State v. Nicholas
| Decision Date | 14 August 1989 |
| Docket Number | No. 21289-3-I,21289-3-I |
| Citation | 776 P.2d 1385,55 Wn.App. 261 |
| Court | Washington Court of Appeals |
| Parties | STATE of Washington, Respondent, v. Duane E. NICHOLAS, Appellant. |
Lenell Nussbaum, Washington Appellate Defender, for Duane E. Nicholas.
John Bell, King County Deputy Pros., Seattle, for State.
Duane E. Nicholas appeals from the judgment and sentence entered following his conviction on four counts of first degree robbery. Nicholas contends that he was denied his right to proceed pro se and that he was denied effective assistance of counsel when the trial court failed to grant a continuance. Nicholas also challenges two jury instructions.
Nicholas was charged by amended information with four counts of first degree robbery. The charges arose from robberies at a jewelry store, two convenience stores, and a liquor store that occurred between February 12, 1987, and May 2, 1987. Nicholas was arrested on May 5, 1987. A search of Nicholas' motel room, pursuant to a search warrant, produced various items of evidence introduced at trial.
All of the victims identified Nicholas' photograph from a photo-montage shortly after each robbery and identified Nicholas as the robber in court. The jury subsequently found Nicholas guilty as charged on all four counts. The jury also returned special verdicts on all counts finding that Nicholas was armed with a deadly weapon.
Because several issues arise from the trial court's pretrial and trial rulings, a more detailed summary of these events is required.
June 25, 1987. Nicholas appeared without counsel regarding his motion to proceed pro se. The deputy prosecutor informed the trial court that Nicholas had ignored court orders to contact the public defender's office. The deputy prosecutor requested permission to call the public defender's office herself to have an attorney contact Nicholas "to the effect only of determining whether or not he is in fact properly advised of the problems with proceeding pro se ..." Nicholas repeated his desire to proceed pro se, but expressed no objection to being contacted by an attorney. Trial was set for July 13, 1987.
July 10, 1987. Nicholas appeared and was accompanied by Dennis Hough, an attorney with Associated Counsel for the Accused. Hough informed the trial court that he was not appointed counsel for Nicholas "exactly," but that Nicholas had spoken with Hough's colleague Greg Girard on July 8, 1987. Hough stated that Nicholas "has not yet decided as to whether or not he will accept our representation."
Hough, on Nicholas' behalf, then made a series of motions: for "access to the law library" to prepare his defense; for paper and a typewriter; for copies of discovery materials, such as the police reports; and for access to the videotape that the State intended to introduce at trial. Hough indicated that Girard would excise the names and addresses from the discovery materials to eliminate any risk that Nicholas might attempt to intimidate potential witnesses.
The trial court, noting that trial was to start on July 13, treated Nicholas as though he were acting pro se and essentially granted all of his motions: 1) ordered copies of discovery be provided to Nicholas, with the names and addresses of the witnesses removed; 1 2) ordered that Nicholas be supplied with paper; 3) appointed Girard as a "runner to the law library" to assist Nicholas in preparing his defense; and 4) ordered that the videotape be shown to Nicholas prior to its introduction at trial.
The trial court left open the possibility of further action if these measures proved inadequate. At Hough's request, the trial court also provided $200 should Girard desire to hire a legal intern to perform some of the "legwork" in carrying out the duties of "runner."
July 21, 1987. Nicholas appeared on the criminal motions calendar accompanied by Greg Girard. Both the prosecutor and the trial court thoroughly rehearsed with Nicholas the difficulties of proceeding pro se. During the course of this examination, Nicholas indicated that he preferred a "legal advisor counsel" to having an attorney represent him. Nicholas also informed the trial court that he was not asking Girard to be his "legal advisor" and that he preferred to hire his own "legal advisor counsel." Nicholas repeatedly asserted that he was not indigent and that he was negotiating with Anthony Savage to be his "legal advisor counsel." Trial had been re-set for August 17, 1987. The trial court reminded Nicholas that the trial date was rapidly approaching and then ruled that Nicholas could proceed pro se.
In light of the testimony, Girard expressed an understandable curiosity about his future role in the proceedings. Nicholas stated his willingness that Girard be available for assistance until he secured the services of his chosen advisor. The trial court refused to grant Nicholas' request for physical access to the library, observing that the authorization of funds for a "runner" was sufficient to provide the requested materials.
September 2, 1987. Nicholas appeared on the morning of September 2, the rescheduled trial date, accompanied by Greg Girard, and informed the court that "I don't feel that my case is properly prepared at this time." Nicholas stated that Girard "is supposed to be my legal advice counsel and he has not take[n] any action on preparing this case." In particular, Nicholas complained that Girard had not interviewed certain witnesses, obtained second opinions on various pieces of evidence, or otherwise prepared the defense. The trial court then explained to Nicholas that if he wanted his legal advisor to undertake certain actions, then it was necessary for Nicholas to take the initiative.
Nicholas acknowledged that he had not given Girard or the State his witness list and had not talked to Girard since August 19. Girard informed the court that Nicholas had been provided copies of all discovery materials received from the State and that he [Girard] had been available to respond to Nicholas' requests. When asked whether he wanted to proceed pro se or have Girard represent him, Nicholas replied that he had "no alternative" and wished to have Girard "proceed with the case."
Girard then moved for a two-week continuance. The State objected, suggesting that, given the existence of three outstanding arrest warrants in other states and his familiarity with the criminal justice system, Nicholas was intentionally trying to delay the proceedings. In response, the trial court continued the case until the following morning, ordering the State to make its witnesses available to Girard. The trial court indicated that it would consider a further extension at that time should Girard, as an officer of the court, deem it necessary.
September 3, 1987. On the following morning, September 3, 1987, Girard informed the court that he was not yet ready for trial. Girard stated that he had talked to five of the State's civilian witnesses but had been unable to contact several witnesses or undertake any other investigation of the State's case. Although requesting a continuance, Girard also stated, "I was hoping that the State could put their case on this week and ask if we could come back on Tuesday with our case to give me the weekend." The trial court essentially granted this request:
I think we should proceed, but I do want to proceed with deliberate steps. It seems to me that we can go ahead and start picking the jury. We are going to have a long weekend, and we can at least go through the five witnesses that you have already indicated, if we get that far. It may be that we won't get that far. We may have a problem getting jurors even, because, as you know, a lot of their terms will end this Friday, tomorrow, and we may not be able to get them to stay over for the long weekend. So there are a number of potential glitches or problems that we could face. Then we will have the weekend. And I might as well tell you now, tomorrow I have got to act as Special Inquiry Judge in the afternoon. That means we can't go beyond 2:45 at the latest, and, if it gets to that point by noon tomorrow we have gone through those five witnesses, we will just simply recess for the rest of the week and come back Tuesday and then that will give you those three days and I know you want to work over the weekend to take a look at those things and let me know, of course, Tuesday morning if there are any problems. I think that's what we ought to do, at least get started.
Girard expressed no objection to this procedure. The court then ruled on Girard's motions in limine, the State presented one witness, and the trial was recessed until the following day, Friday, September 4, 1987.
September 4, 1987. Girard's sole request was to recess at noon in order to talk to the State's fingerprint expert, a request that the trial court granted. The State then presented testimony from six witnesses, and the trial was recessed at 11:30 a.m. for the Labor Day weekend, until the following Tuesday, September 8, 1987.
September 8, 1987. The proceedings resumed and the State presented its remaining witnesses. Defense counsel then requested a continuance, stating that he had been unable to contact several witnesses, including Nicholas' mother in Chicago, 2 and that he had been unable to have an independent examination of the fingerprint evidence. Counsel was unable, however, to make an offer of proof as to what the witnesses might say. The trial court denied the defense counsel's request.
From the information that I can glean, I think the inference is that it's just been one delay after another by the defendant, for whatever reason he may have had. The opportunity to call his mother, sister, have been there for some time, and his sister's phone number evidently is no longer current. His mother doesn't seem to wish to answer it, answer any phone calls.
These other individuals, we just don't know anything about them, whether they...
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State v. Martinez
...is harmless error when there is no possibility the jury convicted the defendant on the uncharged alternative. State v. Nicholas, 55 Wn. App.261, 273, 776 P.2d 1385 (1989) (finding harmless error where a special verdict that defendant was "armed with a deadly weapon" removed the possibility ......
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State v. Kirwin
...82 Wash.App. 185, 188, 917 P.2d 155 (1996) (jury erroneously instructed on uncharged statutory alternative means); State v. Nicholas, 55 Wash.App. 261, 272–73, 776 P.2d 1385, review denied, 113 Wash.2d 1030, 784 P.2d 530 (1989); State v. Mitchell, 149 Wash.App. 716, 721, 205 P.3d 920 (2009)......
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State v. Emery
...a firearm or other deadly weapon.The statute establishes alternative means of committing first degree robbery. State v. Nicholas, 55 Wash.App. 261, 272–73, 776 P.2d 1385 (1989). ¶ 51 RCW 9A.44.040, the first degree rape statute, provides that (1) A person is guilty of rape in the first degr......
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State v. Silva, 45371-8.
... ... The court then concluded that because the trial court's ruling did not interfere with standby counsel's function, Bebb had not been denied access to the court. 45 ... In State v. Nicholas, 46 we relied on Bebb in rejecting a pretrial detainee's argument that he was denied access to the courts. We held that although Nicholas was denied physical access to the law library, his claims were nevertheless meritless because standby counsel was available to him to provide him with any ... ...