Opinion
No. 39287-9-II.
January 11, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Clark County, No. 08-1-00820-7, John F. Nichols, J., entered May 15, 2009.
Affirmed by unpublished opinion per Hunt, J., concurred in by Quinn-Brintnall and Van Deren, JJ.
John Lanell Fitzpatrick appeals his convictions for first degree robbery and attempting to elude a pursuing police vehicle. He argues that (1) the evidence is insufficient to support his attempting to elude conviction, which was based on accomplice liability; and (2) the trial court abused its discretion by denying his motion to sever his trial from his joint jury trial with his codefendant, thereby denying him his right to a timely trial. We affirm.
I. FACTS A. Robbery
Just before 5 a.m. on May 21, 2008, two men wearing dark clothing and knit caps with cutout eye holes entered a Vancouver area Shari's Restaurant. One of the men forced the cook and the pie maker to lie on the floor at gunpoint, while the other man had the hostess open the till. The second man emptied much of the till by grabbing bills and wadding them in his pocket and grabbing rolls of coins. The hostess heard at least one of the men speak; she also saw brown skin between his hat and his shirt, which led her to believe that at least one of the men was African American. After the second man pocketed the money, both men ran out of the restaurant and entered an idling black Lincoln Towncar driven by a third man. The Towncar left the parking lot, travelling at normal speed towards I-5. The hostess called 911 to report the robbery, and dispatch alerted the police.
Police responded and followed the Towncar onto the I-5 north. As the Towncar headed north, at least four police cars followed directly behind it. After several miles, Officer Yoder, in the police vehicle closest to the Towncar, used his overhead lights to signal to the driver to stop. When Ferguson did not stop, Officer Yoder used his siren to signal the Towncar to stop. The Towncar pulled off I-5 at the Ridgefield exit, ran a red light, and then drove slowly through a strip mall parking lot, where another officer saw the Towncar's driver, whom he later identified as Ferguson.
B. Attempt to Elude
Rather than stopping in the strip mall parking area, Ferguson returned to I-5, driving the Towncar more quickly than before. As Ferguson merged the Towncar back onto I-5, an occupant in the Towncar threw a loaded handgun and a grayish colored knit cap with cut-out eyeholes from the driver's side window of the vehicle.
Police vehicles, several of which were officially marked and driven by uniformed officers, using lights and sirens to signal Ferguson to stop, pursued the black Towncar. But Ferguson drove erratically north on I-5 at speeds of up to 110 miles per hour, passing other vehicles in the right hand lane.
Near Longview, sheriff's deputies deployed a spike strip that deflated the Towncar's tires. But instead of stopping, Ferguson exited I-5 via an off-ramp into Longview at speeds up to 80 miles per hour, running at least two red lights, with pieces of the Towncar's tires hitting the pursuing police vehicles. When the Towncar "high-centered" (became stuck) on a traffic island at an intersection in Longview and stopped abruptly, 7 Report of Proceedings (RP) at 1246, officers observed three African-American men exit the Towncar and run away.
C. Arrest and Investigation
Many officers from various law enforcement agencies arrived and set up containment. Police took Fitzpatrick into custody first. Fitzpatrick was breathing heavily, as if he had been running. He denied having been in the Towncar or with the other men.
Officers next chased and detained Youngblood, who struggled and ended up on the ground. Underneath Youngblood, the officers discovered a black knit cap with eyeholes cut into it and a roll of nickels. Youngblood also had 85 bills in denominations of ones, fives, and a single ten-dollar bill wadded up in his pocket. The officers took Ferguson into custody last after finding him behind a sofa on the porch of a nearby house. Fitzpatrick, Ferguson, and Youngblood are all African-American men.
The police impounded and searched the Towncar with a warrant. In the interior, they found a roll of pennies and two pairs of white gloves, one pair of which were gardening gloves with blue piping. The Shari's Restaurant hostess had reported that one of the robbers wore white gloves with blue piping like the gardening gloves her mother used to wear.
During the investigation, a detective reviewed the dispatcher's logs to determine the amount of time that had passed between the first 911 call from Shari's and the time the police saw the black Towncar at the I-205/I-5 interchange. The time was just almost 15 minutes. Approximately $159.00 was missing from the Shari's till.
DNA testing matched Youngblood's DNA to that found on the interior of the black hat. But there was insufficient DNA material to test the other items taken into evidence.
II. Procedure
The State jointly charged Fitzpatrick, Ferguson, and Youngblood with one count of first degree robbery, count 1; two counts of first degree kidnapping, counts 2 and 3; and one count of attempting to elude a pursuing police vehicle, count 4. The State also charged them with committing each of these four crimes while armed with a semi-automatic pistol, under RCW 9.94A.602 and RCW 9.94A.533(3).
A. Trial Date Continuances
On June 5, 2008, Fitzpatrick was arraigned and a joint trial date set for July 28, 2008. On July 10, Fitzpatrick signed a CrR 3.3 time-for-trial waiver and his trial date was reset for November 3 restarting the 60-day timely trial time clock. On October 27, over Fitzpatrick's objection, his counsel requested another continuance to provide adequate time for trial preparation. The trial court granted the continuance and set a new trial date for December 15.
B. Motion to Sever
At the December 11 trial readiness hearing, in anticipation of the December 15 trial date, Youngblood requested a continuance based on the DNA test results, which implicated him more than the other codefendants. Youngblood cited that he was facing life in prison and that he should at least have the opportunity to confront the witness against him.
Ferguson opposed the continuance; citing [ State v.] " Enriquez," he argued that the trial court should consider severing Youngblood's case. 2 RP (Dec. 11, 2008) at 204. Ferguson's counsel further noted that if the trial court granted a continuance, his schedule could not accommodate a rescheduled date until "early February." 2 RP (Dec. 11, 2008) at 205. Fitzpatrick also opposed the continuance and asked to go forward with the trial date set on the following Monday (the original trial date of December 15).
Although trial counsel cited " Enriquez," we believe he meant State v. Iniguez, 167 Wn.2d 273, 296, 217 P.3d 768 (2009) (holding that an eight-month delay did not violate defendant's constitutional speedy trial rights).
The State opposed any severance. Noting the tough spot for Youngblood facing life imprisonment, judicial economy, the State's position on severance, scheduling conflicts for Ferguson's attorney, and the Christmas holiday, the trial court denied the motion to sever and reset the trial's start date for February 9, 2009.
C. Trial and Verdict
Trial for the three joined co-defendants, including Fitzpatrick, began on February 9. The jury found all three defendants guilty of first degree robbery and attempting to elude a pursuing police vehicle. The jury also found that each defendant had been armed with a firearm during the robbery.
When the jury could not reach a verdict on either of the kidnapping counts, the trial court declared a mistrial on those charges. Rather than be retried on the kidnapping charges, Fitzpatrick entered an Alford plea to an amended information changing counts 2 and 3 to unlawful imprisonment, with firearm and deadly weapon enhancements, respectively. State v. Alford, 25 Wn. App. 661, 666, 611 P.2d 1268 (1980), aff'd, sub nom. State v. Claborn, 95 Wn.2d 629, 628 P.2d 467 (1981). Fitzpatrick does not challenge these counts on appeal.
Fitzpatrick appeals.
ANALYSIS I. Sufficiency of Evidence
Fitzpatrick argues that insufficient evidence supports his conviction as an accomplice for attempting to elude a police vehicle because (1) only the driver can commit this crime; (2) there was no evidence that Fitzpatrick acted to solicit, to command, to encourage, or to request the driver not to stop for the pursuing police; and (3) Fitzpatrick was a victim of Ferguson's attempt to elude police and, therefore, cannot be an accomplice. These arguments fail.
For the first time on appeal, Fitzpatrick also contends that he cannot be an accomplice because he was the victim of Ferguson's crime of attempting to elude police. Appellant's Br. at 20. Generally, appellate courts will not consider issues or theories not presented below. State v. Scott, 110 Wn.2d 682, 685, 757 P.2d 492 (1988); John Doe v. Puget Sound Blood Ctr., 117 Wn.2d 772, 780, 819 P.2d 370 (1991). Moreover, the record lacks factual support for Fitzpatrick's "victim" claim because he never presented this theory or evidence below. Thus, not only is his assertion of victimhood untimely but it also lacks merit. Accordingly, we do not further consider it.
A. Standard of Review
The standard of review for determining whether sufficient evidence supports a conviction is "whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the charged crime beyond a reasonable doubt." State v. Rempel, 114 Wn.2d 77, 82, 785 P.2d 1134 (1990). A claim of insufficiency admits the truth of the State's evidence and all reasonable inferences drawn therefrom. State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable for purposes of drawing inferences. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). Reviewing courts defer to the trier of fact for purposes of resolving conflicting testimony and evaluating the persuasiveness of the evidence. State v. Hernandez, 85 Wn. App. 672, 675, 935 P.2d 623 (1997) (citing State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992)). Credibility determinations are for the trier of fact and are not subject to appellate review. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
B. Washington Law
To prove attempting to elude a pursing police vehicle, the State must prove that the defendant was the "driver of a motor vehicle who willfully fail[ed] or refuse[d] to immediately bring [his] vehicle to a stop and who [drove his] vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop." RCW 46.61.024(1). "Attempt to elude," as used in RCW 46.61.024, is given its ordinary meaning of "try" to elude and is unrelated to criminal attempt; thus, there is no requirement that the State prove intent to elude. State v. Gallegos, 73 Wn. App. 644, 650, 871 P.2d 621 (1994).
Under RCW 9A.08.020(3)(i)-(ii), an accomplice is one who, "[w]ith knowledge that it will promote or facilitate the commission of the crime . . . encourages . . . or aids" another person in committing a crime. In other words, an accomplice associates himself with the venture and takes some action to help make it successful. In re Welfare of Wilson, 91 Wn.2d 487, 491, 588 P.2d 1161 (1979). More specifically, the evidence must show that the accomplice aided in the planning or commission of the crime and that he had knowledge of the crime. State v. Trout, 125 Wn. App. 403, 410, 105 P.3d 69, review denied, 155 Wn.2d 1005 (2005). Where criminal liability is predicated on accomplice "liability," the State must prove only the accomplice's general knowledge of his co-participant's substantive crime; the State need not prove the accomplice's specific knowledge of the elements of the co-participant's crime. State v. Rice, 102 Wn.2d 120, 125, 683 P.2d 199 (1984).
But mere presence of the defendant, without aiding the principal, despite knowledge of the ongoing criminal activity, is not sufficient to establish accomplice liability. State v. Parker, 60 Wn. App. 719, 724-25, 806 P.2d 1241 (1991) (citing In re Wilson, 91 Wn.2d at 492). Similar to a person who is merely present, a victim of a crime committed by another person cannot be an accomplice in that crime. RCW 9A.08.020(5)(a); a "victim" is a person who suffers injury as a direct result of a crime. City of Auburn v. Hedlund, 165 Wn.2d 645, 651, 653, 201 P.3d 315 (2009).
Rather, the State must prove that the defendant was ready to assist the principal in the crime and that he shared in the criminal intent of the principal, thus "demonstrating a community of unlawful purpose at the time the act was committed." State v. Castro, 32 Wn. App. 559, 564, 648 P.2d 485 (citing State v. Boast, 87 Wn.2d 447, 456, 553 P.2d 1322 (1976)); see State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981); In re Wilson, 91 Wn.2d at 491. A person who agrees to participate in a criminal act runs the risk that the other participant will do an act that exceeds the scope of the original plan and shares in the other's culpability. State v. Davis, 101 Wn.2d 654, 658, 682 P.2d 883 (1984). Our legislature has provided that anyone who participates in the commission of a crime is guilty of the crime and may be charged as a principal, regardless of the degree or nature of his participation; whether the participant holds the gun, holds the victim, keeps a lookout, stands by ready to help the assailant, or aids in some other way, he is a participant, just as criminally culpable as the principal. Davis, 101 Wn.2d at 658 (quoting State v. Carothers, 84 Wn.2d 256, 264, 525 P.2d 731 (1974) overruled on other grounds by State v. Harris, 102 Wn.2d 148 (1984)).
C. Evidence
Fitzpatrick contends that only the driver can commit the crime of attempting to elude a police vehicle and that because he was a mere passenger, the evidence does not support his conviction for eluding. Appellant's Br. at 15. This argument fails.
Fitzpatrick asserts that the evidence is insufficient to show that he acted to solicit, to command, to encourage, or to request that Ferguson keep going and not to stop for the pursuing police. We disagree. Viewed in the light most favorable to the State, the evidence supports a reasonable inference that Fitzpatrick had knowledge of and aided in the planning of the robbery, the getaway, and the consequent attempt to elude the police. As the trial court aptly summarized in response to Fitzpatrick's motion to dismiss:
Accomplice liability, again, the evidence will show that we have three people acting in concert before the robbery takes place. I think one of the key issues, as the State pointed out, the car is idling in the parking lot and two people are in and at least one is behind the wheel, idling the car.
Two, with regard to the driving aspects of it, there's been enough circumstantial evidence that they're acting in concert at that point. They're driving slowly, anyone could be involved. And obviously thereafter, the high speed chase, getting out together, running together, I mean there's enough circumstantial evidence to indicate that they're acting in concert, they're [sic] presence was there and enough circumstantial evidence that somehow they were aiding with regard to that.
7 RP at 1315.
We agree with the trial court that the evidence supports the conclusion that Fitzpatrick, Ferguson, and Youngblood actively encouraged and assisted one another other in robbing Shari's and in attempting to elude the police who pursued them as they fled. Two African American men robbed Shari's, one of whom, Youngblood, was captured with wadded up dollar bills and rolls of coins in his pockets. Ferguson drove the getaway Towncar, leaving Fitzpatrick as the other robber with Youngblood inside Shari's. And Fitzpatrick obviously had knowledge that the idling black Towncar, driven by Ferguson, was waiting outside to flee after the robbery: After Youngblood pocketed the money; he and Fitzpatrick ran out of the restaurant and got into the Towncar, which Ferguson drove out of the Shari's parking lot towards the I-5 freeway.
Once on the freeway, police signaled the Towncar to stop, the Towncar exited the freeway, and ran a red light. One of the three men in the Towncar threw a loaded handgun and a grayish colored knit cap with cut-out eyeholes from the driver's side window of the Towncar. Then the Towncar returned to the freeway without ever stopping and drove erratically at speeds up to 110 mph, still failing to stop after a spike strip punctured all of its tires. When the Towncar finally became stuck on a median, Fitzpatrick, Youngblood, and Ferguson ran from the car and ran from the police on foot.
Both Fitzpatrick's actions in robbing the restaurant with Youngblood and Ferguson's actions in driving the getaway Towncar were actions that in concert helped the robbery "succeed." State v. Alford, 25 Wn. App. 661, 666, 611 P.2d 1268 (1980), aff'd sub nom. State v. Claborn, 95 Wn.2d 629, 628 P.2d 467 (1981). Fitzpatrick and Ferguson were engaged together, not only in the ongoing robbery, but also in attempting to avoid detection and capture following the robbery; they worked in concert with a "community of unlawful purpose" from the time of the robbery through their joint attempt to elude the police. See, in contrast, State v. Castro, 32 Wn. App. at 559, (no "community of unlawful purpose," no evidence of shared criminal intent of principal, and no accomplice culpability of witness who slept during murder and refused to share proceeds of robbery).
In addition, evidence of flight is admissible as tending to show guilt. State v. Bruton, 66 Wn.2d 111, 112, 401 P.2d 340 (1965). But the evidence must be sufficient to create a reasonable and substantive inference that the defendant's departure from the scene was an instinctive or impulsive reaction to a consciousness of guilt or that the flight was a deliberate effort to evade arrest and prosecution. Bruton, 66 Wn.2d at 112-18. Here, Fitzpatrick not only fled from the robbery but also fled from the Towncar after it stopped. His continuing flight showed his complicity in both the robbery and the getaway, which involved attempting to elude the police.
We further note that Fitzpatrick's flight also belies his claim that he was a victim. If Fitzpatrick had been a victim, or if he had not been an accomplice, he would have disassociated himself from the others as soon as the car high-centered and he could escape. Instead, he fled from the police along with his codefendants. Compare RCW 9A.08.020(5)(b), which provides that a person is not an accomplice in a crime committed by another person if he terminates his complicity prior to the commission of the crime and either gives timely warning to law enforcement or otherwise makes a good faith effort to prevent the commission of the crime.
We hold, therefore, that the evidence was sufficient to support Fitzpatrick's conviction for attempting to elude a pursuing police vehicle.
II. CrR 3.3 Based Motion to Sever
Fitzpatrick next argues that the trial court abused its discretion in denying his motion to sever his trial from co-defendant Youngblood's trial when it granted Youngblood a continuance over Fitzpatrick's objection. Fitzpatrick contends that this continuance violated his right to a timely trial under CrR 3.3. Again, we disagree.
A. Standards of Review 1. Continuance
The decision to grant or to deny a continuance under CrR 3.3 rests with the trial court, whose decision we will not disturb absent a manifest abuse of discretion. State v. Nguyen, 131 Wn. App. 815, 819, 129 P.3d 821 (2006); State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004). A trial court abuses its discretion when exercised on untenable ground or for untenable reasons. State v. Torres, 111 Wn. App. 323, 330, 44 P.3d 903 (2002). The CrR 3.3 timely trial rule is not of constitutional magnitude. State v. Fladebo, 113 Wn.2d 388, 393, 779 P.2d 707 (1989). Thus, a trial court "may continue the trial date to a specified date when such continuance is required in the administration of justice and the defendant will not be prejudiced in the presentation of his or her defense." CrR 3.3(f)(2).
The trial court granted a total of three defense requests for continuances so that one or more of the co-defendants, including Fitzpatrick, could benefit from prepared counsel. Originally Fitzpatrick's trial was to begin on July 28, 2008. Thereafter, however, the trial court granted various defense motions for continuances in the interest of justice, specifically to allow defense counsel time to prepare, including Fitzpatrick's counsel's two requests for more time to prepare. The trial court granted Fitzpatrick's two requests for continuances and reset the trial to December 15.
On July 10, 2008, Fitzpatrick's defense counsel moved to continue the trial to prevent ineffective assistance of counsel. Fitzpatrick reluctantly signed a CrR 3.3 timely trial waiver with a September 4 trial commencement date. The trial court set the trial date for November 3, the last date allowed by Fitzpatrick's waiver. On October 27, Fitzpatrick's defense counsel again asked to continue the trial date, citing the need for more time to prepare. Over Fitzpatrick's pro se objection, the trial court granted the continuance and reset the trial for December 15.
An attorney can waive his client's CrR3.3 timely trial right, even over his client's objection and even if it results in the trial's starting beyond the 60-90 day rule, when a continuance is required in the administration of justice and does not prejudice the defendant. State v. Campbell, 103 Wn.2d 1, 15, 691 P.2d 929 (1984). Where the defense requests a continuance, the continued period does not count towards the 60-day time for trial. State v. Greene, 49 Wn. App. 49, 58, 742 P.2d 152 (1987). Because here the first two continuances were at Fitzpatrick's request, they did not violate his CrR 3.3 timely trial rights.
CrR 3.3(f)(2).
On December 11, however, co-defendant Youngblood requested another continuance based on the DNA test results, which implicated him more than the other codefendants. Both Ferguson and Fitzpatrick opposed what was now the third continuance and requested that their trials be severed from co-defendant Youngblood's trial. Ferguson's counsel further noted that if the trial court granted a continuance, his schedule could not accommodate a rescheduled date until "early February." 2 RP (Dec. 11, 2008) at 205. The trial court denied the motion to sever and reset the trial's start date for February 9, 2009. The issue on appeal is whether the trial court abused its discretion by denying Fitzpatrick's motion to sever, for purposes of judicial economy, while granting his codefendant Youngblood's request for continuance over Fitzpatrick's objection and his demand to go to trial as scheduled.
In denying the motion to sever, the trial court recited that Youngblood was facing life imprisonment (and, therefore, required well-prepared defense counsel), judicial economy, the State's position on severance, scheduling conflicts for Ferguson's attorney, and the Christmas holiday.
2. Severance
The decision to proceed with joint or separate trials of jointly charged defendants is entrusted to the sound discretion of the trial court, which we will not disturb on appeal absent a manifest abuse of discretion. State v. Grisby, 97 Wn.2d 493, 507, 647 P.2d 6 (1982), cert. denied, 459 U.S. 1211 (1983) (quoting State v. Barry, 25 Wn. App. 751, 756, 611 P.2d 1262 (1980)). Washington law disfavors separate trials. Grisby, 97 Wn.2d at 506. Thus, a trial court should sever defendants' trials only
if before trial, it is deemed necessary to protect a defendant's rights to a speedy trial . . . or if during trial upon consent of the severed defendant, it is deemed necessary to achieve a fair determination of the guilt or innocence of a defendant.
CrR 4.4(c)(2)(i)-(ii).
To demonstrate that the trial court abused its discretion, a "`defendant must be able to point to specific prejudice.'" State v. Johnson, 147 Wn. App. 276, 284, 194 P.3d 1009 (2008) (quoting Grisby, 97 Wn.2d at 507), review denied sub nom., State v. Balaski, 165 Wn.2d 1050 (2009). A trial court need not grant severance to protect the rule-based timely trial right of one jointly-charged defendant. Nguyen, 131 Wn. App. at 820. On the contrary, a trial court properly grants a severance only if the defendant demonstrates that a joint trial would be "`so manifestly prejudicial as to outweigh the concern for judicial economy.'" Johnson, 147 Wn. App. at 284 (quoting State v. Hoffman, 116 Wn.2d 51, 74, 804 P.2d 577 (1991)).
A defendant can show specific prejudice from denial of his severance motion by showing one of four factors: (1) antagonistic defenses conflicting to the point of being irreconcilable and mutually exclusive; (2) a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it relates to each defendant when determining each defendant's guilt or innocence; (3) a codefendant's statement inculpating the moving defendant; or (4) gross disparity in the weight of the evidence against the defendants. State v. Larry, 108 Wn. App. 894, 911-12, 34 P.3d 241 (2001) (denial of severance affirmed based on the fact that the defendants did not demonstrate any of these examples of prejudice). None of these four factors are present here.
(Quoting State v. Canedo-Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995)).
B. No Prejudice
As to the first factor necessary to demonstrate prejudice from joinder, nothing in the record indicates that there was some type of internal conflict or potential problem of mutually exclusive defenses among Fitzpatrick and his codefendants. As to the second factor, neither party argues, nor is there evidence in the record suggesting, that there was a massive and complex quantity of evidence making it almost impossible for the jury to separate evidence as it related to each defendant when determining that defendant's guilt or innocence. As to the third factor, there is no evidence in the record demonstrating that codefendant Youngblood made a statement inculpating Fitzpatrick. Finally, as to the fourth factor, there was no gross disparity in the weight of evidence against any of the defendants. DNA evidence placing Youngblood at the scene did not prejudice Fitzpatrick because he had the opportunity to present evidence that the DNA did not implicate him.
See also State v. Israel, 113 Wn. App. 243, 291, 54 P.3d 1218 (2002), review denied, 149 Wn.2d 1013 (2003) (severance of co-defendants' trials not required where both charged with same criminal conspiracy to commit robbery and Israel did not allege that their defenses were antagonistic or cite any evidence introduced against codefendant that would not have been admissible against him in a separate trial).
On the contrary, Fitzpatrick's counsel noted below that there was nothing in the DNA report that would hurt his client:
I think the worst thing, it says, on the exterior of a white glove that, let's say, may be identified to the robbery, it's estimated that one in 160 individuals . . . may have that as a potential contributor, which probably translates like three or four million people could be the contributor of this DNA as well as the Defendant, Mr. Fitzpatrick. 2 RP (Dec. 11, 2008) at 206.
C. Judicial Economy
Washington law favors joint trials, State v. Dent, 123 Wn.2d 467, 484, 869 P.2d 392 (1994). A trial court may properly rely on the policy favoring joint trials to continue a defendant's case so that it will coincide with the trial of another defendant charged with a related crime. State v. Melton, 63 Wn. App. 63, 66-67, 817 P.2d 413 (1991). But a continuance granted beyond the CrR 3.3 timely trial period must be supported by findings in the record showing the need for a continuance in the "`due administration of justice.'" State v. Adamski, 111 Wn.2d 574, 581, 761 P.2d 621 (1988) (quoting State v. Tidwell, 32 Wn. App. 971, 979, 651 P.2d 228 (1982)). The trial court here cited judicial economy as the reason for denying Fitzpatrick's request for severance.
In denying Fitzpatrick's motion to sever his trial from his codefendants' trial, the trial court noted:
[G]oing through the same trial at least two times, probably by the time we get there, three times, four or five days, six days, and with all the people involved, the doctors and experts involved, it's just not in the cards as far as judicial economy and the prerogative of the State. 2 RP (Dec. 11, 2008) at 220.
We hold, therefore, that the trial court neither violated Fitzpatrick's CrR 3.3 timely trial rights nor abused its discretion in denying his request for a separate trial when it granted his codefendant a necessary continuance over Fitzpatrick's objection.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
QUINN-BRINTNALL, J. and VAN DEREN, J., concur.