State v. Sauls

CARTER, Justice

(dissenting).

I dissent.

The opinion of the court in the present case unnecessarily curtails the highly desirable practice of joint criminal trials for defendants who are jointly charged. Only a few months have passed since the propriety of denying severance based upon incompatibility of defenses among defendants jointly charged was approved in State v. Snodgrass, 346 N.W.2d 472 (Iowa 1984), which took an ad hoc approach to prejudice in deciding such issues. Today, we take an unwarranted step backward from Snod-grass and adopt a rule which will inevitably lead to a widespread practice among our trial judges of granting severance on demand.

The majority opinion suggests that Snodgrass approved the following standard which is quoted in United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir.1981):

If the essence of one defendant’s defense is contradicted by a codefendant’s defense, then the latter defense can be said to “preempt” the former. This sort of conflict between defendants creates the compelling prejudice that mandates severance.

Snodgrass did not approve that approach to prejudice in instances involving antagonistic defenses of parties jointly charged. The Berkowitz standard is tantamount to a per se approach for those cases falling within its broad definition of an antagonistic “core” defense. A majority of the federal circuits do not espouse such a rule. The cases on both sides of the issue are set forth in Snodgrass. See also Annot. 83 A.L.R.3d 245 , 260-61 (1978). Cases favoring an ad hoc approach predominate. We opted for an ad hoc approach to the question in State v. Belieu, 288 N.W.2d 895, 900 (Iowa 1980), where we stated:

Mere hostility among codefendants is insufficient to show an abuse of discretion. Nor does an effort of a codefend-ant to incriminate the defendant, even if successful, by itself demonstrate the requisite prejudice. Prejudice may usually be avoided in such situations by the existence of the right to cross-examine the codefendant and the use of limiting instructions.

(Citations omitted).

The basic premise of such cases as Ber-kowitz is false. That premise is that where two defendants present defenses which are antagonistic at their core, the jury will unjustifiably infer that both are guilty. Noticeably, the proponents of this theory advance no empirical data in its support. Even if such unwarranted conclusions by a jury might result in some cases, the likelihood of such an occurrence is not so firmly rooted in common experience as to suggest that the potential for an unfair trial outweighs the clearly demonstrable advantages to society which flows from joint criminal trials.

Admittedly, separate trials will often provide a better opportunity for acquittal of a particular defendant than will a joint trial. This circumstance does not necessarily flow from any basic unfairness in joint trials but rather from the fact that a greater range of evidence is normally made available in a joint trial some of which may tend to show a particular defendant’s guilt. This circumstance is due to the fact that in *522 joint trials it is within the power of more persons to present evidence.

Often evidence which is solely within the possession of one defendant would be unavailable to the State for use at a separate trial of another defendant who has been jointly charged. If such evidence does come in as a result of a joint trial and suggests the guilt of the other defendant, this does not create a fundamental unfairness in the procedure. Our system of justice operates on the theory that, absent some established exclusionary rule, all relevant and material evidence is ordinarily admissible and should be heard by the jury. Its credibility and weight is peculiarly for the jury to decide. Any credible evidence which tends to show that a defendant is guilty is prejudicial but does not produce an unfair trial.

Courts which have carefully considered the issue of incompatible defenses have concluded that, in order to justify granting a motion for severance, more must be shown than the likelihood that a separate trial might offer a better chance of acquittal to the moving party. United States v. Boyd, 610 F.2d 521, 525 (8th Cir.1979), cert. denied, 444 U.S. 1089 , 100 S.Ct. 1052 , 62 L.Ed.2d 777 (1980); United States v. Adams, 581 F.2d 193, 198 (9th Cir.), cert. denied, 439 U.S. 1006 , 99 S.Ct. 621 , 58 L.Ed.2d 683 (1978). See also Criminal Law in the Ninth Circuit: Recent Developments, 15 Loy.L.A.L.Rev. 597, 599-605 (1982). In describing the nature of the prejudice required to justify severance, the Eighth Circuit has stated:

Severance becomes necessary [only] where the proof is such that a jury could not be expected to compartmentalize the evidence as it relates to separate defendants.

United States v. Jackson, 549 F.2d 517, 525 (8th Cir.1977).

In a simple factual situation such as that presented in the present homicide case, the fact that each of the defendants seek to exculpate himself by implicating the other does not frustrate the jury’s ability to compartmentalize the evidence as it relates to separate defendants. Rather, such sharp conflict in the testimony by its very nature enhances the jury’s opportunity to focus its attention on the relationship of the evidence to each defendant. In regard to the jury’s ability to discern the truth, such an atmosphere is ideal and preferable to that which would ordinarily result from separate trials.

Given the role of the jury in our system of justice, we must accept the ability of that institution to resolve the difficult issues of credibility which are presented. There is no reason to believe it is any more difficult for the jury to fairly do this when the conflicting evidence involves the testimony of two defendants jointly tried than when the conflict is between the testimony of a defendant and that of an admitted accomplice who is not being tried as a result of an agreement with the prosecutor. The latter situation is common place, yet no suggestion is found in the cases or literature that it denies a fair trial. The confidence which we place upon the jury to resolve that situation should carry over into situations involving joint trials of defendants with similarly incompatible stories. We expressed such confidence in the jury in Belieu, 288 N.W.2d at 900 -01 and should not retract it now.

It takes little imagination to predict that the result of today’s opinion will be that trial judges will grant severance on demand of a jointly tried defendant. They will not wish to risk going through a trial and then losing the benefit with respect to both defendants by a decision on appeal mandating two new trials. The situation is aggravated by the fact that it will be solely within the power of the defendant to present evidence as to his theory of defense in advance of trial. Such evidence will not bind that party at a later stage of the proceedings and will predictably be shaped to produce the result sought to be achieved — a separate trial. It will be next to impossible for the State to combat such tactics.

The legislature in the revised criminal code wisely left to this court the role of *523 establishing the standard of prejudice required to mandate separate trials. We adopted a wise and workable standard in Belieu and Snodgrass under which the joint trial in the present case can easily be upheld. I would retain that standard and affirm defendant’s conviction in the present case.

McGIVERIN and SCHULTZ, JJ., join this dissent.