Opinion
Nos. 35145-5-II; 35148-0-II.
October 9, 2007.
Appeals from a judgment of the Superior Court for Thurston County, Nos. 05-1-02255-1 and 06-1-00326-1, Gary Tabor and Richard A. Strophy, JJ., entered July 27, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Houghton, C.J., and Penoyar, J.
Dontez Marquis Johnson appeals his several convictions for residential burglary, attempted residential burglary, attempted first degree burglary, and second degree assault. We affirm.
By amended information, the State charged Dontez Johnson with six counts of residential burglary in violation of RCW 9A.52.025 (counts I-V and VII) and one count of attempted residential burglary in violation of RCW 9A.28.020 and RCW 9A.52.025 (count VI). By separate information, the State also charged Johnson with one count of attempted first degree burglary in violation of RCW 9A.28.020 and RCW 9A.52.020 (hereinafter count VIII), and one count of second degree assault in violation of RCW 9A.36.021(1)(a) or (e) (hereinafter count IX).
The trial court joined the offenses charged under the two informations and consolidated the two cases against Johnson. At trial, after the State's case in chief, the defense rested without presenting any evidence. The jury acquitted Johnson on count V and found him guilty on all other charges.
Johnson contends that the trial court erred when it joined the offenses set forth in the separate informations. He contends that the prejudice relating to the 06-1-00326-1 charges outweighed any considerations of judicial economy.
Except for a very brief argument, Johnson does not claim that that the joinder prejudiced his defense on the charges in cause no. 05-1-02255-1. We need not consider arguments that are not developed in the briefs and for which a party has not cited authority. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990).
CrR 4.3(a) permits joinder of offenses that are "of the same or similar character" or that are "based on the same conduct or on a series of acts connected together." CrR 4.3(a)(1), (2). We construe the joinder rules broadly to promote the public policy of conserving judicial and prosecution resources. State v. Hentz, 32 Wn. App. 186, 189, 647 P.2d 39 (1982), rev'd in part on other grounds, 99 Wn.2d 538 (1983). Nevertheless, "[j]oinder of counts should never be used in such a way as to unduly embarrass or prejudice a defendant or deny him or her a substantial right." State v. Russell, 125 Wn.2d 24, 62, 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). "Prejudice may result from joinder if the defendant is embarrassed in the presentation of separate defenses, or if use of a single trial invites the jury to cumulate evidence to find guilt or infer a criminal disposition." Russell, 125 Wn.2d at 62-63.
Johnson does not challenge the trial court's implicit finding that the charges under counts I-VII and those under counts VIII and IX are sufficiently similar or sufficiently connected.
Whether the trial court properly joined two or more offenses is a question of law. Hentz, 32 Wn. App. at 189. We review questions of law de novo. See Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003). In determining whether the potential for prejudice required separate trials, we consider: (1) the strength of the State's evidence on each count; (2) the jury's ability to compartmentalize the evidence; (3) the cross admissibility of the evidence on various counts, and; (4) whether the judge instructed the jury to decide each count separately; and we strongly weigh (5) the concern for judicial economy. State v. Kalakosky, 121 Wn.2d 525, 537, 852 P.2d 1064 (1993).
I. Strength of the Evidence
In considering the strength of the State's evidence on each count, the trial court found that "[t]he State's evidence may be described as strong on each count; there is no `boot-strapping' of a weak count upon other, stronger counts." CP (cause no. 05-1-02255-1) at 65. Johnson disputes this conclusion.
Our review of the record shows that the evidence against Johnson was especially strong on counts I-IV and VI-IX, and circumstantial on count V. During an interview with the Officer Corey Johnson on November 24, 2005 (hereinafter "the November 24, 2005, interview"), Johnson admitted his involvement as the get-away driver in the burglaries charged under counts I through IV. Johnson explained during this interview that his practice in burglaries was to park the vehicle a few houses away from the target residence and leave the engine running while he waited for his accomplices to return with the stolen property. In contrast, Johnson did not admit his involvement in the burglary charged under count V, and the witnesses were unable to identify the perpetrator. Nevertheless, the police recovered a missing Nintendo 64 game console bearing the count V victim's son's name on it from the residence of Johnson's girlfriend, where he was living at the time. During the November 24, 2005 interview, Johnson explained that one of his accomplices in the other burglaries gave him the game console.
As to count VI, Johnson admitted during the November 24, 2005 interview to taking the screen off a window at the victim's residence and trying to open the window. Johnson explained that his purpose in trying to open the window was merely to see if a confederate of his was inside. As to count VII, Johnson's fingerprints were found on the window edge where the victim's mobile house had been broken into.
The evidence was also strong on counts VIII and IX. After his arrest for these counts, Johnson admitted to the police that he tried to break into the burglary victim's apartment through a window. Johnson stated that his purpose in doing so was to retrieve some clothes he had left at the victim's place several weeks before. He further admitted that he assaulted the Surrey Lane Apartments maintenance man. Johnson explained that he pushed the maintenance man because he grabbed Johnson while he was walking away.
In conclusion, the State thoroughly and methodically produced evidence linking Johnson to each count.
II. Jury's Ability to Compartmentalize the Evidence
Although the trial court made no specific finding on this issue, we hold that Johnson's assertion that "[t]he jury may have used evidence of the burglary offenses under . . . cause number 05-1-02255-1 to find guilt on the attempted burglary and assault offenses under . . . cause number 06-1-00326-1" is untenable. Br. of Appellant 15.
The jury should not have had difficulty compartmentalizing the evidence against Johnson, even though the manner in which the burglaries were committed or attempted was similar (i.e., breaking in through a window), the residences burglarized were all in Lacey or Olympia, and the burglaries all took place between September 2005 and February 2006. For example, the burglaries occurred on different days, at separate locations, and had separate victims. The victims testified only as to the burglary that had been committed at her or his residence. Except for Tangelette Johnson and Officer Johnson, the other witnesses also testified only to one crime each. Given that the burglaries occurred at different locations and on different dates, the jury should not have had difficulties discerning which parts of Tangelette Johnson's and Officer Johnson's testimonies related to which crime. Finally, the issues were relatively simple and the trial lasted only four days.
The jury verdict itself demonstrates that the jury compartmentalized the evidence. The jury's acquittal of Johnson on count V proves that it did not cumulate the evidence and did not infer guilt on count V based on the evidence on the other counts. Johnson's acquittal on count V also supports the inference that the jury compartmentalized the evidence referring to counts VIII and IX, a task especially easy in view of Johnson's admission that he committed the crimes charged under those counts.
The jury's ability to compartmentalize the evidence ensured that Johnson was able to effectively defend the charges against him. "The likelihood that joinder will cause a jury to be confused as to the [accused person's] defenses is very small where the defense is identical on each charge." Russell, 125 Wn.2d at 64-65. Johnson's defense on all burglary (including attempted burglary) charges was general denial, and his strategy was to attack the witnesses' credibility.
As to count IX, the trial court acknowledged that the defense would attempt to portray the second degree assault as self-defense. Therefore, it ordered that "[i]f [Johnson] elects to testify as to the assault count . . ., and assert self-defense, the prosecutor's cross-examination will be confined to the scope of direct examination." CP (cause no. 05-1-02255-1) at 65. Despite the court's assurances, Johnson chose not to testify. Moreover, Johnson cross-examined the assault victim only in a cursory manner about the circumstances of the assault. But Johnson requested, and the trial court granted, a self-defense jury instruction. Deciding not to take advantage of these guarantees in a meaningful way, Johnson is not now to be heard complaining that "the evidence of [his] involvement in the numerous burglary offenses under [cause number 05-1-02255-1] caused the jury to infer criminal disposition on [Johnson's part] and thus more likely to reject his self-defense claim." Br. of Appellant at 16. We hold that Johnson was not prejudiced in presenting his defenses.
The relevant part of the record reads as follows:
Q. Now, after you saw the person standing there, you told him to get the "F" out of here?
A. Yes.
Q. All right. And then you took a step towards him?
A. Yes, I did.
Q. And then you said, at that point, that's when he hit you?
A. Yes. 3 RP
at 354.
III. Cross-admissibility of the Evidence
The trial court found that "[e]vidence apparently is cross[-]admissible. Even if it were not, this is not sufficient basis for severance." CP (cause no. 05-1-02255-1) at 65. Johnson contends, "evidence that [he] allegedly assaulted another under the [06-1-00326-1] cause number was of no consequence to the proof of any of the essential elements of the burglaries under the [05-1-02255-1] cause number." Br. of Appellant at 17. Even if Johnson were correct on this point, he fails to address the cross-admissibility of the evidence on counts I through VII in a separate trial on counts VIII and IX.
Under ER 404(b), evidence of other crimes is not admissible to prove conduct on a particular occasion. But evidence of other crimes may "be admissible for other purposes, such as proof of . . . intent," if the probative value of such evidence outweighs its prejudicial effect. ER 404(b); State v. Lough, 125 Wn.2d 847, 853, 889 P.2d 487 (1995). Johnson's intent was at issue here because he denied attempting to break into the count VIII burglary victim's apartment with the intent to commit "a crime against . . . property therein." See RCW 9A.52.020. Instead, Johnson explained that he intended to retrieve some clothes he left at the victim's house several weeks earlier. Given Johnson's explanation as to the purpose of his attempt to break into the victim's apartment, it would have been relevant in a separate trial on counts VIII and IX that Johnson participated in the prior months in a series of burglaries in which the perpetrator used the same method of entry.
Johnson admitted only to being the get-away driver in the burglaries charged under counts I through IV, and he claimed that his intent in attempting the break-in to count VI victim's house was merely to see if his accomplice, who was supposed to commit the burglary, was inside. But, despite alleging that his role in burglaries was merely that of the lookout and get-away driver, Johnson's fingerprints were found on the edge of the window that was the break-in point into count VII burglary victim's mobile home.
Although relevant, the probative value of the evidence on counts IVII might not have outweighed the potential prejudice to Johnson in a separate trial on counts VIII and IX. But this is a balancing act we do not have to perform here, as cross-admissibility alone is not determinative of prejudice in a joinder determination. State v. Bythrow, 114 Wn.2d 713, 721, 790 P.2d 154 (1990). Even if evidence of one count would not be admissible in a separate trial on the other count, severance is not automatically required. Bythrow, 114 Wn.2d at 720. In determining the prejudice to the defendant in such circumstances, the Bythrow court focused on the jury's ability to compartmentalize the evidence of each offense and on the strength of the evidence. Bythrow, 114 Wn.2d at 721. Here, the State presented strong evidence against Johnson on all counts, although the evidence on count V was merely circumstantial. Also, the jury was able to and indeed compartmentalized the evidence against Johnson. Therefore, even if the evidence on counts I-VII would not have been admissible in a separate trial on counts VIII and IX, Johnson still did not prove prejudice.
IV. Adequacy of the Jury Instructions
The trial court instructed the jury "[a] separate crime is charged in each count. You must decide each count separately. Your verdict on one count should not control your verdict on any other count." CP (cause no. 05-1-02255-1) at 88. This instruction is sufficient to eliminate any prejudice resulting from joinder of charges. State v. Cotten, 75 Wn. App. 669, 688, 879 P.2d 971 (1994), review denied, 126 Wn.2d 1004 (1995).
V. Judicial Economy
Finally, Johnson argues "judicial economy was not served because the primary witnesses in the two cause numbers had nothing in common." Br. of Appellant at 16. We disagree. Instead of two juries, the trial court empanelled only one jury; instead of two trials, the trial court held only one trial. The single trial allowed the trial court to conserve the limited financial resources available to both it and the prosecution, while also promoting better calendar management. Although most witnesses testified only as to one crime each, Tangelette Johnson and Officer Johnson both testified as to several charges. Given that the other factors also weighed in favor of joinder, we find that the trial court's decision promoted the public policy of conserving judicial and prosecution resources and expedition in judicial administration at no expense to Johnson and his right to a fair trial. See Hentz, 32 Wn. App. at 189.
In sum, we hold that Johnson failed to demonstrate prejudice at the time he argued his motion to sever and he likewise failed to demonstrate prejudice here.
Affirmed.
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.
HOUGHTON, C.J., and PENOYAR, J., concur.