State v. Jessup
| Decision Date | 22 February 1982 |
| Docket Number | No. 10353-9-I,10353-9-I |
| Parties | STATE of Washington, Respondent, v. Donald G. JESSUP, Appellant. |
| Court | Washington Court of Appeals |
Donald Jessup, pro se.
Mark Leemon, Seattle-King County Public Defender, Court-appointed, Seattle, for appellant.
Norman K. Maleng, King County Pros. Atty., H. Duane Evans, Deputy Pros. Atty., Seattle, for respondent.
Donald G. Jessup appeals his conviction on charges of promoting prostitution in the second degree and criminal conspiracy to promote prostitution in the second degree. Jessup does not challenge the sufficiency of the evidence presented at trial.
King County police officers had been investigating activities occurring at a business, then known as the Kinky Korner, located near Seattle-Tacoma International Airport. Investigating officers suspected that the business was a front for prostitution. In July 1979, a young woman named "Shirley" reported to police that she had been severely beaten by a known Seattle-area procurer and desired to press charges. King County vice officers spoke with "Shirley" and obtained her consent to cooperate with their investigation by seeking employment at the Kinky Korner and serving as a confidential police informant.
"Shirley" was hired at the Kinky Korner on July 11, 1979. The following day she contacted the vice officers and asked if she should engage in prostitution if it was requested of her. Police advised "Shirley" to take those steps necessary to gather information. "Shirley" kept in daily contact with the police. After 2 weeks at the Kinky Korner, where because of the injuries suffered earlier in her beating she did not engage in sexual acts, "Shirley" moved down the block to the newly opened American Sexuality Society (Society). Over a period of 3 weeks, "Shirley" engaged in numerous acts of prostitution at the Society. As part of her employment, "Shirley" assisted other prostitutes in the business, advised one of the "supervisors" to be stricter with his prostitutes, and on one occasion unsuccessfully attempted to recruit other women to work as prostitutes. The police received continual updates on "Shirley's" activities.
Donald Jessup was one of the managers who supervised operations at both the Society and the Kinky Korner. Monies earned through the efforts of the prostitutes were turned over to him. He recruited prostitutes and hired bouncers to assist the operation. Jessup and others developed an elaborate membership card scheme designed to screen out undercover police officers and potential troublemakers. For a time, "Shirley" lived at Jessup's home.
On August 30, 1979, King County police officers made coordinated searches of the defendant's home, the Kinky Korner, the Society, and one other location. The search warrant was issued upon the affidavit of the supervising police officer, who related the information obtained from "Shirley" and other former employees of the Kinky Korner and the Society, as well as the independent corroborating observations of the police. Seized by police were several hundred membership cards and applications, photographs, and other incriminating documents. The defendant and several others were arrested during the search and charged with promoting prostitution and conspiracy to promote prostitution.
The defendant was found guilty by a jury of promoting prostitution in the second degree (RCW 9A.88.060, .080) and conspiracy to promote prostitution in the second degree (RCW 9A.28.040). He was sentenced to the maximum term of 5 years in prison.
The defendant first argues that it is a denial of equal protection to convict him for both promoting prostitution and conspiracy to promote prostitution. The relevant statutes include:
1. RCW 9A.28.040-Criminal conspiracy.
(1) A person is guilty of criminal conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them takes a substantial step in pursuance of such agreement.
2. RCW 9A.88.060.
(1) ... A person "advances prostitution" if, acting other than as a prostitute or as a customer thereof, he ... engages in any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution.
3. RCW 9A.88.080-Promoting prostitution in the second degree.
(1) A person is guilty of promoting prostitution in the second degree if he knowingly ... advances prostitution.
Promoting prostitution in the second degree is a class C felony; conspiracy to promote prostitution in the second degree is a gross misdemeanor. Equal protection of the laws is denied when the state is permitted to seek varying degrees of punishment when proving identical criminal elements. State v. Ensminger, 77 Wash.2d 535, 463 P.2d 612 (1970). At issue is whether conspiring to promote prostitution constitutes "any other conduct designed to institute, aid, or facilitate an act or enterprise of prostitution." State v. Cann, 92 Wash.2d 193, 595 P.2d 912 (1979).
State v. Cann deals with the same prostitution statutes at issue here. The defendant in Cann challenged on equal protection grounds the prosecutor's discretion to charge him either with promoting prostitution in the second degree or with criminal solicitation to promote prostitution in the second degree. The court held that the "any other conduct" language of RCW 9A.88.060(1) embraced conduct involving speech and thereby included solicitation. RCW 9A.88.080 was held to be a special statute prohibiting conduct designed to institute, aid, or facilitate prostitution, including solicitation for such purposes. The criminal solicitation statute, RCW 9A.28.030, was held to be a general statute which could not be charged in circumstances where RCW 9A.88.080 applied. For that reason, there was no denial of equal protection since the general statute could not be charged by the State. Cann, at 197; see also 2A C. Sands, Statutes and Statutory Construction § 51.05 (4th ed. 1973).
Here, the defendant was charged with agreeing with others to engage in conduct constituting the crime of promoting prostitution in the second degree, and that one of the parties so agreeing took a substantial step in performance of that agreement. Such activity-the agreement and the substantial step-constitutes "conduct designed to institute, aid, or facilitate an act or enterprise of prostitution." RCW 9A.88.080, being a special statute, applies to the exclusion of the general statute punishing criminal conspiracy. State v. Cann, supra . The State erred in charging Jessup with conspiracy to promote prostitution; the conduct complained of must fall under the special prostitution statutes.
Jessup's second contention is that the trial court erred in revoking his right to proceed pro se. Three weeks before trial, counsel for the defendant filed a motion to withdraw as attorney of record and for an order permitting the defendant to represent himself. The defendant also moved for access to legal materials and the law library, and for supplies and other items necessary to prepare his defense. The court granted the motion to represent himself, but ordered that the defendant's attorney serve as his legal assistant. The trial judge personally contacted the jail administrator and arranged for a typewriter and paper for the defendant's use. The court noted that a telephone was available for prisoners' use, and permitted the defendant to examine the State's evidence against him. The defendant's legal adviser was instructed to provide the other materials and services necessary to prepare for trial.
Several days after this ruling, on motion of the prosecutor, the court revoked the defendant's pro se status. The prosecutor argued that the defendant's legal adviser was acting as his attorney-in-fact, and that the defendant did not knowingly waive his right to counsel. The court ruled that, despite his unequivocal request to proceed pro se, the defendant did not have full knowledge of the consequences of self-representation.
A criminal defendant has the constitutional right to represent himself at trial. Const. art. 1, § 22 (amendment 10). The right to self-representation is also guaranteed by the sixth amendment to the United States Constitution. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). State v. Fritz, 21 Wash.App. 354, 358-63, 585 P.2d 173 (1978), sets forth eight principles governing the exercise of the right of self-representation:
1. Every defendant in a criminal case has an independent constitutional right to represent himself or herself without the assistance of legal counsel ....
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2. In order to exercise this right, it is incumbent on the defendant to request it, and the court is not initially required to advise a defendant of that right ....
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3. The right must be exercised knowingly and intelligently....
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4. A demand to defend pro se must be stated unequivocally .... Even when the right is unequivocally asserted, however, it may still be subsequently waived by words or conduct....
5. The demand must be timely made....
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6. The right to proceed pro se cannot be used as a means of unjustifiably delaying a scheduled trial or hearing or to obstruct the orderly administration of justice....
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7. The right of self-representation cannot be permitted to justify a defendant disrupting a hearing or trial, or as a license to a pro se defendant to not comply with relevant rules of procedural and substantive law....
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8. Standby counsel may be appointed even over objection by the accused to aid the accused if and when he or she requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation becomes necessary ....
(Citations omitted.) See also State v. Watkins, 25 Wash.App. 358, 606 P.2d 1237 (1980).
At issue is whether the defendant...
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