IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE,
Kent County

V.

DAYMIEN J. ROBERT
I.D. No. 1611009554
AVERY MAXWELL
I.D. No. 1611009571
TERRANCE STOKES
I.D. No. 170200357()

Defendants.

Heard: January 16, 2018
Decided: January 18, 2018

ORDER

Upon the State’s Motion to Sever.
Granted.

Stephen E. Smith, Esquire of the Department of Justice, Dover, Delaware; attorney
for the State.

Thornas D. Donovan, Esquire of the Offlce of ConHict Counsel, Dover, Delaware;
attorney for Defendant Daymien J. Robert.

Andre M. Beauregard, Esquire of Brown Shiels & Beauregard, Dover, Delaware;
attorney for Defendant Avery Maxwell.

Kevin P. Tray, Esquire of the Law Off`lce of Kevin P. Tray, Wilmington, Delaware;
attorney for Defendant Terrance Stokes.

WITHAM, R.J.

Before the Court is the State’s Motion to Sever the trials of co-defendants
Daymien Robert, Terrance Stokes, and Avery Maxwell. The Defendants are charged
With Home Invasion. Robbery Second Degree, Wearing a Disguise During the
Commission of a Felony, Theft of a Motor Vehicle, and Conspiracy Second Degree.
The Defendants oppose the State’s motion on the grounds of untimeliness, speedy
trial rights, and judicial economy. This constitutes the Court’s decision.

FACTS

1. On June 5 , 2017, the Defendants were indicted together and charged With
Home Invasion, as Well as other related offenses arising from a single event. Namely,
it is alleged that the Defendants operated in concert to break into the victim’s home,
remove items therefrom, and depart With the victim’s vehicle.

2. On December 14, 2017, Defendant Robert confessed, in a recorded
interview, to the crimes indicated in the indictment. His confession implicated
Defendants Maxwell and Stokes.

3. On January 3, 2018, the State filed a Motion to Sever requesting that the
Court sever the three Defendants’ joint trial into three separate trials.

4. On January ll, 2018, Defendant Stokes filed his response in opposition to
the State’s motion. Defendants Maxwell and Robert agree that severance should not
be granted for the reasons stated in Defendant Stokes’ response.

THE PARTIES ARGUMENTS

The State.

5. First, the State contends that severance is necessary, pursuant to Bruton v.
Um'ted States, because Defendant Robert’ s confession Would be prejudicial to his co-
defendants

6. Second, the State contends that severance is necessary because Defendant

Robert’s confession significantly changes the value of Defendant Maxwell’s
statements incident to arrest, Wherein Defendant Maxwell admitted to being near the
scene of the crime. Thus, the State contends that there Would be a risk that a jury
might improperly attribute Defendant MaxWell ’ s admission against Defendant Stokes.

The Defendants.

7. First, all Defendants contend that the State’s Motion to Sever is untimely.

8. Second, Defendant Stokes contends that he Would be prejudiced by
severance because his trial would likely be unnecessarily delayed by the severance.
As Defendant Stokes is held on bail in NeW Castle County, he objects to any further
continuance.

9. Third, all Defendants contend that, for the sake of judicial economy,
severance is inappropriate

10. Fourth, all Defendants join in Defendant Stokes’ objection to a severance.

LEGAL STANDARD

1 l. Under Superior Court Criminal Rule 8(b), two or more defendants may be
charged in the same indictment if they are alleged to have participated in the same act
or in the same series of acts. If, however, the trial court finds that a joinder of
defendants for trial Will prejudice any of the parties, it may sever the charges.l

12. A motion for severance is addressed to the sound discretion of the trial
court. Ordinarily, defendants indicted jointly should be tried together; but, if justice

requires it, the trial court should grant separate trials.2 What constitutes abuse of

 

1 Super. Ct. Crim. R. 14.

2 Jenkins v. State, 230 A.2d 262, 272 (Del. 1967).

3

discretion depends on the facts and circumstances of each case.3 As a general rule,

it may be said that discretion has been abused by denial of severance when there is

a reasonable probability that because of the co-defendant’s extra judicial statement,

substantial injustice and denial of a fair trial may result from a joint trial.4
DISCUSSION

The motion is untimely.

13. Pursuant to the scheduling order issued in this matter, pre-trial motions -
not relating to discovery or to suppress - must have been filed not later than twenty
(20) days before the final case review. The Superior Court has broad discretion to
enforce its rules of procedure and pretrial orders.5 When a party fails to file a motion
in a timely manner, exceptional circumstances must exist to permit the late filing.6
Exceptional circumstances will not be found when a party’s attorney possesses “all
the relevant information necessary to support filing the motion.”7

14. Final case review in this case occurred on January 10, 2017; the State filed
its’ Motion to Sever on January 3, 2017 - approximately seven (7) days prior to the
final case review. As a result, the State’s motion is deemed untimely. Nevertheless,
the Court feels compelled to address the merits of the State’s motion because the

State has raised significant issues with respect to the Confrontation Clause as

 

3 ld.
4 Lampkins v. s¢a¢e, 465 A.2d 785, 794 (Del. 1983) (ciring Jenkins, 230 A.2d at 273)).

5 Carney v. State, 931 A.2d 436, 2007 WL 2254543, at *2 (Del. Aug. 7, 2007) (TABLE)
(citing Barnett v. State, 691 A.2d 614, 616 (Del. 1997)).

6 See id.

7 Id.

illustrated in Bruton v. United States.8

T he motion succeeds on its merits.

15. In evaluating whether a motion for severance of co-defendants should be
granted, the Court looks at four factors: “(l) problems involving a co-defendant’s
extra-judicial statements; (2) an absence of substantial independent competent
evidence of the movant’s guilt; (3) antagonistic defenses as between the codefendants
and the movant; and (4) difficulty in segregating the State’s evidence as between the
[defendants].”9

16. Under the circumstances, it is apparent that the parties are only concerned
with the first factor, especially concerning the application of Bruton v. United States.
In Bruton, the United States Supreme Court held that an out-of-court statement of a
non-testifying defendant that implicates his co-defendant cannot be admitted at a joint
trial of the two defendants10 Reaffirming the rule announced in Pointer v. State of
Texas, the Bruton court stated: “the right of cross-examination is included in the right
of an accused in a criminal case to confront the witnesses against him secured by the
Sixth Amendment.”ll If the confessing defendant does not testify at the joint trial of
the two defendants, then the co-defendant is not afforded his right to confront the

confessing defendant.12 Delaware courts have routinely considered Bruton issues as

 

8 Bruton v. United States, 391 U.S. 123 (1968).

9 FlOudiOtl`S v. State, 726 A.2d 1196, 1210 (D€l. 1999).

10 Bm¢on, 391 U.s. 123 (1968).

11 Id. at 126 (quoting Pointer v. State of T exas, 380 U.S. 400 (1965)).

12 Id.

a factor in determining whether to sever the defendants’ trials.13

17. The Court, having reviewed the recordings of Defendant Robert’s
confession, finds that - despite the untimeliness of the State’s motion - it is necessary
to sever the Defendants’ trials in order ensure that each Defendant is afforded his
right to confront the witnesses presented against him. The fact that trial may be
delayed is not a compelling enough reason to deny the Defendants this fundamental
Sixth Amendment ri ght.

Therefore, the State’ s motion to sever the trials of the co-defendants, Daymien

Robert, Terrance Stokes, and Avery Maxwell is hereby GRANTED.

M/M//f>

Hon. William L. Witham, Jr.
Resident Judge

 

WLW/dmh

oc: Prothonotary

cc: Stephen E. Smith, Esquire
Thomas D. Donovan, Esquire
Andre M. Beauregard, Esquire
Kevin P. Tray, Esquire

 

13 Floua'iotis, 726 A.2d at 1210 (holding that the presence of a Bruton issue is a factor
favoring severance).

