Opinion
Case No. 01-20073-01-CM
March 20, 2002
MEMORANDUM AND ORDER
Defendant Robert Utley was charged with four counts of assault on five corrections officers. Each count pertained to a separate occurrence. Prior to the trial of this matter, defendant moved for severance of the four counts pursuant to Fed.R.Crim.P. 14. The court denied defendant's motion. The defendant was tried and found guilty of two counts (Counts I and III), and not guilty of two counts (Counts II and IV). This matter is before the court on defendant's Motion for New Trial (Doc. 72).
In considering a motion for new trial, the court has broad discretion. The court may grant a new trial "if the interests of justice so require." Fed.R.Crim.P. 33. The court should exercise great caution in granting motions for new trial. United States v. Allen, 554 F.2d 398, 403 (10th Cir. 1977).
Defendant argues that he is entitled to a new trial, claiming that he was prejudiced because the four counts were not severed. Prejudice results only when the evidence is such that a jury cannot compartmentalize it. United States v. Hines, 696 F.2d 722, 732 (10th Cir. 1982). Severance is not required simply because the cumulative effect of evidence of similar misconduct might prejudice the defendant. United States v. Hollis, 971 F.2d 1441, 1457 (10th Cir. 1992). Rather, the defendant must show clear and actual prejudice. United States v. Cardall, 885 F.2d 656, 657 (10th Cir. 1989).
The defendant has failed to demonstrate, and the court finds no indication in the record, that the jury in this case could not compartmentalize the evidence presented at trial. Moreover, it appears to the court that the jury was in fact able to compartmentalize the evidence since the jury convicted the defendant on two counts and acquitted him on the other two. In light of these findings, coupled with the presumption that juries can and will follow the jury instructions they are given, id. at 668, the court denies defendant's Motion for New Trial.
IT IS SO ORDERED.