WALSER AUTO SALES, INC., et al., Respondents, v. CITY OF RICHFIELD, et al., Petitioners, Appellants.
No. C4-01-694.
Supreme Court of Minnesota.
May 23, 2002.
425
Hon. Gary Larson, Hennepin County District Court.
Bradley J. Gunn (#132238), Christopher M. McGlincey (#269505), Leonard, Street & Deinard, PA, Bruce D. Malkerson (#66862), Malkerson, Gilliland & Martin, LLP, Minneapolis, MN, Respondent‘s Attorney(s).
Susan L. Naughton (#259743), St. Paul, MN, Attorney for Amicus Curiae League of Minnesota Cities and Minnesota Chapter of the National Association of Housing and Redevelopment Officials.
Robert J. Deike (#12350X), Bradley & Deike, PA, Edina, MN, Attorney for Amicus Curiae Economic Development Association of Minnesota.
Verlane L. Endorf (#26736), D. Christopher Smith (204596), Dorsey & Whitney, LLP, Minneapolis, MN, Attorneys for Amicus Curiae Minnesota Institute of Public Finance, Inc.
Erick G. Kaardal (#229647), Minneapolis, MN, William H. Mellor, Dana Berliner (#447686), Robert Freedman (#468400), Washington DC, Attorneys for Amicus Curiae Institute for Justice.
Michael J. Vanselow (#152754), Assistant Attorney General, Mike Hatch, Attorney General, St. Paul, MN, Attorneys for Amicus Curiae State of Minnesota.
Elliot S. Kaplan (#53624), Randall Tietjen (#214474), Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, Attorneys for Amicus Curiae Best Buy Co., Inc.
ORDER
Based upon all the files, records and proceedings herein, and upon an evenly divided court,
IT IS HEREBY ORDERED that the decision of the court of appeals filed November 13, 2001, be, and the same is, affirmed without opinion.
BY THE COURT:
Kathleen A. Blatz
Chief Justice
LANCASTER, J., took no part in the consideration or decision of this case.
Edward SANTIAGO III, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
No. C7-00-307.
Supreme Court of Minnesota.
May 23, 2002.
Frederick J. Goetz, Special Assistant State Public Defender, Minneapolis, MN, for Appellant.
Michael A. Hatch, Minnesota Attorney General, St. Paul, MN, Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, MN, for Respondent.
Mark S. Wernick, Minneapolis, MN, for Amicus Curiae MN Association of Criminal Defense Lawyers.
OPINION
PAUL H. ANDERSON, Justice.
Appellant Edward Santiago III was convicted of one count of murder in the second degree and two counts of attempted murder in the second degree. He was sentenced to 633 months in prison—480 months for second-degree murder, a consecutive term of 153 months for attempted murder, and a concurrent term of 214.5 months for attempted murder. Santiago subsequently brought a petition for postconviction relief, asserting, among other claims, that the Hennepin County District Court abused its discretion in (1) joining him and a codefendant for trial, (2) denying his subsequent motions for severance, and (3) excluding certain evidence. The postconviction court denied Santiago‘s petition on all grounds and the Minnesota Court of Appeals affirmed. We granted review to consider the lower courts’ severance and evidentiary rulings. We reverse and remand.
On the afternoon of July 16, 1997, Edward Santiago and Thomas Rodriguez, who are cousins, were in the outdoor pool area of the Hampton Place Apartments in Richfield, Minnesota, where Rodriguez‘s sister lived with her children. While in the pool area, Santiago and Rodriguez met several women, including Rhonda Watt (a resident of Hampton Place), Veronica Watt, Shirley Jones, and Tasha Davis. Rodriguez gave his telephone number to Davis.
The next day, Veronica Watt, Jones, Davis, Manyani Henderson, and Andre Patten were at Rhonda Watt‘s apartment for a barbeque. Davis, accompanied by Veronica Watt and Jones, went to the pool area to find Rodriguez because Davis had lost his telephone number. Davis found Rodriguez, but he refused to give her the original number and offered her another number instead. At that point, Veronica Watt became angry and told Davis not to waste her time on Rodriguez. Name calling ensued, after which Veronica Watt returned to Rhonda Watt‘s apartment with Davis and Jones. Within minutes, she returned to the pool area with Davis, Jones, and Rhonda Watt. When Veronica Watt approached Rodriguez, she pulled a knife out of her boot, yelled, and made stroking gestures toward Rodriguez with the knife. Rodriguez responded by leaving the area. Henderson and Patten arrived at the pool separately, before Veronica Watt‘s next encounter with Rodriguez.
After leaving the pool area, Rodriguez returned to his sister‘s apartment, where he found his sister, Santiago, Shedava Abram, and Tiffany Adams. Rodriguez told Santiago that some people at the pool were “trying to start some shit with him.” Rodriguez then returned to the pool area with Santiago and the three others soon followed.
At this time, Eugene Webster and Blanchard Griffin were sitting in Web-
At this moment, Webster left his van and asked the two groups to “hold it for a minute” while he retrieved his children. The situation then appeared to quiet down, so Webster left his children in the pool and returned to the van. However, the conflict erupted again. Webster, Jones, and Rhonda Watt all testified that as the confrontation escalated, they observed Santiago periodically reaching with his right hand into the left side of his sport coat. According to these witnesses, Santiago was behaving as though he was trying to give the impression that he had a gun. Webster also watched Rodriguez remove his jogging suit top and noted that Rodriguez was not carrying a gun.
Webster then saw Rodriguez and Santiago return to their car. According to Webster, Rodriguez opened the passenger-side door, leaned in to his waist, backed out, closed the door, and walked around the rear of the car and stood next to Santiago. Webster, Jones, and Rhonda Watt all testified that they then observed movement between the two that was consistent with the transfer of a gun from Santiago to Rodriguez, but stated that they did not actually see anything pass between them. Henderson testified that he observed Santiago give Rodriguez a gun and Webster confirmed that Henderson had a better line of sight than Webster. Webster and Jones also testified that they heard Santiago say several times to Rodriguez “take care of your business” or “handle your business.” Rhonda Watt testified that she heard Santiago say “handle your business” once to Rodriguez.
Rodriguez then went back around the rear of the car and at this point Webster observed that Rodriguez was carrying a gun in the waistband of his shorts. Webster went to the front of the van and yelled at the children to get out of the pool. Webster heard Veronica Watt tell Rodriguez that she too had a gun and that she would go and get it “if we‘re going to play that way.” Webster observed Patten trying to calm Watt down and to get her to leave. Rodriguez then shot Patten. Rodriguez fired several more rounds toward Henderson and Watt, who were attempting to flee. Henderson was shot on his right side and Abram was shot in both feet. Rodriguez then walked toward Patten and fired more shots at him as he lay on the ground. Patten died from the gunshot wounds.
After the shooting, Santiago and Rodriguez left the pool area and Rodriguez drove to the home of his uncle, Jose Rodriguez. Rodriguez told his uncle that he “shot somebody and Shedava [Abram].” Rodriguez then made several telephone calls to Santiago. Rodriguez‘s sister arrived and brought a bundle from the back of the car into the residence. Rodriguez‘s sister then gave Jose Rodriguez the bundle she had taken out of the car. This bundle contained the gun used in the shooting. Then, Santiago arrived and he and Rodriguez left in the car. Police offi-
Santiago and Rodriguez were each charged with murder in the second degree, in violation of
Santiago opposed joinder, contending that
Rodriguez also opposed the joinder motion. He contended that Minnesota‘s rules embodied a presumption against joinder and, under the separation of powers doctrine, a district court has the discretion to decide whether defendants should be joined for trial. In addition, Rodriguez asserted that the federal cases and rules were inapplicable and, even if they did apply, Zafiro was distinguishable because Zafiro involved mutual ignorance rather than antagonistic defenses. Rodriguez went on to contend that the state had not demonstrated sufficient prejudicial impact or trauma on the victims to warrant joinder. Finally, Rodriguez argued that he and Santiago had raised inconsistent defenses.
The district court granted the state‘s motion for joinder. The court noted that the presumption against joint trials was no longer the law either by rule or by statute and the court had the discretion to join the defendants. Addressing the criteria set forth in
On January 30, 1998, Santiago made his first pretrial motion for severance. He asserted that a joint trial would deny him the right to a fair trial and due process of law as guaranteed under both the federal and state constitutions. Santiago made his motion under
The district court denied the severance motion, finding that neither Santiago nor Rodriguez had presented any statement that raised issues of irreconcilable or mutually exclusive defenses under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The court also found that neither defendant had presented his “defense in a manner clearly admissible in the other defendant‘s trial.” The court said:
Defendant Santiago asserts as his defense, through counsel rather than by direct statement, that he never possessed the involved weapon. Defendant Rodriguez, on the other hand, asserts through protected statements made to court-ordered Rule 20 examiners, that he never possessed the involved weapon. Each defendant, then, claims to have raised an “irreconcilable” defense as to the other without in any way having asserted such a defense in a manner clearly admissible in the other defendant‘s trial. If severance would be granted at this juncture, both could freely assert his Fifth Amendment right to remain silent in the other‘s trial.
Had each of the defendants asserted their respectively claimed defenses in a judicially admissible setting, they might be considered potentially “irreconcilable” for purposes of a severance motion. However, as presented, they cannot since neither defendant is bound to anything until tactical decisions play out at trial. * * * Should the defendants make a judicially admissible Offer of Proof of their asserted “irreconcilable” and “mutually exclusive” defense(s), the trial court may well entertain a request for severance prior to trial.
(Emphasis in original.) In reaching its decision, the court stated it was relying on the holdings of State v. Thibodeaux, 315 So.2d 769 (La.1975), United States v. Hernandez, 952 F.2d 1110 (9th Cir.1991), United States v. Bruno, 809 F.2d 1097 (5th Cir.1987), and Zafiro, 506 U.S. at 541-45 (Stevens, J., concurring).
On February 19, Santiago made his second pretrial motion for severance and attempted to establish a factual basis for relief. The hearing on this motion was held before a judge other than the one who had ruled on joinder and the first severance motion. The second judge who heard
At this hearing, Rodriguez‘s defense theory was that Santiago was the shooter. Rodriguez‘s attorney informed the court that Rodriguez would probably take the stand and testify that he was not the shooter. The attorney also proffered that another witness—Tawan Williams—would testify that Santiago was a gang member, one of the victims was a member of a rival gang, Santiago was previously shot by a member of the rival gang, and Santiago shot the victims to get revenge.
In response to this motion, the state asserted that Santiago‘s arguments presented nothing new and, thus, there was no factual basis for granting the severance motion. The state did acknowledge that a joint trial would be “a close call” if the information presented by Rodriguez were admissible, but asserted that, as it now stood, there was an insufficient factual basis for Rodriguez‘s proffer. The state then requested that Williams be called to testify. Rodriguez‘s attorney responded that the state‘s argument was based on admissibility and the weight of the evidence and such issues should be addressed at trial. Rodriguez‘s attorney then refused to permit Williams to testify at a mini-trial before the trial, asserting that this level of proof was not required of witnesses for the state or Santiago. The attorney said:
Short of putting my client on the stand, I cannot present you with any more information than what I believe he‘s going to present in court. As far as Mr. Williams, at this point I cannot give you a statement. I can tell you what he told us and what we expect him to testify to. I cannot comment upon its reliability or weight or anything like that.
The district court then wondered aloud about how it could make a substantive determination of potential prejudice without witnesses or any statements. The court went on to explain that Rodriguez and Santiago had proffered the expected testimony of witnesses and that the expected testimony was “speculative.” The court then explained that if the witnesses were permitted to testify and did testify as the attorneys expected, “at that point we have a problem.” The attorney for Santiago then asserted that both defense counsel were officers of the court and, based on their proffers, the court had sufficient information to decide the severance issue. The court did not specifically address this assertion.
The district court proceeded to question the attorneys about the difference between Minnesota‘s severance rules and the federal severance rules. The state argued that federal severance standards should apply because the language in
Santiago‘s attorney contended that there was indeed a conflict between Minnesota‘s
At a pretrial evidentiary hearing on February 23, Santiago renewed his motion for severance. Santiago acknowledged that Rodriguez had the constitutional right to suppress the testimony of Blanchard Griffin, a witness who identified Rodriguez as the shooter and who would testify that the gun did not change hands.1 Santiago asserted that the testimony of this witness was crucial to his defense and would be admissible at his trial if there were separate trials. The district court observed that this was a new offer of proof to the court regarding severance. The court noted that Santiago‘s prior severance motions were based on “pure speculation” regarding the prospective testimony of witnesses, but now there was evidence regarding the prospective testimony of one witness. Nevertheless, the court denied the motion.
On March 6, Santiago again renewed his motion for severance during a pretrial hearing on several motions in limine. Santiago contested the state‘s motion to suppress evidence prejudicial to Rodriguez on the grounds that it was relevant to his own defense. This time, the evidence contested was the testimony of additional witnesses that, several days before the shooting, Rodriguez carried a gun that looked like the murder weapon. Santiago claimed that this evidence was relevant to his defense that he never had the gun and never passed it to Rodriguez. The court denied the motion.
On March 10, the jury was sworn and the trial began. Following opening statements, both Santiago and Rodriguez moved for severance. Santiago based his motion on the theories set forth in the opening statements. The state had argued that Rodriguez was the shooter, but that Santiago handed Rodriguez the gun and told him to “take care of your business.” Santiago represented that he did not pass a gun to Rodriguez and that he neither directed nor encouraged Rodriguez‘s actions. In Rodriguez‘s short opening statement, his attorney asserted that Rodriguez was 19 years old, had no criminal record, and was nearly mentally retarded. Rodriguez‘s attorney then said, “Think about that [Rodriguez‘s mental capacity] when you think about the power structure that is going to become clear to you in this case.” The attorney also implored the jury to scrutinize the motives of the witnesses in the case and stated that he agreed with the state‘s request that the jury carefully listen to the testimony of certain disinterested witnesses. The district court denied Santiago‘s motion for severance for the same reasons it had previously denied severance.
On March 12, Santiago moved for severance for the sixth time, this time on the grounds that part of Rodriguez‘s defense theory was that Rodriguez lacked the mens rea for second-degree murder. According to Santiago, Rodriguez was at-
Santiago also asserted that Rodriguez‘s cross-examination of two witnesses—Eugene Webster and Rhonda Watt—was antagonistic to Santiago‘s position. Webster and Watt were witnesses to the events before the shooting and the shooting itself. The state, on direct examination, obtained testimony from both witnesses supporting its theory of the case. While questioning Webster, the state repeatedly used the term “the director” to refer to Santiago and suggested to Webster that he use the term “the director” to refer to Santiago, which he did. On cross-examination of Webster, Santiago‘s attorney obtained testimony indicating that Santiago was an observer rather than the director and that Rodriguez acted alone. Then, on cross-examination of Webster and Watt, Rodriguez‘s attorney sought to discredit the testimony elicited by Santiago‘s attorney and to reinstate the theory of the state. While questioning Webster, Rodriguez‘s attorney also used the term “the director” to refer to Santiago. The district court denied Santiago‘s motion for severance, stating that Webster‘s and Watt‘s testimony did not provide sufficient grounds for severance.
Santiago‘s final motion to sever came on March 19, at the close of the state‘s case. The motion was denied. In his closing statement, Rodriguez‘s attorney stated that Rodriguez “clearly did do the shooting,” but contended that Rodriguez did not have the intent to kill. On March 25, the district court explained that severance would have led to an incomplete picture of what occurred and the interests of justice supported a joint trial.
Santiago and Rodriguez were each found guilty of second-degree murder and two counts of attempted second-degree murder. Santiago, with criminal history points, was sentenced to 633 months in prison—480 months for second-degree murder, a consecutive term of 153 months for attempted murder, and a concurrent term of 214.5 months for attempted murder. Rodriguez, with no criminal history points, was sentenced to a prison term of 306 months for second-degree murder, a concurrent term of 173 months for attempted murder, and a concurrent term of 193 months for attempted murder.
Following his conviction, Santiago filed an appeal, but subsequently moved for a remand to the district court so that he could petition for postconviction relief on the grounds of newly-discovered evidence. The court of appeals dismissed Santiago‘s appeal. On January 20, 1999, Santiago filed a petition for postconviction relief. In his petition, Santiago requested a new trial on numerous grounds, including that the district court first erred by joining the two defendants for trial and then by failing to sever the trials. According to Santiago, the court should have granted severance because he suffered prejudice as a result of antagonistic defenses.
One year later, on January 21, 2000, the postconviction court, which was the same court that presided over Santiago‘s joint trial with Rodriguez, denied Santiago‘s petition. The court began its analysis by stating that Santiago‘s joinder claim is governed by
The postconviction court held that granting the state‘s motion for joinder was proper because the district court, in making its decision, had considered all of the factors listed in subdivision 2(1). The court also held that the district court properly denied Santiago‘s pretrial and midtrial severance motions because, under subdivision 3(3), there was no manifest necessity to sever the trials and there was no substantial prejudice to Santiago as a result of being jointly tried with Rodriguez. Relying on DeVerney, the court stated that the test for substantial prejudice is whether the defenses are inconsistent or whether the defendants seek, through their defenses, to shift the blame to one another. Applying this test, the court concluded that as in DeVerney and Greenleaf, the jury was faced with the choice between the state‘s theory and the defendants’ theories. The court also concluded that even if the defenses were antagonistic, the presence of antagonistic defenses is not prejudicial per se under the federal rules and Zafiro. Finally, the court rejected Santiago‘s other claims, including the claim that newly-discovered evidence warranted a new trial.
Santiago appealed the postconviction court‘s decision and the court of appeals held that the district court did not abuse its discretion. Santiago v. State, 617 N.W.2d 632, 639 (Minn.App.2000). In analyzing the propriety of the court‘s severance rulings, the court of appeals relied on the standards set forth in
The court of appeals concluded that there was no manifest necessity to sever and that Santiago did not suffer prejudice as a result of the joint trial. The court gave two reasons for its conclusion. First, before the trial, the district court considered all of the factors listed in subdivision 2(1) and determined that severance was not warranted because Santiago did not show prejudice or specifically identify inconsistent defenses. Second, after the evidence was submitted, the district court instructed the jury in a manner that reduced the risk of prejudice. Accordingly, the court of appeals held that the district court did not abuse its discretion. The court of appeals also held that the district court‘s evidentiary rulings did not constitute an abuse of discretion.
We granted review to consider the propriety of the district court‘s rulings on severance and the exclusion of evidence. The question of whether the court erred when it initially joined Santiago and Rodriguez for trial was not appealed and is not before us.
The two key issues before us are whether the district court erred in denying Santiago‘s pretrial and midtrial severance motions. The court of appeals dismissed Santiago‘s direct appeal so that he could pursue postconviction relief. We use the standard of review for direct appeals when a defendant first files a direct appeal, subsequently moves for an order staying the direct appeal in order to proceed with a postconviction hearing, and the court of appeals then dismisses the direct appeal. See State v. Steele, 449 N.W.2d 157, 157-58 (Minn.1989). Thus, even though this is a postconviction petition, the standard of review normally applied to Santiago‘s direct appeal issues is the standard to be used here.
The district court denied Santiago‘s severance motions on the grounds that there was no potential prejudice to the defendants as a result of a joint trial and because Santiago‘s offer of proof in support of his argument that the defendants had antagonistic defenses was insufficient. The postconviction court and the court of appeals concluded that Santiago‘s severance motions were properly denied because there was no manifest necessity to sever and because the codefendants did not suffer prejudice as a result of the joint trial. Determining whether the district court erred requires us to address certain preliminary issues, including (1) what Minnesota‘s standards for pretrial and midtrial severance are, (2) why Minnesota has different standards for pretrial and midtrial severance, (3) how to reconcile the differences between statutory severance standards and the severance standards articulated in our rules, and (4) whether the district court applied the correct standard to Santiago‘s offer of proof for his motions. We begin with a review of the evolution of Minnesota‘s joinder and severance standards.
A. The Evolution of Minnesota‘s Joinder and Severance Standards
The evolution of Minnesota‘s joinder and severance standards reflects the interplay of the common law, statutes, and our rules of criminal procedure. Under the common law, a district court had the discretion to grant or refuse separate trials. State v. Thaden, 43 Minn. 325, 326, 45 N.W. 614, 615 (1890). This standard was altered by statute, which gave a defendant charged with a felony an absolute right to a separate trial. Gen.Stat. 1878, c. 114, § 6. In 1969, the statute was amended to permit a joint trial in the interests of justice:
When two or more defendants shall be jointly indicted or informed against for a felony, they shall be tried separately, provided, however, upon written motion, the court, in the interest of justice and not related to time or economy may order a joint trial for any two or more said defendants.
Act of May 27, 1969, ch. 801, § 1, 1969 Minn. Laws 1477 (codified at
The Minnesota Rules of Criminal Procedure became effective on July 1, 1975. The joinder of defendants in felony and gross misdemeanor cases was governed by
When two or more defendants shall be jointly charged with a felony, they shall be tried separately provided, however, upon written motion, the court in the interests of justice and not solely related to economy of time or expense may or-
der a joint trial for any two or more said defendants.
Id. The improper joinder of defendants—misjoinder—was addressed in a separate subdivision,3 subdivision 3, which provided that “[m]isjoinder of offenses or charges or defendants shall not be grounds for dismissal, but on motion, offenses or defendants improperly joined shall be severed for trial.”
The text of the 1975 rule, coupled with the rule‘s comments, indicate that there were separate severance standards for misjoined and properly joined defendants. The comments explained that under subdivision 3, severance was mandatory for misjoined defendants, but severance of properly joined defendants was governed by subdivision 2‘s standards.
In 1987, the legislature enacted
When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.
Id.
The most recent amendments to the rules of criminal procedure regarding joinder and severance became effective on January 1, 1990. The revised rule mirrors the 1987 version of the statute. Subdivision 2(1) now provides:
When two or more defendants are jointly charged with a felony, they may be tried separately or jointly in the discretion of the court. In making its determination on whether to order joinder or separate trials, the court shall consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.
Under the current version of the rules, subdivision 3 continues to provide that misjoinder of offenses is not grounds for dismissal but that, on motion, defendants improperly joined shall be severed for trial. Id., subd. 3. However, the current version includes a new provision, subdivision 3(3), which details a different standard for severance of defendants during trial. Id., subd. 3(3). This subdivision, for the first time, introduced the concept of manifest necessity:
The court shall sever defendants during trial with the defendant‘s consent or
upon a finding of manifest necessity, if the court determines severance is necessary to achieve a fair determination of the guilt or innocence of one or more of the defendants.
Id. The comments to
Subdivisions 2 and 3 set the standard for severance for defendants who are properly joined. While the heading of subdivision 2(1) refers only to joinder of defendants, this subdivision also provides the rule for pretrial severance. Indeed, we reached this conclusion in DeVerney and evaluated the defendant‘s joinder and pretrial severance claims under subdivision 2(1). 592 N.W.2d at 841-42. The plain language of the rule establishes that subdivision 3(3) governs midtrial severance. Thus, the current version of
In 1992, the legislature amended section 631.035, Act of Apr. 29, 1992, ch. 571, art. 9, § 1, 1992 Minn. Laws 1983, 2056. The statute reduced the factors the court must consider in evaluating whether severance is warranted.
If it appears that a defendant is prejudiced by a joinder of defendants in a complaint or indictment or by joinder for trial together, the court may, upon motion of the defendant or the court‘s own motion, order an election or separate trials of counts, grant a severance of defendants, or provide whatever other relief justice requires. In making its determination, the court shall consider the impact on the victim.
Id., subd. 2. There have been no changes in the statute since 1992.
B. Santiago‘s Offer of Proof
It is against the backdrop of the foregoing historical evolution of
An offer of proof provides an evidentiary basis for a district court‘s decision. We review a court‘s rulings on the sufficiency of offers of proof under an abuse of discretion standard. See State v. Kasper, 409 N.W.2d 846, 847-48 (Minn.1987). There are two principal ways to make an offer of proof. First, an attorney can tell the court what the proposed testimony of the witness will be. Thomas A. Mauet, Trial Techniques 469-70 (5th ed.2000). Second, an attorney can examine a witness and produce the testimony. Id. The first method constitutes a sufficient offer of proof “if it is sufficiently specific and there is nothing in the record to indicate a want of good faith or inability to produce the proof.” John W. Strong, ed., McCormick on Evidence 220 (5th ed.1999) (citations omitted).
The sufficiency of an offer of proof is typically contested when the issue before the district court is the admissibility of evidence. In this context, an offer of proof provides the court with an opportunity to ascertain the admissibility of the proffered evidence and provides a record for a reviewing court to determine whether the lower court ruling was correct. However, in Santiago‘s situation, the issue before the court was not whether certain evidence was admissible. Rather, the issue was whether Santiago was entitled to a separate trial. We have not held that only admissible evidence may be considered in evaluating pretrial severance motions. In fact, we have not articulated a standard for offers of proof for such motions.
We have previously declined to restrict the discretion of a district court by either imposing or prohibiting a heightened proffer standard. For example, in the context of Spreigl5 hearings on the admissibility of evidence, a court has broad discretion in determining whether to require the state to call witnesses. State v. Lindahl, 309 N.W.2d 763, 766 (Minn.1981). We have held that it is not necessary to require the state to call a victim at a Spreigl hearing in order to have the court weigh the credibility of the victim, even when the victim‘s testimony is the only evidence that the offense occurred. Kasper, 409 N.W.2d at 848. In rejecting the requirement of a mini-trial on Spreigl evidence, we observed that the standards for professional conduct helped to insure that
Here, the district court imposed a heightened standard on Santiago by requiring admissible evidence to support his defense theory. As previously noted,
Based on our prior cases and also drawing upon the standards articulated by McCormick, a district court, when considering a pretrial severance motion, should first determine whether the proffered evidence is sufficiently specific and whether there is anything in the record to indicate a want of good faith. When the offer of proof is not sufficiently specific or there is something in the record to indicate a want of good faith, a court may impose a heightened proffer standard. However, when a court imposes a heightened standard, it should articulate on the record the reasons for adopting such a standard. In doing so, the court must keep in mind that, in a criminal trial, the defendant “may remain inactive and secure, until the prosecution has taken up its burden and produced evidence and effected persuasion.” James H. Chadbourn, Wigmore on Evidence § 2511 (1981). The court must also remember that it is bound by the defendant‘s Fifth Amendment privilege against self-incrimination. This procedure is flexible and gives the court discretion to require that the offer of proof meet a heightened standard if representations to the court lack sufficient specificity or reliability.
Santiago‘s offer of proof for his first motion consisted of (1) an affidavit of his attorney listing the witnesses he expected to call at trial, together with their expected testimony, and (2) a memorandum of law which identified statements made by Rodriguez to psychological examiners inculpating Santiago. Santiago‘s offer of proof for his second motion consisted of (1) oral representations on the record by his attorney regarding the expected testimony of certain witnesses, and (2) a 911 tape. Santiago‘s proffer for the remaining two pretrial severance motions consisted of oral representations and arguments on the record by his attorney during evidentiary hearings.
After reviewing Santiago‘s offers of proof, we conclude that they were sufficiently specific and that they linked the expected testimony to Santiago‘s expected defense theory. Further, there is no indication that Santiago‘s attorney made these offers of proof in bad faith. Accordingly, we conclude that the district court abused its discretion when it imposed a heightened standard by demanding judicially admissible evidence from Santiago.
C. Pretrial Severance
We next proceed to evaluate whether the district court erred in denying Santiago‘s pretrial severance motions. Santiago‘s first and second pretrial severance motions were based on
A court evaluates whether a joint trial is proper in light of the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.
Santiago claims that severance was warranted because he and Rodriguez presented antagonistic defenses. In reviewing a district court‘s pretrial severance decisions, we make ” ‘an independent inquiry into any substantial prejudice to defendants that may have resulted from their being joined for trial.’ ” DeVerney, 592 N.W.2d at 842 (quoting State v. Hathaway, 379 N.W.2d 498, 502 (Minn.1985)).
Our most recent articulation of pretrial severance standards in the context of antagonistic defenses appears in a trilogy of decisions beginning in 1985. In State v. Hathaway, we applied the 1975 version of
fendant or the testimony of the other. Instead, the jury was faced with the choice between the state‘s theory * * * and the theory* * * expounded by both defendants * * *This is not a case in which the state introduced evidence that showed only one of the defendants killed the victim, thus forcing each defendant to “point the finger” at the other. Nor is this a case in which the jury was forced to believe either the testimony of one de-
Id. (citations omitted).
In Greenleaf, we concluded that the district court properly joined the defendants for trial because the defendants did not present “conflicting” defenses. 591 N.W.2d at 499-500. The defendant, Lester Greenleaf, claimed intoxication, duress, and that he was innocent while his codefendant, Andy Leo DeVerney, claimed that he was innocent. Id. at 499. In affirming the district court, we concluded that these defenses did not conflict and the jury was not forced to choose between the testimony of the defendants to arrive at the verdicts. Id. Greenleaf was decided under the current version of
In DeVerney, a case involving the same events as in Greenleaf, DeVerney argued that the district court erred in joining him and Greenleaf for trial and subsequently erred in denying him severance. 592 N.W.2d at 841. Drawing on Hathaway, we concluded in DeVerney that the codefendants presented different defenses, but DeVerney did not suffer substantial prejudice because the defenses were not antagonistic. 592 N.W.2d at 842. In support of this conclusion, we stated:
[S]ubstantial prejudice is not simply whether the defenses presented were different, but whether the defenses were inconsistent, or whether the defendants sought, through their chosen defenses, to shift blame to one another.
Id. (citing Hathaway, 379 N.W.2d at 503). We observed that neither Greenleaf nor DeVerney sought to shift the blame to the other; rather, both claimed that they did not intend to kill the victim or that they had an excuse for aiding and abetting his murder. Id. As in Greenleaf, DeVerney‘s joinder and severance claims were decided under the current version of subdivision 2(1). 592 N.W.2d at 841-43.
When ruling on Santiago‘s pretrial motions, the district court did not have the benefit of our decisions in Greenleaf and DeVerney because we had not yet decided these cases. Nevertheless, in evaluating whether Santiago and Rodriguez presented antagonistic defenses, the court did not look to Hathaway for guidance. Instead, in ruling on the January 30 motion, the court took note of a decision of the Louisiana Supreme Court and four federal court decisions. In ruling on the February 19 motion, the court concluded that the 1990 version of
The district court inappropriately used the federal severance standard in analyzing our
Santiago‘s pretrial severance claims should be evaluated under the substantial prejudice test of subdivision 2(1) as we applied that test in Hathaway, Greenleaf, and DeVerney. Under this test, a defendant suffers substantial prejudice when he and his codefendant present antagonistic defenses. See Hathaway, 379 N.W.2d at 503; Greenleaf, 591 N.W.2d at 499-500; DeVerney, 592 N.W.2d at 842. Defendants have antagonistic defenses when the defenses are inconsistent and when they seek to put the blame on each other and the jury is forced to choose between the defense theories advocated by the defendants. See id.
In evaluating Santiago‘s February 19 motion, the district court acknowledged that if Hathaway provided the standard for antagonistic defenses, then Santiago‘s severance motion “has a lot of legs.” We agree. Santiago‘s theory of defense for all four pretrial severance motions was that Rodriguez was the shooter and that Rodriguez acted alone. Rodriguez‘s theory of defense for his pretrial severance motions was that Santiago was the shooter. Applying the standards of Hathaway, Greenleaf, and DeVerney, we conclude that Santiago and Rodriguez presented antagonistic defenses because Santiago and Rodriguez pointed the finger at each other and each sought to shift the blame for the shooting to the other. This is one of the classic examples of antagonistic defenses we identified in Hathaway and DeVerney. Hathaway, 379 N.W.2d at 503; DeVerney, 592 N.W.2d at 842. As set forth below, the record reveals that Santiago presented sufficiently specific evidence that his defense theory was antagonistic to Rodriguez‘s defense theory. Further, there is no indication on the record that Santiago could not produce the evidence to back up his offer of proof or that there was a want of good faith on the part of Santiago‘s attorney.
As previously noted, in evaluating whether severance is warranted, a court must consider the nature of the offense charged, the impact on the victim, the potential prejudice to the defendant, and the interests of justice.
The dissent contends that because Rodriguez‘s theory of defense was “ever-changing” and “evolving,” “the district court cannot be faulted for finding an absence of antagonism between the defense theories of Rodriguez and Santiago.” However, the record reveals that Rodriguez‘s defense theory throughout the pre-
Defendant Santiago asserts as his defense, through counsel rather than by direct statement, that he never possessed the involved weapon. Defendant Rodriguez, on the other hand, asserts through protected statements made to court-ordered Rule 20 examiners, that he never possessed the involved weapon.
At the hearing on Santiago‘s second pretrial severance motion, each party identified his respective defense theory to the court. Rodriguez told the court that his defense theory was that Santiago was the shooter. Santiago told the court that his defense theory was that Rodriguez was the shooter and that Rodriguez acted alone. During the evidentiary hearing at which Santiago raised his third pretrial severance motion, Santiago specified that his theory was that Rodriguez acted alone, but Rodriguez did not specify his theory. However, this motion was made in the context of an evidentiary ruling regarding a witness‘s testimony that Rodriguez was the shooter. Finally, during the hearing at which Santiago raised his fourth severance motion, Santiago indicated that his theory was that Rodriguez acted alone and Rodriguez indicated that his theory was that Santiago was the shooter. Thus, Rodriguez‘s defense theory was stable and identifiable throughout the pretrial stage and was not, as the dissent contends, so ephemeral that it was unidentifiable by the district court for purposes of severance analysis.6
Because Santiago‘s offer of proof regarding his defense was sufficient and because the defendants had antagonistic defenses resulting in potential prejudice to Santiago, we hold that the district court erred when it denied Santiago‘s pretrial severance motions.
D. Midtrial Severance
Having concluded that the district court erred in denying Santiago‘s pretrial severance motions, it is not necessary to the disposition of this case to address the district court‘s rulings on Santiago‘s midtrial severance motions. However, because the
The court shall sever defendants during trial with the defendant‘s consent or upon a finding of manifest necessity, if the court determines severance is necessary to achieve a fair determination of the guilt or innocence of one or more of the defendants.
The language of subdivision 3(3) mirrors the language of
The plain language of subdivision 3(3) indicates that there are two ways to approach a motion for midtrial severance. The first approach uses the fair determination test. The second approach uses the fair determination test coupled with a finding of manifest necessity. The first approach is appropriate when the defendant consents to severance. Under this ap-
Both approaches to midtrial severance employ the fair determination test. According to the Uniform Rules, the fair determination test requires a court to evaluate the propriety of severance according to whether (1) the trier of fact is able to distinguish the evidence and apply the law intelligently as to each defendant, and (2) the defendants have inconsistent or antagonistic defenses.
Subdivision 3(3) mandates that if a district court determines that sever-
Here, Santiago and Rodriguez both moved for severance, thereby giving their consent. Thus, there was no need for the district court to make a finding of manifest necessity. Instead, the court should have determined whether midtrial severance was necessary to achieve a fair determination of Santiago‘s guilt or innocence. To make this determination, the court needed to evaluate whether the defendants’ defenses were antagonistic such that severance was warranted to achieve a fair determination of Santiago‘s guilt or innocence.
We first evaluate whether Rodriguez and Santiago presented antagonistic defenses at trial. Throughout the trial, Rodriguez‘s defense theory was that Santiago directed him to do the shooting and that Rodriguez had limited mental capacity. On the other hand, Santiago‘s defense theory throughout was that Rodriguez was the shooter and acted alone. If the jury believed that Santiago directed Rodriguez to do the shooting and provided Rodriguez with the gun, then it could not accept Santiago‘s defense that Rodriguez acted alone and Santiago did nothing to aid or encourage Rodriguez‘s actions. If Santiago was not the shooter, the crucial factual issue for determination was whether he was guilty as one who “aids, advises, hires, counsels, or conspires with or otherwise procures the other to commit the crime.”
Having concluded that the defendants’ defenses at trial were antagonistic, we proceed to the next step in our application of subdivision 3(3) which is whether severance was necessary to achieve a fair determination of Santiago‘s guilt or innocence. In essence, Santiago faced two prosecutors at trial—the state and Rodriguez‘s attorney. Rodriguez‘s defense theory was virtually the same as the state‘s theory of Santiago‘s culpability. The alignment of the state and Rodriguez against Santiago represented an additional twist or ratcheting up of the traditional situation involving antagonistic defenses. Here, both Rodriguez and the state attempted to undermine Santiago‘s defense.
Rodriguez‘s alignment with the prosecution was repeated throughout the trial. During its opening statement, the state presented its theory of Santiago‘s culpabilty, which was identical to Rodriguez‘s de-
The dissent asserts that Rodriguez‘s defense theory was “ever-changing” and was not identifiable until Rodriguez‘s closing statement, in which he admitted that he was the shooter. The dissent contends that it was “impossible” for the district court to conclude whether severance was necessary for a fair determination of guilt or innocence. The record, however, does not support the dissent‘s position. Throughout the trial, there were several clear indicators of the nature and identity of Rodriguez‘s defense theory, including Rodriguez‘s reference to the “power structure” between Santiago and Rodriguez in his opening statement as well as Rodriguez‘s cross-examination strategy of supporting the testimony of the state‘s witnesses and undermining the testimony of Santiago‘s witnesses. For these reasons, we do not agree that it was “impossible” for the district court to evaluate Santiago‘s midtrial severance motions; rather, Rodriguez‘s defense theory was identifiable from the record and from the context within which the severance motions were made. Furthermore, Rodriguez‘s defense theory was the same throughout the trial. In light of the antagonism between the defendants’ defense theories and the fact that Santiago essentially faced two prosecutors at trial, we conclude that the district court erred in denying Santiago‘s midtrial severance motions.
E. Harmless Error
Santiago contends that he is automatically entitled to a new trial if we conclude that the court erred in denying his severance motions. However, our conclusion that the court erred in denying Santiago‘s severance motions does not require automatic reversal. The rules of criminal procedure provide that “[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
In applying the harmless error test in the context of severance, we have identified some indicators of prejudice requiring a new trial, including (1) whether, in separate trials of the defendants, the theory of the defense would have been the
The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.
Id. (quoting Kotteakos, 328 U.S. at 765, 66 S. Ct. 1239).
Unfortunately, neither party has addressed the harmless error issue. Thus, the burden of proving that failure to sever constitutes or does not constitute harmless error has not been addressed, much less satisfied. Therefore, we remand this case to the district court for consideration of whether that court‘s failure to grant Santiago‘s severance motions constitutes harmless error.
We conclude that a remand is particularly appropriate when, as here, we have articulated the meaning of a recently-revised rule of criminal procedure and our articulation differs substantially from that applied by the lower courts. In this situation, the interests of fairness support giving the parties the opportunity to apply in the first instance our harmless error test in the context of the severance of these two defendants. The parties themselves are in the best position to identify the extent to which the joint trial was prejudicially erroneous. For example, one indicator of prejudice is whether the defense theories of the defendants would have differed had there been separate trials. Rather than speculating as to what those theories would have been had there been separate trials, we remand to permit the parties to address the issue. A second indicator of prejudice is whether evidence that was excluded from the joint trial might be admissible in separate trials. The parties can evaluate this on remand. Further, on remand, the parties can address the extent to which the existence of a second prosecutor was prejudicially erroneous. Finally, assuming without deciding that the state has the burden of proving harmless error, interests of fairness militate against our deciding the issue without giving the state the opportunity to address the issue.
II.
The second issue before us is whether the district court abused its discretion in excluding three pieces of evidence. The three pieces of evidence excluded are (1) evidence that Rodriguez was known to carry handguns in his waistband, offered to show that Rodriguez might have had a gun when he arrived at the pool, (2) evidence that Rodriguez was known to have a volatile temper, offered to show who did the shooting, and (3) evidence that a pair of shoes found in a duffel bag in the Chevro-
Because we have remanded this case for consideration of whether the failure to sever Santiago and Rodriguez for trial was harmless error, and because resolution of Santiago‘s severance claim may be dispositive of this case, it is not required that we address Santiago‘s evidentiary claims at this time.
Reversed and remanded for proceedings consistent with this opinion.
STRINGER, Justice (dissenting).
I respectfully dissent. Rodriguez‘s defense in this case was an ever-changing, evolving theory that began as a nonspecific allegation that Santiago was the shooter and culminated in Rodriguez‘s closing-argument admission to being the shooter. As such, the district court cannot be faulted for finding an absence of antagonism between the defense theories of Rodriguez and Santiago. It is only through the use of hindsight, relying on what Rodriguez‘s defense evolved into rather than what it was when the district court ruled on the severance motions, that this court can conclude that the district court erred in failing to sever trials in this case. In addition, even after defense theories became absolute during closing arguments, because ju-
I agree with the court that the joinder standards in subdivision 2(1) may also be considered to apply to pretrial motions to sever.
Before trial began Santiago argued that his defense and the defense of Rodriguez were mutually antagonistic because each defendant sought to blame the other for the shootings. Santiago contended that in a psychiatric evaluation ordered pursuant to
The pretrial court addressed the security concerns first, concluding that the sheriff‘s department could deal with the security issue. The court then concluded that because the defendants were not committed to any particular defense theory, the severance motion should at that time be denied.
I would hold that, while we make an independent inquiry whether severance was necessary under
Moreover, the record fully supports the district court‘s conclusion on pretrial severance. Several witnesses testified the two defendants acted in close consort with one another. Because the codefendants were cousins, family members found it difficult to testify. Testifying and hearing testimony about the shootings was very difficult for witnesses and the victims, and some witnesses appeared to the district court to be afraid or reluctant to testify. Therefore, the nature of the offense and the impact on the victims weighed against pretrial severance. See
Further, at a pretrial hearing Rodriguez‘s attorney represented to the court that his defense would be that Santiago was the shooter and that the shooting was gang-related. Because the court ruled that evidence of gang affiliations was not admissible, however, it was not clear that Rodriguez would pursue this theory. Nevertheless, the majority asserts that Rodriguez‘s theory of defense for all pretrial severance motions was the same—that Santiago was the shooter. Based on the record before the district court and the changing nature of Rodriguez‘s defense, I believe the court properly determined that any potential prejudice from joinder remained unclear before trial.
I therefore conclude that of the four factors to be considered for pretrial severance under
With respect to mid-trial severance, even after opening statements it remained unclear what Rodriguez‘s defense would be, making it impossible for the district court to conclude that severance was necessary for a fair determination of guilt or innocence under
Santiago claims a fair determination of guilt was not possible because he and Rodriguez blamed each other for the shooting. It is not necessarily the case, however, that blame shifting between codefendants prevents a fair determination of guilt or innocence. Several federal decisions address the considerations attendant to blame shifting. Although these decisions apply the federal rule for severance, which favors joint trials, the analysis is helpful to the extent it bears upon whether the defendant can receive a fair determination of guilt or innocence.
In Zafiro v. United States, 506 U.S. 534, 113 S. Ct. 933, 122 L. Ed. 2d 317 (1993), the defendant claimed he was entitled to a separate trial under
Mutually antagonistic defenses are not prejudicial per se. * * * We believe that, when defendants properly have been joined under Rule 8(b), a district court should grant a severance under Rule 14 only if 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 guilt or innocence.
Zafiro, 506 U.S. at 538-39, 113 S. Ct. 933.3 This two-part analytic framework for determining what constitutes substantial prejudice requiring severance broadly takes into account the right of a defendant to advance his trial rights without compromise because of joinder, and where trials have been joined, to consider the burden on the jury in arriving at a reliable judgment of guilt or innocence. I would add however, that where the theories of defense of each of the accused are so totally irreconcilable that the codefendant becomes a “second prosecutor,” where proof
In this case the record demonstrates that while the defenses advanced by Santiago and Rodriguez were somewhat antagonistic, they were not so antagonistic that the jury could not make a fair determination of guilt or innocence. In moving to sever, Santiago alleged that Rodriguez would claim, as he did in a Rule 20 evaluation, that Santiago was the shooter. Despite the ever-changing defense theories, in the end it was possible for the jury to believe both Rodriguez and Santiago. Specifically, the jury could have believed Santiago‘s theory that he was not the shooter, did not egg Rodriguez on, and did not provide Rodriguez the gun.5 At the same time, the jury could also have believed that Rodriguez was the shooter but was “out of it,” and therefore lacked the mental state to be guilty of second-degree murder. Or the jury could do just what it did—disbelieve Santiago and Rodriguez and convict both of second-degree murder. Thus, when the evidence clearly showed that Rodriguez was the shooter, and he admitted as much, his conviction of either second-degree murder or manslaughter was a foregone conclusion—regardless of whether the jury believed or did not believe Santiago. Under these circumstances the defense theories of Santiago and Rodriguez were not so antagonistic that a fair determination of guilt or innocence was not possible and any prejudice to Santiago was not significant.
Moreover, the trial process itself did not pit Santiago against Rodriguez. The defendants frequently joined each other in opposition to the state and were not consistently at odds with each other‘s trial tactics. For example, the defendants jointly moved to strike the entire jury pool and to compel discovery of a witness‘s involvement as a witness in a concurrent action. For different reasons, each objected to the prosecution‘s voir dire of the jury pool. While they sparred over the admission of evidence of Santiago‘s prior convictions and connections to gang activity, the trial court denied all motions to introduce the evidence. Further, neither defendant
As to the ability of the jury to compartmentalize the evidence relating to each defendant, I agree with the postconviction court when it noted that the facts were simple and a joint trial provided the fairest assessment of what happened. There was virtually no evidence presented that was not relevant to the guilt or innocence of both parties, and it clearly appears that if a separate trial were ordered for Santiago, the evidence presented by the state and the defense would be no different. Any potential confusion was sufficiently cured by the trial court‘s admonition to the jury to keep the evidence separate as to each defendant.7
Santiago also contends that he suffered prejudice because he was precluded from introducing exculpatory evidence from Blanchard Griffin who was sitting in Webster‘s van during the shootings and allegedly would have testified that Rodriguez did the shooting and that prior to the shooting Griffin did not see the transfer of anything from Santiago to Rodriguez. While the inability to present exculpatory evidence could deny a defendant the constitutional right to make a complete defense, State v. Voorhees, 596 N.W.2d 241, 249 (Minn. 1999),8 that did not happen here. Rodriguez objected to Griffin‘s testimony as to the identification of photographs of both defendants, arguing that Griffin‘s identifications were tainted because a police officer made suggestive comments during the photographic identification. The state conceded the point and the evidence was not admitted. The court‘s decision to exclude Griffin‘s photographic identification however, did not preclude Santiago from calling Griffin as a witness to testify as to what he saw that day at Hampton Place Apartments. Santiago declined to take the opportunity to put Griffin on the witness stand, so the record hardly presents a circumstance of the suppression of “essential exculpatory evidence” referenced in Zafiro.
Based upon the record before us, I cannot conclude that Santiago demonstrated that the antagonistic defenses precluded a fair determination of guilt or innocence under
RUSSELL A. ANDERSON, Justice (dissenting).
I join in the dissent of Justice Stringer.
LANCASTER, Justice (dissenting).
I join in the dissent of Justice Stringer.
Notes
Justice Stevens concurred, noting that he did not share his colleagues’ enthusiasm for joinder because in joint trials where the codefendants present truly irreconcilable or mutually exclusive defenses, the burden on the prosecutor may be reduced in at least two ways—a codefendant may in effect become a second prosecutor, or the jury, confronted with two defendants, one of whom is almost certainly guilty, may convict the one more culpable even though guilt is not proven beyond a reasonable doubt. Zafiro, 506 U.S. at 543-44, 113 S. Ct. 933 (Stevens, J., concurring).
The response of the federal circuit courts to Zafiro has been mixed. Before Zafiro, the federal circuit courts consistently required irreconcilable or mutually exclusive defenses before antagonism between codefendants would warrant severance. See generally, United States v. Zafiro, 945 F.2d 881, 885 (7th Cir. 1991) (explaining that the formulation that mutually exclusive and irreconcilable defenses warrant severance, but mere finger pointing does not, “has become canonical.“). After Zafiro, some circuit courts have suggested that the rule of mutually exclusive and irreconcilable defenses may constitute insufficient antagonism under Zafiro, see United States v. Balter, 91 F.3d 427, 433 (3d Cir. 1996); United States v. Breinig, 70 F.3d 850, 853 (6th Cir. 1995); United States v. Harwood, 998 F.2d 91, 95 (2d Cir. 1993), while other circuit courts, including the Eighth and Ninth, have concluded that the “irreconcilable” rule comports with Zafiro as part of determining whether joinder might impair a jury‘s capacity to make a reasonable determination of guilt or innocence in a joint trial, see United States v. Mayfield, 189 F.3d 895, 899-900 (9th Cir. 1999); United States v. Shivers, 66 F.3d 938, 940 (8th Cir. 1995).
The postconviction court noted, “Rodriguez‘s theory did not address whether Petitioner gave him the gun or whether he carried it all along.”
The dissent also asserts that the pretrial “court concluded that because the defendants were not committed to any particular defense theory, the severance motion should at that time be denied.” The dissent contends that this particular finding “is worth our deference.” The problem with this assertion is that the court made no such finding. The dissent apparently draws its conclusion that the court made such a finding from the following language in the court‘s order regarding the first pretrial severance motion:
Had each of the defendants asserted their respectively claimed defenses in a judicial admissible setting, they might be considered potentially “irreconcilable” for purposes of a severance motion. However, as presented, they cannot since neither defendant is bound to anything until tactical decisions play out at trial.
It appears that the dissent has confused the identification of the defendants’ defense theories with the offer of proof issue. As explained above, the district court was not mystified about what the defense theories were and in fact identified the theories in its order. The court‘s ruling denying severance is based on its finding that neither party was bound to its defense theory because neither theory was supported by judicially admissible evidence. Because the court made no finding that the defendants were not committed to any particular defense theory, there is no finding worthy of our deference.
For example, at one point Santiago raised sixteen pretrial motions on the admissibility of evidence and of those Rodriguez appears to have opposed six, joined three and remained neutral on four. On the same day Rodriguez raised nine motions and of those Santiago objected to four.
The jury was instructed:
A separate crime is alleged against each defendant in each count of the complaint. Each alleged offense and any evidence pertaining to it should be considered separately by the jury. You must separate—you must give separate and individual consideration to each charge against each defendant. It is your duty to give separate and personal consideration to the case of each individual defendant.
When you do so, you should analyze what the evidence in the case shows with respect to that individual defendant leaving out of consideration entirely any evidence admitted solely against the other defendant. Each defendant is entitled to have his case determined from evidence as to his own acts, statements and conduct and any other evidence in the case which may be applicable to him.
The fact that you return a verdict of guilty or not guilty to one defendant should not in any way affect your verdict regarding any other defendant. Unless specifically directed otherwise, you must consider each instruction given to apply separately and individually to each defendant on trial in this case.
See also Zafiro, 506 U.S. at 539, 113 S. Ct. 933 (“[A] defendant might suffer prejudice if essential exculpatory evidence that would be available to a defendant tried alone were unavailable in a joint trial.“) (emphasis added).