People v. Washington
| Decision Date | 09 June 2022 |
| Docket Number | Court of Appeals No. 19CA1332 |
| Citation | 517 P.3d 706,2022 COA 62 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Joseph Wayne WASHINGTON, Defendant-Appellant. |
| Court | Colorado Court of Appeals |
Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith E. O'Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE BERGER
¶ 1 Defendant, Joseph Wayne Washington, appeals his convictions for second degree murder, ten counts of possession with intent to sell or distribute a controlled substance, tampering with a witness or victim, and violation of a protection order.
¶ 2 His only contention on appeal is that the trial court erred by trying the murder charge and the drug charges together.
¶ 3 We hold as a matter of first impression that People v. Novotny , 2014 CO 18, 320 P.3d 1194, overruled Norman v. People , 178 Colo. 190, 496 P.2d 1029 (1972), to the extent Norman held joinder error requires automatic reversal. Instead, we hold that misjoinder under Crim. P. 8(a)(2) is subject to harmless error review.
¶ 4 Reviewing for harmless error, we conclude that any joinder error was harmless, and we affirm.
¶ 5 Evidence presented at trial allowed the jury to find the following facts. Washington and his girlfriend attended a barbeque at Cherry Creek State Park hosted by Jason Pope. Jackson Chavez and his ex-girlfriend, who were at the park with a different group, started to argue, and the fight turned physical. Chavez's behavior made two of Pope's friends uncomfortable and upset, so they told Pope and Washington about Chavez's behavior. Pope's friends also told Pope that he should ask Chavez to leave. Pope and Washington approached Chavez and asked him to leave.
¶ 6 Chavez threw a punch that "hit [Washington] and then clipped [Pope]." Pope swung at Chavez and Chavez's return punch "knocked out" Pope. Washington "turned around, walked maybe 20 feet away, ... got a gun, and ... turned around and shot [Chavez]" twice in the chest, killing him. The gun was located in a brown backpack that Washington and his girlfriend brought with them to the barbeque. After killing Chavez, Washington left the park with his girlfriend.
¶ 7 Washington and his girlfriend returned to his house in Aurora, where they packed two backpacks, including the brown backpack they had at the barbeque. Washington's roommate testified at trial that he purchased drugs from Washington in the past and that he arranged for an Uber to take Washington and his girlfriend to downtown Denver.
¶ 8 Washington and his girlfriend went to Richard Giles’ downtown apartment. Giles booked Washington and Washington's girlfriend a hotel room for the night. Washington gave Giles "like a gram of cocaine or something and then they left." At trial, Giles testified that he previously purchased drugs from Washington.
¶ 9 The next morning, Raymond Wallace, another of Washington's friends, picked up Washington and Washington's girlfriend from the hotel and they went to a restaurant. After eating and having a few drinks, they drove to a gas station, where Washington was arrested for Chavez's murder.
¶ 10 The police obtained a search warrant for the vehicle in which Washington was seated when he was arrested. The police found two backpacks (including the brown backpack) in the backseat of the vehicle. When they searched the backpacks, the police found various drugs and drug paraphernalia. The police also obtained a search warrant for Washington's house, where they found more drugs and drug paraphernalia.
¶ 11 The prosecution charged Washington with first degree murder. The court issued a mandatory protection order prohibiting Washington from contacting or directly or indirectly communicating with his girlfriend. The prosecution later amended the complaint to include eleven counts of possession with intent to sell or distribute a controlled substance.
¶ 12 While in jail awaiting trial, Washington wrote a letter to his girlfriend and called her, discussing her communications with the police, his charges, and possible defenses. As a result of the letter and the jail calls, the prosecution charged Washington with violation of a protection order and tampering with a witness or victim.
¶ 13 Separately, Shamarr Long-Frazier, who was housed at the jail with Washington, told the prosecution that Washington told two other men at the jail that "he needed to get rid of [his girlfriend]." The prosecution further amended the complaint to include two counts of solicitation to commit murder in the first degree.
¶ 14 Before trial, Washington moved to sever, arguing both improper joinder under Crim. P. 8 and that he was entitled to relief from prejudicial joinder under Crim. P. 14.
¶ 15 The trial court ruled that joinder under Crim. P. 8(a)(2) was permissible because the charges were "all interrelated and interconnected in a number of ways." The trial court also denied Washington's discretionary request for severance under Crim. P. 14.
¶ 16 At trial, although Washington did not testify, his counsel argued that Washington shot Chavez in self-defense and defense of others. Also through counsel, Washington claimed that the drugs did not belong to him. Washington's counsel admitted that Washington violated a protection order.
¶ 17 The jury convicted Washington of second degree murder, ten counts of possession with intent to sell or distribute a controlled substance, violation of a protection order, and tampering with a witness or victim. The jury acquitted Washington of first degree murder,1 one count of possession with intent to sell or distribute a controlled substance, and the two solicitation to commit murder charges.
¶ 18 Washington first argues that the trial court reversibly erred by joining his charges under Crim. P. 8(a)(2).
¶ 19 Crim. P. 8(a)(2) permits the joinder of two or more offenses in a single charging document if they "are of the same or similar character or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan." See also Bondsteel v. People , 2019 CO 26, ¶ 36, 439 P.3d 847.
¶ 20 Assuming solely for the purposes of this opinion that the trial court erroneously joined Washington's charges under Crim. P. 8(a)(2), we conclude that any such error was harmless.2
¶ 21 Washington argues that if the trial court erroneously joined his charges under Crim. P. 8(a)(2), he is entitled to automatic reversal. We disagree.
¶ 22 In Norman , the Colorado Supreme Court concluded that joinder was improper under Crim. P. 8 and held that "[t]he refusal of the court to grant defendants’ request for a severance for trial requires reversal for a new trial." 178 Colo. at 194, 496 P.2d at 1030.
¶ 23 More recently, however, in Novotny , ¶ 20, the Colorado Supreme Court held that "only error rising to the level of structural error necessarily requires reversal." It also overruled its prior "holdings to the contrary and conclude[d] that reversal of a criminal conviction for other than structural error, in the absence of express legislative mandate or an appropriate case specific, outcome-determinative analysis, can no longer be sustained." Id. at ¶ 27.
¶ 24 Based on this language, we conclude that Novotny overruled Norman to the extent Norman held that a joinder error requires automatic reversal. The only remaining question is whether misjoinder is structural error, requiring automatic reversal, or trial error, subject to harmless error review.
¶ 25 Structural errors are constitutional "defects affecting the framework within which the trial proceeds," and they require automatic reversal because they defy analysis by harmless error standards. People v. Vigil , 127 P.3d 916, 929 (Colo. 2006) (quoting Arizona v. Fulminante , 499 U.S. 279, 309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) ); accord Neder v. United States , 527 U.S. 1, 7, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).
¶ 26 Trial errors are errors that occur "during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether [the error] was harmless ...." Fulminante , 499 U.S. at 307-08, 111 S.Ct. 1246.
¶ 27 In United States v. Lane , the United States Supreme Court held that 474 U.S. 438, 446 n.8, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986). Based, in part, on this rationale, the Court held that misjoinder of defendants under Fed. R. Crim. P. 8 was subject to harmless error analysis and was not automatically reversible. Id. at 449-50, 106 S.Ct. 725.
¶ 28 Washington is correct that the facts of Lane differ from the facts of this case because Lane involved the misjoinder of defendants, not the misjoinder of charges. Id. at 442, 106 S.Ct. 725. Nevertheless, relying on Lane , courts in other jurisdictions have uniformly held that misjoinder of charges is reviewed for harmless error. United States v. Shellef , 507 F.3d 82, 100 (2d Cir. 2007) ; United States v. Jawara , 474 F.3d 565, 579 (9th Cir. 2007) ; Beltran v. State , 566 So. 2d 792, 792 (Fla. 1990) (); Mitchell v. State , 105 Nev. 735, 782 P.2d 1340, 1343 (1989) (); Wright v. United States , 510 A.2d 223, 224 (D.C. 1986) ; State v. Leach , ...
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