Committee commentary. — Paragraph A of this rule was derived from American Bar Association Standards Relating to Joinder and Severance, Section 1.1 (Approved Draft 1968). For decisions upholding joinder of offenses under Paragraph A of this rule, seeState v. Riordan, 86 N.M. 92, 519 P.2d 1029 (Ct. App. 1974) and State v. McCallum, 87 N.M. 459, 535 P.2d 1085 (Ct. App. 1975). See Paragraph C of this rule for the provisions on severance. Joinder under Paragraph A(2) of this rule has been suggested as a possible way of avoiding double jeopardy. State v. Tanton, 88 N.M. 5, 536 P.2d 269 (Ct. App. 1975).
As a result of a supreme court order, the committee prepared amendments to Paragraph A of this rule in 1979 which changed Paragraph A of this rule from a permissive to a mandatory rule.
The 1979 supreme court order provided as follows:
When a person is charged with more than one crime and the crimes can be incorporated in one information or indictment in separate counts, this practice shall be followed.
Paragraph B of this rule, providing a liberal procedure for joinder, was derived from American Bar Association Standards Relating to Joinder and Severance, Section 1.2 (Approved Draft 1968). See Paragraph C of this rule, providing for severance to avoid an injustice which may result from joinder under Paragraph B of this rule.
Paragraph B of this rule was amended by the committee in 1979 to implement a supreme court order requiring the joinder of certain defendants. The supreme court order provided as follows:
Likewise, if the charges against more than one defendant can be properly filed in one information or indictment, the defendants shall be charged jointly under one case number.
The 1990 amendment of Rule 5-202 and Paragraph B of this rule were made at the request of the state Administrative Office of the Courts to accommodate the automation of the district courts. These amendments have no substantive effect. The 1990 amendments were made to require separate files for each defendant. The state and the defendant will be required to file separate pleadings for each defendant joined pursuant to this rule. Joinder is automatically accomplished under Paragraph B by the filing of a statement of joinder by the state contemporaneously with two or more informations, indictments and complaints. Paragraph B was amended effective August 1, 1992, to make it clear that joinder of defendants is also permissible upon motion of any party if the other conditions of Paragraph B are met.
Paragraph C of this rule was derived in part from American Bar Association Standards Relating to Joinder and Severance, Section 2.2 (Approved Draft 1968). It is almost identical to Rule 14 of the Federal Rules of Criminal Procedure. Paragraph C of this rule requires a showing of prejudice before the court is compelled to sever the trial. Some examples of when prejudice may be shown include: (1) where the defendant might wish to testify in his own behalf on one offense but not on another; see e.g., Cross v. United States, 335 F.2d 987, 989 (D.C. Cir. 1964); (2) where a combined trial might result in the admissibility of evidence of other crimes which would not normally be admissible under Paragraph B of Rule 11-404; see e.g., Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1964).
Paragraph C of this rule also allows the court to sever a joint trial of defendants where justice requires. Some examples cited by the American Bar Association Standards Relating to Joinder and Severance, supra, include: (1) where the number of defendants or the complexity of the evidence is such that the trier of fact probably will be unable to distinguish the evidence and apply the law intelligently as to the charges against each defendant; and (2) where the defendants have antagonistic defenses.
As revised, Paragraph C of this rule allows the admission of a statement of one codefendant deleting all references to the defendant seeking the severance, provided that, as deleted, the statement does not prejudice the defendant seeking severance.
An accused's right of cross-examination, secured by the confrontation clause of the sixth amendment, is violated at the accused's joint trial with a codefendant who does not testify by admission of codefendant's confession inculpating accused, notwithstanding jury instructions that codefendant's confession must be disregarded in determining accused's guilt or innocence. Bruton v. United States, 391 U.S. 123 (1968), 88 S. Ct. 1620, 20 L. Ed. 2d 476. See Parker v. Randolph, 442 U.S. 62, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979) for an exception to the Bruton rule allowing the admission of interlocking confessions of codefendants in certain circumstances when accompanied by an appropriate limiting instruction to the jury. See alsoState v. Shade & Vincent, 104 N.M. 710, 726, 726 P.2d 864 (Ct. App. 1986) (cert. quashed, Vincent v. State, 104 N.M. 702, 726 P.2d 856).
Even though the court may review the confession or statement given by a codefendant which is produced to show reason for severance, such review may be held in camera, and the statement or confession need not be made part of the record.
[As revised, April 9, 1992.]
