State v. Martinez ( 2024 )

FILE THIS OPINION WAS FILED
FOR RECORD AT 8 A.M. ON
JANUARY 18, 2024
IN CLERK’S OFFICE
SUPREME COURT, STATE OF WASHINGTON
JANUARY 18, 2024
ERIN L. LENNON
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASHINGTON, )
) No. 101124-5
Respondent, ) (consol. w/101279-9)
)
v. )
)
EDUARDO S. MARTINEZ, ) En Banc
)
Petitioner, )
_______________________________________)
) Filed : January 18, 2024
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
ALEJANDRO S. MARTINEZ, )
)
Petitioner, )
_______________________________________)
MADSEN, J.—This is a consolidated case requiring us to determine whether the
trial court abused its discretion in joining the cases of two brothers, Alejandro S.
No. 101124-5 (consol. w/101279-9)
Martinez and Eduardo S. Martinez, who were charged with sexually abusing their
younger stepbrothers in the family home at separate times. Washington’s CrR 4.3
permits joinder of offenses and defendants. If properly joined under CrR 4.3(b), the
charges are consolidated for trial unless the court orders severance. CrR 4.3.1(a).
The trial court granted the State’s motion for joinder, finding that the brothers
failed to identify any prejudice so as to outweigh the substantial interest in joining the
cases. Both brothers appealed, arguing among other things, that the trial court abused its
discretion in ordering joinder. The Court of Appeals affirmed each brother’s convictions.
Both Alejandro 1 and Eduardo sought review here.
We hold that the trial court abused its discretion when it improperly joined the two
cases without first meeting at least one of the two bases for joinder as defined in CrR
4.3(b)(3) and that Alejandro was prejudiced by the joinder. We reverse the Court of
Appeals in part and remand for further proceedings.
BACKGROUND
Alejandro Martinez and his younger half-brother Eduardo Salgado Martinez were
born in Mexico. In 1993, their mother married a man with three sons, E.P., J.P., and
R.P. 2 These children were stepbrothers to Alejandro and Eduardo. That same year, the
1
Given both petitioners share a common surname, we refer to them using their first names.
Alejandro uses the name “Alex” in some of his supplemental briefing here and has gone by that
name for some time. Because “Alejandro” is in the case caption, we use that name to avoid
confusion.
2
The names of the minor victims are abbreviated throughout.
2
No. 101124-5 (consol. w/101279-9)
family moved to the United States and settled in Prosser, Washington. Shortly thereafter,
the family broke up; E.P., J.P., and R.P. moved with their father to a nearby town.
In September 1998, J.P. admitted to drawing an explicit picture depicting an adult
man having anal sex with an adult woman. J.P. also disclosed that he was sexually
abused. J.P. told the officer investigating the claim that he had been sexually abused by
Eduardo. Thereafter, E.P. revealed that both Eduardo and Alejandro sexually abused
him.
The officer attempted to locate Alejandro and Eduardo. Eventually, the officer
traveled to a produce plant where Alejandro worked. Once there, the plant manager
stated that they employed a “Ricardo Martinez.” Ricardo was revealed to be Alejandro.
When the officer met with Alejandro, they discussed the abuse allegation and Alejandro
agreed to provide a written statement, which read, “Me, Alejandro, did that with [E.] one
time.” 2 Rep. of Proc. (RP) (No. 37343-6), at 641, 643. Alejandro did not indicate what
“that” was. Id. at 741. The officer stated that Alejandro would be charged with first
degree child rape but did not arrest Alejandro or book him into jail due to overcrowding.
Alejandro was charged with one count of rape of a child in the first degree against
E.P. Eduardo was charged with two counts of rape of a child in the first degree, one
count against E.P. and another count against J.P. Neither Alejandro nor Eduardo
appeared for their court hearing, and warrants were subsequently issued for their arrests.
The brothers disappeared for approximately 20 years, settling in Connecticut. In
November 2018, Eduardo was involved in a car accident. As a result, the Connecticut
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No. 101124-5 (consol. w/101279-9)
police discovered the outstanding Washington warrants and associated charges relating to
child rape. The original investigating officer was contacted and traveled to Connecticut
to transport Eduardo back to Washington. During transport, Eduardo told the officer that
he had returned to Washington, but when he learned of the investigation, he went back to
Connecticut.
On May 13, 2019, the prosecution proceeded to trial solely against Eduardo. This
trial ended in a mistrial based on a violation of Eduardo’s right to counsel. Around this
time, Alejandro learned of the charge against him and returned to Washington to resolve
the matter.
After Eduardo’s trial ended in a mistrial, the State moved to join Alejandro’s case
with Eduardo’s case. Over each brother’s objections, the trial court granted the State’s
motion for joinder and found that the brothers failed to identify any specific prejudice so
as to “outweigh[] the substantial interest in joinder.” Clerk’s Papers (No. 37343-6) (CP)
at 7.
Following two subsequent mistrials, the parties proceeded to a fourth trial in
October 2019. There, E.P. testified that Alejandro raped him only once. J.P. testified
that Alejandro never molested him. Both E.P. and J.P. testified that Eduardo sexually
abused them on multiple occasions. The brothers were found guilty as charged.
Alejandro and Eduardo appealed. The Court of Appeals affirmed their convictions
but remanded for resentencing. The court held that no abuse of discretion occurred when
the brothers’ cases were joined. State v. Martinez, 22 Wn. App. 2d 621, 639, 512 P.3d 14
No. 101124-5 (consol. w/101279-9)
(2022) (published in part); Martinez, No. 37344-4-III, slip op. (unpublished portion) at
21-22, https://www.courts.wa.gov/opinions/pdf/373444_unp.pdf. The brothers sought
discretionary review here. We granted review and consolidated the cases. 200 Wn.2d
1016 (2022).
ANALYSIS
1. Standard of Review
A trial court’s decision on a pretrial motion for joinder is reviewed for abuse of
discretion. State v. Bluford, 188 Wn.2d 298, 305, 393 P.3d 1219 (2017). 3 A trial court
abuses its discretion when its decision is “‘manifestly unreasonable, or exercised on
untenable grounds, or for untenable reasons.’” State v. Barry, 184 Wn. App. 790, 802,
339 P.3d 200 (2014) (quoting State v. Rice, 48 Wn. App. 7, 11, 737 P.2d 726 (1987)).
“[J]oinder should not be allowed . . . if it will clearly cause undue prejudice to the
defendant.” Bluford, 188 Wn.2d at 307. A reviewing court considers only the facts
known to the trial judge when the joinder motion is argued, not facts later developed at
trial. Id. at 310.
3
We recognize that there has been some confusion over the proper standard of review when
reviewing CrR 4.3 joinder decisions. Some cases have stated that these issues are reviewed de
novo, apparently stemming from a statement from State v. Hentz, 32 Wn. App. 186, 189, 647
P.2d 39 (1982), rev’d on other grounds, 99 Wn.2d 538, 663 P.2d 476 (1983). We take this
opportunity to clear up any remaining uncertainty: the standard of review of trial court motions
granting or denying joinder motions is abuse of discretion. Bluford, 188 Wn.2d 305; State v.
Thompson, 88 Wn.2d 518, 525, 564 P.2d 315 (1977), overruled on other grounds by State v.
Thornton, 119 Wn.2d 578, 835 P.2d 216 (1992). Because joinder must first be allowable under
CrR 4.3, part of a reviewing court’s analysis is interpreting court rules, which is a legal question
and subject to de novo review. Bluford, 188 Wn.2d at 310; Nevers v. Fireside, Inc., 133 Wn.2d
804, 947 P.2d 721 (1997) (“[J]ust as the construction of a statute is a matter of law requiring de
novo review, so is the interpretation of a court rule.”).
5
No. 101124-5 (consol. w/101279-9)
Joinder is governed by CrR 4.3. Much of our existing case law discusses joinder
of offenses, which is governed by CrR 4.3(a). That rule also covers joinder of
defendants. See CrR 4.3(b). Existing case law interpreting the rule typically involves
defendants who are appealing the denial of a motion seeking severance after their
separate offenses are joined. However, Alejandro and Eduardo did not seek severance;
rather, they objected to and later sought review of the trial court’s grant of the State’s
motion to consolidate their cases. The rules are analyzed similarly. In Bluford, this court
clarified that both prejudice to the defendant and judicial economy are relevant
considerations in joinder decisions. 188 Wn.2d at 305. Although Bluford analyzed CrR
4.3(a), the analysis is similar under CrR 4.3(b).
2. The Trial Court Abused its Discretion by Joining the Brothers’ Cases
Primarily at issue in this case is whether the trial court abused its discretion in
joining the cases of these two brothers. When analyzing whether joinder is proper, we
look at whether the defendants’ cases were joined in accordance with CrR 4.3(b), the rule
governing joinder of defendants, provides:
Two or more defendants may be joined in the same charging document:
....
(3) When, even if conspiracy is not charged and all of the defendants
are not charged in each count, it is alleged that the several offenses charged:
(i) were part of a common scheme or plan; or
(ii) were so closely connected in respect to time, place and occasion
that it would be difficult to separate proof of one charge from proof of the
others.
(Emphasis added.)
6
No. 101124-5 (consol. w/101279-9)
After Eduardo’s first trial ended in a mistrial, the State filed a motion to join its
cases against Alejandro and Eduardo. The State argued that “[t]he charges and the
evidence in the defendants’ cases are virtually identical” and that “proceeding with one
trial, as opposed to two, would be beneficial and minimize the number of occasions that
J.P. and E.P. must testify as to the sexual abuse they suffered as young children.” CP at
304. The State further argued that the alleged offenses are “so closely connected in time,
place, and occasion that it is impossible to separate proof of the charge against Alejandro
from proof of the charges against Eduardo.” Id. at 303. Relying on Bluford, Alejandro
argued that prejudice to a defendant is relevant to a decision on joinder just as it is to a
decision on severance. 4 Id. at 4-6.
At the hearing on the motion for joinder, the State argued that Alejandro’s and
Eduardo’s defenses were consistent because Eduardo testified at his first trial and denied
molesting J.P. and E.P. Alejandro argued that his defense was inconsistent with
Eduardo’s defense because he was not present during the original interview in 1998 that
led to the constitutional violation and mistrial. Alejandro also argued he would be
prejudiced because he did not know whether Eduardo would testify at the second trial.
The trial court granted the State’s joinder motion. In its order, the trial court judge
concluded that “[t]here is no manifest prejudice that would result in the requested joinder
4
The petitioners both argue that the trial court erred when it granted joinder, however, they set
forth differing bases for the error. Alejandro offered a rule-based argument, contending his case
was improperly joined with Eduardo’s case under CrR 4.3. Meanwhile Eduardo set forth a
constitutional argument, contending joinder violated his constitutional right to due process. We
address both arguments in turn.
7
No. 101124-5 (consol. w/101279-9)
and the resulting mandatory consolidation of these matters” because “Bluford’s language,
when considered in the context of the facts of that case (the joinder of multiple disparate
charges against an individual defendant), does not compel a different result in the matter
at bar.” Id. at 8. The trial court noted that “difficulties that foreseeably inure in mounting
a joint defense . . . , while concededly not insignificant . . . , are legally insufficient as a
basis to resist the motion.” Id.
In his petition for review here, Alejandro argues that no Washington court has
previously considered whether two defendants may be joined for trial based on separate
rapes that occurred at different times. He contends that when two defendants are not
charged as accomplices or conspirators, CrR 4.3(b)(3) provides only two possible bases
for joinder—neither of which was satisfied in his case. In its briefing to the Court of
Appeals, the State contends that Alejandro and Eduardo devised a common scheme or
plan to sexually abuse E.P. and J.P. when their mother and stepfather were away from the
home. 5 The State maintains that the rapes were closely connected in respect to time,
place, and occasion because both victims were raped one after the other, in the same
trailer, and by their older stepbrothers.
The trial judge’s order failed to meaningfully analyze CrR 4.3(b), stating, “Upon
initial review . . . Superior Court Criminal Rule . . . 4.3(b), and the existing caselaw [sic],
including but not limited to State v. Moses, [193 Wn. App. 341, 360, 372 P.3d 147,
review denied, 186 Wn.2d 1007 (2016)] all aug[u]r in favor of joinder.” Id. at 7. The
5
The State incorporated its arguments and briefing on the issue of joinder from its brief to the
Court of Appeals in its supplemental briefing in this court.
8
No. 101124-5 (consol. w/101279-9)
judge then went on to address the issue of prejudice. While prejudice is a consideration
in determining joinder, CrR 4.3 dictates when a court may order joinder. The trial court
failed to discuss whether Alejandro’s rape charge against E.P. and Eduardo’s rape
charges against E.P. and J.P. were part of a common scheme or plan or were closely
connected.
While CrR 4.3 is aimed at judicial economy, the rule cannot be interpreted beyond
its plain language. See Bluford, 188 Wn.2d at 310-11. The plain language of the rule
states that unless a conspiracy is charged, defendants may be joined only if the charges
were part of a common scheme or plan or if the charges were closely connected in respect
to time, place, and occasion. When determining the existence of a common plan, we
should look to factors such as whether the events all occurred in the same place, within a
short time period, and with the same modus operandi. United States v. Scott, 413 F.2d
932, 935 (7th Cir. 1969); see State v. Kinsey, 20 Wn. App. 299, 305, 579 P.2d 1347(1978) (defendant who was charged with aiding and abetting the sale of heroin was not
prejudiced by being tried with another defendant who was charged with aiding and
abetting sale of heroin in a separate transaction since both sales occurred in the same
apartment and were handled in the same manner). There should be such a substantial
overlap in the evidence that it would be difficult to separate proof of one offense from the
other. Jackson v. United States, 623 A.2d 571, 581 (D.C. 1993).
Unlike joinder of offenses, joinder of defendants should not be granted when the
offenses charged are solely of the same or similar character. United States v. Ashley, 905
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No. 101124-5 (consol. w/101279-9)
F. Supp. 1146, 1163 (E.D.N.Y. 1995). There should be some greater “logical
relationship” between the occurrences. United States v. Sarkisian, 197 F.3d 966, 976 (9th
Cir. 1999). State v. Harkness explores the nuances of a common scheme or plan in the
context of joinder. 196 Wash. 234, 239, 82 P.2d 541 (1938). In Harkness, two brothers
and a physician were charged with multiple counts of forging prescriptions to procure
narcotics. Id. at 235-36. As to the physician, this court determined that the charges were
properly joined with either brother “because of the close connection between the issue of
a false prescription and its presentation with knowledge of its falsity.” Id. at 238. The
brothers, however, were improperly joined. Id. The court reasoned that “[w]hile [the
brothers] are charged with crimes of the same class, the crimes are alleged to have been
committed independently and at different times. The crimes are related to each other only
by the fact that the prescriptions used were issued by the same physician.” Id. (emphasis
added).
As Harkness illustrates, the commonality of defendants’ actions is not the focus;
rather, it is whether those acts were committed together. Id. While Alejandro and
Eduardo committed similar acts, each brother acted independently and was charged with
separate criminal acts occurring at separate times. The charges against Alejandro and
Eduardo are related to each other only by the fact that their victims were similar—their
younger stepbrothers. Moreover, Alejandro allegedly molested E.P. once and there was
no claim that he ever molested J.P., while Eduardo was accused of multiple acts of
molestation against both E.P. and J.P. The State fails to point to evidence in the record
10
No. 101124-5 (consol. w/101279-9)
that shows the brothers acted in concert or that there was aid or collusion between the
brothers. See CrR 4.3(b)(3). Vague references to both brothers are not sufficient to
affirmatively demonstrate a coordination of efforts. As the Court of Appeals stated in
State v. Harris, “[T]he State has fallen into the common error of equating acts and
circumstances which are merely similar in nature with the more narrow common scheme
or plan.” 36 Wn. App. 746, 751, 677 P.2d 202 (1984). While each rape occurred when
the children’s parents were not home, Alejandro and Eduardo did not commit the
offenses together or at the same time. Alejandro committed rape independently from
Eduardo and was accused of abusing only E.P. Eduardo committed rape independently
from Alejandro when he sexually abused both J.P. and E.P. See State v. Wilson, 1 Wn.
App. 2d 73, 81, 404 P.3d 76 (2017) (holding incidents of sexual abuse of two victims
were not “‘markedly and substantial similar’” to show a common scheme or plan when
one victim reported recurring incidents of sexual abuse and the second victim reported an
isolated instance (quoting State v. Gresham, 173 Wn.2d 405, 422, 269 P.3d 207 (2012))).
The record does not reflect that the brothers acted together or that they colluded together.
See CrR 4.3(b)(3)(i).
While it may have been burdensome here for the victims to testify more than once
if the cases were not joined, the proof for the charges against Alejandro and Eduardo
were not so difficult to separate as to warrant joinder. See CrR 4.3(b)(3)(ii). Neither
brother was charged with conspiracy. Thus, the joinder requirements of CrR 4.3(b)(3)
were not satisfied.
11
No. 101124-5 (consol. w/101279-9)
A trial court abuses its discretion if it “relies on unsupported facts, takes a view
that no reasonable person would take, applies the wrong legal standard, or bases its ruling
on an erroneous view of the law.” Gildon v. Simon Prop. Grp., Inc., 158 Wn.2d 483,
494, 145 P.3d 1196 (2006); see State v. Smith, 144 Wn. App. 860, 864, 184 P.3d 666(2008) (concluding that a trial court acted without authority when it failed to follow CrR
7.8 procedures). Here, the trial court’s joinder decision was based on an erroneous
reading of CrR 4.3(b), and, therefore, it abused its discretion when it failed to consider
whether there was evidence of a common scheme or plan or whether the evidence against
each brother would be difficult to separate. See Gildon, 158 Wn.2d at 494. However, the
analysis does not stop there; the rule also contemplates the potential for undue prejudice.
Therefore, we take this opportunity to analyze whether Alejandro was prejudiced by the
joinder.
3. Joinder Resulted in Prejudice to Alejandro
An important part of the analysis under CrR 4.3(b) is determining whether
prejudice would result from joining certain cases together while also recognizing the need
for judicial economy. “[J]oinder and severance[] are based on the same underlying
principle, that the defendant receive a fair trial untainted by undue prejudice.” State v.
Bryant, 89 Wn. App. 857, 865, 950 P.2d 1004 (1998); see also Bluford, 188 Wn.2d at
307 (finding that our courts have recognized the close relationship between joinder and
severance and have held that joinder should not be allowed if it will clearly result in
undue prejudice to the defendant). Therefore, it is necessary when analyzing joinder
12
No. 101124-5 (consol. w/101279-9)
under CrR 4.3(b), to also consider prejudice to the defendants. To do otherwise would
overlook the rule’s underlying purpose, which is to provide a defendant with a procedural
safeguard against the potential for manifest prejudice if their case is joined with another.
As the moving party for joinder, the burden is on the State to comply with the
requirements of CrR 4.3(b). It appears that the trial court abused its discretion in granting
joinder under the rule. Nevertheless, when a defendant argues that their right to a fair
trial was violated, as in this case, the burden falls on the defendant to show prejudice. 6
Alejandro argues that joinder of his case with Eduardo’s caused undue prejudice
and urges this court to apply the factor test in Bluford. The State added that all of the
Bluford factors weighed in favor of joining the defendants. However, Moses is the
relevant test for joinder of defendants.
The Court of Appeals determined that Bluford applies to joinder of offenses—not
joinder of defendants. The court recognized that
[the Bluford] factors relate to the risk of prejudice where an individual
defendant offers different defenses to different counts, detracting from the
credibility of the defenses, or where multiple charges against an individual
defendant invite the jury to cumulate evidence or infer a criminal
disposition. They are not necessarily the same risks of prejudice likely to be
present in a joinder-of-defendants situation.
6
The posture of this case is distinct from a motion to sever or a motion to resist joinder at the
beginning of trial. When a defendant resists joinder at the end of trial, they are effectively
arguing that they have been deprived of their right to a fair trial. Therefore, the burden shifts to
the defendant to show they were prejudiced by the joinder. See State v. Grenning, 169 Wn.2d
47, 57, 234 P.3d 169 (2010) (“An error in a trial is not grounds for reversal unless the error was
prejudicial to the defendant.”).
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No. 101124-5 (consol. w/101279-9)
Martinez, 22 Wn. App. 2d at 635 (emphasis added). Instead, the court considered the
Moses factors for determining specific prejudice when multiple defendants request
severance. That case clarified that specific prejudice resulting from joinder of a
defendant’s trial with a codefendant may be demonstrated by showing
“(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 related to
each defendant when determining each defendant’s innocence or guilt; (3) a
co-defendant’s statement inculpating the moving defendant; (4) or gross
disparity in the weight of the evidence against the defendants.”
Moses, 193 Wn. App. at 360 (internal quotation marks omitted) (quoting State v. Canedo-
Astorga, 79 Wn. App. 518, 528, 903 P.2d 500 (1995)).
Here, Alejandro contends that Moses is inapplicable because he and Eduardo were
not charged as accomplices or conspirators to the same crime; they were charged with
wholly separate criminal acts. Relying on RCW 10.37.060, 7 Alejandro claims that
Bluford equally applies to joinder of defendants. But that statute speaks only to the
procedure in which charges may be joined and explains how offenses may be joined.
The statute does not address prejudice.
Alejandro also cites State v. Galeana Ramirez, 7 Wn. App. 2d 277, 432 P.3d 454(2019) (published in part), as supporting the application of Bluford. Ramirez, however, is
a partially published opinion, and the support Alejandro cites is in the unpublished
7
RCW 10.37.060 provides that “[w]hen there are several charges against any . . . persons, for the
same act or transaction, or for two or more acts or transactions connected together, or for two or
more acts or transactions of the same class of crimes or offenses, which may be properly joined,
instead of having several indictments or informations the whole may be joined in one indictment,
or information, in separate counts.”
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No. 101124-5 (consol. w/101279-9)
portion of the opinion. Under GR 14.1(a), “[u]npublished opinions of the Court of
Appeals have no precedential value and are not binding on any court.” We believe that
Moses provides the more relevant test when considering joinder of defendants; however,
we also note that Moses was considering severance rather than joinder and should be read
in conjunction with the requirements for joinder of defendants set forth in CrR 4.3(b).
In Moses, the Court of Appeals affirmed the denial of a motion to sever the cases
of two criminal defendants. 193 Wn. App. at 359-61. When caring for their five-year-
old family member, the defendants physically punished and withheld food from the child,
resulting in malnourishment and hospitalization. Id. at 348. The defendants were
charged and convicted of criminal mistreatment. Id. at 346. On appeal, one defendant
argued that the trial court erred when it declined to sever the case “because redacting [the
other defendant]’s portion of their joint interview with [a detective] did not eliminate all
prejudice to him when it was admitted at trial against [his codefendant].” Id. at 359.
Recognizing that severance and joinder are analyzed in a similar manner, the Court of
Appeals applied the four factors listed above and concluded that the trial court did not
abuse its discretion in denying the motion to sever. Id. at 361. The test in Moses should
similarly be applied here.
A. Application of the Moses Factors to Alejandro
Applying the Moses factors, we conclude that joinder prejudiced Alejandro. We
address each factor in turn. First, Alejandro and Eduardo did not have antagonistic
defenses. Both brothers denied the charges that they sexually abused either E.P or J.P.
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No. 101124-5 (consol. w/101279-9)
Second, “the mere fact that evidence admissible against one defendant would not
be admissible against a codefendant if the latter were tried alone does not necessitate
severance.” State v. Bythrow, 114 Wn.2d 713, 721, 790 P.2d 154 (1990). Instead, we
“focus on the ability of the jury to isolate the evidence.” Id. Here, the trial court’s
instructions to the jury are relevant for purposes of our analysis. The trial court provided
16 jury instructions. The first instruction read, in relevant part, that “[e]ach party is
entitled to the benefit of all of the evidence.” CP at 130 (emphasis added). This
instruction did not require the jury to segregate the evidence as to each brother’s crime.
The fourth instruction, stated, in part, “Your verdict on one count as to one defendant
should not control your verdict on any other count or as to the other defendant.” Id. at
134. But, this jury instruction did not preclude the jury from considering evidence of one
brother’s rapes as evidence against the other. The jury instructions, E.P.’s and J.P.’s
lengthy testimonies, the large amount and complexity of evidence, and the disparity in
the weight of the evidence between Eduardo and Alejandro strongly support Alejandro’s
claim of undue prejudice.
ER 403 is also relevant here and provides that “evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice, confusion
of the issues, or misleading the jury.” (Emphasis added.) The Court of Appeals
acknowledged that “ER 403 could apply” in this context. Martinez, 22 Wn. App. 2d at
634 (emphasis added). The rule would prohibit evidence of Eduardo’s rapes at a separate
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No. 101124-5 (consol. w/101279-9)
trial for Alejandro absent evidence that the brothers acted in concert or as part of a
common scheme or plan.
Further, while Eduardo’s confession to law enforcement that he fled Washington
when he learned of the investigation into the allegations of sexual abuse did not directly
inculpate Alejandro, his confession implicitly incriminated Alejandro because it
suggested that Alejandro also fled to Connecticut when he learned of the investigation.
Because Eduardo’s statement to law enforcement implicitly inculpated Alejandro, this
evidence also weighs against joinder.
Finally, as to the fourth factor, there is a gross disparity in the weight of the
evidence between Alejandro and Eduardo. When one case is remarkably stronger than
the other, severance is proper. State v. Russell, 125 Wn.2d 24, 63-64, 882 P.2d 747(1994). Based on the record, it is clear that the case against Eduardo is stronger than that
against Alejandro. Both E.P. and J.P. alleged that Eduardo sexually abused them. They
both heard each other crying during Eduardo’s abuse, and E.P. recalled a specific
moment where Eduardo raped J.P. in the bathroom. On the other hand, J.P. alleged and
testified that Alejandro never abused him. Only E.P. alleged that Alejandro raped him
and that he could only recall one incident in which the abuse occurred, and J.P. did not
witness Alejandro raping E.P.
We conclude that joinder of Alejandro’s trial with Eduardo’s trial caused undue
prejudice to Alejandro under the Moses factors. 8
8
Though Moses is concerned with joinder of defendants, we could reach the same result under
Bluford. First, the prosecution’s case against Eduardo for first degree child rape was stronger
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No. 101124-5 (consol. w/101279-9)
4. Eduardo’s Due Process Rights Were Not Violated
Eduardo claims that the notion of fundamental fairness is essential to the due
process clause of the United States Constitution and the Constitution of the State of
Washington. U.S. CONST. amend. XIV, § 1; WASH. CONST. art. I, § 3. He argues he was
denied fundamental fairness when the State moved to consolidate the two cases after a
mistrial occurred toward the end of trial and the court granted the motion. Eduardo
contends the government should not have been allowed to take advantage of a mistake
one of its witnesses made while on the stand that resulted in a mistrial and that
“amount[ed] to a test run” of how the case would go. Pet. for Rev. (No. 101124-5), at 11
(Eduardo Martinez).
This court reviews an alleged constitutional challenge de novo. In re Det. of
Hatfield, 191 Wn. App. 378, 396, 362 P.3d 997 (2015). Although the trial court erred in
granting joinder of the two cases, not every trial error will rise to the level of a
constitutional due process violation. See Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct.
475, 116 L. Ed. 2d 385 (1991) (holding that erroneously admitted evidence in
conjunction with a prejudicial jury instruction did not rise to the level of a due process
than its case against Alejandro. The evidence reveals that Eduardo sexually abused both E.P.
and J.P., while E.P. alleges that Alejandro raped him only once and did not abuse J.P. Because
E.P. and J.P. testified that Eduardo’s conduct was more extensive than Alejandro’s, the strength
of the State’s evidence as to Eduardo is greater. Second, the brothers’ defenses are clear: they
both denied sexually abusing their stepbrothers. Similar to Moses, the jury instructions under the
third Bluford factor permitted the jury to consider the evidence of one brother’s rapes and
consider it against the other brother. Fourth, the evidence is not cross admissible because there is
no evidence of a common scheme or plan between Alejandro and Eduardo to sexually abuse E.P.
and J.P.
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No. 101124-5 (consol. w/101279-9)
violation); United States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992) (noting that
when evidence is excluded on the basis of an improper application of state evidence
rules, the defendant must demonstrate the excluded evidence was important to his
defense to find a constitutional violation).
Eduardo cites to Oregon v. Kennedy, 456 U.S. 667, 102 S. Ct. 2083, 72 L. Ed. 2d
416 (1982), to support his statement that the police officer acted intentionally in hopes of
forcing Eduardo’s attorney into “making what has been described as a Ho[b]son’s
choice.” Pet. for Rev. (No. 101124-5), at 11 (Eduardo Martinez). The United States
Supreme Court in Kennedy held, “Only where the governmental conduct in question is
intended to ‘goad’ the defendant into moving for a mistrial may a defendant raise the bar
of double jeopardy to a second trial after having succeeded in aborting the first on his
own motion.” 456 U.S. at 676. Although Eduardo is not specifically challenging the trial
judge’s decision not to bar retrial based on double jeopardy, even if he was, Eduardo still
fails to show that the witness intended to cause a mistrial or acted in bad faith. In fact,
the trial court judge stated that he did not think the witness had any bad intent or poor
motive when he made the statements warranting a mistrial. 1 RP (No. 37344-4) (May 13,
2019) at 241. Thus, we find that Eduardo’s due process rights under both the United
States Constitution and Washington Constitution were not violated.
Eduardo also cites State v. Lively, 130 Wn.2d 1, 19, 921 P.2d 1035 (1996), arguing
that the court must consider the totality of the circumstances in determining whether a
defendant has been denied “fundamental fairness” by the State’s action. In Lively, the
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No. 101124-5 (consol. w/101279-9)
defendant claimed her due process rights were violated based on outrageous
governmental conduct. There, among other things, police officers were actively luring
recovering alcoholics to commit illegal acts. This court found that their actions
constituted outrageous conduct. We noted that mere deceptive government action alone
is not sufficient to find reversible error. Rather, due process protection “is reserved for
only the most egregious circumstances.” Id. at 20. Lively is not analogous to the facts
here. The officer here was not instigating crime but was a witness on the stand. The trial
judge found that the officer’s offending statements were made by mistake. This conduct
falls far short of the outrageous conduct in Lively. We do not find the actions in this case
violated Eduardo’s due process rights.
5. Joinder Did Not Prejudice Eduardo
In his supplemental brief, Eduardo also argues the trial court erred when it failed
to follow CrR 4.3(b) when it joined his case with Alejandro’s. As discussed above, the
trial court failed to meaningfully analyze the requirements of CrR 4.3(b)(3) to determine
whether there was a common scheme or plan or the offenses were so closely connected in
respect to time, place, and occasion that it would be difficult to separate proof on one
charge from proof of the others and whether the State established that no undue prejudice
would result from joining the brothers for trial.
Applying the Moses factors, Eduardo and Alejandro did not have antagonistic
defenses, which weighs against finding prejudice. However, the jury instructions did not
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No. 101124-5 (consol. w/101279-9)
prohibit the jury from considering evidence of one brother’s rapes as evidence against the
other and thus the second factor weighs in favor of finding prejudice.
The third factor, which looks at whether a codefendant made a statement
inculpating the defendant, does not weigh in favor of finding prejudice. As described
above, it was Eduardo who made an incriminating statement potentially prejudicing
Alejandro by suggesting Alejandro may have fled to Connecticut with him. But
Alejandro made no statements inculpating Eduardo.
Lastly, it is true a gross disparity in the weight of the evidence against the
defendant and codefendant exists, however, the weight of the evidence in this case is
against Eduardo. See State v. Embry, 171 Wn. App. 714, 731, 287 P.3d 648 (2012)
(finding that the defendant was not prejudiced by a joint trial because there was strong
evidence admissible against him whether or not he was jointly tried). Here, Eduardo was
convicted of two counts of rape of a child in the first degree, both E.P. and J.P. testified
that they were sexually abused by Eduardo on multiple occasions, whereas only E.P.
testified that he was sexually abused by Alejandro on one occasion. Considering all the
factors together, we find no prejudice.
CONCLUSION
CrR 4.3(b) sets forth factors in which joinder of defendants is appropriate.
Multiple defendants may be joined if the offenses were part of a common scheme or plan
or were so closely connected in respect to time, place, and occasion. We find that
Alejandro, but not Eduardo, was prejudiced by the joinder. We also hold that Eduardo’s
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No. 101124-5 (consol. w/101279-9)
constitutional right to due process under the Washington or United States Constitutions
was not violated by the trial judge’s error in joining the two cases. We reverse the Court
of Appeals in part and remand Alejandro’s case to the trial court for further proceedings.
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WE CONCUR:
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Okrent, J.P.T.
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