3.4 Joinder and Severance

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

3.4 JOINDER AND SEVERANCE

3.401 Joinder of Defendants.

A. On Motion of Commonwealth. Section 19.2-262.1 of the Virginia Code provides that, on motion of the Commonwealth, the court may order persons charged with participating in contemporaneous and related acts or in the same series of acts to be tried jointly unless a joint trial would constitute prejudice to a defendant. Before this statute was adopted in 1993, Virginia had recognized that a defendant's election to be tried separately was "a matter of right" and not subject to judicial discretion. ²⁵ During their 10-year experience with joint trials, Virginia courts have looked to the federal system for guidance because both the federal rules and the Virginia statute focus on prejudice as the determinative factor governing joinder. ²⁶

B. Discretion of Court and Burden of Proof. Although trial courts may not join totally unconnected defendants, ²⁷ joinder generally rests within the sound discretion of the trial judge, ²⁸ and the party moving for severance has the burden of proving that a joint trial will result in prejudice. ²⁹

C. Prejudice. Prejudice may be found where: (i) evidence that would be inadmissible against a defendant if tried alone is admitted in a joint trial against a co-defendant; (ii) exculpatory evidence that would be available to a defendant if tried alone is unavailable if tried jointly; or (iii) the co-defendants exhibit markedly different degrees of culpability. ³⁰

Prejudice "does not exist merely because a co-defendant has a better chance of acquittal if tried separately." ³¹ Generally, prejudice is not established by showing that there will be differences in trial strategy among the co-defendants or that the defendants plan conflicting and inconsistent defenses. ³² The Fourth Circuit, however, recognized that severance is necessary

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if "the taking of an adversarial stance on the part of a co-defendant's counsel may generate trial conditions so prejudicial to the defendant under multiple attack as to deny him a fair trial." ³³ A defendant has the right to cross-examine a co-defendant only if the co-defendant's testimony was incriminating. ³⁴

D. Heightened Standard for Joinder in Capital Cases. A heightened standard for joint trials may apply in capital cases, particularly if evidence against one defendant, such as his or her statement to police, would be inadmissible against the other defendant and cannot be meaningfully redacted. ³⁵ In United States v. Tipton, ³⁶ the Fourth Circuit addressed the United States Supreme Court's recognition of the constitutionally grounded need for "a greater degree of reliability when the death sentence is imposed" and of the need for "individualized consideration" of the death penalty. Tipton rejected a per se rule prohibiting joint trials of capital defendants but observed that, although the question of severance is normally committed to the trial court's discretion, that discretion is "constitutionally constrained at its outer limits and, as a corollary, that our standard of review is for abuse of a discretion so constrained." ³⁷ The Fourth Circuit recently held that a noncapital defendant is not entitled to severance from trial with death qualified defendants. ³⁸

E. Peremptory Challenges Must Be Shared. If a joint trial is ordered, the co-defendants must share peremptory challenges. ³⁹

F. Co-Defendant Confessions. Joint trials also create special problems relating to the use of one co-defendant's confession as evidence against another co-defendant. ⁴⁰ Ordinarily, a limiting instruction is adequate to deal with cases where "evidence is introduced which is admissible against one co-defendant but inadmissible against another." However, the ordinary

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rule does not apply in cases involving the Confrontation Clause. ⁴¹ Lilly v. Virginia ⁴² held that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence," and such confessions are "inherently unreliable." On remand, the Virginia Supreme Court found that admission of the accomplice's confession was not harmless error because, "where the principal direct evidence against the accused is the testimony of an accomplice, the credibility of that witness will be a significant factor in the jury's determination of the accused's level of culpability." ⁴³ The Confrontation Clause, however, does permit "redacted statements that refer to the existence of another party who may be the defendant through symbols or neutral pronouns"—for example, "Me and a few guys beat up the victim." ⁴⁴

G. Severance After Jeopardy Attaches. Once jeopardy attaches at a joint trial, a defendant can be severed from the proceedings only upon a finding of manifest necessity. When such necessity exists, however, it is within the trial court's discretion to choose which defendant will continue the trial and which defendant will be severed for a subsequent retrial. ⁴⁵

H. Use of Inconsistent Theories by Commonwealth. In Farmer v. Commonwealth, a noncapital case, the Court of Appeals held: "In the absence of prosecutorial misconduct or bad faith, there is no due process basis for reversing Farmer's convictions simply because the prosecution proceeded under inconsistent theories of the identity of the principal in the first degree in the trial of Farmer and Williams." ⁴⁶

I. Effect of Judgment at Co-Defendant's Separate Trial. In another noncapital case, Ferrell v. Commonwealth, ⁴⁷ the Court of Appeals

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held that when "a principal in the first degree and a principal in the second degree in the same offense have separate trials, the judgment against one, whether of conviction or of acquittal, has no bearing upon a judgment against the other."

3.402 Joinder of Offenses. Rule 3A:10(c) of the Rules of the Supreme Court of Virginia permits the court to order a trial on all pending offenses "if justice does not require separate trials" and the offenses are joinable under Rule 3A:6(b) or the accused and the Commonwealth consent. "The erroneous refusal to sever offenses is harmless in a bench trial absent clear evidence that the trial court (1) considered inadmissible evidence in convicting the accused of the charged offense, or (2) used the harmless error doctrine prospectively as a basis to disregard an established rule of law." ⁴⁸

If the defendant does not consent to joinder, the first requirement for joinder is to establish that justice does not require separate trials. ⁴⁹ In general, justice requires separate trials when evidence of one offense would not be admissible...