CO Code § 16-7-101 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 7 - Separate Trial - Arraignment - Plea Agreements - Deferred Prosecution and Deferred Sentencing|Part 1 - Separate Trial - Alibi Notice|§ 16-7-101. Separate Trial of Joint Defendants

 When two or more defendants are jointly indicted or informed against for any offense and there is material evidence, not relating to reputation, which is admissible against one or some of them but which is not admissible against all of them if they are tried separately and which is prejudicial to those against whom it is not admissible, those against whom such evidence is admissible shall be tried separately upon motion of any of those against whom the evidence is not admissible. In all other cases, defendants jointly prosecuted shall be tried separately or jointly in the discretion of the court.   History. Source: L. 72: R&RE, p. 220, § 1. C.R.S. 1963: § 39-7-101 .    ANNOTATION   Analysis     I. GENERAL CONSIDERATION.    II. MOTION FOR SEVERANCE.     I. GENERAL CONSIDERATION.   Law reviews. For article, “Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986”, which discusses a case relating to misjoinder of defendants, see 15 Colo. Law. 1615 (1986). For article, “Felony Plea Bargaining in Six Colorado Judicial Districts: A Limited Inquiry into the Nature of the Process”, see 66 Den. U. L. Rev. 243 (1989).   Annotator's note. Since § 16-7-101 is similar to repealed § 39-7-11 , C.R.S. 1963, CSA, C. 48, § 484, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.   This section changes the common-law rule that existed prior to its enactment, which left the granting of separate trials to defendants jointly indicted to the discretion of the court. Davis v. People, 22 Colo. 1 , 43 P. 122 (1895).   Goal of section. The goal underlying this section is to promote a fair determination of the issue of guilt or innocence of the defendant. People v. Gonzales, 198 Colo. 450 , 601 P.2d 1366 (1979); People v. Horne, 619 P.2d 53 (Colo. 1980).   The language of this section is positive and unequivocal. Davis v. People, 22 Colo. 1 , 43 P. 122 (1895).   This section is mandatory when it appears that a defendant would be prejudiced on a joint trial by the admission of evidence which would not be admissible as against him, but which would be competent as against his codefendant. Russell v. People, 125 Colo. 290 , 242 P.2d 610 (1952).   A defendant is entitled to severance of trial as a matter of right if there is evidence that is admissible against one but not all of the parties and if the evidence is prejudicial to the defendant against whom the evidence is not admissible. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).   The supreme court has interpreted this section to mean, in the mandatory severance setting, that the trial court must determine whether the admitted evidence was so inherently prejudicial that the jury could not have limited its use to its proper purpose. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).   The trial court's decision will be affirmed absent a showing of an abuse of discretion and actual prejudice to the moving party. People v. Montoya, 942 P.2d 1287 (Colo. App. 1996).   Basis for severance. Severance is to be based upon a finding of prejudice rather than simply the differences which are incidental to any trial of more than one defendant. People v. Johnson, 192 Colo. 483 , 560 P.2d 465 (1977).   Severance is a matter of right under proper circumstances. When a case as contemplated by this section is presented, it is the duty of the court to grant a severance as a matter of right. Davis v. People, 22 Colo. 1 , 43 P. 122 (1895).   Where two are indicted jointly, and there is evidence not relating to reputation, admissible as against one of them, but inadmissible as against the other, the one against whom such evidence is inadmissible is entitled to a separate trial as of right under this section. Cook v. People, 56 Colo. 477 , 138 P. 756 (1914).   Where the evidence is admissible against all defendants, severance need not be allowed. Moore v. People, 31 Colo. 336 , 73 P. 30 (1903); Cook v. People, 56 Colo. 477 , 138 P. 756 (1914).   Evidence of reputation of another defendant is expressly excluded as a ground for severance by this section. Mukuri v. People, 92 Colo. 306 , 19 P.2d 1040 (1933).   A party under criminal indictment is not entitled to a severance on the ground that his codefendants were known in the community as men of bad reputation. Mukuri v. People, 92 Colo. 306 , 19 P.2d 1040 (1933).   Matter of severance left to discretion of trial court. Where there was no claim that the joint trial involved evidence admissible against only one of the defendants, the matter of severance was left to the discretion of the trial court. People v. Johnson, 192 Colo. 483 , 560 P.2d 465 (1977).   The granting or denial of a motion for severance and continuance is a matter within the sound discretion of the trial court. People v. Gable, 647 P.2d 246 (Colo. App. 1982).   A motion for severance of defendants is addressed to the sound discretion of the trial court. People v. Horne, 619 P.2d 53 (Colo. 1980); People v. Vigil, 678 P.2d 554 (Colo. App. 1983); People v. Adams, 678 P.2d 572 (Colo. App. 1984); People v. Durre, 713 P.2d 1344 (Colo. App. 1985); People v. Manners, 713 P.2d 1348 (Colo. App. 1985).   Although court properly denied motion for severance on evidentiary grounds, it was an abuse of discretion to deny motion for severance on speedy trial grounds under § 18-1-405 where court made no finding of good cause why severance should not be granted. Finding of good cause is specifically required by § 18-1-405 (6)(c). People v. Hernandez, 829 P.2d 392 (Colo. App. 1991).   And denial not reversed unless defendant prejudiced. Where there is no showing that the denial of a motion for severance prejudiced the defendant, the trial court's ruling will not be disturbed on appeal. People v. Horne, 619 P.2d 53 (Colo. 1980); People v. Magoon, 645 P.2d 286 (Colo. App. 1982); People v. Vigil, 678 P.2d 554 (Colo. App. 1983).   Severance not mandatory. People v. Gallegos, 680 P.2d 1294 (Colo. App. 1983).   Severance is not constitutionally mandated because of conflicting peremptory challenges exercised by defendant's counsel. People v. Durre, 713 P.2d 1344 (Colo. App. 1985).   To determine whether separate trials are required, a trial court must determine whether admitted evidence is so inherently prejudicial that the jury would not be able to limit its use to its proper purpose. Otherwise, a motion for joinder is addressed to the discretion of the trial court, and will be affirmed absent a showing of an abuse of discretion and actual prejudice to the moving party. People v. Escano, 843 P.2d 111 (Colo. App. 1992).   When an out-of-court statement of a co-defendant does not make reference to the co-defendant, severance should be granted only when it is necessary to promote a fair determination of the guilt or innocence of one or more defendants. The court should make this determination by considering, among other factors, whether, in view of the number of offenses and defendants charged and the complexity of the evidence offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense and as to each defendant. People v. Escano, 843 P.2d 111 (Colo. App. 1992).   Since a co-defendant's statements to the police, made in defendant's presence, are admissible against defendant, defendant is not entitled to severance as a matter of right under this section. People v. Gardenhire, 903 P.2d 1159 (Colo. App. 1995).   Trial court did not abuse its discretion by failing to sever defendant's case where defendant's reason for requesting a severance was to be able to exercise additional peremptory challenges. People v. Lesney, 855 P.2d 1364 (Colo. 1993).   Two-part test for determining severance issues. This section contemplates a two-part test for determining severance issues: (1) Whether there is material evidence admissible against one but not all of the parties; and (2) whether admission of that evidence would be prejudicial against whom the evidence is not admissible. People v. Gonzales, 198 Colo. 450 , 601 P.2d 1366 (1979); People v. Hernandez, 829 P.2d 392 (Colo. App. 1991); People v. Escano, 843 P.2d 111 (Colo. App. 1992).   Test applied in People v. Barela, 689 P.2d 689 (Colo. App. 1984); People v. Gregory, 691 P.2d 357 (Colo. App. 1984); People v. Peltz, 697 P.2d 766 (Colo. App. 1984), aff'd, 728 P.2d 1271 (Colo. 1986); People v. Heller, 698 P.2d 1357 (Colo. App. 1984); People v. Pappadiakis, 705 P.2d 983 (Colo. App. 1985), aff'd sub nom. Peltz v. People, 728 P.2d 1271 (Colo. 1986).   Showing required to establish abuse of discretion. To establish abuse of the trial court's discretion, more is required than a showing that separate trials might afford a better chance of acquittal. People v. Armstrong, 664 P.2d 716 (Colo. App. 1982), rev'd on other grounds, 701 P.2d 17 (Colo. 1985).   Mutual participation of defendants in an offense is considered a logical basis for refusing to sever. People v. Adams, 678 P.2d 572 (Colo. App. 1984); People v. Carrillo, 946 P.2d 544 (Colo. App. 1997), aff'd on other grounds, 974 P.2d 478 (Colo. 1999).   Factors to be considered in determining whether denial of severance constitutes an abuse of discretion include: (1) whether the number of defendants or the complexity of the evidence is such that the jury will probably confuse the law and evidence applicable to each defendant; (2) whether, despite admonitory instructions, evidence admissible against one defendant will improperly be considered against another; and (3) whether the defenses presented are antagonistic. People v. Escano, 843 P.2d 111 (Colo. App. 1992); People v. Carrillo, 946 P.2d 544 (Colo. App. 1997), aff'd on other grounds, 974 P.2d 478 (Colo. 1999).   Admission of testimony of codefendant not reversible error. It was not reversible error to admit evidence concerning a description of defendants just because it was testimony of a codefendant as to whom the severance had been granted. In view of the inconclusive nature of the identification, it cannot be said that there was any prejudice to the defendants from the admission of this evidence, although it would clearly be a better procedure to conceal the source of the extrajudicial identifications. Kurtz v. People, 177 Colo. 306 , 494 P.2d 97 (1972).   This section is applicable to cases of conspiracy. Davis v. People, 22 Colo. 1 , 43 P. 122 (1895); Seebass v. People, 116 Colo. 555 , 182 P.2d 901 (1947).   II. MOTION FOR SEVERANCE.   Considerations in deciding motion for severance. When deciding whether to grant a motion for severance, the trial court should consider whether evidence inadmissible against one defendant will be considered against the other defendant, despite the issuance by the trial court of the proper admonitory instructions. An additional consideration is whether the defendants plan to offer antagonistic defenses. People v. Gonzales, 198 Colo. 450 , 601 P.2d 1366 (1979).   Additional criteria for consideration in determining whether the possibility of prejudice and unfair trial will result if severance is denied is whether the number of defendants or the complexity of evidence, together with the applicable law, will be confused by the jury, as it applies the law to each defendant. People v. Warren, 196 Colo. 75 , 582 P.2d 663 (1978).   Criteria applied in People v. Vigil, 678 P.2d 554 (Colo. App. 1983); People v. Backus, 952 P.2d 846 (Colo. App. 1998).   Motion should set out the alleged incompetent evidence. That a defendant will be prejudiced on a joint trial by the admission of evidence which is not admissible as against him but which is competent as against his codefendant must be made to appear in support of a motion for a severance, not by merely stating that evidence will be admitted which is not competent as against the moving defendant, but the evidence which it is claimed is incompetent must be set out so that the court will be given the opportunity to determine whether or not the defendant moving for a severance may be prejudiced. Such has been the recognized practice in this jurisdiction. Davis v. People, 22 Colo. 1 , 43 P. 122 (1895); Moore v. People, 31 Colo. 336 , 73 P. 30 (1903); Robinson v. People, 76 Colo. 416 , 232 P. 672 (1925).   Under the provisions of this section it is held that the showing in support of a motion for a severance was not sufficient to make the denial of the motion prejudicial error. The alleged incompetent evidence should be set out in the motion. Robinson v. People, 76 Colo. 416 , 232 P. 672 (1925).   The trial court is to be guided by the contents of the motion and the affidavit and must be advised thereby as to the nature of the evidence before it can determine whether the severance should be granted. Where neither the motion, nor the required affidavit, shows sufficient cause, the trial court commits no error in denying the motion for severance. Russell v. People, 125 Colo. 290 , 242 P.2d 610 (1952).   Unless it is impossible to set forth the evidence required. While a motion for severance should set forth the evidence which it is claimed will prejudice the rights of the moving defendant, if it is impossible for him to set out such evidence, the motion will not be held insufficient because of his failure to do the impossible. Kolkman v. People, 89 Colo. 8 , 300 P. 575 (1931).   The application for severance must be supported by an affidavit which definitely shows a good cause therefor. Robinson v. People, 76 Colo. 416 , 232 P. 672 (1925).   Otherwise the motion is denied. A motion for a separate trial which contained no statement of facts from which the court could determine whether there was evidence against a codefendant which was immaterial and inadmissible as to the moving defendant and which would be prejudicial if admitted, and the motion being unverified, not supported by affidavit, and not referring to any source from which the facts might be obtained, held properly denied. Garcia v. People, 88 Colo. 267 , 295 P. 491 (1931).   Defendant against whom evidence is inadmissible is proper party to make the application. Garcia v. People, 88 Colo. 267 , 295 P. 491 (1931).   The separation must be requested by the party against whom the material evidence is inadmissible. Cook v. People, 56 Colo. 477 , 138 P. 756 (1914), disapproving Moore v. People, 31 Colo. 336 , 73 P. 30 (1903).   Other defendant cannot complain of denial of severance. Where only one of two defendants moved for a severance, which was denied, the other defendant will not be heard to complain of the ruling. McClary v. People, 79 Colo. 205 , 245 P. 491 (1926).   If the defendant fails to move for severance, he cannot raise the question of severance on appeal. Reed v. People, 174 Colo. 43 , 482 P.2d 110 (1971).   Motion denied where evidence was not within prohibition. Where evidence of which defendants' counsel complained was not within the prohibitions of this section, overruling of motion for separate trials did not constitute prejudicial error. Lewis v. People, 109 Colo. 89 , 123 P.2d 398 (1942).   Motion for severance inadequate. Brown v. People, 124 Colo. 412 , 238 P.2d 847 (1951).   Denial of motion upheld where no objection is made to evidence during trial. Where a motion for severance under this section was denied, and on the trial no objection was made on behalf of either defendant to any evidence which could by any possibility be considered as admissible against one and inadmissible against the other, the ruling of the court in denying the motion is upheld. Stone v. People, 71 Colo. 162 , 204 P. 897 (1922).   Or where evidence is not prejudicial. Unless the appeal discloses the admission of prejudicial evidence, no error is committed in denying a motion for a severance. Kolkman v. People, 89 Colo. 8 , 300 P. 575 (1931).   Severance was not mandatory and was at the discretion of the trial court because there was no material evidence admissible against one defendant but not against the other. People v. Wandel, 713 P.2d 398 (Colo. App. 1985).   Refusal to grant severance on proper motion is error. A motion for a separate trial, when supported by a transcript of the evidence of a former trial in which it clearly appeared that there had been prejudicial evidence offered and received, should have been granted, and the refusal to do so was error. Garcia v. People, 88 Colo. 267 , 295 P. 491 (1931).