“same transaction or occurrence” necessitates unity of time, place, and circumstances resulting in situation wherein “the facts of each charge can be explained adequately only by drawing upon the facts of the other charge”
How later courts described this case
- “same transaction or occurrence” necessitates unity of time, place, and circumstances resulting in situation wherein “the facts of each charge can be explained adequately only by drawing upon the facts of the other charge”
- “The trial court is to order severance where the defendant shows his or her ‘interest in receiving a fair trial uninfluenced by the prejudicial effects which could result from a joint trial [are] outweighed [by] the State’s interest in judicial economy.’” (alterations in original) (citation omitted)
- compares rule of criminal procedure 6(1) before and after amendment to present form
Written by the judges who cited it.
The opinion
CARTER, Justice
(dissenting).
I dissent. Noticeably absent from the decision of the court is any discussion of *513 how the misjoinder found to exist in the present ease prejudiced the defendants.
As the majority tacitly concedes, the record would support a finding that the two offenses grew out of a “common scheme or plan.” In order for this court to propose the amendment to rule 6(1), which now permits joint indictment and trial with respect to separate offenses growing out of a “common scheme or plan,” it must have been persuaded that this procedure is not inherently unfair. I concur in that analysis and suggest that, as a result, defendants in the present appeal have only succeeded in showing a procedural irregularity, insufficient to justify reversal.
Ironically, because the joinder rule is a matter of procedure, the amendment to rule 6(1), which occurred after defendants’ trial, will apparently be applicable for purposes of retrial. The purpose of reversal is to permit a retrial of the case free from the error upon which the reversal is based. Where, as here, it is problematic that this purpose can be achieved, I believe we should affirm the judgment in spite of the procedural irregularity.
McGIVERIN and SCHULTZ, JJ., join this dissent.