Thomas v. State, No. 70727-8 (Wash. 5/8/2003), No. 70727-8

CourtUnited States State Supreme Court of Washington
Writing for the CourtIreland
PartiesCOVELL PAUL THOMAS, Petitioner, v. STATE OF WASHINGTON, Respondent.
Decision Date08 May 2003
Docket NumberNo. 70727-8

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No. 70727-8
Supreme Court of Washington, En Banc.
Oral Argument Date: May 8, 2003
Filed: January 29, 2004

Appeal from Superior Court of Pierce County. Docket No: 99-1-00397-9. Judgment or order under review. Date filed: 02/01/2001.

Counsel for Appellant(s), Beth Marie Andrus, Attorney at Law, 1301 5th Ave Ste 3401, Seattle, WA 98101-2630.

Rita Joan Griffith, Attorney at Law, 1305 NE 45th St Ste 205, Seattle, WA 98105-4523.

Covell Paul Thomas, #741352,

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1313 North 13th Avenue, Walla Walla, WA 99362.

Counsel for Respondent(s), Barbara L. Corey-Boulet, Attorney at Law, County City Bldg Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2105.

Michelle Luna-Green, Pierce Co Pros Attorney, 930 Tacoma Ave S Rm 946, Tacoma, WA 98402-2171.

Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.

Amicus Curiae on behalf of American Civil Liberties Union Of Wa, David Roy East, Attorney at Law, 1201 3rd Ave Ste 4800, Seattle, WA 98101-3266.

Sarah Randolph Knight, Attorney at Law, 1201 3rd Ave Fl 40, Seattle, WA 98101-3029.


A Pierce County jury found Covell Paul Thomas guilty of one count of aggravated first degree murder, one count of residential burglary, and unlawful possession of a firearm in the first degree. The death penalty was imposed following the jury's determination that there were insufficient circumstances to merit leniency. We affirm each of his convictions but reverse his death sentence and remand for a new trial on

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the aggravating circumstances or for resentencing in accordance with this opinion.

Events before Homicide

Richard Geist owned a janitorial business that he had purchased from his mother, Reva Hall. Geist bought out part of the business; the remainder was purchased by Daryl Lynch, also known as Zaheed, who still owed Hall $144 at the time of the murder.

Geist hired Thomas in January or February 1998 to do custodial work for his business. They often socialized together outside of work. In March 1998, Thomas began talking to Lynette Ducharme, his then girl friend, about robbing Geist. Thomas knew that Geist would be paid between $4,000 and $5,000 at the end of March. When Ducharme asked Thomas what he would do if something went wrong during the robbery, he responded that he would shoot Geist.

Shortly before the murder, Thomas asked Ducharme's sister, Sandy, and Lisa Rodin, separately, whether they would be willing to distract Geist sexually as a "set-up" for $200. Neither woman accepted his offer.

Thomas also solicited his male friends to help him rob Geist. He contacted Jeremy Horyst about a month to two weeks prior to the day of the murder. During his conversation with Horyst, Thomas again acknowledged that he "might have to kill the dude," meaning Geist. Report of Proceedings (RP) at 4039. Horyst declined the offer. Horyst also testified that he had seen Thomas with a .38 caliber, semiautomatic gun around the time Thomas solicited him.

Ducharme testified that Thomas had told her about a week to two days before the murder that he had gotten his friend Edward Rembert to help him in the robbery. She testified that she often saw Thomas carry what she described as a ".35 revolver long barrel" gun, although she was not certain it was a .35 caliber. RP at 3807. Ducharme never saw this gun again after the day of the murder. She also stated that she had never seen Rembert with a gun.

Events on the Day of the Homicide: March 27, 1998

Geist was paid $5,566.20 on the morning of March 27, 1998, and told Laurie Miller, his account manager, about his plans for that night with a friend from Portland. Geist cashed his check then waited at the office for Lynch who made a payment toward the balance owed to Hall.

Around noon to one o'clock, Geist came by Ducharme's mother's house to give Thomas his paycheck. Ducharme testified that that afternoon, Thomas reiterated his plan to rob Geist and to meet him under the guise that they were going out to meet some girls.

Between 6:30-7:00 p.m., Thomas and Ducharme left to pick up Rembert. On the way, Thomas again paged Geist. The three then went to pick up Desir`e Azevedo, Rembert's girl friend. Ducharme explained that they would be dropping off Thomas and Rembert later because they had plans with Geist but did not, at that time, tell Azevedo that Thomas and Rembert were planning to rob Geist.

After drinking some Old English 800 malt liquor, Ducharme, with Azevedo, drove Rembert and Thomas to Geist's residence. Thomas told

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Ducharme to "sit and wait for him to call {her}" because she was supposed to pick them up later. RP at 3805. Ducharme recalled seeing Geist's van parked in front on his duplex. Ducharme and Azevedo returned to Ducharme's house to wait.

The Homicide

Raymond Cool is a janitor at Tacoma Baptist School and an unofficial security guard for the school.

On the night of the murder, Cool arrived at the school near 10:30 p.m. and was performing his rounds when his dog alerted him and ran around the corner of a building. Cool followed and as he rounded the corner, he saw a man zipping his pants. It appeared as though he had been urinating. Cool noticed that in front of the man, on the ground, was a bottle of Old English 800 beer. Cool described this man as a slender, black male about 6 feet 0 inches or 6 feet 1 inch tall. Cool also noticed a van behind this man with the sliding door open. Cool admonished the man to get off the school property, whereupon a voice from the interior of the van responded challengingly, asking Cool who he was and what right did he have to tell them what to do and to confront them. Cool's response was that he was a security guard, but the man in the van did not believe him and wanted to see a badge. This man's tone made Cool feel as though he was in danger — even with his dog and a baseball bat. For a second time, Cool warned them to get off the property; again, the man inside the van responded with a challenging tone.

Cool shined his flashlight into the van and, based on what he could see, testified that he deduced the person within its interior was seated behind the driver's seat as that was the only area in the car that he could not see with the flashlight beam. No one was seated in either of the front seats. Cool testified that he perceived that the voice inside the van was that of an African-American man.

Cool gave one last warning then left. From a distance, he noticed that the van backed down the hill and exited the gate that Cool had yet to lock and then paused on the side of the street. Cool continued to watch from his vantage point and "heard a huge commotion coming from the general direction of the van." Report of Proceedings at 3963. He then realized that the commotion and banging were gunshots — three to four of them. Two other witnesses who live in the area near Tacoma Baptist School testified they each heard multiple gunshots at this time — approximately 10:15-10:30 p.m. Cool ran back to the school to call the police and returned to see where the van was. He noticed it slowly driving down the road. The police came and surveyed the area but did not talk to Cool. Cool later found an Old English 800 bottle in the bushes near where he had encountered the van the night of the murder and told police. Cool was unable to identify from a photomontage the man he saw urinating.

The Burglary

Geist's neighbors in the duplex, Suzanne Sukauskas and Jameson McDougall, testified that Geist made every effort to come and go quietly since they had a small child. Geist's front door made a loud noise when opened or shut. Geist was always mindful of the door.

Early in the 11 o'clock hour the night of the murder, Sukauskas and McDougall heard Geist's van pull into the driveway and skid slightly on the

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gravel. They assumed it was Geist but heard a lot of fumbling with keys at the front door and described it as though someone was having trouble with the lock or trying to find the right key. They looked outside and saw Geist's van. Then they heard the front door slam shut, which made them doubt it was Geist since he was usually so quiet. The position of Geist's van in the driveway was also odd since it had been parked front-end first and the neighbors testified that he typically backed his car in. They heard a car pull up in the street out front playing loud music, then they heard a man knocking, then pounding on Geist's front door, calling out for Geist to open the door. This man then knocked softly on the neighbor's door then returned to Geist's door. McDougall peeked out the window and saw that the man knocking was a black male with dreadlocks and a pinstriped shirt.

This man was Cedric Walker, Geist's friend from Portland with whom Geist had also made plans for that night around 9:00 p.m. Walker drove a red Volvo. He testified that he had started knocking so vigorously because he had seen Geist's van parked in front and assumed he was home.

Walker then left, which McDougall saw through thwindow. McDougall also saw a white car briefly, and Sukauskas heard this car drive away since the music emanating from it died down as it did so. Neither saw the car Walker got into or knew whether the white car was Walker's. Moments after Walker left, Sukauskas and McDougall heard two sets of footsteps rushing out of Geist's house and into the van. These two persons drove the van away from the house. Sukauskas and McDougall heard nothing more from Geist's house except his phone ringing shortly after the two individuals left in the van. Ducharme received a phone call from Thomas about an hour after she had dropped him and Rembert off at Geist's house in which he said, "{i}t is done" and told her to hurry and pick them up. RP at 3809, 4855. She noted that he sounded rushed. As Ducharme pulled up to Geist's house in her white Plymouth Sundance, she saw a man...

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