State v. Ramos
| Decision Date | 14 February 2003 |
| Docket Number | No. 2001–564.,2001–564. |
| Citation | 149 N.H. 118,818 A.2d 1228 |
| Court | New Hampshire Supreme Court |
| Parties | The STATE of New Hampshire v. Julio RAMOS. |
Philip T. McLaughlin, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
Richard E. Samdperil, assistant appellate defender, of Concord, by brief and orally, for the defendant.
The defendant, Julio Ramos, was convicted by a jury of one count of felonious sexual assault, see RSA 632–A:3 (Supp.2002), and one count of aggravated felonious sexual assault, see RSA 632–A:2 (Supp.2002), against L.B. He was also convicted of one count of aggravated felonious sexual assault against A.O., see id . The defendant appeals, arguing that the Superior Court (Barry , J.) erroneously denied his motion to sever the charges for trial. Because we adopt a new standard for our trial court to utilize in the granting or denial of severance, we reverse and remand.
The defendant is the half brother of Vilma and Maria Ramos. Maria is the mother of A.O. and Vilma is the mother of L.B. The charges involving A.O. concern incidents occurring during the last two weeks of November 1999, when the defendant lived with A.O.'s family and shared a bedroom with A.O. A.O., who is mildly mentally retarded and, at the time, was twenty-three years old, slept on a couch, while the defendant slept in A.O.'s bed. On at least three occasions during this two-week period, the defendant shook A.O. awake, threatened to hurt him, his mother, and grandmother, and then performed fellatio on him. A.O. did not immediately report these incidents.
The charges involving L.B. arose out of an incident that occurred on September 2, 2000, when L.B.'s grandmother, Dolores Rodriguez, was babysitting him and six other children at her apartment. L.B. was eight years old at the time. The defendant was temporarily living with Rodriguez, sleeping on a mattress in a corner of her bedroom. At some point in the evening, Rodriguez brought L.B. into her bedroom. The defendant asked L.B. to lie down next to him on the mattress on the floor. The defendant then started to rub L.B.'s buttocks with his hand. After approximately fifteen minutes, Rodriguez left the bedroom to use the bathroom. When she returned, she saw the defendant touching L.B.'s "whole body," and leaving his hand on L.B.'s genital area. L.B. testified that the defendant put his hand down his pants and fondled his penis.
When Vilma returned to Rodriguez's apartment that evening, she learned about what had happened. She took L.B. to the police station and reported the assault. The next morning, she called her sister Maria to tell her what had happened. Maria then questioned her son, A.O., who revealed that in November 1999, the defendant had assaulted him as well. Eventually, Maria reported the assault to the police.
In October 2000, a grand jury issued six indictments, four alleging assaults against A.O. and two alleging assaults against L.B. The defendant moved to sever the A.O. charges from the L.B. charges, which the court denied. Following a trial on all six indictments, the State nol prossed one of the A.O. indictments. The jury acquitted the defendant on two of the A.O. indictments, but found him guilty on the remaining three indictments.
On appeal, the defendant argues that severance was required because the charges involving A.O. and those involving L.B. were unrelated. Consolidation, he argues, served no legitimate State goal and permitted the jury to consider evidence that otherwise would have been inadmissible under New Hampshire Rule of Evidence 404(b), thus depriving him of his fundamental rights to due process and a fair trial. See U.S. CONST. amends. V, XIV ; N.H. CONST. pt. I, art. 15.
The State counters that consolidation was appropriate because the charges involving A.O. and those involving L.B. pertain to discrete events, the evidence of which was concise, simple and not likely to confuse the jury. The State further asserts that evidence of one set of charges would have been admissible under Rule 404(b) in a separate trial of the other set of charges to explain the delay in reporting the A.O. assaults. Cf. State v. Berry, 148 N.H. 88, 91–92, 803 A.2d 593 (2002). Even if evidence of one set of charges would have been inadmissible in a separate trial of the other set of charges, the State argues that consolidation did not prejudice the defendant and furthered the legitimate public policy of conserving judicial and prosecutorial resources.
Because Part I, Article 15 of the State Constitution is at least as protective of the defendant's rights in this area as the Federal Constitution, we need not undertake a separate federal analysis. See State v. Haley, 141 N.H. 541, 543–45, 689 A.2d 671 (1997). We consider the defendant's claims under our State Constitution and use federal law only as an analytic aid. See State v. Cobb, 143 N.H. 638, 655, 732 A.2d 425 (1999).
We will uphold the trial court's decision not to sever cases unless we conclude that the decision constitutes an unsustainable exercise of discretion. State v. Manna, 130 N.H. 306, 309, 539 A.2d 284 (1988) ; cf. State v. Lambert, 147 N.H. 295, 296, 787 A.2d 175 (2001) (). To show that the trial court's decision is unsustainable, the defendant must demonstrate that the ruling was "clearly untenable or unreasonable to the prejudice of his case." Lambert, 147 N.H. at 296, 787 A.2d 175 (quotation omitted). The focus of our inquiry is upon whether joinder jeopardized the defendant's right to a fair trial. See State v. Winders, 127 N.H. 471, 473, 503 A.2d 798 (1985).
Traditionally, we have liberally permitted joinder of criminal offenses for trial, asking only "whether the evidence in support of each offense was brief, simple and unlikely to confuse a jury, and easily referable to each crime." State v. Cote, 129 N.H. 358, 367, 530 A.2d 775 (1987) ; see State v. Fecteau, 133 N.H. 860, 869, 587 A.2d 591 (1991). We have held that charges need not be "related or part of a common scheme or plan" to be consolidated. Manna, 130 N.H. at 310, 539 A.2d 284; see State v. Bergmann, 135 N.H. 97, 102, 599 A.2d 502 (1991). We have also held that evidence of each crime need not be admissible in a trial of the other under Rule 404(b). See Bergmann, 135 N.H. at 102, 599 A.2d 502.
Under our traditional approach, we would be compelled to affirm joinder of the charges at issue because, as the State notes and as our review of the record reveals, the evidence in support of each charge was brief, simple, not likely to confuse the jury, and easily referable to each crime.
The trial on the two sets of charges lasted just two days. The two events that were the subject of the original six indictments were discrete events that occurred over nine months apart, and the evidence of each event was easily separable from that of the other. Four witnesses testified as to the assaults on A.O., while five different witnesses testified as to the assault on L.B. In addition, the court cautioned the jury to consider each offense separately. Further, the jury demonstrated that it considered each charge separately by acquitting the defendant on two of the charges involving A.O. See United States v. Edgar, 82 F.3d 499, 504 (1st Cir.) (), cert. denied, 519 U.S. 870, 117 S.Ct. 184, 136 L.Ed.2d 123 (1996) ; Cote, 129 N.H. at 368, 530 A.2d 775. Moreover, although not required by our jurisprudence, we note that the evidence of the L.B. assaults might have been admissible in a separate trial of the A.O. charges to explain A.O.'s delay in reporting. Cf . Berry, 148 N.H. at 91–92, 803 A.2d 593.
We believe, however, that our traditional approach fails to provide meaningful guidance to trial courts endeavoring to adhere to it, and, thus, has proven to be unworkable. See Providence Mut. Fire Ins. Co. v. Scanlon, 138 N.H. 301, 304, 638 A.2d 1246 (1994) ().
For instance, we have approved joining related charges of child sexual abuse because the evidence of each was brief, simple and unlikely to confuse the jury, see State v. Hennessey, 142 N.H. 149, 154–55, 697 A.2d 930 (1997), and also have approved severing them because of the "high potential for prejudice" in joining these types of charges, see State v. LaBranche, 118 N.H. 176, 177–79, 385 A.2d 108 (1978). We have sanctioned joining charges arising from the same criminal incident, see Cobb, 143 N.H. at 655, 732 A.2d 425 (), and also have approved severing these types of charges, see State v. Lainey, 117 N.H. 592, 594–95, 375 A.2d 1162 (1977) ().
Our jurisprudence has permitted trial courts nearly unlimited discretion in joinder matters, making the task of principled appellate review difficult, if not impossible. Not surprisingly, we have rarely reversed a trial court's decision regarding joinder or severance.
While alone this is sufficiently compelling for us to depart from our prior precedent, we note, additionally, that our permissive approach to joinder, particularly of unrelated offenses, is at odds with the Federal Rules of Criminal Procedure, the American Bar Association (ABA) Standards for Criminal Justice, the Uniform Rules of Criminal Procedure and the jurisprudence in other States.
We have made no distinction between related and unrelated offenses, permitting joinder when...
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