State v. Marshall

Decision Date19 July 2001
Docket NumberNo. 66693-8.,66693-8.
Citation27 P.3d 192,144 Wash.2d 266
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Henry Lewis MARSHALL, Petitioner.

Nielsen, Broman & Assoc., Eric J. Nielsen and Eric Broman, Seattle, for petitioner.

Gerald Horne, Pierce County Prosecutor, Barbara L. Corey-Boulet, Deputy, Kathleen Proctor, Deputy, Tacoma, for respondent.


Henry Lewis Marshall pleaded guilty to aggravated first degree murder and was sentenced to death. In addition to our mandatory proportionality review Marshall now raises numerous issues relating to his plea and sentencing. However, because the trial court denied Marshall's motion to withdraw his guilty plea based on asserted lack of competence while failing to convene a required competency hearing pursuant to chapter 10.77 RCW, we vacate the guilty plea, reverse the conviction, and remand.

A. Background

On the morning of June 18, 1994, the 38th Street Pub in Tacoma was robbed. During the course of the robbery the perpetrator shot and killed Dennis Griswold, the owner of the business. Marshall was charged by the Pierce County prosecutor on June 27, 1994, with the aggravated first degree murder of Dennis Griswold in violation of RCW 9A.32.030(1)(a) and RCW 10.95.020(9). One aggravating factor was alleged: that Marshall killed Griswold in the course, furtherance, or flight from the crime of first or second degree robbery. Marshall pleaded not guilty at his initial arraignment on June 30, 1994.

1. Change of Plea to Guilty

On November 2, 1994, Marshall's appointed counsel requested a hearing to allow Marshall to change his plea to guilty, contrary to the advice of defense counsel. Both of his attorneys attempted to persuade Marshall against changing his plea, vainly arguing he should at least wait until the prosecutor decided whether to seek the death penalty. They also consulted with three other individuals to determine whether Marshall was mentally competent to enter such a plea. Chaplain Hack Yadon spent considerable time with Marshall during the week prior to the plea and believed he was rational. Dave Stewart, the jail's mental health professional, also saw Marshall and thought he was rational. Upon defense counsel's request Dr. Brett Trowbridge, a psychologist and licensed attorney, evaluated Marshall to determine whether he was competent to enter a plea. After a two hour interview the night before the plea Dr. Trowbridge also opined Marshall was competent, rational, and understood the consequences of his actions. None of these individuals was called to testify at the change of plea hearing, however.

At the hearing the trial court engaged in a summary colloquy with Marshall, asking about his plea, his competency, the nature of his offense, the potential consequences of his decision, and whether he had discussed the issue with his attorneys. Most of the questions could be answered yes or no. Concluding he was competent, the court then allowed Marshall to read a prepared statement in which he apologized to Griswold's family and friends and to the court, asked for their forgiveness, and indicated his desire to plead guilty against the advice of counsel. The court accepted Marshall's plea.

Twelve days after changing his plea the prosecutor notified Marshall of his intent to seek the death penalty.

In January 1995 Marshall's appointed counsel moved to withdraw. New attorneys were then appointed.

2. Motion to Withdraw Guilty Plea

In 1997 Marshall moved to withdraw his guilty plea claiming he was not mentally competent at the time he entered the plea to have knowingly, intelligently, and voluntarily waived his right to a trial. Without convening a statutory competency hearing, the court heard three experts in support of the defense motion as well as the testimony of defense consultant Trowbridge over defense objection.1

Dr. Barbara Jessen, a neurologist, testified Marshall's MRI (magnetic resonance imaging) scan on January 22, 1996, showed an unusual amount of brain abnormality for somebody who isn't "lying in a hospital." Report of Proceedings (RP) at 351. Of the hundreds of MRIs she had reviewed, she testified she had never seen a person present himself as well as Marshall with his level of brain atrophy. Dr. Jessen testified Marshall's ability to respond to stimulation and make decisions placed him in the fourth percentile of the population and "he is way out in the abnormal range." RP at 357. She opined Marshall's brain abnormalities were present in 1994, before the change of plea was allowed.

Dr. James Maxwell, a neuropsychologist, administered intelligence tests on which Marshall scored in the average-to-low-average range. In another I.Q. test, the Halstead Reitan, Marshall scored in the lowest first percentile. Dr. Maxwell met with Marshall three different times and noticed changes in his behavior corresponding to changes in his medication. He testified Marshall had significant brain damage leading to long-standing brain dysfunction. Dr. Maxwell testified Marshall was not competent to enter a plea in November 1994 because Marshall did not understand he would go to prison as a consequence of pleading guilty. Furthermore, Dr. Maxwell testified it would not be possible to determine whether a person could know the consequences of his or her actions based only on the two tests administered by Dr. Trowbridge.

Dr. Dorothy Lewis, a psychiatrist, interviewed Marshall for five hours and reviewed numerous medical records to reach her conclusion that Marshall suffered from bipolar mood disorder or manic depressive disorder. She investigated whether Marshall's bipolar disorder had a genetic component and testified both his father and mother were emotionally unstable people who physically and sexually abused him. Additionally, she noted Marshall's sister, brother, and half-sister had all been suicidal and exhibited signs of bipolar disorder. Dr. Lewis testified blood flow to different parts of Marshall's brain was restricted. This, in her opinion, adversely affected his ability to think, reason, and control himself.

Dr. Lewis also testified Marshall had been diagnosed as a paranoid schizophrenic by the Pierce County jail health clinic seven weeks after the offense and a few weeks before he entered his plea. Over the next several weeks he suffered from a psychotic illness with paranoia accompanied by auditory hallucinations, which was intermittently treated by several medications. However, Marshall had gone off this medication by the time of his plea. Dr. Lewis summarized her opinion that Marshall could not freely and voluntarily waive his constitutional rights because he was delusional and suffering from a psychotic depression at that time. She was also critical of Dr. Trowbridge's evaluation of Marshall's competency, opining he failed to recognize Marshall had been off his antidepressant medication for several weeks, and indicating Marshall's plea was "a manifestation of his increasingly depressed and delusional state of mind." RP at 664.

In response to this expert testimony presented to show Marshall's lack of competency, the state called Dr. Trowbridge. Dr. Trowbridge testified he evaluated Marshall at the request of defense counsel for two hours on the day before he entered his guilty plea. Marshall scored in the dull-normal range of an I.Q. test performed by Trowbridge—placing him in the lowest 15 percent of the population. However he scored "very well" on another brain-functioning test which placed him in the 86th percentile. Dr. Trowbridge was dismissive of the disparity between the two tests saying, "it is something to think about," but attributed the difference to the correlation between level of attained education and higher I.Q. scores. RP at 495-96. Although Dr. Trowbridge diagnosed Marshall as "mildly depressed," he noted it would be unusual for anyone in Marshall's position not to be somewhat depressed and he could not detect any major mental illness. Dr. Trowbridge, an attorney, testified he was aware of the premeditated intent element of aggravated murder. Marshall told him the shooting was accidental and "I did not intend to kill him." RP at 514. Dr. Trowbridge said the fact Marshall wanted to plead guilty to a premeditated intentional murder raised a question in his mind about Marshall's competency so he "made a note of it." RP at 516. Nonetheless, based upon his examination, Dr. Trowbridge concluded Marshall was competent to enter the guilty plea.

Dr. Trowbridge said he would have liked more time to evaluate Marshall and perform additional tests but the plea hearing was the next day so he was unable to review any of Marshall's records. He admitted he did not know Marshall had been diagnosed by the health clinic as a paranoid schizophrenic or that he had been treated with both antipsychotic and antidepressant drugs less than three months before the plea. Dr. Trowbridge also acknowledged he did not know Marshall was suicidal at the time he entered his plea, but said he would have talked with Marshall about it had he known. Nor did he know Marshall suffered from brain atrophy, though he said it would have been "interesting" to know at the time of his evaluation. Moreover, Dr. Trowbridge did not review Marshall's letter to the court and the prosecutor in which he confessed his crime, which he sent two days before the evaluation. Dr. Trowbridge agreed that if the letter suggested delusional thinking, as Dr. Lewis testified, it would have been important to his evaluation. Dr. Trowbridge admitted the letter did not make sense and said he would have questioned Marshall about it had he seen it.

The court denied Marshall's motion to withdraw his guilty plea despite finding "[i]t is clear that [Marshall] has impairment. It is clear that there is brain atrophy." RP at 701. The court also based its decision on its interaction with Marshall at the plea hearing saying, "I...

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