State v. Hampton

• Decision Date: 11 August 2014
• Docket Number: No. 69601–7–I.,69601–7–I.
• Parties: STATE of Washington, Respondent, v. Matthew Alexander HAMPTON, Appellant.
• Court: Washington Court of Appeals

332 P.3d 1020

STATE of Washington, Respondent,

v.Matthew Alexander HAMPTON, Appellant.

No. 69601–7–I.

Court of Appeals of Washington,

Division 1.

Aug. 11, 2014.

Kathleen A. Shea, Washington Appellate Project, Seattle, WA, Matthew Hampton, Everett, WA, pro se, Everett, WA, for Appellant.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Everett, WA, for Respondent.

DWYER, J.

¶ 1 “[T]he Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.” Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624–25, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989). This right provides a particular guarantee: that “the accused be defended by the counsel he believes to be best.” United States v. Gonzalez–Lopez, 548 U.S. 140, 146, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). In this case, Matthew Hampton appeared at trial call and requested to replace his court-appointed counsel with his newly-retained private counsel. He had recently acquired sufficient funds to retain an attorney for his defense, and he moved to continue proceedings to allow time for his new counsel to prepare. The trial court denied Hampton's request. As a result, Hampton was not represented at trial by his retained attorney.

¶ 2 Although the right to counsel of choice may be denied when one or more recognized countervailing conditions are present, in this case, none of those conditions were present and sufficient to overcome Hampton's right to counsel of choice. We therefore hold that the trial court abused its discretion when it denied Hampton's request for a continuance to allow for his retained counsel of choice to substitute for his court-appointed attorney and appear as his lawyer at trial.

¶ 3 Additionally, in this rape in the second degree prosecution, Hampton contends that the jury should not have been instructed on the uncharged, inferior-degree crime of rape in the third degree. We disagree, and hold that the jury was properly instructed on the inferior-degree crime of rape in the third degree. Nonetheless, because the erroneous denial of the right to counsel of choice constitutes structural error, we reverse Hampton's conviction and remand for further proceedings consistent with this opinion.

I

¶ 4 A.B. and Hampton's son Chance ¹ dated briefly when A.B. was 13 years old. They became reacquainted approximately five years later in 2010. On January 7, 2011, around 10:00 p.m., A.B. went to Hampton's house with Chance, along with A.B.'s sister, Alicia, and Alicia's friend Kenny. On that evening, Hampton and his wife, Denise, were at home. Upon arrival, A.B., Chance, Alicia, and Kenny went to the Hamptons' garage to play pool and drink beer.

¶ 5 A.B. drank at least three beers and had some wine, but she was unsure of how much she drank. Nonetheless, A.B., Chance, and Hampton believed that A.B. was intoxicated. A.B. became sick after drinking the wine, and she went to an upstairs bathroom to vomit. At approximately 3:00 a.m.,² Chance drove Alicia and Kenny to their homes, but A.B. did not leave because she “felt too sick to get up.”

¶ 6 Chance returned after 15 to 20 minutes, and A.B. went back into the garage, where Hampton and Chance were playing pool. A.B. sat in a reclining chair in the garage and fell asleep right away. Thereafter,Denise entered the garage to ask Chance if he had checked his work schedule. Eventually, after Hampton suggested he do so, Chance went to his place of work to check his schedule. Chance tried unsuccessfully to wake A.B. before he left. He started to write a note to her, but Hampton offered to let A.B. know where Chance was in the event that A.B. awoke before Chance returned.

¶ 7 After Chance left, the next thing that A.B. remembered was the sensation of her pants being partially removed.³ The garage was “pitch black,” whereas the lights in the garage had been on when A.B. went to sleep. Hampton hovered over A.B., with “his upper chest over [her] chest,” and he tried to kiss her neck. Hampton put his fingers in A.B.'s vagina, and A.B. “told him no” and “told him to stop.” A.B. knew that the person hovering over was Hampton because she recognized his voice when he said, “I thought that you wanted me,” more than once. Hampton's fingers were still in A.B.'s vagina when she spoke, and A.B. called out for Chance. Hampton did not stop right away; his fingers remained inside A.B.'s vagina for “probably a minute or two.” A.B. tried unsuccessfully to push Hampton away. He eventually stopped on his own.

¶ 8 Although A.B. stated that she was “waking up,” and that she was not “wide awake” until she heard Hampton's voice, she also said that she was “definitely awake” at the point “when his fingers went inside [her].” Furthermore, A.B. recalled what happened leading up to the point at which Hampton put his fingers inside her vagina:

Q: What's the next thing you remember happening after you went to sleep?

A: I woke up, the garage was pitch black, and Matthew Hampton was leaning over me, his upper chest over my chest, he was trying to kiss my neck, and he ripped off one of my pants legs and he stuck his fingers inside me.

...

Q: How much recollection do you have of the pants being pulled off?

A: I believe that's what woke me up when he jerked my pants leg off.

...

Q: And it sounded like what you were telling us is he was pulling the pants off while he had a finger or fingers inside of you, is that what you're saying?

A: No. He put his fingers in after one pants leg came off.

...

Q: What happened immediately after the pants came down?

A: That's when he put his fingers inside me.

¶ 9 Although A.B. was unable to recall the sequence as it pertained to two events—when her pant leg was pulled off and when Hampton leaned over and put his face by her neck—the balance of A.B.'s testimony indicates that she was aware of the events in the garage at a point before Hampton put his fingers in her vagina.⁴ Once Hampton stopped, A.B. stood up immediately and put her pant leg back on. She ran into the house and looked for Chance, but she saw only Hampton, smoking a cigarette by the sliding glass door of the living room. A.B. made two phone calls to Chance, one at 4:57 a.m. and one at 4:59 a.m., and she spoke with Chance when he immediately called back. Chance stated that A.B. was crying and sounded upset, but she did not tell him what happened. Later, on February 16, 2011, A.B. reported the incident to the Snohomish County Sheriff's Office.⁵ On April 18, 2012, the State charged Hampton with indecent liberties.⁶

¶ 10 Hampton pleaded not guilty to this charge at his arraignment on May 9, 2012, and trial was set for July 13, 2012. However, the State informed Hampton, at an omnibus hearing on June 15, 2012, that it intended to amend the charge against him to rape in the second degree if he did not accept its plea offer. On July 13, 2012, the court entered a trial continuance—agreed to by both parties—until August 31, 2012.⁷

¶ 11 On August 31, 2012, Hampton appeared for trial call and moved to substitute his newly-retained counsel, Anna Goykhman, for appointed counsel, Donald Wackerman—but the motion was made contingent upon the court granting a continuance to allow time for Goykhman to prepare. Goykhman did not believe that she could effectively represent Hampton without a continuance to allow her to prepare. She indicated that Hampton had recently been able to secure the funds to afford private counsel and that Hampton “feels very strongly that he does not have a good relationship ... with Mr. Wackerman.” Goykhman further stated that Hampton preferred “to have counsel of his own choice, which he can now afford.” In addition, Wackerman appeared and commented that he and Hampton “have perhaps not had the best relationship.” Wackerman also told the trial court that Hampton had “indicated early on in the case that he was interested in retaining counsel,” but that “[h]e was not financially able to do that at the outset of the case.”

¶ 12 In opposition to the continuance request, the State asserted that “[t]he victim [was] opposed,” and asked the court to assign the matter for trial the following week. It stated that Chance “seem[ed] to be aligned with the defendant,” and that Chance was interfering with the State's case. Specifically, the prosecutor did not want to allow more time for Chance “to get inside [A.B.'s] head and try to talk her out of it.” However, the State also remarked to the court that “[t]he law is pretty clear that you have discretion to decide it either way, and nobody is really going to have a whole lot of complaint about that whatever you decide.”

¶ 13 The court denied the continuance:

I guess I'm not so persuaded. I know Mr. Wackerman is a very capable attorney. It wouldn't be the first time he's represented someone who may not have always been happy with Mr. Wackerman. I think that happens for most of the defense attorneys that they occasionally have a client who would rather have a different attorney appointed. I don't think that would in any way impair his ability to represent his client zealously and capably, and I don't think there's any question that Mr. Wackerman is a highly qualified criminal defense attorney.

And I'm not really being given much reason other than apparently some other source decided to provide the funds today when it was still a serious case. These cases, uniquely the Court is asking to take into consideration the victim's position on a continuance and for the same reasons that I'm being urged to continue on behalf of the defendant would apply also to the victim. This is a case that's difficult for everybody. I assume it has some impact on the family situation for the defendant. And I don't think that a compelling record has been made as to why the Court essentially on the day of trial should grant a continuance of a case that has...