State v. Druke

• Decision Date: 10 February 1977
• Docket Number: CA-CIV,No. 2,2
• Citation: State v. Druke, 564 P.2d 913, 115 Ariz. 224 (Ariz. App. 1977)
• Parties: The STATE of Arizona, Petitioner, v. The Honorable William E. DRUKE, Judge of the Superior Court, Pima County, Arizona, a body politic and corporate, James Ronald Bailes and Darryl Scott Phillips, Respondents. 2454.
• Court: Arizona Court of Appeals

Page 913

564 P.2d 913

115 Ariz. 224

The STATE of Arizona, Petitioner, v. The Honorable William E. DRUKE, Judge of the Superior Court, Pima County, Arizona, a body politic and corporate, James Ronald Bailes and Darryl Scott Phillips, Respondents.

No. 2 CA-CIV 2454.

Court of Appeals of Arizona, Division 2.

Feb. 10, 1977.

Rehearing Denied March 17, 1977.

Review Denied April 5, 1977.

Stephen D. Neely, Pima County Atty. by Karen Aubrey and William R. Stevens, Jr., Deputies County Atty., Tucson, for petitioner.

Harley Kurlander, Tucson, for respondent Bailes.

Jeffrey W. Hanes, Tucson, for respondent Phillips.

HATHAWAY, Judge.

Did the respondent court abuse its discretion in granting a criminal defendant's motion to sever? Since we agree with the state that this question must be answered in the affirmative, we assume jurisdiction.

Briefly, the procedural chronology is as follows. By information filed September 15, 1976, Bailes and Phillips were jointly charged with four offenses: kidnap for rape, first degree rape, grand theft of a motor vehicle, and robbery. The information alleged that the victim of all the offenses was Susan Timulty. On October 15, 1976, Phillips filed a motion to sever defendants. On November 24, the motion was denied, the minute entry order reciting inter alia:

'The Court having considered the memoranda of law submitted by the respective parties and especially the case of DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962) and being of the opinion that:

(1) A fair determination of guilt or innocence may be had in this case for each defendant without granting the severance; and

(2) The appropriate procedure to be adopted by the trial court in the event that one defendant testified and the other does not is to admonish not only the State but both defense counsel that no comment regarding a defendant's failure to testify may be made.'

On January 10, 1977, Phillips again filed a motion to sever which was joined in by Bailes, and on January 14, the respondent court granted the motion. The latter motion did not set forth any changed circumstances. In fact it indicated that the factual posture of the case was the same, but suggested that the rationale of United States v. Kelly, 349 F.2d 720 (2nd Cir. 1965) should apply rather than DeLuna, supra, which the respondent court had 'especially' considered in denying the previous motion to sever.

Severance shall be granted upon motion of a party if it 'is necessary to promote a fair determination of the guilt or innocence of any defendant of any offense . . .' Rule 13.4(a), Rules of Criminal Procedure. It will also be granted if a court detects the presence or absence of unusual features of the crime or cases that might prejudice the defendant. State v. Dale, 113 Ariz. 212, 550 P.2d 83 (1976); State v. Williams, 108 Ariz. 382, 499 P.2d 97 (1972). The scope of our review of a trial court's granting a request for severance is limited to asking whether a clear abuse of discretion is shown. State v. Brewer, 26 Ariz.App. 408, 549 P.2d 188 (1976).

In his first motion to sever, Phillips urged as grounds therefor the following factors: (1) the possibility that the jury would misapply or ignore the applicable law concerning principals and find Phillips guilty by association; (2) the probability of antagonistic defenses; (3) the prejudice to Phillips if co-defendant Bailes refused to testify; and (4) the likelihood of Bailes testifying on Phillips' behalf, assuming separate trials.

We agree with the respondent court that DeLuna rationale does not apply here. In DeLuna, the court held that when counsel for one defendant would have a duty to comment on the failure of a co-defendant to take the stand because of a head-on conflict between the defendants, then severance should be granted. It appears from the disclosure materials that Bailes' sole defense was misidentification. Phillips, on the other hand, maintains that his role, if any, was merely 'passive', i.e., he was an onlooker rather than a participant. Thus we see that the defenses are tangential to one another rather than on a collision course, therefore not requiring severance. United States v. Bolden, 169 U.S. App.D.C. 60, 514 F.2d 1301 (1975). As to Phillips' claim that Bailes' testimony would not be available to him unless they are tried separately, the mere possibility that such testimony might be forthcoming does not require severance. United States v. Kahn, 381 F.2d 824 (7th Cir. 1967); United States v. Frumento, 405 F.Supp. 23 (E.D.Pa. 1975). Finally, while the possibility of 'guilt by association' exists in a joint trial, the United States Supreme Court has stated:

'This type of prejudicial effect is acknowledged to inhere in...