Summary
denying motion to sever charges because the similarities between the six incidents were sufficient evidence under D.R.E. 404(b) to demonstrate common scheme or plan
Summary of this case from State v. McCraryOpinion
I.D. No. 0607017802.
Submitted: March 12, 2007.
Decided: March 23, 2007.
On Defendant's "Motion for Severance of Counts." DENIED.
Christina M. Showalter, Esquire, Deputy Attorney General, Department of Justice, Wilmington, Delaware.
Eugene J. Maurer, Jr., Esquire, Wilmington, Delaware.
Dear Counsel:
Defendant is charged with six counts of Robbery First Degree, five counts of Attempted Robbery First Degree, six counts of Possession of a Firearm During a Commission of a Felony, six counts of Wearing a Disguise, and one count of Assault Second Degree. All of these charges arise out of six separate incidents that allegedly took place between May 6, 2006 and July 8, 2006. Before the Court is Defendant's motion to "sever all counts in the Indictment from each other and allow for a separate trial with regard to each alleged incident." Because the Court finds that all of the charged offenses are of the same or similar character and that concerns for judicial economy outweigh any prejudice to Defendant, Defendant's motion is DENIED.
Def. Mot. at ¶ 13.
I. FACTUAL BACKGROUND
The following facts are summarized from the affidavit of probable cause in this case (upon which Defendant relies and which was attached to his motion). The first incident took place on May 6, 2006 at about 9:15 p.m. when two male suspects (one white, one black) robbed a Mobil gas station at 1607 Philadelphia Pike at gunpoint. The white male was described as 22 to 30 years old, 5 feet 9 inches, 160 pounds, thin build, and wearing a black ski mask and gloves. A witness saw the suspects leave in a dark green vehicle with a Delaware registration of PC199041. A DMV check of that license plate number returned to a 1997 Chevy Malibu registered to Defendant.
The next incident occurred at that same Mobil gas station on June 22, 2006 at about 10:21 p.m. Two armed suspects were described by the victim as black males, both 5 feet 10 inches, 170 pounds, wearing black ski masks. The suspects attempted to gain entry into the store by pulling on the doors, but the doors were locked.
Subsequently, at about 10:35 p.m. that same night, two male suspects robbed a Getty Gas station at 3506 Philadelphia Pike. One of the suspects was described as white, 5 feet 10 inches, 170-180 pounds, thin build, wearing a black ski mask with a single oval opening for the eyes and black gloves. That suspect was armed and ordered the victims onto the floor. He also told the victims that he and the other suspect were "hungry . . . and looking for something to eat. . . ." The other suspect was described as a black male, 5 feet 10 inches, between 170 to 180 pounds, with a t-shirt pulled up over his face. The suspects were seen leaving the gas station in a dark green vehicle.
On July 3, 2006 at 12:33 a.m. two white males robbed a Blockbuster video store in Eden Square Shopping Center at gunpoint. Both victims were forced to lie on the floor. One of the suspects did all the talking and told the victim "we are doing this for food . . . we're homeless . . . we need money . . . we do this all the time . . . we're poor kids . . . we're going to get some food . . . this is how we eat. . . ." This suspect was described as about 5 feet 8 inches, 150- 180 pounds, thin build, 25 or younger, wearing a dark black mask and black gloves.
The next robbery occurred on July 6, 2006 at 5:30 a.m. at the Library News and Tobacco store at 5998 Kirkwood Highway. There was only one suspect who was described as a white male, 20 to 30 years old, 5 feet 8 inches to 5 feet 10 inches, wearing a white hoodie, a black ski mask, and black gloves. The suspect ordered the victim to lie on the ground until he was gone. A small four-door green car was seen fleeing the area immediately after the robbery.
The final incident took place on July 8, 2006 at 10:26 p.m. at a Papa John's pizza store at 2114 Marsh Road. Three suspects demanded money and told the victims to lie on the ground. The suspects were one white male and two black males. The white male was armed with a handgun. He discharged one round from the handgun during an altercation with one of the victims. He was described as 20 to 25 years old, between 6 feet and 6 feet 2 inches, 150 to 160 pounds, thin build, wearing a dark ski mask. The suspects fled without taking any money.
On July 20, 2006, Defendant sold a .45 caliber gun at Miller's Gun Store. The Delaware State Police seized the gun the next day. After test firing the gun, the marks found on the casings test fired from the gun and the marks found on the casings at the scene of the Papa John's robbery appeared to be the same.
A search of Defendant's residence and car subsequently uncovered multiple rounds of ammunition, a gun clearing kit, two pairs of black leather gloves, a photo of Papa John's, a white hoodie, a jacket with Defendant's name covered in tape, a hospital wristband and paperwork from July 9th for Defendant, and a receipt from Miller's Gun Store. In addition, a subpoena of Defendant's cell phone record showed that the same three phone numbers were called immediately before and after each robbery.
II. THE PARTIES' CONTENTIONS
The Defendant contends that the separate incidents are not so similar as to establish a modus operandi. Specifically, Defendant points to the fact that some of the robberies allegedly involved a white male and a black male, one involved two white males, and one involved one white male and two black males according to witnesses. Furthermore, Defendant notes that the number of participants in the robberies varied from one to three.
Although Defendant concedes that the counts are properly joined pursuant to Superior Court Criminal Rule 8, he claims that he would "suffer extreme prejudice" if all the counts are tried together, and therefore that the counts should be severed pursuant to Superior Court Criminal Rule 14. Because the State has stronger evidence against Defendant with regard the final July 8, 2006 robbery, Defendant fears that the evidence from that incident will "spill over to create stronger cases" for the State on the remaining counts. Without the ballistics evidence from the final robbery, Defendant contends that the rest of the State's case would not be able to withstand a motion for judgment of acquittal. Consequently, Defendant argues that joining all six of the incidents "will create confusion among the jury and render it extremely unlikely that the jury will able to resist the cumulative effect of the evidence linking the Defendant to the final charge."
In response, the State claims that all of the charges demonstrate a common scheme or plan. In particular, the State notes that all of the offenses occurred within eight weeks, they all occurred either when the establishment was just closing or just opening, and they all took place near where Defendant was living at the time. A few witnesses noticed a dark green car, which was later determined to be registered to Defendant, in the vicinity of the robberies. Additionally, witnesses from the various locations described the robber as wearing a black ski mask with oval cut out eyes and gloves. In two instances, the robber told the victims that the crimes were being committed because he needed food to eat. Furthermore, the same three phone numbers were dialed from Defendant's cell phone immediately before and after each robbery.
In addition, the State contends that Defendant has not met his burden of demonstrating substantial prejudice. The State also asserts that any concern that the jury may improperly cumulate the evidence can be addressed by a proper jury instruction. Moreover, the State claims that even if the charges were severed, evidence from one robbery would be admissible in the other trials pursuant to Delaware Rule of Evidence 404(b).
III. DISCUSSION
Superior Court Criminal Rule 8 permits the joinder of offenses if the offenses charged are of the same or similar character or are based on two or more transactions connected together or constituting parts of a common scheme or plan. However, Rule 8 must be read in conjunction with Rule 14 which states that if a defendant is prejudiced by the joinder of offenses, the Court may order separate trials on the various counts. The burden is on the defendant to demonstrate prejudice from a denial of a motion to sever; mere hypothetical prejudice does not suffice. Whether to grant or deny severance is within the discretion of the Court.
Bates v. State, 386 A.2d 1139, 1142 (Del. 1978).
Id. at 1141.
Therefore, if the Court finds that the charged offenses are of the same or similar character, it must then determine whether the Defendant would be prejudiced by the joinder of the various charges in the indictment. A defendant might suffer prejudice from joinder because: (1) a jury may improperly infer a general criminal disposition on the part of the defendant from the multiplicity of charges; (2) a jury may accumulate evidence presented on all offenses charged in order to justify a finding of guilt of particular offenses; or (3) the defendant may be subject to embarrassment or confusion in attempting to present different defenses to different charges. On the other hand, it has been stated that 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. The test for determining whether Defendant has met his burden of showing prejudice is whether joinder is so manifestly prejudicial that it outweighs the dominant concern with judicial economy and compels the Court's discretion to sever. In his motion, Defendant seeks severance of each robbery from all the other robberies, in effect asking for six separate trials.
State v. McKay, 382 A.2d 260, 262 (Del. 1978).
Id. (citing Brown v. State, 310 A.2d 870 (Del. 1973)).
State v. Howard, 1996 WL 190045, at *4 (Del.Super.).
The various charges in the indictment are all of the same or similar character. The six incidents occurred within two months. All of them took place either at opening or closing time of the store. Geographically, they all took place relatively near where Defendant was living at that time. One of the stores was targeted twice. The main suspect in all of the incidents was consistently described as between 150 and 180 pounds, slightly under six feet and thinly built. He also always wore a black ski mask and black gloves. Twice he told the victims that he needed food because he was hungry. All of the robberies occurred at gunpoint and four times the victims described being forced to lie on the ground. The same three phone numbers were dialed from Defendant's cell phone before and after each robbery. A dark green vehicle was spotted at three of the six incidents. These similarities between the six incidents are sufficient evidence to demonstrate a common scheme or plan. In fact, Defendant concedes that all the counts of the indictment are properly joined pursuant to Rule 8, but asserts "extreme prejudice" if severance is not granted.
Having determined that the offenses are of the same or similar character, the Court must next consider whether Defendant has demonstrated prejudice sufficient to warrant severance pursuant to Rule 14. Defendant's main contention is that he will be prejudiced by joinder of all the charges because the State has a stronger case against Defendant with regard to the final robbery as compared to the other charges. However, "[i]t must be remembered that a defendant is not entitled to severance merely because he might stand a better chance of being acquitted." Although the only physical evidence linking Defendant to the charged offenses is from the final robbery, the State has evidence with regard to the other robberies. Even though evidence for the final robbery is greater than that of the evidence for the other counts, that alone does not justify severance. As the Supreme Court stated in McKay, "where the offenses charged are of the same general nature and give evidence of a modus operendi, severance [will be] denied even in the face of obvious prejudice to the defendant." Defendant has not met his burden of showing that a denial of severance would be so manifestly prejudicial as to outweigh the dominant concerns for judicial economy, especially in light of Defendant's request for six separate trials.
Bradley v. State, 559 A.2d 1234, 1241 (Del. 1989).
See Robertson v. State, 630 A.2d 1084, 1093 (Del. 1993) ("A disparity in the evidence presented against each defendant does not ipso facto require separate trial."). See also Howard v. State, 704 A.2d 278, 280 (Del. 1998) (rejecting the defendant's argument that "the failure to grant broader severance prejudiced him because the cumulative effect of combining DNA-fingerprint incidents with DNA-only incidents and the lower statistical probability incidents with the higher ones made the State's case against him stronger than it otherwise would have been").
Furthermore, any potential prejudice to Defendant can be diminished by a jury instruction. "If the jury is instructed to consider liability for each charge separately and is instructed also that the evidence admitted for one offense is not to be used in determining the guilt for another, this is sufficient to eliminate the potential `spillover' effect resulting from the joint trial."
See State v. Siple, 1996 WL 528396 (Del.Super.) ("Generally an instruction to the jury not to cumulate evidence will avoid any prejudice.").
State v. Braithwaite, 1997 WL 902840 (Del.Super.) (citing Skinner v. State, 575 A.2d 1108, 1120 (Del. 1990)).
In addition, where evidence concerning one crime would be admissible in the trial of another crime, there is no prejudicial effect in having a joint trial. Even if the charges were severed, evidence relating to each of the incidents would be reciprocally admissible in the other trials, pursuant to Delaware Rule of Evidence 404(b) to show a common plan or scheme, or Defendant's identity.
Bates, 386 A.2d at 1142 (citing Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1998)).
D.R.E. 404(b) provides that evidence of other crimes, wrongs, or acts may be admissible "as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." See also Getz v. State, 538 A.2d 726, 734 (Del. 1988) ("The evidence of other crimes must: (1) be material to an issue or ultimate fact in dispute; (2) be introduced for a purpose sanctioned by 404(b); (3) be proved by evidence which is `plain, clear and conclusive'; (4) not be too remote in time; (5) not be substantially outweighed by the danger of unfair prejudice; and (6) the trial judge must give appropriate jury instructions regarding the use of such evidence.").
For the above reasons, Defendant's motion is DENIED. Defendant's trial is scheduled for April 3, 2007.
IT IS SO ORDERED.