(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued October 10, 1995 -- Decided February 5, 1996
STEIN, J., writing for a unanimous Court.
The issue on appeal is the standard by which trial courts should evaluate motions for severance
based on the claim that one codefendant will exculpate another if the two are not tried together.
Alex Sanchez and his brother Juan Sanchez were jointly indicted for second-degree robbery and
related offenses. On January 23, 1988 Mary Ann Wyman was robbed in the parking lot of the Monmouth
Mall in Eatontown. Witnesses identified Juan as the assailant and Alex as the person driving the get-away
car.
On December 7, 1992, the day the joint trial was to begin, Alex moved for severance based on
Juan's July 1988 affidavit in which Juan admitted committing the Wyman robbery with a man named Noel
Manuel. At the time he signed this affidavit, Juan was serving a forty-year prison term with a twenty-year
period of parole ineligibility in Pennsylvania. Under oath, Juan was questioned regarding his intentions to
testify on his brother's behalf. Juan stated that he would not testify if he and Alex were tried jointly. Juan
was unable to say for sure whether he would or would not testify at Alex's trial if severance was granted.
The trial court denied the severance motion, citing Alex's failure to demonstrate that Juan would
testify at Alex's trial if severance were granted. The court also found the testimony inconsistent as to
whether or not Alex was at the scene of the crime. The trial court was of the belief that the severance
motion was being used as a device to get one of the brother's acquitted. In addition, the court found the
motion untimely filed.
A jury convicted both Alex and Juan of all charged offenses.
On appeal, the Appellate Division reversed, holding that severance was warranted because there was
a substantial likelihood that Juan would have offered exculpatory testimony for Alex if they had been
separately tried.
The Supreme Court granted certification.
HELD: Because Alex Sanchez has failed to show that substantially exculpatory testimony would have been
forthcoming had his severance motion been granted, he has not demonstrated prejudice sufficient to
compel severance under Rule 3:15-2(b). The trial court, therefore, did not abuse its discretion in
denying Alex Sanchez's severance motion.
1. Under the Rules of Court, defendants who are alleged to have participated in the same act or transaction
constituting an offense can be jointly tried. Joint trials are the preferred course because they foster judicial
efficiency and serve the interests of justice by avoiding the inequity of inconsistent verdicts. However, the
interest in judicial economy cannot override a defendant's right to a fair trial. Therefore, Rule 3:15-2(b)
provides for relief from a prejudicial joinder. The decision whether to grant severance rests with the sound
discretion of the trial court. (pp. 8-11)
2. If called to testify, a codefendant is likely to assert the Fifth Amendment privilege against self-incrimination, thereby frustrating a possibly innocent defendant's attempt to present exculpatory testimony to
the jury through the codefendant. Federal courts have demonstrated a strong preference for joint trials and
routinely deny severance requests. In deciding whether to grant a severance motion, federal courts focus
primarily on two factors: the exculpatory nature of the proffered testimony; and the showing that the
testimony will be forthcoming in a separate trial. In federal courts, testimony does not qualify as
"exculpatory" if it is insignificant, cumulative, or merely a vague or conclusory assertion of innocence.
Further, the moving defendant cannot establish that the codefendant's testimony would be forthcoming in a
separate trial if the codefendant's willingness to testify is conditioned on his being tried first. (pp. 11-20)
3. In evaluating severance motions that are based on the need for a codefendant's testimony, the trial court
must focus on the substance and quality of the proffered testimony and attempt to ascertain the exculpatory
value of that testimony. The court should distinguish between credible, substantially exculpatory testimony
and testimony that is insignificant, subject to damaging impeachment, or unduly vague, conclusory, or
cumulative. (pp. 21-23)
4. When a codefendant's offer to testify is conditioned both on the severance motion being granted and on
his or her own case being tried first, and the proffered testimony is substantially exculpatory, the court should
accommodate a codefendant's reasonable request regarding the timing of the separate trials unless there is a
compelling reason not to do so. Moreover, unless the court is persuaded that the reliability and
trustworthiness of the proffered testimony significantly outweigh the risk of perjury, severance should be
denied. (pp. 23-24)
5. The Court agrees fully with the federal courts' tendency to grant severance in multi-defendant criminal
cases only sparingly. The federal standard embraces the factors that are relevant to determining the
appropriateness of severance. Accordingly, the Court adopts a broad standard that reflects those factors.
Therefore, the trial court should sever a joint trial if the court is reasonably certain that (1) the defendant
will call his or her codefendant as a witness in a separate trial; (2) the codefendant, although unwilling to
testify at a joint trial, will testify at a separate trial either prior or subsequent to his or her own trial; and (3)
the codefendant's proffered testimony is credible and will be substantially exculpatory. (pp. 24-25)
6. The Court's standard differs somewhat from the federal standard in that it recognizes that a
codefendant's request to be tried before testifying in a separate trial is only a factor to be considered in the
severance determination. A codefendant's conditional offer to testify should carefully be assessed by the
court in determining whether the risk of perjury outweighs the likelihood that the proffered testimony is
trustworthy. The focus should be on the exculpatory value of the proffered testimony, and not on whether
defendant requests that he or she be tried before his or her codefendant. (p. 25)
6. The trial court properly rejected Alex's severance motion because there was not a sufficient showing that
a grant of severance would have altered Juan's decision not to testify. Moreover, Juan's proffered testimony
did not substantially exculpate Alex and the likelihood that Juan's testimony would have exculpated Alex was
minimal. (pp. 26-28)
Judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI, and
COLEMAN join in JUSTICE STEIN'S opinion.
SUPREME COURT OF NEW JERSEY
A-
29 September Term 1995
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ALEX SANCHEZ,
Defendant-Respondent.
Argued October 10, 1995 -- Decided February 5, 1996
On certification to the Superior Court,
Appellate Division.
Janet Flanagan, Deputy Attorney General,
argued the cause for appellant (Deborah T.
Poritz, Attorney General of New Jersey,
attorney).
Frank Joseph Pugliese, Assistant Deputy
Public Defender, argued the cause for
respondent (Susan L. Reisner, Public
Defender, attorney).
The opinion of the Court was delivered by
STEIN, J.
Alex Sanchez (Alex) and his brother, Juan Sanchez (Juan),
were jointly indicted for second-degree robbery and related
offenses. On the eve of their joint trial, Alex moved for
severance, claiming that Juan would provide testimony exculpating
Alex if the two were tried separately. The trial court denied
the motion, and both Alex and Juan were convicted of all charged
offenses. The Appellate Division reversed, holding that
severance was warranted because there was a substantial
likelihood that Juan would have offered exculpatory testimony for
Alex if they had been separately tried. We granted
certification,
140 N.J. 276 (1995), to determine the standard by
which trial courts should evaluate motions for severance based on
the claim that one codefendant will exculpate another if the two
are not tried together. We reverse.
On January 23, 1988, Mary Ann Wyman went shopping at the
Monmouth Mall in Eatontown, New Jersey, along with her husband,
daughter, and two grandchildren. At approximately 4:45 p.m.,
after Mrs. Wyman exited the mall and walked into the parking lot,
a man grabbed her pocketbook and attempted to pry it away from
her. Although Mrs. Wyman initially held on to the pocketbook,
the assailant successfully wrestled it away on his second
attempt. The force of the assailant's efforts caused Mrs. Wyman
to fall to the ground and fracture her pelvis. She remained
hospitalized for five days and was unable to return to work for
nineteen weeks.
Mrs. Wyman's husband, Kenneth, had been walking
approximately ten feet in front of his wife at the time of the
attack. Hearing a scream, he turned around and saw his wife
lying on the ground. He then watched the assailant run to and
enter a station wagon parked alongside the curb near a mall
entrance. Mr. Wyman recognized the assailant as the same man he
had earlier noticed standing next to the open passenger door of
the station wagon. Mr. Wyman did not see the driver of the
station wagon as the car sped away, but he took note of the car's
license plate number, CDE-82B. Mr. Wyman subsequently identified
Juan at a photographic lineup as the person who had stolen his
wife's pocketbook.
The Wymans' daughter, Laura Anselmo, was walking next to her
mother at the time of the attack. At a photographic lineup and
in court, she identified Juan as her mother's assailant.
Deborah Polito, who worked as a hairdresser at the mall,
also observed the robbery. She was warming up her car in the
parking lot, preparing to return home from work, when she saw a
man take Mrs. Wyman's pocketbook, knock her to the ground, and
enter his get-away car. Although Polito was not able to see the
face of the assailant because of the speed of the attack, she had
previously observed for approximately ten minutes the driver of
the get-away car illegally parked in the fire zone abutting the
mall. At a photographic lineup and in court, Polito identified
Alex as the driver of the vehicle.
The screech of the get-away car caught the attention of
Joseph Holsey, a shopper who was leaving the mall at the time of
the robbery. He watched Mrs. Wyman fall to the ground, and then
realized that the get-away car was approaching him. Fearing that
the car would hit him, Holsey jumped back from the road to the
sidewalk. From approximately four feet away, he saw two men
through the windshield of the car. At a photographic lineup and
in court, Holsey identified Alex as the driver of the vehicle and
Juan as his passenger.
The brothers were jointly indicted in March 1988 for second-degree robbery, contrary to N.J.S.A. 2C:15-1; second-degree
aggravated assault, contrary to N.J.S.A. 2C:12-1b(1); and third-degree theft, contrary to N.J.S.A. 2C:20-3.
On Monday, December 7, 1992, the day the joint trial was
scheduled to begin, Alex moved for severance. The basis for the
motion was an affidavit signed by Juan on July 6, 1988, in which
Juan admitted that he robbed Mrs. Wyman with Noel Manuel, the
person to whom the station wagon bearing license plate number
CDE-82B was registered. Juan stated in the affidavit:
How my brother Alex became implicated in this
crime I['ll] never understand, because he had no
knowledge of Noel['s] and [my] inten[t]ions before
or after the [] incident. * * * [A] man (my
brother) is being held for a crime [that] Noel and
I committed. I[] will cooperate in any way
ne[ce]ssary to gain Alex['s] fre[e]dom. * * *
Noel and I are the only people responsible for the
robbery of that old lady in the mall.
At the time he signed the affidavit, Juan was incarcerated in
Pennsylvania, having recently commenced a forty-year prison term
with a twenty-year parole disqualifier for aggravated assault,
indecent sexual intercourse with a minor, kidnapping, and
corrupting the morals of a minor.
Alex's lawyer, James N. Butler, Esq., explained to the court
that until the preceding Friday he had assumed that at trial Juan
would exonerate Alex in accordance with his affidavit. On that
Friday, however, Juan's lawyer informed Butler that Juan would
not testify at a joint trial. Pursuant to the procedure outlined
in State v. White,
195 N.J. Super. 457, 460 (Law Div. 1984), the
court asked the prosecutor, Alex, and Butler to leave the room,
and questioned Juan under oath about his intentions. Although
Juan first stated that he had not decided whether to testify in a
joint trial, he later informed the court that the "honest truth"
was that he did not intend to testify if he and his brother were
tried together. Juan was uncertain about whether a grant of
severance would alter his decision not to take the witness stand
on his brother's behalf. He had apparently anticipated that the
State would offer him a "deal" in exchange for his testimony as
set forth in the affidavit. Now that no such offer was
forthcoming, Juan explained, he had to devise an alternative
strategy. He initially stated that even if the severance motion
were granted he would not testify at his brother's trial "on
[his] own will." When the court offered to try Juan's case first
and asked if that would affect Juan's decision, Juan replied,
"Maybe. * * * I don't know." Juan's lawyer then explained to him
that Juan's interests would not be prejudiced if Juan were tried
first and thereafter testified at his brother's trial, unless
that testimony constituted perjury. Juan responded to subsequent
court inquiries with "I might testify," "I may testify," "Most
certainly I might testify," and, finally, "I haven't decided."
Upon further questioning, Juan explained that if he were to
testify he would testify in accordance with his affidavit. In
attempting to understand Juan's version of the events in
question, the court asked whether Alex was present at the scene
of the crime. The following colloquy resulted:
MR. JUAN SANCHEZ: I don't think I'm in a
position to answer that to you, Your Honor.
THE COURT: Why not? You were there.
MR. JUAN SANCHEZ: Well, because I don't
think that it would be right for me to say
that Alex was there or not. I said that Alex
wasn't there. It was me and Noel. That's
what I said on the affidavit at that time.
THE COURT: You didn't say Alex wasn't there.
You said you and Noel were there.
MR. JUAN SANCHEZ: Yeah.
THE COURT: But [what] I'm asking now is was
he there. Was Alex there?
MR. JUAN SANCHEZ: I have to answer that?
THE COURT: Yes.
MR. JUAN SANCHEZ: Yes.
After the prosecutor, Alex, and Butler returned to the courtroom,
Butler explained that his argument at trial would be that Alex
"wasn't there. So he really doesn't know what happened at [the
Monmouth Mall] on that particular date." In a subsequent in
camera hearing, Alex informed the court that he was working at
Freedman's Bakery in Belmar around the time of the crime and was
not present at the crime scene.
The trial court denied the severance motion. The court
cited Juan's failure to demonstrate that he would testify at
Alex's trial if the severance motion were granted. The court
also noted that "the testimony of the two defendants is not
consistent on the crucial issue of the presence of Alex at the
scene. And, therefore, the defendants appear to the Court to be
attempting to simply use the severance as a device to get one of
them acquitted." As an alternative basis for its ruling, the
court found that the severance motion was not made in a timely
manner under Rule 3:15-2(c), which, at the time of trial,
required that "[a] motion for separate trial of counts of an
indictment or accusation must be made within 30 days after the
initial plea to the indictment or accusation."
At trial, Juan neither testified nor called any witnesses.
Alex did not testify, but a representative of Freedman's Bakery
testified for Alex that on January 23, 1988, Alex reported to
work at 7:04 a.m. and punched out at 3:32 p.m. The jury
convicted Alex and Juan of all three charged offenses.
In an unreported, per curiam opinion, the Appellate Division
reversed Alex's conviction. The court stated that Juan could not
have been expected to testify at a joint trial, but there was a
substantial likelihood that he would have testified at a separate
trial for Alex. The court held that because the trial court in
effect foreclosed the possibility that Alex could benefit from
Juan's testimony, the trial court abused its discretion in
denying Alex's severance motion.
Rule 3:7-7 allows for joinder of defendants who 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." This Court has stated that in such cases, where "much of the same evidence is needed to prosecute each defendant, a joint trial is preferable." State v. Brown, 118 N.J. 595, 605 (1990) (citing Richardson v. Marsh, 481 U.S. 200, 210, 107 S. Ct. 1702, 1708, 95 L. Ed.2d 176, 187 (1987)); State v. Moore, 113 N.J. 239, 273 (1988); State v. Briley, 53 N.J. 498, 503 (1969). Joint trials foster an efficient judicial system, Zafiro v. United States, 506 U.S. 534, , 113 S. Ct. 933, 937, 122 L. Ed.2d 317, 324 (1993), and spare witnesses and victims the inconvenience and trauma of testifying about the same events two or more times. Richardson, supra, 481 U.S. at 210, 107 S. Ct. at 1708, 95 L. Ed. 2d at 187. In addition, "joint trials generally serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts." Id. at 210, 107 S. Ct. at
1709, 95 L. Ed.
2d at 187 (footnote omitted). They also allow
for a "`more accurate assessment of relative culpability -- [an]
advantage[] [that] sometimes operate[s] to the defendant's
benefit.'" Brown, supra, 118 N.J. at 605 (quoting Richardson,
supra, 481 U.S. at 210, 107 S. Ct. at 1708, 95 L. Ed.
2d at 187).
However, the interest in judicial economy cannot override a
defendant's right to a fair trial. See State v. Coleman,
46 N.J. 16, 24 (1965), cert. denied,
383 U.S. 950,
86 S. Ct. 1210,
16 L.
Ed.2d 212 (1966); State v. Manney,
26 N.J. 362, 366 (1958).
Rule 3:15-2(b) thus provides for relief from a prejudicial
joinder:
If for any other reason it appears that a
defendant or the State is prejudiced by a
permissible or mandatory joinder of offenses or of
defendants in an indictment or accusation the
court may order an election or separate trials of
counts, grant a severance of defendants, or direct
other appropriate relief.
We have applied that Rule and its predecessor in a variety of
factual settings in which defendants have claimed that a joint
trial unduly prejudiced their right to a fair trial. See, e.g.,
State v. Melendez,
129 N.J. 48, 57-60 (1992) (rejecting
defendant's claim that severance was required because of
codefendant's disappearance in middle of trial); Brown, supra,
118 N.J. at 605-09 (holding that codefendants' defenses were not
so antagonistic as to demand separate trials); State v. Mayberry,
52 N.J. 413, 421 (1968) (finding severance was not warranted
where only basis for severance motion was that some evidence
would be admissible only as to one codefendant), cert. denied,
393 U.S. 1043,
89 S. Ct. 673,
21 L. Ed.2d 593 (1969); State v.
Laws,
50 N.J. 159, 175-76 (1967) (finding severance was not
required even though evidence against one defendant was stronger
than that against the other and third defendant was acquitted in
course of trial), cert. denied,
393 U.S. 971,
89 S. Ct. 408,
21 L. Ed.2d 384 (1968); State v. Sinclair,
49 N.J. 525, 550 (1967)
(holding that trial court did not abuse its discretion in denying
severance motion premised on argument that defendant was
prejudiced by being jointly tried with mentally disturbed
codefendant); State v. Broxton,
49 N.J. 373, 376-77 (1967)
(rejecting defendants' severance argument because they were not
prejudiced by admission into evidence of redacted confessions of
their codefendants). We have noted as a general matter that
"[t]he decision whether to grant severance rests within the trial
court's sound discretion." Brown, supra, 118 N.J. at 603; accord
Laws, supra, 50 N.J. at 175; Manney, supra, 26 N.J. at 368.
We have not heretofore addressed comprehensively the claim
asserted here that a joint trial prevented a defendant from
obtaining the exculpatory testimony of his codefendant. But see
Manney, supra, 26 N.J. at 369 (summarily rejecting severance
argument premised on need for codefendant's testimony because
defendant failed to show that codefendant would have testified at
separate trial); cf. Lamble v. State,
96 N.J.L. 231, 233 (E. & A.
1921) (summarily affirming trial court decision to sever joint
trial that was based on State's need to call codefendant as
witness against defendant). The severance issue frequently
arises because of the codefendant's concern that if he provides
the "exculpatory" testimony he necessarily inculpates himself.
See Robert O. Dawson, Joint Trials of Defendants in Criminal
Cases: An Analysis of Efficiencies and Prejudices,
77 Mich. L.
Rev. 1379, 1438, 1441 (1979). A codefendant's decision to
testify in a joint trial may also afford the State an opportunity
to inform the jury of his criminal record, which otherwise might
have been inadmissible. Id. at 1441. See generally State v.
Brunson,
132 N.J. 377, 383-93 (1993) (discussing use of prior
criminal record to impeach testifying defendant); State v. Sands,
76 N.J. 127, 132-47 (1978) (same). Thus, if called to testify,
the codefendant is likely to assert his Fifth Amendment privilege
against self-incrimination, thereby frustrating a possibly
innocent defendant's attempt to present exculpatory testimony to
the jury through the codefendant.
The Appellate Division confronted such a situation in State
v. Morales,
138 N.J. Super. 225 (App. Div. 1975). The defendants
in that case, Morales and Pitkewicz, had been indicted for
violating State lottery laws. At their joint trial, Morales
informed the trial court of his intent to call Pitkewicz as a
witness, "intimating that his testimony would be exculpatory [as
to] Morales." 138 N.J. Super. at 228 (internal quotation marks
omitted). Pitkewicz's attorney then explained to the court that
his client would invoke his constitutional right not to
incriminate himself if called to the witness stand. The trial
court denied Morales's ensuing severance motion, and the
Appellate Division affirmed. The unanimous panel found that
Morales was not prejudiced by the joint trial, because "it ha[d]
not been demonstrated * * * that if Pitkewicz were called as a
witness at a separate trial, he would be willing to give
testimony tending to exculpate Morales." Id. at 230. The court
also noted that the nature of the allegedly exculpatory testimony
had never been disclosed. Ibid.
Because joint trials account for almost one-third of all
federal criminal trials, Richardson, supra, 481 U.S. at 209, 107
S. Ct. at 1708, 95 L. Ed.
2d at 187, the federal courts have
dealt extensively with severance issues. See 1 Charles A.
Wright, Federal Practice and Procedure §§ 223-225 (1982 & Supp.
1995) (citing cases). In general, the federal courts have
demonstrated a strong preference for joint trials. Id. § 223.
Although earlier cases were tolerant of severance applications,
see, e.g., United States v. Shuford,
454 F.2d 772 (4th Cir.
1971); Byrd v. Wainwright,
428 F.2d 1017 (5th Cir. 1970); United
States v. Echeles,
352 F.2d 892 (7th Cir. 1965), severance
requests in the federal courts are now routinely denied. Wright,
supra, § 223.
Federal Rule of Criminal Procedure 14, which provides for
relief from joinder, reflects the same concern about the
potential prejudice to the jointly tried defendant as does our Rule 3:15-3(b). In applying the federal rule to cases in which a defendant moves for severance based on the need for a codefendant's testimony, a plurality of the federal circuits have required the moving defendant to demonstrate: (1) a bona-fide need for the testimony; (2) the substance of the desired testimony; (3) the exculpatory nature and effect of the desired testimony; and (4) that the codefendant would indeed testify at a separate trial. See, e.g., United States v. Smith, 46 F.3d 1223, 1231 (1st Cir.), cert. denied, U.S. , 116 S. Ct. 176, L. Ed.2d (1995); United States v. Ramirez, 954 F.2d 1035, 1037 (5th Cir.), cert. denied, 505 U.S. 1211, 112 S. Ct. 3010, 120 L. Ed.2d 884 (1992); United States v. Smith, 918 F.2d 1551, 1560 (11th Cir. 1990); United States v. Ford, 870 F.2d 729, 731 (D.C. Cir. 1989); United States v. Parodi, 703 F.2d 768, 779 (4th Cir. 1983). Once the defendant makes this threshold showing the trial court must then: (1) examine the significance of the testimony in relation to the defendant's theory of the case; (2) assess the extent of prejudice caused by the absence of the testimony; (3) consider judicial administration and economy; and (4) give weight to the timeliness of the motion. See, e.g., Ramirez, supra, 954 F. 2d at 1037; Smith, supra, 918 F. 2d at 1560-61; Ford, supra, 870 F. 2d at 731; Parodi, supra, 703 F. 2d at 779 (considering, in addition, likelihood that codefendant's testimony would be impeached); see also Smith, supra, 46 F.3d at
1231 (omitting factor two, and also considering likelihood that
codefendant's testimony would be subject to damaging
impeachment).
The remaining circuits employ standards that are "similar *
* * with only unimportant differences in wording." Wright,
supra, § 225 n.5; see, e.g., United States v. Williams,
31 F.3d 522, 528 (7th Cir. 1994) (holding that defendant must show that
codefendant's testimony would be exculpatory, that codefendant
would in fact testify at separate trial, and that testimony would
bear on defendant's case); United States v. Vue,
13 F.3d 1206,
1210 (8th Cir. 1994) (holding that defendant must show that
codefendant would testify at separate trial and that testimony
would be exculpatory); United States v. Mariscal,
939 F.2d 884,
885 (9th Cir. 1991) (noting that trial court must weigh
defendant's intent to have codefendant testify, weight and
credibility of predicted testimony, probability that testimony
will materialize, economy of joint trial, and degree to which
testimony is exculpatory); United States v. Paulino,
935 F.2d 739, 752 (6th Cir.) (holding that defendant must show that
codefendant will testify at separate trial and that testimony
will be exculpatory), cert. denied,
502 U.S. 914,
112 S. Ct. 315,
116 L. Ed.2d 257 (1991); United States v. Rogers,
925 F.2d 1285,
1287 (10th Cir.) (considering as relevant factors likelihood that
codefendant would testify at defendant's separate trial,
significance of testimony in relation to defendant's theory of
defense, exculpatory nature and effect of testimony, likelihood
that codefendant's testimony would be impeached, extent of
prejudice caused by absence of testimony, interests of judicial
administration and economy, and timeliness of severance motion),
cert. denied,
501 U.S. 1211,
111 S. Ct. 2812,
115 L. Ed.2d 985
(1991); United States v. Boscia,
573 F.2d 827, 832 (3d Cir.)
(emphasizing following factors: likelihood of codefendant
testifying; degree to which testimony would be exculpatory;
degree to which codefendant could be impeached; and judicial
economy), cert. denied,
436 U.S. 911,
98 S. Ct. 2248,
56 L. Ed.2d 411 (1978); United States v. Finkelstein,
526 F.2d 517, 523-24
(2d Cir. 1975) (same), cert. denied,
425 U.S. 960,
96 S. Ct. 1742,
48 L. Ed.2d 205 (1976). All of the federal circuits agree
that the trial court is to be given broad discretion in ruling on
severance motions. See, e.g., United States v. Reavis,
48 F.3d 763, 767 (4th Cir.), cert. denied, U.S. ,
115 S. Ct. 2597,
132 L. Ed.2d 844 (1995); United States v. Torres-Maldonado,
14 F.3d 95, 104 (1st Cir.), cert. denied, U.S.
,
115 S. Ct. 193,
130 L. Ed.2d 125 (1994).
Although the standards applied by some federal courts for
granting severance motions appear somewhat detailed, the courts
have focused primarily on two factors: (1) the exculpatory
nature of the proffered testimony; and (2) the showing that the
testimony would be forthcoming in a separate trial. See, e.g.,
United States v. Wilwright,
56 F.3d 586, 591 (5th Cir.), cert.
denied, U.S. ,
116 S. Ct. 345, L. Ed.2d (1995);
United States v. McKinney,
53 F.3d 664, 674 (5th Cir.), cert.
denied, U.S. ,
116 S. Ct. 261, L. Ed.2d (1995);
Reavis, supra, 48 F.
3d at 767-68; United States v. Williams,
31 F.3d 522, 528 (7th Cir. 1994); United States v. Lucht,
18 F.3d 541, 554 (8th Cir.), cert. denied, U.S. ,
115 S. Ct. 363,
130 L. Ed.2d 316 (1994); United States v. Washington,
12 F.3d 1128, 1133-34 (D.C. Cir.), cert. denied, U.S. ,
115 S.
Ct. 98,
130 L. Ed.2d 47 (1994); United States v. Nason,
9 F.3d 155, 159 (1st Cir. 1993), cert. denied, U.S. ,
114 S. Ct. 1331,
127 L. Ed.2d 678 (1994); United States v. Lopez,
6 F.3d 1281, 1285 (7th Cir. 1993); United States v. Adams,
1 F.3d 1566,
1579 (11th Cir. 1993), cert. denied, U.S. ,
114 S. Ct. 1310,
127 L. Ed.2d 660 (1994); United States v. Taren-Palma,
997 F.2d 525, 533 (9th Cir. 1993), cert. denied, U.S. ,
114 S. Ct. 1648,
128 L. Ed.2d 368 (1994); United States v.
Washington,
969 F.2d 1073, 1080 (D.C. Cir. 1992), cert. denied,
U.S. ,
113 S. Ct. 1287,
122 L. Ed.2d 679 (1993); United
States v. Rusher,
966 F.2d 868, 878 (4th Cir.), cert. denied,
U.S. ,
113 S. Ct. 351,
121 L. Ed.2d 266 (1992); United
States v. Villarreal,
963 F.2d 725, 731 (5th Cir.), cert. denied,
U.S. ,
113 S. Ct. 353,
121 L. Ed.2d 267 (1992); United
States v. Tolliver,
937 F.2d 1183, 1188-89 (7th Cir.), cert.
denied,
502 U.S. 919,
112 S. Ct. 329,
116 L. Ed.2d 269 (1991);
United States v. Gonzalez,
933 F.2d 417, 425 (7th Cir. 1991);
United States v. Beale,
921 F.2d 1412, 1428-29 (11th Cir.), cert.
denied,
502 U.S. 829,
112 S. Ct. 100,
116 L. Ed.2d 71 (1991);
United States v. Foote,
920 F.2d 1395, 1399 (8th Cir. 1990),
cert. denied,
500 U.S. 946,
111 S. Ct. 2246,
114 L. Ed.2d 487
(1991); Smith, supra, 918 F.
2d at 1561; United States v. Rocha,
916 F.2d 219, 232 (5th Cir. 1990), cert. denied,
500 U.S. 934,
111 S. Ct. 2057,
114 L. Ed.2d 462 (1991); United States v.
McConnell,
903 F.2d 566, 571 (8th Cir. 1990), cert. denied,
498 U.S. 1106,
111 S. Ct. 1011,
112 L. Ed 2d 1093 (1991).
In addressing whether the proffered testimony is
sufficiently exculpatory, the federal courts have repeatedly
stated that testimony does not qualify as "exculpatory" if the
testimony is insignificant, cumulative, or merely a vague or
conclusory assertion of innocence. See, e.g., Reavis, supra, 48
F.
3d at 767-68; Smith, supra, 46 F.
3d at 1232; Vue, supra, 13
F.
3d at 1210; Taren-Palma, supra, 997 F.
2d at 533; United States
v. Van Hemelryck,
945 F.2d 1493, 1501 (11th Cir. 1991); Beale,
supra, 921 F.
2d at 1428-29; Foote, supra, 920 F.
2d at 1399;
Smith, supra, 918 F.
2d at 1561; Ford, supra, 870 F.
2d at 732;
United States v. Espinosa,
771 F.2d 1382, 1408-09 (10th Cir.),
cert. denied,
474 U.S. 1023,
106 S. Ct. 579,
88 L. Ed.2d 561
(1985); United States v. Johnson,
713 F.2d 633, 641 (11th Cir.
1983), cert. denied,
465 U.S. 1081,
104 S. Ct. 1447,
79 L. Ed.2d 766 (1984); Parodi, supra, 703 F.
2d at 780; United States v.
DeSimone,
660 F.2d 532, 540 (5th Cir. Unit B Nov. 1981), cert.
denied,
455 U.S. 1027,
102 S. Ct. 1732,
72 L. Ed.2d 149 (1982).
Concerning the likelihood that a codefendant will testify,
the federal courts generally have held that the moving defendant
cannot establish that the codefendant's testimony would be
forthcoming in a separate trial if the codefendant's willingness
to testify is conditioned on his being tried first. See, e.g.,
Reavis, supra, 48 F.
3d at 767; United States v. Jagim,
978 F.2d 1032, 1040 (8th Cir. 1992), cert. denied, U.S. ,
113 S.
Ct. 2447,
124 L. Ed 2d 664 (1993); Ford, supra, 870 F.
2d at 731-32; Parodi, supra, 703 F.
2d at 779. Those courts have observed
that were they to allow defendants to dictate the order of their
trials based on a contingent proffer of exculpatory testimony,
the defendants would receive a benefit unavailable to them had
they been indicted separately. See, e.g., Reavis, supra, 48 F.
3d
at 767; Parodi, supra, 703 F.
2d at 780. Those courts are also
fearful of encouraging perjury:
Were we to accede to the co-defendant's demand
[regarding the order of the trials], we would
"create a situation where, following his own
trial, the witness would be more inclined to
`throw a bone' to his codefendants by testifying
favorably to them because his own case had been
disposed of and he had little to lose by
testifying."
That approach routinely results in the denial of severance
motions, for it is the rare defendant who makes an unconditional
offer to exculpate his codefendant. Because a criminal
defendant's prior statements are admissible against him, a
defendant with the ability to exculpate his codefendant generally
will exercise his Fifth Amendment privilege rather than inculpate
himself, unless his own trial already has been resolved. See
Dawson, supra, at 1441.
State courts that have confronted severance requests based
on the need for a codefendant's testimony typically have followed
the approach taken by the federal courts. See, e.g., Lumpkin v.
United States,
586 A.2d 701, 707 (D.C.) (stating that moving
defendant must satisfy following criteria: exculpatory nature of
desired testimony; desire to present codefendant's testimony;
willingness of codefendant to testify at separate trial; and
demands of judicial administration), cert. denied,
502 U.S. 849,
112 S. Ct. 151,
116 L. Ed 2d 116 (1991); State v. Talavera,
243 So.2d 595, 597 (Fla. 1971) (noting that defendant must show
exculpatory nature of codefendant's testimony, that codefendant
is willing to testify at separate trial, that codefendant would
not testify at joint trial, and that desired testimony is
relevant, material, competent, and noncumulative); Huffman v.
State,
543 N.E.2d 360, 368 (Ind. 1989) (considering following
criteria: exculpatory effect of testimony; likelihood that
codefendant would testify at separate trial; and exculpatory
nature and significance of testimony, or prejudice to defendant
if testimony is unavailable), cert. denied,
497 U.S. 1011,
110 S.
Ct. 3257,
111 L. Ed.2d 767 (1990), overruled on other grounds,
Street v. State,
567 N.E.2d 102 (Ind. 1991); State v. Nott,
669 P.2d 660, 665 (Kan. 1983) (adopting Fifth Circuit standard
verbatim); State v. Turner,
365 So.2d 1352, 1354 (La. 1978)
(stating that defendant must show that codefendant would testify
in separate trial and that testimony would be exculpatory);
People v. Bornholdt,
305 N.E.2d 461, 468 (N.Y. 1973) (noting
importance of showing need for codefendant's testimony, that
testimony would be exculpatory, that codefendant would testify at
separate trial, and that severance motion was timely), cert.
denied,
416 U.S. 905,
94 S. Ct. 1609,
40 L. Ed.2d 109 (1974);
State v. Winckler,
260 N.W.2d 356, 364-65 (S.D. 1977) (describing
three-factor test: whether defendant desires to use
codefendant's testimony; whether testimony would be exculpatory;
and whether codefendant is likely to testify at separate trial).
Two states, however, have taken a very different approach,
granting jointly indicted defendants the right to severance in
all felony cases. See Miss. Code Ann. § 99-15-47; Vt. R. Crim.
P. 14. Texas has also departed from the federal approach by
providing that in all cases where severance is granted the
defendants may dictate the order in which they are to be tried.
See Tex. Crim. Pro. Code Ann. § 36.10.
Evaluating severance motions that are based on the need for a codefendant's testimony requires a balancing of the State's interest in the economy of a joint trial and a criminal defendant's interest in presenting exculpatory evidence to the trier of fact. Jointly indicted defendants generally should be tried together to avoid unnecessary, duplicative litigation. Brown, supra, 118 N.J. at 605. "Nevertheless, a single joint trial, however desirable from the point of view of efficient and expeditious criminal adjudication, may not be had at the expense of a defendant's right to a fundamentally fair trial." United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1965). Indeed, "[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense." Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct. 1038, 1049, 35 L. Ed.2d 297, 312 (1973) (holding that Mississippi's voucher rule and hearsay rules unconstitutionally restricted defendant's right to defend against criminal charges against him); see Washington v. Texas, 388 U.S. 14, 23, 87 S. Ct. 1920, 1925, 18 L. Ed.2d 1019, 1025 (1967) (holding that Texas statute providing that accomplices may not testify on each other's behalf violated defendant's Sixth Amendment right to compulsory process for obtaining witnesses in his favor); see also In re Farber, 78 N.J. 259, 274 (holding that application of State "Shield Law" statute protecting media's
confidential sources denied defendant his state constitutional
right to compulsory process), cert. denied,
439 U.S. 997,
99 S.
Ct. 598,
58 L. Ed.2d 670 (1978). On the other hand, neither our
Rules Governing Criminal Practice nor the Constitution gives a
defendant the absolute right to elicit testimony from any person
he may desire. See United States v. Gay,
567 F.2d 916, 919 (9th
Cir.) (describing situations in which witness's testimony may be
unavailable to criminal defendant), cert. denied,
435 U.S. 999,
98 S. Ct. 1655,
56 L. Ed.2d 90 (1978).
To reconcile those competing concerns in a given case, the
trial court must focus on the substance and quality of the
proffered testimony, and attempt to ascertain the testimony's
exculpatory value. The court should distinguish between
credible, substantially exculpatory testimony and testimony that
is insignificant, subject to damaging impeachment, or unduly
vague, conclusory, or cumulative. Where the testimony rendered
unavailable by a joint trial is not substantially exculpatory, a
defendant has not suffered cognizable prejudice for the purpose
of Rule 3:15-2(b). Where, however, the proffered testimony is
likely to be significantly exculpatory, denying the defendant's
severance motion could be highly prejudicial to the defendant,
and potentially could lead to the conviction of an innocent
person. See Dawson, supra, at 1444. When such substantially
exculpatory testimony is at stake, procedural convenience is not
an adequate justification for a trial court's decision that
precludes a defendant from calling his codefendant to the witness
stand.
The same principles apply when a codefendant's offer to
testify is conditioned both on the severance motion being granted
and on his own case being tried first. Because a codefendant is
likely to incriminate himself while exculpating his alleged
accomplice, the codefendant's reluctance to provide such
testimony until his own trial has concluded is understandable,
and finds constitutional support in the Fifth Amendment. For a
trial court, the exculpatory value of the proffered testimony
remains the focus of the analysis. Thus, if the proffered
testimony is substantially exculpatory, the court should
accommodate a codefendant's reasonable request regarding the
timing of the separate trials unless there is a compelling reason
not to do so. See State v. Scovil,
159 N.J. Super. 194, 199-201
(Law Div. 1978) (granting State's severance motion and
defendants' ensuing request that defendant with exculpatory
information about codefendants be tried first); see also Peter
Westen, The Compulsory Process Clause,
73 Mich. L. Rev. 71, 145
(1974) ("[W]here a certain sequence of trials is demonstrably
likely to deny the accused an exculpatory witness, the court's
ordinary discretion over trial order must yield to the commands
of the [Sixth Amendment's] compulsory process clause.").
Nevertheless, because severance will increase the risk that a
codefendant to be tried first will subsequently commit perjury in
an effort to exonerate the accomplice, the trial court confronted
with a motion for severance must carefully evaluate a
codefendant's conditional offer to testify. Unless the court is
persuaded that the reliability and trustworthiness of the
proffered testimony significantly outweigh the risk of perjury,
severance should be denied. That is, "[c]redibility is for the
jury, but the [court] is not required to sever on patent
fabrications." Byrd, supra, 428 F.
2d at 1021; cf. State v.
Robinson,
253 N.J. Super. 346, 366-67 (App. Div.) (upholding
denial of defendant's motion for new trial that was based on
availability of exculpatory testimony from codefendant, because
codefendant's proffered testimony appeared to be fabricated),
certif. denied,
130 N.J. 6 (1992).
The parties in this appeal have urged us to adopt the multi-pronged federal standard, see supra at (slip op. at 12-13),
as an aid to trial courts attempting to reconcile the concerns
presented by severance motions based on the need for a
codefendant's testimony. We agree fully with the federal courts'
tendency to grant severance in multi-defendant criminal cases
only sparingly. The federal standard embraces the factors that
are relevant to determining the appropriateness of severance.
With respect to the probative worth of the proffered testimony,
those factors encompass weight, reliability, and credibility,
including whether the codefendant is subject to impeachment; the
testimony's materiality measured by its importance to the
defendant's case, as opposed to whether it is cumulative,
collateral or incidental; and, the likelihood that the testimony
will in fact be produced. Accordingly, we adopt a broad standard
that reflects those factors. We hold that the trial court should
sever a joint trial if the court is reasonably certain that (1)
the defendant will call his codefendant as a witness in a
separate trial; (2) the codefendant, although unwilling to
testify at a joint trial, will testify at a separate trial either
prior or subsequent to his own trial; and (3) the codefendant's
proffered testimony will be credible and substantially
exculpatory. That approach comports generally with the federal
standard, differing somewhat in that it recognizes that a
codefendant's request to be tried before he testifies for the
defendant is only a factor to be considered in the severance
determination; such a request may reflect a codefendant's
understandable desire to assist a defendant without prejudicing
his or her own chances for acquittal and should not necessarily
be deemed an unreasonable condition signaling an unwillingness to
testify. A codefendant's conditional offer to testify should
carefully be assessed by a trial court in determining whether the
risk of perjury outweighs the likelihood that the proffered
testimony is trustworthy. But the focus of the severance
analysis should be on the exculpatory value of the proffered
testimony, and not on whether the defendant requests to be tried
before his codefendant.
Applying the standard we have adopted to the case at hand,
we conclude that the trial court correctly rejected Alex's
severance motion. Notwithstanding Alex's desire to call Juan to
the witness stand, there was not a sufficient showing that a
grant of severance would have altered Juan's decision not to
testify. During the in camera hearing, Juan consistently avoided
making a commitment to testify at a separate trial for Alex.
Even after the court offered to try Juan's case first, Juan
equivocally responded, "I might testify," "I may testify," "Most
certainly I might testify," "Maybe," "I don't know," and "I
haven't decided." A severance motion should not be granted on
the basis of a mere possibility that the codefendant will testify
at a separate trial. See, e.g., Lopez, supra, 6 F.
3d at 1285;
Tolliver, supra, 937 F.
2d at 1189.
That Juan's proffered testimony did not substantially
exculpate Alex constitutes additional justification for the trial
court's decision to deny Alex's severance motion. Although Juan
claimed in his affidavit that only he and Noel Manuel were
"responsible" for the robbery, Juan admitted to the trial court
that Alex was present during the commission of the crime. Absent
a more specific explanation of Alex's role in the robbery, Juan's
affidavit and proffered testimony are not substantially
exculpatory, especially in view of Alex's insistence that he was
not present at the scene of the crime. See N.J.S.A. 2C:2-6
(providing for accomplice liability). That discrepancy in the
brothers' stories undermines the exculpatory value of the
proffered testimony and supports the trial court's suspicion that
the brothers were attempting to use the severance motion as a
ploy to get one of them acquitted.
Moreover, the eye-witness testimony that Alex drove the get-away vehicle from the crime scene casts doubt on Juan's assertion
that Alex was not "responsible" for the robbery. We acknowledge
that a severance motion should not be denied simply because the
court infers that the codefendant's proposed exculpatory
testimony will be less credible than the testimony of the State's
witnesses. Nevertheless, in assessing whether proffered
testimony will be substantially exculpatory for purposes of
determining whether to grant severance, a trial court necessarily
must evaluate the proposed testimony in the context of the
apparent weight of the State's case. Accordingly, a court
properly could conclude that the eye-witness accounts not only
are probative of Alex's complicity in the crime, but also
corroborate Juan's admission that Alex was present at the crime
scene. Moreover, the trial court also was entitled to consider
that Juan's credibility would have been subject to impeachment on
the basis of his Pennsylvania convictions for aggravated assault,
kidnapping, and other offenses. See Sands, supra, 76 N.J. at
147. Thus, the likelihood that Juan's proposed testimony would
have exculpated Alex was minimal.
Because Alex has failed to show that substantially
exculpatory testimony would have been forthcoming had his
severance motion been granted, he has not demonstrated prejudice
sufficient to compel severance under Rule 3:15-2(b). The trial
court did not abuse its discretion in denying Alex's severance
motion.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE WILENTZ and JUSTICES HANDLER, POLLOCK, O'HERN,
GARIBALDI, and COLEMAN join in JUSTICE STEIN'S opinion.
NO. A-29 SEPTEMBER TERM 1995
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
ALEX SANCHEZ,
Defendant-Respondent.
DECIDED February 5, 1996
Chief Justice Wilentz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY