Justices divided over vacating transfer in case seeking severance of offenses

Justice Robert Rucker wrote an 11-page dissent from his colleagues after three justices decided to vacate transfer to an appeal stemming from charges involving the alleged sexual assault of four victims.

Quanardel Wells was charged in 2009 in an 11-count information with various offenses arising out of the alleged assault of four victims on four different occasions. He sought interlocutory review of the trial court’s order denying his motion for severance of offenses pursuant to Indiana Code 35-41-1-11. In September 2011, the Court of Appeals upheld the denial of Wells’ motion to sever over his arguments that he is entitled to the severance of the charges in order to promote a fair determination of the merits of his case.

The justices granted transfer on Feb. 2, 2012, but Justices Steven David, Mark Massa and Loretta Rush decided to vacate transfer Feb. 21 after further review.

In his dissent, joined by Chief Justice Brent Dickson, Rucker believed this case provided the justices “the opportunity to provide guidance and clarity on an area of the law in need of both.”

He discussed the interplay between statutory severance and the Indiana Rules of Evidence. Rucker would grant transfer and remand to the trial court for a hearing to determine whether the offenses with respect to each alleged victim are of the same or similar character; whether evidence of each of the offenses is relevant to some material issue at trial of all the other offenses under Indiana Evidence Rule 404(b); and whether the evidence of the other offenses even though relevant should be excluded under Indiana Evidence Rule 403.

If the hearing reveals that evidence of the offenses for which Wells is charged would be inadmissible in separate trials of the same offenses, then he would be entitled to severance as a matter of right under Indiana Code 35-34-1-1. Otherwise Wells would not be so entitled, he wrote.