E-FILED ,13:54 Scott G. Weber, Clerk Clark County IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF CLARK

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1 EHLE from: Prosecutig AttomeyUames Smlth\SMsPAJ0000.tff E-FILED 0-0-0,: Scott G. Weber, Clerk Clark Couty IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF CLARK 0 STATE OF WASHINGTON, Plaitiff, v. BRENT WARD LUYSTER, Defedat. I. Itroductio No RESPONSE TO MOTION TO SEVER 0 The defedat has filed a motio, pursuat to CrR.(b), requestig this Court sever the several charges related to his February jail escape attempt ad hold separate jury trials. However, severace is ot appropriate give the facts of the case ad the relevat legal stadard. The Court should therefore dey the defedat's motio. U. Factual Backgroud The defedat is charged by ameded iformatio with ie couts. The first six couts stem from a icidet o July,0 where the defedat fatally shot persos ad severely RESPONSE TO MOTION TO SEVER - 0 FRANKLIN STREET PO BOX 000 VANCOUVER. WASHINGTON -000 (0) - FAX: (0) -0 MAD

2 wouded a fourth. The fial three couts, Possessio of a Weapo by a Imate, Malicious Mischief i the First Degree, ad Attempted Escape i the Secod Degree, stem from a icidet o February,0 where the defedat attempted to escape from the Clark Couty Jail. HI. The Escape Attempt Couts Were Properly Joied with the Uderlyig Murder Couts. The defedat argues that the escape attempt couts are ot properly joied with the uderlyig murder couts, however this claim fails i light of the text of CrR. ad the relevat caselaw. CrR.(a) provides that multiple offeses may be joied i a sigle iformatio whe 0 they: () Are of the same of similar character, eve if ot part of a sigle scheme or pla; or () Are based o the same coduct or o a series of acts coected together or costitutio parts of a sigle scheme of pla. 0 The Washigto Supreme Court has recetly reaffirmed that, uder this rule, joider should be "liberally allowed." State v. Bluford. W.d,0-, P.d (0), citig with approval State v. Bryat W.App.,0 P.d 00 (). Uderlyig the rule is Washigto's preferece, sice, for uitary trials, Bluford. W.d at. Here, the escape attempt couts are a "series of acts coected together" with the uderlyig murder couts. This coclusio is both logically ad legally soud. Logically, without the uderlyig murder couts the defedat would ot have bee icarcerated i the Clark Couty Jail ad pedig trial for a case where, at the time, he faced a possible death RESPONSE TO MOTION TO SEVER - 0 FRANKLIN STREET PO BOX 000 VANCOUVER, WASHINGTON -000 (0) - FAX: (0) -0

3 0 0 setece. His arrest for these charges led to his icarceratio, which the led to his choice to attempt to escape. The two icidets are plaily coected together, as the later would ot exist without the former. Thus, the murder couts provide the factual predicate ad motive for the defedat's attempt to escape ad evade justice for his crimes. Turig to the law, i Bryat, the court recogized that bail jumpig charges were, as a matter of law, properly joied with the uderlyig charges as "oe stemmed directly from the other" thereby satisfyig the "coected together" prog of CrR.(a)(). W.App. at. Though the Bryat court oted that federal law employed a three part test for joider of bail jumpig or escape charges, the court ultimately cocluded that "slavish adherece to the federal test" was ot appropriate i Washigto. Id. Istead, the court held that whe a defedat's custody stems directly from the uderlyig substative charge, bail jumpig is properly joied for trial as a matter of law. The oly exceptio is for a "strog showig of prejudice" to the accused. Id. at. The same priciples apply to the escape attempt charges i the istat case ad show that joider is appropriate. For these reasos, the Court should fid that joider is appropriate uder CrR.. The questio the becomes whether a joit trial will ufairly prejudice the defedat. As will be see, the defedat rails to establish ay udue prejudice ad his motio to sever should be deied. The three part federal test is: () the charges are related i time; () the motive for flight was avoidace of prosecutio; ad () the defedat's custody stemmed directly from the substative charges. Uited States v. Rich. F.d ( st Cir. ). RESPONSE TO MOTION TO SEVER - 0 FRANKLIN STREET PO BOX 000 VANCOUVER. WASHINGTON -000 (0) - FAX: (0) -0

4 0 0 IV. The Defedat's Motio to Sever the Escape Attempt Couts Should Be Deied. A trial court's decisio regardig severace of offeses will be reversed oly upo a showig of a maifest abuse of discretio. State v. Watkis. W.App., P.d (^ State v. Brvthow. W.d, 0P.d (0); Bluford, W.dat. The defedat bears the burde of demostratig that a joit trial would be so maifestly prejudicial as to outweigh the cocer of judicial ecoomy. State v. Thompso. W.d,, P.d (); Brvthow. W.d at ; Bluford. W.d at. The courts have repeatedly oted that the defedat's burde to show prejudice is a difficult oe. State v. Alsup. W.App.,, P.d (), citig State v. Grisbv. W.d, P.d(). To determie whether joider causes udue prejudice, the Court must cosider a four factor test: () the stregth of the State's evidece o each cout; () the clarity of defeses as to each cout; () whether the jury is istructed to cosider each cout separately; ad () the admissibility of evidece o the other charges eve if ot joied for trial. Bluford. W.d at -; State v.russell. W.d,, P.d (). Regardig the fourth factor, a lack of cross-admissibility does ot require severace. State v. Kalakoskv. W.d, P.d 0 (); Brvthow. W.d at 0; Bluford. W.d at. Addressig each factor i tur, it is apparet that severace is uecessary ad iappropriate i this case. The State's case is strog o both the uderlyig murder couts ad the escape attempt couts. For the murders, two survivig eyewitesses have described how the defedat shot four people. Aother eyewitess, Adrea Sibley, describes the defedat gettig RESPONSE TO MOTION TO SEVER - 0 FRANKLIN STREET PO BOX 000 VANCOUVER. WASHINGTON -000 (0) - FAX: (0) -0

5 io 0 i her vehicle after the shootig ad tellig her to flee because the police will be lookig for him. Additioal witesses describe the defedat, shortly after the murders, admittig that he had shot ad killed several people. Fially, foresic evidece places the defedat at the murder scee. As for the escape attempt, the defedat appears to cocede the State has a strog case. Turig to the clarity of the defeses, it is apparet that the defese to each set of charges is deial. The defedat is ot assertig mutually atagoistic defeses, otwithstadig his apparet desire to testify that he does ot ejoy beig icarcerated i the Clark Couty Jail. It is uclear how this testimoy is relevat or a actual defese to the charges, ad i ay evet this claim is so speculative that it caot amout to actual ufair prejudice. Ideed, the defese may be able to gai credibility with the jury by effectively cocedig guilt o the escape attempt couts but cotestig the murder couts. Next, the jury will be istructed that each cout is separate ad their verdict o oe does ot cotrol the other. See WPIC.0. Cotrary to the defedat's argumet, the jury is presumed to follow this istructio else a trial could ever ivolve more tha oe cout. Citv of Bellevue v. Kravik. W.App., 0 P.d (). The escape attempt couts ivolve distict coduct from the uderlyig charges ad there is little to o risk the jury will somehow cofuse or coflate the two episodes. Fially, the Court must determie whether the evidece would be cross-admissible betwee the two sets of couts. Cotrary to the defedat's claims, the fact he attempted to escape from custody while facig aggravated murder charges is highly probative evidece of his RESPONSE TO MOTION TO SEVER - 0 FRANKUN STREET PO BOX 000 VANCOUVER, WASHINGTON -000 (0) - FAX: (0) -0

6 0 0 guilt for those crimes. Such evidece, commoly kow as "cosciousess of guilt," has bee repeatedly held admissible uder ER 0(b) or other grouds by Washigto courts. Specifically, flight ad failure to appear i court are acts which "might reasoably be cosidered to be the act of who is coscious of his guilt." State v. Cobb. W.App., P.d (); State v.jefferso. W.App., P.d (). Plaily, a attempt to escape from jail is more probative of guilt tha a mere failure to appear i court. O the other had, proof that the defedat was charged with various offeses, icludig aggravated murder, is a ecessary elemet of the escape attempt charges. Furthermore, the serious ature of the charges provides ample evidece of his motive to take the drastic actio of tryig to escape from the jail. Havig applied the Russell factors to the istat case, it is apparet that the defedat caot satisfy his burde of showig that he will be ufairly prejudiced by a joit trial o the uderlyig couts ad the escape attempt. The asserted prejudice is speculative ad miimal at best ad is isufficiet to overcome the eed for judicial ecoomy, which remais a valid cosideratio uder Bluford. W.d at. The courts must always cosider the burde imposed by gratig separate trials, ad such trials are, as previously oted, disfavored i geeral. The Washigto Supreme Court i Brvthow observed that Ay residual prejudice resultig from joider i this case must be weighed agaist the cocers for judicial ecoomy. Foremost amog these cocers is the coservatio of As oted previously, severace is ot required eve if there was ot cross-admisibility. Kalakoskv. W.d. RESPONSE TO MOTION TO SEVER - 0 FRANKLIN STREET PO BOX 000 VANCOUVER, WASHINGTON -000 (0) - FAX: (0) -0

7 0 judicial resources ad public fuds. A sigle trial obviously oly requires oe courtroom ad judge. Oly oe group of jurors eed serve, ad the expediture of time for jury voir dire ad trial is sigificatly reduced whe the offeses are tried together. Furthermore, the reduced delay o the dispositio of the crimial charges, i trial ad through the appellate process, serves the public. We fid these cosideratios outweigh the miimal likelihood of prejudice through joider of the charges i this case. W.dat V. Coclusio The Court should dey the defedat's motio, as the defedat has failed to establish a sufficiet ufair prejudice to meet his burde. The State respectfully requests this Court dey the defedat's motio ad allow the couts to be tried joitly. Respectfully submitted this 'Smith, WSBA # Deffiity Prosecutig Attorey 0 RESPONSE TO MOTION TO SEVER - 0 FRANKLIN STREET PO BOX 000 VANCOUVER, WASHINGTON -000 (0) - FAX: (0) -0