Opinion
C.A. No.: ID# 990423159
Date Submitted: September 6, 2000
Date Decided: December 21, 2000
UPON DEFENDANT'S MOTION FOR RELIEF FROM PREJUDICIAL JOINDER DENIED
ORDER
On this 2lst day of December 2000, upon consideration of Defendant's Motion for Relief From Prejudicial Joinder the Court finds that:
FACTS
On May 10, 1999, Defendant was indicted on one count of Rape Fourth Degree, two counts of Attempted Rape Fourth Degree, and three counts of Unlawful Sexual Contact Third Degree. Defendant, a physician, is charged with committing the offenses against two female patients at Defendant's medical office. The two alleged victims were allegedly sexually assaulted with in a few weeks of each other, one on April 7, 1999 and the other on April 26, 1999. On July 6, 2000 Defendant filed this Motion for Relief Prejudicial Joinder which the Court has treated as a Motion to Sever. The State requested an extension of time to respond which was granted and the Stated filed its responsive memorandum on August 18, 2000. Defendant filed a response to the State's answering memorandum.
The State submits that the first alleged victim was assaulted during a physical exam and again after the exam in Defendant's office. With regard to the second alleged victim, the State submits that she was assaulted in Defendant's office after an examination. Additionally, the State asserts that Defendant made sexually explicit and lewd comments to each alleged victim while in Defendant's office after each of the physical examinations.
Defendant argues that he will be prejudiced by joinder of the offenses because the jury would be: i) likely to cumulate evidence of the different offenses; ii) would be likely to infer a general criminal disposition of Defendant and find guilt as to the other crime when a conviction might not be otherwise be obtained; and in) subject the defendant to embarrassment or confusion in presenting different defenses. Defendant argues that the likelihood of prejudice outweighs the interest of judicial economy. Defendant further submits that "[i]t is arguable, without refutation, that no character trait is more susceptible to an interpretation of a predisposition than is that trait of sexual perversion." Defendant argues that it is unreasonable to believe that the jury will be capable of not thinking of Defendant as "Dr. Pervert" after hearing the State's opening statement that two patients proclaimed that Defendant sexually assaulted them. Defendant contends that there is a danger of confusing the jury because he will be presenting different defense strategies for each crime charged. With regard to the first alleged victim, Defendant asserts that he did touch her in an inappropriate sexual manner in his office, however the touching was consensual. With respect to the second victim, Defendant maintains that all touching was appropriate to the treatment rendered and in no way was sexual in nature. Defendant argues that if the jury is permitted to hear Defendant admit to a consensual sexual touching, and a description of the touching, it will suggest a proclivity to abandon Defendant's role as a physician with a patient that is likely to prevent the jury from viewing the evidence separately as it pertains to each alleged victim. Furthermore, Defendant argues that a curative jury instruction will not overcome the affect of prejudicial material. Finally, Defendant argues contrary to the State's contention that severance is unnecessary because any evidence the State would seek admitted under D.R.E. 404(b) should not be admitted once the Court proceeds with its analysis pursuant to D.R.E. 403 since the danger of unfair prejudice to Defendant would outweigh its probative value.
DECISION
Pursuant to Superior Court Criminal Rule 8, joinder of offenses in a single indictment is appropriate "if the offenses charged are of the same or similar character or based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." Rule 8 is to be read in conjunction With Superior Court Criminal Rule 14 which provides that if it appears that a defendant will be prejudiced by a joinder of offenses the court may order severance. A defendant may suffer prejudice from joinder of offenses when it appears that: (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 with regard to the other crimes; and (3) the defendant may be subject to embarrassment or confusion in presenting different and separate defenses to different charges.
Super. Ct. Crim. R. 8.
Super Ct. Crim. R. 14.
State v. McKay, Del. Super., 382 A.2d 260, 262 (1978).
"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." Notwithstanding that D.R.E. 404(b) does not specifically provide for modus operandi, the Delaware Supreme Court held that the stated purposes are "illustrative not exclusive."
Id. at 262 (citing Brown v. State, Del. Supr., 310 A.2d 870 (1973).
Getz v. State, Del. Supr., 538 A.2d 726, 730 (1988).
The charges that Defendant faces are of the same manner or similar character and can be said to demonstrate a common scheme or plan.. All offenses were allegedly committed against each patient, in Defendant's office and/or examination room, within weeks of each other, involving sexual contact. Each alleged victim went to Defendant complaining of back pain and seeking treatment. Each alleged victim complains that Defendant tried to penetrate her vagina with his finger. Each alleged victim complains that Defendant tried to touch her breast; one victim alleges Defendant tried to touch her breast with his hand only, while the other complains he tried to touch her breast with his mouth and hand. Given the circumstances of each alleged incident, i.e., each alleged instance happening in Defendant's office, each alleged victim seeking medical treatment for back pain, each describing almost identical scenarios of alleged unlawful sexual contact, the Court finds there is sufficient evidence that demonstrates the existence of a common scheme. These incidents display the same general nature and provide evidence of a modus operandi.
Additionally, Defendant is unable to demonstrate substantial prejudice will result from denying severance in that the evidence of each offense would be admissible pursuant to D.R.E. 404(b). Although reciprocal admissibility of separate offenses is not a prerequisite of joinder, it is a pertinent factor for the Court to consider. There is no prejudicial effect in having a joint trial, if evidence of one crime will be admissible in the trial of another crime. Getz v. State provides the guideline in determining admissibility of other crimes. Generally, evidence of one crime is admissible in the trial of another crime when it has "independent logical relevance" and its probative value outweighs prejudice to the defendant.
D.R.E 404(b) states that: Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident.
Id.
Bates v. State, Del. Supr., 386 A.2d 1139, 1142 (citing Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1988)).
Getz v. State, Del. Supr., 538 A.2d 726 (1988).
Getz, 538 A.2d at 730; D.R.E. 404(b).
Defendant contends that he will be subject to confusion in trying to present different defenses as to each charge. As to one alleged victim Defendant contends that although he participated in inappropriate conduct with the victim it was consensual. With regard to the other alleged victim, Defendant disclaims any inappropriate conduct, sexual in nature or otherwise. In response to the State's contention that the evidence in one crime will be admitted in the other pursuant to D.R.E. 404(b), Defendant argues that it would be inappropriate to pursuant to D.R.E. 403. Defendant asserts that the danger of unfair prejudice greatly outweighs the probative value. Defendant contends that in sexual matters human nature dictates that the jury will assume a certain criminal disposition upon hearing the testimony of the two alleged victims. Defendant further contends that in this case where a doctor is being charged with unlawful sexual behavior by two alleged victims a curative jury instruction will not be suffice to overcome the danger of unfair prejudice.
Even if severed, the State intends to introduce evidence of the other crime into evidence pursuant to D.R.E. 404(b) to show a common scheme or plan and to show Defendant's intent. As aforementioned, the Court finds that the facts as alleged demonstrate a common scheme or plan. With regard to intent, Defendant through his own arguments that he will be presenting a defense of consent, places his intent into issue. D.R.E. 404(b) clearly provides for admitting evidence of similar incidents to show intent. However, Defendant is correct in that the Court needs to balance the danger of unfair prejudice in admitting the evidence against its probative value. Defendant is of the opinion that the danger of unfair prejudice outweighs the probative value of admitting one crime into the trial of another because the charges are of sexual nature. Defendant strongly contends that in "sexual matters the danger or predisposition inference reaches "critical mass."' Nevertheless, Defendant fails to acknowledge that the Court has denied severance in a number of cases where a defendant has been charged with multiple sexual crimes. In State v. Collins the Court denied severance because evidence would be reciprocally admitted where the defendant was charged with sixteen counts of unlawful sexual conduct against three minor brothers over a span of two years. In State v. Siple the Court denied severance where the Defendant was charged with thirty-two counts, nine of which were unlawful sexual intercourse, also finding evidence would be reciprocally admitted in each trial pursuant to D.R.E. 404(b). In State v. Mayfield the Court denied severance where the indictment charged the defendant with eight counts including six counts for unlawful sexual contact against five .grade school age boys. In the case sub judice, the Court finds that if severance were to be granted, the Court would reciprocally admit evidence relating to each of the incidents in each trial pursuant to D.R.E. 404(b). The Court would find that the risk of unfair prejudice does not outweigh the probative value of reciprocally admitting the incidents for the purpose of showing common scheme or plan and intent.
State v. Collins, Del. Super., Cr.A. No. 9507008332, Barron, J. (Sept. 11, 1997) (ORDER).
Id. (holding that pursuant to Getz even if severance granted the Court would admit the evidence of the alleged offenses involving two of the siblings at a trial of the third for the purpose of showing common scheme or plan/modus operandi).
State v. Siple, Del. Super., Cr.A. No. IN94-12-1641 et al., Cooch, J. (Jul. 19, 1996) (Mem. Op.).
Id. (holding that pursuant to D.R.E. 404(b) evidence relating to each of the occurrences would be reciprocally admissible for the purpose of showing a common scheme).
State v. Mayfield, Cr.A. Nos. IN94-03-1312 1319, Toliver, J. (Jul. 5, 1995) (ORDER).
Id. (holding that the States need for a modus operandi is significantly more compelling in this sex crime case).
CONCLUSION
Consequentially in finding that the Court would reciprocally admit the evidence relating to each alleged victim in separate trials, Defendant cannot be said to be substantially prejudiced by a joint trial. The Court will take care to use proper instructions to the jury that it not cumulate the evidence and that it must consider each charge separately in order minimize jury confusion and accumulation. Instructions of this nature will avoid prejudice to Defendant. In addition, the charge will eliminate the potential "spillover" effect resulting from a trial of all charges. Judicial economy dictates that severance should be denied in this case, since reciprocal admissibility would apply in the event of severance.
Pandiscio v. State, Del. Supr. No. 163, 1990, Horsey, J. (Oct. 9, 1991) (ORDER) (holding that a court's carefully assembled jury instructions can negate a claim of jury confusion).
2 Wayne R. Lafave and Jerold H. Isreal, Criminal Procedure § 17.1(e), at 358 (1984).
Skinner v. State, Del. Supr. 575 A.2d 1108, 1120 (1990).
For the foregoing reasons Defendant's Motion for Relief from Prejudicial Joinder is hereby DENIED.