Submitted: June 4, 2018
Defendant's Motion for Relief From prejudicial Joinder
R. Milecki, Deputy Attorney General, Attorney for the State
Hurley, Esq., Attorney for Walter Ferinden
HONORABLE ANDREA L. ROCANELLI JUDGE.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
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
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.
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.
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." 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." 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.
motion to sever is addressed to the sound discretion of the
trial court. The defendant bears the burden of
demonstrating that prejudice will result from denial of a
motion to sever. Mere hypothetical prejudice is
insufficient to meet the defendant's
burden. 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
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."
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