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THE ADVOCATE Volume 30, No. 1 January 2008
Separate Trials – RCr 9.16 says that if a defendant or the Commonwealth will be prejudiced by
the joinder of offenses or co-defendants in a single trial, the court “shall” order separate trials.
However, this rule needs to be read together with RCr 6.18 and 6.20 – the rules on joining
offenses and co-defendants. Since merely standing trial is itself a kind of prejudice, mere
prejudice alone will not require separate trials. The joinder must be so prejudicial as to be
unfair, or unnecessarily or unreasonably hurtful. An important factor for a court to consider in
ruling upon a motion to sever is whether evidence in one offense could properly be admitted in
the trial of the other. Commonwealth v. English, 993 S.W.2d 941, 944 (Ky.1999), Ratliff v.
Commonwealth, 194 S.W.3d 258 (Ky.2006). See also Dickerson v. Commonwealth, 174 S.W.3d
451 (Ky.2005) in which the court ruled that it was error to consolidate into one indictment the
separate charges of violating the Sex Offender Registration Act and Possession of a Handgun
by a Convicted Felon, when the two charges were unrelated.
“In order to justify the granting of a severance, it must appear that the defendants have
antagonistic defenses, or that the evidence as to one defendant tends directly to incriminate
the other.” Tinsley v. Commonwealth, 495 S.W.2d 776, 780 (Ky.1973). See also Rachel v.
Commonwealth, 523 S.W.2d 395 (Ky.1975). “The movant must show that the antagonism
between the co-defendants will mislead or confuse the jury.” U.S. v. Horton, 847 F.2d 313, 317
(6 th Cir.1988). The movant satisfies this burden if he or she shows that the jury was unable “to
separate and treat distinctively evidence that is relevant to each particular defendant at trial.”
U.S. v. Gallo, 763 F.2d 1504, 1525 (6 th Cir.1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1200, 89
L.Ed.2d 314 (1986).
Perhaps the most common problems requiring severance are those which have to do with
issues surrounding the U.S. Supreme Court holdings in Bruton v. U.S., 391 U.S. 123, 88 S.Ct.
1620, 20 L.Ed.2d 476 (1968) and Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d
177 (2004). Under both opinions, statements may be admissible against one co-defendant but
not against another. If the Commonwealth really wants to use the statement, it might require
severance. See Jackson v. Commonwealth, 187 S.W.3d 300 (Ky.2006), in which it was reversible
error to refuse a motion to sever when the court ruled to admit evidence to impeach the defendant,
in violation of Crawford v. Washington.
Practice Tip: Separate Trials. If your motion for separate trial is denied, remember to keep
pointing out to the court, for the record, why the charges or co-defendants should have been
severed, even into the penalty phase if necessary. See Cosby v. Commonwealth, 776 S.W.2d
367 (Ky.1989), overruled on other grounds, and especially Foster v. Commonwealth, 827 S.W.2d
670 (Ky.1991), in which it was reversible error to refuse to sever the penalty phase of the trial.
Speedy Trials - The right to a speedy trial is guaranteed by the Sixth Amendment and by §14 of
the Kentucky Constitution. Each case must be reviewed on an individual basis, and the factors
a court must consider are: (1) the length of the delay, (2) the reason for the delay, (3) the
defendant’s assertion of his right, and (4) the prejudice to the defendant. Only if the length of
delay is presumptively prejudicial must the court then go on to consider the remaining factors.
Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See also Bratcher v.
Commonwealth, 151 S.W.3d 332 (Ky.2004), for a full discussion.
There are also two important statutory rights to a speedy trial. KRS 500.110 governs situations
in which a defendant in jail in one county is also being held on a detainer from another county.
KRS 440.450 is the Interstate Agreement on Detainers, governing similar situations between
different states. In both cases, the defendant must be brought to trial within 180 days of giving
the proper notice of his request to the proper prosecuting authority.
Practice Tip: Speedy Trials. Once a speedy trial issue is raised, make sure to (1) make all the
relevant dates clear for the record, (2) do not consent to a continuance unless it is in your
client’s best interest (agreeing to a continuance stops the clock), and (3) move to dismiss the
charges.
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