State v. Abel, 13498

• Decision Date: 08 June 1983
• Docket Number: No. 13498,13498
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Steven Lynn ABEL, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 772

664 P.2d 772

104 Idaho 865

STATE of Idaho, Plaintiff-Respondent, v. Steven Lynn ABEL, Defendant-Appellant.

No. 13498.

Supreme Court of Idaho.

June 8, 1983.

David Z. Nevin, Boise, for defendant-appellant.

David H. Leroy, Atty. Gen., Lynn E. Thomas, Sol. Gen., Lance D. Churchill, Deputy Atty. Gen., Boise, for plaintiff-respondent.

DONALDSON, Chief Justice.

During the early morning of April 28, 1979, two women were separately assaulted. Both incidents occurred in downtown Boise within approximately forty-five minutes and five blocks of each other. The first involved one assailant and the second involved two. The defendant-appellant Abel was subsequently identified by the victims as their assailant. Later regarding the two incidents, a single information charging Abel with six criminal counts was filed. The counts included assault with intent to rape, attempted kidnapping in the second degree, and a misdemeanor battery relating to each incident. Abel made a pretrial motion for separate trials regarding the two incidents which was denied. This motion was renewed at trial and again denied.

A jury found Abel guilty of four of the six counts and guilty of a lesser included offense. Following a motion to dismiss based on I.C. § 18-301, the trial court entered judgment against Abel for attempted kidnapping in the second degree with respect to the first incident and for assault with intent to commit rape in the second incident. Abel has perfected this appeal. Abel presents two issues--(1) whether the trial court abused its discretion in denying the appellant's motions for separate trials of the counts arising out of the separate incidents and (2) whether the trial court abused its discretion in allowing testimony of a remark made by one of the assailants in the second incident. We affirm.

I.

Abel argues that the offenses arising from the two incidents were improperly joined in the same information. Our examination begins with former I.C.R. 8(a) (applicable to this case). Former I.C.R. 8(a) provided that:

"(a) JOINDER OF OFFENSES. Two (2) or more offenses may be charged on the same complaint, indictment or information and a separate count for each offense if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character or based on the same act or transaction or on two (2) or more acts or transactions connected together or consistituting [constituting] parts of a common scheme or plan."

The offenses charged with respect to the first incident were of "the same or similar character" as those relating to the second incident. ¹ Joinder under former I.C.R. 8(a) was therefore proper. ²

II.

Our attention next focuses on the question of separate trials under former I.C.R. 14 which provided that:

"Relief from prejudicial joinder.--If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in a complaint, indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires. In ruling on a motion by a defendant for severance the court may order the attorney for the state to deliver to the court for inspection in camera any statements or confessions made by the defendants which the state intends to introduce in evidence at the trial." (Emphasis added.)

Abel made a pretrial motion which was renewed at trial for separate trials of the counts arising from the first incident from those counts arising from the second incident. The motions were denied. We hold that such motions are directed to the trial court's discretion. I.C.R. 14 ("the court may order") (emphasis added); see, e.g., Catlett v. State, 585 P.2d 553 (Alaska 1978); Stevens v. State, 582 P.2d 621 (Alaska 1978); People v. Matson, 13 Cal.3d 35, 117 Cal.Rptr. 664, 528 P.2d 752 (1974); People v. Rivas, 197 Colo. 131, 591 P.2d 83 (1979); State v. Matias, 57 Haw. 96, 550 P.2d 900 (1976); State v. Adams, 218 Kan. 495, 545 P.2d 1134, 1143 (1976) ("The crimes charged herein are either the same or similar offenses"); State v. Campbell, 615 P.2d 190 (1980); State v. McGill, 89 N.M. 631, 556 P.2d 39 (Ct.App.1976); State v. Weddel, 29 Wash.App. 461, 629 P.2d 912 (1981).

The federal courts have addressed the similar question of separate trials of counts under Fed.R.Crim.P. 14 upon which former I.C.R. 14 is based. ³ See, e.g., Bradley v. United States, 433 F.2d 1113 (D.C.Cir.1969); United States v. Foutz, 540 F.2d 733 (4th Cir.1976); United States v. Rox, 692 F.2d 453, 454 (6th Cir.1982) ("A defendant is prejudiced if the jury would be unable to keep the evidence from each offense separate and unable to render a fair and impartial verdict on each offense"); United States v. Neal, 692 F.2d 1296, 1305 (10th Cir.1982) ("For prejudice resulting from denial of a severance motion to justify reversal, the defendant must show more than just a better chance of acquittal at separate trials"); United States v. Harper, 680 F.2d 731, 733 (11th Cir.) (requires showing of compelling prejudice), cert. denied, 459 U.S. 916, 103 S.Ct. 229, 74 L.Ed.2d 182 (1982). In most federal cases motions for separate trials have been denied. See, e.g., Bradley v. United States, supra; see also 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 222 (1982) (citing cases).

Appellant relies upon United States v. Foutz, 540 F.2d 733 (4th Cir.1976) (reversal of convictions of two bank robberies), as support for his argument that the trial court erred in denying his motions for separate trials. The Foutz court with respect to a motion for severance of counts which had been properly joined as counts of the "same or similar character" stated that

"[w]hen two or more offenses are joined for trial solely on this theory, three sources of prejudice are possible which may justify the granting of a severance under Rule 14: (1) the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict him of either if it could keep the evidence properly segregated; (2) the defendant may be confounded in presenting defenses, as where he desires to assert his privilege against self-incrimination with respect to one crime but not the other; or (3) the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his criminal disposition." Id. at 736 (footnotes omitted); see also Drew v. United States, 331 F.2d 85, 88 (D.C.Cir.1964) (reversal of convictions of robbery and attempted robbery); 1 C. Wright, Federal Practice and Procedure: Criminal 2d § 222 at 778-79 (1982).

We will consider each of these potential sources of prejudice in turn.

A.

The first involves the potential prejudice that "the jury may confuse and cumulate the evidence." In this case, we believe that there was little likelihood that such would occur. See, e.g., Drew v. United States, 331 F.2d 85, 91-92 (D.C.Cir.1964) (noting the "simple and distinct" test). After a close review of the entire transcript and record, we conclude that the facts relating to each incident were so distinct and simple that there was little risk that after having received proper instruction that the jury cumulated or confused the evidence. The jury was properly instructed on the reasonable doubt standard and that each count charged a separate and distinct offense which must be decided separately on the evidence and law applicable to it uninfluenced by the jury's decision on any other count.

Appellant argues that the jury cumulated evidence. We consider it worth noting that the different verdicts with respect to the two charged counts of assault with intent to rape--not guilty with respect to the first incident and guilty with respect to the second--are indicia that the jury properly differentiated and separated the evidence relative to each count. See Nix v. State, 653 P.2d 1093, 1099 (Alaska Ct.App.1982). We hold that the trial court did not abuse its discretion in refusing the motions on this argued ground.

Appellant also contends that the prosecution's closing argument was prejudicial and constituted reversible error. The thrust of this argument is that the prosecution requested the jurors to view the evidence cumulatively. We find no error. Even assuming prosecutorial misconduct in the closing argument, the misconduct would have to have been shown to have materially contributed to the verdict. See State v. LePage, 102 Idaho 387, 396 n. 9, 630 P.2d 674, 683, cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981). Here, because the jury was properly instructed in the law and because of the simple and distinct nature of the evidence, we conclude that, even if the prosecutor's comments were misconduct, that the comments did not materially contribute to the verdict. See State v. LePage, supra; State v. Griffiths, 101 Idaho 163, 167 n. 1, 610 P.2d 522, 526 (1980); State v. Garcia, 100 Idaho 108, 111, 594 P.2d 146, 149 (1979).

B.

The second potential source of prejudice under Foutz is not germane under the present circumstances. Since Abel's defense to each count was alibi, it is our opinion that he was not confounded in his defense by the joinder.

C.

The third source under the present circumstances involves the potential risk of prejudice. The risk is that the jury may conclude that the defendant while not guilty of the specific charged offense is a bad person and will reach a guilty verdict on that basis.

Often other courts when considering similar situations have engaged in an analysis of the evidence of the separate counts to determine whether, if the counts had been tried separately, the separate evidence could have been admitted in evidence in the different trials. United States v. Foutz, 540 F.2d 733, 739 n. 6 (4th Cir.1976) ("Joinder of similar offenses remains proper where evidence of one crime could be admitted at a separate...