State v. TidwellState v. Tidwell
Lead Opinion
In this сonsolidated criminal appeal, defendant challenges the trial court’s denial of his motion to sever two previously consolidated cases for trial. Defendant was separately charged with two counts of driving under the influence of intoxicants (DUII),
“(1) A charging instrument must charge but one offense, and in one form only, except that:
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“(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
“(A) Of the same or similar character;
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“(2) If two or more charging instruments are found in circumstances described in subsection (l)(b) of this section, the court may order them to be consolidated.
“(3) If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.”
The relevant facts in this case are minimal and mainly procedural. In separate charging instruments, the state charged defendant with two cоunts of DUII, based on incidents that occurred on July 22, 2009, and February 2, 2010. The state moved to consolidate the cases, in part because they were “[o]f the same or similar character.” See
The court denied defendant’s motion, concluding that the counts involved crimes of the same or similar character, and that the jury could be effectively instructed to consider the evidence separately and decide each case on its merits. Subsequently, a jury convicted defendant on both counts of DUII.
We review the trial court’s determination that defendant failed to demonstrate the existence of substantial prejudice under
On appeal, defendant asserts that the evidence specific tо each incident of DUII would not have been mutually admissible in a trial for the other. He contends that, because he did not receive separate trials on each, the jury was allowed to hear “double the damaging evidence against defendant” and that evidence admitted in one case would have improperly influenced the jurors in their deliberation of the other case. Defendant also lists a number of negative inferences that the jury could have made against him as a result of having evidence of both counts in a single trial.
Defendant’s assignment of error fails even if we assume that the evidence in each case was nоt mutually admissible in the other. That is so because the evidence in the DUII cases was “sufficiently simple and distinct to mitigate the dangers created by joinder,” particularly when considered in conjunction with the probable effectiveness of limiting instructions to the jury. Both charges involved discrete incidents on separate days, and the evidence in each case was uncomplicated and supported by separate witnesses. Moreover, the trial court concluded that any potential prejudice could be mitigated by a limiting instruction to consider the evidence separately and to decide each case on its merits. Given that we generally assume that jurors follow instructions, “absent an overwhelming probability that they would be unable to do so[,]” State v. Smith,
We are mindful of the concerns expressed by the dissent regarding how the trial аctually played out in this case, given that the court did not give the precise limiting instructions to the jury that it had earlier anticipated would mitigate some of the dangers created by trying the two charges together. Nevertheless, our task is to evaluate the record at the time of the court’s ruling on defendant’s motion to sever.
Affirmed.
Notes
This consolidated appeal also includes defendant’s appeal of a judgment revoking his probation in a case where he was convicted of second-degree criminal mischief,
We note that defendant did not take exception to the jury instructions and did not assign error to the trial court’s jury instructions. See State v. Pena,
Dissenting Opinion
dissenting.
The majority in this case has correctly interpreted and applied the case law from this court. However, as my analysis of the complete record reveals, this court’s case law, focusing only on the pretrial record, is not adequate to ensure that a defendant, subject to joinder, has received a fair trial. In this case, the fair trial protections mentioned by the trial court in denying defendant’s motion to sever were never realized at trial.
ORS 132.560 provides, in pertinent part:
“(1) A charging instrument must сharge but one offense, and in one form only, except that:
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“(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
“(A) Of the same or similar character;
“(B) Based on the same act or transaction; or
“(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
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“(3) If it appears, upon motion that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of сounts or provide whatever other relief justice requires.”
(Emphasis added.)
In his pretrial motion to sever, defendant contended that denying severance would frustrate his ability to present separate defenses; that he might wish to testify in one case and not the other; that a single jury hearing evidence for both charges could improperly use the evidence presented in both cases to “infer a criminal disposition”; that no evidence of the July incident would be admissible in the trial of the February incident and vice versa; and, finally, that the jury could cumulate the evidence of the separate crimes charged and find guilt when, if considered separatеly, it would not so find. The trial court denied defendant’s motion, concluding that defendant would not be substantially prejudiced by consolidation of the two DUII charges and that any prejudice inherent in joinder would be cured by appropriate jury instructions.
Before 1989, a defendant’s request to sever joined charges was allowed unlеss to do so was clearly improper. State v. Boyd,
Under
In ruling on defendant’s motion in this case the trial court stated only that
“[t]he juries are instructed to consider the evidence separately and decide each case on its own merits. And the case comes out of the same or similar crimes, and that means that the State is allowed to join them for the trial and that there is no substantial prejudice in doing that, and so thesе cases will remain joined for trial.”
In State v. Barone,
Here, however, the trial court did not require any of those protections at trial. Although the court opined that the jury instructions would protect defendant’s right to a fair trial, the trial court record reveals that the court’s conduct of the trial and the court’s jury instructions did not do so. The court gave no warning to the jury regarding separаte consideration of the charges in its precautionary instructions and did not instruct the jury at any time during the course of the trial that each charge and the evidence pertaining to it must be considered separately. The state presented one opening statement, one closing argument, and, at times, referenced both charges interchangeably.
In addition, the state presented defendant’s similar statements about his use of Vicodin in both cases, permitting the jury to infer that defendant was a habitual user and therefore more likely to have been under the influence on both dates.
In sum, due to the similarity of that evidence and the trial court’s failure to adequately instruct the jury, I would conclude that it is unlikely that the jury was able to separately consider the charges.
Finally, the state does not argue, as a justification for the joint trial that occurred here, that the evidence would be mutually admissible in separate trials. The state is correct not to advance that argument. In the July incidеnt, defendant submitted to field sobriety tests and a breath test, whereas in the February incident, defendant submitted to neither. The state’s witnesses were different for each case. Put simply, no permissible basis existed for the evidence from the July incident to be considered with regard to the February incident and vice versa.
Based on the fоregoing, I would conclude that the trial court erred when it failed to engage in the case-specific assessment of the charges and the facts alleged to support them as required under Miller, and by not properly instructing the jury that each charge and the evidence related to it must be considered separately. As a result, defendant suffered substantial prejudice that violated his right to a fair trial. I would reverse
I, therefore, respectfully dissent.
In closing argument, the prosecutor stated “[W]hat you have in this case, and in both cases, is the defendant admits to taking Vicodin. The defendant clearly consumed alcohol by his level of intoxication, the odors. And that defendant was impaired in both cases.”
Instead, the court repeatedly referred to the charges as “the case.’