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State v. Kman

Superior Court of Delaware

March 8, 2017


          Submitted: December 9, 2017

         On the State's Motion for Partial Severance. GRANTED.

         On the State's Application for Dual Jury Procedure in Joint Trial. GRANTED.

          John W. Downs, Esquire and Danielle J. Brennan, Esquire, Deputy Attorneys General, Department of Justice, Wilmington, Delaware.

          Patrick J. Collins, Esquire, Collins & Associates, and Natalie S. Woloshin, Esquire, Woloshin, Lynch, and Natalie, P.A., Wilmington, Delaware, Attorneys for Defendant Michael Kman.

          Peter W. Veith, Esquire, Peter W. Veith Esq., P.A., and Anthony A. Figliola, Jr., Esquire, Greto Law, Wilmington, Delaware, Attorneys for Defendant Ryan Shover.


          RICHARD R. COOCH, R.J.


         Before the Court is the State's Motion to Sever the murder trials of co-defendants Michael Kman and Ryan Shover. The State moves for severance of the trials on grounds that the State expects to elicit testimony from alleged coconspirators that Kman confessed to the charged crimes and implicated Shover. All parties and the Court agree that, under Bruton v. United States, the State would be constitutionally barred by the Sixth Amendment from producing such testimony in a joint trial of the two defendants.[1] The State therefore has moved to sever the trial in order to present the co-conspirators' evidence at Kman's trial.

         The State also wishes to try the defendants simultaneously, but before two separate juries. Kman does not oppose the State's application. However, and although Shover agrees that a Bruton issue exists, he requests separate trials because of claimed prejudice resulting from his "anticipate[d]" antagonistic defenses.

         Since a Bruton issue exists and no party objects to severance, the issue presented at this stage of the proceedings is whether a dual jury trial will result in unfair prejudice to the co-defendants should they hypothetically choose to present mutually antagonistic defenses. The Court, finding that a dual jury trial will (1) enable the State to present its desired evidence, (2) mitigate any unfair prejudice that could result from the hypothetical antagonistic defenses, and (3) substantially promote judicial economy, grants the State's Motion to Sever and thus grants the State's application to try the two defendants simultaneously before two separate juries.[2] The Court will remove, as needed, one jury from the courtroom when evidence that is inadmissible as to a particular defendant is offered, as well as undertake other measures necessary to ensure a fair trial under the unusual procedural circumstances of a dual jury trial.


         On January 19, 2016, a grand jury indicted both defendants jointly on two counts of Murder First Degree, two counts of Possession of a Deadly Weapon During the Commission of a Felony, Conspiracy First Degree, and Insurance Fraud. The State alleges that the two defendants in this action conspired with two other co-conspirators to murder Wayne Cappelli in order to receive proceeds from Cappelli's insurance policy. The two alleged co-conspirators, Paul DiSabatino and David Hess, were charged with the same charges, but resolved their cases before they were indicted, with agreements to testify against Kman and Shover. Additionally, the State asserts that two other witnesses will testify that Shover confessed his role in the Cappelli homicide to them.

         Kman and Shover are scheduled to be tried jointly beginning January 8, 2018 before one jury. The State estimates that its case-in-chief for a dual jury trial of both defendants will take approximately four weeks, exclusive of the time needed for any defense cases. The State estimates that its case-in-chief in separate trials for each defendant will last about three weeks, again exclusive of any defense case. Kman's and Shover's attorneys have each advised the Court that their defense cases will each take no more than about a week, no matter which trial format is utilized.


         A. The State's Contentions

         The State acknowledges that, although the defendants were charged in the same indictment, the defendants' trials must be severed due to Bruton issues. The State agrees that DiSabatino's and Hess' testimonies that Kman confessed to them and implicated Shover would be a violation of Shover's Sixth Amendment right to confront witnesses against him under Bruton, since he would potentially be unable to cross-examine Kman about his statement. Therefore, the State asserts that the two trials must be severed to prevent any infringement on Shover's constitutional rights.

         The State also urges that the most efficient way to resolve the severance issues is to conduct the trials of the two defendants at the same time before the same judge, but before two separate juries. In its motion, the State asserts that "[t]he suggested procedure would have the advantage of conserving scarce judicial and attorney resources."[4] The State advises that this dual jury procedure of severance has previously been used by or approved by this Court. Additionally, in response to Shover's contention of unfair prejudice resulting from the potential presentation of mutually antagonistic defenses, the State argues that "Shover must show a 'reasonable and not hypothetical probability that substantial prejudice may result'" from the presentation of mutually antagonistic defenses.[5]

         B. Shover's Contentions

         Shover contends that there should be two completely separate trials. Shover agrees that a Bruton issue exists, requiring severance. However, Shover asserts that using the method of holding the trials simultaneously before two juries is "so highly prejudicial that it will deny him a fair trial" because he and Kman "may" present antagonistic defenses. Shover argues that

[w]hile both defendants are charged with two counts of murder out of similarly stituated facts, the defense at trial will be antagonistic. Simply put, Shover's defense anticipates arguing that Kman conspired with co-defendants DiSabatino and Hess to kill the victim, and Shover had no involvement in this scheme. Similarly, the defense submits that Kman may put forth a defense arguing the murder was committed by Shover, and the other co-defendants denying any culpability for the murder. As such, the jury would need to reject one defense in order to convict either defendant creating a strong showing of prejudice.[6]

         Additionally, "Shover's defense anticipates arguing actual innocence laying criminal culpability for the murder of Cappelli at the feet of his co-defendant, Michael Kman."[7]

         Shover alternatively requests that, should the Court grant the State's request to hold a single trial before two juries, the Court impose the following procedural safeguards: "A. Assignment of two bailiffs for each jury; B. Separate [c]lerks for each defendant; C. Separate court reporters for each defendant; and D. Sequestration of the juries when they arrive and leave the courthouse, and during all breaks including the lunch recess."[8]


         A. All Parties and the Court Agree That Severance of the Defendants' Trials is Appropriate in This Case

         In evaluating whether a motion for severance of co-defendants should be granted, the Court looks at four factors: "(1) problems involving a co-defendant's extra-judicial statements; (2) an absence of substantial independent competent evidence of the movant's guilt; (3) antagonistic defenses as between the co-defendant and the movant; and (4) difficulty in segregating the State's evidence as between the [defendants]."[9] The only factors at issue are the first and the third factors.

         1. Hess' and DiSabatino's Evidence Pose Bruton Issues

         Kman and Shover were both charged in the same indictment pursuant to Superior Court Criminal Rule 8(b).[10] At the scheduled joint trial of the two defendants, the State intends to adduce testimony from DiSabatino and Hess that Kman made a statement to them confessing his involvement in the charged crimes and implicating Shover. The State and the defendants agree that, pursuant to Superior Court Criminal Rule 14, [11] the trials of Kman and Shover must be severed insofar as Bruton is concerned in order to permit the State to put forward its evidence of Kman's confession and implication of Shover before Kman's jury only.

         As the United States Supreme Court held in Bruton, an out-of-court statement of a non-testifying defendant that implicates his co-defendant cannot be admitted at a joint trial of the two defendants.[12] Reaffirming the rule announced in Pointer v. State of Texas, the Bruton court stated: "the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him' secured by the Sixth Amendment."[13] If the confessing defendant does not testify at the joint trial of the two defendants, then the co-defendant is not afforded his right to confront the confessing defendant.[14] Delaware courts have routinely considered Bruton issues as a factor in determining whether to sever the defendants' trials.[15]

         The testimony that the State intends to elicit from DiSabatino and Hess will be a statement made to them by Kman in which he confessed to the crimes and implicated Shover. At a joint trial between the two defendants, Shover would be unable to exercise his constitutional right to cross-examine Kman regarding his statement since Kman has the constitutional right not to testify. Accordingly, as provided in Bruton, presentation of Kman's statement to DiSabatino and Hess in Shover's trial would violate Shover's Sixth Amendment right to confront witnesses against him.

         2. The Claimed Antagonistic Defenses "[A]nticipate[d]" by Shover are Hypothetical and Do Not Now Warrant Severance

         Whether two defendants will offer mutually antagonist defenses is a factor to consider in evaluating whether severance is appropriate. The issue posed by mutually antagonistic defenses presented to the same jury is that they may "force the jury to accept the defense of one defendant only by rejecting the defense offered by the [the] other."[16] However, the Delaware Supreme Court has held that a mere hypothesis that mutually antagonistic defenses will be presented is insufficient grounds for a severance. In Stevenson v. State, the Supreme Court affirmed the decision of this Court, stating:

The Superior Court denied the pre-trial motion for severance of Stevenson's and Manley's trials in a carefully written opinion, which stated, in part, the following:
Here, both defendants appear to argue that mutually antagonistic defenses are present in this case because the evidence indicates that only one of them committed the lethal act. Neither defendant gave a statement to the police and neither defendant has proffered to this Court what the core of his defense is. In the final analysis, all that the defendants are offering to this Court is the hypothesis that mutually antagonistic defenses exist, without any evidence to suggest that they exist in fact. What seems apparent is the belief of each defendant that his chances for acquittal would be enhanced by severance.
We . . . have reached the same conclusion. [17]

         This Court also held in State v. Gibbs that severance was not appropriate when the party moving for severance only proposed a "hypothesis that mutually antagonistic defenses exist."[18] This Court reasoned in Gibbs that the "hypothesis[] that generally antagonistic defenses exist[] is not a sufficient basis for the Court to grant a severance."[19]

         Here, Shover has advised through counsel that he will present a defense of "actual innocence, " placing responsibility for Cappelli's murder on Kman, and set forth his apparent belief that Kman will also argue actual innocence and blame him for Cappelli's murder. However, as Kman has not proffered whether or not that will be his defense, Shover's belief is merely hypothetical at this stage. Whether, and to what extent, Shover will actually pursue this defense is also only hypothetical. As Stevenson and Gibbs indicate, severance is not appropriate based merely on hypothetical antagonistic defenses.

         B. The Multiple Jury Procedure is Used by Other Jurisdictions and by Delaware Courts when Faced with Bruton and Antagonistic Defense Issues

         1. Other Jurisdictions Conduct a Single Trial Before Two Juries When Bruton Issues are Present or When the Co-Defendants Present Mutually Antagonistic Defenses

         In the context of Bruton issues in federal cases, one authority has commented on the propriety of the dual jury practice:

Applying this Bruton rule, trial courts have generally granted severances under [Federal Rule of Civil Procedure] 14, where confessions or other admissions can be admitted against only one defendant. A few courts, however, have experimented with other procedures in an attempt to satisfy Bruton while avoiding the time and expense of separate trials for codefendants. Among such procedures are the use of bifurcated trials, in which a verdict is returned on one defendant before the jury hears the admission of the codefendant and multiple jury trials, in which different juries return verdicts on different defendants and hear only the evidence admissible against the particular defendant whose case they are considering.[20]

         In a law review note analyzing the use of dual juries, Kaitlin Canty reviewed the use of dual juries in United States federal and state courts.[21] In her thirty-five page law review note, Canty extensively sets forth a detailed overview of state and federal courts' use of the multiple jury procedure, a thorough analysis of the costs and benefits of the procedure, and recommended guidelines for implementing the procedure. This Court has relied (as have other authorities) on Canty's law review note for guidance this decision.

         "Although used primarily in connection with the problem of codefendant statements, multiple juries have also been utilized in order to minimize prejudice at a joint trial of codefendants who assert antagonistic defenses, for purposes of judicial economy, and to spare the victim the ordeal of testifying at multiple trials."[22] In Wayne R. LaFave's treatise, Criminal Procedure, the practice is described as another "remed[y] for a Bruton-type confession."[23] That treatise cites People v. Harris, in which the California Supreme Court observed, "[i]n every federal and state decision called to our attention by the parties, the court has upheld against constitutional attack the dual jury procedure as used in the case before it."[24]Additionally, Canty observed that "the vast majority of [appellate] courts have upheld convictions [resulting from multiple jury trials], even while criticizing the practice."[25]

         Other jurisdictions have often used two juries in the same trial to consider both defendants' antagonistic defenses. In People v. Hana, the Michigan Supreme Court commented on this practice:

[t]he presence of two juries in the defendants' cases is significant. Where mutually antagonistic defenses are presented in a joint trial, there is a heightened potential that a single jury may convict one defendant, despite the absence of proof beyond a reasonable doubt, in order to rationalize the acquittal of another. That dilemma is not presented to dual juries. Each jury is concerned only with the culpability of one defendant; thus, they both can find the defendants innocent or guilty without the uneasiness or inconsistency that would be presented to a single jury in a joint trial. The chance for prejudice is therefore significantly lessened.[26]

         Additionally, convictions rendered using the multiple jury procedure to prevent prejudice from antagonistic defenses have been expressly affirmed by appellate courts in New Jersey, [27] Illinois, [28] Nevada, [29] and many federal Courts of Appeal[30]for reasons similar to those articulated by the Michigan Supreme Court.

         However, the general practice of holding dual jury trials has not been endorsed by all jurisdictions. In People v. Ricardo B., the New York Court of Appeals advised ...

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