[167 NJSuper Page 596] This matter comes before the court on a motion, pursuant to R. 3:15-2(b), to order separate trials of counts 1 and 2 of indictment S-63-77. That indictment charges defendant in count 1 with the first degree murder of Susan Heynes and in count 2 with the first degree murder of Susan Reeves. Susan Heynes was reported missing from her home in Haworth, New Jersey, on October 6, 1975, and her nude body was subsequently found in the Valley Cottage area of Clarkstown, in Rockland County, New York, on October
27, 1975. Susan Reeves was reported missing from her home in Demarest, New Jersey, on October 14, 1975, and her nude body was subsequently found in Tallman State Park, Bear Mountain, in Rockland County, New York, on October 28, 1975. The Medical Examiner of Rockland County examined the two bodies and found that the cause of death in both cases was strangulation due to a ligature of pantyhose found around the necks of the victims.
Defendant was charged with both murders in separate counts of a single indictment on January 20, 1977.*fn1 The State maintains that the joinder of the two murders was proper under R. 3:7-6 which permits the specification of two or more offenses in the same indictment if the offenses charged are of the same or similar character. The defendant contends that the joinder is prejudicial and seeks separate trials on each count under R. 3:15-2(b).
In discussing these two rules our courts have stated that although separate and distinct crimes which are the same or similar in character may be joined together in a single trial in the interests of judicial economy and efficiency, where there exists a possibility of prejudice to defendant, a trial severance of the offenses should be granted. Compare State v. Baker , 49 N.J. 103 (1967), cert. den. 389 U.S. 868, 88 S. Ct. 141, 19 L. Ed. 2d 144 (1967) (holding single trial for sale of heroin on two separate occasions to be proper); State v. Coleman , 46 N.J. 16 (1965), cert. den. 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966) (permitting joint trial of double homicide which occurred as part of a single transaction); with State v. Harris , 105 N.J. Super. 319 (App. Div. 1969); (requiring separate trials on charges involving differing crimes occurring over a period of several months, multiple victims and diverse locations); State v. Kropke ,
It should also be noted that the mere claim that prejudice attaches to a consolidated trial of multiple charges is insufficient to justify a severance. More than a cavil allegation of prejudice must be offered to warrant an order for separate trials of properly joined offenses. If separate crimes were required to be tried separately in all circumstances, the multiplicity of trials would disserve the State and defendants alike. State v. Manney , 26 N.J. 362 (1958).
In order to practically and properly evaluate a claim of prejudice, several basic categories have been formulated which contain the potential harm accruing to a defendant by a joinder of separate offenses:
1. he may become embarrassed or confounded in presenting separate defenses; 2. the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the defendant from which is found his guilt of the other crime or crimes charged; or 3. the jury may cumulate the evidence of the various crimes charged and find guilt when, if considered separately, it would not so find. A less tangible, but perhaps equally persuasive, element of prejudice may reside in a latent feeling of hostility engendered by the charging of several crimes as distinct from only one. [ Drew v. United States , 118 U.S. App. D.C. 11, 331 F.2d 85, 88 (1964)]*fn3
See also, United States v. Foutz , 540 F.2d 733 (4 Cir. 1976); Tinsley v. United States , 368 A.2d 531 (D.C. Ct. App. 1976). This formulation has gained widespread acceptance, for (as will be seen) cases discussing prejudicial joinder do so in contexts that fall into one of these categories.
Defendant in the present case has claimed that each of these elements of prejudice is extant, and so I will ...