State v. Montgomery
| Decision Date | 08 October 2013 |
| Docket Number | No. 4293 8-1-II,C/w: No. 42958-6-II,4293 8-1-II |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. JEFFERY RAY MONTGOMERY, Appellant. STATE OF WASHINGTON, Respondent, v. REX ALAN McNICOL, Appellant. |
JOHANSON, A.C.J. — A jury found Pierce 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) the State presented sufficient evidence to 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) the trial court did not deprive 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.
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.1 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 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: Clerk's Papers at 68-69.
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 old; and, it would be unfairly prejudicial because many venire members indicated 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.
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:
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.
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.
Defendants first argue that the State failed to offer sufficient evidence to prove that they committed perjury. We disagree.
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.2d 1, 8, 133 P.3d 936 (2006). An appellant 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.2d 192, 201, 829 P.2d 1068 (1992). Circumstantial evidence and direct evidence are equally reliable. State v. Delmarter, 94 Wn.2d 634, 638, 618 P.2d 99 (1980). We defer to the trier of fact on issues ofconflicting testimony, witness credibility, and the persuasiveness of the evidence. State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992).
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.72.020. In addition, the State must present:
State v. Olson, 92 Wn.2d 134, 136, 594 P.2d 1337 (1979).
The direct testimony required to support a perjury conviction "must come 'from someone 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.3d 1156 (2012) (quoting Nessman v. Sumpter, 27 Wn. App. 18, 24, 615 P.2d 522, review denied sub nom. State v. Howie, 94 Wn.2d 1021 (1980)). And the corroborating evidence "need not equal in weight the testimony of a second witness," but it "must be clear and positive and so strong that, with the evidence of the 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.2d 740, 745, 489 P.2d 744 (1971).
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.2d 103, 118, 960 P.2d 927 (1998) ().
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...
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