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RENDERED: FEBRUARY 21, 2013 TO BE PUBLISHED

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2011-SC-000248-MR APPELLANT

JOSHUA PEACHER

V.

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE NO. 08-CR-002598-001

COMMONWEALTH OF KENTUCKY AND 2011-SC-000254-MR

APPELLEE

NEREIDA ALLEN

APPELLANT

V.

ON APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JUDITH E. MCDONALD-BURKMAN, JUDGE NO. 08-CR-002598-002

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION OF THE COURT BY JUSTICE ABRAMSON AFFIRMING

Joshua Peacher and Nereida Allen appeal as a matter of right from Judgments of the Jefferson Circuit Court following a joint trial in which both were convicted of murder (Kentucky Revised Statute (KRS) 507.020), firstdegree assault (KRS 508.010), and first-degree criminal abuse (KRS 508.100). These charges stemmed from their mistreatment of Allen's two-year-old nephew, Christopher Allen, resulting in serious physical injuries and his death.

The couple was also convicted of abuse--Peacher of first-degree and Allen of third-degree abuse--for their mistreatment of Allen's other two-year-old nephew, Wyatt Allen (Christopher's half-brother). For these crimes the trial court sentenced Peacher, in accord with the jury's recommendation, to consecutive terms of imprisonment with the total sentence of ninety (90) years reduced to the statutory maximum of seventy (70) years. Also in accord with the jury's recommendation, the trial court sentenced Allen to consecutive terms of imprisonment totaling forty-seven (47) years. Because of both the joint trial and the underlying facts common to both cases we have consolidated their appeals for consideration in this single opinion. On appeal Peacher maintains that the trial court erred (1) by refusing to grant the defendants separate trials; (2) by refusing to sever the charges relating to Christopher from the charge relating to Wyatt; (3) by giving complicity jury instructions which were not supported by the evidence and which incorrectly reflected the law of complicity; (4) by failing to give jury instructions that factually distinguished the murder and assault charges relating to Christopher; (5) by denying Peacher's motion to suppress statements he made to the investigating police officers; and (6) by denying motions for mistrial when, during closing arguments, counsel for Allen and for the Commonwealth made reference to facts not in evidence. For her part, Allen likewise maintains that the trial court's jury instructions failed to distinguish the separate charges relating to Christopher. She maintains additionally that the trial court erred by denying her motion for a directed verdict of acquittal. 2

After careful review, we find no reversible error and affirm the trial court's Judgments. RELEVANT FACTS On Monday, August 25, 2008, a case worker for Child Protective Services ordered Allen's twin sisters, Janet and Jeannette Allen, to clean and repair deplorable conditions at the home they shared in east Louisville and in the meantime to provide alternate housing for their two sons, Janet's twenty-eight month-old son, Wyatt, and Jeanette's twenty-seven month-old son, Christopher. 1 According to the social worker, at the time she visited the home and talked to the mothers both boys were active and alert, were without significant bruises or other obvious signs of injury, and appeared to be normal two-year-olds. At the sisters' request, the social worker contacted Allen, with whom Wyatt had spent most of the preceding six to eight weeks, and Allen agreed to take in the two children. Accordingly, later that afternoon Allen and her live-in boyfriend, Peacher, picked up the boys and took them to their home on Holly Park Drive in south Louisville. Not quite forty-eight hours later, at about 2:00 pm on Wednesday, August 27, EMS workers responded to a 911 call from Allen and found Christopher in Allen's bedroom unconscious and in full cardiac arrest. They took the child to nearby Sts. Mary and Elizabeth Hospital, where doctors were able to reestablish a heartbeat. The child was then, at about 3:00 pm, transported to Kosair Children's Hospital, where scans and other tests revealed that Christopher had suffered severe head injuries
1

The boys shared the same father and were thus half-brothers. 3

rendering him brain dead. He also had numerous severe injuries to his abdominal organs. At about 2:00 pm the next day, August 28, Christopher was removed from life support and pronounced dead. Peacher and Allen were jointly tried in February 2011. Their pretrial motions for separate trials were denied as were their motions to sever the charges pertaining to Christopher from the one charge involving Wyatt. Peacher also moved to suppress his police statements but the trial court denied the motion, ultimately allowing the introduction of redacted statements from both defendants. At trial, the Commonwealth's medical proof included testimony by Dr. Melissa Currie, a child abuse pediatrician. She examined Christopher not long after his arrival at Kosair and documented with photographs, which were presented to the jury, the multitude of bruises he bore literally from head to foot. Among the many bruises on Christopher's head and face, the doctor noted in particular two large bruises on either side of Christopher's neck, just below his jaw. Although the reason is not known, such bruises, according to the doctor, frequently appear on babies who have been violently shaken. Dr. Currie also noted bruises on and behind Christopher's ears, bruises difficult to inflict, she testified, because there is not much blood in those areas. According to the doctor, the bruises were therefore indicative of severe blunt force trauma to both sides of the child's head. The abdomen is another area difficult to bruise, Dr. Currie testified, because there are no bones close to the surface against which the skin can be crushed, the usual reason for a bruise. 4

Nevertheless, Christopher's abdomen had been bruised numerous times, indicating that he had been repeatedly subjected to blunt force blows to his abdomen so severe as to crush the top of his abdomen against his spine. Dr. Currie also noted the extensive bruising to Christopher's penis, scrotum, and groin, bruises again, in her opinion, which could only have resulted from such severe blunt force trauma as repeated kicks. Asked when the injuries to Christopher would have been inflicted, the doctor testified that unfortunately with only one exception the color of a bruise is not a reliable indicator of its age. The exception is the color yellow. According to Dr. Currie, not all bruises turn yellow, but those that do, do not do so until they are about eighteen hours-old. Since none of Christopher's myriad bruises had yellowed, the doctor thought it likely that some of them, at least, had been inflicted during the eighteen hours immediately prior to her examination at 5:00 pm, on August 27, i.e. sometime after about 11:00 pm on Tuesday night, August 26. With respect to the timing of Christopher's injuries, neither the medical examiner nor the neuro-pathologist who assisted her was able to be more precise. Dr. Donna Stewart, the medical examiner, testified that the cause of Christopher's death was multiple blunt force impacts: extreme and repetitive beating. Her autopsy revealed that Christopher's brain had hemorrhaged on all sides--top, bottom, and all around--and had swelled severely. His head injuries, which included retinal bleeding, an injury often associated with babies who have been violently shaken, were surely fatal. Likely fatal as well were Christopher's numerous abdominal injuries. Virtually every organ in 5

Christopher's torso, with the exception of his heart and lungs, was injured: liver, stomach, gall bladder, spleen, pancreas, intestines, and right adrenal gland. Several of those organs were torn and had hemorrhaged. Asked how long it would have taken for his injuries to render Christopher incapacitated, Dr. Stewart testified that while both the head and the abdominal injuries would have become symptomatic soon after their infliction--the possible symptoms including vomiting, thirst, lethargy, lack of appetite, and glazed eyes--she could not say in what order those injuries had been inflicted and could only say with respect to when they had been inflicted that none of them was likely to have preceded Christopher's death by more than forty-eight hours. The medical examiner was assisted by Dr. Greg Balko, a neuropathologist, who examined samples of Christopher's brain tissue microscopically. Dr. Balko testified that in brains deprived of oxygen, as Christopher's would have been due to hemorrhaging and swelling, the brain cells, the neurons, gradually die and decompose and that it is possible, therefore, by determining the degree of cell death and decomposition, to estimate how long prior to the individual's death the brain injury occurred. According to Dr. Balko, when Christopher died, at about 2:00 pm on Thursday, August 28, 2008, and the process ceased, his brain was still in the relatively early stages of cell death and decomposition, indicating to the doctor that Christopher's brain injury had been sustained within about forty-eight hours of death, or sometime after about 2:00 pm on Tuesday afternoon, August 26. Pressed on the issue of timing by counsel for Peacher, Dr. Balko agreed that 6

Christopher's brain injuries probably occurred within a few to several hours prior to his arrival at the hospital. Dr. Stewart concurred in that estimate, but noted that "several hours" could be as many as twenty-four. All of the medical experts agreed, in other words, that Christopher's catastrophic injuries occurred sometime after Monday afternoon, when Peacher and Allen had taken Christopher into their custody. Drs. Currie and Balko agreed moreover that some of those injuries, at least, including, according to Dr. Balko, Christopher's brain injury, likely occurred sometime after Tuesday afternoon or evening. In addition to the medical evidence, the Commonwealth's proof included statements Peacher and Allen made to investigators Wednesday night, after Christopher had been taken to the hospital. Peacher and Allen had followed Christopher to Sts. Mary and Elizabeth Hospital, where they were approached by homicide detectives responding to reports by hospital personnel that Christopher appeared to have been abused and that he was not likely to survive. Different detectives brought the two separately to police headquarters in downtown Louisville, and there they were asked to recount how Christopher had come to be in such critical condition. The interviews took place in segments--four for Peacher and five for Allen--lasting from about twenty minutes to about an hour, with breaks between of anywhere from a couple of minutes to a couple of hours. In both cases the detectives became more accusatory as the interviews progressed, and in both cases the defendants' stories evolved from essentially blanket denials of any wrongdoing to 7

admissions of having been rough with Christopher in the course of trying to discipline him. Initially Peacher claimed that Christopher had come to him and Allen with numerous bruises, and he suggested that Jeannette's boyfriends could have been responsible. When told that Christopher's injuries had to be more recent than that, Peacher could provide no explanation, but he described how Christopher had vomited at about 3:00 am Wednesday morning and again at about 4:00 am, how he had been slow to get up later that morning, how he had refused anything to eat but had wanted his juice, and how he had remained lethargic throughout the rest of the morning and into the afternoon. At about 1:00 Wednesday afternoon, Peacher stated, he, Peacher, had gone to Sears to buy cough medicine for the other child, Wyatt, and had taken Wyatt with him. While at the store he had received a phone call from Allen saying that Christopher was in distress. When he got home he found Christopher limp and barely breathing. He tried to revive him by slapping him and by splashing him with cold water, but when that did no good 911 was called. Peacher claimed that, aside from his apparent nausea, Christopher had seemed fine when Peacher left for Sears. Confronted by the detective with certain inconsistencies in his statement and with the fact that nothing he had said accounted for Christopher's critical condition, Peacher recalled that after he had vomited early Wednesday morning, Christopher, unbeknownst to Peacher, had gotten up to follow Peacher to the kitchen, had apparently slipped on a loose piece of carpeting, and had fallen down the bottom part of the stairs. Otherwise with 8

respect to Christopher's many bruises, Peacher claimed that, wanting to potty train the child, he had spanked him a few times, slapped his hands, and rapped him with his knuckles on the head, like rapping lightly on a table. He gradually admitted that his disciplining the child had included forcing Christopher to wipe up his vomit the night before, and when told by a second detective that it might be helpful to the doctors to know whether Christopher had been shaken, he admitted that at one point on Tuesday morning Christopher had had an accident on the carpet and that frustrated he, Peacher, had snatched Christopher up by the rib cage and had slowly shaken him back and forth three times while saying, "No, don't do that." He claimed, however, that Christopher was fine afterwards, and otherwise, when asked what had happened on Wednesday that could have left Christopher in such critical condition, he said he did not know. Allen, too, stated that Christopher had been heavily bruised when she picked him up Monday afternoon, but that she had not thought much of it because her sisters kept several dogs, which often knocked the boys over. She described Christopher as a discipline problem, as a child prone to tantrums, as "a monster," and she claimed that potty training had involved spankings, swats on the hand, time-outs in the corner, and at least one episode of having Christopher clean up a mess he made on the carpet. She stated that Christopher had had little appetite for dinner at about 8:30 Tuesday evening, which was unusual for him. Later that night, sometime after midnight, he had vomited more than once. The next morning he was hard to rouse, refused food 9

but wanted juice, was generally listless, and had glazed eyes. About 1:00 Wednesday afternoon, Allen stated, she had lain down with Christopher on her bed and had given him some juice. Immediately he began drinking it as fast as he could. Afraid that he would make himself sick, she took the juice away from him, whereupon, according to Allen, Christopher flew into a tantrum. He climbed off the bed, screamed, flailed his arms, and then threw himself backwards, landing sharply on the back of his head. She jerked him up and told him "No," but he pitched himself backward again and again struck his head. She jerked him up a second time and tried to make him stand at attention, but this time, Allen said, his body went limp, "dead-weighted," and fell back. At that point Allen realized that something was seriously wrong. Christopher's eyes had rolled back in his head and his body felt hot. She held him in front of the fan for a couple of minutes, but he did not come around. When Christopher's breathing began to fail, Allen called Peacher for help, and not long thereafter called 911. The detective, who, by that point, had taken Allen's statement in three separate interviews, then asked Allen to demonstrate with a teddy bear how she had tried to make Christopher stand up prior to his final collapse. On the video recording Allen is visibly irate at the continued questioning and angrily complains about having been kept so long at the police station. She brusquely laid the teddy bear on its back, grabbed it up, planted it sharply on its feet, and then let it fall backward; she then grabbed it up again, again planted it on its feet and let it fall. After that she turned away, refusing to say or do anything 10

more. More than an hour later a second detective, the lead detective in the case, informed Allen that she was under arrest for having assaulted Christopher and that upon Christopher's death, which was certain to be soon, the charge would be changed to murder. Allen then became very tearful, and in a fifth interview, this time with the lead detective, she admitted that before Christopher became unresponsive he had fallen and she had jerked him up at least two or three times and possibly as many as six times. Dr. Currie, the child-abuse pediatrician who documented Christopher's extensive bruising, examined Christopher's half-brother Wyatt as well. She testified that while Wyatt had not been injured as extensively as Christopher had been, he did bear a number of bruises on his forehead and a bruise on the back of one of his ears. Since the forehead is easily bruised, she said, those bruises could have been accidental and would not by themselves raise much concern. As with Christopher's, however, the bruise on Wyatt's ear was unusual and indicated that he had likely been dealt a sharp blow to the side of the head. Wyatt also had a burn on one of his thighs, which, according to. Dr. Currie, was almost certainly the result of a cigarette deliberately pressed . against the skin. Asked during his interview about the burn to Wyatt's thigh, Peacher told the detective that the hot ember from his cigarette had accidently fallen on the child and had caused the burn before Peacher could brush it away. Dr. Currie testified, however, that the burn was deeper than one would expect from such an accident and that it had the round shape and raised edges characteristic of deliberately inflicted cigarette burns.
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Neither Peacher nor Allen testified, but Peacher introduced portions of the surveillance video from Sears for the Wednesday afternoon Christopher was transported to the emergency room. On the video, Peacher is seen entering the store with Wyatt in his arms, then later standing in the check-out line, receiving a cell-phone call, and then abruptly leaving the store without making his purchase. With respect to Christopher, at least, Peacher's was essentially an alibi defense. He denied having injured the child and argued that when the injuries were inflicted he was at Sears. Conversely, Allen denied having injured either child and argued that Christopher's final collapse was the effect of injuries inflicted earlier by Peacher.
ANALYSIS

2011-SC-000248-MR - Joshua Peacher I. There Was No Error Arising From the Joint Trial and Introduction of Allen's Redacted Statement. On appeal, Peacher first contends that he was denied a fair trial by being tried together with Nereida Allen. The introduction at trial of Allen's statements to the investigating detectives, Peacher argues, violated his right to confront adverse witnesses and so rendered the joint trial improper. We find no error in the trial court's decision to try the defendants jointly. Rule of Criminal Procedure (RCr) 6.20 permits the joinder for trial of two or more defendants if "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." RCr 9.16, on the other hand, requires that trials be severed "if it appears that a defendant or the Commonwealth is or will be prejudiced" by the 12

joinder. We review the trial court's denial of a motion to sever for abuse of discretion, Quisenberry v. Commonwealth, 336 S.W.3d 19 (Ky. 2011), and the burden is on the appellant to show that the denial was in fact unfairly prejudicial. Id. We note that this Court has previously upheld the joint trial of couples accused of killing a child, see e.g. Ratliff v. Commonwealth, 194 S.W.3d

258 (Ky. 2006); Davis v. Felts, 967 S.W.2d 574 (Ky. 1998), but those cases do not address the precise issues Peacher has raised. As Peacher correctly notes, the United States Supreme Court has held that the Confrontation Clause of the Sixth Amendment precludes the use against a criminal defendant of testimonial hearsay statements unless the statement's maker, the declarant, testifies at trial or otherwise has been available for cross-examination by the defendant. Crawford v. Washington, 541

U.S. 36 (2004). In a joint trial, the Confrontation Clause ban applies even to hearsay statements offered as evidence against the co-defendant declarant himself, if the declarant does not testify and if the statement either expressly or by immediate implication tends to incriminate another defendant. Bruton v.

United States, 391 U.S. 123 (1968); Gray v. Maryland, 523 U.S. 185 (1998). In Richardson v. Marsh, 481 U.S. 200 (1987), however, the Supreme Court explained that the Confrontation Clause does not rule out joint trials or the use at joint trials of non-testifying defendants' out-of-court statements or confessions, provided that the statements are redacted so as to remove express or immediately obvious inferential references to defendants other than the confessor, and provided that the jury is admonished to consider the statements 13

as evidence against the confessor alone. Here, in full compliance with Bruton, Richardson and Gray, the Commonwealth redacted Allen's and Peacher's recorded statements so as to eliminate any reference either one made to the other. The Commonwealth did so in such a way that the redactions were not at all apparent. From Allen's redacted statement standing alone, the jury would have had no idea of Peacher's existence. 2 Nevertheless, relying on our discussion in Commonwealth v. Stone, 291 S.W.3d 696, 701 (Ky. 2009), of "the possibility of Crawford error despite Bruton compliance," Peacher contends that Allen's statements describing Christopher's condition when he got up Wednesday morning--his lack of appetite, his lethargy, his dazed appearance--tended to inculpate him, Peacher, and so were not admissible under Crawford absent an opportunity to cross-examine Allen. In Stone, the defendant was charged with having fatally stabbed a man. At trial, redacted versions of Stone's and his non-testifying co-defendants' statements were introduced. When, on cross-examination of the officer who presented the redacted statements, Stone sought to raise the issue of selfdefense, the Commonwealth responded on redirect by having the officer read from the redacted portion of one of the co-defendant's statements a description of the victim as backing away at the time of the fatal assault. Affirming the Court of Appeals' reversal of Stone's conviction, we held that where the co-

2 At trial, Peacher moved to relax the redaction requirement to the extent of allowing into evidence some of Allen's references to the fact that he, Peacher, had gone to Sears and was there when Christopher finally collapsed. Peacher, of course, does not contend that those references to him rendered the redaction of Allen's statements ineffective.

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defendant's out-of-court, "backing away" statement had been introduced not against the co-defendant declarant himself, but plainly against the nondeclarant defendant--Stone--Crawford rather than Bruton applied and under Crawford the statement should not have been admitted. In this case, unlike in Stone, Allen's statement was properly introduced as evidence against Allen herself. Her description of Christopher's lethargic condition late Wednesday morning cast significant doubt on her claim that he threw a violent tantrum a short time later. Additionally, her admission that she knew Christopher was ill but nevertheless roughly and forcibly disciplined him for a "tantrum" was circumstantial evidence bearing materially on the likelihood that she had had a part in inflicting Christopher's injuries. Allen's redacted statement itself, moreover, in no way attributed Christopher's condition Wednesday morning to Peacher. Only in conjunction with the medical testimony to the effect that Christopher's vomiting, his lethargy, his lack of appetite, his unusual thirst and his dazed appearance could all have been symptoms of his serious head and abdominal injuries did Allen's description of Christopher potentially, although not necessarily, implicate Peacher. Richardson, 481 U.S. at 200, presented a similar situation. In that case, the non-testifying co-defendant's redacted statement was not, by itself, inculpatory of the defendant, but became so later in conjunction with other evidence. The U.S. Supreme Court held that notwithstanding the possibility that it might inferentially incriminate the defendant, the non-testifying co15

defendant's properly redacted statement was admissible against the codefendant himself, because in that situation an instruction admonishing the jury to limit its consideration of the co-defendant's statement to the codefendant would adequately protect the defendant's Sixth Amendment rights. 481 U.S. at 208. Richardson applies here and permits the introduction of Allen's redacted statement against Allen herself. Although under Richardson Peacher was entitled to have the jury admonished not to consider Allen's statement against him, he did not request an admonition, and we have held that the failure to make the request constitutes a waiver of the entitlement. Quisenberry v. Commonwealth, 336 S.W.3d at 28. Peacher's final contention with respect to this issue is that even if Richardson permitted the introduction at trial of Allen's redacted statement against Allen, Richardson's rationale was undermined during closing argument when counsel for both Allen and the Commonwealth in effect urged the jury to use Allen's description of Christopher on Wednesday morning, in conjunction with the medical testimony, in evaluating Peacher's case. Peacher's concern is a legitimate one, and indeed the Supreme Court in Richardson warned against the misuse against a co-defendant in closing argument of a confession introduced only against the defendant confessor. 481 U.S. at 211. Here, however, Peacher did not object to this aspect of opposing counsels' arguments, and we are persuaded that to the extent the arguments may have been improper the impropriety did not amount to palpable error pursuant to

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RCr 10.26. 3 Brewer v. Commonwealth, 206 S.W.3d 343 (Ky. 2006) (reviewing unpreserved claim of improper closing argument for palpable error); King v. Commonwealth, 276 S.W.3d 270 (Ky. 2009) (reviewing unpreserved claim of Confrontation Clause violation for palpable error). There is no palpable error here because in Peacher's own statements to detectives he described Christopher in much the same terms as did Allen. He admitted being the one who attended Christopher when he vomited in the very early hours of Wednesday morning, he stated that later that morning Christopher was slow to get up, that he was lethargic, that he refused food, and that he was thirsty for juice. The Commonwealth's argument and Allen's argument against Peacher that Christopher was already symptomatic by Wednesday morning were thus legitimately based on Peacher's own statements to police. The fact that counsel may to some extent have improperly bolstered those arguments by referring to additional details--such as Christopher's dazed appearance--mentioned only by Allen did not alter the arguments' basic force and did not render Peacher's trial manifestly unjust. The joint trial with Allen, in sum, does not entitle Peacher to relief. II. There Was No Error In Trying the Charges Pertaining to Wyatt With Those Regarding Christopher. Peacher next contends that the trial court erred by refusing to sever the charges relating to Christopher from the charge alleging the abuse of Wyatt.
Palpable error requires manifest injustice. In Martin v. Commonwealth, 207 S.W.3d 1, 3 (Ky. 2006) we held that it requires a showing of the "probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law."
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RCr 6.18 allows for the joinder of offenses in separate counts of an indictment provided that the offenses are of "the same or similar character or are based on the same acts or transactions connected together or constituting parts of a common scheme or plan." The trial court ruled that joinder was proper under each of these rubrics since in the court's view the defendants' claims to have been engaged in the potty training and disciplining of both young boys made the acts against each not only similar but part of the same transaction and part of a common plan. The Commonwealth makes the same argument here. While we are convinced that the trial court and the Commonwealth have read RCr 6.18 too broadly in finding the separate abuse of the two young victims to be part of a single transaction or common plan, we agree that the offenses are sufficiently similar to be tried jointly, given the specific proof. The advantages of joint trials, whether of multiple charges or multiple defendants, are obvious. Trials are costly and burdensome to courts, parties, witnesses, and victims, so the savings from resolving a matter in a single trial rather than two or more separate trials are significant. This seems especially so when the evidence for separate counts will overlap to a considerable extent. It seems wasteful to require the Commonwealth to put on the same proof multiple times, to require witnesses to attend and give the same testimony at different trials, and to require separate juries to consider substantially identical evidence. Joinder also helps assure that defendants are tried for their alleged offenses in a timely manner. A joint trial, moreover, by allowing a single jury to pass on all the charges and to hear all the evidence, minimizes the risk of 18

inconsistent verdicts. Given these many advantages, RCr 6.18 provides for the liberal joinder of offenses. Notwithstanding that liberality, however, separate offenses may not be joined indiscriminately. There must be a sufficient nexus between or among them to justify a single trial. Under RCr 6.18, as noted, that nexus may be found where the separate crimes are part of a single act or transaction, such as a robbery perpetrated as part of an attempt to flee from a foiled kidnapping, Debruler v. Commonwealth, 231 S.W.3d 752 (Ky. 2007), or robberies and sex offenses perpetrated during an uninterrupted sequence of burglaries, Seay v. Commonwealth, 609 S.W.2d 128 (Ky. 1980). The required nexus may also be found where the separate crimes are parts of a common scheme or plan, such as the receipt of a stolen license plate as part of a plan to rob a filling station and afterward disguise the getaway car, Tucker v. Commonwealth, 916 S.W.2d 181 (Ky. 1996), or multiple murders and assaults as parts of an ongoing criminal syndicate, Parker v. Commonwealth, 291 S.W.3d 647 (Ky. 2009). In these cases, the required nexus does not arise simply from the proximity of the alleged crimes in time and space, although proximity is certainly relevant, but rather from a "logical" relationship between them, some indication that they arose one from the other or otherwise in the course of a single act or transaction, or that they both arose as parts of a common scheme or plan. This sort of single transaction or common scheme-or-plan nexus is lacking here. There is no indication in the indictment or in the Commonwealth's pretrial representations to the trial court that the mistreatment of either child 19

was caused by, was motivated by, or otherwise arose from or in the course of the mistreatment of the other. They were not parts of a single transaction. Nor is there any indication that the savage beating of Christopher and the striking and burning of Wyatt were separate parts of an overarching scheme or plan. The defendants' claims of wanting to potty train and to discipline both boys simply do not suggest a plan to murder and to torture or a plan of which murder and torture would be parts so as to justify, under the scheme-or-plan rubric, the joinder of those allegations. RCr 6.18, however, also permits the joinder of offenses of the same or similar character, such as similar rapes, Moreland v. Commonwealth, 322 S.W.3d 66 (Ky. 2010); Edmonds v. Commonwealth, 189 S.W.3d 558 (Ky. 2006); Cannon v. Commonwealth, 777 S.W.2d 591 (Ky. 1989); separate burglaries of the same residence and related offenses against the same victim, Roark v. Commonwealth, 90 S.W.3d 24, 28 (Ky. 2002); or the closely proximate and similarly inflicted abuse and murder of the same child victim, Commonwealth v. Collins, 933 S.W.2d 811 (Ky. 1996). We agree with the trial court and with the Commonwealth that the abuse of Christopher and Wyatt at the same place during the same two-day period and involving the infliction of similar bruising to the ears of both children was sufficiently similar to permit joinder under the "same or similar" offenses portion of RCr 6.18. Even when joinder is permissible under RCr 6.18, however, if it appears that a defendant or the Commonwealth "will be prejudiced by a joinder of offenses . . . the court shall order separate trials of counts . . . or provide 20

whatever other relief justice requires." RCr 9.16. The reasons for this rule are as clear and as compelling as the reasons for the rule allowing for joinder. A defendant is apt to be prejudiced by the joinder of offenses in any of several ways. Joinder poses the risk, for example, that the jury will infer from the mere fact of multiple charges that the defendant has a criminal disposition and so is likely to be guilty of something. There is also the risk that the evidence of one crime will be used inappropriately as evidence of another, or that the evidence will be used cumulatively, a strong case bolstering a weak one or again as proof of the defendant's criminal disposition. Finally, there is a risk that joinder will confront the defendant with a strategic dilemma: he may have compelling reasons for wanting to testify regarding one allegation but not to testify regarding another, with the joinder precluding him from doing both. The rule requires the trial court, when requested, to guard against such prejudice if possible, such as through the use of admonitions and jury instructions, or by severing the charges if no other relief will do. Because a certain degree of prejudice is inherent in the joinder of offenses, as it is in any indictment, this Court has explained that the "prejudice" calling for severance or other relief under RCr 9.16 is "undue prejudice," i.e., prejudice that goes beyond the inherent prejudice to that which is unnecessary and unreasonable. Romans v. Commonwealth, 547 S.W.2d 128 (Ky. 1977). Although our rule mandates relief when such undue prejudice appears likely, we have entrusted application of the rule to the trial court's discretion, Debruler, 231 S.W. 3d at 752 and we have many times noted that 21

an erroneous severance ruling does not justify appellate relief unless it resulted in actual prejudice to the party opposing the ruling. Cohron v. Commonwealth,

306 S.W.3d 489 (Ky. 2010) (citing Sherley v. Commonwealth, 889 S.W.2d 794 (Ky. 1994). 4 As commentators have noted, the risk of undue prejudice from joinder is particularly acute when joinder is premised on the "same or similar" offense rubric of the joinder rule. United States v. Werner, 620 F2d 922 (2d Cir. 1980) (noting and taking issue with some of the rule's critics); 1A Wright & Leipold, Federal Practice and Procedure

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