In the Matter of The Pers. Restraint Petition of Kurtis William Monschke

• Decision Date: 09 March 2011
• Docket Number: No. 38365–9–II.,38365–9–II.
• Citation: 160 Wash.App. 479,251 P.3d 884
• Court: Washington Court of Appeals
• Parties: In the Matter of the Personal Restraint Petition of Kurtis William MONSCHKE, Petitioner.

160 Wash.App. 479

251 P.3d 884

In the Matter of the Personal Restraint Petition of Kurtis William MONSCHKE, Petitioner.

No. 38365–9–II.

Court of Appeals of Washington, Division 2.

Dec. 21, 2010.Publication Ordered March 9, 2011.

Eric J. Nielsen, David Bruce Koch, Nielsen Broman & Koch PLLC, Seattle, WA, Kurtis Monschke, (Appearing Pro Se), Inez, KY, for Petitioner.Kathleen Proctor, Pierce County Prosecuting Attorney Office, Tacoma, WA, for Respondent.VAN DEREN, J.

[160 Wash.App. 482] ¶ 1 In this personal restraint petition (PRP), Kurtis William Monschke asks us to order a new trial or a reference hearing regarding his conviction for aggravated first degree murder. He argues that (1) his trial counsel were ineffective when they did not do a proper investigation or pretrial preparation of his defense expert witness who, in testifying, undermined key elements of Monschke's defense and (2) it was prosecutorial misconduct for the State to reach a plea agreement with Monschke's codefendant Tristain Frye based on a personal friendship between the elected prosecutor and Frye's defense attorney and to allow Frye to testify against him, knowing that she would commit perjury. We deny Monschke's personal restraint petition.

FACTS ¹

¶ 2 On March 23, 2003, Kurtis Monschke; Tristain Frye Scotty Butters; and David Pillatos assaulted Randall Townsend, a homeless man who lived under the interstate near the Tacoma Dome. State v. Monschke, 133 Wash.App. 313, 318–20, 135 P.3d 966 (2006). After 20 days on life support, Townsend died. Monschke, 133 Wash.App. at 320, 135 P.3d 966. The State charged Monschke, Frye, Butters, and Pillatos with aggravated first degree murder under RCW 9A.32.030 and RCW 10.95.020(6). Monschke, 133 Wash.App. at 321, 135 P.3d 966. The State alleged as an aggravating circumstance that “Townsend was murdered so that the defendants could obtain or maintain their membership or advance their position in the hierarchy of an organization or identifiable group, namely, ‘white supremacists.’ ” Monschke, 133 Wash.App. at 321, 135 P.3d 966 (quoting 1 Clerk's Papers at 84).

¶ 3 Monschke and his codefendants were held at the Pierce County Jail, where it was jail procedure to open and screen inmate mail for contraband and other illegal activity. During this routine screening, jail staff discovered that Monschke had received a letter from a white supremacist group. The jail sent a copy of the letter to the Pierce County prosecutor's office. The State then requested that the jail photocopy all incoming and outgoing mail belonging to the four defendants, with the exception of legal mail. The State distributed copies of the defendants' mail to defense counsel so that all parties had copies of the inmate mail before trial. Through this process, the State discovered that Frye and Pillatos were violating a no-contact order by sending mail to each other through a third party. In these letters, Frye expressed a desire for guidance from Pillatos on how to proceed (“I need to know what [Pillatos] wants me to do.” Br. of Resp't, App. S at 1721) and Pillatos attempted to persuade Frye to testify against him, but to make sure to emphasize that he did not seem like himself in order to help with his insanity defense.

¶ 4 Before trial, Monschke's three codefendants entered into plea agreements with the State. Monschke, 133 Wash.App. at 321, 135 P.3d 966. Frye agreed to plead guilty to second degree murder. Monschke, 133 Wash.App. at 321, 135 P.3d 966. Her plea agreement was conditioned on her being truthful and honest with prosecutors at all times and that she “testify truthfully and fully at the trial or trials” of her codefendant(s). Br. of Resp't, App. E at 2. The State filed a statement that explained its reasons for amending Frye's information to allege lesser charges, including:

(1) her reluctance to participate in the crime; (2) the substantially lower level of her culpability in committing the crime as compared to her codefendants; (3) the difference in the amount of physical harm she inflicted on Mr. Townsend as compared to her codefendants; (4) her remorse and horror expressed from shortly after the murder was committed to present; and[ ] (5) her willingness to take responsibility for her actions and to cooperate in the prosecution of her codefendants.

Br. of Resp't, App. G at 2.

¶ 5 Pillatos and Butters pleaded guilty to first degree murder. Monschke, 133 Wash.App. at 321, 135 P.3d 966. Monschke refused the offer Pillatos and Butters accepted and, thus, was the only one of the four defendants to go to trial. All four testified at Monschke's trial.

¶ 6 Frye testified that on March 22, 2003, Pillatos wanted to take her, his fiancée, out to earn her red shoelaces,² which she could do by assaulting a member of a minority group. Monschke, 133 Wash.App. at 323, 135 P.3d 966. Monschke, Pillatos, and Butters already wore red laces. Monschke, 133 Wash.App. at 323, 135 P.3d 966. After discussing the idea with Butters and Monschke, the four drove to the store where they purchased beer and two baseball bats. Monschke, 133 Wash.App. at 323, 135 P.3d 966. The four did not discuss the reason for purchasing the bats but, according to Frye, it was understood that “ ‘they weren't going to be used for baseball.’ ” Monschke, 133 Wash.App. at 323, 135 P.3d 966 (quoting 31 Report of Proceedings (RP) at 2485).

¶ 7 They parked near the Tacoma Dome and walked under Interstate 705 so Frye and Pillatos could show Monschke graffiti that they had painted under the overpass.³ Monschke, 133 Wash.App. at 323, 135 P.3d 966. According to Frye, she separated from the group and began talking to Townsend. Monschke, 133 Wash.App. at 323, 135 P.3d 966. Butters and Pillatos came over to where Frye and Townsend were talking. Butters hit Townsend over the head with one of the baseball bats causing him to fall to the ground. Monschke, 133 Wash.App. at 323, 135 P.3d 966. Butters and Pillatos began kicking Townsend in the head and Pillatos threw a 38 pound rock on Townsend's face. Monschke, 133 Wash.App. at 323, 135 P.3d 966. Butters and Pillatos then carried Townsend to the railroad tracks and performed a “curb stomp” by stomping on the back of Townsend's head while he lay face down on the track. Monschke, 133 Wash.App. at 323, 135 P.3d 966.

¶ 8 Butters and Pillatos then left to find Monschke. When they returned with Monschke to where Townsend lay, Monschke began hitting him in the head with the other bat. Monschke, 133 Wash.App. at 324, 135 P.3d 966. According to Frye, Monschke hit Townsend 10 to 15 times.⁴ Monschke, 133 Wash.App. at 324, 135 P.3d 966. “Pillatos told Frye to kick Townsend,” which “she initially refused[,] but Pillatos covered her eyes and led her to Townsend” where she kicked his head 4 times. Monschke, 133 Wash.App. at 324, 135 P.3d 966. “As the group left, Monschke stated, ‘I wonder if God gives us little brownie points for this.’ ” Monschke, 133 Wash.App. at 324, 135 P.3d 966 (quoting 31 RP at 2374). Butters told Frye “that she had earned her red laces and he had earned his ‘bolts.’ ” ⁵ Monschke, 133 Wash.App. at 324, 135 P.3d 966 (quoting 31 RP at 2375). Pillatos testified that Townsend “got beat up” because he was a drug addict and a “parasite.” Monschke, 133 Wash.App. at 325, 135 P.3d 966.

¶ 9 As discussed in the published portion of our opinion from Monschke's direct appeal, both parties presented expert testimony on white supremacists at trial:

The State called Mark Pitcavage, the director of fact-finding for the Anti–Defamation League (ADL). Pitcavage had studied white supremacy for several years and supervised the ADL's monitoring and research of extremist groups. Pitcavage testified that white supremacists could be identified by a shared ideology summed up in the following mission statement known as “The 14 Words”: “We must secure the existence of our race and a future for white children.” Pitcavage opined that this ideology fostered so many shared similarities, beliefs, and customs that white supremacists could be considered a “group” within the common meaning of the term.

Pitcavage considered white supremacists to be a “group” even though they were not well organized, did not have one overarching structure, had many subgroups, and were split over the advocacy and use of violence. Pitcavage explained that the subgroups were nonexclusive; routinely overlapping; and often loosely organized to prevent police infiltration, to limit legal liability, and to maintain a certain level of personal anonymity. Pitcavage testified to an organized “hierarchal structure” “in terms of status, where someone who's perceived to be really standing up for the white race, really being a white warrior, gets more result of status, gets more respect.” In addition, Pitcavage testified that many subgroups internally advocated violence but publicly professed nonviolence so as to avoid lawsuits of the sort that had disbanded earlier white supremacy groups.

Monschke called Randy Blazak, a college professor whose research focused on hate crimes. Blazak opined that white supremacists were not an “identifiable group.” Blazak agreed with Pitcavage that white supremacists shared an ideology captured by “The 14 Words,” but he testified that, in his opinion there was too much conflict within the movement to consider white supremacists a cohesive group. These conflicts included disagreement over the need of an organized hierarchy, the use of violence, the role of religion, and defining who was “white.”

Blazak also testified about Volksfront and National Alliance. According to Blazak, National Alliance was a highly violent subgroup of white supremacists. Blazak testified that a member could gain status in National Alliance for murdering someone deemed inferior. Blazak described Volksfront as a very secretive organization with a “public front” of nonviolence, but he noted that “there may be other things that go on behind closed doors.” Blazak...