Opinion
I.D. No. 0908020161.
Submitted: June 2, 2010.
Decided: August 9, 2010.
On Defendant's Motion for Severance of Charges. DENIED.
Caterina Gatto, Esquire, Deputy Attorney General, Wilmington, Delaware, Attorney for the State.
Robert M. Goff, Esquire, Assistant Public Defender, Wilmington, Delaware, Attorney for Defendant.
Dear Counsel:
INTRODUCTION
Defendant, Pedro Rivera, was charged with numerous crimes arising from with a string of burglaries committed in New Castle County in August 2009. The initial judicial proceedings related to these crimes resulted in a mistrial on March 24, 2010. The only issues presented by this motion for severance are (1) whether the charges related to Defendant's August 14, 2009 burglary at 2226 Lancashire Drive and Defendant's August 21, 2009 burglary at 2021 Floral Drive were properly joined in the indictment when the crimes involved a similar course of conduct and occurred within a short period of time; and, (2) if this Court finds that the charges were otherwise properly joined, whether Defendant has demonstrated sufficient prejudice to merit severance pursuant to Superior Court Criminal Rule 14.
Defendant did not file a Motion to Sever his criminal charges prior to the original proceedings.
This Court has determined that the charges were properly joined and that Defendant has not shown sufficient prejudice necessary to compel the Court to sever these charges. The objective of promoting judicial efficiency and economy is not outweighed by Defendant's claim of perceived prejudice. Accordingly, Defendant's motion for severance is DENIED.
FACTS and PROCEDURAL HISTORY
Defendant is currently charged with two counts of Burglary Second Degree, two counts of Felony Theft, two counts of Criminal Mischief, and two counts of Conspiracy Second Degree stemming from burglaries that took place in August 2009. Defendant allegedly was driven to the residences in a black Ford Escape during daylight hours while the victims were not at home. In committing the burglaries, Defendant allegedly kicked down the front door of the residences and took small electronic items and jewelry. The burglaries took place within a one week period.
Ans. Br. at ¶ 1. Several other charges originally brought against Defendant were nolle prossed on March 24, 2010.
Id. at ¶ 5.
Id.
Id.
The original trial that was scheduled for March 23, 2010 resulted in a mistrial.
PARTIES' CONTENTIONS
Defendant has now filed a motion for severance arguing that the August 14, 2009 and August 21, 2009 burglaries were not properly joined because they were not of a same or similar character and were not connected by a common scheme or plan pursuant to Superior Court Criminal Rule 8.
Op. Br. at ¶ 1.
Defendant also contends that severance under Superior Court Criminal Rule 14 is required because (1) "there is insufficient commonality of evidence between the two sets of charges"; (2) the State's case for the August 14 burglary is much weaker than its case for the August 21 burglary, and Defendant would be unfairly prejudiced from the joinder of a weaker case with a stronger case; (3) if the two cases had not been indicted together, the evidence of one burglary would not have been admissible in the trial of the other burglary; and, (4) "the disparity in quantity and quality of evidence between the two burglaries[] will hamper . . . the defendant's ability to respond to the evidence in an effective manner in front of a single jury."
Id. at ¶ 2.
In response, the State contends that joinder of information is appropriate in this case because the facts surrounding the crimes are evidence of a modus operandi and constitute a common scheme pursuant to Rule 8. The State argues that the purpose of Rule 8 is to promote judicial efficiency and economy and contends that Defendant has not shown sufficient prejudice to compel the Court to sever the offenses pursuant to Rule 14.
Ans. Br. at ¶ 5.
Id. at ¶ 6.
DISCUSSION
The only issues before this Court are (1) whether Defendant's two burglary charges were properly joined in the indictment when the crimes involved a similar course of conduct and occurred within a short period of time; and, (2) if this Court finds that the charges were otherwise properly joined, whether Defendant has demonstrated sufficient prejudice to merit severance pursuant to Superior Court Criminal Rule 14.In a motion for severance, the burden of proof rests with the defendant to establish sufficient prejudice to justify severance. The prejudice shown must be more than a mere hypothetical prejudice.
Bates v. State, 386 A.2d 1139, 1141 (Del. 1978).
Id. at 1142.
Superior Court Criminal Rule 8(a) states that "two or more offenses may be charged in the same indictment 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." This rule is intended to promote judicial economy and efficiency. "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 span of time, it is proper to try the cases together."
Super. Ct. Crim. R. 8(a).
Mayer v. State, 320 A.2d 713, 717 (Del. 1974).
Younger v. State, 496 A.2d 546, 550 (Del. 1985).
Here, Defendant's actions on August 14 and August 21 are evidence of a common scheme and demonstrate a modus operandi. On both occasions, Defendant was driven to the location of the robberies in a black Ford Escape, entered the residences through kicked-in doors after verifying that no occupants were present and proceeded to remove jewelry and electronics from the residences. Additionally, the residences are located less than a mile from one another, and the burglaries were committed seven days apart. Accordingly, this Court holds that joinder was proper pursuant to Rule 8(a) because "the offenses [were] of the same general character, involve[d] a similar course of conduct, and [were] alleged to have occurred within a relatively short span of time[.]"
Id.
Now that this Court has concluded that joinder was proper pursuant to Rule 8(a), this Court must also evaluate whether severance would be proper pursuant to Rule 14, which states: "[i]f it appears that a defendant or the state is prejudiced by a joinder of offenses . . . the court may order an election or separate trials of counts."
Super. Ct. Crim. R. 14.
The Delaware Supreme Court has recognized three forms of prejudice that must be evaluated when determining whether severance is proper: "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."
Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988).
Here, Defendant has not shown sufficient prejudice to warrant severance pursuant to Rule 14. The evidence in the present case is not varied in type or nature such that it would be confusing to a jury. The Delaware Supreme Court has also recognized that simply because a case has multiple counts, it does not automatically mean that a jury will infer that a defendant has a general criminal disposition. Although Defendant may be correct that one case is weaker than the other, this does not mean that a jury will cumulate the evidence against Defendant because it is the role of the jury to evaluate the evidence of each burglary and determine whether Defendant is guilty of both burglaries beyond a reasonable doubt. The jury will be instructed that the defendant is charged with separate acts and that it must consider the evidence separately and independently as to each charge.
Defendant cites no cases to substantiate why his motion to sever should be granted.
Bates v. State, 386 A.2d 1139 (Del. 1978).
Defendant has failed to establish either improper joinder or sufficient prejudice to overcome joinder. Accordingly, Defendant's motion to sever is DENIED.
IT IS SO ORDERED.