State Of Washington v. Jeffery Montgomery And Rex Mcnicol ( 2013 )

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APP
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8 AM 9:2.
IN THE COURT OF APPEALS OF THE STATE OF W
DIVISION II
STATE OF WASHINGTON, No. 429_
Respondent,
V.
Consolidated with:
JEFFERY RAY MONTGOMERY,
I1
STATE OF WASHINGTON, No. 42958 6 II
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Respondent,
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REX ALAN McNICOL, UNPUBLISHED OPINION
Appellant.
JOHANSON A. . A jury found Pierce
J.
C — County Sheriff's Deputies Rex Alan McNicol
and Jeffery Ray Montgomery guilty of first degree perjury. Rejecting the claims of Deputies
McNicol and Montgomery on appeal, we hold that (1) State presented sufficient evidence to
the
prove they committed first degree perjury; 2)
( assuming trial court error, it was harmless error to
exclude evidence of a witness's gross misdemeanor conviction; 3) trial court did not deprive
( the
the defendants or the public of the right to an open and public trial by sealing juror
questionnaires; and (4)
Deputy McNicol's counsel was not ineffective. Accordingly, we affirm.
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FACTS
In January 2009, dispatchers sent Deputies McNicol and . Montgomery to Robert
Barham's and Doris Resch's home to perform a welfare check on Resch's son, JA. According
to Deputy Montgomery's incident report, the deputies met Barham at his front door. They told
Barham they were there to check on JA's welfare. Deputy Montgomery spoke with JA off of the
front porch while Deputy McNicol spoke with Barham on the porch. Barham, who the deputies
In
knew had a drug-
related felony conviction, admitted that he had a rifle in his closet. Per Deputy
Montgomery's report, Barham took Deputy McNicol into the house so that Deputy McNicol
could retrieve the rifle. Then Deputy Montgomery entered the home, took the gun from Deputy
McNicol, and secured it. Next,Deputy McNicol walked Barham outside where Deputy McNicol
arrested him, and Deputy Montgomery went back in the house to speak with JA and Resch.
At a pretrial suppression hearing,.however, the deputies characterized differently what
occurred at Barham's home. Deputy McNicol testified that after he contacted Barham, Barham
acknowledged that he owned a firearm, and the deputies waited outside while Barham entered
the home alone to retrieve the firearm. Deputy Montgomery testified that neither he nor Deputy
McNicol entered the home to seize the firearm. When questioned why his incident report
differed from his testimony 14 months after the incident, Deputy Montgomery explained that his
memory was more accurate at the hearing: It was a lapse of memory on mine. Thinking back
"
on it now, I remember. But at the time I wrote it,a mistake on my part."Clerk's Papers at 68-
1 We use the minor's initials to protect his privacy.
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Because of these conflicting accounts, the prosecutor referred the matter to the Pierce
County Sheriff's Department. Following an internal investigation, the State charged both
deputies with one count of first degree perjury, and the deputies were tried in a single
proceeding.
Before trial,the parties asked prospective jurors to complete a questionnaire that was then
used in oral voir dire. Following jury selection, the trial court sealed the questionnaires without
objection.
Because the State intended to call Barham to testify to the events at' his house, Deputies
McNicol and Montgomery sought to admit evidence of Barham's criminal history to undermine
his credibility. While the State agreed that Barham's 2003 felony drug conviction was
admissible under ER 609( ),
a it argued that Barham's March 2001 gross misdemeanor conviction
for attempted second degree possession of stolen property should not be admitted because it was
over 10 years - ld; and, it would be unfairly prejudicial because many venire members indicated
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that, at some point, they had filed police reports as property crime victims. The trial court
excluded evidence of Barham's attempted second degree possession of stolen property
conviction because the conviction was older than 10 years, and it had ruled that the defense
could use Barham's drug conviction to attack his credibility.
At trial, Barham testified to the January 21, 2009 events. He explained that after the
deputies arrived at his house, he, Deputy McNicol, and Resch walked to the bedroom to retrieve
the firearm. Once Deputy McNicol obtained the gun, Deputy Montgomery entered the house to
take the gun from Deputy McNicol and secure it.
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Resch also testified that both deputies entered Barham's home. She recalled that once
Barham admitted to having the firearm in the house, the deputies immediately arrested him.
Then, one deputy entered the home and stood in the front room while the other went to the
bedroom with Resch to locate the firearm.
Pierce County Detective Sergeant Ben Benson testified that it would be unacceptable for
deputies to direct a convicted felon and suspected drug user to enter his home, unattended and
outside of the deputies' view, to retrieve a firearm. During Detective Sergeant Benson's
testimony, the State played a recording of Detective Sergeant Benson's interview of Deputy
Montgomery, including this exchange:
Q Well, I mean without thinking that, you knew that what you were testifying to
wasn't accurate. Correct?
A The bottom line, yeah, cause here I had the report, and that's, wrote it,and
`` I
that's what I recall happening.
Q And you testified to something different?
A Yes.
Ex. 15 p. 7.
Deputies McNicol and Montgomery testified that before the suppression hearing, they sat
outside the courtroom and reviewed Deputy Montgomery's incident report. Deputy McNicol
told Deputy Montgomery that they never entered the house and that they directed Barham to
retrieve the gun and bring it out to them. Deputy Montgomery testified that he trusted Deputy
McNicol's version of events more than his own memory and incident report. Deputy
Montgomery added that at the suppression hearing, he remembered not entering the home, but
now at trial,he could not remember whether they entered the home or not.
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Deputy Montgomery explained that when he saw Deputy McNicol with the firearm
outside the home, he had assumed that Deputy McNicol had gone inside the home to retrieve it;
but, he later believed that Deputy McNicol had not actually entered the home. Deputy
Montgomery then testified that he had made at least four uncorrected mistakes in his incident
report when he twice indicated that Deputy McNicol had been inside the home and when he
twice indicated that he too had entered the home.
Throughout trial proceedings, both defendants argued motions, offered and argued
evidence, participated in direct and cross -examination of witnesses, and raised objections. The
jury found both defendants guilty as charged. The defendants appeal in a consolidated case.
ANALYSIS
I. SUFFICIENCY OF THE EVIDENCE
Defendants first argue that the State failed to offer sufficient evidence to prove that they
committed perjury. We disagree.
A. Standard of Review
Sufficient evidence supports a conviction if any rational, trier of fact could find the
crime's essential elements beyond a reasonable doubt when viewing the evidence in the light
most favorable to the State. State v. Hosier, 157 Wn. d 1, 8, 133 P. d 936 (2006).An appellant
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claiming insufficient evidence admits the truth of the State's evidence and all reasonable
inferences that can be drawn from the evidence. State v. Salinas, 119 Wn. d 192, 201, 829 P. d
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1068 ( 1992). Circumstantial evidence and direct evidence are equally reliable. State v.
Delmarter, 94 Wn. d 634, 638, 618 P. d 99 (1980).We defer to the trier of fact on issues of
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conflicting testimony, witness credibility, and the persuasiveness of the evidence. State v.
Walton, 64 Wn. App. 410, 415 16, 824 P. d 533, review denied, 119 Wn. d 1011 (1992).
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B. Analysis
A person is guilty of first degree perjury when "in any official proceeding he or she
makes a materially false statement which he or she knows to be false under an oath required or
authorized by law."
RCW 9A. 2. In addition, the State must present:
020.
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1. The testimony of at least one credible witness which is positive and
directly contradictory of the defendant's oath; and
2. Another such direct witness or independent evidence of corroborating
circumstances of such a character as clearly to turn the scale and overcome the
oath of the defendant and the legal presumption of his innocence.
State v. Olson, 92 Wn. d 134, 136, 594 P. d 1337 (1979).
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The direct testimony required to support a perjury conviction " ust come ``from someone
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in a position to know of his or her own experience that the facts sworn to by the defendant are
false. "' State v. Singh, 167 Wn. App. 971, 976, 275 P. d 1156 (2012) quoting Nessman v.
3 (
Sumpter, 27 Wn. App. 18, 24, 615 P. d 522, review denied sub nom. State v. Howie, 94 Wn. d
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And
1021 ( 1980)). the corroborating evidence "need not equal in weight the testimony of a'
second witness," it " ust be clear and positive and so strong that, with the evidence of the
but m
witness who testifies directly to the falsity of the defendant's testimony, it will convince the jury
beyond a reasonable doubt." State v. Rutledge, 37 Wash. 523, 527, 79 P. 1123 (1905). The
defendant's admissions and contradictory statements, even though not made under oath, are
sufficient, given in corroboration of the single witness to satisfy the quantum of evidence
required to support a perjury conviction. State v. Buchanan, 79 Wn. d 740, 745, 489 P. d 744
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1971).
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As a threshold matter, the testimony regarding whether the deputies entered the home
was material because this fact dictated the trial court's analysis of the legality of the deputies'
search of Barham's home and seizure of the firearm. See e. .,
g State v. Ferrier, 136 Wn. d 103,
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118, 960 P. d 927 (1998) holding that under article 1, section 7 of Washington Constitution,
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where police knock and request permission to enter and search one's home without a warrant,
they must advise the home dweller of her or his right to refuse the request or limit the search).
Next, sufficient evidence supported the perjury convictions. Either Barham's or Resch's
testimony satisfied the first element, and either Barham's or Resch's testimony satisfied the
second element; and the jury instructions were clear that the jury had to use different evidence
for elements one and two. In addition, regarding Montgomery, his incident report also satisfied
element two.
Barham testified that Deputy McNicol entered the home with him to retrieve the gun
from the bedroom. Resch testified that she took one of the deputies to the bedroom to retrieve
the firearm while the other deputy stood in the front room. Though the details of these two
eyewitness accounts differ,the material facts are consistentthey both testified that the deputies
entered the home to seize Barham's firearm.
Deputy Montgomery's incident report provides additional evidence to support Deputy
Montgomery's conviction. It twice indicated that Deputy McNicol had entered the home with
Barham to seize the gun and twice indicated that Deputy Montgomery had entered the home to
obtain the gun from Deputy McNicol. The incident report closely paralleled Barham's testimony
and directly contradicted the deputies' suppression hearing testimony in which they claimed to
have never entered Barham's home. And moreover, the jury heard the audio interview in which
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Deputy Montgomery admitted to testifying contrary to what he recalled actually happening at
Barham's residence. Therefore, the jury heard additional evidence to conclude that Deputies
McNicol and Montgomery committed perjury at the suppression hearing. See Rutledge, 37
Wash. at 527.
Because the State's direct and corroborating evidence all demonstrated the material
issuethat the deputies entered Barham's home, ,contrary to their suppression hearing
testimonyit satisfied
— both parts of the heightened sufficiency standard in perjury proceedings.
Accordingly, the State presented sufficient evidence from which the jury.could find that the
defendants knowingly made false statements that were material to the earlier case's outcome.
II. RIGHT TO CONFRONT AND CROSS -EXAMINE ACCUSER
Next, the defendants argue that the trial court violated their right to confront and cross-
examine their accuser when it ruled that the defense could not admit evidence of Barham's 2001
conviction for attempted second degree possession of stolen property. Even assuming, without
deciding, that it was error, any error was harmless.
A. Standard of Review
We review a trial court's decision regarding the admissibility of prior conviction
evidence under ER 609 for abuse of discretion. State v..
Rivers, 129 Wn. d 697, 704 05, 921
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P. d 495 (1996).A trial court abuses its discretion when its ruling is manifestly unreasonable or
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when it exercises discretion on untenable or unreasonable grounds. State v. Bankston, 99 Wn.
App. 266, 268, 992 P. d 1041 (2000).
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Under ER 609( ) (b),
a and evidence that a witness has been convicted of a crime involving
dishonesty is admissible to attack the witness's credibility if a period of less than 10 years has
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elapsed since the conviction date. State v. Jones, 117 Wn. App. 221, 231, 70 P. d 171 (2003).If
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more than 10 years has elapsed, however, under ER 609( ) evidence is not admissible unless
b the
the court determines, in the interest of justice, that the probative value of the conviction,
supported by specific facts and circumstances, substantially outweighs its prejudicial effect.
Jones, 117 Wn. App. at 231. Any error regarding the admission or exclusion of prior conviction
evidence is harmless, however, if within reasonable probabilities, the trial outcome would not
have been materially different, had any error not occurred. State v. Gresham, 173 Wn. d 405,
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433, 269 P. d 207 (2012). '
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B. Analysis
Here, on September 19, 2011, the defendants sought to admit evidence of Barham's
March 2001 conviction for attempted second degree possession of stolen property. Because
more than 10 years had elapsed since the conviction, the evidence was not automatically
admissible under ER 609( ) instead was only admissible if the trial court determined that the
b and
admission of the conviction was in the interest of justice and that the probative value
substantially outweighed potential prejudice. See Jones, 117 Wn. App. at 231.
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Under ER 609( ):
b
Evidence of a conviction under this rule is not admissible if a period of more than
10 years has elapsed since the date of the conviction or of the release of the
witness from the confinement imposed for that conviction, whichever is the later
date, unless the court determines, in the interests of justice, that the probative
value of the conviction supported by specific facts and circumstances
substantially outweighs its prejudicial effect. However, evidence of a conviction
more than 10 years old as calculated herein, is not admissible unless the
proponent gives to the adverse party sufficient advance written notice of intent to
use such evidence to provide the adverse party with a fair opportunity to contest
the use of such evidence.
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The trial court determined that the defendants could not admit Barham's gross
misdemeanor conviction because it was over 10 years old and because they were allowed to use
a prior drug conviction to impeach Barham. Even assuming it was error to exclude evidence of
the gross misdemeanor conviction, Deputies Montgomery and McNicol were allowed to impeach
Barham's credibility with the prior felony drug conviction. It is difficult to see, in light of this
impeachment evidence, how the trial outcome would have differed had the trial court admitted
Barham's gross misdemeanor conviction. Thus, even had the trial court erred, any error would
have been harmless.
III. SEALED JURY QUESTIONNAIRES
Next, the defendants both argue that the trial court deprived their and the public's open
and public trial right when it sealed the juror questionnaires without first performing a Bone-
Club analysis on the record. The trial court did not err in sealing the juror questionnaires.
When a trial court allows parties to use juror questionnaires as a screening tool during
oral voir dire in open court, it need not perform a Bone Club analysis before later sealing those
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questionnaires because the sealing does not constitute a courtroom closure implicating the public
trial right. State v. Beskurt, 176 Wn. d 441, 447 48, 293 P. d 1159 (2013). Here, potential
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jurors completed questionnaires later used during oral voir dire on the record in open court.
Following voir dire, the trial court sealed the questionnaires. Because sealing juror
questionnaires used in oral voir dire does not constitute a courtroom closure implicating the
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State v. Bone Club, 128 Wn. d 254, 906 P. d 325 (1995).
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public trial right,the trial court had no obligation to perform a Bone Club analysis. Accordingly,
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the trial court did not err. See Beskurt, 176 Wn. d at 447 48.
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IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, Deputy McNicol contends that defense counsel provided ineffective assistance
because he submitted no pretrial motions of his own, no written responses to the State's motions,
and no persuasive legal authority on critical issues now raised on appeal. Deputy McNicol does
not demonstrate ineffective assistance.
A. Standard of Review
To succeed on an ineffective assistance of counsel claim, the defendant must show that
1)counsel's conduct was deficient, or fell below an objective reasonableness 'standard; and (2)
the defendant was prejudiced as a result. Strickland v. Washington, 466 U. . 668, 687, 104 S.
S
Ct. 2052, 80 L.Ed. 2d 674 (1984).Counsel is presumed to have acted reasonably unless shown
otherwise. State v. McFarland, 127 Wn. d 322, 335, 899 P. d 1251 (1995).To show prejudice,
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the defendant must demonstrate reasonable probability that "but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland, 466 U. . at 694. If
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the ineffective assistance claim fails on one prong, we need not address the other. State v.
Hendrickson, 129 Wn. d 61, 78, 917 P. d 563 (1996).We evaluate counsel's competency based
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on the entire trial record. State v. Townsend, 142 Wn. d 838, 843, 15 P. d 145 (2001).
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B. Analysis
Deputy McNicol's portrayal of defense counsel as grossly underperforming is inaccurate.
Defense counsel. filed an omnibus application seeking additional materials beyond what had
initially been supplied in discovery. He argued motions before the trial court and cross-
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examined state witnesses. He also presented Deputy McNicol's testimony, as well as an opening
statement and closing argument. Deputy McNicol asserts that defense counsel was ineffective
because he joined his codefendant's written motions instead of filing separate ones. Because the
State charged both defendants with the same crime stemming from the same conduct that arose
from the same event, it was not unreasonable for defense counsel to make the strategic decision
to decline to file his own pretrial motions which would have included nearly identical contents to
those of Deputy Montgomery. Even assuming that it was objectively unreasonable, Deputy
McNicol cannot demonstrate how filing separate motions —containing the same arguments and
law that the trial court rejected in Deputy Montgomery's motions would have resulted in a
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different outcome. Therefore, Deputy McNicol cannot prove resulting prejudice. Accordingly,
he cannot demonstrate ineffective assistance of counsel. See Strickland, 466 U. . at 687.
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We affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
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Johanson, A. .
J.
C
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