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State v. Bartell

Superior Court of Delaware, Kent

January 25, 2017

STATE OF DELAWARE,
v.
MARK A BARTELL, Defendant.

          Submitted: January 13, 2017

         Upon Defendant's Motion to Sever. Denied.

          Denise 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.

          ORDER

          Hon. William L. Witham, Jr. Resident Judge

         Before 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.

         The motion is denied.

         STANDARD OF REVIEW

         Under 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.'"[1] But "a trial court may grant severance if the defendant is prejudiced by the joinder."[2]

         THE PARTIES' CONTENTIONS

         Mr. 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.

         The 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 prejudice.

         DISCUSSION

         Prejudicial 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."[3] An essential and potentially dispositive inquiry is "whether the evidence of one crime would be admissible in the trial of the ...


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