- Transactionally related offenses may be joined for trial.
- Multiple defendants may be joined for trial when they are each charged with accountability for the same offenses, or other offenses which are transactionally connected.
- Failure to join related offenses for trial may result in dismissal of any charges that were not joined, unless there was a valid reason why joinder did not occur.
The key question for joinder is whether there is a transactional connection, or factual nexus, among the charged offenses. Joinder is the rule in North Carolina, rather than the exception. State v. Paige, 316 N.C. 630 (1986). Joinder is “addressed to the discretion of the trial court and absent any abuse of discretion, its ruling will not be disturbed on appeal.” State v. Avery, 302 N.C. 517 (1981); State v. Ruffin, 90 N.C. App. 712 (1988). However, if joinder would hinder a defendant’s ability to present a defense or otherwise to receive a fair trial, then joinder should be disallowed or severance should be granted. See State v. Corbett, 309 N.C. 382 (1983). A prosecutor who seeks joinder may move to join defendants or offenses for trial using form AOC-CR-212.
Test for Joinder of Offenses for Trial
Under G.S. 15A-926(a), the offenses must be “transactionally connected” to be joined for trial, which means the offenses are:
- Part of the same act or transaction;
- Part of a series of acts or transactions that are either:
- Closely connected in time, place, and circumstances; or
- Part of a common scheme or plan.
Offenses that meet one of these two criteria are called “joinable offenses.” The law favors trying joinable offenses in a single trial. State v. Manning, 139 N.C. App. 454 (2000) (public policy favors consolidation of offenses because it expedites administration of justice, reduces congestion, and lessens burden on jurors and witnesses), aff’d per curiam, 353 N.C. 449 (2001). Offenses that are not “joinable” as defined by G.S. 15A-926 should be tried separately. See State v. Corbett, 309 N.C. 382 (1983).
In deciding whether offenses have a sufficient factual nexus to be joined for trial, courts have considered such factors as:
- Temporal proximity;
- Geographical proximity;
- Similarities among victims;
- Whether the same evidence or witnesses will be used to prove both offenses;
- Whether the offenses are similar in type or circumstance;
- Whether the defendant had a similar motive to commit both offenses; and
- Whether a similar modus operandi was used in committing both offenses.
See, e.g., State v. Moses, 350 N.C. 741 (1999). In Moses, the court ruled, relying on State v. Chapman, 342 N.C. 330 (1995), that the trial judge did not err in granting the state’s motion to join for trial two murders committed two months apart. The court noted the following similarities between the murders: (1) both murders involved young men whom the defendant knew and with whom he was associated in the drug trade; (2) both murders occurred after the victims had paged the defendant; (3) both victims were shot in the head with the same gun from about two feet or less; (4) both murders occurred in Winston-Salem; (5) both murders occurred on the premises of the victims; and (6) both murders occurred after the defendant argued with the victims. The court concluded that the two murders “were not so separate in time and place and so distinct in circumstance that joinder was unjust and prejudicial to the defendant.” Accord, State v. Anderson, 362 N.C. 90 (N.C. App. 2008) (allowing joinder of ten counts of third-degree sexual exploitation of a minor and ten counts of second-degree sexual exploitation of a minor with misdemeanor peeping, which had been appealed for trial de novo); State v. Peterson, 205 N.C. App. 668 (2010) (allowing joinder of felony assault with a deadly weapon and possession of stolen firearms, finding a sufficient transactional connection where a firearm that was the basis of the firearm charge was used in the assault, and joinder did not prejudicially hinder the defendant’s ability to receive a fair trial); State v. Wood, 185 N.C. App. 227 (2007) (joinder for trial of possession of firearm by felon and felonious breaking or entering, larceny, and possession of stolen property, where alleged theft and subsequent possession of a firearm was a result of a breaking or entering and so closely related in time, place, and occasion that it would be difficult to separate proof of one charge from proof of the others); State v. Cromartie, 177 N.C. App. 73 (2006); State v. Guarascio, 205 N.C. App. 548 (2010); State v. Floyd, 148 N.C. App. 290 (2002); State v. Hardy, 67 N.C. App. 122 (1984); State v. Simmons, 167 N.C. App. 512 (2004); State v. Montford, 137 N.C. App. 495 (2000).
Other Factors Supporting Joinder
1. Same Offense
Although G.S. 15A-926(a) does not permit joinder of offenses solely because they are the same type of crime or of a similar character (which was previously permitted under the former G.S. 15-152), the type of offense is still one factor to be considered in determining whether crimes are transactionally connected and are therefore joinable. See State v. Greene, 294 N.C. 418 (1978). However, mere commonality of crimes alone is not enough—there must also be a commonality of facts. State v. Bracey, 303 N.C. 112 (1981); see State v. Corbett, 309 N.C. 382 (1983) (trial court erred in granting state’s motion to consolidate charges against defendant for kidnapping and sexual offenses against three different victims on three different dates when there was no transactional connection between the events, which were separate, distinct and not part of a common plan; the error, however, was not prejudicial because evidence of each of the offenses would have been admissible in the separate trials of the others as proof of the identity of defendant); State v. Williams, 74 N.C. App. 695 (1985) (finding joinder was prejudicial based on "the separate and distinct crimes, the prolonged time lapse between them, and the lack of a transactional connection constituting a 'single scheme or plan.'").
2. Public Policy
As referenced above, public policy favors joinder when offenses are transactionally connected, as long as consolidation of offenses is not unjust or prejudicial to defendant. Public policy considerations include expedition of the administration of justice, reduction of congested trial dockets, conservation of judicial time, lessening of burden on citizens who must sacrifice time and money to serve on juries, and avoiding the necessity of recalling witnesses who would otherwise only have to testify once. State v. Jenkins, 83 N.C. App. 616 (1986) (joinder of six separate child molesting charges against husband and wife was proper—court noted that these policy concerns are magnified in a case in which children will be required to testify).
Test for Joinder of Defendants for Trial
G.S. 15A- 926(b) addresses joinder of defendants, rather than offenses. Each defendant must be charged in a separate pleading, but there are a number of grounds upon which a prosecutor can move to have those defendants joined for trial. Joinder of defendants may be granted when each of the defendants is charged with accountability for the same offenses. G.S. 15A- 926(b). When each of the defendants is charged with accountability for each offense, public policy strongly favors consolidation. State v. Nelson, 298 N.C. 573 (1979); State v. Barnett, 307 N.C. 608 (1983); State v. Porter, 303 N.C. 680 (1981).
Even if the various defendants that the state wants to join for trial have not all been charged with accountability for each and every offense, the defendants are still joinable for trail under G.S. 15A-926(b)(2)b if the charged offenses were:
- Part of a common scheme or plan;
- Part of the same act or transaction; or
- So closely connected in time, place and occasion that it would be difficult to separate proof of one charge from proof of the others.
Under the first two of these options, the inquiry is the same as it is for joinder of offenses as part of a single transaction or part of a common scheme or plan.
Under the third option, joinder is permitted when it would be difficult to separate the proof offered against each of multiple defendants. See State v. Tirado, 358 N.C. 551 (2004) (joinder permitted for defendants charged with several murders and related offenses; joinder for the guilt-innocence stage, which required redaction of certain statements, did not prejudice defendant’s ability to use full statements as mitigation in his individual sentencing hearing); State v. Ellison, 213 N.C. App. 300 (2011) (joinder did not prejudice defendant where evidence of prior bad act of co-defendant was introduced; defendant was clearly not involved in the other crime, and the trial court gave an appropriate limiting instruction); State v. Holmes, 120 N.C. App. 54 (1995) (limiting instruction was adequate to avoid prejudice); State v. Overton, 60 N.C. App. 1 (1982); see also Blumenthal v. United States, 332 U.S. 539 (1947) (discussing conspiracy, joinder and proof); State v. Boykin, 307 N.C. 87 (1982) (defendant was prejudiced by court's consolidation of two cases since position of codefendant was antagonistic toward position of defendant, and presence of codefendant denied defendant the opportunity to introduce evidence which could have explained his admissions); State v. Thobourne, 59 N.C. App. 584 (1982) (where joinder of two drug prosecutions was proper, severance was necessary only if, before or during trial, it was found necessary for fair determination of guilt or innocence of defendant).
Finally, the defendants to be joined for trial must not have defenses that are antagonistic to one another, such as where one of the defendants has made a statement that incriminates any other co-defendant. State v. Rinck, 303 N.C. 551 (1981). For more information, see the related entry on Severance and Bruton issues.
Procedure for Joining Defendants and Offenses for Trial
If a prosecutor makes a joinder motion before trial it must be in writing. G.S. 15A-926(b)(2); see also AOC-CR-212 (Motion and Order for Joinder). The motion may also be oral if made during a hearing or when the cases are called for trial. See G.S. 15A-951(a); State v. Slade, 291 N.C. 275 (1976). A defendant must make a motion for joinder of related offenses (or a motion for severance of offenses) at or before arraignment. See G.S. 15A-952(b); State v. Riggs, 79 N.C. App. 398 (1986) (trial court allowed the State’s motion to join the offenses for trial, which was made on the day of the trial; although G.S. 15A-952 provides time limitations when particular motions can be filed, a judge may permit filing later than the deadline, judge here did not abuse his discretion by allowing the joinder motion on the day of trial); State v. Fink, 92 N.C. App. 523 (1989) (written motion for joinder of defendants may be made at any time before trial—a motion need not be in writing if made at a hearing and, in the judge’s discretion, motion may be made orally even at beginning of trial).
Misdemeanors and felonies are joinable, but each defendant still must be charged in a separate pleading. See G.S. 7A-271; G.S. 15A-926(a), (b)(1); State v. Fearing, 304 N.C. 471 (1981); State v. Karbas, 28 N.C. App. 372 (1976).
Failure to Join Related Offenses
Subsection (c) of G.S. 15A-926 describes what happens in the event of a failure to join related offenses. The first part of subsection 926(c) concerns when a defendant moves to join offenses. In practice this is a little-used provision, since the prosecution almost always seeks joinder, while the defendant typically opposes it. In any event, the judge is given wide discretion to allow or deny such a motion in order to serve “the ends of justice.”
But the second part of subsection 926(c) allows the defendant to move to dismiss any subsequent charge that would have been joinable with the initial charge under the statute, but was not in fact charged and joined for trial. G.S. 15A-926. This rule does not apply to three situations: (1) a motion for joinder of the offenses was previously denied; (2) the right of joinder has been waived; (3) the prosecutor did not have sufficient evidence to try the charge at the time of the first trial. See State v. Warren, 313 N.C. 254 (1985) (denying defendant’s motion to dismiss for failure to join burglary and larceny charges with prior manslaughter conviction, based on prosecutor’s claims that no witnesses were available to testify about the theft at the time of the murder trial, the stolen purse had not yet been recovered, and an investigator’s statement that he had overheard the defendant admit to taking the purse was not strong enough evidence to initiate a prosecution); State v. Tew, 149 N.C. App. 456 (2002) (defendant did not satisfy his burden of persuasion that the state withheld an indictment of the felonious assault charge before the trial of the attempted murder offense solely to circumvent the statutory joinder requirements). When a prosecutor makes a motion to join multiple defendants for trial, if any of the defendants is charged with more than one offense, the prosecutor also must move to join those offenses for trial.
G.S. 15A-926(c) does not apply to charges that were not pending at the time of the earlier trial. See State v. Furr, 292 N.C. 711 (1977). However, later-filed charges that would have been joinable may nevertheless be dismissed if the prosecutor withheld those charges in order to circumvent this statutory provision. See State v. Warren, 313 N.C. 254 (1985). If either or both of two circumstances are present - (i) during the first trial the prosecutor was aware of evidence that would support the later charges, or (ii) the state’s evidence at the second trial would be the same as the first trial - they will "support but not compel" a finding that the state withheld the charges to circumvent the statute; in other words, the court may dismiss the charges on that basis, but it is not required to do so. See State v. Schalow, __ N.C. __, 866 S.E.2d 417 (2021).
Key Limitations on This Rule:
- A defendant has no statutory right to compel joinder of his or her case for trial with a codefendant. State v. Jeune, 332 N.C. 424 (1992).
- A defendant does have a statutory right to seek joinder of related (i.e., transactionally connected) offenses unless the prosecutor has insufficient evidence to try some of the offenses at that time, or shows the court some other reason why in the interests of justice the offenses should not be joined. State v. Smith, 70 N.C. App. 293 (1984).
- A defendant’s failure to make a timely motion for joinder waives the defendant’s right to joinder of offenses. G.S. 15A-926(c)(1); State v. Jones, 50 N.C. App. 263 (1981).
- A defendant has no right to joinder when he or she has pled guilty or no contest to the joinable charge. G.S. 15A-926(c)(3).
- Even if the trial court finds that G.S. 15A-926(c) and State v. Warren, 313 N.C. 254 (1985) apply, and there are subsequently filed charges that the state failed to institute and join for trial, the trial court may dismiss the later charges but it is not required to do so. See State v. Schalow, __ N.C. __, 866 S.E.2d 417 (2021).