State v. Bebb
| Decision Date | 23 July 1987 |
| Docket Number | No. 53275-3,53275-3 |
| Citation | 108 Wn.2d 515,740 P.2d 829 |
| Parties | STATE of Washington, Respondent, v. Robert Ray BEBB, Petitioner. |
| Court | Washington Supreme Court |
Frank Conklin, Sp. Public Defender, Spokane, for petitioner.
Donald C. Brockett, Spokane Co. Pros., Spokane, for respondent.
Robert Bebb appeals a Court of Appeals decision upholding his conviction for first degree felony murder. Bebb argues the trial court's pretrial rulings infringed upon his constitutional right to proceed pro se. He also challenges the trial court's authority to order a second round of pretrial psychiatric examinations to determine his competence, and raises issues concerning the discovery of exculpatory evidence. We have examined his contentions, and conclude that Bebb was given full and fair treatment by the trial court. Accordingly, we uphold the trial court and the Court of Appeals, and affirm the conviction.
Kay Devine was shot to death on January 17, 1979, while working at Password Answering Service in Spokane. At the scene, investigating officers found a handwritten note which read, Vol. III, Report of Proceedings, at 256. Officer Wahzenreid of the Spokane County Sheriff's Department tested the note for fingerprints and found one partial thumbprint. In November of 1980, Wahzenreid compared the partial print with Bebb's known prints. In Wahzenreid's opinion, Bebb made the print on the note.
At this time, Bebb was incarcerated in California on an unrelated offense. About 4 months before, Bebb had filled in a document entitled "Holds, Warrants, Detainers, and Traffic Tickets" for California prison authorities, wherein he stated there was a "Possible offense: unknown" pending against him in Spokane. Vol. III, Report of Proceedings, at 300, 301. Bebb had given the date for this offense only as "1979."
On June 29, 1982, Bebb was extradited to Washington, handcuffed, chained, and under heavy guard. The officers accompanying him were armed with automatic weapons. Bebb was characterized by the California authorities as an extreme escape risk, and possibly dangerous. He and his wife had been connected with a group that claimed responsibility for an earlier jail break in Seattle during which a security officer was killed. Bebb was still serving the terms of his California sentence when he was extradited to Washington. In California, he had pleaded not guilty by reason of insanity to an escape charge.
On July 21, 1982, the Spokane County Prosecuting Attorney filed an information accusing Bebb of first degree felony murder. On that day, Bebb appeared with defense counsel before Judge Donohue for arraignment. Defense counsel informed the court that Bebb wished to proceed pro se. The judge acceded to this request, but appointed a public defender to act as standby counsel, over Bebb's objections.
The next day, the judge questioned Bebb closely about his request to represent himself. The judge inquired into Bebb's education and background, and his familiarity with the requirements of legal research. The judge emphasized the seriousness of the charge and the difficulties that he would face attempting to represent himself while incarcerated. These concerns were conscientiously, scrupulously and patiently reiterated to Bebb by the several trial judges who heard his motions throughout the proceedings leading up to, during, and after trial. The trial judge emphasized Bebb's right to have counsel represent him free of charge. Bebb asked whether the court could appoint a private attorney to represent him, rather than anyone in the public defender's office. When he was told it could not, Bebb replied "Okay, well I don't want an attorney." Vol. I., Report of Proceedings, at 15. The judge accepted Bebb's waiver of counsel and again appointed a public defender to act as standby counsel. Standby counsel was directed to remain familiar with the case so that he could be prepared to take over as counsel for Bebb in the event that he was no longer able to proceed pro se.
On July 27, the parties appeared before the court on Bebb's motion for law books, paper, pens, and other similar requests. The judge ordered that Bebb be provided with a copy of the annotated Washington code and that standby counsel provide Bebb with a copy of whatever cases he requested. In response to the prosecutor's concerns about security, in light of Bebb's status as an extreme escape risk, the judge ruled that Bebb's telephone calls could be monitored and that his mail could be opened and read (but not censored) by jail officials, provided they had reasonable grounds to believe the contents were dangerous to jail security.
On June 30, standby counsel requested the judge to appoint a sanity commission to determine Bebb's present competency, as well as his sanity on the date of the homicide. Counsel based his request upon his discovery that Bebb had been found insane in connection with a 1968 California prosecution for escape. The court granted standby counsel's motion, and ordered the commission to examine Bebb to determine whether (a) he was competent to stand trial, and (b) whether he was sane at the time of the alleged offense.
The judge appointed a second commission after a hearing on the first commission's findings, which were incomplete. After the additional examinations were conducted, a hearing was held on October 26. The Eastern State Hospital psychiatrists who had examined Bebb all testified at that time that Bebb was a highly intelligent malingerer, and that he was, in their opinion, fully competent to stand trial and to conduct his own defense. Bebb participated in the hearing and questioned the doctors, and asserted several times "I am perfectly sane". Pretrial Report of Proceedings, at 166 and 161. At this hearing, the prosecutor informed the court that he had received records from the California prison authorities that showed that, upon subsequent examination, they, too, had determined that Bebb was not insane but had been malingering. The judge found Bebb to be competent both to stand trial and to represent himself pro se. Bebb at no time challenged this finding.
On November 9, 1982, the parties again appeared before the court to discuss the nature of Bebb's relationship with standby counsel. Bebb told the court that he had received a letter from the public defender's office informing him that, "since my attorney-client thing [privilege] doesn't exist ... there is a possibility anything that's done in this case can be forwarded to Mr. Brockett [the prosecutor]." Vol. I, Report of Proceedings, at 31. Bebb also requested that a new investigator be appointed to assist him. At the time, the public defender's office employed only one investigator, who had previously worked for the police department and had worked on the investigation of the Devine homicide. The judge denied Bebb's motion for a different investigator.
The trial judge initially seemed to agree with the prosecutor that Bebb could not claim an attorney-client privilege regarding his communications with standby counsel. Standby counsel said for the record that he disagreed, and that nothing Bebb had told him would ever be revealed to the prosecutor. The parties apparently agreed that the interactions between Bebb and the investigator were privileged, however. The judge's ruling on the question was tentative and equivocal.
On January 7, 1983, the court granted Bebb's request to change standby counsel's status to that of cocounsel. Despite Bebb's repeated protestations that he was ready and wished to proceed to trial immediately, the prosecutor insisted that the court grant a continuance in order for counsel to prepare for trial. Counsel represented Bebb fully from that point on; Bebb made no attempt to reassert his pro se rights during trial.
Trial began on January 24, 1983. The State's evidence connecting Bebb to the killing consisted primarily of handwriting and fingerprint analyses. The State introduced a sample of Bebb's handwriting from a letter written to his sister from prison in California (with the references to his incarceration excised), since Bebb refused to comply with a court order to supply a handwriting exemplar for comparison purposes.
The State also presented Bebb's 1980 statement to California authorities that an "unknown" charge was pending against him in Spokane. The State also presented testimony of Bebb's wife's mother and her boyfriend, that Bebb owned a pair of shotguns, that he had sawed the stock off of one of them, and showed them how he could conceal it beneath his coat. These two witnesses also testified that they had communicated by mail and telephone with Bebb at the time of the killing, and that he was then in Spokane.
Bebb did not testify. Defense counsel called several fingerprint experts who testified that the partial print of the note was too incomplete or indistinct to compare with Bebb's known prints. Defense counsel also vigorously cross-examined the State's witnesses, and appears to have generally carried out a competent and forceful defense. The jury found Bebb guilty of first degree felony murder as charged.
In February of 1985, Bebb moved for a new trial on the ground that the prosecutor had violated discovery rules. Bebb identified two pieces of evidence that the prosecutor had not provided. First, a parole officer who had seen the note found at the murder scene decided that the handwriting was similar to that of one of his parolees, E.H. A sample of E.H.'s handwriting had been sent to the FBI, which could not conclusively determine whether the robbery note had been written by him. Second, one J.L. was arrested in Texas, armed with a sawed-off shotgun of the same caliber as the murder weapon. J.L. had been in Spokane on the date of the murder. However, the State's fingerprint expert decided that J.L. had not left the print on the note...
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