Neill v. State , 63 O.B.A.J. 775 ( 1992 )

PARKS, Judge,

concurring in part/dissenting in part:

I agree with all aspects of the majority opinion except that which discusses a defendant’s pre-trial severance motion. The majority has stated that if such motion is based upon mutually antagonistic defenses, “the defendant shall set forth in the motion a statement which specifically identifies how the defenses are mutually antagonistic.” Majority at 890. It is my opinion that such a requirement contains two fatal flaws. t First, the requirement appears to command a defendant to disclose what is essentially trial strategy. Second, the rule presupposes, and in effect mandates, that counsel for codefendants discuss their trial strategies with one another. Although such a procedure may be desirable, there is absolutely no precedent for requiring an accused or his codefendant to divulge their trial strategies.¹

One possible solution to the problem of obtaining advance disclosure of antagonistic defenses would be the holding of ex parte, sealed hearings. In separate ex parte proceedings, counsel for the individual defendants could divulge such information as would enable the trial court to determine whether severance is warranted. Such procedure would allow the trial court to make an informed decision at the earliest possible time during the proceedings and would protect a defendant from being forced into revealing his defense/trial strategy to either the State or his codefend-ant(s).

ORDER GRANTING WAIVER OF REHEARING AND DIRECTING ISSUANCE OF MANDATE

Now, on this, the 9th day of March, 1992, having examined the Appellee’s waiver of rehearing in the above-styled and numbered cause, and having been fully advised of the premises, this Court finds that it should be, and the same is, hereby GRANTED.

The Clerk of this Court is ordered to issue the mandate forthwith.

IT IS SO ORDERED.

/s/ James F. Lane JAMES F. LANE Presiding Judge

/s/ Gary L. Lumpkin GARY L. LUMPKIN Vice Presiding Judge

/s/ Tom Brett TOM BRETT Judge

/s/ Ed Parks ED PARKS Judge

/s/ Charles A. Johnson CHARLES A. JOHNSON Judge

1 . Although our recent decision in Allen v. District Court of Washington County, 803 P.2d 1164 (Okl.Cr.1990), provides for certain pretrial discovery, the opinion does not require the disclosure of trial strategy.