the murder charges because Steckel had telephoned the News Journal after the murder, claimed responsibility for the murder and named Susan Gell as the next victim. Alerted by the News Journal staff, the police contacted Gell and learned that Steckel had been threatening her and that his threats were similar to some of the details of Long's murder. Because the evidence of the aggravated harassment had "an independent logical relevance," the evidence was admissible and Steckel suffered no unfair prejudice.
Steckel v. State, 711 A.2d at 9.
In the case at bar, the record shows that the evidence surrounding Friday's robbery helped lead police to the arrest of Garden and Johnson for the robbery-turned-murder on Saturday night. The Court is satisfied that the independent logical relevance of the robbery evidence renders it admissible to prove the murder and attempted robbery charges. Its probative value is self-evident and is not substantially outweighed by the danger of unfair prejudice. Thus there can be no unfair prejudice from joinder.
D.R.E. 403.
Steckel v. State, 711 A.2d at 9.
IV. CONCLUSION
For all these reasons, the Court concludes that joinder of the charges stemming from the two incidents of Friday, December 17, 1999, and Saturday, December 18, 1999, is appropriate under Rule 8(a). Therefore, Defendants' motions to sever must be and hereby are DENIED.It Is So ORDERED .