State v. Thompson

• Decision Date: 16 July 2012
• Docket Number: Nos. 63241–8–I, 63709–6–I.,s. 63241–8–I, 63709–6–I.
• Citation: 290 P.3d 996,169 Wash.App. 436
• Parties: STATE of Washington, Respondent, v. Curtis Shane THOMPSON, Appellant.
• Court: Washington Court of Appeals

169 Wash.App. 436

290 P.3d 996

STATE of Washington, Respondent,

v.Curtis Shane THOMPSON, Appellant.

Nos. 63241–8–I, 63709–6–I.

Court of Appeals of Washington,

Division 1.

July 16, 2012.

Publication Ordered July 16, 2012.

Recognized as Unconstitutional

West's RCWA 10.58.090David Donnan, Susan Wilk, Washington Appellate Project, Seattle, WA, for Appellant.

Ann Summers, Deborah Dwyer, King County Superior Court, Seattle, WA, for Respondent.

ELLINGTON, J.

[169 Wash.App. 445]¶ 1 In three separate, notorious trials, Curtis Thompson was convicted of numerous charges stemming from a series of violent crimes in 2004. He contends his convictions should be reversed because the court refused his requests for substitute counsel or pro se status, thus violating his constitutional rights to conflict-free counsel and self-representation. But any conflicts between Thompson and his attorney were entirely of Thompson's deliberate making and did not interfere with counsel's effective representation. Thompson's initial requests to represent himself were equivocal and plainly intended to delay or obstruct the administration of justice. By the time his requests became arguably unequivocal, Thompson had waived the right to represent himself by his violently disruptive behavior, which was both constant and deliberate. Thompson raises many other issues in this appeal, both through counsel and pro se. Finding none persuasive, we affirm in all respects.

CHARGES

¶ 2 In 1985, Curtis Thompson was convicted of raping four women. He served 18 years in prison. The State petitioned to commit him as a sexually violent predator. Thompson testified, taking full responsibility for the 1985 rapes. A jury found the State had not met its burden for civil commitment, and Thompson was released in 2003. Ten months later, Thompson engaged in the series of violent crimes that are the subject of this appeal.

¶ 3 First, Thompson was arrested on August 23, 2004, and charged with burglary in the first degree, robbery in the second degree, two counts of assault in the first degree with sexual motivation, attempted indecent liberties, three counts of unlawful imprisonment with sexual motivation, and attempt to disarm a police officer. These charges arose from Thompson's conduct in accosting Lisa R., Megan K., and Richard B.¹ The information alleged that Thompson approached the two women outside Lisa's apartment building. He punched Lisa in the face, grabbed her purse, and chased both women into an elevator, where he ordered Megan to remove her shirt and bra, took Lisa's wedding ring and other property, and threatened both with further physical harm. When Richard attempted to come to their aid, Thompson punched him in the head and held him in the elevator. Later, in his attempt to escape, Thompson assaulted two police officers and attempted to take one officer's weapon. He was taken into custody.

[169 Wash.App. 447]¶ 4 The State later amended the information to charge Thompson with the earlier rape of Bernadette M., which occurred August 17, 2004. The information alleged that Thompson entered her home through a window, repeatedly raped her, rubbed bleach onto her body in an apparent attempt to obliterate evidence, and took her car. He was charged with burglary in the first degree, rape in the first degree, and taking a motor vehicle without permission.

¶ 5 In a separate information, the State charged Thompson with murder in the first degree in the death of Deborah B., whose DNA was found on the pants Thompson was wearing when he was arrested on August 23 and whose body was found on August 26. The State pursued alternative theories of intentional murder and felony murder predicated on rape in the first or second degree or burglary in the first degree.

¶ 6 Each incident was separately tried. The juries found Thompson guilty of all charges except attempted disarming of a police officer. The jury found that the burglaryand unlawful imprisonment in the first case and the murder in the third case were committed with sexual motivation.

¶ 7 Thompson's convictions resulted in five life sentences without the possibility of parole, plus several lesser terms.

I. ISSUES COMMON TO ALL TRIALS

¶ 8 Thompson raises numerous issues common to all three trials. These include his claims that the court violated his right to conflict-free counsel by denying his motions for substitute counsel, violated his right to self-representation by refusing his requests for pro se status, and violated his right to due process by requiring him to appear before the jury in restraints. ² To address these claims, it is necessary to set out the record in some detail.

[169 Wash.App. 448]¶ 9 Attorneys Richard Warner and Mark Adair had successfully defended Thompson in the sexually violent predator proceedings. They were appointed to defend him on the new charges. Despite their previous good relationship, Thompson soon demanded to have them removed. In April 2005, Thompson was scheduled to present a motion before Judge Ronald Kessler seeking to discharge Warner and Adair and appear pro se. Before he could be brought into the courtroom, however, Thompson became violent and physically attacked the jail officers. He was subdued and returned to his cell in a restraint chair.

¶ 10 Thompson renewed his motion to discharge Warner and Adair in August and October 2005. In October, he asked to have new counsel appointed. Judge Kessler denied both motions.

¶ 11 In March 2006, Thompson again moved to replace Warner and Adair and sought appointment of private counsel because “there's a conspiracy between the public defender's office and the King County prosecutor's office.” ³ He did not want to represent himself: “[T]he only alternative is, is going pro se. And I do not feel I am qualified to do that.” ⁴ Warner and Adair supported the motion, stating that because Thompson would not allow them to attend his ongoing competency evaluation, they would be unable to provide him with effective representation.

¶ 12 Judge Kessler asked Thompson whether he would refuse to cooperate with any attorney. Thompson agreed that was possible. Nevertheless, in an effort to move forward, Judge Kessler granted Thompson's motion and allowed Warner and Adair to withdraw. On March 8, 2006, John Hicks was appointed as counsel. Judge Kessler specifically instructed Thompson that he would not entertain a future motion to discharge Hicks in favor of new counsel.

[169 Wash.App. 449]¶ 13 By September 2007, however, the relationship between Thompson and Hicks had become acrimonious, and both Hicks and Thompson sought intervention from the court. Thompson requested numerous forms of relief including appointment as co-counsel with Hicks. Judge Helen Halpert held an ex parte hearing to explore these concerns.

¶ 14 The chief issue was a disagreement over trial strategy. Thompson wanted to pursue a mental defense, but after investigation and consultation with experts, Hicks had concluded that no mental defense was available. Judge Halpert agreed with Hicks about the infirmity of such a defense, and reminded Thompson that decisions about trial strategy are for counsel to make. She declined to replace Hicks, and observed that given Thompson's “inability to work with one set of very experienced lawyers, I don't believe the situation would be any different” if Hicks were replaced.⁵

¶ 15 In September and October, Thompson filed several pro se motions seeking new counsel. At a hearing before Judge Gregory Canova on October 8, 2007, Thompson complained about Hicks' representation and insistedhe be removed, suggesting he would even prefer to proceed pro se than with Hicks as counsel. But he explained, “I do not want to proceed pro se because I cannot investigate like this, and I cannot present my defense like this, so I need at least an investigator or experts to work with me.” ⁶

¶ 16 Thompson and Hicks were still struggling with their disagreement about Thompson's defense. Hicks informed the court Thompson would no longer speak to him and had threatened to kill him if he tried to visit. Hicks also reported that Thompson “has indicated if I proceed with my representation without his desired defense, he will stop the proceedings any way he can.” ⁷ Hicks believed he had a duty to withdraw.

¶ 17 Like Judge Halpert, Judge Canova agreed with Hicks' assessment of Thompson's desired mental defense. He explained to Thompson that no lawyer would be able to advance such a defense without supporting testimony from an expert and denied the motion for new counsel. Thompson then moved to proceed pro se.

¶ 18 When the court took up Thompson's motion to represent himself, Thompson became disruptive. Judge Canova warned Thompson that his behavior was “one of the major considerations in deciding whether or not to allow you to proceed pro se.” ⁸ Thompson's behavior did not improve, to the point that he was removed from the courtroom. Hicks noted for the record that Thompson threatened him on his way out, but that he (Hicks) did not anticipate it would ever “become relevant.” ⁹ The court denied both Thompson's motion for pro se status and Hicks' motion to withdraw.

¶ 19 One week later, with the first trial only 10 days away, Hicks supplemented his motion to withdraw. He explained, “I don't mind threats so much; I have been threatened many, many times in my career.” ¹⁰ Rather, Hicks believed he could not provide effective assistance because Thompson would not listen to his advice. Hicks candidly acknowledged, however, that “even if another attorney is put in the same situation, it probably would involve the same table turning, table up-ending acrimony I foresee at trial, if in fact I proceed as his lawyer.” ¹¹ Finding no reason to change his ruling, Judge Canova again denied Hicks' motion to withdraw.

[169 Wash.App. 451]¶ 20 The court then addressed Thompson's pro se motion seeking new counsel or, alternatively, to proceed pro se with standby counsel. Thompson...