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State v. McCraine5/16/2003
case was before the lower court, Appellant correctly asserted that the relevant considerations for deciding whether to grant a motion to sever were contained in State v. Ludwick, 197 W.Va. 70, 475 S.E.2d 70 (1996). In reliance on C.A. Wright, Federal Practice and Procedure: Criminal 2d §222 (1982), we said in Ludwick, that:
it is incumbent upon a trial judge to consider in some depth a motion to grant a severance if: (a) a joint trial will raise so many issues that a jury may conclude that the defendant is a "bad man" and must have done something, and consequently will convict him as a "bad man" rather than on a particular charge; (b) if one offense may be used to convict him of another, though proof of that guilt would have been inadmissible at a separate trial; and (c) the defendant may wish to testify in his own defense on one charge but not on another. 197 W.Va. at 73, 475 S.E.2d at 73.
The order denying the severance motion appears to give due consideration to the Ludwick factors. The order specifically states:
II. Defendant's Motion for Severance: Considering the Defendant's failure to advise the Court and the State at pre-trial whether he actually would be testifying in defense of the driving while suspended for DUI charge or the third offense DUI charge; the resulting failure to specifically identify what prejudice if any would befall him if the Court did not grant a severance, and notions of judicial economy, absent any compelling factors to weigh in the balance, the Court DENIES the Defendant's motion for severance.
We had occasion subsequent to Ludwick to hold that, in general, the trial of DUI charges and driving revoked for DUI charges should be severed to avoid unfair prejudice. Syl. Pt. 5, State v. Dews, 209 W.Va. 500, 549 S.E.2d 694 (2001). Nevertheless, the final decision regarding severance remained in the sound discretion of the trial court. Syl. Pt. 6, State v. Mitter, 168 W.Va. 531, 285 S.E.2d 376 (1981). In consideration of the facts of this case and the legal precedent at the time this case was finally decided below, we cannot say that the trial court abused its discretion in denying the motion to sever when it considered but did not find that trying the charged offenses in one proceeding would create unfair prejudice for the accused because there was not a convincing showing that Appellant had important testimony regarding one charge and a compelling reason to refrain from testifying on the other charge. See State v. Milburn, 204 W.Va. 203, 511 S.E.2d 828 (1998).
In the course of this appeal, which Appellant raises in his brief, this Court's decision in State ex rel. Games-Neely v. Sanders was released. *fn12
Appellant claims that the facts in Games-Neely mirror the circumstances surrounding the severance issue now before us and makes it absolute error for a magistrate to dismiss, over a defendant's objection, a misdemeanor charge validly brought in magistrate court with a companion felony charge so that the State may seek to join the offenses in a circuit court indictment.
We initially note that Appellant is entitled to any benefit he may derive from our decision in Games-Neely based on our rulings regarding limited retroactivity of the rulings of this Court. In the context of a criminal appeal, we held in syllabus point three of State v. Gangwer, 168 W.Va. 190, 283 S.E.2d 839 (1981), that:
In the absence of any countervailing factors, where a new rule of criminal law is made of a non-constitutional nature, it will be applied retroactively only to those cases in litigation or on appeal where the same legal point has been preserved.
Appellant properly preserved the severance issue and no countervailin
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