SUMMARY

June 9, 2022

2022COA62

No. 19CA1332, People v. Washington — Criminal Procedure —

Permissive Joinder — Misjoinder; Appeals — Standard of 

Review — Harmless Error

A division of the court of appeals holds as a matter of first 

impression that People v. Novotny, 2014 CO 18, overruled Norman 

v. People, 178 Colo. 190, 496 P.2d 1029 (1972), to the extent 

Norman held that joinder error was automatically reversible. 

Instead, the division holds that misjoinder under Crim. P. 8(a)(2) is 

subject to harmless error review.

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
COLORADO COURT OF APPEALS 2022COA62

Court of Appeals No. 19CA1332

Arapahoe County District Court No. 17CR2285

Honorable Patricia D. Herron, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Wayne Washington,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE BERGER

Dailey and Tow, JJ., concur

Announced June 9, 2022

Philip J. Weiser, Attorney General, William G. Kozeliski, Senior Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. O’Harris, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Joseph Wayne Washington, appeals his 

convictions for second degree murder, ten counts of possession with 

intent to sell or distribute a controlled substance, tampering with a 

witness or victim, and violation of a protection order. 

¶ 2 His only contention on appeal is that the trial court erred by

trying the murder charge and the drug charges together.

¶ 3 We hold as a matter of first impression that People v. Novotny, 

2014 CO 18, overruled Norman v. People, 178 Colo. 190, 496 P.2d 

1029 (1972), to the extent Norman held joinder error requires

automatic reversal. Instead, we hold that misjoinder under Crim. P. 

8(a)(2) is subject to harmless error review. 

¶ 4 Reviewing for harmless error, we conclude that any joinder 

error was harmless, and we affirm.

I. Relevant Facts and Procedural History

¶ 5 Evidence presented at trial allowed the jury to find the 

following facts. Washington and his girlfriend attended a barbeque 

at Cherry Creek State Park hosted by Jason Pope. Jackson Chavez 

and his ex-girlfriend, who were at the park with a different group, 

started to argue, and the fight turned physical. Chavez’s behavior 

made two of Pope’s friends uncomfortable and upset, so they told 
2

Pope and Washington about Chavez’s behavior. Pope’s friends also

told Pope that he should ask Chavez to leave. Pope and 

Washington approached Chavez and asked him to leave. 

¶ 6 Chavez threw a punch that “hit [Washington] and then clipped 

[Pope].” Pope swung at Chavez and Chavez’s return punch 

“knocked out” Pope. Washington “turned around, walked maybe 20 

feet away, . . . got a gun, and . . . turned around and shot [Chavez]”

twice in the chest, killing him. The gun was located in a brown 

backpack that Washington and his girlfriend brought with them to 

the barbeque. After killing Chavez, Washington left the park with 

his girlfriend.

¶ 7 Washington and his girlfriend returned to his house in Aurora,

where they packed two backpacks, including the brown backpack 

they had at the barbeque. Washington’s roommate testified at trial 

that he purchased drugs from Washington in the past and that he 

arranged for an Uber to take Washington and his girlfriend to 

downtown Denver. 

¶ 8 Washington and his girlfriend went to Richard Giles’ 

downtown apartment. Giles booked Washington and Washington’s

girlfriend a hotel room for the night. Washington gave Giles “like a 
3

gram of cocaine or something and then they left.” At trial, Giles

testified that he previously purchased drugs from Washington.

¶ 9 The next morning, Raymond Wallace, another of Washington’s 

friends, picked up Washington and Washington’s girlfriend from the 

hotel and they went to a restaurant. After eating and having a few 

drinks, they drove to a gas station, where Washington was arrested

for Chavez’s murder. 

¶ 10 The police obtained a search warrant for the vehicle in which 

Washington was seated when he was arrested. The police found 

two backpacks (including the brown backpack) in the backseat of 

the vehicle. When they searched the backpacks, the police found 

various drugs and drug paraphernalia. The police also obtained a 

search warrant for Washington’s house, where they found more 

drugs and drug paraphernalia.

¶ 11 The prosecution charged Washington with first degree murder. 

The court issued a mandatory protection order prohibiting 

Washington from contacting or directly or indirectly communicating 

with his girlfriend. The prosecution later amended the complaint to 

include eleven counts of possession with intent to sell or distribute 

a controlled substance. 
4

¶ 12 While in jail awaiting trial, Washington wrote a letter to his 

girlfriend and called her, discussing her communications with the 

police, his charges, and possible defenses. As a result of the letter 

and the jail calls, the prosecution charged Washington with 

violation of a protection order and tampering with a witness or 

victim. 

¶ 13 Separately, Shamarr Long-Frazier, who was housed at the jail

with Washington, told the prosecution that Washington 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. 

¶ 14 Before trial, Washington moved to sever, arguing both

improper joinder under Crim. P. 8 and that he was entitled to relief 

from prejudicial joinder under Crim. P. 14. 

¶ 15 The trial court ruled that joinder under Crim. P. 8(a)(2) was 

permissible because the charges were “all interrelated and 

interconnected in a number of ways.” The trial court also denied 

Washington’s discretionary request for severance under Crim. P. 14.

¶ 16 At trial, although Washington did not testify, his counsel 

argued that Washington shot Chavez in self-defense and defense of 
5

others. Also through counsel, Washington claimed that the drugs 

did not belong to him. Washington’s counsel admitted that 

Washington violated a protection order. 

¶ 17 The jury convicted Washington of second degree murder, ten 

counts of possession with intent to sell or distribute a controlled 

substance, violation of a protection order, and tampering with a 

witness or victim. The jury acquitted Washington of first degree 

murder,1 one count of possession with intent to sell or distribute a 

controlled substance, and the two solicitation to commit murder 

charges.

II. Even if the Trial Court Erroneously Joined Washington’s 

Charges Under Crim. P. 8(a)(2), Any Error was Harmless

¶ 18 Washington first argues that the trial court reversibly erred by 

joining his charges under Crim. P. 8(a)(2). 

¶ 19 Crim. P. 8(a)(2) permits the joinder of two or more offenses in a 

single charging document if they “are of the same or similar 

1 The jury was instructed on second degree murder, a lesser 

included offense of first degree murder. Because the jury convicted 

Washington of second degree murder, it necessarily acquitted him 

of first degree murder. “By definition, a jury that finds a defendant 

guilty of a lesser included offense axiomatically acquits them of the 

greater offense.” People v. Viburg, 2021 CO 81M, ¶ 21.
6

character or are based on two or more acts or transactions 

connected together or constituting parts of a common scheme or 

plan.” See also Bondsteel v. People, 2019 CO 26, ¶ 36.

¶ 20 Assuming solely for the purposes of this opinion that the trial 

court erroneously joined Washington’s charges under Crim. P. 

8(a)(2), we conclude that any such error was harmless.2 

A. Misjoinder Under Crim. P. 8(a)(2) is Subject to Harmless Error 

Review

¶ 21 Washington argues that if the trial court erroneously joined 

his charges under Crim. P. 8(a)(2), he is entitled to automatic 

reversal. We disagree.

¶ 22 In Norman, the Colorado Supreme Court concluded that 

joinder was improper under Crim. P. 8 and held that “[t]he refusal 

of the court to grant defendants’ request for a severance for trial 

requires reversal for a new trial.” 178 Colo. at 194, 496 P.2d at

1030. 

2 Because we assume that the trial court erroneously joined 

Washington’s charges under Crim. P. 8(a)(2), we express no opinion 

regarding whether a claimed joinder error under Crim. P. 8(a)(2) is 

reviewed de novo or for an abuse of discretion.
7

¶ 23 More recently, however, in Novotny, ¶ 20, the Colorado 

Supreme Court held that “only error rising to the level of structural 

error necessarily requires reversal.” It also overruled its prior 

“holdings to the contrary and conclude[d] that reversal of a criminal 

conviction for other than structural error, in the absence of express 

legislative mandate or an appropriate case specific, 

outcome-determinative analysis, can no longer be sustained.” Id. at 

¶ 27. 

¶ 24 Based on this language, we conclude that Novotny overruled 

Norman to the extent Norman held that a joinder error requires

automatic reversal. The only remaining question is whether 

misjoinder is structural error, requiring automatic reversal, or trial 

error, subject to harmless error review. 

¶ 25 Structural errors are constitutional “defects affecting the 

framework within which the trial proceeds,” and they require 

automatic reversal because they defy analysis by harmless error 

standards. People v. Vigil, 127 P.3d 916, 929 (Colo. 2006) (quoting 

Arizona v. Fulminante, 499 U.S. 279, 309 (1991)); accord Neder v. 

United States, 527 U.S. 1, 7 (1999). 
8

¶ 26 Trial errors are errors that occur “during the presentation of 

the case to the jury, and which may therefore be quantitatively 

assessed in the context of other evidence presented in order to 

determine whether [the error] was harmless . . . .” Fulminante, 499 

U.S. at 307-08. 

¶ 27 In United States v. Lane, the United States Supreme Court 

held that “[i]mproper joinder does not, in itself, violate the 

Constitution. Rather, misjoinder would rise to the level of a 

constitutional violation only if it results in prejudice so great as to 

deny a defendant his Fifth Amendment right to a fair trial.” 474 

U.S. 438, 446 n.8 (1986). Based, in part, on this rationale, the 

Court held that misjoinder of defendants under Fed. R. Crim. P. 8

was subject to harmless error analysis and was not automatically 

reversible. Id. at 449-50. 

¶ 28 Washington is correct that the facts of Lane differ from the 

facts of this case because Lane involved the misjoinder of 

defendants, not the misjoinder of charges. Id. at 442. Nevertheless, 

relying on Lane, courts in other jurisdictions have uniformly held 

that misjoinder of charges is reviewed for harmless error. United 

States v. Shellef, 507 F.3d 82, 100 (2d Cir. 2007); United States v. 
9

Jawara, 474 F.3d 565, 579 (9th Cir. 2007); Beltran v. State, 566 

So. 2d 792, 792 (Fla. 1990) (“[H]armless error may properly be 

applied to the misjoinder of offenses.”); Mitchell v. State, 782 P.2d

1340, 1343 (Nev. 1989) (“Based on the reasoning of Lane, we believe 

that misjoinder of claims is also subject to harmless error 

analysis.”); Wright v. United States, 510 A.2d 223, 224 (D.C. 1986); 

State v. Leach, 370 N.W.2d 240, 253 (Wis. 1985). 

¶ 29 Other than Norman, on which Washington relies, the parties 

have not cited, nor are we aware of any contrary authority.

¶ 30 Applying the definitions of structural error and trial error 

discussed above and considering other courts’ uniform resolution of 

this question, we hold that misjoinder under Crim. P. 8 is a trial 

error subject to harmless error review.

B. Any Error was Harmless

¶ 31 On harmless error review, we only “reverse the judgment of 

conviction if there is a reasonable probability that any error by the 

trial court contributed to [the defendant’s] conviction.” People v. 

Monroe, 2020 CO 67, ¶ 17. “[T]he strength of the properly admitted 

evidence supporting the guilty verdict is clearly an ‘important 

consideration’ in the harmless error analysis.” Pernell v. People, 
10

2018 CO 13, ¶ 25 (quoting Crider v. People, 186 P.3d 39, 43 (Colo. 

2008)).

¶ 32 Washington argues that any error under Crim. P. 8(a)(2) was 

not harmless because the evidence would not have been 

cross-admissible had the cases been tried separately. When 

evidence is cross-admissible, there is no prejudice in consolidating 

the cases. Buell v. People, 2017 COA 148, ¶ 16. But “joinder under 

Crim. P. 8(a)(2) does not always require the evidence of the 

respective incidents to be cross-admissible were there to be 

separate trials.” Bondsteel, ¶ 44. Therefore, even if the evidence 

was not cross-admissible we are not precluded from concluding, 

under appropriate circumstances, that any error under Crim. P. 

8(a)(2) was harmless.

¶ 33 Instead, for three reasons, we conclude that any error in 

joining Washington’s charges under Crim. P. 8(a)(2) was harmless.

1. The Evidence that Washington Did Not Act in Self-Defense or 

Defense of Others and Was Guilty of the Drug Charges and 

Tampering with a Witness was Overwhelming

a. Self-Defense

¶ 34 As to the murder charge, Washington raised the affirmative 

defense of self-defense and defense of others. When an affirmative 
11

defense is pleaded, that defense “effectively becomes an additional 

element,” and the prosecution “bears the burden of proving beyond 

a reasonable doubt that the affirmative defense is inapplicable.” 

People v. Pickering, 276 P.3d 553, 555 (Colo. 2011). 

[A] person is justified in using physical force 

upon another person in order to defend 

himself or a third person from what he 

reasonably believes to be the use or imminent 

use of unlawful physical force by that other 

person, and he may use a degree of force 

which he reasonably believes to be necessary 

for that purpose.

§ 18-1-704(1), C.R.S. 2021.

Deadly physical force may be used only if a 

person reasonably believes a lesser degree of 

force is inadequate and:

(a) The actor has reasonable ground[s] to 

believe, and does believe, that he or another 

person is in imminent danger of being killed or 

of receiving great bodily injury.

§ 18-1-704(2) (emphasis added). 

¶ 35 The uncontested evidence demonstrated that Chavez punched 

Pope, “knocking him out,” and that Washington may have also been 

struck by Chavez. But there was no evidence Chavez ever had a 

weapon, much less a deadly weapon. Nevertheless, Washington 

turned around, took approximately twenty steps away from Chavez, 
12

retrieved a gun from his backpack, turned back around, walked 

back toward Chavez, and shot Chavez twice in the chest. At the 

time he was killed by Washington, Chavez was no longer punching, 

kicking, or otherwise harming or attempting to harm Pope (or 

anyone else). Put simply, this is overwhelming evidence that 

Washington did not act in self-defense or defense of others. 

b. Drug Charges

¶ 36 To convict a person of possession with intent to sell or 

distribute a controlled substance, the prosecution must prove 

beyond a reasonable doubt that the defendant knowingly possessed

a controlled substance with intent to sell or distribute it. 

§ 18-18-405(1)(a), C.R.S. 2021. A person acts knowingly with 

respect to his conduct when he is “aware that his conduct is of 

such nature.” § 18-1-501(6), C.R.S. 2021. 

¶ 37 At trial, Washington argued through counsel that the drugs 

did not belong to him. He pointed to evidence that his girlfriend 

carried the backpacks in which the police found the drugs and that 

he lived with roommates. 

¶ 38 But the police also found drugs and indicia of distribution in 

Washington’s bedroom. Washington’s roommate and Giles testified 
13

that they purchased drugs from Washington in the past. Giles 

testified that although Washington’s girlfriend would sometimes 

carry the backpacks that contained the drugs, Washington always 

handled the drugs and the money. Washington’s girlfriend further 

testified that she carried the backpacks because Washington told 

her to do so. 

¶ 39 From the uncontested testimony and circumstances, we 

conclude that the evidence was overwhelming that Washington 

knowingly possessed the drugs the police found in his backpacks 

and house.

¶ 40 Regarding intent to sell or distribute, the police found scales, 

weights, and hundreds of new, unused small bags in the brown 

backpack and at Washington’s house. The following table 

summarizes the evidence presented at trial regarding the drugs the 

police found in the backpacks and at Washington’s house and their 

approximate value.

Controlled 

Substance

Amount Found Personal 

Dose

Approximate 

Value

Psilocyn 379 grams 0.5 gram $1,895

Methamphetamine Multiple small 

bags of pills, 

weighing at 

least 80 grams

1 gram $6,840
14

Controlled 

Substance

Amount Found Personal 

Dose

Approximate 

Value

Cocaine 62 grams 1 gram $4,960

Methylenedioxyam

phetamine (MDA)

24.71 grams 0.5 gram $2,223

Amphetamine 49.5 tablets, 

weighing 11.76 

grams

One to two 

pills

$4,955

Gamma 

hydroxybutyrate 

(GHB)

13.79 grams 0.5 gram $1,040

Lysergic acid 

diethylamide 

(LSD)

1.65 grams of 

LSD in dropper 

bottle and paper

that tested 

positive for LSD 

One 

centimeter 

by one 

centimeter 

paper 

square

Between 

$1,650 and 

$5,000

Methylenedioxyme

thamphetamine 

(MDMA)

6.86 grams in 

rock form; 5.87 

grams in 

granular form

0.5 gram $1,018

Morphine Eighteen

tablets, 

weighing 2.89 

grams

One to 

three pills

$190

Alprazolam Forty-seven

whole tablets 

and three

partial tablets, 

weighing 9.7 

grams

One to 

three pills

$100

¶ 41 The evidence demonstrated that Washington possessed

hundreds of doses of at least ten different controlled substances

with an approximate value of at least $24,000. Accordingly, the 
15

evidence that Washington knowingly possessed with the intent to 

sell or distribute these controlled substances was overwhelming.

c. Tampering with a Witness or Victim

(1) A person commits tampering with a witness 

or victim if he intentionally attempts without 

bribery or threats to induce a witness or victim 

or a person he believes is to be called to testify 

as a witness or victim in any official proceeding 

or who may be called to testify as a witness to 

or victim of any crime to:

(a) Testify falsely or unlawfully withhold any 

testimony; or

(b) Absent himself from any official proceeding 

to which he has been legally summoned; or

(c) Avoid legal process summoning him to 

testify.

§ 18-8-707, C.R.S. 2021.

¶ 42 Washington’s girlfriend testified that Washington told her “to 

act dumb” if he got caught. From jail, Washington wrote his 

girlfriend a letter, saying,

I don’t know what all was said to you or what 

you may have said, but please keep everything 

to “I don’t know” or “I don’t recall.” At this 

point they are trying to use everything against 

me including you, so at this point no 

statement is the best statement!!!
16

¶ 43 Washington also called his girlfriend from jail. All of these 

calls were recorded. She informed Washington that she told the 

police everything. Washington responded, “we’re gonna have to 

work on that. . . . [W]hatever light you paint me in will decide if I 

see you or anyone else again . . . . [M]y life is in your hands.” 

¶ 44 Washington’s girlfriend testified at trial as follows:

[Prosecutor]: When the defendant -- after you 

tell him that you told the police everything you 

could and he said we’re going to have to work 

on that, what did you take that to mean?

[Washington’s girlfriend]: To say less and act 

dumb.

. . . . 

[Prosecutor]: When he’s telling you on the call 

[it’s] about how you explain it that matters, did 

you take that to mean that he wanted you to 

be truthful?

[Washington’s girlfriend]: No.

. . . . 

[Prosecutor]: When he’s talking about whatever 

light you paint me in will decide if I see you or 

anyone else again, you understand, did you 

take that to mean that he wanted you to tell 

the truth about what happened?

[Washington’s girlfriend]: No.
17

¶ 45 As noted above, Washington did not testify, and no witness or 

other evidence contradicted the girlfriend’s testimony, the content of 

the letter, or the substance of the recorded calls. 

¶ 46 We conclude that overwhelming evidence proved that 

Washington attempted to induce his girlfriend (a witness) to testify 

falsely or to unlawfully withhold testimony.3

2. The Trial Court Instructed the Jury to Consider the Evidence 

and Law Applicable to Each Count Separately

¶ 47 The trial court instructed the jury as follows:

In this case a separate offense is charged 

against Joseph Washington in each count of 

the information. Each count charges a 

separate and distinct offense, and the evidence 

and the law applicable to each count should be 

considered separately, uninfluenced by your 

decision as to any other count. The fact that 

you may find Mr. Washington guilty or not 

guilty of one of the offenses charged should not 

control your verdict as to any other offense 

charged. 

Mr. Washington may be found guilty or not 

guilty of any one or all of the offenses charged. 

3 We do not address the strength of the evidence supporting 

Washington’s conviction for violation of a protection order because, 

at trial, Washington’s counsel admitted that Washington violated 

the protection order prohibiting him from contacting his girlfriend.
18

¶ 48 Absent evidence to the contrary, we presume the jury 

understood and followed the court’s instructions. People v. 

Thornton, 251 P.3d 1147, 1152 (Colo. App. 2010). 

3. The Jury Acquitted Washington of the Most Serious Charge of 

First Degree Murder

¶ 49 The jury acquitted Washington of two counts of solicitation to 

commit murder, one of the drug charges, and the most serious 

charge of first degree murder. This split verdict demonstrates that

the jury was able to consider the evidence and law applicable to 

each offense separately and reach a verdict based on those counts

alone. See Martin v. People, 738 P.2d 789, 795-96 (Colo. 1987) 

(holding that a split verdict is an indication that a trial error did not 

contribute to the jury’s verdict); see also People v. Daley, 2021 COA 

85, ¶ 97. 

¶ 50 Despite all this, Washington argues that he was prejudiced by 

the trial court’s failure to sever his charges because the joinder 

prevented him “from exercising his constitutional right to testify in 

support of his self-defense claim.”

¶ 51 “Prejudice may develop when an accused wishes to testify on 

one but not the other of the two joined offenses which are clearly 
19

distinct in time, place and evidence.” People v. Walker, 189 Colo. 

545, 550, 542 P.2d 1283, 1286 (1975) (quoting Cross v. United 

States, 335 F.2d 987, 989 (D.C. Cir. 1964)). But the “moving party 

must make a ‘convincing showing that he has both important 

testimony to give concerning one count and strong need to refrain 

from testifying on the other.’” Id. (quoting Baker v. United States, 

401 F.2d 958, 944 (D.C. Cir. 1968)). 

¶ 52 Washington failed both in his original motion and in his 

appellate brief to make the showing required by Walker, so we lack 

the necessary information to evaluate his claim. For this reason 

alone, we reject this argument.

¶ 53 Washington also argues that juror questions during trial 

demonstrated that the jury was unable to separate the facts and 

legal principles applicable to each offense. And he argues that this 

juror confusion was inevitable because the trial was complex — it 

lasted over a week and involved more than thirty witnesses. 

¶ 54 But juror questions about whether Washington’s girlfriend or 

Pope saw Washington dealing drugs did not demonstrate that the 

jury was confused about the charges. Rather, these questions 

demonstrated that the jury was engaged in the trial and asking 
20

relevant questions. “[J]uror questioning . . . increases juror 

attentiveness during trial.” Medina v. People, 114 P.3d 845, 852 

(Colo. 2005). And the mere fact that the trial was lengthy and 

involved multiple witnesses did not make this case so complex that 

reversal is required for the alleged misjoinder. 

¶ 55 Instead, for all of the reasons articulated above, we conclude 

that there is no reasonable probability that any joinder error under 

Crim. P. 8(a)(2) contributed to Washington’s convictions. 

III. Even if the Trial Court Abused its Discretion by Denying 

Washington’s Motion to Sever Under Crim. P. 14, Any Error 

was Harmless

¶ 56 Washington next argues that, even if it was permissible for the 

trial court to join his charges under Crim. P. 8(a)(2), the trial court 

abused its discretion by denying his motion to sever under Crim. P. 

14.

¶ 57 Just as we assumed solely for the purposes of this opinion 

that the trial court erroneously joined the murder and drug charges 

under Crim. P. 8(a)(2), we similarly assume that the trial court 

abused its discretion by denying severance under Crim. P. 14. 
21

¶ 58 If the court abuses its discretion by denying a severance 

motion under Crim. P. 14, we review for harmless error. People v. 

Harris, 2016 COA 159, ¶ 77. 

¶ 59 The harm Washington claims from the alleged misjoinder 

under Crim. P. 8(a)(2) is precisely the same harm he claims from 

the trial court’s alleged abuse of discretion in denying severance 

under Crim. P. 14. Accordingly, for the reasons discussed above,

we conclude that any abuse of discretion by denying Washington’s 

severance motion under Crim. P. 14 was harmless.

IV. Disposition

¶ 60 The judgment of conviction is affirmed.

JUDGE DAILEY and JUDGE TOW concur.