State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter29 > 29-2002

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. SourceG.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. Annotations1. Consolidation2. Right to separate trial3. Motion for separate trial4. Miscellaneous1. ConsolidationThe 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 trialSeverance 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 trialSeverance 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. MiscellaneousA 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).