COA authorizes circuit courts to consider prejudice when determining whether to join cases for trial
State v. Max Bell, 2024AP1923-CR, 2024AP1924-CR, & 2024AP1925-CR, 11/13/25, District IV (recommended for publication); case activity (including briefs)
Whether to join cases for trial is a separate inquiry from whether to sever cases that have been joined. While the severance subsection of the joinder statute, Wis. Stat. § 971.12(3), directs the circuit court to sever charges if a party is prejudiced by joinder, the circuit court is not required by statute to consider prejudice when determining whether charges should be joined. See Wis. Stat. § 971.12(1),(4). Nevertheless, the COA held in a decision recommended for publication that a circuit court is permitted to consider prejudice when making its initial joinder decision. The COA affirmed joinder of Max Bell’s charges for trial and his subsequent convictions in each case.
Bell was charged with the following offenses in Dane County: 1) July 2019—strangulation and suffocation and pandering/solicitation for acts that occurred in February 2018; 2) October 2020 – second-degree sexual assault and felony bail jumping for acts that occurred in July 2020; and 3) November 2020 – substantial battery and bail jumping for acts that occurred in September 2019. (¶¶ 6-13). In each case, Bell allegedly met with a female sex worker for consensual sex and assaulted her. (¶ 15).
The State moved to join the cases for trial because they were similar in nature and demonstrated a common scheme or plan. Bell objected to joinder because the cases concerned different victims, different types of assault, and occurred over two years. Bell also argued joinder would confuse the jury by requiring it to follow testimony from multiple witnesses across three cases and that any benefit of joinder was outweighed by unfair prejudice. (¶ 16).
The circuit court determined joinder was appropriate because the cases concerned a common scheme or plan and, if the cases were tried separately, evidence from the other two cases would be admissible at each trial to show motive, opportunity, intent, and plan. (¶ 17). Bell was found guilty of all counts at trial.
Bell argued on appeal that his cases did not meet the statutory criteria for joinder and that the circuit court erroneously considered whether joinder would case substantial prejudice to him when it assessed whether to join the cases for trial. Alternatively, Bell argued that, if the court was permitted to consider prejudice to him when analyzing joinder, it erred in concluding he would not be substantially prejudiced. Finally, Bell argued that, if the cases were properly joined, he was entitled to severance. (¶ 2). The State agreed with Bell that the circuit court should not have considered prejudice in its joinder analysis, but that the court properly determined joinder was justified and that Bell waived his argument regarding severance because he did not file a motion to sever the charges in the circuit court. (¶ 3).
Wis. Stat. § 971.12(1) states that two or more crimes may be charged in the same complaint, information, or indictment if they “are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.” Wis. Stat. § 971.12(4) permits the circuit court to order two or more cases to be tried together “if the crimes and the defendants, if there is more than one, could have been joined in a single complaint, information, or indictment.” The severance subsection, § 971.12(3) authorizes the circuit court to order separate trials if the defendant or the State is prejudiced by joinder of crimes or by joinder for trial.
Joinder is therefore permissible when one of the following criteria are met: 1) the crimes are of the same or similar character; 2) the crimes are based on the same act or transaction; 3) the crimes are based on two or more acts or transactions that are connected together; or 4) the crimes are based on two or more acts or transactions that constitute parts of a common scheme or plan. (¶ 24).
Regarding whether and to what extent the circuit court is permitted to analyze prejudice when deciding whether to join charges for trial, the COA held that “a circuit court may consider not only whether one of the four circumstances in § 971.12(1) are present, but also whether joinder would prejudice the defendant or the State such that appropriate relief is warranted under § 971.12(3), by applying a Sullivan other acts analysis” (whether the probative value of the evidence is substantially outweighed by the risk of unfair prejudice). (¶ 31). The Court noted that SCOW held in Hall that joinder is allowed to promote judicial efficiency unless there is a showing of unfair prejudice, and that the “broad language” used by Hall “appears to acknowledge that, when a circuit court determines whether to order joinder under § 971.12(1) and (4), the court may apply the Sullivan test to assess the risk of prejudice under § 971.12(3). That is, the court could apply the third part of the Sullivan test at the joinder stage of the litigation to determine whether the evidence supporting charges in one case would be admissible in the other cases if the charges were tried separately.” (¶ 29).
In this case, the COA held that joinder was proper because the charged crimes were based on a common scheme or plan “to meet a female sex worker for consensual sex, direct her to an isolated location, and violently assault her.” (¶ 34). The COA rejected Bell’s argument that the charges were too remote in time from each other because courts have affirmed joinder of acts spanning two years or more. (¶ 38) (collecting cases).
The COA also determined the circuit court did erroneously exercise its discretion in finding that he was not substantially prejudiced by joining the charges for trial because the allegations of violent assault were common among the cases, so admitting in one trial facts related to the assaults in each case “would not appreciably horrify the jury or provoke its instinct to punish beyond the facts of the violent assault in each case alone.” (¶ 43). Further, the incidents concerned different victims and was separated in time and location; admitting those facts was therefore unlikely to confuse the jury. (¶ 43). And the circuit court mitigated any prejudice by cautioning the jury against using evidence in one or more cases to find Bell guilty of the charges in any other case. (¶ 43).
The COA declined to address Bell’s argument that he was entitled to severance under Wis. Stat. § 971.12(3) because he did not file a motion for severance in the circuit court. The Court noted that the decision to sever properly joined charges is distinct from the initial joinder decision, so Bell’s objection to joinder did not preserve his argument for severance. (¶ 47).