Opinion
Def. ID# 0001018332
Decided: November 29, 2000
Dear Counsel:
This is the Court's decision on defendant Nancy G. King's Motion for Relief from Prejudicial Joinder. The Sussex County Grand Jury indicted King on two counts of murder in the second degree on February 14, 2000. Count one alleges that King recklessly caused the death of Michelle Barnett in such a manner as to violate 11 Del. C. § 635(1). Count two alleges that King recklessly caused the death of Corey Henley in such a manner as to violate 11 Del. C. § 635(1). King filed a Motion for Relief from Prejudicial Joinder on May 24, 2000, seeking to sever the two counts. The Court held hearings on this motion, and others filed by King, on July 27, 2000, and September 1, 2000. The State and King then submitted post-hearing briefs.
Defendant Nancy G. King, formerly known as Nancy Barnett, is hereinafter referred to as "King."
BACKGROUND
This case centers around two children who died over 24 years ago while they were being cared for by King. The two children were Michelle Barnett and Corey Henley. Michelle Barnett was King's daughter. She was five months old when she died on June 22. 1976. King told the authorities at the time that she found Michelle in her crib and that she was not breathing. Corey Henley was the son of Michael and Robin Henley. who were two of King's friends. He was seven months old when he died on December 27, 1976. King was caring for him while his parents were out. King told the authorities at the time that she found Corey in his crib and that he was not breathing. The deaths of Michelle Barnett and Corey Henley were not, when they were first reported, linked together. The Medical Examiner originally determined that the children died from Sudden Infant Death Syndrome ("SIDS"). No criminal investigation was pursued at the time because of the Medical Examiner's findings.
No criminal investigation into the deaths of these two children would have, in all likelihood, ever been pursued if King had not called the Ocean View, Delaware, Police Department on May 4, 1999. During this call, and in subsequent conversations with various law enforcement officers in Kentucky and Delaware, King made a number of incriminating statements. Regarding Michelle Barnett, King said that she placed a pillow on top of Michelle's face, laid on top of the pillow and then went to sleep. When King woke up, she put Michelle, who was dead, in her crib and went outside to talk to neighbors before calling for help. Regarding Corey Henley, King said Corey was crying and that she was trying to get him to stop. King then went to sleep in the same bed with him. When she woke up, she found Corey, who was dead, with a pillow over his face. King also told the authorities, among other things, that "I killed those kids and I can't live with it anymore."
King was living in Kentucky at the time.
JOINDER AND SEVERANCE ANALYSIS
The requirements for the joinder and severance of charges in an indictment are set forth in Superior Court Criminal Rules 3(a) and 14. Rule 8(a) allows two or more offenses to be charged in the same indictment in a separate count for each offense if the offenses 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. The purpose of this rule is to promote judicial efficiency and economy, provided that the realization of these objectives is consistent with the rights of the accused. The two counts in the indictment against King are certainly of the "same or similar character." Both counts allege murder in the second degree of two young children who were under King's care at the time of their deaths. Both children allegedly died by suffocation while they were sleeping with King. Both children were found dead by King with pillows over their faces. Indeed, King does not argue that the two counts are dissimilar. Where the offenses are of the same general character, involve a similar course of conduct and are alleged to have occurred within a relatively short period of time, it is proper to try the offenses together. The mere fact that the crimes were separate, committed against different individuals with a lapse of time in between them, does not require severance Michelle Barnett and Corey Henley died only six months apart. Therefore, given the similar nature of the crimes, it was appropriate for the State to join them in one indictment in the first place under Rule 8(a).
Mayer v. State, Del. Supr., 320 A.2d 713, 717 (1974).
Younger v. State, Del. Supr., 496 A.2d 546, 550(1985)
I.d.
However, Rule 8(a) must be read in conjunction with Rule 14, which provides that the Court may order separate trials of the joined counts if it appears that the defendant will be prejudiced by the joinder of the offenses. Where the defendant shows that there is a reasonable probability that substantial injustice would result from the joinder of offenses, then the Court may not deny a motion for severance. The types of prejudice that the defendant may face include:(1) cumulation by the jury of evidence of the various crimes charged, finding guilt when, if considered separately, it would not so find;(2) inference by the jury of a general criminal disposition on the part of the defendant, leading to a finding of guilt on one or some comes due to evidence of another crime; and(3) embarrassment or confusion on the part of the defendant in presenting different and separate defenses to different charges. King argues that she would suffer all three forms of prejudice if the two counts are not severed.
Howard v. State, Del. Supr., 704 A.2d 278, 280 (1998).
State v. Mckay, Del. Super., 382 A.2d 260, 262 (1978).
1. Cumulation of the evidence
King argues that, by virtue of being charged with the deaths of two young children, the specter of being viewed by the jury as a "baby killer" is manifest. The State argues that this is a relatively simple and straightforward case, consisting of only two counts and two victims. The evidence against King, according to the State, will consist primarily of nearly identical medical evidence about the deaths of the two children and King's own statements. The medical evidence will include testimony that the physical characteristics of a SIDS death and a soft suffocation death are identical and cannot be distinguished without a close examination of the scene and or a confession. King's statements are, if believed, very incriminating. Some of King's statements refer only to how Michelle or Corey died, while others refer to how both children died. In any event, given the nature and specific facts of this case, there is not so much evidence and it is not so varied in type and nature that the jury is likely to accumulate it against King. This distinguishes this case from others where the Court has ordered the severance of charges because of the probability that the jury would cumulate the evidence against the defendant. The Court is satisfied that an instruction to the jury members directing them to consider (1) liability for each offense separately, and (2) that the evidence admitted for one offense is not to be used in determining guilt for the other is sufficient, under the particular facts of this case, to eliminate any "spillover" effect resulting from a joint trial. 2. General Criminal Disposition
State v. McKay., Del. Super. 382 A.2d 260 (197S); Howard v. State, Del. Supr., 704 A.2d 278 (1998).
Skinner V. State, Del. Supr., 575 A.2d 1108, 1120 (1990).
King again argues that, by virtue of being charged with the deaths of two children, the jury will find that "once a baby killer, always a baby killer." The State argues that there is no more risk of a jury inferring that King has a general criminal disposition than in the case of a man who stands accused of viciously raping several women. The State's argument is an accurate statement of the law. The Delaware Supreme Court has repeatedly recognized that simply because a case has multiple counts and multiple victims it does not automatically mean that a jury will infer that the defendant has a general criminal disposition. While this case is of a very serious nature, it does only involve two counts and two victims. As such, it is no different than other serious cases where severance was not granted.
Bates v. State, Del. Supr., 386 A.2d 1139, 1141 (1978); Younger v. State, Del. Supr., 496 A.2d 546, 550 (1985).
Id.
3. Separate Defenses
King argues that she will present differing defenses to the two counts and that the jury may be confused by this. As to the death of Michelle Barnett, King may argue that she was. at worst, only criminally negligent. Her defense will be that she put a pillow over Michelle's face to keep her quiet, not to kill her. As to the death of Corey Henley, King may argue that it was an accident. Her defense will be that she went to sleep with Corey Henley and that when she woke up he was dead. The State argues that, in the face of the incriminating statements made by King with respect to the death of Corey Henley, King will not be able to argue that Corey Henley's death was accidental. To continue to argue this, the State adds, simply flies in the face of reason. The State suspects that King may now instead argue that she simply dreamed that she killed the two children. This may well be the case. King did tell the Delaware State Police that she dreamed that she killed the two children. King has also told the State that she intends to call an expert witness who will testify that a mother will, following the SIDS death of her child. react with extremely grave depression and accuse herself of having killed her child. Regardless of which defenses, if any, King raises, the Court does not find that the jury will be confused by them. The defenses are simply not confusing or inconsistent with each other in any way.
RECIPROCAL ADMISSIBILITY
Although reciprocal admissibility is not a prerequisite for joinder, it is a factor to be considered. Where evidence concerning one crime would be admissible in the trial of another crime, there is no prejudicial effect to having a joint trial. Evidence of one crime is inadmissable to prove a general disposition to commit another crime, even if the crime is of the same or similar nature. However, evidence of other offenses is admissible when it has independent logical relevance" and its probative value outweighs its prejudicial effect. The State argues that the evidence in this case is "so inextricably intertwined so as to make proof of one crime impossible without proof of the other." This does appear to be the case. Much of the evidence in this case consists of King's statements linking her to the deaths of both children. These statements are of such a nature that they cannot be made to apply to only one child. For example, King said, "I killed those kids and I can't live with it anymore." In order for the jury to understand this statement, the State will have to offer evidence about the deaths of both children. This statement also has "independent logical relevance" because it can be used to show that the deaths of these children were not accidents. Moreover, its probative value is not outweighed by the danger of unfair prejudice to King because it is her own statement.
Skinner v. State, Del. Supr., 575 A.2d 1.108, 1118 (1990).
Steckel v. State, Del. Supr., 711 A.2d 5, 9 (1993).
Getz v. State, Del. Supr., 538 A.2d 726, 730 (1988).
Id. at 734.
D.R.E. 403
CONCLUSION
The decision to grant or deny a motion for severance rests within the sound discretion of the Court. The defendant has the burden of establishing that the joinder of the charges will be prejudicial. A hypothetical assertion of prejudice is not enough. For the reasons set forth herein, the Court finds that there is not a reasonable probability that King will suffer substantial injustice if the two counts of murder in the second degree are tried at one time.
Wiest v. State, Del Supr., 542 A.2d 1193, 1195(1988).
Id.
Bates v. State, Del. Supr., 386 A.2d 1139 (1978).
IT IS SO ORDERED.