State of Delaware v. Washam.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY STATE OF DELAWARE v. GARY R. WASHAM, Defendant. : : : : : : : I.D. No. 0201002651 Submitted: January 10, 2003 Decided: January 21, 2003 ORDER Upon Defendant's Motion to Sever. Denied. Marie O'Connor Graham, Esquire, Deputy Attorney General, Dover, Delaware, attorney for the State. Thomas D. D onovan, Esq uire, Dover, D elaware, attorney for the Defend ant. WITHA M, J. State v. Gary R. Washam I.D. No. 0201002651 January 21, 2003 I. Introduction Before this Court is Defendant Gary Washam s Motion to Sever certain offenses from an Indictment in which he was jointly indicted with his co-defendant. After reviewing Defendant s motion and the oral arguments presented by both Defendant and the State, this Co urt must deny D efendant s motion . II. Background Defendants, Michael Downes and Gary Washam, were jointly indicted by the Grand Jury on February 4, 2002, and were re-indicted by the Grand Jury on April 1, 2002. There are nine counts listed on the second indictment. Both defendants were charged in Counts 1-4 and Cou nts 8 and 9; how ever, only De fendant Wash am is charged in Counts 5 an d 6. Counts 1 and 3 charge both defendants with Possession of a Firearm during the Commission of a Felony. Counts 2 and 4 charge both defendan ts with Reckless Endangering First Degree. Count 7 charges both defendants with Conspiracy Second De gree in reference to the underly ing felonies charg ed in Counts 2 and 4. Counts 8 and 9 charge bo th defendants with misdemeanor Criminal Mischief. The controversy is over Counts 5 and 6 which charge only Defendant Washam with Possession with Intent to Deliver a Non-Narcotic Schedule I Controlled Substance, namely marijua na, and Ma intaining a Ve hicle for keeping Controlled Su bstances. The facts of this case as best as this Court can surmise from the oral argume nts of the parties are as follows. Both defendants were involved in firing guns on New Street in Dover. There is some indication that this may have b een a shoot-out involving an unidentified vehicle. During the course of the g un fire, stray bullets passed 2 State v. Gary R. Washam I.D. No. 0201002651 January 21, 2003 through a house on New Street. The police were called and a police officer stopped defendants Chevrolet Corsica1 because it wa s suspected to be involved in the shoot out. After the vehicle was stopped the police patted down the two defendants. On Defendant Washam the police found bullet clips for a gun in one pocket and the marijuana in the other pocket. The State contends that the drugs were found as part of the same transaction and occurrence. Moreover, th e State argues that the facts surrounding the car being stopped which lead to the drugs being found are inextricably intertwined with the facts of the other charges. Furthermore, the State argues that in order to present a contextually complete case on the drug charges, the State would have to explain the reason why the car was stoppe d which wa s because of the sh ooting. Defendant argues that Counts 5 and 6 represent charges unrelated to the other charges for which the de fendants are jointly indicted. Defendant argues, therefore, that he would be required to d efend these sepa rate and unrela ted charges in a joint trial with his co-defendan t which wou ld create substan tial injustice and unfair prejudice. III. Analysis Superior Court Crimina l Rule 8(a) provides the standard for joinder of offenses explaining that two or more offenses may be join ed in the same indictment provided that one of the followin g circumstance s exists: the offenses are of the same or similar character; the offenses are based on the same act or transaction; the offenses are based 1 It is unclear from the facts presented at oral argument as to who owned or was driving the car. 3 State v. Gary R. Washam I.D. No. 0201002651 January 21, 2003 on two or more connected acts or transactions; or the offenses are based on two or more acts constituting parts o f a common scheme or plan.2 Superior Court Criminal Rule 8(b) specifically deals with joinder of defendants providing that Two or m ore defendants may be charged in the same indictment or information if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. 3 Rule 8(b) further provides tha t such defendan ts may be charged in one or more counts together or separately and all of the defend ants need not be charged in each count.4 Therefore, joinder is proper even if each defendant is not charged w ith each offense on the indictment. If a defendant can prove that he/she will be prejudiced by a joinder, then the defendant should move for a severance . Superior Court Criminal Rule 14 provides such relief from prejud icial joinder: If it appears that a d efendant or the S tate is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the co urt may order an election or sepa rate trials of counts, grant a severance of defendants or provide whatever relief 2 Super. Ct. Crim. R. 8(a). Rule 8(a) specifically states: Two or more offenses may be charged in the same indictment or information 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. 3 Super. Ct. Crim . R. 8(b). 4 Id. (emphasis add ed). 4 State v. Gary R. Washam I.D. No. 0201002651 January 21, 2003 justice requires. 5 According to Jenkins v. State, A motion for severance is addressed to the sound discretion of the tria l court. 6 This motion implicates the severance rules concerning both severance from co-defendan ts and severance of an offense. Therefore, this Court will first address both standards for severance. A. Severanc e of Co-Defe ndants The Supreme Court in Jenkins stated: Ordinarily, defendants indic ted jointly should be tried togethe r; but, if justice requires it, the trial court should grant separate trials. What constitutes abuse of discretion depends upon the facts and circumstances of each case. A s a general rule, h owever, it may be said that discretion has been abused by denial of severance when there is reasonable probability that, because of a co-defendant's extra-judicial statement, substantial injustice and denial of a fair trial may result from a joint trial.7 Jenkins laid out additional factors to determine if a co-defendant should be severed such as (1) absence of other substantial, competent evidence of the movant's guilt; (2) antagonistic defenses as between the co-defendant and th e movant; and (3) difficulty of segregating the evidence as b etween the c o-defendant an d the movant. 8 B. Severance of Offenses 5 Super. Ct. Crim. R. 14. 6 Jenkins v. State, 230 A.2d 26 2, 272-273 (D el. 1967) (emph asis added). 7 Id. 8 Id. 5 State v. Gary R. Washam I.D. No. 0201002651 January 21, 2003 The rule of joinder is designed to promote judicial economy and efficiency, so long as the defendant's rights are not compromised by the joinder. 9 The defendant bears the burden of showing prejudice sufficient to require severance, and a hypothetical assertion of prejudice is not enough. If a defendant makes unsubstantiated claims of prejudice, the defendant's interests are outweighed by the interest of judicial economy. 10 The Court in State v. McKay stated some factors to consider when determining if a motion to sever should be granted including: (1) the defendant was subject to embarrassmen t or confusion in atte mpting to presen t different defenses to different charges; (2) the jury may improperly infer a general criminal disposition on the part of the defendant from the multiplicity of charges, and (3) the jury may accumulate e vidence prese nted on all offenses charged in order to justify a finding of guilt of particular offenses. 11 Severance may be denied if the offenses are of the same general nature.12 C. Severance of Counts 5 and 6 from the Joint Indictment To begin, it should be noted that Defendant Washam is not requesting severance from his co-defendant for Counts 1 thru 4 and 8 and 9. Defendant Washa m is only requesting that Counts 5 a nd 6 be severe d from the joint indic tment. Under Rule 8(a) 9 State v. Flagg, 739 A.2d 797, 799 (Del. Super. Ct. 199 9). 10 Id. 11 State v. McKay, 382 A.2d 260, 262 (Del. Super. Ct. 1978). 12 Id. 6 State v. Gary R. Washam I.D. No. 0201002651 January 21, 2003 offenses may be charged in the same indictment if the charges arise out of the same transaction or occurrence. In this case it is apparent that the drugs were found on Defendant Washam during the same transaction or occurrence that gave rise to other charges. Thus, in order for these charges to be severed the Defendant bears the burden of showing actual prejudice, as opposed to hyp othetical prejudice, from the joinder. In McKay, the court stated that a few re asons to sever offenses are confusion in presenting a defense, jury may infer a criminal disposition, or the jury may accumulate the evidence.13 The Defend ant in this case do es not rely on an y of these factors in his motion for severance, nor does the Defendant explain to this Court why trying these charges together would actually prejudice the Defendant. Defendant merely asserts that since the charges are unrelated, d efending these c harges in a joint tria l would create substantial and unfair prejudice. This Court finds that in this case Defendant has not met his burden of showing prejudice sufficient to warrant severance. Briefly, this Court will also n ote that not only is it proper that these offenses be tried together, it is also proper that these offenses be tried in the joint trial with Defendant Washam s co-defendant. Under Rule 8(b) two defendants may be tried together if both defendants participated in the same transaction or occurrence that is the basis for the charges. In th is case, as noted a bove, it is established that all the charges relate to an ongoing transaction. Un der Rule 8(b) th ese defendants m ay be tried together even if they are not both ch arged with ev ery count of the in dictment. Therefore, it is proper to try the D efendant in a joint trial even though only Defendant 13 Id. 7 State v. Gary R. Washam I.D. No. 0201002651 January 21, 2003 Washam is charged with Counts 5 and 6, unless there is a showing of prejudice from the joinder. In this case, given the facts as presented to this Court, there does not appear to be prejudice such that a sepa rate trial on these c ounts is warrante d. IV. Conclusion In conclusion, this Court is not satisfied neither by Defendant Washam s written motion nor by defense c ounsel's presentation at oral argument that there would be sufficient prejudice in this case to require severance of Counts 5 and 6. Thus, the Defendant s motion to sever the offenses is hereby denied. IT IS SO ORDERED. J. WLW/dmh oc: Prothonotary xc: Order Distribution File 8