Long v. United States - 687 A.2d 1331 (D.C. 1996)

Rule:

The trial court, after a pretrial severance motion has been denied, has a continuing obligation to grant a severance if undue prejudice arises as a result of joinder at any time during trial.

Facts:

Defendant Damian D. Long was convicted for assault with intent to rob, felony murder while armed, and attempted robbery while armed. Defendant challenged his conviction, contending that the police conducted an unduly suggestive pretrial identification procedure for the Orren Street victims, creating a substantial likelihood of misidentifying defendant as the assailant, and thus, tainting irreparably the victims' subsequent in-court identifications of defendant as the armed man who assaulted them. Defendant further argued that the trial court erroneously joined the Orren Street and Trinidad Avenue offenses for trial and then abused its discretion in denying the defense motion for severance. Defendant also argued that the prosecution failed to present sufficient evidence at trial to support the jury's findings, implicit in the verdict. 

Issue:

1. Under the circumstances, did the trial court err in denying the defense motion for severance? 
2. Did the prosecution fail to present sufficient evidence at trial to support the jury's findings, implicit in the verdict? 

Answer:

1) Yes. 2) Yes, with respect to the charge of assault with intent to rob to the victims.

Conclusion:

The court affirmed in part, reversed in part, and remanded for reconsideration of defendant's severance motion. The court held that the probative/prejudicial analysis was a discretionary evaluation that the court could not undertake itself when the trial court failed. Thus, the court remanded the case for the trial court to make a probative/prejudicial ruling for the offenses and thus to rule once again on the severance motion, including consideration of defendant's contention that he was prejudiced by his inability, in a single trial, to present separate defenses. The court also held that the evidence of assault with intent to rob to the victims was not sufficient for conviction under the grand jury's indictment. The court found, however, that the evidence of intent to rob another victim on Orren Street was sufficient to support the attempted robbery on Trinidad Avenue moments later and was a sufficient predicate for the felony murder.