State v. Ludwick

• Decision Date: 05 July 1996
• Docket Number: No. 23164,23164
• Citation: 475 S.E.2d 70,197 W.Va. 70
• Parties: STATE of West Virginia, Plaintiff Below, Appellee, v. Harold S. LUDWICK, Defendant Below, Appellant.
• Court: West Virginia Supreme Court

Page 70

475 S.E.2d 70

197 W.Va. 70

STATE of West Virginia, Plaintiff Below, Appellee, v. Harold S. LUDWICK, Defendant Below, Appellant.

No. 23164.

Supreme Court of Appeals of West Virginia.

Submitted May 28, 1996.

Decided July 5, 1996.

Syllabus by the Court

"Even where joinder or consolidation of offenses is proper under the West Virginia Rules of Criminal Procedure, the trial court may order separate trials pursuant to Rule 14(a) on the ground that such joinder or consolidation is prejudicial. The decision to grant a motion for severance pursuant to W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court." Syllabus point 3, State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988).

Virginia J. Hopkins, Prosecuting Attorney, Kingwood, for Appellee.

Michael J. Sharley, Westover, and Edmund J. Rollo, Morgantown, for Appellant.

PER CURIAM.

The defendant in this case, Harold S. Ludwick, was charged with third-offense driving under the influence, in violation of W.Va.Code § 17C-5-2, and third-offense driving while license suspended for driving under the influence, in violation of W.Va.Code § 17B-4-3. Prior to the trial in his case, he moved, pro se, for a severance of the two charges and a separate trial on each of the charges. The Circuit Court of Preston County denied that motion and proceeded to try the defendant on both charges simultaneously. At the conclusion of the trial, the defendant was found guilty as charged on both charges and was sentenced to one year in the Preston County Jail and fined $1,000.00 on the second-offense driving while license revoked for driving under the influence charge and was sentenced to from one-to-three years in the State penitentiary for third-offense driving under the influence. The two sentences were to run consecutively. In the present proceeding, the defendant claims that the trial court erred by not severing the two charges when he requested such a severance at a pretrial hearing.

After considering the facts presented and the issue raised, this Court believes that the trial court should further consider the appellant's request for severance in light of the factors addressed in this opinion. The judgment of the circuit court is, therefore, reversed, and this case is remanded for further proceedings.

The record in this case indicates that on September 24, 1994, the defendant was observed by a police officer, Deputy Pritt, weaving back and forth while driving on Route 7 in Preston County. Deputy Pritt, who apparently had knowledge that the defendant's driver's license had been previously suspended for driving under the influence, stopped the defendant and, upon so doing, noticed a strong odor of alcohol coming from the defendant. The defendant subsequently refused to take a preliminary intoxilizer test. The defendant, as a consequence, was charged with third-offense driving under the influence and with third-offense driving while license suspended for driving under the influence.

At a hearing conducted on February 3, 1995, the defendant took the position that he had had serious disagreements with his appointed attorney and told the court:

One of the things me and [my counsel] disagrees about is, as he mentioned, is DUI third offense and driving under suspension. I don't know, but the two--cannot hardly defend myself on a DUI without incriminating myself under a driving under suspension.

A short time later, he also said:

Your Honor, this is why I would like for the two charges to be separated. I don't know if it's possible. I want to testify to the DUI. I'm not guilty of that.

It appears from the overall colloquy in which this occurred that the defendant wished to remain silent on the driving-under-suspension charge and apparently wanted to compel the State to prove that he had, in fact, driven while his license was suspended. He apparently wanted to testify on the drunk-driving charge that he was not under the influence when he was driving. It appears the appellant recognized that if he took the stand to defend against the driving under the influence charge, he would necessarily admit to the first element of the other offense, that is, driving a motor vehicle, and in all likelihood, at least on cross-examination, he would be called upon, when testifying truthfully, to admit his guilt of all of the elements of the other charge, driving while his license was suspended or revoked by reason of having previously driven under the influence.

The trial court denied the defendant's motion to sever or "separate" the two charges, and both were tried together before a jury on February 6, 1995. The defendant was found guilty on both counts at the conclusion of that trial.

As previously indicated, in this appeal the defendant claims that the trial court erred in denying his motion to sever and in trying the two counts jointly.

In State v. Cunningham, 170 W.Va. 119, 290 S.E.2d 256 (1981), this Court held that:

A defendant shall be charged in the same indictment, in a separate count for each offense, if the offenses charged, whether felonies or misdemeanors or both, are of the same or similar character, or are based on the same act or transaction, or are two or more acts or transactions connected together or constituting parts of a common scheme or plan.

170 W.Va. at 122, 290 S.E.2d at 259 (quoting syl. pt. 1, State ex rel. Watson v. Ferguson, 166 W.Va. 337, 274 S.E.2d 440 (1980)). In conjunction with and relating to this, Rule 13 of the West Virginia Rules of Criminal Procedure provides, in part:

The court may order two or more indictments or informations or both to be tried together if the offenses ... could have been joined in a single indictment or information....

In State v. Hatfield, 181 W.Va. 106, 380 S.E.2d 670 (1988), this Court explained that this joinder of offenses promotes judicial efficiency and economy by avoiding needless multiple trials and concluded that because of this it was generally appropriate legal procedure.

In State v. Hatfield, the Court went on, however, to hold that even where joinder or consolidation is proper, a defendant may move for severance of the counts pursuant to Rule 14(a) of the West Virginia Rules of Criminal Procedure. That rule provides, in relevant part:

If it appears that a defendant or the state is prejudiced by a joinder of offenses in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of the counts 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 defendant or other relevant information which the state intends to introduce in evidence at the trial.

In State v. Hatfield, supra, as well as in State v. Drennen, 185 W.Va. 445, 408 S.E.2d 24 (1991), this Court ruled that the question of whether to grant a motion for severance pursuant to Rule 14(a) of the West Virginia Rules of Criminal Procedure rests in the sound discretion of the trial court. Further, in State v. Hatfield, supra, the Court indicated that a trial court's decision to grant or deny severance pursuant to Rule 14(a) of the West Virginia Rules of Criminal Procedure would not be reversed unless it appears that the trial court's exercise of its discretion was clearly wrong. The position of the law is summarized in State v. Hatfield, supra, syllabus point 3 of which states:

Even where joinder or consolidation of offenses is proper under the West Virginia Rules of Criminal Procedure, the trial court may order separate trials pursuant to Rule 14(a) on the ground that such joinder or consolidation is prejudicial. The decision to grant a motion for severance pursuant to W.Va.R.Crim.P. 14(a) is a matter within the sound discretion of the trial court.

Rule 14 of the West Virginia Rules of Criminal Procedure is modelled on Rule 14 of the Federal Rules of Criminal Procedure, and under Federal law it appears that it is incumbent upon a trial judge to consider in some depth a motion to grant a severance if: (a) a joint trial will raise so many issues that a jury may conclude that the defendant is a "bad man" and must have done something, and consequently will convict him as a "bad man" rather than on a particular charge; (b) if one offense may be used to convict him of another, though proof of that guilt would have been inadmissible at a separate trial; and (c) the defendant may wish to testify in his own defense on one charge but not on another. See C.A. Wright, Federal Practice and Procedure: Criminal 2d § 222 (1982).

In the present case, it appears that the defendant was asserting the third point: that he wished to testify in his own defense on one charge but not on the other. The Wright treatise goes on to explain:

The third kind of prejudice, that occurring where a defendant wishes to testify on one charge but not on another, was extensively discussed in Cross v. United States. The indictment in that case contained two charges of robbery allegedly committed several months apart. Cross moved for a severance on the ground that he wished to testify in his own defense on one charge but not on another. It was held error to deny a severance. The court pointed out that if two charges are joined for trial, it is not possible for the defendant to weigh the factors involved in deciding whether to testify separately for each...