JOINDER AND SEVERANCE

§ 21.01 The Scheme of Rules 8, 13, and 14

§ 21.02 Joinder and Severance of Offenses - Joinder

§ 21.03 - Severance

§ 21.04 Joinder and Severance of Defendants

§ 21.05 Consequences of a Failure to Join and Erroneous Joinder

§ 21.01

The Scheme of Rules 8, 13, and 14

The process of joining and severing offenses and defendants is governed by V.R.Cr.P. 8, 13, and 14. The initial decision whether or not to join is the prosecutor's, governed by Rule 8. If the prosecutor opts for joinder, Rule 14 allows the court to order a severance sua sponte or on motion. Conversely, if the prosecutor chooses not to join, Rule 13 allows the court to order joinder, sua sponte or on motion.

§ 21.02

Joinder and Severance of Offenses - Joinder

The prosecutor can join two or more offenses in a single information or indictment, stating each in a separate count,{1} if all of the charges "(1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan."{2}

If crimes that could have been joined in one information or indictment under Rule 8 are charged separately, the judge can order that they be tried together, even over defense objection.{3} For the most part, the decision to join (like the decision to sever) is broadly discretionary,{4} but the court must order a joint trial in one situation: if the offenses are "related," that is, "based on the same conduct or aris[ing] from the same criminal episode[,]"{5} and the defendant asks for joinder, "unless the ends of justice would thereby be defeated" either because the prosecutor needs more time to prepare one of the charges "or for some other reason."{6} A failure to make the motion waives the right to joinder.{7}

§ 21.03

- Severance

The more common scenario, when Rule 8 allows for joinder of offenses, is an initial decision by the prosecutor to join offenses, followed by a motion by the defendant to sever.{8} The motion must be made before trial, by the V.R.Cr.P. 12(c) deadline, unless the grounds are unknown at the time,{9} and if denied it must be renewed at or before the close of the evidence at trial.{10}

a. Discretionary Severance

When multiple charges have been joined on the ground that they are based "on the same conduct" or a "single scheme or plan,"{11} severance must be granted if "deemed appropriate to promote a fair determination of each case. . . ."{12} The ruling is discretionary: the issue is "whether severance will, in the judgment of the trial court, promote a fair determination of the defendant's guilt or innocence of each offense."{13}

The burden is on the defendant,{14} who is required to specify "substantive support" for his or her claim of prejudice in the pretrial motion for severance{15} and again in the renewed motion at or before the close of the evidence.{16} The trial court's discretion is broad{17} although not "unfettered."{18}

Joining several offenses in a single trial can present several risks of prejudice. It can inhibit the defendant's right to testify in defense of one but not all of the charges; it can entail introduction of evidence that is admissible as to one count but inadmissible as to another; it can raise the danger that a jury will cumulate the evidence and convict the defendant on the view that, whatever specific crimes he may or may not have committed, he is a "bad man" in general; and it raises that risk in a complex case that the jury may not be able to "distinguish the evidence and apply the law intelligently as to each offense."{19} Joinder will generally be upheld if evidence of all of the charges would have been admissible in any case, in severed trials for the individual charges.{20}

b. Mandatory Severance

Severance is mandatory on request when offenses have been joined "solely on the ground that they are of the same or similar character. . . ."{21} The important word is "solely." Charges can "be of the same or similar character, and, at the same time, constitute a series of connected acts or parts of a single scheme[,]" in which case severance is not mandatory.{22} Charges will normally be severable on this ground when they involve different times and locations, and distinct sets of witnesses and victims.{23} But when the charges are "facets of a general criminal undertaking" they need not be "be close together in a time-space sense. . . ."{24} Nor is it necessary that the victim be the same: in State v. Johnson the Vermont Supreme Court held that a series of lewd acts committed at a summer camp during a two-week period were not severable as of right even though they involved different victims.{25}

§ 21.04

Joinder and Severance of Defendants

The prosecutor can charge two or more defendants jointly when they are all charged with the same offense, or when they are charged with a conspiracy or a series of closely related crimes.{26} Rule 13 allows the judge to order joint trials in the same situations.{27}

A motion to sever defendants, like a motion to sever offenses, must be made before the trial, or whenever the grounds become known, and it must be renewed before or at the close of all the evidence.{28}

Each defendant who has been jointly charged or ordered to be tried together with another has a right to an individual trial if the offense charged is a felony.{29}

If the charge is a misdemeanor, separate trials are discretionary; severance may be granted on a pretrial motion if one of the defendants or the state will be prejudiced by joinder.{30} Some of the risks of prejudice in this context are similar to those involved in joinder of offenses, including the possibility that evidence which is admissible against one codefendant may be inadmissible against the other.

The Bruton{31} problem is a special case of such prejudice. When one defendant in a multidefendant trial confesses, that defendant's statement can be used against that defendant as an admission,{32} but it will probably be inadmissible hearsay if used against the codefendants. Because the confessing codefendant has an absolute right not to testify, the codefendants may have no opportunity to subject the defendant's confession to cross-examination. In such cases, the United States Supreme Court held in Bruton v. United States that the codefendant's right of confrontation may prevent admission of the confession, or allow it only in redacted form (with explicit or implicit references to the nonconfessing codefendant edited out). The alternative is to order a severance.{33} Bruton problems, which have been extensively litigated in the United States Supreme Court,{34} can show up in Vermont only in misdemeanors, given the automatic right of severance in felonies.

§ 21.05

Consequences of a Failure to Join and Erroneous Joinder

A failure to join "related" offenses (i.e., offenses that are "based on the same conduct or arise from the same criminal episode"){35} bars a subsequent trial for the nonjoined charge under Rule 13, unless the court previously denied a motion for joinder or the right to joinder was waived.{36}

Rule 13's protection against subsequent prosecutions appears to be at least as broad as the double jeopardy clause, as currently construed.{37} The double jeopardy clause also incorporates principles of collateral estoppel, however, which may limit the state's power to prove related offenses even if a subsequent prosecution does not run afoul of Rule 13.{38}

Charges or defendants that have been joined for trial may not be severed on the prosecutor's motion after trial has commenced, except with the defendant's consent.{39}

ENDNOTES

1. See §§ 5.11-5.22, supra (duplicitous and multiplicitous charges).

2. V.R.Cr.P. 8(a).

3. State v. Bristol, 143 Vt. 245, 250 (1983).

4. State v. Bristol, 143 Vt. 245, 250 (1983).

5. V.R.Cr.P. 13(b)(4). The Reporter's Notes provide additional gloss.

6. V.R.Cr.P. 13(b)(1).

7. V.R.Cr.P. 13(b)(1).

8. The court can also order severance sua sponte whenever it could on motion. V.R.Cr.P. 14(a).

9. V.R.Cr.P. 14(b)(4)(A). Opposing joinder under Rule 13 should be treated as a motion to sever. V.R.Cr.P. 14(b)(4), Reporter's Notes.

10. V.R.Cr.P. 14(b)(4)(B); State v. Venman, 151 Vt. 561, 565, 566 (1989). Renewal of the motion is required "to show that the potential prejudice which [the] pre-trial motion claimed has actually occurred." Id. at 565-66 (quoting the Reporter's Notes to V.R.Cr.P. 14(b)(4)(B)). See State v. Carter, 156 Vt. 437, 441 (1991) (approving a joint trial for burglary, larceny, and possession of a weapon, where the state had produced sufficient evidence of the weapon and made no attempt "to exaggerate the facts or to inflame the jury" in its consideration of the burglary charge).

11. V.R.Cr.P. 8(a)(2).

12. V.R.Cr.P. 14(b)(1)(B)(i). Severance during trial can only be ordered if "necessary" for a fair determination, and only with the defendant's consent. V.R.Cr.P. 14(b)(1)(B)(ii).

13. State v. Carter, 156 Vt. 437, 441 (1991) (quoting State v. Richards, 144 Vt. 16, 19 (1983) (emphasis in original)).

14. State v. Carter, 156 Vt. 437, ___ (1991); State v. Chenette, 151 Vt. 237, 243 (1989).

15. State v. Richards, 144 Vt. 16, 19 (1983); State v. Beshaw, 136 Vt. 311, 314 (1978).

16. State v. Venman, 151 Vt. 561, 567 (1989).

17. State v. Johnson, No. 90-287, slip op. 6-7 (Vt. April 17, 1992). See also State v. Venman, 151 Vt. 561, 565-66 (1989) (several medicaid fraud charges, part of common scheme to defraud); State v. Richards, 144 Vt. 16, 19 (1983) (DUI and disorderly conduct charges); State v. Bristol, 143 Vt. 245, 249-50 (1983) (two related murders, part of a scheme to rob).

18. State v. Chenette, 151 Vt. 237, 243 (1989).

19. V.R.Cr.P. 14(b)(1), Reporter's Notes.

20. State v. Johnson, No. 90-287, slip op. 8-11 (Vt. April 17, 1992); State v. Chenette, 151 Vt. 237, 243-44 (1989). In Johnson the court held that seven charges of lewd and lascivious behavior were properly tried together because evidence of all the offenses would have been admissible under V.R.E. 404(b) in separate trials to show the defendant's opportunity, intent, plan, and absence of mistake. In State v. Carter, 156 Vt. 437 (1991), refusal to sever charges of burglary and possession of a weapon was upheld on the ground that the two crimes were connected and each would be admissible in a trial for the other. For a review of the Rule 404-403 case law, see §§ 31.03-31.07, infra.

21. V.R.Cr.P. 14(b)(1)(A); State v. Carter, 156 Vt. 437, 440 (1991); State v. Chenette, 151 Vt. 237, 242 (1989).

22. State v. Johnson, No. 90-287, slip op. 7 (Vt. April 17, 1992).

23. State v. Johnson, No. 90-287, slip op. 7 (Vt. April 17, 1992); State v. Carter, 156 Vt. 437, 440-41 (1991). See also State v. Beshaw, 136 Vt. 311, 313 (1978) ("single happening . . . in one geographical location and within a restricted and uninterrupted time sequence").

24. State v. Venman, 151 Vt. 561, 566 (1989) (quoting 2 W. LaFave and J. Israel, Criminal Procedure § 17.1(a) at 353 (1984)).

25. State v. Johnson, No. 90-287, slip op. 7 (Vt. April 17, 1992).

26. V.R.Cr.P. 8(b). The section allows for joinder

(1) when each of the defendants is charged with accountability for each offense included;

(2) when each of the defendants is charged with conspiracy and some of the defendants are charged with one or more offenses alleged to be in furtherance of the conspiracy; or

(3) when, even if conspiracy is not charged and all of the defendants are not charged in each count, it is alleged that the several offenses charged

(A) were part of a common scheme or plan; or

(B) were so closely connected in respect to time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others.

27. V.R.Cr.P. 13(a).

28. V.R.Cr.P. 14(b)(4)(A),(B). A motion for severance at the close of the prosecution's case, or at the close of the evidence, must be granted if the prosecution has failed to establish the grounds it alleged pretrial in support of joinder and "severance is deemed necessary for a fair determination of that defendant's guilt or innocence." V.R.Cr.P. 14(b)(3).

29. V.R.Cr.P. 14(b)(2)(A).

30. V.R.Cr.P. 14(b)(2)(B).

31. Bruton v. United States, 391 U.S. 123 (1968).

32. Such statements are defined as nonhearsay by V.R.E. 801(d)(2).

33. See V.R.Cr.P. 14(b)(2)(B) and Reporter's Notes.

34. See Cruz v. New York, 481 U.S. 186 (1987); Lee v. Illinois, 476 U.S. 530 (1986); Parker v. Randolph, 442 U.S. 62 (1979).

35. V.R.Cr.P. 13(b)(4).

36. V.R.Cr.P. 13(b)(2). Entry of a guilty plea to one offense does not protect the defendant against prosecution for a related offense, unless the plea agreement provides otherwise. V.R.Cr.P. 13(b)(3).

37. See § 14.05, supra.

38. See reporter's notes to V.R.Cr.P. 13(b); § 14.09, supra.

39. V.R.Cr.P. 14(b)(4)(C).