Opinion
I.D. No. 0610006478.
Submitted: October 12, 2007.
Decided: November 5, 2007.
Upon Defendant's Motion to Sever. Denied.
Gregory R. Babowal, Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
Paul S. Swierzbinski, Esquire, Office of the Public Defender, Dover, Delaware; attorneys for the Defendant.
ORDER
Upon consideration of the Defendant's motion to sever, the State's response and the record in this case, it appears that:
1. In the case sub judice, Defendant Wayne O. Revel, Jr. (Defendant) requests that his charges be severed because of the number of charges and an alleged outstanding question of identity. The Defendant is charged in a five-count Indictment, alleging various offenses that occurred on different dates against different alleged victims. However, the charges are based on three robberies of banks (two located in New Castle County, one located in Kent County), two of which were committed while wearing a disguise, and all of which were committed during a period of seven days (September 19, 22, and 25, 2006). Defendant was first indicted in New Castle County on December 4, 2006 and then re-indicted in Kent County on May 7, 2007.
2. Defendant is charged with Count 1, Robbery in the Second Degree and Count 2, Wearing a Disguise During Commission of a Felony as set forth in Count 1. In addition, in Count 3 he is charged with Robbery in the Second Degree along with Wearing a Disguise During Commission of a Felony in Count 4. He is also charged with Attempted Robbery in Count 5.
3. The Defendant argues in support of his motion that the basis for the State to proceed is that the Defendant was using a common scheme, design, or plan to perpetrate these offenses. Since the State did not charge the Defendant with wearing a disguise in conjunction with Count 5, Attempted Robbery, the State cannot contend that there is a common scheme and Count 5 must be severed. Defendant also contends that there must be three separate trials, one for Counts 1 and 2; one for Counts 3 and 4, and a separate trial for Count 5.
4. In response, the State contends that all of the charged offenses are of the same or similar character or general nature. The State contends that the description of the individual committing the robberies or attempted robbery is similar in all three in that he has a white baseball cap with a New York Yankees logo. In all three instances the individual put forth a note on the back of a teller sheet saying, "give me all your money, no dye packs." Defendant was found with the white baseball cap, a substantial amount of cash, and the notes were all recovered at the scenes. The State concludes that there is sufficient commonality of design and purpose present to warrant non-severance.
5. Superior Court Criminal Rule 14 governs a motion for severance. 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. The burden of demonstrating prejudice from the denial of a motion to sever rests with the Defendant.
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 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. 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 of confessions made by the defendants which the state intends to introduce in evidence at the trial.
Bates v. State, 386 A.2d 1139 (Del. 1978); Lampkins v. State, 465 A.2d 785 (Del. 1983).
Burton v. State, 149 A.2d 337 (Del. 1959).
Bates, supra. note 2.
Id.
State v. McKay, 382 A.2d 260 (Del. 1969).
Id.
Bates, supra note 2; State v. Lopez, 1990 WL91087 (Del.Super.).
6. It is clear that we have two separate robberies and one attempted robbery. The evidence to be submitted by the State is similar in nature and the conduct and modus operandi of the Defendant is similar in all three. The use of the baseball cap and the notes requiring the teller to surrender all the money without dye packs are similar. It is fairly clear that the two charges of wearing a disguise during the commission of a felony (Counts 2 and 4) are intertwined with the charges of robbery second degree (Counts 1 and 3). There is no prejudice to the Defendant in leaving these counts tried together as opposed to having them tried separately. The Defendant's specific severance request that Counts 1 and 2 and Counts 3 and 4 be severed would not be appropriate.
7. The Court also finds that the two cases cited by the Defendant, State v. McKay and State v. Flagg, are distinguishable from this case. The time differential and eight separate incidents over the course of more than one month distinguishes McKay and the sheer complexity of Flagg makes these cases unhelpful. I find State v. Fortt more helpful in this regard. In that case, the defendant was charged with two robberies and attempted robbery that occurred over a four day period, with companion firearm charges relating to each incident. The court held that the defendant was not entitled to three separate trials for each respective incident. In each of the charged robberies, the defendant was identified as approaching with a gun and a backpack (in one robbery and the attempted robbery) and demanding money. In the present case, over a seven day period, for each event, an even stronger similarity occurred — a person wearing a disguise, a baseball cap pulled low, handed a note demanding money. This represents a common scheme or offense of a similar character based on the same act or two or more acts connected together.
382 A.2d 260 (Del.Super.Ct. 1978).
739 A.2d 797 (Del.Super.Ct. 1999).
767 A.2d 799 (Del. 2001).
8. Defendant only alleges hypothetical prejudice that the jury may be confused by the evidence or that it would accumulate evidence improperly against him. This is insufficient.
Id.
9. In viewing this matter in light of the applicable law, the Court finds that substantial injustice has not been demonstrated that would warrant a severance of any count.
IT IS SO ORDERED.