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People v. Washington.

2022 COA 62. No. 19CA1332.  Criminal Procedure—Permissive Joinder—Harmless Error—Crim. P. 8—Crim. P. 14.

June 9, 2022

Defendant was arrested for shooting and killing Chavez during a barbeque that defendant attended with his girlfriend. Police obtained a search warrant for the vehicle defendant was seated in when he was arrested and for defendant’s home, and they found drugs and drug paraphernalia in both locations. The prosecution charged defendant with first-degree murder, and the court issued a mandatory protection order prohibiting him from contacting or communicating with his girlfriend. The prosecution later amended the complaint to include 11 counts of possession with intent to sell or distribute a controlled substance. While in jail awaiting trial, defendant wrote a letter to his girlfriend and called her, discussing her communications with the police, his charges, and possible defenses. As a result, the prosecution charged defendant with violation of a protection order and tampering with a witness or victim. In addition, an inmate housed at the jail with defendant told the prosecution that defendant told two other men at the jail that “he needed to get rid of [his girlfriend].” The prosecution further amended the complaint to include two counts of solicitation to commit murder in the first degree. Defendant filed a pretrial motion to sever, arguing improper joinder under Crim. P. 8 and that he was entitled to relief from prejudicial joinder under Crim. P. 14. The trial court denied the motion, and defendant was convicted of second degree murder, 10 counts of possession with intent to sell or distribute a controlled substance, tampering with a witness or victim, and violation of a protection order.

On appeal, defendant argued that the trial court reversibly erred by joining his murder and drug charges under Crim. P. 8(a)(2), which permits joinder of offenses in a single charging document if they are of the same or similar character or are based on acts or transactions connected together or constituting parts of a common scheme or plan. The Court of Appeals first determined that misjoinder under Rule 8 is subject to harmless error review. Defendant maintained that any error was not harmless because the evidence would not have been cross-admissible had the cases been tried separately. However, even if the evidence was not cross-admissible, any error was harmless because (1) the evidence against defendant was overwhelming, (2) the trial court instructed the jury to consider the evidence and the law applicable to each count separately, and (3) the trial court did not abuse its discretion by denying defendant’s motion to sever under Crim. P. 14.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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