State v. Bluford, 93668-4

• Decision Date: 04 May 2017
• Docket Number: No. 93668-4,93668-4
• Citation: 188 Wash.2d 298,393 P.3d 1219
• Parties: STATE of Washington, Respondent, v. Charles Linnell BLUFORD, Petitioner.
• Court: Washington Supreme Court

188 Wash.2d 298

393 P.3d 1219

STATE of Washington, Respondent,

v.Charles Linnell BLUFORD, Petitioner.

No. 93668-4

Supreme Court of Washington.

Argued March 21, 2017

Filed: May 4, 2017

Kevin Andrew March, Casey Grannis, Nielsen, Broman & Koch, PLLC, 1908 E. Madison St., Seattle, WA, 98122-2842, for Petitioner.

Stephanie Finn Guthrie, James Morrissey Whisman, King County Prosecutor's Office, 516 3rd Ave., W554 King County Courthouse, Seattle, WA, 98104-2385, for Respondent.

YU, J.

¶1 This case provides us an opportunity to clarify what a trial court must consider when the State moves to join multiple criminal charges against a defendant into a single charging document pursuant to CrR 4.3(a). We now reaffirm our precedent, which holds that the trial court must consider whether such joinder will result in undue prejudice to the defendant. If it will, joinder is not permissible. We therefore overrule certain Court of Appeals opinions that have departed from this approach, reverse petitioner Charles Linnell Bluford's convictions, and remand to the trial court for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 The State charged Bluford with one count of first degree robbery and one count of indecent liberties. The basis for the indecent liberties charge was that after threatening the victim with a gun and forcibly taking her purse, Bluford "searched [the victim's] body, including putting his hand inside her underwear, for money." Clerk's Papers (CP) at 4.

¶3 The State later charged Bluford in a separate information with five more first degree robberies involving five new victims. In a third information, the State charged Bluford with first degree rape and first degree robbery involving yet another victim. The similarities and differences between the charged offenses are discussed in more detail below as relevant to the analysis.

¶4 Before trial, the State moved to join the two robberies accompanied by sexual offenses to the other five robberies, while Bluford moved to sever the five robberies from each other. The court heard both motions at the same time at the omnibus hearing.¹ The court granted the State's motion to join and denied Bluford's motion to sever. Bluford did not renew his motion to sever.

¶5 Bluford was convicted of eight of the nine counts, including both sexual offenses. He was acquitted of one count of robbery. The court sentenced Bluford as a persistent offender pursuant to RCW 9.94A.570, finding that three of Bluford's prior out-of-state convictions (one conviction for second degree robbery in New Jersey and two convictions for armed robbery in South Carolina) "are both legally and factually comparable to most serious offenses in Washington." Id. at 196. Bluford was therefore sentenced to eight concurrent life sentences without the possibility of parole.

¶6 In a published opinion, the Court of Appeals held that (1) the trial court properly allowed joinder, (2) Bluford did not invite the trial court to erroneously deny his request for a lesser-included offense instruction on the indecent liberties charge, and (3) the State had not proved Bluford's prior New Jersey conviction for second degree robbery was factually or legally comparable to a most serious offense in Washington, so Bluford's persistent offender sentence was erroneously imposed. State v. Bluford, 195 Wash.App. 570, 583, 586, 591, 379 P.3d 163 (2016).² The Court of Appeals thus affirmed Bluford's robbery and rape convictions, reversed his indecent liberties conviction, vacated his sentence, and remanded for resentencing. Id. at 592, 379 P.3d 163.

¶7 Bluford petitioned for review on the joinder issue. The State cross petitioned for review on the issues of the lesser-included offense instruction and the persistent offender sentence. We granted review of all issues. Order Granting Review, State v. Bluford , No. 93668-4 (Wash. Jan. 4, 2017). The State subsequently withdrew its request for review of the lesser-included offense issue. Wash. Supreme Court oral argument, State v. Bluford , No. 93668-4 (Mar. 21, 2017), at 13 min., 51 sec., audio recording by TVW, Washington State's Public Affairs Network, http://www.tvw.org.

ISSUES

¶8 A. Was it reversible error to join all nine of the charged counts?

¶9 B. Did the State produce sufficient evidence of the comparability of Bluford's out-of-state convictions to support a persistent offender sentence?

ANALYSIS

A. Joinder

¶10 The parties differ sharply on the scope and standard of our review on the joinder issue. We reaffirm our precedent and clarify that (1) both prejudice to the defendant and judicial economy are relevant factors in joinder decisions, but judicial economy can never outweigh a defendant's right to a fair trial, and (2) a trial court's decision on a pretrial motion for joinder is reviewed for abuse of discretion.

¶11 While the Court of Appeals applied the correct analytical approach to the joinder issue in this case, we reverse on the merits. The evidence for all nine charges was not cross admissible, and the benefits of joinder were outweighed by the clear likelihood of undue prejudice to Bluford. We therefore reverse Bluford's remaining convictions and remand for further proceedings.

1. Overview of joinder and severance

¶12 While joinder and severance are often considered together, the parties' arguments in this case indicate that there is a need to review the distinctions between them and to clarify how they interact with each other at the trial and appellate levels. We now take the opportunity to do so.

¶13 "Joinder" refers to bringing multiple criminal charges against one person as separate counts in a single charging document. CrR 4.3(a). If multiple charges were originally brought against a defendant in separate charging documents, the court "may" join offenses on a party's motion.³ Id. Offenses are eligible for joinder only when they "[a]re of the same or similar character, even if not part of a single scheme or plan" or "[a]re based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan." CrR 4.3(a)(1), (2). If multiple offenses are properly joined, they "shall be consolidated for trial unless the court orders severance pursuant to [CrR] 4.4." CrR 4.3.1(a).

¶14 "Severance" refers to dividing joined offenses into separate charging documents. CrR 4.4(b) Severance may be ordered on a party's motion where "the court determines that severance will promote a fair determination of the defendant's guilt or innocence of each offense." Id. A party must generally move for severance pretrial and renew a denied pretrial motion for severance "before or at the close of all the evidence." CrR 4.4(a)(2). If the party does not timely make or renew a severance motion, "[s]everance is waived." CrR 4.4(a)(1), (2) ; see State v. Wilcoxon, 185 Wash.2d 324, 328 n.2, 373 P.3d 224 (plurality opinion), cert. denied, ––– U.S. ––––, 137 S.Ct. 580, 196 L.Ed.2d 455 (2016) ; State v. Bryant, 89 Wash.App. 857, 864-65, 950 P.2d 1004 (1998).

¶15 The parties agree that because Bluford did not renew his pretrial motion for severance, the only issue before this court is whether the trial court properly granted the State's motion for joinder.

2. Likely undue prejudice to the defendant must be considered in joinder

¶16 The State contends that we should review only whether joinder was allowable in accordance with the plain language of CrR 4.3(a). According to the State, the likelihood of undue prejudice to the defendant is not relevant to this inquiry; prejudice may be considered only on a motion to sever. However, the State's approach conflicts with our precedent. Ever since Washington first allowed for the joinder of offenses, our courts have recognized the close relation of joinder and severance, and have held that joinder should not be allowed in the first place if it will clearly cause undue prejudice to the defendant.

¶17 Before the enactment of the Superior Court Criminal Rules, joinder and severance of offenses were governed by the same statute, now codified as RCW 10.37.060. See LAWS OF 1925, Ex. Sess., ch. 109, § 1. Pursuant to the statute, offenses could be joined if doing so would not prejudice the defendant's substantial rights and a trial court's determination on joinder was reviewed for abuse of discretion. State v. Brunn, 145 Wash. 435, 437-38, 260 P. 990 (1927). Shortly after the Superior Court Criminal Rules were adopted, this court held that

CrR 4.3 is a liberal joinder rule. CrR 4.3 did not supersede RCW 10.37.60 and the two are consistent. We have held that RCW 10.37.60 gives the trial court considerable discretion in matters such as joinder of offenses. State v. McDonald, 74 Wash.2d 563, 445 P.2d 635 (1968). The same rule applies to CrR 4.3.

State v. Thompson, 88 Wash.2d 518, 525, 564 P.2d 315 (1977), overruled on other grounds by State v. Thornton, 119 Wash.2d 578, 580, 835 P.2d 216 (1992).

¶18 Thompson thus clearly states that joinder pursuant to CrR 4.3 is substantially similar to joinder pursuant to RCW 10.73.060, which requires " ‘that the court must not permit the defendant to be embarrassed in his defense by a multiplicity of charges embraced in one indictment’ " and " ‘invest[s the trial court] with such discretion as enables it to do justice between the government and the accused.’ " Brunn, 145 Wash. at 437-38, 260 P. 990 (quoting Pointer v. United States, 151 U.S. 396, 400, 14 S.Ct. 410, 38 L.Ed. 208 (1894) ). Therefore, pursuant to Thompson , the likelihood of undue prejudice to the defendant is not only relevant to motions for severance, it must also be considered when the State moves for joinder.

¶19 We have not directly revisited that question in the 40 years since Thompson. Instead, we have typically analyzed joinder and severance together. See State v. Russell , 125 Wash.2d 24, 62, 882 P.2d 747 (1994) (citing State v. Smith, 74 Wash.2d 744, 754-55, 446 P.2d 571 (1968), vacated, 408 U.S. 934, 92 S.Ct. 2852, 33...