Joinder and Severance

 

Franklin County Criminal Law Casebook

Reproduced with permission from:
Timothy E. Pierce and the Franklin County Public Defender Office
 

Criminal Rule 8 -- Joinder of Offenses and Defendants.
Criminal Rule 14 -- Relief from Prejudicial Joinder.
R.C. 2945.13 -- Joint trials in felony cases.
R.C. 2945.20 -- Separate trial for capital offense.
State v. Prade (2000), 139 Ohio App. 3d 676, 683-684: "In order to establish an error on the part of the trial court in denying severance of the charges under Crim. R. 14, defendant has the burden of affirmatively proving that (1) 'his rights were prejudiced,' (2) he provided the trial court with sufficient information to permit it to 'weigh the considerations favoring joinder against the defendant's right to a fair trial,' and (3) 'the [trial] court abused its discretion in refusing to separate the charges for trial.'" (Citing State v. Torres (1981), 66 Ohio St. 3d 340.) Court concludes evidence concerning communications interception would have been admissible as evidence of motive in regard to homicide charge.
 
State v. Clifford (1999), 135 Ohio App. 3d 207 -- Reversible error to exclude mother and grandfather from courtroom during hearing on state's motion to consolidate.
 
State v. Stone (1975), 73 Ohio Ops. 496 -- Crim. R. 8 permits but does not require joinder of related offenses in a single indictment. Also see State v. Starcher (1984), 21 Ohio App. 3d 94, 96 rejecting application of the "same transaction test' adopted in Commonwealth v. Campana (1973), 452 Pa. 233, 304 A. 2d 432.
 
State v. Minneker (1971), 27 Ohio St. 2d 155, 157-158 -- "In sustaining the joinder of (adequately connected) offenses here, we are not unaware that in some instances a joinder of separate and distinct offenses unrelated in their commission may prejudice an appellant's right to a fair trial. Improper joinder may not only confuse a jury but may create an unfavorable impression in their minds as to an appellant's character before any evidence has been admitted as to his guilt or innocence."
 
State v. Durham (1976), 49 Ohio App. 2d 231, 233 -- Whether to order relief from prejudicial joinder rests in the sound discretion of the trial court, to be exercised in the promotion of justice and upon good cause shown. Reviewing courts allow wide range in this respect.
 
State v. Echols (1998), 128 Ohio App. 3d 677, 685-696 -- When conservation of judicial resources is the only purpose served by joinder, the defendant's right to a fair trial takes precedence. If a common modus operandi is claimed to allow evidence of one crime as similar acts evidence with respect to others, the use of a knife and common geographical area is not a sufficient behavioral fingerprint - differences in fact patterns must also be weighed. Claims that the evidence as to each charge is simple and distinct from that as to others must be measured against the state's actual representations to the jury. Joinder is improper where evidence on stronger counts leads to conviction on counts where the proof is weak or insufficient.
 
State v. Torres (1981), 66 Ohio St. 2d 340 -- The mere possibility that the defendant might have a better choice of trial tactics if charges are separated is not sufficient to require severance. Syllabus: "A defendant claiming error in the trial court's refusal to allow separate trials of multiple charges under Crim. R. 14 has the burden of affirmatively showing that his rights were prejudiced; he must furnish the trial court with sufficient information so that it can weigh the considerations favoring joinder against the defendant's right to a fair trial, and he must demonstrate the court abused its discretion in refusing to separate the charges for trial."
 
State v. Owens (1975), 51 Ohio App. 2d 132 -- Headnotes 1 and 2: "(1) A defendant must make an affirmative demonstration that his right to a fair trial would be prejudiced before a joinder of offenses, properly made under Crim. R. 8, will be disallowed under Crim. R. 14. (2) A motion for severance due to prejudicial misjoinder under rules of procedure for relief from prejudicial misjoinder must be renewed at the close of the state's case or at the conclusion of all the evidence and unless made at that time, it is waived." Also see State v. Strobel (1988), 51 Ohio App. 3d 31, 33; State v. Williams (1981), 1 Ohio App. 3d 156, 159; State v. Walker (1990), 66 Ohio App. 3d 518; State v. Miller (1995), 105 Ohio App. 3d 679, 691.
 
State v. Long (1984), 20 Ohio App. 3d 377 -- Headnote: "The defendant's mere allegation that he would prefer to testify on one count, but not on the other, does not meet his burden of affirmatively showing that his rights will be prejudiced by joinder of multiple counts for trial." Also see State v. Parker (1991), 72 Ohio App. 3d 456, 460.
 
State v. Franklin (1991), 62 Ohio St. 3d 118, 122-123 -- The state may counter claims of prejudice in two ways: (1) It may claim the evidence as to each charge is simple and direct. (2) It may claim evidence of the one crime would have been admissible as other acts evidence in the trial of the other. Also see State v. Lott (1990), 51 Ohio St. 3d 160, 163-164; State v. Wiles (1991), 59 Ohio St. 3d 71, 76-77; State v. Williams (1995), 73 Ohio St. 3d 152, 157-158.
 
State, ex rel. Eberling, v. Nugent (1988), 40 Ohio St. 3d 129 -- A ruling on a motion to consolidate is not a final appealable order.
State v. Kaufman, 187 Ohio App. 3d 50, 2010-Ohio-1536 -- ¶54-58: While the law does not impute an authoritative relationship merely because the defendant is an adult and the victim is a child, here the defendant’s long standing relationship with one of the victims’ mother sufficed.. ¶59-62: Same conclusion as to second victim where the sex acts were characterized as punishment. ¶ 85-98: Evidence one victim had been adjudicated delinquent for molesting his step-brother was inadmissible under the rape shield law and Evid. R. 609(D). ¶113-131: Court finds no problem with the testimony of an expert who had no direct involvement with the victims. ¶160-190: Joinder was prejudicial and counts should have been tried separately according to victim. In sex offense prosecutions the common modus operadi pitch for joinder runs into the rape shield law and Evid. R. 404. Nor were the acts inextricably intertwined or identity of the offender disputed. The opinion notes that the trial court did not allow a third alleged victim to testify as to other acts evidence. The evidence was not simple and distinct as to each victim given the risk the jury would view the evidence in toto as corroborative, and the inflammatory nature of the offenses charged.
 
State v. Slaven, 191 Ohio App. 3d 340, 2010-Ohio-6400 – Defendant was indicted for sexual assaults on both of his children. Pre-trial motion to sever was denied. Where evidence of assaults on one child would not have been admissible as similar acts evidence at a trial on counts concerning the other, severance should have been ordered. State v. Frazier, Cuyahoga App. No. 83024, 2004-Ohio-1121, followed. Court also erroneously overruled a motion in limine concerning testimony that the defendant had reached up he skirt of a visiting adolescent thirteen years ago.
 
State v. Coley 93 Ohio St. 3d 253, 259-261, 2001-Ohio-1340 -- Attempted murder and aggravated murder incidents were properly joined for trial as evidence of one would have been admissible at trial of the other pursuant to Evid. R. 404(B), and because proof of each crime was simple and direct.
 
State v. Echols (2001), 146 Ohio App. 3d 81, 87-88 -- Though prior convictions were reversed on the basis of improper joinder, charges from two of the incidents were retried together. Failure to renew motion to sever waived all but plain error.
 
State v. Brooks (1989), 44 Ohio St. 3d 185, 193 -- "Joinder may be prejudicial when the offenses are unrelated and the evidence as to each is very weak...but it is otherwise when the evidence is direct and uncomplicated and can reasonably be separated as to each offense." Also see State v. Johnson (2000), 88 Ohio St. 3d 95, 108-110; State v. Torres (1981), 66 Ohio St. 2d 340, 343-344; State v. Roberts (1980), 62 Ohio St. 2d 170, 175; Drew v. United States (C.A.D.C. 1964), 331 F. 2d 85, 88; Dunaway v. United States (C.A.D.C. 1953), 205 F. 2D 23, 26; United States v. Lotsch (2d Cir. 1939), 102 F. 2d 35, 36.
 
State v. Clements (1994), 98 Ohio App. 3d 797 -- Error to join unrelated charges of burglary and aggravated robbery for trial. At p. 799: "(E)vidence submitted to prove the burglary undoubtedly created an image of one who was irresponsibly disposed to kick down a door and violently disposed to beat up his girlfriend, and such evidence would be difficult to isolate and shake while deciding the more serious charge of aggravated robbery."
 
State v. Hamblin (1988), 37 Ohio St. 3d 153, 157-159 -- Joinder of aggravated murder, attempted murder, and companion charges was proper where the evidence interlocked and the incidents occurred both close in time and distance. Also see State v. Benner (1988), 40 Ohio St. 3d 301, 305-306.
 
State v. Van Sickle (1993), 90 Ohio App. 3d 301 -- Woman shot her husband and burned the body a few days later. Court finds murder and abuse of a corpse charges were prejudicially joined for trial. (1) Prosecution could not negate claim of prejudice by showing evidence as to each charge was "simple and direct" or that evidence of one would have been admissible as similar acts evidence in proving the other. (2) Joinder denied the defendant her statutory right to have one offense tried to a jury and the other to the court.
 
State v. Decker (1993), 88 Ohio App. 3d 544 -- Court concludes that though evidence relating to one group of sex offenses would not have been admissible as similar acts evidence at trial of other group of offenses, evidence as to each was "simple and distinct." See dissent and compare State v. Schaim (1992), 65 Ohio St. 3d 51.
 
State v. Schaim (1992), 65 Ohio St. 3d 51 -- Sex offense charges involving three different victims should have been severed. Evidence would not have been admissible as similar acts evidence.
 
State v. Strobel (1988), 51 Ohio App. 3d 31 -- Three counts of gross sexual imposition were properly joined as they were of the same class of crimes or offenses. Severance was not required where it appears the jury was able to "easily segregate the evidence pertaining to each count in the indictment."
 
State v. Nicholl (1978), 9 Ohio Ops. 3d 285 -- Joinder of felonious assault and drug charges was improper, though not sufficiently prejudicial to reverse.
 
State v. Dunkins (1983), 10 Ohio App. 3d 72 -- Joinder of weapon under disability charge with drug charges was not prejudicial where details of armed robbery conviction giving rise to the disability were not elaborated upon.
 
State v. Marinos (1975), 45 Ohio App. 2d 312 -- Multiple counts of fraud relating to the conduct of the defendant's business may be tried together. The defendant is entitled to introduce similar acts evidence of other transactions supporting his claimed lack of fraudulent intent.
State v. Dixon, 152 Ohio App. 3d 760, 2003-Ohio-2547 -- Joinder of husband and wife codefendants represented by the same attorney reversed as plain error. While there may have been sufficient evidence to sustain the wife's conviction, the evidence against her husband was different and stronger. It should have been anticipated that he would take the stand in his own defense, in the process making concessions which further hurt his wife's prospects for acquittal.
 
State v. Price, Cuyahoga App. No. 81604, 2003-Ohio-1840, ¶ 7-18 -- Defenses are antagonistic when each defendant is trying to exculpate himself and inculpate his codefendant. Severance is required when codefendants are prejudiced to such a degree they cannot receive a fair trial. However, an assertion in opening statement as to what the prosecution claims will be shown is found to not amount to an antagonistic defense, nor does a codefendant's claim to merely have been a follower. Court also presumes the jury followed limiting instruction as to opening statements and closing arguments.
 
State v. Adams, Clark App. No. 2003 CA 32, 2004-Ohio-2958 -- Bruton violation claimed where another person was indicted separately based on the facts of a single transaction. (1) No error since severance is a potential remedy for a Bruton violation. (2) There must be a trial for a Bruton error to occur. Adams pled guilty.
 
Zafiro v. United States (1993), 506 U.S. 534 -- Under the Federal Rules, severance is not required in every case where codefendants offer mutually antagonistic defenses. "Severance should be granted only when there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilty or innocence." The risk of prejudice is heightened by factors such as evidence admissible against one codefendant but not all, unavailability of exculpatory evidence at a joint trial, and markedly differing degrees of culpability.
 
State v. Henry (1983), 4 Ohio St. 3d 44 -- Paragraphs one and two of the syllabus: "(1) Pursuant to R.C. 2901.02(B), aggravated murder is a capital offense regardless of whether death may be imposed as a result of the conviction thereof. (2) Where two or more persons are jointly indicted for aggravated murder, each of such persons shall be tried separately, unless the trial court orders a joint trial pursuant to the strict mandates set forth in Crim. R. 14 and R.C. 2945.20." Check R.C. 2901.02(B) for current definition of "capital offense."
 
State v. Knight (1984), 20 Ohio App. 3d 289 -- To preserve the issue for appeal. defendants in a aggravated murder prosecution must request separate trials.
 
State v. Brown (1986), 31 Ohio App. 3d 86 -- A capital murder defendant may not obtain a joint trial with a codefendant by simply waiving the statutory right to separate trials. A joint trial requires the consent of the court.
 
Bruton v. United States (1968), 391 U.S. 123 -- Admission of codefendant's confession at a joint trial where the codefendant does not take the stand denies defendant the right to cross-examination secured by the Confrontation Clause of the Sixth Amendment. Also see State v. Moritz (1980), 63 Ohio St. 2d 150.
 
Cruz v. New York (1987), 481 U.S. 186 -- Decision overrules Parker v. Randolph (1979), 442 U.S. 62, where the plurality opinion stated that separate trials may not be required if both defendant have confessed and confessions "interlock" or tend to corroborate each other. Thus, even interlocking confession of nontestifying codefendant is inadmissible at joint trial, even with limiting instructions, unless admissible under some other theory.
 
State v. Perod (1968), 15 Ohio App. 2d 115 -- Headnote 4: "The contemplation of calling a codefendant to testify, without showing any cause to do so, or manner in which such testimony might be beneficial, is not ground for severance, especially where any prejudice resulting from a joint trial is merely speculative." Also see State v. Bass (July 20, 1982), Franklin Co. App. No. 81AP-999, unreported (1982 Opinions 2095, 2098).
 
State v. Thomas (1980), 61 Ohio St. 2d 223 -- When a person charged with a misdemeanor is tried jointly with a codefendant charged with a felony, it is not prejudicial for the misdemeanor to be tried to a jury of twelve, rather than eight.
 
United States v. Lane (1986), 474 U.S. 725 -- Misjoinder of defendants for trial is subject to harmless error analysis.
State v. De Mastry, 155 Ohio App. 3d 110, 2003-Ohio-5588, ¶ 86-91 -- Fifty of 323 counts were separated for an initial trial. Defendant held to have failed to demonstrate an abuse of discretion citing references elsewhere in the brief to the extraordinary complexity of the case.
 
State v. Bennie, Hamilton App. No. C-020497, 2004-Ohio-1264 -- A motion for severance of counts must be renewed at the close of the evidence. Otherwise, the assumption is that the defendant has become satisfied with the course of events and is now willing to have the joined counts submitted to the jury. When the motion has not been renewed, review is limited to plain error. Elsewhere the opinion notes "It is a natural human tendency to more readily accept the guilt of a person linked to several crimes as opposed to one," and uses the term "behaviorist fingerprint."
 

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Published by Timothy E. Pierce
 
Copyright © Franklin County Public Defender and Timothy E. Pierce, 2015
 
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