Submitted: January 13, 2017
Defendant's Motion to Sever. Denied.
Weeks-Tappan, Esquire of the Department of Justice, Dover,
Delaware; attorney for the State.
J'Aime L. Walker, Esquire of the Public Defender's
Office, Dover, Delaware; attorney for Defendant.
William L. Witham, Jr. Resident Judge
the Court is Defendant Mark Bartell's motion to sever
from the indictment two charges of Criminal Solicitation in
the First Degree. The grand jury first indicted Mr. Bartell
on two counts of Rape in the First Degree, Rape in the Fourth
Degree, Terroristic Threatening, and Offensive Touching. The
criminal solicitation charges were added after Mr. Bartell
allegedly solicited two fellow inmates to kill the victim of
the originally charged crimes.
motion is denied.
Superior Court Rule 8(a), two or more offenses may be joined
in the same indictment "if the offenses '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.'" But "a trial court may grant
severance if the defendant is prejudiced by the
Bartell argues that the offenses should be severed because
the solicitation allegedly occurred at James T. Vaughn
Correctional Center four months after the original offenses,
which were alleged to have occurred at Mr. Bartell's
residence. Mr. Bartell thus argues that the jury would be
"forced" to draw an improper inference of his
general criminal disposition based on the fact that he was in
custody at the time of the later offenses.
State argues that joinder is permissible based on Ashley
v. State because (1) the offenses are based on the same
act or transaction (namely, stopping the victim from
testifying), and (2) Mr. Bartell has not demonstrated
joinder may arise in any of the three situations: (1)
"when the jury might cumulate the evidence of the
various crimes charged and find guilt when, if considered
separately, it would not so find;" (2) "when the
jury might use the evidence of one of the crimes to infer a
general criminal disposition of the defendant in order to
find guilt of the other crime or crimes;" (3) "when
the defendant might be subject to embarrassment or confusion
in presenting different and separate defenses to different
charges." An essential and potentially dispositive
inquiry is "whether the evidence of one crime would be
admissible in the trial of the ...