Opinion
No. 9908014943
Submitted: February 2, 2000.
Decided: March 21, 2000.
Stephen R. Welch, Jr., Esq., Dover, Delaware. Attorney for the State.
Michael J. Malkiewicz, Esq, Dover, Delaware. Attorney for Defendant.
ORDER
Upon consideration of the defendant's motion for relief from prejudicial joinder of offenses, and the record in this case, it appears that:
1. The defendant, Edward J. Goldsborough, Jr., is charged in a seven-count indictment with First Degree Unlawful Sexual Intercourse, 11 Del. C. § 775, three counts of First Degree Indecent Exposure, 11 Del. C. § 765, Rape in the First Degree, 11 Del. C. § 773, Sexual Harassment, 11 Del. C. § 763 and Second Degree Unlawful Sexual Contact, 11 Del. C. § 768. The seven charges arise out of four, separate alleged incidents of sexual misconduct. In his motion for relief from prejudicial joinder, the defendant asks for severance into four trials, one on each incident. As to the first three incidents, which are encompassed within Counts 1 through 4, the Court concludes that severance is not warranted. They will be tried together. As to the fourth incident, however, the Court finds that there is a reasonable probability that substantial injustice and unfair prejudice to the defendant may result if it is tried with the other three incidents. Therefore, the fourth incident, encompassing Counts 5 through 7 including the Rape in the First Degree charge, is severed and will be tried separately.
2. All of the alleged victims are female children. One of the alleged victims was the daughter of a neighbor who lived near the defendant's residence. She was six years old at the time of the incident involving her. She would now be either seven or eight years of age. The other three children are sisters. They were ages ten, nine and four at the time of the incidents involving them. They would now be approximately eleven, ten and five. The five-year old is the defendant's granddaughter. The other two sisters are apparently step-grandchildren.
There is some confusion in the record as to when the first incident occurred. The indictment alleges it occurred between January 1 and August 2 of 1999. At the preliminary hearing which was held in August of 1999, the investigating officer testified that it happened between January 1, 1998 and June 30, 1998 when the child was in the first grade. He also testified that she was seven at the time that he was giving his preliminary hearing testimony.
3. The first incident involves the defendant allegedly performing cunnilingus on the neighbor's daughter in the defendant's residence. The second incident allegedly involves the defendant having indecently exposed himself to the same neighbor's daughter and the nine-year-old step-grandchild in approximately July 1999 in a field near his residence. The third incident involves an alleged sexual harassment where the defendant tried to put the ten-year old sister's hand on his penis. This allegedly occurred in approximately June 1999 in his residence. The fourth incident involves an alleged anal rape committed by the defendant against the four year old sister. This is alleged to have occurred in his residence when the child was four, which would place it approximately somewhere during the spring and summer of 1999. All four of the incidents were reported to the police by the children's respective parents in August 1999.
4. The decision to grant or deny a motion for severance rests within the trial court's discretion. The defendant has the burden of demonstrating that a joint trial will subject him to substantial injustice and unfair prejudice. Prejudice which a defendant may suffer from a joinder of offenses has been described in the following terms: (1) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find; (2) the jury may use the evidence of one of the crimes to infer a general criminal disposition of the defendant in order to find guilt of the other crime or crimes; and (3) the defendant may be subject to embarrassment or confusion in presenting different and separate defenses to different charges." The decision to grant or deny a motion for severance depends upon the facts of each case.
Wiest v. State, Del. Supr., 542 A.2d 1193 (1988).
Lampkins v. State, Del. Supr., 465 A.2d 785 (1983); Bates v. State, Del. Supr., 386 A.2d 1139 (1978).
Weist at 1195; State v. McKay, Del. Super., 382 A.2d 260 (1978).
Weist at 1195.
5. In support of his motion the defendant contends that the offenses are not similar, that they occurred at different times and different locations, that they involve different victims, that they are not interrelated, that they do not involve a common scheme or plan, that evidence of one incident would not be admissible at the trial of any of the other incidents, that the jury will cumulate the evidence and infer a general criminal disposition, and that he will be embarrassed or confused in presenting different and separate defenses to the separate charges.
6. The State contends that severance should be denied and that all counts of the indictment should be tried together. In support of its position, the State contends that the charges are of the same or similar character and that judicial economy would be promoted by a joint trial. In addition, some of the children are witnesses concerning more than one incident. The family of the three sisters is not a wealthy family and now lives in a distant state. The State therefore contends that separate trials will cause an extreme hardship to the members of that family by causing them to return to Delaware more than once for trial. The State further contends that the defendant has not demonstrated that one trial will cause unfair prejudice. In this regard, the State argues that the evidence on each incident is of the same type and impact, and that there is no reasonable likelihood that the jury will unfairly convict through the cumulative effect of the evidence.
7. In this case all of the charges were properly indicted together because they all involve offenses of a similar character, namely, sexual misconduct directed against female children. In order to justify severance, the defendant must demonstrate that a joint trial will subject him to substantial injustice and unfair prejudice. The prejudice which is arguably inherent any time a person stands trial for two or more separate offenses at the same time is not sufficient. There must be something in the circumstances which creates unfair prejudice. Despite the defendant's claims of prejudice, the Court does not think that any such showing has been made with respect to the first three incidents. The neighbor's daughter will testify concerning the first and second incidents. The middle sister will testify concerning the second and probably the third incidents. The oldest sister will testify concerning the third incident. These three children are near in age, one being seven or eight and the other two being approximately ten and eleven. It would appear that their testimony will be of a similar type and impact. There is nothing in the circumstances of these three incidents which suggests that the jury may become inflamed or depart from the Court's instructions. The Court is satisfied that jurors will be able to judge these three incidents in a proper, deliberative manner and keep them separate in arriving at a verdict on each. There is no basis for concluding that the jury's verdicts on each charge will be improperly influenced by the cumulative effect of the evidence as to all three incidents, or that the jury will draw any inferences of a general criminal predisposition, as opposed to deciding each charge based on the evidence pertaining to that charge. In addition, although the defendant claims that his ability to defend himself will be confused or otherwise compromised by having to defend against three incidents at one time, the Court finds nothing to support this assertion. The defendant, for example, claims that he may wish to testify on his own behalf on one or more of incidents, but may wish to remain silent on one or more of the other incidents, or may wish to call witnesses as to one or more incidents but not others. A claim of unfair prejudice relating to the defense of the case must go beyond hypotheticals which are inherent any time two offenses are tried together. There does not appear to be anything specific which would unfairly prejudice the defendant's ability to defend each charge.
8. In reaching the decision that the first three incidents will be tried together, the Court has taken into account the fact that evidence of one of the incidents may not be admissible at the trial of the other incidents if they were tried separately. As discussed above, the Court is satisfied that a properly instructed jury will be able to judge the charges on each incident separately and base its verdict on each charge solely on the evidence pertaining to that charge.
It is also noted that the Court reaches the same result regardless of whether the middle sister actually testifies concerning incident number three or not.
9. I do find, however, that the defendant has met his burden with respect to the fourth incident. It appears that none of the three children who will be testifying concerning the first three incidents will testify concerning the fourth incident. The evidence of the first three incidents is not intertwined with the fourth incident. While the four incidents involve similar offenses, it is not at all clear that they rise to the level of a common scheme or plan. It seems to the Court that there is a substantial likelihood that evidence of the first three offenses would not be admissible at the trial of the fourth. The alleged victims of the first three incidents are seven or eight, ten and eleven. Their ages are similar. The child involved in the fourth incident, at age five, is not of a similar age. Apparently there is no physical evidence concerning the fourth incident, and the jury will have to base its judgment to a large extent on its assessment of the credibility of the alleged victim versus the defendant, if he testifies. Under the specific factual circumstances presented here, and depending upon how the evidence unfolds, it is difficult not to conclude that it is likely that a jury, despite a conscientious effort to be scrupulously fair, may allow its assessment of the credibility of the three older girls to carry over and unduly influence the decision on the fourth incident. The Court therefore concludes that there is a reasonable probability that the defendant will be subjected to substantial injustice and unfair prejudice if the fourth incident is not severed.
10. Nonetheless, the Court does agree that inconvenience to the family of the three sisters should be minimized. It is noted that the current trial date, April 3, is during a jury panel's second week. Therefore, it would be possible to go forward with the second trial the next week, April 10, when a new jury could be selected from an entirely new panel. This would presumably enable the family of the sisters to make a single trip for both trials. The Court would also be inclined to look favorably upon a summer scheduling of both trials when the children would not be in school, subject to consideration of any objection by the defendant. However, at this point the Court will defer issues of scheduling to any applications that may be filed by the State or the defendant. In the meantime, the first trial will remain on the calendar for April 3.
11. THEREFORE, Counts 1 through 4 of the indictment shall be tried together and Counts 5 through 7 shall be severed and tried together. The State should notify the defendant within five days as to which trial it intends to proceed with first.
IT IS SO ORDERED. _________________ Resident Judge
oc: Prothonotary cc: Order Distribution