State v. Bryant

• Decision Date: 09 February 1998
• Docket Number: Nos. 38373-6-,39221-2-I,s. 38373-6-
• Citation: 950 P.2d 1004,89 Wn.App. 857
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Vincent Lee BRYANT, Appellant. In re Personal Restraint of Vincent Lee BRYANT, Petitioner.

Page 1004

89 Wn.App. 857

950 P.2d 1004

STATE of Washington, Respondent, v. Vincent Lee BRYANT, Appellant In re Personal Restraint of Vincent Lee BRYANT, Petitioner.

Nos. 38373-6-I, 39221-2-I.

Court of Appeals of Washington Division 1.

Feb. 9, 1998.

Stella Susan Buder, Washington Appellate Project, Seattle, Vincent Lee Bryant, Shelton, for Appellant.

James H. Krider, Prosecuting Attorney, and Seth Aaron Fine, David Frederick Thiele, Snohomish Co. Prosecutor's Office, Everett, for Respondent.

KENNEDY, Acting Chief Judge.

Vincent Lee Bryant appeals his conviction of bail jumping, contending, inter alia, that (1) the trial court improperly joined the charge of bail jumping with the underlying charge of robbery in the second degree for purposes of trial; (2) the conviction is not supported by substantial evidence that Bryant knowingly failed to appear for his omnibus hearing; (3) the trial court violated his due process rights by giving the standard knowledge instruction because the State relied on the inference contained in the knowledge instruction as its sole proof that he knowingly failed to appear for his omnibus hearing for the robbery charge and because the inferred fact of knowledge does not flow from the foundational fact of notice beyond a We conclude as a matter of law that when a defendant's custody and release on bail or bond stems directly from an underlying substantive charge, a charge of bail jumping is properly joined for trial with the underlying charge, absent a strong showing of prejudice to the accused. Here, Bryant was free on bail pending trial of the charge of robbery in the second degree when he failed to appear for the omnibus hearing on the robbery charge. Bryant made no showing of prejudice to the trial court and fails to show prejudice on appeal.

reasonable doubt; and (4) that prosecutorial misconduct requires a new trial. ¹

We also find sufficient evidence in the record to support the conviction and conclude that the trial court did not err in giving the knowledge instruction. Bryant waived the alleged prosecutorial misconduct by failing to object at trial. In any event, any misstatement of the law contained in the prosecutor's closing argument was neither flagrant nor ill-intentioned and did not prejudice Bryant. Accordingly, we affirm the conviction of bail jumping.

FACTS

Bryant was charged with robbery in the second degree by information. The evidentiary facts giving rise to this charge are not relevant to the disposition of the appeal. On December 2, 1994, the trial court ordered Bryant to post either $10,000 cash bail or a $20,000 bond, and to appear for an omnibus hearing on December 8, 1994. Bryant posted a $20,000 bond but failed to appear at the omnibus hearing. The omnibus judge forfeited the bond and issued a bench warrant. Four days later, Bryant voluntarily appeared before the omnibus court in the company of his attorney, claiming that he had become confused about his court dates with respect to the robbery charge and a different charge pending in another county. The judge reinstated his bond, warning him, "This is your last break." Report of Proceedings (omnibus) at 4,10.

By amended information, the State charged Bryant with bail jumping in addition to robbery in the second degree. Over Bryant's objection, the trial court joined the two offenses for trial. On January 26, 1995, following a three-day trial, a jury convicted Bryant of bail jumping and, instead of robbery in the second degree, theft in the third degree. On February 2, 1996, the court sentenced Bryant within the standard range. ² Bryant brings this timely appeal of the bail jumping conviction. He does not appeal his conviction of third degree theft.

DISCUSSION

I. Joinder

CrR 4.3(a) explains when joinder of offenses is proper:

Two or more offenses may be joined in one charging document, with each offense stated in a separate count, when the offenses, whether felonies or misdemeanors or both ... [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)(2). ³ This rule should be construed expansively to promote the public policy of conserving judicial and prosecution resources. State v. Hentz, 32 Wash.App. 186, 189, 647 P.2d 39 (1982), rev'd in part on other grounds, 99 Wash.2d 538, 663 P.2d 476 (1983). The question of whether two offenses are properly joined is a question of law subject to full appellate review. Hentz, 32 Wash.App. at 189, 647 P.2d 39. Questions of law are reviewed de novo. State v. McCormack, 117 Wash.2d 141, 143, 812 P.2d 483 (1991), cert. denied, 502 U.S. 1111, 112 S.Ct. 1215, 117 L.Ed.2d 453 (1992).

If joinder was not proper but offenses were consolidated in one trial, the convictions must be reversed unless the error is harmless. State v. Wilson, 71 Wash.App. 880, 885, 863 P.2d 116 (1993), rev'd in part on other grounds, 125 Wash.2d 212, 883 P.2d 320 (1994). Where joinder is proper, the offenses shall be consolidated for trial; but the trial court may sever the offenses if doing so will promote a fair determination of the defendant's guilt or innocence of each offense, considering any resulting prejudice to the defendant. CrR 4.4; State v. Weddel, 29 Wash.App. 461, 464, 629 P.2d 912 (1981). A trial court's refusal to sever is reviewed for manifest abuse of discretion. State v. Kalakosky, 121 Wash.2d 525, 537-39, 852 P.2d 1064 (1993).

Here, the trial court denied Bryant's pre-trial motion to sever the offenses. Because he failed to renew the motion to sever before the close of trial, Bryant waived the issue of severance and cannot raise it on appeal. State v. Henderson, 48 Wash.App. 543, 551, 740 P.2d 329 (1987); State v. Ben-Neth, 34 Wash.App. 600, 606, 663 P.2d 156 (1983); CrR 4.4(a)(2). Thus, only the issue of joinder was preserved for our review. Nonetheless, because both rules, joinder and severance, are based on the same underlying principle, that the defendant receive a fair trial untainted by undue prejudice, we do not believe that the "pure" legal issue of joinder can be decided in a vacuum without considering prejudice. In Wilson, the appellate court opined that "[our] Supreme Court has blurred the distinction between joinder and severance so carefully drawn in federal law by referring to [CrR 4.3] as a broad rule." Wilson, 71 Wash.App. at 886, 863 P.2d 116 (citing 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, 835 P.2d 216 (1992)). To the extent that the distinction between review of joinder and severance issues may have become blurred, we believe it is because the potential for prejudice must be considered in determining, in advance of trial, whether joinder is proper as a matter of law, and because actual prejudice must be considered in determining, at the appellate level, whether joinder was proper as a matter of law. Thus, even if joinder is legally permissible, the trial court should not join offenses if prosecution of all charges in a single trial would prejudice the defendant. United States v. Peoples, 748 F.2d 934, 936 (4th Cir.1984), cert. denied, 471 U.S. 1067, 105 S.Ct. 2143, 85 L.Ed.2d 500 (1985); 12 Royce A. Ferguson, Wash. Prac., Criminal Practice and Procedure § 1717, at 354 (2d. ed.1997); see State v. Culver, 36 Wash.App. 524, 529, 675 P.2d 622 (1984) (considering whether actual prejudice occurred as a result of joinder even though no error was assigned to the denial of motion to sever); Bayless v. United States, 381 F.2d 67, 72 (9th Cir.1967) (considering whether the trial court abused its discretion in not ordering separate trials on escape and burglary offenses due to prejudice despite defendant's failure to preserve the severance issue for appeal).

Thus, we will first determine whether the bail jumping and the substantive offense were based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Then, we will consider actual prejudice to determine in the final instance whether joinder was proper as a matter of law.

A. Sufficiently Connected Offenses

Our court rule and the federal equivalent are written in the disjunctive: Joinder is appropriate where offenses "[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)(2); Fed.R.Crim.P. 8 (emphasis added). ⁴ In United States v. Ritch, 583 F.2d 1179 (1st Cir.1978), the First Circuit, addressing a similar challenge to joinder of offenses, explained the scope of the joinder rule:

The simple answer to [appellant's claim that joinder of bail jumping and cocaine charges was improper because those offenses are not of a similar character] is that the scope of [the rule] is broader. It also permits joinder where the offenses are "connected together."

Ritch, 583 F.2d at 1181 (construing Fed.R.Crim.P. 8, the federal equivalent to CrR 4.3(a)(2)). Although a challenge to the joinder of bail jumping with the underlying substantive offense is an issue of first impression in Washington, federal cases set forth a test to determine whether bail jumping and substantive underlying offenses are sufficiently connected for joinder:

It is well established that a charge of bail jumping or escape may be deemed sufficiently "connected" with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant's custody stemmed directly from the substantive charges.

Ritch, 583 F.2d at 1180-81 (construing Fed.R.Crim.P. 8). Here, the acts giving rise to the charges of robbery and bail jumping occurred within a period of four months; thus, the acts are related in time. And in our view more importantly, the missed court appearance was an omnibus hearing that stemmed from the robbery charge. When a defendant is released on bail pending...