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State v. Golphin8/25/2000
in time, place, and occasion that it would be difficult to separate one charge from proof of the others.
At a pretrial hearing, Tilmon requested an ex parte, in camera hearing regarding severance on the ground he needed to divulge his defense to the trial court in order to fully and effectively argue this motion. Tilmon also argued there were antagonistic defenses with Kevin. Over the State's objection, the trial court allowed his request. Thereafter, all persons left the courtroom except Tilmon, his counsel, security personnel, the clerk, the judge, and the court reporter.
After the excluded parties were returned to the courtroom, Tilmon argued the cases should be separated because the conflict between his and Kevin's respective positions was such that he would be denied a fair trial. Additionally, Tilmon argued, pursuant to State v. Nelson, 298 N.C. 573, 260 S.E.2d 629 (1979), cert. denied, 446 U.S. 929, 64 L. Ed. 2d 282 (1980), that evidence concerning Kevin's seized luggage should be held to conflict with Tilmon's defense and/or alleged motive. The trial court denied Tilmon's motion for severance and allowed the State's motion for joinder.
The North Carolina General Statutes provide for joinder of defendants subject to the following provisions:
(b) Separate Pleadings for Each Defendant and Joinder of Defendants for Trial.
(1) Each defendant must be charged in a separate pleading.
(2) Upon written motion of the prosecutor, charges against two or more defendants may be joined for trial:
a. When each of the defendants is charged with accountability for each offense; or
b. When, even if all of the defendants are not charged with accountability for each offense, the several offenses charged:
1. Were part of a common scheme or plan; or
2. Were part of the same act or transaction; or
3. Were so closely connected in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others. N.C.G.S. § 15A-926(b) (1999).
"The propriety of joinder depends upon the circumstances of each case and is within the sound discretion of the trial judge." State v. Pickens, 335 N.C. 717, 724, 440 S.E.2d 552, 556 (1994). The trial court's discretionary ruling will not be disturbed on appeal absent a showing that joinder deprived the defendant of a fair trial. See id.; State v. Evans, 346 N.C. 221, 232, 485 S.E.2d 271, 277 (1997), cert. denied, 522 U.S. 1057, 139 L. Ed. 2d 653 (1998); Nelson, 298 N.C. at 586, 260 S.E.2d at 640.
Motions for severance and objections to joinder are governed by N.C.G.S. § 15A-927(c), which provides:
(c) Objection to Joinder of Charges against Multiple Defendants for Trial; Severance.
(1) When a defendant objects to joinder of charges against two or more defendants for trial because an out-of-court statement of a co-defendant makes reference to him but is not admissible against him, the court must require the prosecutor to select one of the following courses:
a. A joint trial at which the statement is not admitted into evidence; or
b. A joint trial at which the statement is admitted into evidence only after all references to the moving defendant have been effectively deleted so that the statement will not prejudice him; or
c. A separate trial of the objecting defendant.
(2) The court, on motion of the prosecutor, or on motion of the defendant other than under subdivision (1) above must deny a joinder for trial or grant a severance of defendants whenever:
a. If before trial, it is found neces
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