IN THE SUPERIOR COURT OF THE S TATE OF DELAWARE
STATE OF DELAWARE,
I.D. No. 1511001595
v. : Kent County
MARK A BARTELL,
Defendant.
Submitted: January 13, 2017
Decided: January 25, 2017
ORDER
Upon Defendant’s Motion to Sever.
Dem'ea’.
Denise Weeks-Tappan, Esquire of the Department of Justice, Dover, Delaware;
attorney for the State.
J’Aime L. Walker, Esquire of the Public Defender’s Office, Dover, Delaware;
attorney for Defendant.
WITHAM, R.J.
State v. Mark A. Bartell
January 25, 2017
I.D. No. 1511001595
Before the Court is Defendant Mark Bartell’s motion to sever from the
indictment two charges of Criminal Solicitation in the First Degree. The grand jury
first indicted Mr. Bartell on two counts of Rape in the First Degree, Rape in the
Fourth Degree, Terroristic Threatening, and Offensive Touching. The criminal
solicitation charges Were added after Mr. Bartell allegedly solicited two fellow
inmates to kill the victim of the originally charged crimes.
The motion is denied.
STANDARD OF REVIEW
Under Superior Court Rule 8(a), two or more offenses may be joined in the
same indictment “if the offenses ‘are of the same or similar character or are based on
the same act or transaction or on two or more acts or transactions connected together
or constituting parts of a common scheme or plan.”’l But “a trial court may grant
severance if the defendant is prejudiced by the joinder.”2
THE PARTIES’ CONTENTIONS
Mr. Bartell argues that the offenses should be severed because the solicitation
allegedly occurred at J ames T. Vaughn Correctional Center four months after the
original offenses, Which Were alleged to have occurred at Mr. Bartell’ s residence. Mr.
Bartell thus argues that the jury Would be “forced” to draw an improper inference of
his general criminal disposition based on the fact that he Was in custody at the time
of the later offenses.
lAshley v. State, 85 A.3d 81, 84 (Del. 2014) (quoting Super. Ct. Crim. R. 8(a)).
2 Id. (citing Super. Ct. Crim. R. 14).
State v. Mark A. Bartell
January 25, 2017
I.D. No. 1511001595
The State argues that joinder is permissible based on Ashley v. State because
(1) the offenses are based on the same act or transaction (namely, stopping the victim
from testifying), and (2) Mr. Bartell has not demonstrated prejudice.
DISCUSSION
Prejudicial joinder may arise in any of the three situations: (1) “when the jury
might cumulate the evidence of the various crimes charged and find guilt when, if
considered separately, it would not so find;” (2) “when the jury might use the
evidence of one of the crimes to infer a general criminal disposition of the defendant
in order to find guilt of the other crime or crimes;” (3) “when the defendant might be
subject to embarrassment or confusion in presenting different and separate defenses
to different charges.”3 An essential and potentially dispositive inquiry is “whether the
evidence of one crime would be admissible in the trial of the other crime.”4 The
defendant seeking severance bears the burden of demonstrating prejudice beyond
merely hypothetical prejudice.5
Severance is not required merely because there was a space of time between
the charged crimes, and the crimes themselves were separate.6 The balancing test is
ultimately between “the rights of the accused” and “the legitimate concern for judicial
economy.”7
3 Id. at 84_85 (citing Wiest v. State, 542 A.2d 1193, 1195 (Del. 1988)).
4 Id. at 85 (quoting Wiest, 542 A.2d at 1196 n.3).
5 Id. (quoting Skz'nner v. State, 575 A.2d 1108, 1118 (Del. 1990)).
6 Id. (quoting Skz`nner, 575 A.2d at 1118).
7 Id. (citing Mayer v. State, 320 A.2d 713, 717 (Del. 1973)).
3
State v. Mark A. Bartell
January 25, 2017
I.D. No. 1511001595
In Ash ley, the Supreme Court held severance was not required.8 The defendant
in that case was charged with four counts of Rape in the Second Degree, one count
of Rape in the Fourth Degree, four counts of Unlawful Sexual Contact in the First
Degree, and one count of Continuous Sexual Abuse of a Child.9 Later, when the
defendant bribed the victim’ s relatives to prevent the victim from testifying, the grand
jury reindicted the defendant for Bribing a Witness, Interfering with a Child Witness,
and Conspiracy in the Second Degree.10 The Supreme Court held that the trial court
did not abuse its discretion when it denied joinder.ll lt reasoned that the new charges
arose from the defendant’s “attempt to stop [the victim] from testifying against him”
and were thus “based on the same act or transaction.”12 It pointed out that the State
would have been permitted to introduce evidence of the communication between the
defendant and his girlfriend in his attempt to bribe her to show consciousness of
guilt.13 And it noted that the State would have had to call some of the same witnesses
“to show motive and intent on the part of [the defendant] in order to prove the later-
indicted charges.”14 The Court also weighed the prejudice to the defendant against
the interest of judicial economy and found that the trial court’s decision removed the
8 Id.
9 Id. at 83.
10 Id. at 83-84.
11 Id. at 85.
12 Id.
13 Id.
14 Ia'.
State v. Mark A. Bartell
January 25, 2017
I.D. No. 1511001595
need to retry the rape case against the defendant in a second action, and that the trial
court’s use of an instruction to the jury indicating that “they were not to accumulate
the evidence presented” was sufficient to avoid prejudice.15
Similarly here, the alleged attempts to have a fellow inmate (or inmates) kill
the victim of the original crimes were based on the same act or transaction as those
in the first indictment. Without engaging in a full 404(b) and Getz analysis, it is
nevertheless clear that the counts of the indictment should not be severed. The State
would almost certainly be able to introduce communication between Mr. Bartell and
his fellow inmates to show his consciousness of guilt as to the originally charged
crimes, as well as the existence of a common scheme or plan. The witnesses on which
the State will rely to prove the original charges could also be used to show motive and
intent in a trial on the later-indicted charges. If the charges are severed, the State will
have to retry the initial rape, terroristic threatening, and offensive touching case in
order to show Mr. Bartell’s motive and intent to commit the later-charged crime.
Mr Bartell. argues that he will be prejudiced because the jury will infer from
his later incarceration that he had a general criminal disposition and thus was more
likely to commit the earlier charged acts. He likens the potential prejudice to the
prohibition of forcing a defendant to wear prison garb at trial.16 Mr. Bartell’s pre-trial
detention for the first-indicted crimes might risk some prejudicial effect, but the
probative value of the later-charged alleged attempts to procure the murder of the
15 Id.
16 See generally Estelle v. Williams, 425 U.S. 501, 503-05 (1976).
5
State v. Mark A. Bartell
January 25, 2017
I.D. No. 1511001595
victim outweighs the danger of unfair prejudice here.17 To the extent it would
otherwise create prejudice to the defendant, the parties may suggest an appropriate
jury instruction.18
CONCLUSION
The motion to sever the charges is DENIED.
//////./:f%/éz;r"`~“»
Hor`{. william L. witham, Jr.
Resident Judge
WLW/dmh
oc: Prothonotary
xc: Denise Weeks-Tappan, Esquire
J’Aime L. Walker, Esquire
17 Cf Um'tea' States v. Hines, 955 F.2d 1449, 1454_55 (l lth Cir. 1992) (finding no prejudice
where witness remarked on defendant’s incarceration and “there was no indication that the
incarceration was related to any crime other than the one for which the defendant was being tried”).
18 At least one such instruction has already been approved by the Supreme Court. See
Monroe v. State, 28 A.3d 418, 428 (Del. 2011) (“The defendant is charged in Counts 1 through 10
with criminal charges related to the incident on April 2, 2007 and, in Counts 11 and 12, with
criminal charges related to the incident on January26, 2006. These are separate and distinct offenses
and must, therefore, be independently evaluated by you. J ust because you reach a conclusion with
regard to the other offenses does not mean you need to reach a similar conclusion as to any of the
other charges. Again, each charge is separate and distinct, and you must evaluate evidence as to one
independently from evidence as to the others.”). As to the jury learning of the defendant’s
incarceration, an appropriate instruction was permitted by the Third Circuit. Um'ted States v.
Provenanzano, 620 F.2d 985 , 1003 (3d Cir. 1980) (“You’re not to speculate on the reasons for that
incarceration, the place of it or anything else. You are also to draw no inferences because of this . . .
incarceration or the speculative reasons for it [that the defendant] is a bad man or disreputable
individual or is any more likely than one who has not had this history to commit that crime. It’s a
limited purpose and I restrict the use of that evidence to that limited purpose.”)
6