         IN THE SUPREME COURT OF THE STATE OF DELAWARE

  MARK BARTELL,                           §
                                          §      No. 271, 2017
        Defendant Below,                  §
        Appellant,                        §      Court Below—Superior Court
                                          §      of the State of Delaware
        v.                                §
                                          §      Cr. ID No. .511001595(K)
  STATE OF DELAWARE,                      §
                                          §
        Plaintiff Below,                  §
        Appellee.                         §
                                          §

                           Submitted: January 17, 2018
                            Decided: March 29, 2018

Before STRINE, Chief Justice; VALIHURA, and TRAYNOR, Justices.

                                     ORDER

      This 29th day of March, 2018, having considered the briefs, the record below,

and the argument of counsel, it appears to the Court that:

             Appellant Mark Bartell was indicted on two counts of rape in the first

degree and one count each of rape in the fourth degree, terroristic threatening, and

offensive touching. The victim was Bartell’s wife. Six months later, but still eight

months before trial, he was further charged with two counts of criminal solicitation

in the second degree, which alleged that while he was awaiting trial, he solicited two

of his fellow inmates to murder his wife so that she could not testify against him.
             Bartell moved to sever the criminal solicitation charges for trial on the

grounds that the joinder of those charges with the underlying offenses “impugned

his character”1 and “forced [the jury] to make an improper inference as to [his]

criminal disposition.”2 The Superior Court denied the motion and, after a six-day

jury trial, Bartell was convicted on all but the terroristic-threatening and offensive-

touching charges. He was sentenced to seventy-five years of incarceration followed

by various levels of probation.

             In this direct appeal, Bartell raises two claims of error. First, he asserts

that the Superior Court erred when it denied his motion to sever. He claims to have

suffered substantial prejudice because the State was permitted to use the criminal

solicitation evidence to impugn his character and draw an improper inference as to

his general criminal disposition. Second, Bartell contends that he was deprived of a

fair trial when the Superior Court failed to declare a mistrial after witnesses injected

inadmissible, irrelevant and prejudicial testimony about his past conduct.

             Under Superior Court Criminal Rule 8(a), “[t]wo or more offenses may

be charged in the same indictment or information in a separate count for each offense

if the offenses charged 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



1
      Opening Br. 2.
2
      Id. at 6.
                                           2
constituting parts of a common scheme or plan.” But if it appears that a defendant

or the State will suffer prejudice by a joinder of offenses, the Superior Court may

sever the offenses and order separate trials or provide such other relief as justice

requires.3

              This Court reviews the Superior Court’s denial of a motion to sever for

abuse of discretion.4 “The trial court’s decision to deny a motion to sever will be

reversed only if the defendant establishes a ‘reasonable probability’ that the joint

trial created ‘substantial injustice.’”5 The defendant has the burden of demonstrating

prejudice, which must be more than “mere hypothetical prejudice.”6

              We have recognized that “a crucial factor to be considered [in the

prejudice analysis] is whether the evidence of one crime would be admissible in the

trial of the other crime, because if it were admissible, there would be no prejudicial

effect in having a joint trial.”7 Evidence of other crimes is generally admissible if it

has “independent logical relevance” and its probative value is not outweighed by the

danger of unfair prejudice.8



3
       Del. Super. Ct. Crim. R. 14.
4
       Jackson v. State, 990 A.2d 904, 909 (Del. 2007).
5
       Ashley v. State, 85 A.3d 81, 84 (Del. 2014) (quoting Winer v. State, 950 A.2d 642, 648
(Del. 2008)).
6
       Skinner v. State, 575 A.2d 1108, 1118 (Del. 1990).
7
       Garden v. State, 815 A.2d 327, 333–34 (Del. 2003) (citing Wiest v. State, 542 A.2d 1193,
1195 n.3 (Del. 1988)).
8
       Getz v. State, 538 A.2d 726, 730 (Del. 1988) (quoting Diaz v. State, 508 A.2d 861, 865
(Del. 1986)).
                                              3
             The Superior Court astutely drew a parallel between the facts of this

case and those presented in Ashley v. State.9 In that case, the defendant was charged

with several sex offenses against an 11-year old. After he was indicted, the

defendant participated in a scheme to bribe the child’s mother into withdrawing her

cooperation and declining to testify, which led to further charges of bribery and

related offenses. The defendant’s motion to sever the new charges was denied by

the Superior Court, and the defendant was found guilty of numerous offenses. On

appeal, we held that the motion was properly denied. First, we recognized that the

bribery charges met the criteria for joinder under Rule 8(a) because the charges—

which arose from the defendant’s attempt to stop the victim’s mother from testifying

against him on the underlying charges—were “based on the same act or transaction”

as the underlying charges.10 Second, we observed that the defendant was not

prejudiced by the joinder of the bribery charges because evidence of that conduct

would have been admissible in a stand-alone trial on the underlying charges for the

purpose of showing consciousness of guilt. Finally, we pointed out that if the

charges had been severed, the State would have had to call several of the same

witnesses from the trial on the underlying charges to prove motive and interest in




9
      85 A.3d 81 (Del. 2014).
10
      Id. at 85.
                                         4
connection with the bribery charges, which would have wasted judicial resources

and subjected the witnesses to a needless second turn on the stand.

             The same dynamics are present here. Bartell’s solicitation of the two

prison inmates to kill his wife was admissible on the original charges to show his

consciousness of guilt. Had the solicitation charges been severed, the State would

have had to call many of the same witnesses from the trial of the underlying charges

to show why Bartell was offering the inmates money to kill his wife.

             Bartell raises the possibility that the evidence introduced to prove his

guilt on the solicitation charges—which included the fact that the solicitation

occurred while Bartell was jailed—may have allowed the jury to make an improper

inference of guilt from the fact that had been detained prior to trial. But as we

observed, even if the underlying charges were tried separately, his jury was going to

hear of the conduct giving rise to the solicitation charges as evidencing his

consciousness of guilt of the underlying charges. Bartell’s concern that the jury

could misuse the knowledge that he had been detained prior to trial is a valid one,

but the trial court met his concern by instructing the jurors two separate times that

they should not infer that pretrial detention had any bearing on his guilt. In sum,

Bartell has not demonstrated that he suffered substantial prejudice by virtue of the

joinder of offenses.




                                         5
              Bartell also claims for the first time on appeal that the Superior Court

should have declared a mistrial because of “the injection of unsolicited, inadmissible

and highly prejudicial testimony from multiple State witnesses, regarding Bartell’s

prior history.”11 Because he did not move for a mistrial below, we review his

contention only for plain error.12

              During the trial, a nurse who examined Bartell’s wife testified that his

wife had told her that “this has happened before,” despite an earlier ruling that the

wife’s statement to the nurse was inadmissible. Bartell’s counsel promptly objected.

At sidebar, the two sides suspected that the nurse was testifying from a document

that had not been properly redacted to remove the offending statement, and the

following exchange occurred:

       THE COURT: Well, at this stage, so we don’t have any more
       difficulties, maybe we’ll excuse the jury for a moment . . . and you can
       review what [the nurse] has up there carefully. And then we’ll have
       them back in and I’ll sustain the objection and give a curative
       instruction, more of a disregard instruction, unless a curative instruction
       is specifically requested. . . . I’m going to, in fact, sustain that
       [objection] now and do that.

       [DEFENSE COUNSEL]: That is fine.

       THE COURT: So the defense is in agreement with that?

       [DEFENSE COUNSEL]: Yes, Your Honor.13

11
        Opening Br. 8.
12
        Cruz-Webster v. State, 155 A.3d 833, 2017 WL 464536, at *4 (Del. 2017) (unpublished
table decision).
13
        App. to Opening Br. A64.
                                            6
             Later, during the State’s direct examination of Bartell’s sister, Mary

Davis, the State played an audio recording of a prison phone call between her and

Bartell. During the call, the sister made reference to a “PFA”— shorthand for a

protection-from-abuse order—that Bartell’s wife had against him. Bartell did not

object. Shortly thereafter, in an answer that was not directly responsive to the

prosecutor’s question, Davis mentioned that “[t]here was a protection order,”14

without specifying the parties or the identity of the person against whom the order

was entered.    Once again, Bartell did not object.     Only when the prosecutor

voluntarily brought to the court’s attention the two inadvertent references to PFA

orders and his understanding that they violated a prior in limine order did Bartell’s

counsel address them, and he downplayed their significance, noting that “Davis

mentioned [a] protective order, not specifically a PFA, protection from abuse order”

and that she did not object when either reference was made. The court then asked

defense counsel how she wished to proceed:

      THE COURT: . . . [T]he Court’s satisfied it was actually inadvertent
      on both parts as far as violating the order . . . [I]t would be up to the
      defense whether you want a curative instruction or not because many
      jurors, they may or may not be able to know when there’s an isolated
      reference to a PFA what that even is.

      [A]re you going to want a curative instruction at this point or not?

      DEFENSE COUNSEL: I don’t think so, Your Honor, at this point.

14
      Id. at A115.
                                         7
      THE COURT: The defense is making strategic --

      DEFENSE COUNSEL: Yes, Your Honor.15

             In the wake of each of the improper references upon which Bartell now

bases his claim that the Superior Court should have sua sponte declared a mistrial,

Bartell’s preferred remedial response was adopted by the court. In the first instance,

Bartell agreed that a curative instruction was sufficient and, in the second, made a

strategic decision to decline the court’s offer to give an instruction.

             To warrant reversal under the plain-error standard, the error must be

“so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity

of the trial process.”16 This means that the error must have affected Bartell’s trial.17

And the burden of demonstrating that the error is prejudicial is on Bartell.18

             Bartell has not carried his burden of showing that the three

inappropriate references, all of which were inadvertent and two of which—the PFA

references—only vaguely pointed accusatory fingers at Bartell, resulted in

substantial prejudice. The principal evidence of Bartell’s guilt was the detailed

testimony of his wife, who had promptly reported the assault to the police and then

recounted the brutal facts to the nurse who treated her later that same day at the



15
      Id. at A118.
16
      Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986).
17
      Brown v. State, 897 A.2d 748, 753 (Del. 2006).
18
      Id.
                                             8
hospital. The jury also heard the chilling testimony of the two prison inmates who

Bartell attempted to hire to “make the case go away” by murdering his wife,19 which

was buttressed by a prison phone call recording in which Bartell told his sister that

“[he] needed somebody to take her out.”20 What is more, Bartell’s claim of prejudice

is undermined by the fact that the jury acquitted him of the terroristic-threatening

and offensive-touching charges and, on the rape in the first degree charge, found him

guilty of the lesser included offenses of rape in the second degree—a verdict that

could scarcely be attributed to an inflamed jury. In short, there was no plain error

here.

        NOW, THEREFORE, IT IS HEREBY ORDERED that the judgment of the

Superior Court is AFFIRMED.

                                       BY THE COURT:



                                       /s/ Gary F. Traynor
                                       Justice




19
        App. to Opening Br. A100.
20
        Id. at A145.
                                         9
