PEOPLE v WILLIAMS
Docket No. 135271
Supreme Court of Michigan
Argued January 21, 2009. Decided July 9, 2009.
483 Mich. 226
In an opinion by Justice CORRIGAN, joined by Justices WEAVER (except for part IV), YOUNG, and MARKMAN, the Supreme Court held:
The trial court correctly applied the unambiguous language of the versions of
1. When the defendant was tried, the plain language of
2. Tobey, which preceded the adoption of
3. Even if the defendant had established that the trial court erred by joining his cases, any error would be harmless, because evidence of each charged offense could have been introduced in the other trial under
Justice WEAVER concurred in all but part IV of Justice CORRIGAN‘S opinion, which responded to the dissent.
Affirmed.
Chief Justice KELLY, joined by Justices CAVANAGH and HATHAWAY, dissenting, would reverse the judgment of the Court of Appeals, stating that Tobey and the relevant version of
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, David G. Gorcyca, Prosecuting Attorney, and Janice A. Kabodian, Assistant Prosecuting Attorney, for the people.
James Daniel Shanahan and Carletus Lashawn Williams, in propria persona, for the defendant.
We conclude that the provisions of
I. FACTS AND PROCEDURAL HISTORY
The Court of Appeals summarized the facts of this case as follows:
Officers from the Oakland County Narcotics Enforcement Team executed a search warrant at a Motel 6 motel room on November 4, 2004. They knocked and announced their presence, and they forced the door opеn when they received no response. As they entered, defendant, the sole occupant, was just walking out of the bathroom and the toilet was in mid-flush. A bag of suspected crack cocaine was caught in the drain and an officer fished it out. Another officer broke the toilet bowl and recovered one or more small rocks. In the room itself, the officers found
some large chunks of suspected crack cocaine, several small rocks in individual “corner ties,” a digital scale, a box of razor blades, a container of sandwich baggies, some individual baggies with missing corners, a pair of scissors, two handguns and ammunition, over $500 in cash, and a receipt showing that the room had been rented to defendant. The suspected narcotics weighed at least 50 grams and tested positive for cocaine. Pontiac police officers testified that they executed another search warrant at 510 Nevada on February 2, 2005. The officers saw defendant arrive in a 1994 Ford and enter the house shortly before the warrant was executed. The officers again knocked and announced their presence, then forced the door open when they received no response. Defendant and another person were in the living room. Defendant was seated in a chair with a brown bag in his lap. He was leaning down with his right hand extended toward the floor between the chair and the television set. He ignored orders to raise his hands. On the floor where defendant had been reaching, the officers found a plastic bag containing approximately 18 rocks of suspected сocaine. The bag in defendant‘s lap contained sandwich baggies and a pair of scissors. A digital scale and a box of sandwich baggies were on top of the television, along with a set of keys that included a key to the 1994 Ford. Both inside the back of the television and on the floor behind it were empty baggies and used “corner ties” with cocaine residue. Defendant had over $1,000 in his wallet. Inside the trunk of the 1994 Ford, the officers found a handgun and two assault rifles. The suspected narcotics weighed just under ten grams and tested positive for cocaine.1
The prosecutor moved under
With regard to the charges stemming from the November 2004 arrest, the jury convicted defendant of possession with intеnt to deliver 50 grams or more, but less than 450 grams, of cocaine,
In an unpublished opinion per curiam, the Court of Appeals affirmed. It held that the trial court did not err by concluding that the offenses were “related” under
The offenses here were not discrete, unrelated sales. Rather, they indicated a single scheme or plan to earn money by selling cocaine. In both, defendant was found in possession of enough cocaine to indicate an intent to sell it, as well as the necessary equipment to prepare it for sale and weaponry to defend the operation. The evidence there-
fore indicated that both of defendant‘s offenses were connected parts of an ongoing scheme or plan to sell drugs.2
Defendant then applied for leave to appeal in this Court. We granted his application for leave and directed the parties to address “(1) whether the defendant was entitled to separate trials under
II. STANDARD OF REVIEW
Generally, this Court reviews questions of law de novo and factual findings for clear error. People v McRae, 469 Mich 704, 710; 678 NW2d 425 (2004);
Additionally, when this Court reviews preserved nonconstitutional errors, we consider the nature of the error and assess its effect in light of the weight and strength of the untainted evidence.
[a]n error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything
done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice.
We recognize that both the statute and the court rule present “different articulations of the same idea.” People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972).
III. ANALYSIS
The same legal principles that govern the construction and application of statutes apply to court rules. In re KH, 469 Mich 621, 628; 677 NW2d 800 (2004). When construing a court rule, we begin with its plain language; when that language is unambiguous, we must enforce the meaning expressed, without further judicial construction or interpretation. Id.
Defendant alleges that the trial court violated
(A) Permissive Joinder. An information or indictment may charge a single defendant with any two or more offenses. Each offense must be stated in a separate count. Two or more informations or indictments against a single defendant may be consolidated for a single trial.
(B) Right of Severance; Unrelated Offenses. On the defendant‘s motion, the court must sever unrelated offenses for separate trials. For purposes of this rule, two offenses are related if they are based on
(1) the same conduct, or
(2) a series of connected acts or acts constituting part of a single scheme or plan.
The plain language of
In this case, the record reflects that the trial court correctly applied the plain language of
We conclude that the trial court did not violate the unambiguous language of
Our interpretation of
United States v Fortenberry, 914 F2d 671 (CA 5, 1990) (holding that car bombing and weapons charges were properly joined where all charges allegedly arose from defendant‘s attempt to exact revenge on persons involved in his divorce). Therefore, although the dissent attempts to distinguish cases in which the court permitted joinder of those offenses committed with the same motive, we conclude that the broad acceptance of a variety of underlying motives by our sister courts provides yet another basis to conclude that the charged offenses in this case were properly joined.
In Tobey, the Court concluded that charges arising from two drug sales to the same undercover agent within 12 days were improperly joined because “[t]he two informations charged distinct and separate offenses, and Tobey was entitled to a separate trial on each offense.” Tobey, supra at 145. Because
None of the sources discussed in Tobey can be reconciled with the unambiguous language of
where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction, or connected series of facts, the defendant can not be prejudiced in his defense by the joinder, and the court will neither quash nor compel an election. [Johns, supra at 623.]
Moreover, the unambiguous language of
Tobey‘s reliance on Blockburger “for double jeopardy and joinder purposes” is similarly unavailing. Generally, joinder is a “discrete, nonconstitutional concept[] that should not be conflated with the constitutional double jeopardy protection.” People v Nutt, 469 Mich 565, 592 n 28; 677 NW2d 1 (2004). In Tobey, however, the Court reasoned that, “[f]or double jeopardy and joinder purposes each sale is separate conduct, a separate act and transaction, and, as the Court of Appeals correctly noted, a separate and distinct criminal offense.” Tobey, supra at 149. Additionally, Tobey quoted extensively from Blockburger to buttress its conclusion that “[w]hile Tobey‘s conduct in selling heroin on different days to the same person is substantially similar conduct, it is not the same conduct or act.” Id. In so doing, Tobey conflated the constitutional double jeopardy protection with the nonconstitutional concept of joinder. Consequently, we find Tobey‘s discussion of Blockburger unpersuasive.
Finally, we conclude that even if defendant successfully had established that the trial court erred by joining his two cases, any error would be harmless. Under
In this case, the evidence of each charged offense could have been introduced in the other trial under
We note that, besides being consistent with this Court‘s caselaw, the trial court‘s conclusion is also consistent with that of the District of Columbia Court of Appeals, which has stated that “a misjoinder may be deemed harmless only if all or substantially all of the evidence of one offense would be admissible in a separate trial of the other.” Byrd v United States, 551 A2d 96, 99 (DC, 1988) (citation and quotation marks omitted).27 The United States Supreme Court also has
Therefore, even if the trial court had erred by joining the charges, we cannot conclude that such an error was outcome determinative.28
IV. FURTHER RESPONSE TO CHIEF JUSTICE KELLY‘S DISSENT
Chief Justice KELLY asserts that we have “implicitly” incorporated “same or similar character” language into
Chief Justice KELLY contends that “[o]ther jurisdictions with similar court rules have correctly rejected” interpretations consistent with our interpretation of “single scheme or plan.” Post at 261-262 n 25. She further argues that many jurisdictions “consider a finding of a common motive or goal to be a precondition for establishing a single or common scheme or plan under the joinder and severance rules.” Post at 262 n 25. In so doing, Chief Justice KELLY again presupposes that dеfendant‘s actions do not reflect a common motive or particular goal each time that he was observed packaging cocaine for distribution. To buttress her argument, Chief Justice KELLY cites three cases that do not advance her position.
In State v. Denton, 149 S.W.3d 1 (Tenn, 2004), for example, the Tennessee Supreme Court explained the unique rubric developed through that state‘s court rules and caselaw to address joinder and severance issues. See Denton, supra at 12-13. Although Chief Justice KELLY acknowledges that
Additionally, in State v. McCrary, 621 S.W.2d 266 (Mo, 1981), the Missouri Supreme Court found no abuse of discretion in the trial court‘s refusal to sever the offenses charged against thе defendant when the offenses revealed “ample evidence of the existence of a plan of harassment and revenge aimed at the [defendant‘s former partner and her new] family.” McCrary, supra at 271-272. The Missouri Supreme Court thus
Similarly, in State v. Oetken, 613 N.W.2d 679, 688 (Iowa, 2000), the defendant argued that his trial counsel was ineffective because his attorney did not move to sever two burglary charges that defendant asserted were not part of “common scheme or plan.” The Iowa Supreme Court disagreed, concluding that sufficient evidence supported the existence of a common scheme or plan, where the defendant “traveled through the rural countryside in search of homes that were unoccupied during traditional work hours, he knocked to ascertain the abodes were indeed vacant, broke and entered the premises through the rear doors, and proceeded to steal small portable objects such as TVs, VCRs, and guns.” Id. at 699. The Iowa Supreme Court has affirmed its interpretation of what constitutes a “common scheme or plan” in more recent decisions as well.31 Indeed, the analysis in these cases does not justify Chief Justice KELLY‘s reliance on them.
Moreover, several recent decisions reflect that other jurisdictions with similar court rules have adopted interpretations consistent with ours. The Mississippi Supreme Court has held that a “common scheme or plan” existed when the defendant was chаrged with three counts of forging prescriptions involving two different pharmacists over a five month period. See
V. CONCLUSION
The trial court correctly applied the unambiguous language of
WEAVER (except for part IV), YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, J.
WEAVER, J. (concurring). I concur in all except part IV of Justice CORRIGAN‘s opinion.
KELLY, C.J. (dissenting). I respectfully dissent. The majority erroneously concludes that
There are three flaws in the majority‘s analytical approach. Tobey and
Second, the majority never compares the language of Tobey with the language of
Third, the majority engages in lengthy and largely irrelevant criticism of the language in the authority thаt Tobey relies on to support its holding. This analysis is of questionable assistance in determining whether the two standards can be reconciled because it ignores the language of Tobey‘s actual holding.
I. MCR 6.120 AND TOBEY ARE RECONCILABLE AND CONSISTENT WITH ONE ANOTHER
Any meaningful analysis of whether Tobey is consistent with
A. DEFINITION OF “RELATED” OFFENSES3
The majority‘s attempt to distinguish the language of
The key portion of the Tobey opinion states:
We adhere again to our earlier precedents and hold: a judge must sever two or more offenses when the offenses
have been joined for trial solely on the ground that they are of the “same or similar character” and the defendant files a timely motion for severance objecting to the joinder . . . a judge has no discretion to permit the joinder for trial of separate offenses committed at different times unless the offenses “are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.“[6]
Tobey therefore held that joinder is appropriate when charged offenses are of the same or similar сharacter, but the charges must be severed if a timely motion for severance is filed. Tobey also held that offenses cannot be joined unless they are based on (1) the same conduct, (2) a series of acts connected together, or (3) a series of acts constituting parts of a single scheme or plan. The language used in 1 through 3 is virtually identical to the language used in
Moreover, just as Tobey rejected connecting offenses solely on the basis that they are of “the same or similar character,”
connection between criminal offenses for joinder and severance purposes that Tobey did.
B. NEGATIVE JOINDER AND AFFIRMATIVE RIGHT TO SEVERANCE
The second question in the analysis is whether Tobey and
Thus, the sole substantive difference between Tobey and
Finally, I note that the staff comment to
II. APPLICATION OF THE STANDARD FOR JOINDER AND SEVERANCE
Given that Tobey and
The lower courts both concluded that the offenses in this case were “related” under the “acts constituting part of a single scheme or plan” provision of
The majority seemingly accepts the trial court‘s interpretation of what may comprise a single scheme or plan, while rejecting the Court of Appeals’ interpretation of the provision as “too broad[].”14 Yet the majority does not adopt the trial court‘s language that defendant had a single scheme or plan to engage in “drug trafficking.” Instead, it concludes, similarly, that the offenses were related because defendant had a single scheme or plan “to package cocaine for distribution.”15
In doing so, the majority performs a semantic sleight of hand. It first observes that “direct evidence indicated that [defendant] was engaging in the same particular conduct on those dates.”16 Thus, it purports to agree with the lower courts that defendant‘s conduct constituted a single scheme or plan.
However, the majority actually places what it considers the “same particular conduct” under the guise of the “single scheme or plan” provision of
As will be discussed later, there is no basis for the majority‘s conclusions that defendant‘s offenses were “related.” It was not the same conduct or part of a single scheme or plan. Thus, none of the majority‘s analysis is tenable under the court rule or Tobey.
A. THE FEDERAL RULES AND CASELAW INTERPRETING THEM
First, the provisions of the corresponding federal rules of criminal procedure, on which the majority relies heavily to support its holding, differ significantly from
In addition,
Second, caselaw interpreting the federal rule does not support the lower courts’ interpretation of what types of conduct can be considered a “single scheme or plan.” For example, in United States v Saadey,19 on which the majority relies, the defendant was charged
The defendant was an investigator employed by the county prosecutor. In 1994 and 1995, he participated in a case-fixing conspiracy. He argued that the counts charging him with filing false tax returns and credit applications had been improperly joined. The Sixth Circuit Court of Appeals disagreed, concluding that joinder had been proper because all the charges filed against him stemmed from conduct that was part of his “common scheme to defraud.”21
Another case that the majority relies on, United States v Graham,22 provides an even more compelling illustration of the connection necessary to establish a common scheme or plan. In Graham, the court upheld joinder of numerous drug and firearm charges against the defendant. However, the court based its holding on the motive underlying the defendant‘s perpetration of each offense, which was encapsulated in a charge of conspiracy to commit offenses against the United States.
The defendant in Graham was a member of a local militia organization that planned to attack government targets. He also grew and sold marijuana, the proceeds of which he used to purchase weapons for his militia activity. Testimony at the defendant‘s trial established that each of the charged offenses was directly related to the larger conspiracy and underlying motive for the offenses: defendant‘s distrust of government and participation in the militia organization.
B. REQUIREMENTS FOR ESTABLISHING A SINGLE/COMMON SCHEME OR PLAN
The underlying premise throughout these casеs is that a simple string of similar offenses, in and of itself, is not sufficient to establish a single common scheme or plan. Rather, the cases cited by the majority all involve situations in which each joined offense was committed with a particular motive or goal underlying the defendant‘s conduct.24 That common motive is what established the common scheme or plan and made joinder appropriate.25
are not intended to capture the same connection between offenses is evidenced by the fact that the rules in many jurisdictions include both.27
The commentary to the revised American Bar Association‘s Standards for Criminal Justice supports this interpretation. It states:
[Common plan] offenses involve neither common conduct nor interrelated proof. Instead, the relationship among offenses (which can be physically and temporally
remote) is dependent upon the existence of a plan that ties the offenses together and demonstrates that the objective of each offense was to contribute to the achievement of a goal not attainable by the commission of any of the individual offenses. A typical example of common plan offenses is a series of separate offenses thаt are committed pursuant to a conspiracy among two or more defendants. Common plan offenses may also be committed by a defendant acting alone who commits two or more offenses in order to achieve a unified goal.[28]
By contrast, the commentary describing offenses of the same or similar character states, “Similar character offenses normally involve the repeated commission of the same offense[,] often with the same modus operandi.”29
Michigan has not adopted the “same or similar character” language as part of
Contrary to the majority‘s conclusion, defendant‘s acts of “packaging cocaine for distribution” do not meet the threshold for establishing a single scheme or plan. Unlike in Fortenberry, defendant in this case did not commit both drug offenses as part of a plan to exact revenge. Unlike in Graham, defendant‘s motive for committing these offenses did not stem from his participation in a militia organization based on an underlying distrust of government.
In this case, there is no evidence that defendant either planned his two drug offenses in advance of their
C. THE MAJORITY‘S INTERPRETATION IS AN UNREASONABLY BROAD ONE
The majority‘s analysis, taken to its logical conclusion, would eviscerate the mandatory severance provision in Thus, under the majority‘s analysis, severance of the charged offenses would be unnecessary regardless how far apart in time and space the offenses occurred or the underlying motive for them. Such outcomes arguably would be appropriate if Under the appropriate interpretation of Finally, I note that other states with more expansive joinder and severance rules are typically far more protective of a defendant‘s rights in this context than the federal rule. These states also grant defendants a mandatory right to severance of multiple offenses under certain circumstances.33 My conclusion in this case is consistent with the broad interpretation of the right to severance that courts in jurisdictions with similarly worded rules have adopted. Moreover, such an interpretation of Finally, having concluded that defendant was entitled to mandatory severance of the charges against him, I also conclude that the failure to sever the charges was not harmless error.34 The majority concludes that, even if the denial of defendant‘s motion to sever in this case were erroneous, it would be harmless because the error was not outcome determinative. It rests this conclusion on two bases. First, it concludes that the evidence of each charged offense could have been introduced at the other trial under I believe that the trial court‘s failure to sever the offenses in this case cannot be deemed harmless. The majority‘s conclusion that any error was harmless because evidence of one offense would have been admissible in the trial for the other offenses takes too much for granted. To succeed, this argument depends on the existence of the very “single scheme or plan” that would establish that the offenses were “related” and make severance unnecessary. Only once such a scheme has been shown would evidence of other offenses be admissible under Moreover, common sense dictates that an error cannot be harmless when a jury convicts a defendant of an offense that it should not have been allowed to consider. In People v Martin,41 a majority of this Court held that a trial court‘s jury instruction that erroneously allowed the jury to consider a lesser included offense was not harmless. Martin is analogous here because, in both cases, the jury convicted the defendant of charges it should never have been allowed to consider. The enor- I dissent from the majority‘s conclusion that CAVANAGH and HATHAWAY, JJ., concurred with KELLY, C.J.III. HARMLESS ERROR
IV. CONCLUSION
Notes
Despite its failure to compare the language of Tobey with
(1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based onBecause the trial court decided this issue before January 1, 2006, under the former rule, we analyze this case with the rule then in effect. Contrary to the majority‘s implication, Tobey did not “mandate the existence of temporal proximity between several offenses.” Ante at 241. Rather, Tobey simply stated that, when a defendant commits separate offenses at different times, joinder of the separate offenses for trial is permitted only under certain circumstances. When(a) the same conduct or transaction, or
(b) a series of connected acts, or
(c) a series of acts constituting parts of a single scheme or plan.
The majority opines that this claim does not comport with the Tobey Court‘s discussion of Johns. Ante at 238-239 n 15. This argument is misguided because the Tobey Court concluded that Johns involved “a series of connected acts,” not a single scheme or plan. Tobey, supra at 152. In fact, Tobey said exactly the opposite in the context of offenses committed as part of a single scheme. Tobey, supra at 152 n 15 (“joinder is allowed for offenses which are part of a single scheme, even if considerable time passes between them.“) (emphasis added).
The majority similarly rejects as “unpersuasive” Tobey‘s conclusion that “each sale is separate conduct, a separate act and transaction, and . . . a separate and distinct criminal offense” because it relied on Blockburger. Ante at 241. It contends that Tobey erred because joinder and double jeopardy are distinct concepts, joinder being a nonconstitutional concept and double jeopardy being a constitutional protection. Id., quoting People v Nutt, 469 Mich 565, 592 n 28; 677 NW2d 1 (2004). Despite the majority‘s isolated quotation from Nutt, nothing in Nutt undermines Tobey‘s holding. Nutt defined “same offense” using the “same elements” test from Blockburger. In doing so, Nutt rejected the broader “same transaction” test for defining what constitutes the same offense, overruling People v White, 390 Mich 245; 212 NW2d 222 (1973). The majority offers no explanation for why this narrow definition of the “same offense” for double jeopardy purposes should be defined more broadly in the joinder and severance context. I am not persuaded that a defendant‘s conduct should be considered “the same conduct” for joinder purposes when it simultaneously constitutes separate and distinct criminal offenses for double jeopardy purposes.
Tobey: “based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.”
The rewriting of the joinder and severance provisions to create an affirmative right to severance of unrelated offenses is significant for another reason. That an affirmative right to severance exists for defendants charged with unrelated offenses is significant when analyzing whether the erroneous denial of a motion to sever constitutes harmless error. See section on harmless error, infra.
If the joinder of offenses or defendants in an indictment, an information, or a consolidation for trial appears to prejudice a defendant or the government, the court may order separate trials of counts, sever the defendants’ trials, or provide any other relief that justice requires.The majority also objects to my reference to this dictum from Daughenbaugh as “persuasive authority.” Ante at 239 n 16. However, it offers no persuasive argument to warrant rejecting the staff comment and this language from Daughenbaugh. My analysis of Tobey and
The majority acknowledges that “some differences” exist between
However, joinder of the charged offenses against defendant in this case was premised on the “single scheme or plan” part of
It was undisputed in the lower courts that defendant‘s crimes did not involve either “the same conduct” or “a series of acts connected together.” The majority determines that an ongoing scheme or plan to “earn money by selling coсaine” is insufficient to deny severance under
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.In fact, in most of the cases the majority cites, the defendant was charged with conspiracy to commit a crime in addition to the joined offenses. The courts in those cases typically determined that the other charged offenses were properly joined because the defendant committed them in order to accomplish the objectives of the underlying conspiracy.
Moreover, the majority‘s broad definition of “single scheme or plan” is inconsistent with the language and purpose of the court rule. Other
jurisdictions with similar court rules have correctly rejected such interpretations. See State v Denton, 149 SW3d 1, 15 (Tenn, 2004) (“A larger plan or conspiracy in this context contemplates crimes committed in furtherance of a plan that has a readily distinguishable goal, not simply a string of similar offenses“). I acknowledge that Tennessee‘s severance rule differs from Michigan‘s. Nevertheless, contrary to the view of Justice CORRIGAN‘s opinion, Denton is relevant here because it interpreted the common scheme or plan clause, not the evidentiary admissibility question. Thus, the differences between the rules were not relevant to this portion of Denton‘s analysis.In fact, many courts consider a finding of a common motive or goal as a precondition for establishing a single or common scheme or plan under the joinder and severance rules. State v McCrary, 621 SW2d 266, 271 (Mo, 1981) (“We find that the essential test in determining whether a common scheme or plan exists, in a case involving a single defendant acting alone, is the requirement that all the offenses charged must be ‘products of a single or continuing motive.’ “) (citation and emphasis deleted); State v Oetken, 613 NW2d 679, 688 (Iowa, 2000). Justice CORRIGAN‘s opinion correctly notes that McCrary and Oetken upheld joinder in those cases. Nevertheless, they do support my conclusion that finding the existence of a common or single scheme or plan requires more than the fact that the offenses were similar in nature. For example, in McCrary, the defendant‘s broader goal in committing each offense was his “plan of harassment and revenge aimed at the Penermon family.” Id. at 272.
Where two distinct offenses were not committed at the same time, or were committed on different days, 11 or where the first was cоmmitted before a second and separate offense wasThat the court rules in some jurisdictions contain both provisions certainly suggests that they cover different types of connections between offenses. So does the commentary to the ABA standards. The majority apparently concedes that the offenses in this case were of the same or similar character. Ante at 235 (“The charges stemming from both arrests were not ‘related’ simply because they were ‘of the same or similar character.’ “) (emphasis added). Given that the charges stemming from the two arrests were for virtually the same offenses, it is difficult to see how one could not come to this conclusion. It is on this basis that I assert that the majority has read the “same or similar character” language into
Nevertheless, the majority argues that the offenses in this case were not “related” for this reason. I agree that under
(1) offenses that reveal a distinctive design or are so similar as to constitute “signature” crimes; (2) offenses that are part of a larger, continuing plan or conspiracy; and (3) offenses that are all part of the same criminal transaction.” [Denton, supra at 13, citing State v. Shirley, 6 S.W.3d 243, 248 (Tenn, 1999).]
This conclusion is supported by the Arkansas Supreme Court‘s decision in Bunn v State, 320 Ark 516; 898 SW2d 450 (1995). There, the court reversed a defendant‘s convictions of three counts of delivery of cocaine. The reversal resulted from the trial court‘s erroneous denial of the defendant‘s motion tо sever the charged offenses. The Arkansas Supreme Court held that no single scheme or plan existed and noted that “[t]he purpose of [Arkansas‘s severance rule] is to give effect to the principle that the State cannot bolster its case against the accused by proving that he has committed other similar offenses in the past . . . . The record is void of any evidence that the offense charged in Count III was planned in advance or as a part of the offenses charged in Counts I and II.” Id. at 523 (citation and quotation marks omitted).(1) Involving Permissive Joinder of Offenses. If two or more offenses are joined or consolidated for trial pursuant to Rule 8(b), the defendant has the right to a severance of the offenses unless the offenses are part of a common scheme or plan and the evidence of one would be admissible in the trial of the others.