Clay v. State, CR

• Decision Date: 07 November 1994
• Docket Number: No. CR,CR
• Parties: Marcus CLAY, Appellant, v. STATE of Arkansas, Appellee. 93-1230.
• Court: Arkansas Supreme Court

Page 608

886 S.W.2d 608

318 Ark. 550

Marcus CLAY, Appellant, v. STATE of Arkansas, Appellee.

No. CR 93-1230.

Supreme Court of Arkansas.

Nov. 7, 1994.

John L. Kearney, Pine Bluff, for appellant.

Kent G. Holt, Asst. Atty. Gen., Little Rock, for appellee.

DUDLEY, Justice.

Appellant Marcus Clay was charged with committing five sex offenses against five different victims at different locations over a one-year period. There was no allegation, and there was no proof at the preliminary hearing, that the five offenses were planned in advance as part of a single scheme. Appellant was seventeen years old when most of the crimes were committed and was eighteen years old when the case was tried. The victims were three to five years younger than he. The trial court ordered all five charges consolidated for trial and refused appellant's motion to sever. The ruling was in error. We reverse and remand for new trials.

Four informations containing five charges were filed against the appellant. The charges were as follows:

Charges 1 and 2

On February 22, 1993, appellant was charged with two counts of rape by deviate sexual activity, committed against two different persons less than fourteen years of age. Count one of the information alleged that he inserted his finger in the vagina of one twelve-year-old girl in September of 1992, and count two alleged that he inserted his finger in the vagina of another twelve-year-old girl in January of 1993.

Charge 3

On March 5, 1993, appellant was charged with rape by forcible compulsion. It was alleged that he threw the victim to the ground and, by forcible compulsion, committed rape against her in May of 1992. The age of the victim was not pleaded, but it was not alleged that the victim was less than fourteen years of age.

Charge 4

On May 2, 1993, appellant was charged with rape by forcible compulsion. It was alleged that he committed rape against the victim by force in September of 1992. It was alleged that the victim was fourteen years old.

Charge 5

On August 10, 1993, appellant was charged with rape by deviate sexual activity. It was alleged that the victim was less than fourteen years of age and that on February 9, 1993, appellant inserted his finger in the victim's vagina and told her to hold his penis.

Rule 21 of the Arkansas Rules of Criminal Procedure provides for joinder of offenses, and Rule 22 provides for severance of offenses. Both rules closely track the American Bar Association Standards relating to joinder and severance and must be construed together. The Commentary to Article VI of the Arkansas Rules of Criminal Procedure explains:

In concept and practice, joinder has traditionally enjoyed popularity among prosecutors, courts, and scholars in as much as it produces savings of time, money and effort.

As pointed out by Standards, Joinder and Severance, "[s]everance, on the other hand, is typically sought on the ground that a unified disposition of several charges or several defendants would put those proceeded against at an unfair disadvantage, due to confusion of law and evidence by the trier of fact and the 'smear' effect such confusion can produce." Id. at 1.

Rule 21.1, which provides the prosecutor with broad latitude to effect joinder of offenses, provides for joinder when the offenses "(a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." This joinder rule is much broader than the prior statutes, Ark.Stat.Ann. §§ 43-1009 & 43-1020 (Repl.1964), and is designed to establish the outer boundaries of joinder of offenses. However, the liberal joinder rule is accompanied by a limiting severance rule that recognizes the grave risk of prejudice from joint disposition of unrelated charges and, accordingly, provides a defendant with an absolute right to a severance of offenses joined solely on the ground that they are of same or similar character. See Commentary to Article VI. The severance rule, Rule 22.2, provides in pertinent part:

(a) Whenever two (2) or more offenses have been joined for trial solely on the ground that they are of the same or similar character and they are not part of a single scheme or plan, the defendant shall have a right to a severance of the offenses.

(b) The court, on application of the ... defendant other than under subsection (a), shall grant a severance of offenses:

(i) if before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense....

A.R.Cr.P. Rule 22.2(a)-(b)(i).

Prior to trial appellant argued that he had a right to severance since the offenses were joined solely because the crimes were of the same or similar character. The trial court agreed that the crimes were of the same or similar character, but denied the motion on the ground that the offenses also indicated a scheme, motive, propensity, and plan.

A single scheme or plan is discussed in the 1987 Unofficial Supplementary Commentary to Rule 21.1 as follows:

One who burglarizes an office on January 1 and a home on February 1 may be charged in the same information with both offenses, since they are "of similar character." He would be entitled to a severance under Rule 22.2(a), however, unless the offenses were part of a single scheme or plan or criminal episode. Even though roughly the same type of conduct might be argued to be involved in both burglaries, justifying joinder under Rule 21.1(b), the term "same conduct" in Rule 21.1(b) was probably intended to be read literally to refer to contemporaneous events and to permit joinder in a situation where, for example, a defendant robs three persons simultaneously.

In conformity with that commentary, in Teas v. State, 266 Ark. 572, 587 S.W.2d 28 (1979), we said that when an informer went to the home of the defendant and purchased some marijuana and a week later went back and purchased two morphine tablets from the same defendant, the evidence was insufficient to show that the sales were a part of a single scheme or plan on the part of the defendant within the meaning of Rule 22.2. We reversed and remanded the case for a severance of the offenses. In a concurring opinion Justice George Rose Smith wrote:

Criminal Procedure Rule 22.2 gives the defendant an absolute right to a severance when two or more offenses have been joined for trial solely on the ground that they are of similar character, but they are not part of a single scheme. Here the two offenses, sales of drugs, are unquestionably similar; so the controlling question is whether they were committed as part of a "single scheme or plan."

I think it plain that they were not so committed. The purpose of Rule 22.2 is to give effect to the principle that the State cannot bolster its case against the accused by proving that he has committed other similar offenses in the past. Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954). There are exceptions to that principle, however, as when two or more crimes are part of the same transaction, Harris v. State, 239 Ark. 771, 394 S.W.2d 135 (1965), cert. denied, 386 U.S. 964, 87 S.Ct. 1043, 18 L.Ed.2d 114 (1967), or when two or more offenses have been planned in advance, as part of a single scheme. Ford v. State, 34 Ark. 649 (1879). The intent of Rule 22.2 must have been to carry into effect the spirit of those exceptions, by permitting the charges to be tried together when they are parts of a single scheme.

In drug cases the State cannot ordinarily prove that the accused sold drugs on one occasion by proving that he sold them on other occasions. Rios v. State, 262 Ark. 407, 557 S.W.2d 198 (1977); Sweatt v. State, 251 Ark. 650, 473 S.W.2d 913 (1971). Such proof of other sales, as we pointed out in Sweatt, would merely show that the accused had dealt in drugs before and hence was likely to do so again.

Teas v. State, 266 Ark. 572, 575, 587 S.W.2d 28, 30 (1979) (Smith, J., concurring).

The Commentary to Section 2.2(a) of the ABA Standards relating to Joinder and Severance, Approved Draft, provides:

The joinder together for one trial of two or more offenses of the same or similar character when the offenses are not part of a single scheme or plan has been subjected to severe criticism over the years. Generally, the test for whether joinder is proper involves weighing of the possible prejudice to the defendant from joinder against the public interest in avoiding duplicitous, time-consuming trials in which the same factual and legal issues must be litigated. See United States v. Haim, 218 F.Supp. 922 (S.D.N.Y.1963); United States v. Teemer, 214 F.Supp. 952 (N.D.W.Va.1963). On this score, joinder of offenses not part of a single scheme or plan is difficult to justify. "[S]ince the offenses on trial are distinct, trial of each is likely to require its own evidence and witnesses. The time spent where similar offenses are joined may not be as long as two trials, but the time saved by impanelling only one jury and by setting the defendant's background only once seems minimal." Note, 74 Yale L.J. 553, 560 (1965). Against this small gain from joinder, it has been observed: "We all know that, if you can pile up a number of charges against a man, it is quite often the case that the jury will convict, where, if they were listening to the evidence on one charge only, they would find it wholly insufficient as to the degree of proof required." Maguire, Proposed New Federal Rules of Criminal Procedure,23 Ore.L.Rev. 56, 58-59 (1943).

The same commentary also provides that two of the most compelling reasons for granting a severance of offenses without a specific showing of prejudice are:

(1) Undue limitations on the defendant's right to testify in his own behalf. Prejudice may develop when an accused wishes to testify on one or some, but not all, of joined offenses that are distinct in time, place, and evidence. I...