Submitted: January 17, 2018
Below-Superior Court of the State of Delaware Cr. ID No.
STRINE, Chief Justice; VALIHURA, and TRAYNOR, Justices.
F. Traynor Justice
29th day of March, 2018, having considered the
briefs, the record below, and the argument of counsel, it
appears to the Court that:
Appellant Mark Bartell was indicted on two counts of rape in
the first degree and one count each of rape in the fourth
degree, terroristic threatening, and offensive touching. The
victim was Bartell's wife. Six months later, but still
eight months before trial, he was further charged with two
counts of criminal solicitation in the second degree, which
alleged that while he was awaiting trial, he solicited two of
his fellow inmates to murder his wife so that she could not
testify against him.
Bartell moved to sever the criminal solicitation charges for
trial on the grounds that the joinder of those charges with
the underlying offenses "impugned his
character" and "forced [the jury] to make an
improper inference as to [his] criminal
disposition." The Superior Court denied the motion and,
after a six-day jury trial, Bartell was convicted on all but
the terroristic-threatening and offensive-touching charges.
He was sentenced to seventy-five years of incarceration
followed by various levels of probation.
In this direct appeal, Bartell raises two claims of error.
First, he asserts that the Superior Court erred when it
denied his motion to sever. He claims to have suffered
substantial prejudice because the State was permitted to use
the criminal solicitation evidence to impugn his character
and draw an improper inference as to his general criminal
disposition. Second, Bartell contends that he was deprived of
a fair trial when the Superior Court failed to declare a
mistrial after witnesses injected inadmissible, irrelevant
and prejudicial testimony about his past conduct.
Under Superior Court Criminal Rule 8(a), "[t]wo or more
offenses may be charged in the same indictment or information
in a separate count for each offense if the offenses charged
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 if it appears that a defendant or the
State will suffer prejudice by a joinder of offenses, the
Superior Court may sever the offenses and order separate
trials or provide such other relief as justice
This Court reviews the Superior Court's denial of a
motion to sever for abuse of discretion. "The trial
court's decision to deny a motion to sever will be
reversed only if the defendant establishes a 'reasonable
probability' that the joint trial created
'substantial injustice.'" The defendant has
the burden of demonstrating prejudice, which must be more
than "mere hypothetical prejudice."
We have recognized that "a crucial factor to be
considered [in the prejudice analysis] is whether the
evidence of one crime would be admissible in the trial of the
other crime, because if it were admissible, there would be no
prejudicial effect in having a joint
trial." Evidence of other crimes is generally
admissible if it has "independent logical
relevance" and its probative value is not outweighed by
the danger of unfair prejudice.
(7) The Superior Court astutely drew a
parallel between the facts of this case and those presented
in Ashley v. State In that case, the defendant was
charged with several sex offenses against an 11-year old.
After he was indicted, the defendant participated in a scheme
to bribe the child's mother into withdrawing her
cooperation and declining to testify, which led to further
charges of bribery and related offenses. The defendant's
motion to sever the new charges was denied by the Superior
Court, and the defendant was found guilty of numerous
offenses. On appeal, we held that the motion was properly
denied. First, we recognized that the bribery charges met the
criteria for joinder under Rule 8(a) because the charges-
which arose from the defendant's attempt to stop the
victim's mother from testifying against him on the
underlying charges-were "based on the same act or
transaction" as the underlying charges. Second, we
observed that the defendant was not prejudiced by the joinder
of the bribery charges because evidence of that conduct would
have been admissible in a stand-alone trial on the underlying
charges for the purpose of showing consciousness of guilt.
Finally, we pointed out that if the charges had been severed,
the State would have had to call several of the same
witnesses from the trial on the underlying charges to prove
motive and interest in connection with the bribery charges,
which would have wasted judicial resources and subjected the
witnesses to a needless second turn on the stand.
The same dynamics are present here. Bartell's
solicitation of the two prison inmates to kill his wife was
admissible on the original charges to show his consciousness
of guilt. Had the solicitation charges been severed, the
State would have had to call many of the same witnesses from
the trial of the underlying charges to show why Bartell was
offering the inmates money to kill his wife.
Bartell raises the possibility that the evidence introduced
to prove his guilt on the solicitation charges-which included
the fact that the solicitation occurred while Bartell was
jailed-may have allowed the jury to make an improper
inference of guilt from the fact that had been detained prior
to trial. But as we observed, even if the underlying charges
were tried separately, his jury was going to hear of the
conduct giving rise to the solicitation charges as evidencing
his consciousness of guilt of the underlying charges.
Bartell's concern that the jury could misuse the
knowledge that he had been detained prior to trial is a valid
one, but the trial court met his concern by instructing the
jurors two separate times that they should not infer that
pretrial detention had any bearing on his guilt. In sum,
Bartell has not demonstrated that he suffered substantial
prejudice by virtue of the joinder of offenses.
(10) Bartell also claims for the first time
on appeal that the Superior Court should have declared a
mistrial because of "the injection of unsolicited,
inadmissible and highly prejudicial testimony from multiple
State witnesses, regarding Bartell's prior
history." Because he did not move ...