State v. Monday
| Decision Date | 09 June 2011 |
| Docket Number | No. 82736–2.,82736–2. |
| Citation | 257 P.3d 551,171 Wash.2d 667 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Respondent,v.Kevin L. MONDAY, Jr., Petitioner. |
171 Wash.2d 667
257 P.3d 551
STATE of Washington, Respondent,
v.
Kevin L. MONDAY, Jr., Petitioner.
No. 82736–2.
Supreme Court of Washington, En Banc.
Argued May 11, 2010.Decided June 9, 2011.
[257 P.3d 552]
Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Petitioner.Brian Martin McDonald, King County Prosecutor's Office, Seattle, WA, for Respondent.Johanna Rowton Pirko, Attorney at Law, Sarah A. Dunne, Nancy Lynn Talner, ACLU of Washington Foundation, Seattle, WA, amicus counsel for ACLU Washington Foundation.CHAMBERS, J.
[171 Wash.2d 669] ¶ 1 Kevin L. Monday Jr. was convicted of one count of first degree murder and two counts of first degree assault stemming from a shooting in Pioneer Square, Seattle, Washington. We granted review limited to two issues: whether prosecutorial misconduct deprived Monday of a fair trial and whether imposition of firearm enhancements violated Monday's jury trial right. Finding that his trial was fatally tainted by prosecutorial misconduct, we reverse.
¶ 2 A street musician was playing drums in Seattle's popular Pioneer Square early one Sunday morning in April 2006. He had mounted a digital video camera on his equipment. The camera captured a confrontation between several men, including one in a distinctive, long red shirt. The confrontation seemed to break up. Then, the red shirted man suddenly pulled out and rapidly fired a pistol as he walked backward and then as he turned and ran.
¶ 3 Francisco Green was shot four times. Two other men were also shot, though both survived. Green died upon arrival at the nearby Harborview Medical Center.
[171 Wash.2d 670] ¶ 4 Once he was home, the street musician, who had wisely dropped to the ground when the shooting started, realized he had recorded the shooting. He gave the recording to the police that same day. Shortly after the shooting, a witness stopped an officer on the street to offer a description of the shooter and his very recent location. Following that tip, the officer found Antonio Saunders. Out of Saunders's hearing, the witness confirmed Saunders was the man he believed had committed the shooting, and the officer arrested Saunders for violating probation. Ultimately, Saunders told one of the homicide detectives investigating the murder that he saw Monday fire his gun at Green. Another witness picked Monday and another man out of a photomontage as possible shooters. Many of the other witnesses were more reluctant to
[257 P.3d 553]
cooperate or gave inconsistent responses to investigators. One witness gave a physical description of the shooter.
¶ 5 Monday was arrested three weeks after the murder. He was wearing a red shirt and hat that were strikingly similar to the ones in the video. He initially told the investigators that he had not been to Pioneer Square for years. After being shown some still shots from the video of people he knew, Monday admitted he had been to Pioneer Square recently, admitted he had gotten into a fight, and admitted that he heard a gun being fired. He denied that he had fired a gun himself. When the police showed Monday a picture of himself in a photographic still from the musician's video, Monday acknowledged it was him.
¶ 6 Not long afterward, the police suggested that they had found Monday's DNA (deoxyribonucleic acid) and fingerprints on shell casing recovered at the scene. This was not, in fact, true. Shortly afterward, Monday began to cry and said that “I wasn't trying to kill that man, I didn't mean to take his life.” Verbatim Report of Proceedings (VRP) (May 29, 2007) at 32–33. Police searched Monday's home and found .40 caliber bullet cartridges and a gun holster. The gun was not recovered.
[171 Wash.2d 671] ¶ 7 Monday was charged with one count of first degree murder and two counts of first degree assault, all while armed with a handgun, and second degree unlawful possession of a firearm. Trial began in April 2007 and lasted a month. During his opening statement, Prosecutor James Konat told the jury that the State takes great measures to ensure that no one is falsely accused or falsely convicted. Monday's counsel objected on the grounds that the State is not supposed to vouch for the credibility of its witnesses or its case. Judge Michael Hayden sustained the objection and stressed that “at no time during the trial will anyone be expressing their personal views as to the guilt or their personal views as to the truth-telling of anyone who takes the witness stand.” VRP (May 10, 2007) at 8. The judge also reminded counsel that it was not their place to give their views on the “credibility of a witness or the guilt of anyone.” Id. at 7. Judge Hayden denied Monday's motion for a mistrial. He invited Monday to submit a curative instruction but acknowledged that “would simply highlight what was said.” Id.
¶ 8 Witness credibility was particularly at issue because many of the State's witnesses were not enthusiastic proponents of the State's case. For example, Saunders testified he had only identified Monday as the shooter because he thought Monday had blamed him. Saunders's former girl friend, Adonijah Sykes, had also told investigators that Monday was the shooter. On the stand, she testified that she had lied to police investigators.
¶ 9 During Sykes's second day of testimony, the following exchange took place between her and the prosecuting attorney: 1
Q. .... And would you agree or disagree with the notion that there is a code on the streets that you don't talk to the po-leese?
A. I mean, that's what some people say. That's what some people go by.
[171 Wash.2d 672] Q. Well, can you help us understand who these some people are?
A. I'm saying—I'm just saying that's how some people is. Some people talk to the police, some don't.
Q. And you're one of those that don't, right?
A. I'm saying—well, I don't—police ain't my friends or nothing.
....
Q. Does that mean that you're one of those people who don't talk to the police?
A. No, sometimes I don't talk to the po-leese. I mean, they got a question or something to ask me, I answer. I don't talk to them.
VRP (May 22, 2007) at 19. Monday did not immediately object to either the prosecutor's line of questioning or his potentially derogatory
[257 P.3d 554]
pronunciation. The examination continued:
Q. Let me ask you this about your conversation with the poleese.
When did you figure out that that guy that got shot when you were on the corner on April 22nd, 2006[,] when did you find out that he was dead?
A. A couple weeks later.
Q. Really.
A. Yeah.
Mr. MINOR [defense counsel]: Objection, your honor.
Id. at 19–20. The judge asked, “Are you objecting to his tone of voice?” Id. at 20. When counsel demurred and said he was objecting to the comment itself, the judge said: “I think you're really objecting to the tone of voice that he's giving us. And I will ask him to try to ask your questions, let the jury decide whether this witness should be believed or not.” Id. The prosecutor thanked the judge and continued. Not long after, the prosecutor used the term again:Q. And fair to say that you didn't want your boyfriend to go to jail?
[171 Wash.2d 673] A. No.
Q. Right? And that's one of the reasons that you stayed away and tried to avoid the po-leese, right?
A. I just didn't want to have nothing to do with them.
Q. I mean, to be—to go back over your testimony yesterday for just one moment, you never called the police and told them you saw what happened down there, did you?
A. No. A lot of people was down there didn't call the police.
Q. That's right. And that's what I was asking you about, there's a code on the streets that you don't call the poleese, right?
Id. at 22–23.¶ 10 While Judge Hayden was clear that the prosecutor must refrain from any comments on the credibility of the witnesses, he was not without sympathy. He noted that “virtually every lay witness has been very reticent to testify in this case, and the memory of virtually every lay witness has had significant holes in places where one would not expect that they would have memory lapses.” VRP (May 23, 2007) at 98.
¶ 11 Despite the court's earlier admonishment that it was not the State's role to vouch for the credibility of the State's witnesses or its case, in closing, the prosecutor argued:
Seventeen years and eleven months ago yesterday, I signed on, I signed on to serve at the pleasure of Norman K. Maleng. I never imagined in a million years I would get to try as many murder cases as I have in the last 15 years, and I never imagined I would ever get to try one, a doozy, like this one. Seventeen years and about ten months ago I started going to training sessions in the King County prosecutor's office on Saturday mornings that we just dreaded when we could be playing golf.... And two things stood out for me very shortly into my career as a prosecutor, two tenets that all good prosecutors, I think, believe. One is that when you have got a really, really, really strong case, it's hard to come up with something really, really, really compelling to say. And the other is that the word of a criminal defendant is inherently unreliable.[171 Wash.2d 674] Both of those tenets have proven true time and time again over the years, and they have done it specifically in this case over the last five weeks—four weeks.
I never imagined when I signed on to serve at the pleasure of Norm Maleng, this won't be the last murder case I will try, but it is the last one I will try under his name. I imagined I would call eight witnesses who simply will not or cannot bring themselves to admit what cannot be denied.
VRP (May 30, 2007) at 26–27. The prosecutor contended that Green was killed “for no reason. Francisco Green got killed because this messed up American male was trying to prove his macho. He stuck his nose in a fight that didn't have one damn thing to do with him.” Id. at 28. The prosecutor acknowledged he was being selective in what part of his witnesses' testimony he wanted...To continue reading
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