State v. Martin

• Decision Date: 19 May 2011
• Docket Number: No. 83709–1.,83709–1.
• Citation: 171 Wash.2d 521,252 P.3d 872
• Parties: STATE of Washington, Respondent,v.Timothy Sean MARTIN, Petitioner.
• Court: Washington Supreme Court

171 Wash.2d 521

252 P.3d 872

STATE of Washington, Respondent,

v.Timothy Sean MARTIN, Petitioner.

No. 83709–1.

Supreme Court of Washington, En Banc.

Argued Oct. 21, 2010.Decided May 19, 2011.

Vanessa Mi-jo Lee, Attorney at Law, Lila Jane Silverstein, Washington Appellate Project, Seattle, WA, for Petitioner.Seth Aaron Fine, Attorney at Law, Mary Kathleen Webber, Snohomish County Prosecutor's Office, Everett, WA, for Respondent.ALEXANDER, J.

[171 Wash.2d 523] ¶ 1 We granted review of a decision of the Court of Appeals affirming Timothy Martin's conviction on three counts of first degree kidnapping and one count of second degree robbery. Martin's principal claim is that protections afforded him by article I, section 22 of the state constitution were violated when a deputy prosecutor, on cross-examination, posed questions to Martin that inferred Martin had tailored his testimony to be consistent with police reports, witness statements, and testimony presented by prior witnesses. We conclude that there was no constitutional violation and affirm the Court of Appeals, albeit for reasons that differ from those given by the Court of Appeals.

I

¶ 2 Martin was charged in the Snohomish County Superior Court with three counts of first degree kidnapping and one count of second degree robbery. At trial, the alleged victim, Jessica Sobania, testified that upon placing her two children in her van at a Rite Aid parking lot, a man grabbed her from behind. According to Sobania the man, whom she identified at trial as Martin, told her to get in the van and start driving. Sobania said that although she was eventually able to escape from the van to get help, the attacker drove off with her children. Several hours after the incident, the police found the van parked in an industrial complex in Marysville. Sobania's children were in the van.

¶ 3 Martin admitted at trial that he had entered the van as part of a vehicle prowl. He testified that when he entered the van, it was parked near the aforementioned industrial complex and that no driver was present. Martin claimed that after he entered the van, he noticed that there were children in the backseat. He said that he then grabbed a purse and other items from the front seat and ran off.

¶ 4 On direct examination, Martin's lawyer asked Martin if knew what time he was at the Marysville industrial complex location. Martin responded, “I would guess 11:30, 12:00, 12:30 at night. From prior testimony, I know it had to be before one, because I heard people working in there, I heard lots of, you know, loud working.” Verbatim Report of Proceedings (VRP) (Dec. 11, 2007) at 28.

¶ 5 During cross-examination, the State also asked Martin what time he entered the van. Martin again estimated that it was somewhere between 11:30 p.m. and 12:30 a.m. but indicated that he did not know for certain because he did not have a watch. The colloquy between Martin and the State continued:

A. I'm saying this time, because of prior testimony, that I heard, said that the shop was closed at 1:00 a.m., so it was before 1:00 a.m.

Q. And you've had the advantage of hearing all the testimony before you testified today, correct?

A. Obviously I have been sitting in that seat the whole time, yes.

Q. And you've also had the advantage of knowing what people were going to say ahead of time, wouldn't you agree with me?

A. No, I didn't know what anybody was going to say ahead of time.

Q. You didn't get to read the police reports?

A. I got to read the police reports.

Q. And you didn't get to read witness statements?

A. I read witness statements, yes.

Q. And you weren't allowed to bring those reports and statements with you to court?

A. I read everything involved, yes.

Q. And you've had what, a little over a year to concentrate on what people were going to say, didn't you?

Id. at 74–75. Martin's lawyer objected to the last question, asserting that the State was impermissibly commenting on Martin's constitutional rights to confer with counsel and remain silent. The trial court overruled the objection, stating that it did not see how the question was a comment on Martin's rights. The State then resumed its questioning:

Q. So in the pendency of this trial, you've had access of [sic] what the evidence was?

A. I've read the police reports, I've read your discovery, yes.

Q. And you've heard all the testimony so far?

A. So far, yes.

Q. And so you knew all that before you testified?

A. Yes.

Q. And so you knew exactly where your DNA [deoxyribonucleic acid] had been found in the car?Id. at 79. Martin objected to the question about DNA. After his objection was overruled, the State continued its questioning of Martin about his knowledge of the DNA evidence. At the conclusion of the trial, the jury found Martin guilty of all charges.

¶ 6 Following sentencing, Martin appealed his convictions to the Court of Appeals, Division One, arguing that the prosecutor's questions infringed on rights afforded him under article I, section 22 of the Washington Constitution. The Court of Appeals, after engaging in an analysis consistent with our decision in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), determined that “[t]he provisions of article I, section 22 implicated in this case ... do not warrant an analysis independent from the Sixth Amendment.” State v. Martin, 151 Wash.App. 98, 109, 210 P.3d 345 (2009), review granted, 168 Wash.2d 1006, 226 P.3d 781 (2010). It went on to affirm the trial court based on the United States Supreme Court's decision in Portuondo v. Agard, 529 U.S. 61, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000), in which that Court determined that a defendant's rights under the Sixth Amendment to the United States Constitution were not violated when a prosecutor called attention, during argument, to the fact that the defendant has had an opportunity to hear all of the witnesses testify and tailor his testimony accordingly. Martin, 151 Wash.App. at 105, 210 P.3d 345 (citing Portuondo, 529 U.S. at 64, 120 S.Ct. 1119).

II

¶ 7 Martin contends here, as he did at the Court of Appeals, that article I, section 22 affords defendants broader protection than does the Sixth Amendment. Accordingly, he asks us to hold that under the state constitution a prosecutor is prohibited from indicating in any way that a defendant tailored his or her testimony. Martin contends that permitting such conduct by prosecutors presents “an agonizing choice for the defendant, forcing him to waive fundamental rights in order to protect himself from the prosecutor's accusations of dishonesty.” Am. Suppl. Br. of Pet'r at 24. He goes on to argue that while a defendant could “theoretically attempt to waive these rights—absenting himself from his own trial or testifying before the State's witnesses—the court would be under no obligation to grant such waivers.” Id. The State responds that the protections set forth in article I, section 22 are coextensive with those afforded by the Sixth Amendment. Thus, it contends that the Court of Appeals correctly determined that the questioning by the prosecutor in the instant case was permissible under the United States Supreme Court's decision in Portuondo. Br. of Resp't at 36.¹

¶ 8 As noted above, the United States Supreme Court was faced in Portuondo with the question of whether a defendant's rights under the Sixth Amendment were violated when a prosecutor, during closing argument, called attention to the fact that the defendant had the opportunity to hear all of the witnesses testify and tailor his testimony accordingly. Portuondo, 529 U.S. at 63, 120 S.Ct. 1119. In Portuondo, there were two alleged victims, both of whom testified to the defendant's act of raping one of them and threatening both with a handgun. In his testimony, the defendant denied threatening either of the complainants and said that the sexual contact was consensual. During closing argument, the prosecutor made various statements that strongly suggested that the defendant's testimony was untruthful. One statement was as follows: “ ‘[U]nlike all other witnesses ... he gets to sit here and listen to the testimony of all the other witnesses before he testifies.... He used everything to his advantage.’ ” Id. at 64, 120 S.Ct. 1119 (quoting App. at 49). In concluding that the prosecutor's accusation of tailoring did not violate the Sixth Amendment, the Supreme Court said that the prosecutor's comments concerned only the defendant's “ credibility as a witness, and were therefore in accord with [the] longstanding rule that when a defendant takes the stand, ‘his credibility may be impeached and his testimony assailed like that of any other witness.’ ” Id. at 69, 120 S.Ct. 1119 (quoting Brown v. United States, 356 U.S. 148, 154, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958)).

¶ 9 The question before us, then, is whether in applying article I, section 22 of the Washington Constitution we should follow the reasoning of the United States Supreme Court in Portuondo. The answer to that question should be yes if we determine that a defendant's rights under article I, section 22 of our state constitution are coextensive with a defendant's rights under the Sixth Amendment to the United States Constitution. In seeking an answer to the question before us, we take note of the fact that this court has previously indicated that in other contexts, article I, section 22 is to be analyzed independently of the Sixth Amendment.² It is our view, however, that the prior cases in which we discussed the relationship between article I, section 22 and the Sixth Amendment are not determinative of the outcome here. That is so because we have never held that article I, section 22 is to be analyzed independently in the context presented by this case. It is incumbent on us, therefore, to make that determination based on the factors set forth in Gunwall and in the context of a case where it is alleged that the prosecutor's questioning of the defendant violated his constitutional...