Stewart v. State

• Decision Date: 22 September 2003
• Docket Number: No. S03G0734.,S03G0734.
• Citation: 277 Ga. 138,587 S.E.2d 602
• Parties: STEWART v. The STATE.
• Court: Georgia Supreme Court

587 S.E.2d 602

277 Ga. 138

STEWART v. The STATE.

No. S03G0734.

Supreme Court of Georgia.

September 22, 2003.

Martin G. Hilliard, Savannah, for appellant.

Spencer Lawton, Jr., Dist. Atty., Nancy G. Smith, Asst. Dist. Atty., for appellee.

THOMPSON, Justice.

Defendant James Stewart, Jr., was convicted of aggravated battery, two counts of rape, attempted rape, kidnapping with bodily injury, aggravated sodomy, and two counts of aggravated assault, in connection with three separate attacks upon three women. On appeal, he asserted, inter alia, that the trial court erred in denying his motion to sever the cases for trial. The Court of Appeals affirmed. Stewart v. State, 259 Ga.App. 117, 576 S.E.2d 93 (2003). With regard to the denial of the motion to sever, the court found no abuse of discretion because "even if the three cases had been severed, each would have been admissible in the other cases as evidence of a similar transaction." Id. at 122, 576 S.E.2d 93. We granted a writ of certiorari to the Court of Appeals and posed this question:

Whether the Court of Appeals properly held that, because evidence of the rapes of any one of the three victims would have been admissible in the other cases as evidence of a similar transaction, the trial court did not abuse its discretion in denying Stewart's motion to sever. Compare Noble v. State, 275 Ga. 635(2), 570 S.E.2d 296 (2002), with Carter v. State, 261 Ga. 344(1), 404 S.E.2d 432 (1991).

In Dingler v. State, 233 Ga. 462, 211 S.E.2d 752 (1975), the Court of Appeals asked whether severance is mandatory upon motion of defendant when two or more crimes of the same general nature are committed against different persons, at different times and places, and are charged in separate counts of an indictment. This Court answered affirmatively, noting that "[t]he right of severance where the offenses are joined solely on the ground that they are of the same or similar character is `because of the great risk of prejudice from a joint disposition of unrelated charges.'" Id. at 464, 211 S.E.2d 752. In so doing, this Court adopted the ABA Standards on Joinder of Offenses which provide:

( a) Whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses. (b) The court, on application of the prosecuting attorney, or on application of the defendant other than under subsection (a), should grant a severance of offenses whenever: (i) if before trial, it is deemed appropriate to promote a fair determination of the defendant's guilt or innocence of each offense; or (ii) if during trial upon consent of the defendant, it is deemed necessary to achieve a fair determination of the defendant's guilt or innocence of each offense. The court should consider whether in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.

Id. at 463-464, 211 S.E.2d 752. Under these Standards, a trial court must first determine whether the offenses are joined solely because they are of the same or similar character. If they are, severance is mandatory. If they are not, the court must then decide whether severance would promote a just determination of guilt or innocence as to each offense. Terry v. State, 259 Ga. 165, 167(1), 377 S.E.2d 837 (1989); Dingler v. State, supra. We explain more fully as follows:

If the charges are joined solely because they are of the same or similar character, a defendant has an absolute right to sever. Bland v. State, 264 Ga. 610, 611, 449 S.E.2d 116 (1994); Carter v. State, 261 Ga. 344(1), 404 S.E.2d 432 (1991). See also Booker v. State, 231 Ga. 598, 203 S.E.2d 194 (1974). But that is not to say that severance will not lie when offenses are not joined solely because they are of the same or similar character. In that circumstance, severance may still be appropriate, although not mandated, because the trial court must determine whether the trier of fact will be able to fairly and intelligently judge each offense. Terry v. State, supra; Bland v. State, supra. The court is vested with discretion in this matter, and in the exercise of that discretion it must balance the interest of the defendant with the interest of the State. Id.; Jarrell v. State, 234 Ga. 410, 413, 216 S.E.2d 258 (1975). In so doing, a trial court must look to the number and complexity of the offenses charged and determine whether a trier of fact can parse the evidence and apply the law with regard to each charge. Coats v. State, 234 Ga. 659, 662, 217 S.E.2d 260 (1975). If the trier of fact cannot do so fairly and intelligently, severance would be in order. See Bland v. State, supra (trial court should sever if it would promote a fair determination of guilt or innocence as to each offense); Dingler v. State, supra at 463, 211 S.E.2d 752 (severance may be appropriate where joinder of offenses unfairly burdens defendant due to confusion of law and evidence and "`smear' effect such confusion can produce").

In this case, the Court of Appeals held that severance was not required because the offenses were sufficiently similar so that evidence of one offense would be admissible in a trial of the other offenses if they were to be tried separately. Stewart v. State, 259 Ga.App. 117, 122, 576 S.E.2d 93, supra. Ample authority can be found to support the Court of Appeals' holding in that regard. See, e.g., Johnson v. State, 257 Ga. 731, 733, 363 S.E.2d 540 (1988); Catchings v. State, 256 Ga. 241, 243(4), 347 S.E.2d 572 (1986); Houston v. State, 242 Ga.App. 300, 302, 529 S.E.2d 431 (2000); Rocha v. State, 234 Ga. App. 48, 53, 506 S.E.2d 192 (1998); Redding v. State, 219 Ga.App. 182, 184(3), 464 S.E.2d 824 (1995); Weaver v. State, 206 Ga.App. 560(1), 426 S.E.2d 41 (1992). Those cases are...