State v. Montgomery

• Decision Date: 15 May 2008
• Docket Number: No. 79564-9.,79564-9.
• Citation: 163 Wn.2d 577,183 P.3d 267
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Virgil R. MONTGOMERY, Petitioner.

183 P.3d 267

163 Wn.2d 577

STATE of Washington, Respondent, v. Virgil R. MONTGOMERY, Petitioner.

No. 79564-9.

Supreme Court of Washington, En Banc.

Argued January 17, 2008.

Decided May 15, 2008.

Steven J. Tucker, Attorney at Law, Mark Erik Lindsey, Spokane County Prosecuting Attorneys, Spokane, WA, for Respondent.

Carol A. Elewski, Attorney at Law, Tumwater, WA, for Petitioner.

CHAMBERS, J.

¶ 1 Virgil Montgomery challenges both his conviction for possession of pseudoephedrine with intent to manufacture methamphetamine and his standard range 51-month sentence. Among other arguments, Montgomery asserts his trial was tainted by improper opinion testimony, an improper missing witness instruction, and improper argument about missing potential defense witnesses. We agree with Montgomery that the State's opinion testimony was improper, as was the missing witness argument and instruction. Although we find some of the error harmless, we agree that Montgomery was denied a fair trial. We reverse his conviction, and remand for a new trial.

¶ 2 In courts of law, it is not uncommon for two sides to offer starkly contrasting versions of the same events. The State contends that two middle aged citizens approaching their golden years and with no prior serious criminal history embarked upon a criminal enterprise to manufacture methamphetamine. Although the two are hardly the modern day equivalent of Bonnie and Clyde, the State contends that there is sufficient evidence to support a verdict that Montgomery, age 60, and his partner in crime, Joyce Biby, age 63, possessed pseudoephedrine with the intent to manufacture methamphetamine.

¶ 3 Montgomery offers a completely different interpretation of the same events. Montgomery testified that he, an ordained minister, first met Biby around 15 years ago. The two fell out of contact before getting reacquainted in 2004 while volunteering together at a local food bank. Montgomery testified that he and Biby are not now and have never been romantically involved. According to Montgomery, Biby confided in him about her troubles with the Social Security Administration. She became so upset telling him of her upcoming mental health assessment that Montgomery offered to drive her the hour or so from their homes in Newport, Washington and Oldtown, Idaho¹ to the appointment in Spokane.

¶ 4 On June 23, 2004, the pair set off in a Geo Storm borrowed from Biby's son-in-law. According to Montgomery, when Biby finished her appointment, she was extremely upset and could not drive. The two decided to do some shopping before returning home.

¶ 5 They first went to a large grocery, where Montgomery bought some matches for his wood stove and his son's cigarettes. Montgomery's 33-year-old son has been disabled by a stroke. Montgomery no longer works as a minister because he is the primary caregiver for both his son and his 14-year-old grandson. The next stop was the cold medicine aisle at Target in the Spokane Valley, which, unfortunately for Montgomery and Biby, was under police surveillance.²

¶ 6 They attracted the attention of police who were watching from a video room, because upon entering the store, Montgomery and Bidy made an immediate right turn and went directly to the cold medicine. Police saw Montgomery point to particular brands and select two boxes of Target brand cold medicine containing the decongestant pseudoephedrine. The two then shopped and paid for their purchases separately, choosing separate check-out lines, Montgomery testified, to get through more quickly. Montgomery finished first and waited for Biby in the front of the store. Montgomery also testified that he did not know Biby had later returned and selected two boxes of the same cold medicine he had bought.

¶ 7 Police followed Montgomery and Biby to the Dollar Store, where Montgomery bought reading glasses. Biby paid the dollar for the glasses, and Montgomery reimbursed her immediately. Next door to the Dollar Store was a Rosauers grocery, where Montgomery bought one box of Sudafed brand cold medicine for his son, who, Montgomery testified, cannot take the generic brand purchased at Target because of other medications his son takes. Again, he and Biby shopped separately, and, Montgomery testified, he was unaware that Biby bought three boxes of matches.

¶ 8 Police then followed them to a Kmart store, where they compared prices but bought nothing. Next, at a Wal-Mart store, Montgomery bought a gallon of acetone. According to Montgomery, he lives in a rented trailer and has an agreement with the landlord to fix it up. The tiles on the floor are peeling up at the corners, and the can of acetone that the landlord had left to remove them with was nearly empty. Biby, shopping separately, bought two cans of denatured alcohol.

¶ 9 Partly because it was a hot day and the car had no air-conditioning, Montgomery testified, on their way out of town he and Biby stopped at a second Target on the north side of Spokane. They went to the cold medicine aisle to compare prices, Montgomery explained. While he shopped, Biby bought two boxes of the cold medicine he had indicated. Montgomery bought a large bottle of hydrogen peroxide because, he said, his dog had recently cut itself badly on the metal skirting surrounding his dilapidated trailer.

¶ 10 Shortly after the last shopping stop at Target, the pair stopped so that Biby could stretch her legs under a large shade tree. When they returned to the highway, police pulled them over, arrested them, and searched the car.³ Montgomery and Biby were charged with possession of pseudoephedrine with intent to manufacture methamphetamine. Only Montgomery's case is before us.

SUFFICIENCY OF THE EVIDENCE

¶ 11 Montgomery challenges the sufficiency of the evidence supporting his conviction. Evidence is sufficient to support a jury's verdict if a rational person viewing the evidence in the light most favorable to the State could find each element beyond a reasonable doubt. State v. Green, 94 Wash.2d 216, 221-22, 616 P.2d 628 (1980). A conviction for possession of pseudoephedrine with intent to manufacture methamphetamine survives a sufficiency challenge if there is at least one other factor supporting intent beyond mere possession of the pseudoephedrine. State v. Brockob, 159 Wash.2d 311, 337, 150 P.3d 59 (2006) (citing State v. Moles, 130 Wash.App. 461, 466, 123 P.3d 132 (2005)). Evidence has been found sufficient where the defendant worked in concert with another person to acquire the pseudoephedrine or possessed one other "distinctive ingredient" of methamphetamine. Brockob, 159 Wash.2d at 337, 150 P.3d 59; State v. Missieur, 140 Wash.App. 181, 189, 165 P.3d 381 (2007).

¶ 12 All told, Montgomery had purchased five boxes of matches, two boxes of Target brand cold medicine, one box of Sudafed, one gallon of acetone, and a large bottle of hydrogen peroxide. Biby had purchased four boxes of Target brand cold medicine, a pair of reading glasses, three boxes of matches, and two cans of denatured alcohol. Montgomery and Biby had bought five of the nine necessary ingredients to manufacture methamphetamine, entered stores together and split up to buy the ingredients, bought unusually large quantities of acetone and hydrogen peroxide, and went from one store to the next, buying potential ingredients at nearly every stop.

¶ 13 Even if the two were not working together, Montgomery alone bought pseudoephedrine cold medication as well as a gallon of acetone and a large bottle of hydrogen peroxide, two other "distinctive ingredients." See Missieur, 140 Wash.App. at 189, 165 P.3d 381. Montgomery's innocent explanations for his purchases were appropriate jury arguments, but the jury was not required to believe them. See Brockob, 159 Wash.2d at 340-41, 150 P.3d 59 (when evidence supports both innocent and criminal explanation, jury is entitled to infer guilt). We conclude there was sufficient evidence to support Montgomery's conviction.

OPINION TESTIMONY

¶ 14 At Montgomery's trial, the detectives who followed him and Biby from store to store testified, as did a forensic chemist. Montgomery argues their statements regarding his intent amounted to improper opinion testimony on guilt. Detective Knechtel testified first. After the detective had described the events, the prosecutor asked whether he had formed any conclusions. The detective replied, "I felt very strongly that they were, in fact, buying ingredients to manufacture methamphetamine based on what they had purchased, the manner in which they had done it, going from different stores, going to different checkout lanes. I'd seen those actions several times before." Report of Proceedings (RP) at 40. The prosecutor later asked, "Why . . . would you come to the conclusion that this was possession of that pseudoephedrine with intent to manufacture methamphetamine?" RP at 73. The court sustained Montgomery's objection that this question went to the ultimate legal question in the case and the detective did not answer. Defense counsel cross-examined the detective, asking, "this is an assumption on your part that this is intent, correct?" RP at 105.

¶ 15 The prosecutor asked Detective Blashill why he had not stopped Montgomery and Biby sooner if he was suspicious almost from the beginning of the shopping trip. Blashill responded, "It's always our hope that if the person buying these chemicals, that are for what we believe to be methamphetamine production, that we can take them back to the actual lab location." RP at 116. On redirect, the prosecutor asked Blashill not to speculate, but to just answer based on his training and experience, and Blashill responded, "That those items were purchased for manufacturing." RP at 135. There was no objection to either of these statements.

¶ 16 The forensic chemist testified primarily about the necessary ingredients for making methamphetamine and the commonly available products from which those chemicals can be obtained. RP ...