NE Code § 29-2002 (2021)
2021 Nebraska Revised Statutes|Chapter 29 - Criminal Procedure|29-2002 - Joinder of offenses; joint trial; separate trials; when permitted; procedure.

29-2002.  Joinder of offenses; joint trial; separate trials; when permitted; procedure.(1) Two or more offenses may be charged in the same indictment, information, or complaint in a separate count for each offense if the offenses charged, whether felonies or misdemeanors, or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.(2) The court may order two or more indictments, informations, or complaints, or any combination thereof, to be tried together if the offenses could have been joined in a single indictment, information, or complaint or if the defendants, if there is more than one, are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. The procedure shall be the same as if the prosecution were under such single indictment, information, or complaint.(3) If it appears that a defendant or the state would be prejudiced by a joinder of offenses in an indictment, information, or complaint or by such joinder of offenses in separate indictments, informations, or complaints for trial together, the court may order an election for separate trials of counts, indictments, informations, or complaints, grant a severance of defendants, or provide whatever other relief justice requires.Source   G.S.1873, c. 58, § 462, p. 825;   R.S.1913, § 9105;   C.S.1922, § 10130;   C.S.1929, § 29-2002;   R.S.1943, § 29-2002;   Laws 1957, c. 105, § 1, p. 366;   Laws 1992, LB 434, § 1.  Annotations  1. Consolidation 2. Right to separate trial 3. Motion for separate trial 4. Miscellaneous 1. Consolidation Joined charges do not usually result in prejudice if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020). The question of whether offenses were properly joined involves a two-stage analysis: (1) whether the offenses were sufficiently related to be joinable and (2) whether the joinder was prejudicial to the defendant. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020). Joinder of murder and pandering charges was proper because the evidence was such that the jury could have easily separated evidence of the charges during deliberations. State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019). To determine whether the charges joined for trial are of the same or similar character, an appellate court considers whether the underlying factual allegations supporting the separate charges are of the same or similar character. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). Under this section, an appellate court applies a two-part analysis to determine whether offenses were properly joined at trial. First, it determines whether the offenses were related and joinable, and then it determines whether an otherwise proper joinder was prejudicial to the defendant. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). Where all the charges against the defendant involved allegations of sexual misconduct with minors for whom he occupied a position of trust, the charges were joinable under subsection (1) of this section because they were of the same or similar character. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Smith, 286 Neb. 856, 839 N.W.2d 333 (2013). In a murder case, the fact that one codefendant was defending against the charge of aiding and abetting the other codefendant in committing the underlying crime does not necessarily create mutually exclusive defenses sufficient to mandate severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). The fact that codefendants in a murder case each accused the other of being the shooter is not sufficient by itself to create mutually exclusive defenses sufficient to mandate severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). The mere claim of antagonistic defenses is not a sufficient reason for separate trials of codefendants in a murder case. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). The propriety of a joint trial involves two questions: whether the consolidation is proper because the defendants could have been joined in the same indictment or information, and whether there was a right to severance because the defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). When considering whether the trials of codefendants should be severed, the existence of mutually antagonistic defenses is not prejudicial per se. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). Where codefendants in a murder case each accused the other of being the shooter and there were other possible shooters, the codefendants did not have mutually exclusive defenses that resulted in sufficient prejudice to require severance. State v. Foster, 286 Neb. 826, 839 N.W.2d 783 (2013). A defendant is not considered prejudiced by a joinder where the evidence relating to both offenses would be admissible in a trial of either offense separately. State v. Schroeder, 279 Neb. 199, 777 N.W.2d 793 (2010). The propriety of a joint trial involves two questions: Whether there were appropriate grounds for consolidation and whether such consolidation would prejudice the defendant. State v. Garza, 256 Neb. 752, 592 N.W.2d 485 (1999). The propriety of a joint trial involves two questions: whether the consolidation is proper because defendants could have been joined in the same indictment or information and whether there was a right to severance because defendants or the State would be prejudiced by an otherwise proper consolidation of the prosecutions for trial. State v. Brunzo, 248 Neb. 176, 532 N.W.2d 296 (1995). If the offenses charged are of the same or similar character, or are based on the same act or transaction, the offenses may be joined in one trial. State v. Lewis, 241 Neb. 334, 488 N.W.2d 518 (1992). Joinder or consolidation is not prejudicial error where evidence relating to both offenses would have been admissible in a trial of either offense separately. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990). If the offenses involved were of the same or similar character, they can be joined in one information, and the trial court can order that they be tried together. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990). Subsection (3) of this section allows the joinder of criminal defendants for trial if the defendants could have been joined in a single indictment, information, or complaint. State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987). The joinder of criminal defendants in an indictment or information is governed by subsection (2) of this section, which allows joinder if the defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987). If the offenses charged are of the same or similar character, or are based on the same act or transaction, the offenses may be joined in one trial. State v. Vrtiska, 225 Neb. 454, 406 N.W.2d 114 (1987). Offenses of the same or similar character may be joined in one information and tried together. State v. McGuire, 218 Neb. 511, 357 N.W.2d 192 (1984). Joinder is only permissible if the defendants are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses, which means that the two charges are so closely linked in time, place, and circumstance that a complete account of one charge cannot be related without relating details of the other charge or where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge. A trial court may not consolidate defendants' cases for trial if this section does not permit joinder of those same defendants in a single indictment and, in those cases where defendants have been improperly consolidated for trial, such action is prejudicial per se and severance is not a matter of discretion but is a matter of right. State v. Brehmer, 211 Neb. 29, 317 N.W.2d 885 (1982). Where evidence relating to both offenses would have been admissible in a separate trial of either offense, joinder of offenses is permissible, even though offenses occurred ninety days apart. State v. Walker, 200 Neb. 273, 263 N.W.2d 454 (1978). Where defendants acted together in offense charged, consolidation of their cases for trial is proper in absence of a showing of prejudice. State v. Boyce, 194 Neb. 538, 233 N.W.2d 912 (1975); State v. Saltzman, 194 Neb. 525, 233 N.W.2d 914 (1975). Cases may be consolidated for trial if the offenses charged are based on the same act or transaction. State v. Shiller, 191 Neb. 291, 214 N.W.2d 616 (1974). Cases may be consolidated for trial if the offenses charged are based on the same act or transaction. State v. Shimp, 190 Neb. 137, 206 N.W.2d 627 (1973). Ruling of court upon motion for consolidation of criminal prosecutions properly joinable in a single information will not be disturbed in absence of abuse of discretion. State v. Bazer, 189 Neb. 711, 204 N.W.2d 799 (1973). When the offenses charged are of the same or similar character or are based on the same act or transaction or on connected acts, they may be joined. If it appears that such joinder would prejudice defendant, the court may order an election for separate trials of the counts. State v. Rodgers, 186 Neb. 633, 185 N.W.2d 448 (1971). Joint trial of codefendants is authorized. State v. Knecht, 181 Neb. 149, 147 N.W.2d 167 (1966). Separate informations charging each of defendants with one robbery may be consolidated for trial. State v. Wilson, 174 Neb. 86, 115 N.W.2d 794 (1962). 2. Right to separate trial While subsections (1) and (3) of this section present different questions, it is clear that there is no error under either subsection if joinder was not prejudicial. State v. Cotton, 299 Neb. 650, 910 N.W.2d 102 (2018). A defendant has no constitutional right to a separate trial on different charges. Instead, this section controls the joinder or separation of charges for trial. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). A defendant opposing joinder of charges has the burden of proving prejudice. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). Generally, a defendant must show that the court’s refusal to sever the offenses caused severe and specified prejudice in his or her trial, not merely a better chance of acquittal in separate trials. Moreover, absent a showing of substantial prejudice, spillover of evidence from one count to another does not require severance. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). Prejudice is not shown if evidence of one charge would have been admissible in a separate trial of another charge. Additionally, prejudice usually does not occur from joined charges if the evidence is sufficiently simple and distinct for the jury to easily separate evidence of the charges during deliberations. This is particularly true where the trial court specifically instructs the jury to separately consider the evidence for each offense. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). The defendant failed to show prejudice from joined charges where (1) the evidence supporting each charge was simple and distinct so that the jury could separate the charges and associated evidence, instead of combining evidence of other charges to find guilt that it would not have found if the court had ordered separate trials; (2) the trial judge specifically instructed the jury that it was to keep the charges separate and come to a separate decision regarding each charge; and (3) the jury found the defendant guilty of some charges but not others, showing that it actually separated the evidence and offenses. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). Charges of one count of first degree sexual assault of a child and four counts of child abuse were improperly joined together. First degree sexual assault is a crime of a different nature than child abuse, and the charged sexual assault occurred over a different time period than the alleged child abuse. The sexual assault charge was not based on the same act or transaction; only one of four child victims was sexually assaulted outside the presence of the other children while many of the alleged acts of child abuse occurred in the presence of multiple children. The record did not show the charges were part of an inferable common scheme or plan. Counsel was deficient in failing to oppose joinder of the charges, and counsel’s deficient performance prejudiced the defendant, warranting relief for ineffective assistance of counsel on direct appeal. State v. Rocha, 286 Neb. 256, 836 N.W.2d 774 (2013). Severance is not a matter of right, and a ruling of the trial court with regard thereto will not be disturbed on appeal absent a showing of prejudice to the defendant. State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003). If the offenses charged are of the same or similar character or are based on the same act or transaction, the offenses may be joined in one trial. The right to separate trials is statutory and depends upon a showing that prejudice will result from a joint trial. The defendant bears the burden of proving that prejudice will result from a joint trial. State v. Evans, 235 Neb. 575, 456 N.W.2d 739 (1990). Pursuant to subsections (2) and (3) of this section, two or more defendants may be tried together. There is no constitutional right to a separate trial, and a separate trial will only be granted upon a showing of prejudice. State v. Ryan, 233 Neb. 74, 444 N.W.2d 610 (1989). The trial court's ruling on a motion for consolidation of prosecutions properly joinable will not be disturbed in the absence of an abuse of discretion. The right to separate trials is statutory and depends upon a showing that prejudice will result from a joint trial. The defendant bears the burden of proving that prejudice will result from a joint trial. State v. Andersen, 232 Neb. 187, 440 N.W.2d 203 (1989). The right to a separate trial is statutory, and depends upon a showing that prejudice will result from a joint trial. The burden is on the party challenging the joint trial to demonstrate how and in what manner he or she was prejudiced. State v. Clark, 228 Neb. 599, 423 N.W.2d 471 (1988). Joinder of criminal defendants for trial in a manner inconsistent with this section is prejudicial per se, and severance is not a matter of discretion but a matter of right. State v. Lee, 227 Neb. 277, 417 N.W.2d 26 (1987). Even where prosecutions are otherwise properly consolidated for trial, court may grant separate trials upon showing prejudice will result from joint trial. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974). Right to separate trial depends upon showing that prejudice will result from joint trial. State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972); State v. Adams, 181 Neb. 75, 147 N.W.2d 144 (1966); State v. Erving, 180 Neb. 824, 146 N.W.2d 216 (1966). There is no constitutional right to a separate trial. State v. Clark, 189 Neb. 109, 201 N.W.2d 205 (1972). Defendants challenging a joint trial must affirmatively demonstrate that the joint trial has prejudiced their individual rights. State v. Rice, 188 Neb. 728, 199 N.W.2d 480 (1972). When the offenses charged are of the same or similar character or are based on the same act or transaction or on connected acts, they may be joined. If it appears that such joinder would prejudice defendant, the court may order an election for separate trials of the counts. State v. Rodgers, 186 Neb. 633, 185 N.W.2d 448 (1971). Severance, under this section, is not a matter of right. State v. Foster, 183 Neb. 247, 159 N.W.2d 561 (1968). Under 1957 amendment to this section, jointly charged defendants are not entitled to a separate trial as a matter of right. State v. Cook, 182 Neb. 684, 157 N.W.2d 151 (1968). Right to separate trial is granted only to persons charged with felony and not to those jointly charged with misdemeanor. Nash v. State, 110 Neb. 712, 194 N.W. 869 (1923). One, jointly indicted with others for a felony, is entitled to separate trial as a matter of right, if request is made in season. Reed v. State, 93 Neb. 163, 139 N.W. 1015 (1913). Whether separate trials are required depends upon a defendant's showing that prejudice will result from a joint trial. State v. Dandridge, 1 Neb. App. 786, 511 N.W.2d 527 (1993). 3. Motion for separate trial A defendant appealing the denial of a motion to sever has the burden to show compelling, specific, and actual prejudice. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020). There is no error under either subsection (1) or (3) of this section if joinder was not prejudicial, and a denial of a motion to sever will be reversed only if clear prejudice and an abuse of discretion are shown. State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020). A motion for a separate trial is addressed to the sound discretion of the trial court, and its ruling on such motion will not be disturbed on appeal absent a showing that the court abused its discretion. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). Because Fed. R. Crim. P. 14(a) is the federal equivalent of subsection (3) of this section, Nebraska courts look to federal cases for guidance in determining whether a severance should be granted. State v. Knutson, 288 Neb. 823, 852 N.W.2d 307 (2014). Severance is not a matter of right and a ruling of the trial court with regard thereto will not be disturbed in absence of showing of prejudice. State v. Nance, 197 Neb. 95, 246 N.W.2d 868 (1976). A motion for separate trial in a criminal case is addressed to the sound discretion of the trial court. State v. Hall, 176 Neb. 295, 125 N.W.2d 918 (1964). Motion for separate trial is addressed to sound discretion of trial court, and ruling thereon will not be disturbed in absence of abuse of discretion. State v. Brown, 174 Neb. 387, 118 N.W.2d 328 (1962). Motion may be made either by prisoner or state and objection to severance is too late after jury is empaneled. Metz v. State, 46 Neb. 547, 65 N.W. 190 (1895). 4. Miscellaneous A motion to revoke probation is not a criminal proceeding, and this section is not applicable. State v. Schreiner, 276 Neb. 393, 754 N.W.2d 742 (2008). When issues of prejudicial joinder and prejudicial failure to sever are not before the trial court, defendant cannot raise these issues on appeal. State v. Vance, 240 Neb. 794, 484 N.W.2d 453 (1992). Joinder is not prejudicial error where evidence relating to both offenses would be admissible in a trial of either offense separately. State v. Porter, 235 Neb. 476, 455 N.W.2d 787 (1990). Separate offenses must be set out in separate counts in an information, but failure is cured by verdict when no objection was made. State v. French, 195 Neb. 88, 236 N.W.2d 832 (1975). Requirement of showing prejudice met where confession of codefendant implicating appellant used in joint trial and both defendants were represented by same counsel. State v. Montgomery, 182 Neb. 737, 157 N.W.2d 196 (1968). Court may refuse to allow prisoner's codefendant to be present at trial. Evidence is not inadmissible because it also tends to establish guilt of codefendant. Krens v. State, 75 Neb. 294, 106 N.W. 27 (1905). Admission of extra-judicial confessions of codefendants found to be prejudicial and violative of defendant's right of cross-examination. Davis v. Sigler, 415 F.2d 1159 (8th Cir. 1969).