Crim. P. 14

History

ANNOTATION Duty of trial judge. The trial judge has a duty to safeguard the rights of the accused and to ensure the fair conduct of the trial, and, in furtherance of that duty, he has broad discretion to order a separate trial of counts when their joinder would result in prejudice. People v. Ful- lerton, 186 Colo. 97, 525 P.2d 1166 (1974). Consolidation of trials, when the defen- dant uses a common scheme to commit highly similar crimes, is not an abuse of dis- cretion. People v. Gross, 39 P.3d 1279 (Colo. App. 2001); People v. Bondsteel, 2015 COA 165, 442 P.3d 880, aff’d, 2019 CO 26, 439 P.3d 847. Purpose of severance is to promote a fair determination of guilt or innocence of one or more defendants. People v. Horne, 619 P.2d 53 (Colo. 1980). Matter of election is within the sound dis- cretion of trial court. People v. Mayfield, 184 Colo. 399, 520 P.2d 748 (1974). And motion for separate trial is addressed to sound discretion of trial court. People v. Maestas, 183 Colo. 378, 517 P.2d 461 (1973); Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965); Small v. People, 173 Colo. 304, 479 P.2d 386 (1970); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972); People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973); People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973); People v. Walker, 189 Colo. 545, 542 P.2d 1283 (1975); People v. Martinez, 190 Colo. 507, 549 P.2d 758 (1976); People v. McCrary, 190 Colo. 538, 549 P.2d 1320 (1976); People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977); People v. Horne, 619 P.2d 53 (Colo. 1980); People v. Wortham, 690 P.2d 876 (Colo. App. 1984). A motion for severance is directed to the sound discretion of the trial court, and, absent an abuse of that discretion resulting in prejudice to the moving defendant, denial of the motion will not be disturbed on appeal. People v. War- ren, 196 Colo. 75, 582 P.2d 663 (1978); People v. Allen, 42 Colo. App. 345, 599 P.2d 264 (1979); People v. Horne, 619 P.2d 53 (Colo. 1980); People v. Martinez, 652 P.2d 174 (Colo. App. 1981); People v. Early, 692 P.2d 1116 (Colo. App. 1984); People v. Hoefer, 961 P.2d 563 (Colo. App. 1998). And what constitutes abuse of discretion depends upon facts of each particular case. People v. Trujillo, 181 Colo. 350, 509 P.2d 794 (1973); Hunter v. District Court, 193 Colo. 308, 565 P.2d 942 (1977). To show abuse of discretion with respect to the denial of a motion to sever counts, a defen- dant must demonstrate that joinder caused ac- tual prejudice and that trier of fact was unable to separate the facts and legal principles appli- cable to each offense. People v. Knight, 167 P.3d 141 (Colo. App. 2006); People v. Cousins, 181 P.3d 365 (Colo. App. 2007); People v. Gar- cia, 2012 COA 79, 296 P.3d 285. And court granted discretion in determin- ing prejudicial circumstances. Although this rule specifies one situation in which separate trials of joint defendants are mandatory, it leaves to the trial court’s discretion the determi- nation of what circumstances may prejudice a sole defendant if multiple counts against him are joined in a single trial. People v. Gallagher, 194 Colo. 121, 570 P.2d 236 (1977). There must be actual prejudice to the de- fendant and not just differences that are inher- ent in any trial of different offenses. People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977); People v. Early, 692 P.2d 1116 (Colo. App. 1984): People v. Guffie, 749 P.2d 976 (Colo. App. 1987). Joinder requiring disclosure of prior con- viction denies fair trial. Joinder of counts, one of which requires the disclosure of the defen- dant’s prior conviction to the jury panel at the inception of a case, so taints the trial with the defendant’s prior criminality that a fair trial on the other counts is impossible. People v. Peter- son, 633 P.2d 1088 (Colo. App. 1981). And unfairness to deny defendant favor- able inferences of codefendant’s silence. There is a distinct element of unfairness, albeit not always prejudicial, in denying one codefen- dant any favorable inference to be drawn from the other’s silence, for it prohibits him from urging upon the jury every point favorable to his case. People v. Warren, 196 Colo. 75, 582 P.2d 663 (1978). When denial of severance disturbed on ap- peal. Absent an abuse of discretion resulting in prejudice to the moving defendant, a denial of a motion for severance will not be disturbed on appeal. People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973). Assuming the trial court abused its discretion in denying defendant’s motion to sever, the abuse of discretion was harmless where the evi- dence supporting the charges was overwhelm- ing; the trial court instructed the jury to con- sider the evidence and law applicable to each county separately; and the jury acquitted defen- dant of the most serious charge. People v. Washington, 2022 COA 62, 517 P.3d 706. And inartfully raised motion to sever is sufficient to preserve issue for appeal. People v. Peterson, 633 P.2d 1088 (Colo. App. 1981). Factors to be considered on motion for severance. Motion for severance will be granted when grounded on the presence of four factors: (1) The defenses of the defendants were antagonistic; (2) one defendant took the stand and his attorney could not comment on the other defendant’s silence; (3) one defendant, if tried first, could conceivably testify on behalf of the other at the later trial; (4) the evidence was largely circumstantial and stronger against one defendant. People v. Robles, 183 Colo. 4, 514 P.2d 630 (1973). Necessity of severance is tested by the stan- dard that it must be ‘‘deemed appropriate to promote a fair determination of the guilt or innocence of a defendant’’, and that standard, in turn, is tested by the following: (1) Whether the number of defendants or the complexity of the evidence is such that the jury will probably confuse the evidence and law applicable to each defendant; (2) whether evidence inadmissible against one defendant will be considered against the other defendant despite admonitory instructions; (3) whether there are antagonistic defenses. People v. Maestas, 183 Colo. 378, 517 P.2d 461 (1973); People v. Warren, 196 Colo. 75, 582 P.2d 663 (1978). When deciding whether to grant a motion for severance, the trial court should consider whether evidence inadmissible against one de- fendant will be considered against the other defendant, despite the issuance by the trial court of the proper admonitory instructions. An addi- tional consideration is whether the defendants plan to offer antagonistic defenses. People v. Gonzales, 198 Colo. 450, 601 P.2d 1366 (1979). Important inquiry is whether the trier of fact will be able to separate the facts and legal theories applicable to each offense. People v. Pickett, 194 Colo. 178, 571 P.2d 1078 (1977); People v. Taylor, 804 P.2d 196 (Colo. App. 1990). Joinder of offenses permissible to show common elements. Joinder of sexual assault offenses is permissible where the evidence tend- ing to prove each offense would be admissible in separate trials to show common plan, scheme, design, identity, modus operandi, mo- tive, guilty knowledge, or intent. People v. Al- len, 42 Colo. App. 345, 599 P.2d 264 (1979). Desire to testify on one count does not entitle defendant to separate trial. The mere fact that defendant wishes to testify on one count and not on the other does not automati- cally entitle one to severance. People v. Walker, 189 Colo. 545, 542 P.2d 1283 (1975); People v. Early, 692 P.2d 1116 (Colo. App. 1984); People v. Garcia, 2012 COA 79, 296 P.3d 285. And fact of antagonistic defenses may not always demand severance, but certainly it jus- tifies separate trials in many instances. Eder v. People, 179 Colo. 122, 498 P.2d 945 (1972). When separate trial not required. Where references to a defendant are carefully and com- pletely deleted from a codefendant’s written statement which also implicates the defendant and the jury is instructed that such written state- ment is to be considered solely for the purpose of determining the guilt or innocence of the codefendant, then, in a separate trial of the defendant as an accessory, the questioned state- ment, under such a limiting instruction, would be admissible on the issue of the guilt of the codefendant, and, accordingly, this rule, by its very terms, does not require a separate trial. Stewart v. People, 161 Colo. 1, 419 P.2d 650 (1966). Bifurcated trial before single jury did not result in defendant being denied his right to a fair trial on previous offender charges or abuse of court’s discretion in denying motion for separate trials before different juries. People v. Robinson, 187 P.3d 1166 (Colo. App. 2008). When separate trial to be granted as of right. Upon motion, any defendant must be granted a separate trial as of right if the court finds that the prosecution probably will present, against a joint defendant, evidence, other than reputation or character testimony, which would not be admissible in a separate trial of the mov- ing defendant. Ruark v. People, 158 Colo. 287, 406 P.2d 91 (1965); Kurtz v. People, 177 Colo. 306, 494 P.2d 97 (1972); People v. Horne, 619 P.2d 53 (Colo. 1980). Joint trial resulted in reversible prejudice when defendant had to defend himself against both the prosecution and his codefendant; the joint trial prevented defendant from fully con- fronting the witnesses against him and thus from presenting a complete defense; defendant received one fewer peremptory challenge than his codefendant and was denied an additional challenge when confronted with a potential ju- ror who expressed concern over retaliation; and the number of limiting instructions given in the case defeated any curative effect they may have had on the prejudice resulting from a joint trial. People v. Gutierrez, 2021 COA 110, 499 P.3d 367. Severance not mandatory where one code- fendant testifies while other does not. The fact that one codefendant testifies while the other does not, does not mandate severance. People v. Toomer, 43 Colo. App. 182, 604 P.2d 1180 (1979). But if defendant fails to move for sever- ance, he cannot raise question on appeal. Pineda v. People, 152 Colo. 545, 383 P.2d 793 (1963); Reed v. People, 174 Colo. 43, 482 P.2d 110 (1971); People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972), overruled in Bondsteel v. People, 2019 CO 26, 439 P.3d 847. Failure to renew pretrial motion to sever waives right to challenge trial court’s denial on appeal. People v. Aalbu, 696 P.2d 796 (Colo. 1985), overruled in Bondsteel v. People, 2019 CO 26, 439 P.3d 847. A party need not renew a pretrial motion for severance or a pretrial objection to join- der in order to preserve his or her opposition to an order joining cases for trial. Bondsteel v. People, 2019 CO 26, 439 P.3d 847 (overruling People v. Barker, 180 Colo. 28, 501 P.2d 1041 (1972), and People v. Aalbu, 696 P.2d 796 (Colo. 1985)). Nor where defendant accedes to limitation on admissibility of evidence. Where the trial court rules that certain evidence is admissible only as to a codefendant and the defendant accedes to this ruling, he waives any further objection. Maes v. People, 169 Colo. 200, 454 P.2d 792 (1969). And motion need not detail specific objec- tionable evidence. Where the court has no ba- sis for concluding that the defendant was aware of objectionable testimony relied on in a motion for severance of trials until after the trial com- menced, and the defendant rightfully filed his motion before the evidence was presented, it is not necessary for the motion to make reference to the specific evidence being relied upon. People v. Gonzales, 43 Colo. App. 312, 602 P.2d 6 (1978), rev’d on other grounds, 198 Colo. 450, 601 P.2d 1366 (1979). But motion for severance must contain evi- dence which is claimed to be incompetent toward the moving party, so that the court will be given the opportunity to determine whether the one requesting a severance may be preju- diced by testimony admissible against the code- fendant, but not admissible as to him. Padilla v. People, 171 Colo. 521, 470 P.2d 846 (1970); People v. Gonzales, 43 Colo. App. 312, 602 P.2d 6 (1978), rev’d on other grounds, 198 Colo. 450, 601 P.2d 1366 (1979). Applied in People v. Story, 182 Colo. 122, 511 P.2d 492 (1973); People v. Lyons, 185 Colo. 112, 521 P.2d 1265 (1974); People v. Ciari, 189 Colo. 325, 540 P.2d 1094 (1975); People v. Renfrow, 193 Colo. 131, 564 P.2d 411 (1977); People v. McGregor, 635 P.2d 912 (Colo. App. 1981); People v. Peterson, 656 P.2d 1301 (Colo. 1983); People v. Gregory, 691 P.2d 357 (Colo. App. 1984).