State v. Lowther , 1989 S.D. LEXIS 9 ( 1989 )

SABERS, Justice

(dissenting).

THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF THE JANUARY FIRE IN THE TRIAL ON CHARGES FROM THE DECEMBER FIRE AFTER GRANTING SEVERANCE.

SDCL 23A-11-2 states in part:

23A-11-2. (Rule 14) Relief from prejudicial joinder of offenses or defendants. If it appears that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an indictment or information or by such joinder for trial together, the court may order an election or separate trials of counts, grant a severance of defendants or provide whatever other relief justice requires.

Whether to grant severance is left to the trial court’s discretion. State v. Closs, 366 N.W.2d 138 (S.D.1985). It involves a balancing of interests that includes consideration of prejudice. State v. Andrews, 393 N.W.2d 76 (S.D.1986).

Lowther moved to sever Counts I and II from Counts III and IV. This request was captioned: “Motion for Relief from Prejudicial Joinder.” The three-paragraph motion claimed that it would be prejudicial to try the December fire with the January fire. The motion was granted. Despite this ruling, the trial court permitted the State to offer evidence of the January fire in the trial for the December 1986 fire.

SDCL 19-12-5 states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

SDCL 19-12-3 provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

SDCL 19-12-3 and 19-12-5 require a balancing of probative value under one of the elements in SDCL 19-12-5 against the risk of unfair prejudice under SDCL 19-12-3. State v. Dace, 333 N.W.2d 812 (S.D.1983).

The majority opinion approves the trial court’s ruling by stating:

Because the trial court weighed the prejudicial effect of the proffered evidence and carefully fashioned a limiting instruction to the jury, we cannot conclude that there was an abuse of discretion in admitting this evidence.

Although a limiting instruction was given, the trial court failed to balance the interests on the record.

Even if a balancing of interests had been performed by the trial court, I would challenge any purported finding that the probative value substantially outweighed the danger of unfair prejudice. In the May severance hearing the trial court granted the motion “to save time” because of the “difference in witnesses” and to avoid “confusing the jury” and stated:

[T]he evidence will accumulate and they [will] have difficulty ... distinguishing which belongs to which transaction.... [I]n this particular case it probably imposes an undue burden on the defense counsel having to prepare for two of these incidents, which are quite involved.

Obviously, this list of problems constitutes prejudice and did not change from the May severance hearing to the July severance hearing.

Trial counsel clearly preserved his record by making a motion in limine in connection with these prior bad acts, and at trial requested reconsideration of the court’s ruling, but was denied. So he would not have to object in front of the jury, he asked for a standing objection to the other acts evidence.

In State v. Dixon, 419 N.W.2d 699 (S.D. 1988), this court dealt with the subject of severance of counts for trial and stated:

... [A] trend is developing that “the most important consideration is whether evidence of one offense would have been admissible at a trial of the other offense, ...” (citations omitted).

Dixon, supra at 702. Since the trial court found it too prejudicial to try the two fires together in one trial, it should have been too prejudicial also to admit bad act evidence of one fire in the trial of the other.

In Dixon we quoted with approval from State v. Hoffman, 106 Wis.2d 185, 209, 316 N.W.2d 143, 157 (1982) and stated:

‘Any joinder of offenses is apt to involve some element of prejudice to the defendant, since a jury is likely to feel that a [defendant] charged with several crimes must be a bad individual who has done something wrong. However, if the notion of involuntary joinder is to retain any validity, a higher degree of prejudice, or certainty of prejudice, must be shown before relief will be in order.’ [citation omitted]

Dixon, supra at 703.

Defense counsel persuasively argues that:

Logic dictates that if a higher degree of prejudice is necessary to demonstrate need for severance, and severance is then granted, prejudice must be severe enough to preclude admission of the severed counts as a prior bad act.

I agree. I would reverse and remand for a new trial consistent with this writing.