Opinion
I.D. Nos. 0608011196, 0608012308.
Submitted: January 19, 2007.
Decided: January 30, 2007.
State's Motion to Try the Defendant's Two Indictments Together. Granted. Defendant's Motion for Relief from Prejudicial Joinder. Denied.
Deborah J. Buswell, Esquire, Department of Justice, Dover, Delaware; attorneys for the State of Delaware.
John R. Garey, Esquire, John R. Garey, P.A., Dover, Delaware; attorneys for the Defendant.
ORDER
The Court has two pending Motions to consider. First, the State filed a Motion to Try the Defendant's Two Indictments Together. Second, the Defendant, Jason A. Dehorty, filed a Motion for Relief from Prejudicial Joinder.
The Defendant failed to respond to the State's Motion.
The Defendant's Motion pertains to Counts 1 — 9 of the first indictment. It does not include discussion of Counts 1-3 of the second indictment. The State's Response Motion does the same.
Mr. Dehorty was charged with nine (9) counts on August 12, 2006, and he was indicted on those counts on October 6, 2006 ("the first indictment"). The nine counts in the first indictment are as follows: 1) Resisting Arrest with Force, 2) Maintaining a Dwelling for Keeping Controlled Substances, 3) Disorderly Conduct, 4) Terroristic Threatening (towards Cpl. Gaglione), 5) Terroristic Threatening (towards TFC Weller), 6) Terroris tic Threatening (towards Cpl. Thomas), 7) Possession of Drug Paraphernalia, 8) Possession of a Non-Narcotic Schedule I Controlled Substance, and 9) Cruelty to Animals.
While being transported to Troop 3, after being arrested for the above 9 counts, the Defendant repeatedly threatened to kill Trooper Gaglione, the Trooper's wife and the Trooper's children. The following night, August 13, 2006, the Defendant contacted Trooper Gaglione's father by telephone in an attempt to obtain the Trooper's home telephone number. Those acts led to the Defendant being charged with three (3) more counts on August 13, 2006. The State indicted the Defendant on the three (3) charges ("the second indictment") on October 6, 2006, the same day as the first indictment. The three counts in the second indictment are as follows: 1) Act of Intimidation, 2) Tampering with a Witness and 3) Harassment.
Discussion
I. The State's Motion to Try Mr. Dehorty's Two Indictments Together is granted.
Superior Court Criminal Rule 13 gives the Court discretion to "order two or more indictments . . . to be tried together if the offenses . . . could have been joined in a single indictment . . . The procedure shall be the same as if the prosecution were under such single indictment." Superior Court Criminal Rule 8(a) states: "Two or more offenses may be charged in the same indictment . . . in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan."
Rule 8 has been interpreted as requiring "merely that an act upon which the first offense is based be linked in some fashion to an act upon which the second offense is based." In Miles, then Resident Judge Vaughn pointed out that "an overlap in evidence is not required for joinder under Rule 8, but it supports joinder." Further, the Court articulated that "although not required under Rule 8, the fact that the two incidents occurred on the same day supports joinder."
State v. Miles, 2001 WL 1719350 at *1.
Id.
Id. at *2.
The State argues that the acts that take place in the first indictment carry over to, and are culminated in, the acts that take place in the second indictment. The State points out that overlapping evidence of the threats made in the first indictment would be presented in the second case to establish intent, preparation, plan, motive and identity. Many of the same witnesses would testify in each trial. Further, the two incidents occurred within thirty-six (36) hours of each other. The State now wishes to try the two indictments together in a joint trial, in order to best serve judicial economy.
Mr. Dehorty's two (2) separate indictments pending before the Court are both scheduled for trial on February 7, 2007. Incidents leading to the charged offenses in the two indictments occurred within 36 hours of each other. There is overlapping evidence in both cases. The offenses in the second indictment stem from the incidents that led to the charges in the first indictment. Specifically, Mr. Dehorty called Trooper Gaglione's father as a direct result of the charges brought against him the previous day. Further, evidence leading to the charges in the first indictment and Mr. Dehorty's threatening remarks regarding the Trooper and his family are relevant to and overlapping with the charges brought in the second indictment. Many of the same witnesses would also be required to testify at the separate trials. A joinder of the Indictments would promote judicial economy and not be unduly prejudicial to the Defendant.
Based on the foregoing, the State's Motion to Try the Defendant's Two Indictments Together is granted.
II. Mr. Dehorty's Motion for Relief from Prejudicial Joinder is denied.
Superior Court Criminal Rule 14 provides relief from prejudicial joinder and states in relevant part: "If it appears that a defendant . . . is prejudiced by a joinder of offenses . . . for trial together, the court may order an election or separate trials of Counts . . . or provide whatever other relief justice requires . . . " Whether to grant or deny severance is a matter within the sound discretion of the trial court. Mere hypothetical prejudice from denial of motion to sever is not sufficient. In deciding the Defendant's Motion for Relief from Prejudicial Joinder, the Court must weigh the competing interests of the State and the Defendant, as well as the Court's interest in promoting judicial economy and efficiency. Where evidence concerning one crime would be admissible in the trial of another crime, there is no prejudicial effect in having a joint trial.
Bates v. State, 386 A.2d 1139, 1141 (Del. 1978).
Id. at 1142.
State v. Devonshire, 2004 WL 1588324, *1 (Del.Super.)
Bates, 386 A.2d at 1142.
Mr. Dehorty argues that the Title 1 6 Drug Offenses (Counts two, seven and eight) are not connected in any manner to the Title 11 Non-drug offenses (Counts one, three, four, five, six and nine). Mr. Dehorty further claims that the prejudicial nature of the drug offenses would severely prejudice the Defendant if all charges were tried together in front of the same jury at the same time. Finally, Mr. Dehorty argues that the counts were not a result of one series or transaction, because after he was arrested for the non-drug offense counts, the Police went into the house and located evidence leading to the Title 16 drug offense counts.
The Defendant also argues that Count 9 (Cruelty to Animals) is not connected to either Counts one, three, four, five and six or with Counts two, seven and eight.
The Defendant argues there is a substantial risk that the jury may deem him a bad person and, therefore, more likely to have committed all the offenses.
The State argues that the charges are all a result of one investigation and one arrest, because the officers arrived on the scene and during the course of their investigation of the Title 11 offenses, the Officers discovered drugs and paraphernalia (leading to the Title 16 charges). The State further articulates that all of the charges [in the first indictment] were brought as the result of one investigation by the same officers. Those officers never left the residence, and all of the offenses in the first indictment occurred at the same time.
It appears from the Police Officer's affidavit that upon taking the Defendant into custody outside the home for the Title 11 violations, the officers entered the residence to conduct a search for a child that was supposed to be in the residence. Exhibit B of the Justice of the Peace Adult Complaint and Warrant. There was no child in the residence, but during the search the Officer's discovered evidence leading to the Title 16 violations. Id. The affidavit articulates that the evidence was found in plain view. Id.
Concerning Counts 1 — 9 of the first indictment, which Defendant's Motion addresses, the Court finds that the Defendant will not be overly prejudiced by a joinder of the offenses. All of the charges occurred as a result of the same incident. The Police Officers went to the scene to investigate a disorderly conduct complaint. The officers arrested Mr. Dehorty for the Title 11 Offenses. The officers then conducted a search of the residence for a child that was supposedly inside the residence. Although no child was discovered in the home, evidence leading to the Title 16 Drug-Offenses was discovered as a result of the search. The Defendant generally states that he would be prejudiced, if all the charges were tried together, and there is a substantial risk that the jury may deem the Defendant is a bad person. Mere hypothetical prejudice is not sufficient. If the counts were severed, the State will likely have to call the same witness in separate trials, and there would be significant overlapping evidence. Judicial economy would best be served by trying the offenses in the first indictment counts, which arose out of the same incident, together.
Mr. Dehorty's Motion concerning Prejudicial Joinder does not address counts 1-3 of the second indictment. Due to the Court's ruling that the State may try the Defendant's two indictments together, the Court will address the possible prejudicial joinder of Counts 1 — 3 of the second indictment with the counts in the first indictment. As discussed in section I. of the Discussion section above, the offenses that led to the charges in the second indictment stemmed from incidents that led to the charges in the first indictment. The evidence is overlapping and relevant in both cases. Mere hypothetical prejudice is not enough, and the danger of the Defendant being deemed a bad person does not outweigh the promotion of judicial economy.
Based on the foregoing, the Defendant's Motion for Relief from Prejudicial Joinder is denied.
IT IS SO ORDERED.