## Facts

- The State of Delaware indicted Michael Kman and Ryan Shover as co-defendants for murder and related offenses arising from the same homicide.
- The State expected to present testimony from alleged coconspirators that Kman confessed to the murders and, in that confession, implicated Shover.
- The parties agreed that introducing a non-testifying co-defendant’s confession that incriminates another defendant in a single-jury joint trial would violate the Confrontation Clause under *Bruton v. United States*.
- To address the *Bruton* issue, the State filed a motion for partial severance and requested a dual-jury procedure: one simultaneous trial in a single courtroom, but with two separate juries—one for Kman and one for Shover.
- Under the proposed procedure, the court would excuse one jury when evidence inadmissible against that jury’s defendant (such as Kman’s confession as to Shover) was offered.
- Kman did not oppose the request for a dual-jury proceeding.
- Shover acknowledged the *Bruton* problem but opposed a dual-jury format and sought completely separate trials, arguing he would be prejudiced by anticipated mutually antagonistic defenses.
- The Delaware Superior Court (Cooch, R.J.) addressed the State’s partial-severance motion and the request for a dual-jury trial in a memorandum opinion dated March 8, 2017.

## Issues

1. Whether the anticipated coconspirator testimony that Kman confessed and implicated Shover required severance to avoid a *Bruton* Confrontation Clause violation in a single-jury joint trial.
2. Whether a simultaneous dual-jury procedure, as a partial form of severance, would adequately protect the defendants from unfair prejudice—especially in light of Shover’s claim of anticipated mutually antagonistic defenses—or whether fully separate trials were required.

## Decision

- The court granted the State’s motion for partial severance.
- The court granted the State’s application to proceed with a dual-jury procedure in a joint trial.
- The court treated the use of separate juries as a partial form of severance and evaluated it under the standards governing requests for separate trials.
- The court concluded the dual-jury format could prevent a *Bruton* violation by ensuring Shover’s jury would not hear the confession evidence admissible only against Kman (with the non-applicable jury removed when necessary).
- The court rejected Shover’s request for completely separate trials because the asserted prejudice from “anticipated” antagonistic defenses was speculative at the pretrial stage and did not show unavoidable unfair prejudice.
- The court indicated it would employ strict trial management measures—particularly removing one jury when evidence was inadmissible as to that defendant—and take other steps needed to ensure a fair trial while conserving court resources.

## Legal Principles

- Under *Bruton v. United States*, the Confrontation Clause bars admitting, in a joint trial, a non-testifying co-defendant’s confession that directly incriminates another defendant.
- Severance (in whole or in part) is warranted when joinder would result in substantial prejudice that cannot be cured through limiting measures or other safeguards.
- A dual-jury trial is not unconstitutional per se; it may be used when structured so that each jury hears only the evidence admissible against the defendant it is sworn to decide.
- Claims of mutually antagonistic defenses do not automatically require separate trials; a defendant must show more than a mere possibility of conflict and must demonstrate concrete unfair prejudice.
- Trial courts have discretion to select procedures—including partial severance and special jury-handling measures—to protect confrontation rights and reduce spillover prejudice.

## Conclusion

In *State v. Kman*, the Delaware Superior Court addressed a conceded *Bruton* problem in a joint murder prosecution by granting partial severance and authorizing a dual-jury trial, concluding that separate juries and careful removal of a jury during inadmissible evidence could protect confrontation rights, manage potential prejudice from only anticipated antagonistic defenses, and conserve judicial resources.


State v. Kman, 2017 WL 937575 (2017)