State Of Washington, V Nicholas Bostrom Thompson

Filed
Washington State
Court of Appeals
Division Two

October 27, 2015

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II
STATE OF WASHINGTON, No. 46012-2-II

Respondent,

NICHOLAS BOSTROM THOMPSON, PART PUBLISHED OPINION

Appellant.

LEE, J. — Nicholas Bostrom Thompson appeals his conviction of one count of attempted

first degree robbery, three counts of first degree robbery, one count of first degree assault, and one

count of first degree unlawful possession of a firearm. Thompson contends that the trial court (1)

violated his right to be present during trial by removing him from the courtroom because of his

disruptive conduct without informing him that he could return if he behaved; (2) violated his right

to a speedy trial under CrR 3.3 by granting several continuances of his trial date; and (3) erred in

denying his motion to dismiss based on the State’s seizure of legal materials from his jail cell. In

a pro se statement of additional grounds (SAG), Thompson makes a further allegation of

misconduct concerning the confiscation of his legal materials.

In the published portion of this opinion, we hold that the trial court did not violate

Thompson’s right to be present because the trial court adequately informed Thompson of the

means by which he could return to court. In the unpublished portion of this opinion, we hold that
No. 46012-2-II

the trial court did not abuse its discretion in granting the continuances that defense counsel

requested and that the trial court did not err in denying the motion to dismiss because Thompson

did not demonstrate either misconduct or resulting prejudice with regard to the seizure of his legal

materials. Also, we reject Thompson’s SAG argument concerning the confiscation of additional

property because he fails to establish prejudice. Accordingly, we affirm Thompson’s convictions.

FACTS

Late one evening, Thompson approached a group of high school students, two of whom

were sitting in a car. Thompson pulled out a gun and ordered the students to surrender their

possessions. Three of them handed over backpacks and other items, while the two girls in the car

closed and locked the doors.

After looking through the items, Thompson demanded the car. When one of the boys

protested and tried to get the gun, Thompson shot him in the abdomen. The other boys wrestled

Thompson to the ground and held him until the police arrived. The State charged Thompson with

four counts of first degree robbery while armed with a firearm and one count each of first degree

assault while armed with a firearm, first degree unlawful possession of a firearm, and possession

of a stolen firearm.1

When Thompson’s trial began on January 28, 2014, he wore a leg restraint. Before

testimony began on February 3, jail personnel asked for increased restraints due to an altercation

at the jail involving Thompson. After a hearing on the matter, the trial court authorized the

placement of a stun device under Thompson’s clothing.

1
The trial court dismissed the stolen firearm charge on the State’s motion at the end of trial.

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Later that same day, after the State asked a witness about her credentials, Thompson pushed

over the counsel table at which he was seated, yelled several profanities, and struggled with

corrections officers before being subdued and removed from the courtroom. When he returned in

handcuffs, shackles, and a belly chain, the trial court ruled that he would be taken to another

courtroom where he could attend the trial over a video feed. The trial court informed Thompson

that he would have the right to reclaim his presence if he assured the court that his behavior would

improve. Specifically, the court stated:

And, of course, Mr. Thompson has the right to reclaim his ability to be present in court
upon a real assurance that his conduct will improve and that he will not be verbally or
physically disruptive.

4 Verbatim Report of Proceedings at 724. The trial court also explained that it would recess the

trial after the direct examination of each prosecution witness so that defense counsel could consult

with Thompson before the proceedings continued.

Three witnesses then testified. Before the trial recessed for the day, the trial court reminded

Thompson that he could return to the courtroom the following day if he agreed to behave.

Thompson was instructed to inform his attorney or corrections staff of his decision.

On February 4, the trial court noted that it would not further inquire into Thompson’s desire

to return to the courtroom because it had explained the procedure by which he could return the day

before and had heard nothing from him. After the State rested, Thompson declined to testify, and

the jury retired to deliberate at the end of the day.

On February 5, the jury found Thompson guilty as charged except for count I, where it

returned a verdict on the lesser included offense of attempted first degree robbery. The jury also

found, by special verdict, that Thompson committed all of the offenses (except the firearm

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possession) while armed with a firearm, and that he committed the offenses shortly after being

released from incarceration.

The trial court imposed an exceptional sentence of 765 months supported by (1) the jury’s

finding that Thompson committed the offenses after his recent release from incarceration and

(2) the trial court’s own finding that Thompson’s high offender score resulted in some of his

offenses going unpunished. Thompson appeals his convictions.

ANALYSIS

Thompson argues that the trial court denied his right to be present at trial by removing him

from the courtroom for the final three days of trial without informing him daily that he could return

if he conducted himself properly. We disagree.

A criminal defendant has a constitutional right to be present in the courtroom at all critical

stages of the trial. State v. Irby, 170 Wn.2d 874, 880, 246 P.3d 796 (2011); State v. Chapple, 145

Wn.2d 310, 318, 36 P.3d 1025 (2001). This right derives from the constitutional right to confront

adverse witnesses and the Washington rules of criminal procedure. Chapple, 145 Wn.2d at 318;

CrR 3.4(a). Whether a defendant’s constitutional right to be present has been violated is a question

of law that we review de novo. Irby, 170 Wn.2d at 880.

The right to be present is not absolute. Chapple, 145 Wn.2d at 318. A defendant’s

persistent, disruptive conduct can constitute a voluntary waiver of the right to be present in the

courtroom. Illinois v. Allen, 397 U.S. 337, 343, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970); State v.

DeWeese, 117 Wn.2d 369, 381, 816 P.2d 1 (1991). Once lost, this right can be reclaimed “as soon

as the defendant is willing to conduct himself consistently with the decorum and respect inherent

in the concept of courts and judicial proceedings.” Allen, 397 U.S. at 343.

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A trial court has wide discretion in determining the appropriate means to deal with a

defendant’s disruptive courtroom behavior. Id.; Chapple, 145 Wn.2d at 320. “No one formula for

maintaining the appropriate courtroom atmosphere will be best in all situations.” Allen, 397 U.S.

at 343.

While recognizing that the appropriate method for dealing with a disruptive defendant

should be left to the trial judge’s discretion, the Chapple court set forth basic guidelines to assist

trial courts in exercising their discretion. 145 Wn.2d at 320. First, the defendant must be warned

that his conduct may lead to removal. Id. Second, the defendant’s conduct must be severe enough

to justify removal. Id. Third, the trial court should employ the least severe alternative that will

prevent the defendant from disrupting the trial. Id. Fourth, the defendant must be allowed to

reclaim his right to be present upon assurances that his or her conduct will improve. Id. These

guidelines are intended to ensure that trial courts exercise their discretion in a manner that affords

defendants a fair trial while maintaining the safety and decorum of the proceedings. Id.

On appeal, Thompson takes issue only with the trial court’s application of the fourth

guideline. He urges this court to adopt a new rule of law providing that whenever a defendant is

removed from the courtroom during trial for contemptuous behavior, the trial judge must inform

the defendant on each new day of trial that he may return upon a promise of appropriate behavior.

Thompson asserts that the trial court violated his right to be present in the courtroom by removing

him from February 3-5 without informing him each day of the conditions upon which he could

return. We see no violation of Thompson’s right to be present on this record and no need to impose

a requirement that a defendant be reminded daily about how he can reclaim his right to be present

in the courtroom.

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Thompson’s outburst, which included overturning counsel table, yelling profanities, and

struggling with corrections officers, occurred at the beginning of the fourth day of trial on February

3. When the trial court removed him from the courtroom to observe the rest of the day’s

proceedings via a video feed, it reminded him that he could return if he assured the court that he

would behave. At the end of the day, the trial court again reminded Thompson that he could return

to court upon assurances that his conduct would improve. At the beginning of trial on February 4,

the trial court stated that it would not further inquire into Thompson’s absence because it had made

clear the procedure by which he could return to court the previous day and had heard nothing from

him. The jury began deliberating at the end of the day and returned its verdicts on February 5. 2

Contrary to Thompson’s assertions on appeal, the record does not show that the trial court

barred him from the courtroom for three days without explanation. Rather, the record reveals that

the trial court made certain that Thompson understood the rules by which he could return to court

and that Thompson voluntarily declined to be present during the final three days of trial. We see

no violation of the Chapple guidelines. Nor do we see that additional guidelines are necessary to

protect a defendant’s right to be present at trial.

Trial courts must clearly inform a defendant who has been removed from the courtroom

for disruptive behavior of his right to return to the courtroom and the way in which he may exercise

that right. This requirement preserves the defendant’s right to be present as well as the trial court’s

discretion in maintaining the safety and decorum of the courtroom. Here, the trial court clearly

2
The record does not support Thompson’s assertion that the trial court brought him into the
courtroom on February 4 to inquire about his desire to testify without addressing his right to be
present for the rest of the trial. The inquiry about Thompson’s possible testimony took place via
the video feed.

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informed Thompson of both his right to return and the manner in which he could exercise that

right. We decline to impose an additional requirement of a daily reminder. Accordingly, we affirm

his convictions.

A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2.06.040, it is so ordered.

ADDITIONAL FACTS

Trial Continuances

Thompson appeared for arraignment on December 26, 2012, and the trial court set a trial

date for the week of February 19, 2013. Thompson remained in custody throughout the

proceedings.

On January 28, defense counsel requested a continuance. Defense counsel made the

request despite Thompson’s objection because he had not yet interviewed the victims and

witnesses and because his investigator had just started working on the case. Defense counsel

referred to the severity of the charges and the potential sentence in seeking additional time to

prepare. The State did not object, noting that it was still obtaining medical records and had not yet

turned over the discovery. The trial court agreed to a shorter continuance than requested and set a

new trial date of March 11.

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On February 11, the parties agreed to another continuance and the trial court reset the trial

date to May 27, 2013. Thompson again objected. On April 23, the trial court reset the trial date

to August 5, again with the parties’ agreement but over Thompson’s objection.3

On July 8, defense counsel moved to continue the trial to the week of September 23, and

Thompson again objected. Counsel explained that the witness interviews had not yet been

transcribed and that a forensic psychologist would be interviewing Thompson to determine

whether he could pursue a diminished capacity defense. Counsel added that he would be out of

the office for the next two weeks and that he could not litigate the many motions that Thompson

wanted him to pursue before the current August trial date. The State did not object, and the trial

court continued the trial to September 23.

On September 5, the trial court held a hearing on several matters, including defense

counsel’s motion to withdraw. After Thompson refused to decide whether he wanted to keep the

current trial date or get a new attorney who would need additional time to prepare, the trial court

granted the motion to withdraw. The trial court set a new trial date of November 4 over

Thompson’s objection so that the new defense and prosecuting attorneys could prepare for trial.4

On October 21, the trial court granted another continuance, over Thompson’s objection,

and the trial court set the new trial date for January 27, 2014.5 Trial began the next day.

3
The transcripts explaining the reasons for the February 11 and April 23 continuances are not in
the appellate record.
4
The current prosecuting attorney was scheduled for maternity leave.
5
The transcript explaining the reason for this continuance is not part of the appellate record.

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Motion to Dismiss

Thompson’s new attorney filed a motion to dismiss that the trial court heard on January

13, 2014. In that motion, Thompson complained that during a search of his cell on March 9, 2013,

jail personnel had found a letter addressed to his former attorney in which Thompson set out

confidential information and trial strategy. Thompson alleged that two pages of the letter had been

confiscated.

Thompson and two other inmates testified about the search. One inmate testified that he

saw the search of Thompson’s cell and later saw officers reading some seized material, though he

could not see what they were reading. Thompson’s cellmate testified that he saw Thompson seal

a three- to four-page letter before the search but that he did not see the search itself. Thompson

testified that despite the seizure of the two pages, he continued to communicate with his attorney

and wrote him other letters.

Two corrections officers testified that they did not search Thompson’s cell and did not

know who did. They explained that jail cell searches are routine and that sealed envelopes are

opened but left in the cell if they contain legitimate legal material. The officers added that they

did not see the pages from the letter that Thompson described and did not provide any information

about his case to the State. One officer testified that she did read song lyrics seized from another

inmate’s cell. The trial court denied the motion to dismiss and entered written findings of fact and

conclusions of law supporting its ruling.

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No. 46012-2-II

ANALYSIS

A. RIGHT TO SPEEDY TRIAL

Thompson argues that the trial court violated his right to a speedy trial under CrR 3.3 by

continuing his trial almost one year beyond the initial trial date over his repeated objections. We

disagree.

We review a trial court’s decision to grant a motion for a continuance for abuse of

discretion. State v. Ollivier, 178 Wn.2d 813, 822-23, 312 P.3d 1 (2013), cert. denied, 135 S. Ct.

72 (2014). Discretion is abused if it is exercised on untenable grounds or for untenable reasons.

State v. Nguyen, 131 Wn. App. 815, 819, 129 P.3d 821 (2006).

Under CrR 3.3(b)(1)(i), a defendant held in custody pending trial must be tried within 60

days of arraignment. Ollivier, 178 Wn.2d at 823. Continuances granted by the court are excluded

from the computation of time. CrR 3.3(e)(3). If a period is excluded, “the allowable time for trial

shall not expire earlier than 30 days after the end of that excluded period.” CrR 3.3(b)(5). The

trial court may grant a party’s motion to continue the trial date when it “is required in the

administration of justice and the defendant will not be prejudiced in the presentation of his or her

defense.” CrR 3.3(f)(2). The court must “state on the record or in writing the reasons for the

continuance.” CrR 3.3(f)(2).

Continuances granted within the speedy trial time are not violations of the rule; dismissal

is required only when the speedy trial period has expired. State v. Hall, 55 Wn. App. 834, 841,

780 P.2d 1337 (1989). Absent such a violation, a defendant must demonstrate actual prejudice to

obtain dismissal. Id. Further, a motion for continuance on behalf of any party waives that party’s

objection to the requested delay. CrR 3.3(f)(2).

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Thompson takes issue with the trial court’s reasons for continuing his trial, arguing that

despite defense counsel’s claims that he needed more time because the case was complex, “the

court’s own statements, the evidence presented at trial, and the defense’s failure to even cross-

examine the majority of the state’s witnesses belies this claim.” Br. of Appellant at 17. We reject

this reading of the record.

The hearing transcripts show that defense counsel sought several continuances, with the

State’s agreement, for multiple reasons: he needed additional time to prepare, the charges were

serious and Thompson faced a lengthy sentence, Thompson wanted to litigate numerous motions

and pursue a diminished capacity defense, and the case involved considerable discovery and

numerous witnesses. (At one hearing, the State referred to 450 pages of discovery and 32 potential

witnesses.)6 In addition, some of the delay was caused by Thompson’s efforts to pursue pro se

motions while being represented by counsel.7 And, after Thompson’s first attorney withdrew, his

new attorney needed time to prepare.

The record shows that the trial court found that the continuances requested were necessary

for the administration of justice. See State v. Flinn, 154 Wn.2d 193, 200, 110 P.3d 748 (2005)

(allowing counsel time to prepare for trial is valid basis for continuance). It also shows that the

6
Thompson has not provided transcripts for the continuances granted on February 11, April 23,
and October 21. In the absence of this record, we will not speculate about the reasons for these
continuances, and we will not conclude that they constituted an abuse of discretion. See State v.
Blight, 89 Wn.2d 38, 46, 569 P.2d 1129 (1977) (reviewing court may not speculate about existence
of facts if they are not in the record).
7
Thompson filed multiple pro se motions that included requests for a bill of particulars, a Franks
hearing, and additional discovery, as well as allegations of ineffective assistance of counsel,
governmental misconduct, and speedy trial violations. See Franks v. Delaware, 438 U.S. 154,
155, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978).

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No. 46012-2-II

motions at issue were brought by defense counsel. A motion for continuance on behalf of any

party waives that party’s objection to the requested delay. CrR 3.3(f)(2). Moreover, Thompson

does not argue that he suffered actual prejudice as a result of the continuances granted. Thus, the

trial court did not abuse its discretion in granting the continuances, and the trial court did not

violate Thompson’s right to a speedy trial under CrR 3.3.

B. DISMISSAL UNDER CRR 8.3(B)

Thompson argues that the trial court erred in denying his motion to dismiss based on the

seizure of part of a letter from his jail cell. We disagree.

A trial court may not dismiss charges under CrR 8.3(b) unless the defendant shows by a

preponderance of the evidence both arbitrary action or governmental misconduct and prejudice

affecting a defendant’s right to a fair trial. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638

(2003). Dismissal under CrR 8.3(b) is an extraordinary remedy that the trial court should use only

as a last resort. State v. Brooks, 149 Wn. App. 373, 384, 203 P.3d 397 (2009). We review the trial

court’s decision for abuse of discretion. Id.; State v. Miller, 92 Wn. App. 693, 702, 964 P.2d 1196

(1998), review denied, 137 Wn.2d 1023 (1999).

In his written motion, Thompson alleged that on March 9, 2013, his jail cell was searched

and two pages of a four-page letter to his former attorney were taken and never returned. During

the hearing, Thompson testified that despite his failure to obtain the missing pages, he continued

to communicate with his attorney and wrote multiple letters to the State, defense counsel, and the

court. Defense counsel argued that the search constituted misconduct but offered no argument

concerning prejudice. The trial court concluded that the evidence was insufficient to prove

misconduct or to demonstrate prejudice and that dismissal of the charges was not appropriate.

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No. 46012-2-II

We agree that Thompson has not shown by a preponderance of the evidence that

misconduct occurred. His testimony is the only evidence supporting the allegation that jail

personnel kept two pages of a letter that he wrote to his attorney. In reviewing the trial court’s

conclusion that Thompson failed to show prejudice, we note that the trial court is in the best

position to evaluate credibility and weigh evidence. State v. Glenn, 115 Wn. App. 540, 546, 62

P.3d 921, review denied, 149 Wn.2d 1007 (2003). Thompson now claims that the trial court

ignored his argument that his inability to trust in the confidentiality of written communication with

his attorney had the effect of cutting off confidential written access to his counsel. But

Thompson’s own statements during the hearing undermine this claim. Thus, the trial court did not

abuse its discretion in denying Thompson’s motion to dismiss the charges against him under CrR

8.3(b).

C. SAG ISSUE

Thompson argues in his SAG that he was taken to “the hole” without all of his property on

January 31, 2014, and that his property was not returned until February 6, the day after trial. SAG

at 1. Thompson made a similar allegation during sentencing and filed a supporting declaration.

On appeal, he claims that he asked for his legal materials so that he could review witness

statements and trial strategies, and that the absence of these materials “caused prejudice towards

me and my trial.” SAG at 2. Thompson’s unsupported assertion of error does not demonstrate

that prejudice resulted. We decline to consider this issue further.

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No. 46012-2-II

We affirm Thompson’s convictions.

Lee, J.
We concur:

Bjorgen, A.C.J.

Maxa, J.