State v. Thompson
State v. Thompson
Opinion of the Court
¶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
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.
¶5 In a separate information, the State charged Thompson with murder in the first degree in the death of Deborah B., whose DNA (deoxyribonucleic acid) 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 burglary and 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.
¶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.”
¶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.
¶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.
¶15 In September and October, Thompson filed several pro se motions, seeking new counsel. At a hearing before Judge Gregory P. Canova on October 8, 2007, Thompson complained about Hicks’ representation and insisted he 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.”
¶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
¶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.”
¶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.”
¶21 The court nevertheless conducted a colloquy to evaluate Thompson’s request and concluded Thompson had not waived his right to counsel.
¶22 Thompson then threatened to kill Hicks and his “cronies, including . . . any justices, cops, whoever, any of these idiots that work for these idiots in this corrupt system.”
¶23 Hicks renewed his motion to withdraw, not because of Thompson’s threats of violence but because “[t]here is just no way I can communicate with the man. There is no way I can guide him. In fact, he gets worse the more I try to convince him that his position is simply erroneous, as well as my own efforts to prepare his case.”
¶24 The court acknowledged Hicks’ concerns but denied his motion to withdraw. “The reality is, as I noted to Mr. Thompson,... I have no belief that any other counsel, any other competent counsel, let me put it that way, would have
¶25 In a November 5, 2007 status conference before Judge Nicole Maclnnes, Thompson renewed his motion to remove Hicks and represent himself. Judge Maclnnes denied the request as not constituting an unequivocal, knowing, and voluntary waiver of the right to counsel.
¶26 On January 18, 2008, the issue arose again. Thompson was hostile and threatening toward the court and others in the courtroom, persistently interrupted and yelled at the court, the prosecutor, and Hicks, and threatened to kill Hicks. Judge Maclnnes reserved ruling.
¶27 On February 15,2008, Judge Maclnnes attempted to conduct a colloquy to evaluate Thompson’s request to represent himself. He was again threatening toward the court and others, constantly interrupted Judge Maclnnes, and yelled at the court and counsel. The prosecutor described his demeanor as “extremely belligerent” and “menacing” toward the court.
¶28 On February 28, 2008, the court again tried to address the issue. Hicks told Thompson that if he would “allow the judge to just ask you the questions .she’s required to ask, she’ll probably grant your motion to go pro se.”
¶29 Noting Thompson’s “consistently and constantly disruptive” behavior, the court found there is “no conceivable scenario” under which trial could proceed with Mr. Thompson representing himself.
¶30 In March 2008, Hicks became concerned that Thompson’s behavior was increasingly bizarre and asked for another competency evaluation. Judge Machones agreed to authorize an evaluation “in the interests of caution” but warned Thompson that “a continued unwillingness to talk to Mr. Hicks and to be hostile to him as a defense attorney will not result in your being found incompetent to stand trial.”
¶31 The case was transferred to Judge Palmer Robinson. Based upon the evaluation from Western State Hospital, she found Thompson competent to stand trial.
¶32 When Thompson raised allegations of discovery violations, Judge Robinson set a hearing to address his concerns. The discovery issue was not resolved to Thompson’s
¶33 Judge Robinson had informed herself on the history of the issue and had listened to recordings of many of the hearings. She denied the motion for substitute counsel: “Any issue between you and Mr. Hicks is your failure to cooperate with him and your insistence on his pursuing theories which are not supportable legally or factually, and is an issue which would be revisited with any other attorney whom I or the Office of Public Defense appoint to represent you. That motion’s denied.”
¶34 At a later hearing, Thompson renewed his request to represent himself “if I can’t disqualify [Hicks].”
¶35 The court warned Thompson that he was “perilously close” to waiving his right to be present or to represent himself.
¶36 The next hearing was scheduled to address courtroom security issues. But Thompson had other ideas. After purporting to change his plea to not guilty by reason of insanity, he demanded a ruling on his discovery motions. Judge Robinson indicated the motions had already been denied. Thompson erupted, “I’m not going to let you speak because all you have to say is bullshit. . . . Don’t have me brought before your presence again, okay. We’re through, bitch. Don’t - I don’t want to see you again.”
¶38 Thompson refused to attend the next scheduled hearing.
¶39 At the next, he was immediately belligerent. Judge Robinson asked whether he was planning to “continue to be disruptive and speak out of turn and threaten people.”
¶40 Concerned about the possibility that Thompson’s behavior would eventually result in a waiver of his right to be present during trial, and that Thompson might therefore have to observe proceedings by video from another location, Hicks asked the court to appoint liaison counsel to relay messages to and from Thompson. The court appointed Philip Tavel.
¶41 Before each trial, Thompson renewed his motion to proceed pro se, and each time the motion was denied.
A. First Common Issue: Right to Conflict-Free Counsel
¶42 Thompson contends the court denied him his Sixth Amendment and article I, section 22 rights to conflict-free counsel when it refused to appoint an attorney to replace John Hicks.
¶43 Whether to grant such a request is a matter within in the court’s discretion.
¶44 Communications Breakdown. It is apparent that communication between Hicks and Thompson collapsed early in their relationship. But it is also plain from the record that the breakdown was entirely one-sided. Hicks never stopped trying to communicate with Thompson, even though his efforts met with verbal abuse and threats. “It is well settled that a defendant is not entitled to demand a reassignment of counsel on the basis of a breakdown in
¶45 Irreconcilable Conflict: Defense Theory. Thompson also alleged an irreconcilable conflict with Hicks. To determine whether the trial court erred in failing to substitute counsel on this basis, we consider the extent of the conflict, the adequacy of the inquiry, the timeliness of the motion, and the effect of the conflict on the representation actually provided.
¶46 The principal basis for Thompson’s allegation of conflict was that Hicks would not pursue a mental defense. Thompson wanted to focus his defense upon his state of mind after he was released from prison and required to register as a sex offender, and to present his theory that the State incited “vigilante justice” against sex offenders.
¶47 Thompson’s theory was insupportable, but Hicks went to great lengths to determine whether a viable mental defense existed. Dissatisfied with the quality of one competency evaluation, he obtained funds to conduct another. He engaged a nationally renowned psychiatrist to evaluate
¶48 The court, in the person of several experienced trial judges, agreed with Hicks’ assessment. Judge Halpert observed that any mistreatment Thompson suffered upon release was not a legal defense and would not be admissible at trial. Judge Canova explained that Thompson needed “an expert who is credentialed who will at least argue in your behalf that a particular defense exists.”
¶49 A disagreement over defense theories and trial strategy does not by itself constitute an irreconcilable conflict entitling the defendant to substitute counsel because decisions on those matters are properly entrusted to defense counsel, not the defendant.
¶50 The same is true here. Hicks provided excellent representation in spite of the disagreement, new counsel would have given the same advice, and great difficulty would have resulted from substitution of counsel.
¶51 Irreconcilable Conflict: Discovery. Thompson’s other frequent complaint involved a perceived failure to provide him with discovery. This issue was the subject of several hearings. Hicks, the prosecutor, and the court all went to great lengths to ensure that Thompson received all discovery to which he was entitled. At one point, counsel agreed to provide Thompson with a new copy of the 8,000 pages of discovery. Subsequent hearings show that counsel continued to work to provide Thompson with the materials he requested.
¶52 Neither the nature nor the extent of the conflict between Thompson and his attorney justified substitution of counsel.
¶53 Irreconcilable Conflict: Hicks’ Efforts To Withdraw. Thompson also emphasizes Hicks’ efforts to be removed from the case and cites Holloway v. Arkansas for the proposition that the court should defer to counsel’s opinion about conflicts with clients and, presumably, order substitute counsel at appointed counsel’s request.
¶55 This assertion is spurious. Thompson’s motions to remove Hicks in favor of substitute counsel or pro se status were heard in at least nine hearings before Judges Halpert, Canova, Maclnnes, and Robinson. Judges Halpert, Canova, and Maclnnes each held at least one ex parte hearing with the prosecutor absent, to allow Thompson and Hicks to fully articulate the extent of their conflict and the breakdown in communication.
¶56 Although the court made no formal inquiry into the time necessary for new counsel to prepare or the inconvenience and delay that substitution of counsel would cause, it was evident from the circumstances that any substitution would cause significant delay. Thompson faced three trials
¶57 Because the conflict and communication breakdown were attributable entirely to Thompson and could not be reasonably expected to resolve with substitution of counsel, the court did not abuse its discretion by denying Thompson’s motions.
¶58 Constructive Denial of Counsel: Inadequate Defense. Thompson also contends the failure to appoint substitute counsel in these circumstances resulted in a constructive denial of his right to counsel. He relies on United States v. Trung Tran Nguyen, in which the Ninth Circuit observed, “Even if present counsel is competent, a serious breakdown in communications can result in an inadequate defense.”
¶59 The collapse of the attorney-client relationship may so degrade the quality of the defense as to deny the accused effective representation. But that was clearly not so here. Despite Thompson’s unrelenting insolence, verbal abuse, and refusal to cooperate, Hicks remained a capable and determined advocate. He filed motions to suppress evidence. He vigorously opposed the State’s efforts to present evidence of Thompson’s past sex crimes. He used cross-examination and closing argument to highlight gaps in the
¶60 That fact distinguishes his case from some on which he relies. In Brown v. Craven, the court found Brown’s defense to be “perfunctory” and stated that it would not be unreasonable to believe that had Brown been represented by an attorney in whom he had confidence, he would have been convicted of a lesser crime.
¶61 Thompson was not denied his right to effective representation and in fact received excellent representation.
¶62 Thompson next contends he was denied his right under the Sixth Amendment and article I, section 22 to represent himself at trial.
¶63 Assessment of a defendant’s request to waive the right to counsel and represent him- or herself involves several competing constitutional questions. Courts must honor a properly made request for self-representation. But because a defendant necessarily waives the right to counsel by invoking the right to represent himself, courts must also indulge in “ ‘every reasonable presumption’ ” against waiver of the right to counsel.
¶64 To determine the validity of such a request, the trial court must examine the facts and circumstances and the entire record.
¶65 Until just before his first trial, Thompson’s requests to represent himself were equivocal and were obviously intended in part to bolster his effort to have Hicks replaced. He told Judge Kessler, “I do not feel I am qualified” to
¶66 Thompson maintains that his requests to Judge Canova and Judge Maclnnes were not equivocal, pointing out that he specifically cited Faretta v. California, which recognized a defendant’s Sixth Amendment right to self-representation.
¶67 Thompson’s later requests for pro se status before Judge Maclnnes and Judge Robinson were less equivocal. In a February 2008 hearing, he again cited Faretta, stating, “[Y]ou’re refusing me pro se status that has already been fucking recognized under the United States Supreme Court under the Faretta ruling.”
¶68 Thompson’s behavior did not improve when Judge Robinson took over. He continued to threaten to kill Hicks and harm court officers, repeatedly called Judge Robinson names and told her to “die in hell,”
¶69 Thompson contends his behavior is irrelevant. He relies on our Supreme Court’s opinion in State v. Madsen
¶70 But Thompson was not merely obnoxious, and his behavior did not simply cause difficulty in the administration of justice. Rather, his behavior was so extreme as to preclude any proceedings at all, forcing the court to remove him from the courtroom in order to conduct its business.
¶71 “The right of self-representation is not a license to abuse the dignity of the courtroom.”
¶72 Five judges tried to persuade Thompson to control himself, without success. Thompson made it abundantly clear he intended to obstruct the administration of justice. The judges repeatedly concluded that his behavior constituted deliberate attempts to disrupt and obstruct the proceedings.
¶73 In this respect, his case is similar to State v. Hemenway.
¶74 Division Two of this court held that “considering Hemenway’s continuous and purposeful disruptive misconduct toward the court and its officers, the totality of the circumstances of Hemenway’s self-representation request, and the presumption against waiver of a right to counsel,” the trial court did not err in denying the request.
¶75 Thompson’s behavior was far more purposefully disruptive than Hemenway’s, and the record establishes that Thompson’s motive was to delay or prevent trial for as long as he could, rather than to actually achieve self-representation. The court properly denied his requests for pro se status.
C. Third Common Issue: Restraints
¶76 Thompson contends the court violated his right to due process by ordering that he be held in restraints during all three trials.
¶78 But the court has discretion to order appropriate security measures where there is “evidence which indicates that the defendant poses an imminent risk of escape, that the defendant intends to injure someone in the courtroom, or that the defendant cannot behave in an orderly manner while in the courtroom.”
¶79 There was abundant evidence of the need for restraints on Thompson. He had engaged in numerous episodes of assaultive or threatening behavior in the jail, including attempting to assault a court detail officer while in restraints (April 2005), threatening two officers (October 2005) , charging at officers while in restraints (January 2006) , spraying urine and feces at another inmate (March 2006), refusing to be handcuffed (March 2006), refusing to return to his cell (June 2007), attempting to strike officers with broken leg irons, and threatening to kill officers and their families (December 2007). Thompson also acted out in or near courtrooms. He jerked away from officers in an apparent escape attempt (March 2008), causing injuries to himself and another. He repeatedly threatened to kill his
¶80 Further, Thompson was facing his final “strike,” and the court observed that he had nothing to lose by assaulting people or attempting to escape. The court also observed that “Mr. Thompson has shown considerable strength and shown that the threat of physical pain has not prevented him from initiating physical altercations with corrections officers in the past.”
¶81 The court considered several security alternatives, including “no restraints, ‘soft’ restraints, the Oregon boot, hard restraints, the restraint chair, and the Band-It Prisoner Transport and Courtroom Control System.”
¶82 For the first trial, the court concluded Thompson should be held in soft restraints in the courtroom if he could behave appropriately and would otherwise watch the trial by video feed. For the second trial, the court concluded that “[b]oth the Band-It and soft restraints used at defendant’s waist and hands are necessary to protect the safety of all
¶83 Thompson contends the court did not properly consider less restrictive alternatives before ordering him restrained. Specifically, he argues the court “simply did not consider increasing the number of courtroom deputies or requiring several deputies to sit behind Thompson as an alternative to using physical restraints.”
¶84 But Thompson cites no authority for the proposition that the court must consider every possible alternative or any particular alternative before ordering the defendant restrained, and we do not agree that a crowd of uniformed deputies surrounding the defendant would be less prejudicial than hidden restraints. Further, the court’s observations that Thompson could cause injury to someone in the two seconds it would take a guard to activate the Band-It System and that the “threat of physical pain has not prevented him from initiating physical altercations with corrections officers”
II. ISSUES PERTAINING TO FIRST TRIAL
A. Jury Unanimity
¶85 The first trial involved Thompson’s assault and unlawful imprisonment of two women and a man in a Seattle apartment building. The charges included two counts of second degree assault with sexual motivation based on Thompson’s conduct in (1) punching Lisa in the chin and taking her handbag when she tried to exclude him from the building, then taking more of her personal property in the elevator; (2) ordering Megan to remove her shirt and bra in the elevator; and (3) punching Richard in the head when he tried to come to the women’s aid. Both assault counts were elevated to felonies based on the allegation that they were committed “with intent to commit the felony of [r]obbery and [i]ndecent [l]iberties.”
¶86 The to-convict instructions for these counts required the jury to find that Thompson had assaulted Lisa and Richard and “[t]hat the assault was committed with intent to commit robbery in the second degree or indecent liberties.”
¶87 Thompson contends he was entitled to a unanimity instruction with respect to which crime, robbery or indecent liberties, formed the basis of each count. “Where the State presents evidence of several distinct acts, any one of which could be the basis of a criminal charge, the trial court must ensure that the jury reaches a unanimous verdict on one particular incident.”
¶88 But the State did not charge Thompson with multiple acts that could constitute each count of assault.
¶89 Thompson also contends he was entitled to a unanimity instruction with respect to the sexual motivation allegations on the burglary, unlawful imprisonment, and assault charges. He argues the sexual motivation allegation could have been predicated on separate acts because there was evidence that he touched Lisa’s arm and later instructed Megan to disrobe, and the State failed to elect the act upon which it relied.
¶90 This is incorrect. The prosecutor elected in closing argument to rely on Thompson’s demand that Megan disrobe:
Then I need to talk, I think, about one more, and then I’ll be done. The State has charged, [h]as alleged, that a number of these crimes were committed for purposes of the defendant’s— were allegedly committed with sexual motivation. That’s count one, the burglary one, when he first got in, the assaults against Lisa . . . and Richard . . ., the unlawful imprisonment of Lisa, Megan, and Richard .... Those are all alleged to have been done with sexual motivation.
Jury instruction 37 says the following and defines sexual motivation, quote, “sexual motivation means that one of the purposes for which the defendant committed the crime was for*475 the purpose of his sexual gratification.” It specifically does not say that that was the only purpose or even if that was the main purpose. But if you find after your good deliberations that one of the purposes for what he did towards Megan . . . was for his sexual gratification, [he\ is guilty. Do we have any doubt here that one of those purposes was in fact sexually motivated?[126]
The prosecutor did not even mention that Thompson touched Lisa’s arm. Because the State clearly identified the act upon which the sexual motivation allegation was based, no unanimity instruction was necessary.
¶91 Further, no unanimity instruction is required where the evidence indicates a “ ‘continuing course of conduct.’ ”
B. Evidentiary Sufficiency: Sexual Motivation
¶92 Thompson next contends there is insufficient evidence to support the jury’s finding that his unlawful
¶93 An allegation of sexual motivation requires the State to prove that sexual gratification was among the purposes for commission of the charged offense.
¶94 Relying on State v. Halstien for the proposition that “ ‘the finding of sexual motivation [must] be based on some conduct forming part of the body of the underlying felony,’ ”
¶95 Thompson mischaracterizes the record. The testimony was that Richard tried to intervene in Thompson’s attack on Megan and Lisa and was beaten and held in the
¶96 We see no basis for reversal in the first trial.
III. ISSUES PERTAINING TO SECOND TRIAL
¶97 Thompson’s second trial involved charges of burglary in the first degree, rape in the first degree, and taking a motor vehicle without permission. The State alleged Thompson entered Bernadette’s home through a window, repeatedly raped her, rubbed bleach onto her body in an apparent attempt to obliterate evidence, and took her car.
A. Evidence of Past Rapes
¶98 The court admitted evidence of the 1985 rapes under RCW 10.58.090 and ER 404(b).
¶99 ER 404(b) generally prohibits the use of evidence of other crimes to prove character, in order to show action in conformity therewith. Such evidence “may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
¶100 The court found that evidence of Thompson’s other rapes was admissible to prove identity. To admit
¶101 The court identified substantial similarities. Each of the victims was a white female in her 20s. Thompson attacked them in their homes in the early morning hours while they were sleeping. He spent significant time in each victim’s home before waking her. He awoke them by touching them or by covering their mouths. He covered each victim’s face or head during the assault. He disabled or took each victim’s telephone. He tied each victim with a ligature he found at the scene. He told each victim he would kill her. He raped three of the four victims vaginally with his fingers. In two incidents, including Bernadette, he ejaculated onto the victim’s back and bed sheets and then took the sheets.
¶102 Thompson contends the prior rapes were not admissible to prove identity because they were not identical. He points out that he used a vibrator to rape one of the 1985 victims. He brutalized one victim but did not torture the others. He “fell back and then fled” when one woman shoved him.
¶103 Thompson contends the common features were not unusual or distinctive. He contends that being in a victim’s home for a significant period of time before assaulting her, disabling her telephone, covering her mouth, using a liga
¶104 We disagree. These features are distinctive, not common, especially in combination. They are strongly suggestive of a single perpetrator. Thompson’s description of the shared features omits some of the more distinctive aspects, including entering homes while victims slept and spending time rummaging around, taking personal items of little value, awakening victims by covering their mouths, covering their heads or faces during the rapes, and using something found at the scene as a ligature.
¶105 “Even when features are not individually unique, appearance of several features in the cases to be compared, especially when combined with a lack of dissimilarities, can create sufficient inference that they are not coincidental, thereby justifying the trial court’s finding of relevancy.”
B. Judicial Comment
¶106 A judge is constitutionally prohibited from conveying to the jury an opinion about the merits of a case, or instructing the jury that a fact issue has been established.
¶107 Bernadette testified that after Thompson sexually assaulted her and rubbed bleach onto her back and into her vagina, he wandered about, saying, “[W]hat am I going to do with you?”
¶108 Over the defendant’s objection, the court gave the following jury instruction regarding the charge of taking a motor vehicle without permission:
Permission means to consent to the doing of an act which, without such consent, would be unlawful. In order to consent to an act or transaction, a person must act freely and voluntarily and not under the influence of threats, force or duress.[149]
Thompson does not contend this is an incorrect statement of the law but argues that in context, it was an impermissible comment on the evidence and urged the jury to discount evidence that the victim freely offered her car “without instigation or suggestion by her assailant.”
¶109 Thompson contends this case is analogous to State v. Hermann, a first degree theft case in which the court instructed the jury, “ ‘Evidence of a retail price may be sufficient to establish value.’ ”
¶110 In Hermann, however, the court’s instruction suggested the jury could disregard certain evidence entirely. In essence, the court defined “value” as the “retail price,” making evidence concerning the wholesale price irrelevant.
¶111 Thompson also relies on In re Detention of R.W., an involuntary commitment proceeding.
¶112 The court’s instruction was not a comment on the evidence.
C. Evidentiary Sufficiency
¶113 Thompson relies on Bernadette’s testimony that she offered Thompson her car to argue there was insufficient evidence to support his conviction for taking a motor vehicle without permission. But the evidence established that Bernadette offered Thompson her car only to
¶114 Viewed in the light most favorable to the State, a rational jury could conclude beyond a reasonable doubt that Bernadette did not give effective permission to Thompson to take her car.
D. Prosecutorial Misconduct
¶115 One of the 1985 victims, Virginia B., was unwilling to testify in these trials. The prosecutor indicated he did not intend to introduce the fact of Thompson’s conviction in her case unless Thompson opened the door. Thompson contends the prosecutor committed reversible misconduct by cross-examining him using his own statements about that crime.
¶116 During direct examination, Thompson testified he was convicted of “so-called sexual assaults” in 1985 “based only ... on my so-called voluntary confession.”
¶117 On cross-examination, he testified he was the victim of pervasive government oppression and a conspiracy to have him killed. Regarding his 1985 convictions, he testified that “a lot of those charges in ’85 were trumped up, believe me.”
¶118 The prosecutor then referred Thompson to his testimony in his civil commitment trial:
*483 Q: Let’s talk, Mr. Thompson, about what you stated under oath. “Question: I’d like to now ask you some questions about responsibility. Who’s responsible for the rapes of Susan ..., Carol..., Marcia... and Virginia... ? Answer: I am wholeheartedly. I have taken responsibility for those crimes. Question: Do you blame anyone else? Answer: No, I would never blame anybody else for that.”
Did I read that correctly, Mr. Thompson?
A: That could have been my testimony, yeah. I don’t remember specifically.[160]
¶119 Thompson claimed he was under “extreme duress” when he testified in the civil commitment trial, “the police concocted a lot of that information and tried to make me out to be somebody I wasn’t,” and “I didn’t do what they said I did. . . . They were trying to make it out a lot worse than it actually was.”
¶120 The prosecutor then asked whether Thompson recalled confessing to the 1985 assaults. Thompson responded that his confession was not signed and “I don’t believe I okayed that confession being admitted.”
¶121 The prosecutor pursued Thompson’s claim of “empathy for the victims,” asking whether he recalled making specific statements to detectives detailing the gruesome rape of Virginia.
¶122 The prosecutor asked a series of questions that included details from his confession to raping Virginia, but Thompson refused to respond: “I’m not answering anything about that confession or that conviction, for that matter.... I don’t recall any of it. That was 20-something years ago. I paid my debt to society.”
¶ 123 Based upon this exchange, Thompson contends the State improperly relied on facts not in evidence because it did not introduce his testimony from the commitment trial or the testimony of Virginia. He argues the prosecutor committed further misconduct by referencing that conviction in closing argument.
¶124 To prevail on a claim of prosecutorial misconduct, a defendant must show the conduct was both improper and prejudicial in the context of the entire record.
¶125 A prosecutor is entitled to impeach a defendant’s testimony. Thompson testified that his 1985 confessions were coerced and that he did not “do what they said I did.”
¶126 Thompson relies on State v. Allen S.
¶127 Thompson also relies on State v. Jones, which held that misconduct occurred when the prosecutor introduced inadmissible evidence on redirect examination of an officer and then emphasized that evidence in closing argument.
¶128 Thompson has not established improper conduct.
¶129 We see no basis for reversal in the second trial.
A. Amendment of Information
¶130 Thompson was initially charged with first degree premeditated murder in the death of Deborah B. The State later amended the information to add an alternative count of first degree felony murder, with the predicate felonies being rape in the first or second degree, or burglary in the first degree.
¶131 Subsequently, the legislature enacted RCW 10.58-.090, which allowed admission of evidence of other sexual offenses when a defendant is charged with a sex offense.
¶ 132 A trial court may permit an information to be amended at any time before verdict if substantial rights of the defendant are not prejudiced.
¶133 The State is required to file a sexual motivation allegation “when sufficient admissible evidence exists,
¶134 Thompson argues the court erred by allowing the State to amend the information because the only evidence supporting the amendment was not admissible unless the amendment itself was permitted.
¶135 This argument assumes that evidence of Thompson’s rape of Deborah was irrelevant. It also assumes that evidence of the other rapes was inadmissible under ER 404(b). The trial court found otherwise. Thompson alleges this too was error.
¶136 As in the second trial, the court identified several similarities between Deborah’s murder and Thompson’s known crimes. Each involved sexual assaults in the victim’s home; Deborah was sexually assaulted. Each involved home invasion; a screen had been removed from Deborah’s window. Each victim’s head or face was covered; evidence indicated Deborah’s head was covered with a pillow while she was stabbed. Ligatures were used in all prior rapes; there was evidence that a phone cord was used around Deborah’s neck. Thompson threatened the other women with death; Deborah was actually killed. Thompson used bleach to destroy evidence in Bernadette’s case; there was an open bottle of bleach on the floor of Deborah’s kitchen (in a building with a separate, communal laundry room). In all the rapes, including Deborah’s, there was evidence of anal and vaginal penetration from behind. In some cases, including Deborah’s, semen was deposited on the outside of the victims’ bodies. And in more than one case, including Deborah’s, there was evidence of choking.
¶137 Thompson argues these similarities are insufficient because there were also several significant dissimilarities. He particularly points out that three others testi
¶138 Thompson points to other dissimilarities. Deborah was in her late 30s, whereas the other victims were women in their 20s. The other victims’ wrists and ankles were bound with a ligature, but there was only speculation that a ligature had been used with Deborah, and no ligature marks were found on her hands or wrists. The other assaults began while the women were asleep, but there is no evidence that Deborah was asleep when she was attacked.
¶139 Because the evidence was admissible under ER 404(b), the court properly relied upon it to determine whether a sexual motivation allegation was justified. The court did not abuse its discretion in permitting the State to amend the information.
¶140 Thompson next contends evidence of other rapes should have been excluded under ER 403 as more prejudicial than probative. But as indicated above, the evidence was offered to prove identity. Thompson denied being in Deborah’s apartment, despite his DNA on her body (including her wrists and under her fingernails) and on the telephone cord. He explained the DNA evidence by suggesting it was planted by police, and by describing an encounter in mid-August with a middle-aged woman who came to his apartment, where they had sex. The court acted within its discretion in finding the evidence was more probative than prejudicial.
B. Evidentiary Sufficiency: Murder
¶141 Thompson argues that “save for the evidence from Thompson’s other convictions, there was little evidence to support the conclusion that Thompson was guilty” of first degree premeditated murder and/or first degree felony murder.
¶142 In a challenge to the sufficiency of the evidence, all reasonable inferences from the evidence must be drawn in favor of the State and interpreted most strongly against the accused.
¶143 To convict Thompson of first degree premeditated murder, the jury had to find beyond a reasonable doubt that he assaulted Deborah with premeditated intent to cause her death and that she died as a result of Thompson’s acts.
¶144 There was strong evidence of Thompson’s guilt, including the following: Thompson’s DNA was found on Deborah’s thighs and wrists, and under her fingernails. She had been choked, and Thompson’s DNA was found on the ends of a telephone cord found near her body that may have been used for that purpose. Deborah’s DNA was found on the pants Thompson was wearing when he was arrested on the day she was stabbed to death. Additionally, the common features of the previous rapes support the inference that her death immediately followed her rape and that Thompson was responsible for both.
¶145 Thompson contends the evidence was insufficient to prove premeditation. Premeditated intent “must involve more than a moment in point of time”
¶146 A wide range of proven facts will support an inference of premeditation, including “where multiple wounds were inflicted with a knife or other weapon, there were signs of a struggle, the victim was at some point struck
¶147 There is evidence of every one of those facts in this case. The evidence shows a prolonged and violent struggle. Deborah’s room was in disarray. She had defensive wounds on her arms, bruises and scratches on her face, significant bruising under her scalp, and petechiae in her eyes and a linear abrasion on her neck indicating she had been strangled. The fatal injuries were stab wounds to the front of her chest, her side, and the back of her neck, most likely made by a flat-head screwdriver, which was later found in a box with other tools in her closet. Her body was naked and there was evidence of sexual activity consistent with assault, which suggests a motive for the murder and further supports an inference of premeditation. The evidence was sufficient to prove Thompson murdered Deborah with premeditated intent.
¶148 The alternative charge of first degree felony murder required the State to show that Thompson committed or attempted to commit rape in the first degree, rape in the second degree, or burglary in the first degree; that Deborah was not a participant in those crimes; and that in the course of or in furtherance of one of those crimes, Thompson caused her death.
¶149 A person commits the crime of rape in the first degree when he engages in sexual intercourse with another person by forcible compulsion, inflicts serious physical injury, or feloniously enters into the building where the other person is situated.
¶150 As set out above, there was ample evidence that Thompson raped Deborah. Her injuries were consistent
¶151 A person commits the crime of burglary in the first degree when he unlawfully enters or remains in a building with intent to commit a crime against a person or property therein and if, in entering, remaining, or fleeing from the building, the person assaults any other person.
¶152 Deborah’s bedroom window was hidden by bushes arid trees. When her body was discovered, that window was slightly open with no screen in place. A badly bent window screen was found on the ground under the window. Inside the bedroom, there was a dresser under the window. A vase on the dresser was knocked over, and there was loose dirt on a sheet or towel on the floor in front of the dresser. Loose dirt was not observed anywhere else. The window was covered from the inside when Deborah’s body was found, but Thompson could easily have covered it after entering the apartment, just as he had closed the window through which he entered in Bernadette’s case. The evidence was sufficient.
¶153 We see no basis for reversal in the third trial.
V. STATEMENT OF ADDITIONAL GROUNDS FOR REVIEW
¶154 Pro se, Thompson lists approximately 50 additional errors, which fall into three categories: ineffective assistance of trial counsel, prosecutorial misconduct, and miscellaneous abuses of the trial court’s discretion.
¶156 Thompson provides no argument to support any of the other alleged errors and little context to assist the court’s review. Thompson is not required to cite to the record or authority, but he must still “inform the court of the nature and occurrence of alleged errors.”
A. Abuses of Discretion
¶157 Thompson contends the trial court abused its discretion in myriad ways. New of these contentions merit discussion.
¶158 Thompson argues the court erred by instructing the jury it must be unanimous, therefore precluding a hung jury in the first trial. With respect to the instruction concerning the jury’s use of the general verdict form, the court indicated, “Because this is a criminal case, each of you must agree for you to return a verdict.”
¶159 Thompson argues the court abused its discretion by ordering him held in a restraint chair during Megan’s perpetuation deposition and removing him when he objected. The claim is without merit. Thompson made no objection to the restraints and asked to be excused. The court solicited a response to that request from the prosecutor, at which point Thompson erupted and was removed. There was no error.
¶160 He contends the court erred in allowing the use of statements he made at Harborview Medical Center following his arrest. In the CrR 3.5 hearing, the court determined those statements were not the result of a custodial interrogation. There was no error in admitting them.
¶161 Thompson argues the court abused its discretion in not hearing or granting certain motions, including for return of his property, to dismiss for discovery violations, for a new trial, for recusal, and for polling the jury on media exposure and security measures. As Thompson was represented by counsel, the court appropriately refused to rule on these pro se motions.
B. Ineffective Assistance of Counsel
¶162 To prevail on a claim of ineffective assistance of counsel, Thompson must show his attorney’s performance fell below an objective standard of reasonableness based on consideration of all the circumstances, and that the deficient performance prejudiced the result.
¶163 Thompson identifies 23 grounds for his ineffective assistance of counsel claims. Only one merits any discussion.
¶164 Thompson argues his counsel was ineffective for failing to request a limiting instruction for the use of the prior rapes evidence.
¶165 Under the law as it existed at the time, no limiting instruction was necessary because evidence of the other rapes was admissible without limitation under RCW 10.58-.090. Further, we see no possibility that the outcome would have been different even had the evidence been admitted only under ER 404(b) and with a limiting instruction. The claim fails.
C. Prosecutorial Misconduct
¶166 To prevail on a claim of prosecutorial misconduct, a defendant must show the conduct was both improper and prejudicial in the context of the entire record and circumstances at trial.
¶167 The only issue warranting analysis is the prosecutor’s conduct in closing argument. Thompson contends the prosecutor improperly called him a liar, argued facts not in evidence,
¶168 The State has wide latitude in drawing and expressing reasonable inferences from the evidence, including inferences about credibility.
¶169 Here, the prosecutor stopped short of calling Thompson a liar but argued in the third trial that Thompson lied “repeatedly and constantly.”
¶170 The prosecutor did not argue that the jury was the “voice of society and the victim.” He argued that despite Deborah’s inability to testify, her voice could be heard in the evidence, and that “at the end of the day, there is really only one voice left, and that is yours.”
¶172 Affirmed.
Reconsideration denied August 6, 2012.
Review denied at 176 Wn.2d 1023 (2013).
We later use the victims’ first names to protect their privacy. No disrespect is intended.
Thompson also challenges admission of ER 404(b) evidence of his prior crimes in two trials. Because this issue must be analyzed in light of specific charges, we address it in our discussions of each trial despite the repetition that results.
Report of Proceedings (RP) (Mar. 1, 2006) at 5.
Id.
RP (Sept. 14, 2007) at 15-16.
RP (Oct. 8, 2007) at 10.
Id. at 19.
Id. at 24.
Id. at 27.
RP (Oct. 15, 2007) at 29.
Id. at 29-30.
Id. at 31.
Id. at 43.
The court ruled, “At this point I cannot find that you are making a knowing, intelligent and voluntary waiver of your right to be represented.” Id. at 73.
Id. at 77.
Id. at 81.
Id.
Id. at 82.
RP (Feb. 15, 2008) at 17-18.
RP (Feb. 28, 2008) at 15.
Id. at 16.
Id. at 18-19.
RP (Mar. 13, 2008) at 4, 9.
Id. at 10.
RP (June 27, 2008) at 10.
Id
RP (July 11, 2008) at 3.
Id at 4.
Id at 5.
Id
Id. at 9.
Id. at 11.
Id.
Id. at 12.
Id. at 15.
RP (July 24, 2008) at 37.
Id. at 54.
EP (Aug. 12, 2008) at 7.
Id.
Id. at 9.
Id.
Id. at 67.
Thompson makes no claim that the numerous orders removing him from the courtroom were unnecessary or in any way improper.
State v. Schaller, 143 Wn. App. 258, 267, 177 P.3d 1139 (2007).
Id. at 267-68.
State v. Stenson, 132 Wn.2d 668, 734, 940 P.2d 1239 (1997).
Schaller, 143 Wn. App. at 268.
In re Pers. Restraint of Stenson, 142 Wn.2d 710, 724, 16 P.3d 1 (2001) (Stenson II); Schaller, 143 Wn. App. at 270.
Schaller, 143 Wn. App. at 270.
RP (Sept. 14, 2007) at 10.
RP (Oct. 8, 2007) at 9.
Id. at 6.
Id. at 17.
Id. at 21.
Stenson II, 142 Wn.2d at 734 (“ ‘appointed counsel, and not his client, is in charge of the choice of trial tactics and the theory of defense’ ” (quoting United States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir. 1987))).
132 Wn.2d 668, 734, 940 P.2d 1239 (1997).
Id. at 736-37.
Id at 737.
See, e.g., RP (July 24,2008) at 25-27 (Hicks had transcripts for Thompson and the State had security camera footage Thompson wished to see, but Thompson refused to come to court without a “drag order”).
See, e.g., RP (June 27, 2008) at 5 (“I am denying your motion to dismiss [for discovery violations] on the face of it for the reasons that I indicated earlier. I
RP (Mar. 26, 2009) at 24.
435 U.S. 475, 485-86, 98 S. Ct. 1173, 55 L. Ed. 2d 426 (1978).
Hicks indicated that the acrimony between him and Thompson was so great that “just about any lawyer may be able to do better” and that he “simply cannot provide him effective assistance.” RP (Oct. 8,2007) at 25; RP (Oct. 15,2007) at 29. He also stated that he was “the worst person to be in a courtroom with him at this point” and that “the lesser of two evils is for him to go pro se [with] standby counsel other than myself, just because of this rancor.” RP (Oct. 15, 2007) at 81, 83.
RP (Oct. 15, 2007) at 29-30.
As Judge Canova put it, “[H]aving just spent some time with Mr. Thompson over the last two weeks, I certainly understand [Hicks’] position. The reality is, as I noted to Mr. Thompson, however, I have no belief that any other counsel, any other competent counsel, let me put it that way, would have any better luck with
Smith v. Lockhart, 923 F.2d 1314, 1320 (8th Cir. 1991) (quoting United States v. Hart, 557 F.2d 162, 163 (8th Cir. 1977)).
United States v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001) (quoting United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986)).
Id.
Br. of Appellant at 32.
262 F.3d 998, 1003 (9th Cir. 2001).
Id. at 1003-04 (alterations in original) (quoting Brown v. Craven, 424 F.2d 1166, 1169 (9th Cir. 1970)).
RP (Feb. 25, 2009) at 39.
‘You can conclude that he did lie about being present at Deborahfs] residence. You can conclude he did lie about his background and whether or not he is guilty of past offenses — and still focus on the evidence with the knowledge that a person scared enough, who happens to be innocent, will lie.” RP (May 26, 2009) at 94.
424 F.2d 1166, 1169-70 (9th Cir. 1970).
159 F.3d 1154, 1159 (9th Cir. 1998).
State v. Madsen, 168 Wn.2d 496, 503, 229 P.3d 714 (2010).
Id. at 504.
Stenson I, 132 Wn.2d at 737 (emphasis added).
Madsen, 168 Wn.2d at 504 (internal quotation marks omitted) (quoting In re Det. of Taray, 139 Wn.2d 379, 396, 986 P.2d 790 (1999)).
State v. Vermillion, 112 Wn. App. 844, 851, 51 P.3d 188 (2002).
State v. Hemenway, 122 Wn. App. 787, 791, 95 P.3d 408 (2004).
RP (Mar. 1, 2006) at 5.
RP (Oct. 8, 2007) at 10.
Id at 4.
RP (Oct. 15, 2007) at 43.
RP (July 11, 2008) at 4.
422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975).
RP (Feb. 15, 2008) at 9.
See, e.g., id. at 7 (“You cannot interrupt me. If we can’t get through this hearing, I can’t make a determination that you can go pro se, if you’ll not even allow me to get through a hearing.”); RP (Feb. 28, 2008) at 15 (Hicks advises, “If you will allow the judge to just ask you the questions she’s required to ask, she’ll probably grant your motion to go pro se. And then you can rant and rave all you want and get your motion.”).
RP (Jan. 26, 2009) at 28.
See Br. of Resp’t at 58 (listing 22 instances of Thompson being removed from court for disruptions). Thompson does not challenge any decision to remove him from court.
RP (July 24, 2008) at 54.
168 Wn.2d 496, 229 P.3d 714 (2010).
Id. at 501.
Id. at 509.
Id.
Faretta, 422 U.S. at 834 n.46.
Madsen, 168 Wn.2d at 509 & n.4; see also Vermillion, 112 Wn. App. at 851 (courts may deny a request for self-representation that is made “for the purpose of delaying the trial or obstructing justice”).
See RP (Peb. 28,2008) at 16 (“I have had I’m not sure at this point how many hearings with Mr. Thompson. The product of those hearings each and every time has been Mr. Thompson determining that he will not answer the court’s questions, that he will dictate what is being said, that he will make very inappropriate — and, as I say, that is probably the least descriptive word — completely inappropriate comments to certainly his counsel and to the court and has given consistently no indication that Mr. Thompson would abide by court rules, abide by those policies and procedures related to the orderly process of a trial.”); RP (July 24,2008) at 54 (“He has repeatedly threatened physical harm to Mr. Hicks, to Mr. O’Toole, judicial officers I’m also prepared to find this is intentional and deliberate.”); RP (Aug. 12, 2008) at 53-54 (“I have no question based on my own observations of Mr. Thompson and based on my review of the reports from Western State dated May
RP (Aug. 12, 2008) at 9.
122 Wn. App. 787, 95 P.3d 408 (2004).
Id. at 792-94.
Id. at 794.
Id. at 796.
State v. Finch, 137 Wn.2d 792, 844, 975 P.2d 967 (1999).
Holbrook v. Flynn, 475 U.S. 560, 567-68, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986); State v. Jaime, 168 Wn.2d 857, 861-62, 233 P.3d 554 (2010).
Finch, 137 Wn.2d at 850.
Clerk’s Papers at 544.
Clerk’s Papers at 257.
Clerk’s Papers at 256. The court also considered gagging Thompson to muffle his verbal outbursts.
Clerk’s Papers at 256-57.
Clerk’s Papers at 549.
Br. of Appellant at 73.
475 U.S. 560, 569, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986).
Clerk’s Papers at 257.
Clerk’s Papers at 294.
Clerk’s Papers at 375-76.
State v. Handran, 113 Wn.2d 11, 17, 775 P.2d 453 (1989).
State v. Randhawa, 133 Wn.2d 67, 73-74, 941 P.2d 661 (1997).
Id. at 74.
126 RP (Sept. 30, 2008) at 99 (emphasis added).
Handran, 113 Wn.2d at 17 (quoting State v. Petrich, 101 Wn.2d 566, 571, 683 P.2d 173 (1984)).
State v. Gentry, 125 Wn.2d 570, 597, 888 P.2d 1105 (1995).
ROW 9.94A.030(47).
State v. Halstien, 122 Wn.2d 109, 120, 857 P.2d 270 (1993) (discussing the parallel juvenile sexual motivation statute).
122 Wn.2d 109, 120, 857 P.2d 270 (1993) (emphasis omitted) (quoting State v. Halstien, 65 Wn. App. 845, 853, 829 P.2d 1145 (1992)).
Br. of Appellant at 88.
Our Supreme Court has since held that RCW 10.58.090 is unconstitutional. State v. Gresham, 173 Wn.2d 405, 432, 269 P.3d 207 (2012). Because we conclude the evidence was properly admitted under ER 404(b), we do not address RCW 10.58.090.
State v. Magers, 164 Wn.2d 174, 181, 189 P.3d 126 (2008).
ER 404(b).
State v. Vy Thang, 145 Wn.2d 630, 643, 41 P.3d 1159 (2002).
Br. of Appellant at 110.
Thang, 145 Wn.2d at 644.
Because the evidence of prior crimes was relevant to the issue of identity, we reject Thompson’s argument that the evidence was inadmissible under ER 403 because its only probative value was to show a propensity for committing violent sex offenses.
State v. Levy, 156 Wn.2d 709, 721, 132 P.3d 1076 (2006); Wash. Const. art. IV, §16.
Levy, 156 Wn.2d at 721.
RP (Feb. 17, 2009) at 65.
Id. at 100.
149 Clerk’s Papers at 598.
Br. of Appellant at 121.
138 Wn. App. 596, 606, 158 P.3d 96 (2007).
Id. at 607.
98 Wn. App. 140, 144, 988 P.2d 1034 (1999).
Id. (emphasis omitted).
RP (Feb. 25, 2009) at 61.
Id. at 89.
Id. at 90.
160 Id. at 93-94.
Id. at 95-96.
Id. at 96.
Id. at 97.
Id. at 98.
Id. at 98-99.
Id. at 99.
The matter was addressed at sidebar and not transcribed.
RP (Feb. 25, 2009) at 100-01.
Stenson I, 132 Wn.2d at 718-19.
RP (Feb. 25, 2009) at 95.
98 Wn. App. 452, 464-66, 989 P.2d 1222 (1999).
Id. at 464-65 (quoting 5A Karl B. Tegland, Washington Practice § 256, at 310 (3d ed. 1989)).
144 Wn. App. 284, 294-97, 183 P.3d 307 (2008).
But see Gresham, 173 Wn.2d at 432 (holding RCW 10.58.090 unconstitutional). Gresham does not affect our analysis of this issue because the court also properly admitted the same evidence under ER 404(b), and as Thompson was sentenced to another term of life without parole, he cannot contend the allegations affected his sentence.
State v. Thomas, 138 Wn.2d 630, 633-34, 980 P.2d 1275 (1999).
CrR 2.1(d).
State v. Schaffer, 120 Wn.2d 616, 621-22, 845 P2d 281 (1993). A court abuses its discretion if its decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. Magers, 164 Wn.2d at 181.
RCW 9.94A.835(1).
Nor is there any evidence that she was not. Thompson suggests that because Deborah called a friend late at night with plans to buy crack, she was not asleep when she was attacked. But the State argued she likely “was asleep in the mid-to late morning of August 23, 2004, to be awakened by a man by the name of Curtis Thompson” precisely because she had been up all night. RP (May 26, 2009) at 39.
However, Deborah’s body was found facedown with a pillow adjacent to her head, perforated with bloody holes. Feathers were matted into her hair and pushed into a stab wound to the back of her neck, indicating she had been stabbed through the pillow.
Br. of Appellant at 145-46.
State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).
RCW 9A.32.020(1).
State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999) (internal quotation marks omitted) (quoting State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995)).
State v. Hoffman, 116 Wn.2d 51, 82, 804 P.2d 577 (1991).
State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006).
RCW 9A.44.040(l)(c), (d).
RCW 9A.44.050(l)(a).
RP (May 21, 2009) at 216.
ROW 9A.52.020(1).
RAP 10.10(a) permits a defendant/appellant to file a pro se statement of additional grounds “to identify and discuss those matters which the defendant/ appellant believes have not been adequately addressed by the brief filed by the defendant/appellant’s counsel.”
RAP 10.10(c) (appellate court not obligated to search record in support of claims made in statement of additional grounds for review); State v. Meneses, 149 Wn. App. 707, 716, 205 P.3d 916 (2009), aff’d, 169 Wn.2d 586, 238 P.3d 495 (2010).
Clerk’s Papers at 401.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Nichols, 161 Wn.2d 1, 8, 162 P.3d 1122 (2007).
State v. McFarland, 127 Wn.2d 322, 336, 899 P.2d 1251 (1995).
In re Pers. Restraint ofPirtle, 136 Wn.2d 467, 487, 965 P.2d 593 (1998).
Thompson himself filed a pro se motion requesting a limiting instruction.
State v. Johnston, 143 Wn. App. 1, 21, 177 P.3d 1127 (2007).
Thompson requests an evidentiary hearing to develop his ineffective assistance of counsel claim. “If a defendant wishes to raise issues on appeal that require evidence or facts not in the existing trial record, the appropriate means of doing so is through a personal restraint petition.” McFarland, 127 Wn.2d at 335.
Stenson I, 132 Wn.2d at 718.
This was addressed by counsel.
State v. Millante, 80 Wn. App. 237, 250, 908 P.2d 374 (1995).
State v. McKenzie, 157 Wn.2d 44, 59, 134 P.3d 221 (2006).
RP (May 26, 2009) at 62.
Id. at 79.
Reference
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- The State of Washington v. Curtis Shane Thompson
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