Wash v. Sublett

Decision Date21 November 2012
Docket NumberNo. 84856–4.,84856–4.
Citation176 Wash.2d 58,292 P.3d 715
PartiesSTATE of Washington, Respondent, v. Michael Lynn SUBLETT, Petitioner. State of Washington, Respondent, v. Christopher Lee Olsen, Petitioner.
CourtWashington Supreme Court


Jeffrey Erwin Ellis, Oregon Capital Resource Center, Portland, OR, Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Petitioner.

Carol L. La Verne, Thurston County Prosecutor's Office, Olympia, WA, for Respondent.


[176 Wash.2d 65]¶ 1 In this consolidated case, petitioners raise several issues, some common to both cases and others specific to each. Petitioner Michael Sublett challenges his convictions for premeditated first degree murder and felony murder, arguing the trial court wrongfully denied severance. He also challenges the comparability of out of state convictions used to support his sentence as a persistent offender. Petitioner Christopher Olsen challenges his conviction for felony murder, raising claims regarding lesser included offense jury instructions and ineffective assistance of counsel. Both petitioners challenge the content of the accomplice liability jury instruction, and both claim a violation of their article I, section 22 trial rights occurred when the trial judge considered, in chambers and with counsel present, a question from the jury during its deliberations. The Court of Appeals rejected the issues raised. We affirm.

Facts and Procedural History

¶ 2 Petitioners Sublett and Olsen, along with a third person, April S. Frazier, were convicted of robbing and murdering victim Jerry Totten. Frazier had met Totten at an Alcoholics Anonymous meeting. Frazier needed housing and Totten offered her the use of a trailer on his property. He also allowed her to use the laundry facilities within his own home. Frazier's boyfriend, Sublett, was generally welcomeas well. Totten was generous in assisting Frazier, giving her gifts of money as well as a place to live, and treated her, in her words, as a granddaughter. Despite this, Frazier and Sublett began stealing from Totten in November 2006. In January 2007, the two took Totten's wallet, cell phone, and checkbook. In total, Frazier and Sublett stole over $51,000 from Totten.

¶ 3 Olsen was a friend of Frazier's. On January 29, 2007, Frazier and Sublett bailed Olsen out of jail, using $1,000 of Totten's money, after Olsen agreed to perform a “job” for them. The three went to a hotel and used methamphetamine. At this point in the story, the accounts differ.1 According to Frazier, all three went to Totten's together. She knocked on the front door, and Totten let her in. She then went to the laundry room to finish her laundry, the alleged reason for the visit, and let Sublett and Olsen in through the adjacent backdoor. The two men proceeded to beat Totten with a baseball bat they took from the laundry room. Frazier heard Totten's moans but did not witness the violence herself. A forensic pathologist testified Totten died of manual strangulation.

¶ 4 According to Olsen, Frazier and Sublett left the hotel for a few hours. When they returned to pick up Olsen, they were agitated and angry. The three went to Totten's home. Totten was completely covered by blankets on a recliner when Olsen arrived, and Olsen was not sure whether the victim was alive or dead. He did not check. The three proceeded to loot Totten's home for valuables. At this point, the two stories merge back together.

¶ 5 Olsen was upset, and he and Sublett went for a drive to calm down. Olsen claims Sublett threatened him with a gun, saying Olsen worked for Sublett now. Frazier also testified that Sublett threatened Olsen with a gun both at Totten's home and when they were back at the hotel. The following day, the three returned to Totten's home and moved his body. They put the body in the back of one of Totten's trucks, that had a canopy, and covered it with various boxes and stuffed animals. Olsen and Sublett then drove out to the Old Olympic Highway and abandoned the truck on an embankment.

¶ 6 Frazier confessed a version of this story to Elsie Pray–Hicks a few days later. Pray–Hicks reported the crime to police a week after that. Frazier and Sublett were arrested in Las Vegas, and Olsen was arrested in Olympia. Sublett and Olsen were charged with premeditated first degree murder and, alternatively, felony murder. The two, over Sublett's objection, were joined for trial.

¶ 7 During trial, Olsen submitted an irregular second degree manslaughter instruction that was refused by the court. He did not submit any other lesser included offense instructions, nor did he object to any of the instructions given. During its deliberations, the jury submitted a question regarding the accomplice liability instruction. Counsel met in chambers to consider the question and agreed to the court's answer telling the jury to reread the instructions. No objection was made to this procedure or the answer itself. The written question and answer were put in the record, but there was no colloquy regarding the discussion in the verbatim report of the proceedings.

¶ 8 Sublett was convicted of both premeditated first degree murder and felony murder. He was sentenced to life without the possibility of release under the Persistent Offender Accountability Act (POAA), RCW 9.94A.570, based on prior out-of-state convictions found comparable to Washington strike offenses. Olsen was convicted of felony murder, but not premeditated murder. He was sentenced to 500 months of confinement based on his offender score of 9. The Court of Appeals affirmed. In rejecting that a closure occurred, the Court of Appeals held that the right to a public trial does not extend to hearings on purely ministerial or legal issues that do not require the resolution of disputed facts. Because the jury's question involved a purely legal issue, consideration of the inquiry was not subject to the right for a public trial, so the defendants' rights were not violated. This appeal followed.

Issues 2

1. Whether the trial court erred by denying severance.

2. Whether the trial court violated the right to a public trial by considering a jury question in camera.3

3. Whether the accomplice liability instruction correctly stated the law.

4. Whether the trial court erred by refusing to specifically answer the jury's question.

5. Whether the trial court should have instructed the jury on lesser included offenses as to Olsen.

6. Whether Olsen received effective assistance of counsel given his counsel's failure to submit lesser included offense instructions.

7. Whether second degree robbery in California is comparable to Washington's second degree robbery for persistent offender purposes.

1. Whether the trial court erred by denying severance

¶ 9 A defendant seeking severance must demonstrate that a joint trial would be so manifestly prejudicial as to outweigh the concern for judicial economy. Whether to grant a motion to sever trials is left to the discretion of the trial court and is reversed on appeal only when a manifest abuse of discretion is shown. State v. Hoffman, 116 Wash.2d 51, 74, 804 P.2d 577 (1991) (citing State v. Grisby, 97 Wash.2d 493, 507, 647 P.2d 6 (1982)). On appeal, the defendant must be able to point to specific prejudice. Mutually antagonistic defenses may be sufficient to support a motion to sever, but this is a factual question which must be proved and is not sufficient grounds in itself as a matter of law. Grisby, 97 Wash.2d at 508, 647 P.2d 6.4 The conflict must be so prejudicial that the two defenses are irreconcilable, such that the jury will unjustifiably infer that the conflict alone demonstrates that both defendants are guilty. Hoffman, 116 Wash.2d at 74, 804 P.2d 577 (citing Grisby, 97 Wash.2d at 508, 647 P.2d 6).

¶ 10 Sublett's defense was a general denial of involvement in the murder. Sublett did not testify during trial. Olsen's defense was that he was not present for the murder, and he only helped move the body after the fact because Sublett threatened him. Sublett moved for severance so that he would not have to defend himself from both the State and Olsen. The Court of Appeals found that the trial court did not err by denying severance because the two defenses were not so prejudicially in conflict that the jury would infer guilt simply from the conflict, nor were the defenses so mutually exclusive that the jury would be forced to believe one if it disbelieved the other.

¶ 11 We have set a high bar for granting severance, and Sublett has not met it. While the two defenses are irreconcilable, they do not reach the level where the jury would unjustifiably infer from the conflict that both are guilty. See Hoffman, 116 Wash.2d at 74, 804 P.2d 577 (citing Grisby, 97 Wash.2d at 508, 647 P.2d 6). The jury could have believed either or neither defendant, though it could not believe both. That is, it could have believed that Sublett did not participate at all and inferred that Olsen was lying. Or it could have believed Olsen and inferred that Sublett was lying. Given the jury's verdict, it did not believe either of them, and Sublett has not shown that this was due to the conflicting defenses rather than the evidence presented during trial.5Nor did Sublett cite to any evidence admissible only as to Olsen, which prejudiced his defense. The trial court, therefore, did not err in denying severance.

2. Whether the trial court violated the right to a public trial by considering a jury question in camera

¶ 12 Both Sublett and Olsen contend that the trial court violated their public trial right when the court responded to a jury question in chambers, with only counsel present, and that this violation requires automatic reversal. Whether the right to a public trial has been violated is a question of law reviewed de novo. State v. Momah, 167 Wash.2d 140, 147–48, 217 P.3d 321 (2009) (citing State v. Bone–Club, 128 Wash.2d 254, 256, 906 P.2d...

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