Section 20.7 Trials on Multiple Counts

• Library: Criminal Practice 2012 Supp

VI. (§20.7) Trials on Multiple Counts

Joinder of offenses into multiple counts in a single indictment or information is allowed if the offenses charged “are of the same or similar character or based on two or more acts that are part of the same transaction or on two or more acts or transactions connected or that constitute parts of a common scheme or plan . . . .” Rule 23.05; see also § 545.140.2, RSMo 2000.

The breadth of Rule 23.05 is consistent with the rule that a defendant in a criminal case has no federal or state constitutional right to be tried on only one offense at a time. State v. Perkins, 826 S.W.2d 385 (Mo. App. E.D. 1992).

There is, nevertheless, judicial discretion to grant a severance of properly joined criminal offenses if a denial of a severance would result in clear prejudice of a defendant’s right to a fair trial. State v. Allbritton, 660 S.W.2d 322 (Mo. App. E.D. 1983). The joinder of offenses is either proper or improper as a matter of law, and if the joinder is proper, whether to grant a severance is left to the discretion of the trial court. State v. Hobbs, 826 S.W.2d 851 (Mo. App. E.D. 1992).

The procedure for obtaining a severance is set out in Rule 24.07. The Rule requires that motions for severance of offenses be supported by a particularized showing of substantial prejudice if the offenses are not tried separately. The court must find the existence of a bias or discrimination against the party that requests a separate trial of the offense.

The filing of a motion for severance is essential. The trial court has no alternative and must try all offenses charged in a single indictment or information to one jury in a single trial when no motion for severance is filed. State v. Shubert, 747 S.W.2d 165 (Mo. App. W.D. 1988).

Factors to be considered by a trial court in ruling on a motion for severance include the following:

· The number of offenses charged

· The complexity of the evidence

· Whether the trier of fact will be able to distinguish the evidence and apply the law intelligently to each offense

State v. Shive, 621 S.W.2d 715 (Mo. App. S.D. 1981); State v. Stoer,
862 S.W.2d 348 (Mo. App. S.D. 1993).

Only the evidence of the state will be considered by a court of appeals in reviewing the trial court’s refusal to grant a severance. Perkins,
826 S.W.2d 385: State v. Morant, 758 S.W.2d 110 (Mo. App. E.D. 1988).

Because the propriety of joinder is a matter of law, the trial court’s decision is not entitled to deference. State...