State v. Clark, 38286

• Citation: 201 N.W.2d 205,189 Neb. 109
• Decision Date: 06 October 1972
• Docket Number: No. 38286,38286
• Parties: STATE of Nebraska, Appellee, v. Larry Larue CLARK, Appellant.
• Court: Nebraska Supreme Court

Page 205

201 N.W.2d 205

189 Neb. 109

STATE of Nebraska, Appellee, v. Larry Larue CLARK, Appellant.

No. 38286.

Supreme Court of Nebraska.

Oct. 6, 1972.

Syllabus by the Court

There is no constitutional right to a separate trial. Rather, the right is statutory in origin and depends upon a showing that prejudice will result from a joint trial.

Frank B. Morrison, Sr., Public Defender, Bennett G. Hornstein, Asst. Public Defender, Omaha, for appellant.

Clarence A. H. Meyer, Atty. Gen., Calvin E. Robinson, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, SMITH, McCOWN, NEWTON, and CLINTON, JJ.

SPENCER, Justice.

Defendant and Ronald L. Reed were convicted of entering a bank building with the intent to steal or rob; using a firearm in the commission of a felony; and shooting with the intent to kill, wound, or maim. The conviction of Reed was affirmed on appeal. State v. Reed (1972), 188 Neb. 815, 199 N.W.2d 707.

Defendant alleges three assignments of error: First, the district court erred in granting the State's motion to consolidate the defendant's trial with that of his codefendant; second, the court erred in failing to adequately instruct the jury concerning the segregation and consideration of evidence of guilt against only the defendant to whom it related; and, third, the court erred in denying defendant's motion for a directed verdict of acquittal at the conclusion of the State's case-in-chief. We affirm.

Section 29--2002(3), R.R.S.1943, provides as follows: 'The court may order two or more indictments, informations, or complaints, or any combination thereof, to be tried together if the offense, and the defendants, if there are more than one, could have been joined in a single indictment, information or complaint. The procedure shall be the same as if the prosecution were under such single indictment, information, or complaint.'

Defendant in this appeal is relying specifically on subsection (4) of section 29--2002, R.R.S.1943, which provides as follows: 'If it appears that a defendant or the state would be prejudiced by a joinder of offenses or of defendants in an indictment, information, or complaint, or by such joinder of offenses in separate indictments, informations, or complaints for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.'

Defendant made no factual showing on the record before trial which would establish sufficient facts to indicate the granting of the motion to consolidate would be erroneous. The record herein does not establish that any evidence whatsoever was given on the motion to consolidate, although the ruling came after other motions had been resolved. There were no statements or confessions given by either defendant. In essence, defendant's argument is that the joint trial was unfair as to him because much of the evidence related only to his codefendant. This is not unusual in joint trials, and is not the type of evidence which is considered prejudicial to joinder.

There is no constitutional right to a separate trial. Rather, the right is statutory in origin and depends upon a showing that prejudice will result from a joint trial. State v. Erving (1966), 180 Neb. 824, 146 N.W.2d 216. As stated, no such showing was made herein. Most of the cases cited by the defendant involve prejudice because of statements or confessions by a codefendant which implicate the appealing defendant. In the absence of a showing of an abuse of discretion, the ruling of the trial court upon the motion for consolidation will not be...