Appeal from Superior Court of Pierce County. Superior Court Docket No: 94-1-02669-2. Date Filed In Superiour Court: April 10, 1995. Superior Court Judge Signing: Hon. Bruce W. Cohoe.
Written By: John E. Turner, J. Concurred IN By: J. Dean Morgan, J., David H. Armstrong, J.
The opinion of the court was delivered by: Turner
TURNER, J. -- Criminal defense attorneys Larry W. Nichols and Dino G. Sepe appeal a Pierce County Superior Court order holding them in contempt for refusing to testify about communications with their former client, convicted murderer Henry L. Marshall. Without determining whether the communications were privileged, we hold that the trial court's order compelling testimony was premature. We therefore, vacate the contempt order.
Marshall was charged with first degree aggravated murder in Pierce County Superior Court. Nichols and Sepe were appointed as co-counsel to represent him.
In July 1994, the superior court signed a stipulated order extending for 60 days the statutory period for filing a Notice to Seek Death Penalty. *fn1 Deputy Prosecutor Gerald Horne prepared and presented the order, which was also signed and approved by Sepe. *fn2 Horne presented a second similar stipulated order, which was signed and approved by Nichols, and which the court entered in September 1994. It extended the notice period to November 14, 1994. Marshall was not present in court when these extension orders were presented. The record does not show why he was absent, or whether he knew about or agreed to these extensions.
On October 28, 1994, Marshall wrote to the court saying he wished to plead guilty. The letter was written without his lawyers' knowledge or approval. On November 2, 1994, with his lawyers present but against their advice, Marshall pleaded guilty to Aggravated Murder in the First Degree. *fn3 Marshall told the court that he knowingly and voluntarily wished to plead guilty, even though he knew the plea could subject him to the death penalty. *fn4
On November 14, 1994, the State filed a Notice to Seek Death Penalty. *fn5 The court set the required hearing for February 1995.
In January 1995 Sepe and Nichols moved to withdraw as counsel for Marshall "on the grounds that under the Rules of Professional Conduct (RPC) 1.15(b)(3) the defendant insists upon pursuing an objective that the lawyers consider repugnant or imprudent." *fn6 The court permitted Sepe and Nichols to withdraw, and appointed Judith Mandel and Ronald Ness as substitute counsel.
Mandel and Ness moved to dismiss the Death Penalty Notice. They contended that the 30-day period for filing the notice under RCW 10.95.040(2) was improperly extended, due to the trial court's "[failure to] provide the defendant himself with the opportunity to appear in open court and indicate on the record whether or not he concurred on either occasion where time was extended."
Marshall's new counsel argued that the criminal rules and the constitution required Marshall's presence in open court so the Judge could conduct a colloquy with him to determine if the waiver or extension was voluntary. But they were not arguing ineffective assistance of Marshall's former counsel:
It's not a question of ineffective assistance of counsel. It's a question of structural defect in the procedure, a procedure that apparently is employed in Pierce County that doesn't accord with the law."
Report of Proceedings (March 20, 1995), at 5.
The State responded that the Death Penalty Notice statute is silent on whether extensions of time must be made in open court, with the defendant present. The State also contended that the defense was putting the prior attorneys' authority at issue:
By making this motion, the defense not only has challenged whatever procedure was used, but they specifically have challenged the authority of the defense attorneys to act on their client's behalf in this respect and implicitly said that the attorneys acted without authority. The Court is entitled and in fact required to make a record ...