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State v. Ferinden

Superior Court of Delaware

June 4, 2018

STATE OF DELAWARE,
v.
WALTER FERINDEN, Defendant.

          Submitted: June 4, 2018

         Upon Defendant's Motion for Relief From prejudicial Joinder Denied

          Jenna R. Milecki, Deputy Attorney General, Attorney for the State of Delaware

          Joe Hurley, Esq., Attorney for Walter Ferinden

          MEMORANDUM OPINION

          THE HONORABLE ANDREA L. ROCANELLI JUDGE.

         Before the Court is a Motion for Relief from Prejudicial Joinder filed by Defendant Walter Ferinden ("Defendant"). Defendant seeks separate trials for charges related to two different victims on the grounds that substantial prejudice will result from continued joinder. The State opposes Defendant's motion. The Court heard argument on Defendant's motion on April 18, 2018, and May 1, 2018. This is the Court's decision on Defendant's motion.

         FACTUAL AND PROCEDURAL BACKGROUND

         In June 2016, the New Castle County Police Department was asked to assist in an investigation being conducted by the FBI and New Jersey Detectives into late reported child sexual abuse. The investigation began when Thomas Leary contacted police to report that Defendant committed sexual abuse against him in approximately 1990. Leary alleged that the abuse began after he joined Defendant's hockey team when Leary was approximately thirteen years old. According to Leary, Defendant began buying Leary equipment, giving him money, and driving him to and from hockey practice. Leary alleges that Defendant then began taking Leary on trips in multiple states, where they would stay in hotel rooms. Leary alleges that he and Defendant would share a bed during these trips, and that Leary would often wake up to Defendant thrusting against Leary's side.

         Leary claims that two incidents of abuse occurred in Delaware. First, Leary alleges that Defendant placed his hands down Leary's pants and attempted to touch Leary while the two shared a bed at a Howard Johnson, but Leary pushed his hand away. Second, Leary claims that Defendant placed his hand down Leary's pants and masturbated Leary in the parking lot an ice rink in Wilmington. Leary alleges that the incidents of abuse occurred during 1990 and 1991.

         During his interview with the investigators, Leary identified Bernard Hoy as another potential victim of Defendant. The investigators contacted Hoy, who claimed that Defendant did commit sexual abuse against Hot when he was a child. Like Leary, Hoy clams that the abuse began after he joined Defendant's hockey team when Hoy was about ten or eleven years old. Hoy claims that Defendant began buying Hoy things and driving him to and from hockey practice. Hoy claims that Defendant then began taking Hoy on trips across multiple states, during which Defendant would share a bed with Hoy. Hoy alleges that, during these trips, he would often wake up to Defendant thrusting against his side.

         Hoy also claims that incidents of abuse occurred in Delaware. According to Hoy, Defendant lived with Hoy's mother for a period of time at her home in Delaware. Hoy alleges that Defendant engaged in similar abuse at Hoy's mother's home in Delaware. Hoy alleges that the abuse took place in or about 1990.

         Defendant was indicted on June 26, 2017 on nine counts of Unlawful Sexual Contact Second Degree. Counts I through VII relate to Defendant's alleged sexual contact with Bernard Hoy. Counts VIII and IX relate to Defendant's alleged sexual contact with Thomas Leary.

         Defendant now seeks to sever the charges relating to Bernard Hoy from the charges relating to Thomas Leary on the grounds that substantial prejudice would result from continued joinder because the jury will cumulate the evidence and infer a general criminal disposition to find guilt. In addition, Defendant argues that, if there were separate trials, evidence of crimes perpetrated against one victim would be inadmissible in the trial involving the other victim. The State opposes Defendant's motion.

         LEGAL STANDARD

         Under Superior Court Rule of Criminal Procedure 8, two or more offenses may be joined in the same indictment "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."[1] The rule of joinder "is designed to promote judicial economy and efficiency, provided that the realization of those objectives is consistent with the rights of the accused."[2] To that end, Superior Court Rule of Criminal Procedure 14 provides that the Court may order separate trials if it appears that a defendant is prejudiced by joinder of offenses in an indictment, even though the offenses were properly joined.[3]

         A motion to sever is addressed to the sound discretion of the trial court.[4] The defendant bears the burden of demonstrating that prejudice will result from denial of a motion to sever.[5] Mere hypothetical prejudice is insufficient to meet the defendant's burden.[6] There are three types of prejudice a defendant may suffer from joinder of offenses:

1) the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find;
2) the jury may 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; and
3) the defendant may be subject to embarrassment or confusion in presenting different and separate defenses to different charges.[7]

         An important factor to consider in ruling on a motion to sever is whether evidence of one crime would be admissible in trial of the other. If so, "there would be no unfair prejudice in having a joint trial."[8]

         DISCUSSION

         Defendant argues that the continued joinder of the charges relating to two separate victims would cause substantial prejudice because the jury will cumulate the evidence and infer a general criminal disposition to find guilt. In making this argument, Defendant argues that the factual circumstances relating to the alleged abuse of each victim are not similar enough to warrant continued joinder. Defendant also argues ...


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