Our superior court has summarized the law on severance of charges as follows:The three-prong test is as follows: (1) whether the evidence of one offense would be admissible proof of the other; (2) whether the military judge has provided a proper limiting instruction; and (3) whether the findings reflect an impermissible crossover. Southworth, 50 M.J. at 76.
The military justice system encourages the joinder of all known offenses at one trial ([RULE FOR COURTS-MARTIAL 601(e)(2), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2002 ed.)]), and permits a motion for "severance of offenses . . . only to prevent manifest injustice." R.C.M. 906(b)(10). "In general, 'an abuse of discretion will be found only where the defendant is able to show that the denial of a severance caused him actual prejudice in that it prevented him from receiving a fair trial; it is not enough that separate trials may have provided him with a better opportunity for an acquittal.'" [Citations omitted].
To determine whether a military judge has failed to prevent a manifest injustice and denied an appellant a fair trial, we apply the three-prong test found in United States v. Southworth, 50 M.J. 74, 76 ([C.A.A.F.] 1999).
United States v. Simpson, 56 M.J. 462, 464 (C.A.A.F. 2002).
When the military judge applied the test a trial, he ruled that one offense would be admissible proof of another under Mil. R. Evid. 404(b) "to refute affirmative defenses of consent/mistake of fact" and as substantive evidence of the other rape pursuant to Mil. R. Evid. 413. But the judge did not allow evidence of one rape to be used to prove the other rape or to refute any defense," the Govt kept the evidence of one rape separate from that of the other, and the judge gave a spillover instruction between evidence of the first offense and evidence of the second--"Proof of one offense carries with it no inference that the guilt – - the accused is guilty of any other offense."
The NMCCA says: "Assuming, without deciding, that evidence of one offense would not be admissible proof of one or more of the other offenses, we conclude that the second and third prongs clearly weigh in favor of the military judge's ruling."
I find two things troubling here. I don't believe the judge should have given the spillover instruction that he gave. Mil. R. Evid. 413 says that the court can consider evidence of a sexual assault "for its bearing on any matter to which it is relevant." While the court members must not convict an accused of one rape just because they believe he committed another, they can consider it to show that he has a propensity to commit such offenses. Thus, the likelihood that he committed one rape is increased because of the evidence that he committed the other. The judge's spillover instruction was overly protective of the accused.
It is also peculiar that the NMCCA took such a weak position on the first prong. The court could have said that the evidence may be used to show an accused has a propensity for committing such acts, and even if not, the other 2 Southworth factors outweighed the first and so the judge did not err in declining to sever.
The NMCCA did not cite to or discuss the CAAF's most recent case on this issue. United States v. Schroder, No. 06-0657 (C.A.A.F. May 31, 2007). Although that case applied Mil. R. Evid. 414, it is essentially the same as 413, except it applies to molestation of children.