This is a motion by defendants James Brown and Ronald Emm for severance brought pursuant to R. 3:15-2(b). Defendants are jointly charged in a one-count indictment charging death by auto arising from an incident which occurred on the evening of September 23, 1985.
The facts as alleged by the State are as follows: At approximately 7:52 p.m. on the above date, defendants, while travelling north on Route 34, interrupted a game of "cat and mouse" to pause for a traffic light at the intersection of Morristown Road in Old Bridge Township. It was already dark and a light rain was falling steadily. Defendants, strangers to one another, resumed their deadly game when the light changed, cutting one another off, fighting for the lane and forcing each other into the lane of oncoming traffic. The "lead" changed more than once as the game continued for over two miles. It ended with the death of Frank Dimitri who was driving south on Route 34, the innocent victim of a head-on collision with the vehicle driven by defendant Brown.
Both Brown and Emm argue that since their respective defenses will rest entirely on the culpability of the other, such defenses are both antagonistic and mutually exclusive, requiring severance. I disagree.
In order to properly join defendants, each must be charged with participation in a transaction which is identical to that in which the other defendant participated. State v. McMahon, 183 N.J. Super. 97, 99 (Law Div.1981); State v. Krope, 123 N.J. Super. 413 (Law Div.1973). R. 3:15-2(b) provides for the severance of codefendants where it appears to the court "that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation." It is axiomatic that the grant or denial of a
motion for severance is entrusted to the sound discretion of the trial court. R. 3:15-2(b); State v. Manney, 26 N.J. 362, 368 (1958); State v. Whipple, 156 N.J. Super. 46, 51 (App.Div.1978). In deciding whether to grant a severance the trial court must balance the possible prejudice to defendants against the government's interest in judicial economy and must consider the ways in which it can lessen the prejudice by other means. State v. Coleman, 46 N.J. 16 (1965), cert. den. 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966); State v. Manney, 26 N.J. 362. It has been recognized that where a significant portion of evidence to be adduced at a joint trial is admissible only as to one defendant the probability of harm to the other may be so great that the trial judge should as a matter of fair practice, exercise his discretion in favor of the severance. State v. Bellucci, 165 N.J. Super. 294, 300 (App.Div.1979). There is, of course, no right to a severance merely because defendant believes he would have a better chance of acquittal were he not required to stand trial with his codefendant. State v. Morales, 138 N.J. Super. 225 (App.Div.1975). If, by proper instructions and charges to the jury, the separate status of codefendants can be maintained, the "danger by association" which inheres in all joint trials is effectively overcome.*fn1 State v. Freeman, 64 N.J. 66, 68 (1973).
Defendants present only one New Jersey case in support of their argument that under the instant circumstances a severance is required. In State v. Pickles, 46 N.J. 542 (1966), one of the questions considered by our State Supreme Court was the fundamental fairness of jointly trying codefendants Mr. and Mrs. Pickles on charges of statutory child neglect, and Mrs. Pickles on a charge of manslaughter. In reviewing the "respective
interests and defenses" of the codefendants the Court concluded that Mr. Pickles did not receive a fair trial since his only viable defense was to cast all blame upon his wife for the death of their son. Id. at 567.*fn2 Defendants herein analogize their position to that of Mr. Pickles. The case, however, is clearly distinguishable for two reasons. In Pickles the jury witnessed the spectacle of a husband "attempting to exonerate himself at the expense of his wife." Ibid. As the Court stated, "the notion that a jury might react unfavorably" to such a scene "cannot be ignored." Ibid. In contrast, defendants herein have no special relationship which might inhibit a vigorous defense by both parties, or which might prejudice the jury against them as a result. Moreover, defendants herein are to be tried on precisely the same charges. The great disparity of charges manifest in Pickles is simply not present here.
Defendants also advance several cases from our sister state and federal jurisdictions as authoritative. Of particular interest is State v. Vinal, 198 Conn. 644, 504 A.2d 1364 (Sup.Ct.1986), where the trial court's refusal to sever the joint trial of codefendants indicted for murder and felony-murder respectively was found to constitute reversible error. Central to the conflict in Vinal was a written confession by codefendant Avis in which he stated that he alone shot and killed the victim while Vinal was unconscious. Although the state introduced the confession into evidence, Vinal adopted it as the centerpiece of his defense. 504 A.2d at 1367. Notably, the state alleged that either Vinal or Avis had shot the victim. As a result each vigorously sought to convince the jury that the other alone had killed him. Ibid.
In finding reversible error in the trial court's refusal to sever the trials, the Supreme Court of ...