The Court continued in relevant part: In State v. Orlando, the defendant was convicted of separate counts in an indictment charging him with impairing the morals of two girls who were his neighbors, ages nine and seven, one in April and one in June. The trial court denied a motion for severance without explanation, despite “circumstances indicating, at least prima facie, serious prejudice to defendant and tactical advantage to the State if the two charges were tried together.” Id. at 393. Noting the lack of evidence beyond the testimony of each child, we held: in reality, although the jury was told to consider each count separately, the effect of the joinder was to give the State two witnesses instead of one to overcome defendant’s denial of either offense and, in view of the abhorrent nature of the offense, to multiply the chances that defendant would be convicted. Further, the prejudice to be anticipated from joint trial of the two offenses was confirmed by what in fact did occur at the trial.
There was no compelling valid reason why the State should insist, over defendant’s objection, that the two charges, involving offenses allegedly committed some two months apart, be tried at one time. No appreciable saving of time resulted from the joinder of the two distinct offenses for trial rather than offering the proofs specifically applicable to each offense at separate trials, each of which would be of short duration.
The failure to sever the two sets of charges in this case resulted in the jury hearing evidence that our courts historically have recognized “has a unique tendency to turn a jury against the defendant.” Where the trial court errs by improperly joining offenses, the reviewing court must assess whether the error “led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether it led the jury to a verdict it otherwise might not have reached.” This requires “an independent analysis of the quality of the evidence of defendant’s guilt on a conviction-by-conviction basis.” Id. at 102.
Consistent with the Court’s analysis, prosecutors often oppose severance motions as a means to increase their chances of getting a conviction. The flip side is that if the defendant is acquitted after a severance is ordered, the prosecution gets a second chance at convicting the defendant with regard to the subsequent severed case.