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State v. Jones6/6/1995
sues of joinder and severance are reviewed based on the showing to the trial court at the time trial court ruled), but that was not the end of the matter. We explain. Prior to trial, the trial court had only the police reports as the factual basis for the charges and did not know what Defendant's defense was to be. While we do not wish to be misunderstood as saying that the police reports established the type of unique modus operandi that would qualify for admission as "defendant's signature" under , at least at the time the trial court made its pretrial rulings, the modus operandi did appear unusual and the identity of the perpetrator was very much in issue. However, Defendant renewed his motion during his case, at which time it was clear that identity was no longer in issue and there were substantial differences between the two incidents. At this time, the trial court ruled "we're past the point of no return." This was error. It was entirely proper for Defendant to renew his severance motion when the grounds for it became more apparent and compelling. See ), cert. denied , 84 N.M. 512, 505 P.2d 855 (1972). Indeed, we have faulted defendants and rejected severance issues on the very ground that pretrial motions at which the showing of prejudice was speculative were not renewed during or after trial, at which time the showing of prejudice was more concrete. See . Thus, at least at the point of the renewed motion in this case, the trial court should have granted Defendant's motion to sever.
Finally, the State argues that evidence of prejudice is lacking because the jury acquitted Defendant of many charges, thus demonstrating that it was able to carefully review the evidence. A similar argument was made and rejected in , another case in which we held that the evidence of the other crimes was inadmissible under SCRA 11-404(B). Although the precise distinction does not appear to have been clearly made in our prior cases, we draw this distinction here: the State's argument might be viable in a case dealing solely with SCRA 11-403 or a case in which other factors might be present, but it is not meritorious in a case in which the SCRA 11-404(B) issue is properly preserved and in which the trial court erred by admitting the evidence under SCRA 11-404(B). When there is error in admitting the other-crimes evidence under SCRA 11-404(B), prejudice is established when there are convictions. In such a case, we will not speculate that the erroneous admission of other crimes did not cause a compromise verdict of guilty of some charges and not guilty of others. See State v. Boscarino , 529 A.2d 1260, 1265 (Conn. 1987). A different situation is presented, however, when the evidence is admissible under SCRA 11-404(B), and the question is whether it should have been excluded on balance under SCRA 11-403. In that situation, the presence of some acquittals does logically show that the other-bad-acts evidence was not so overwhelmingly prejudicial as to completely contaminate the jury, as defendants often argue. See
Defendant's convictions are reversed and remanded for new trials.
IT IS SO ORDERED.
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