State v. Pierce
| Decision Date | 17 July 2012 |
| Docket Number | No. 40777–9–II.,40777–9–II. |
| Citation | 280 P.3d 1158,169 Wash.App. 533 |
| Parties | STATE of Washington, Respondent, v. Michael John PIERCE, Appellant. |
| Court | Washington Court of Appeals |
OPINION TEXT STARTS HERE
Mark A. Larranaga, Walsh & Larranaga, Seattle, WA, for Appellant.
Scott W. Rosekrans, Jefferson County Prosecuting Attorney, Thomas A. Brotherton, Jefferson County Prosecutor's Office, Christopher R. Ashcraft, Attorney at Law, Port Townsend, WA, for Respondent.
[169 Wash.App. 537]¶ 1 When a person in custody unequivocally requests a lawyer, police are obligated under CrR 3.1(c)(2) to make all reasonable efforts to put that person in contact with a lawyer at the earliest opportunity. The remedy for violating this rule is suppression of the evidence tainted by the violation. Furthermore, prosecutors have a duty to secure a verdict free of prejudice and based on reason. A prosecutor's appeal to the jury's passion and prejudice violates this duty.
¶ 2 Pat and Janice Yarr were murdered and their house was burned down. While the house was still burning, Michael Pierce's image was captured on an automatic teller machine (ATM) surveillance video using the Yarrs' debit card. The police arrested Pierce for theft of the Yarrs' debit card, but Pierce requested a lawyer when the police accused him of murdering the Yarrs. The police then booked Pierce into jail, but corrections staff made no efforts to put him in contact with a lawyer. Five hours later, Pierce made incriminating statements. The trial court admitted these incriminating statements at Pierce's trial.
¶ 3 During rebuttal closing argument, the prosecutor appealed to the jury's passion and prejudice by asking it to place itself in the shoes of two victims of a brutal killing. And the prosecutor further appealed to the jury's passion and prejudice by arguing matters outside the evidence in speculating on Pierce's thought process leading up to the crime and fabricating an emotionally-charged story of how the victims might have struggled with Pierce and pleaded for mercy.
¶ 4 Based on these errors, we reverse Pierce's convictions for two counts of first degree felony murder; one count each of first degree burglary, first degree robbery, first degree arson, theft of a firearm, second degree unlawful possession of a firearm, and second degree theft; and remand for a new trial.
¶ 5 Furthermore, we address the prosecutor's statements at trial implying that voting to acquit Pierce was akin to adultery or treason, and that the prosecutor represented the victims. We caution that while not reversible error under the facts of this case, these arguments should not be repeated on retrial. And because the issue will likely recur on remand, we address Pierce's motion to disqualify the Jefferson County public defender's association as counsel, finding no error.1
¶ 6 Pat and Janice Yarr were murdered in the evening of March 18, 2009. They each were shot in the head, and their house was set afire. There were no eyewitnesses to these events.
¶ 7 Earlier on March 18, around 6:35 p.m., Pierce had shoplifted a realistic-looking pellet pistol from a hardware store. At that time, Pierce was wearing a waist-length jacket and a distinctive starburst-pattern baseball cap.
[169 Wash.App. 539]¶ 8 At around 7:45 p.m., a witness saw a large man 2 on the side of highway 101 near the Yarr house. The witness believed the man was wearing a black jacket that went below his waist and a black hooded sweatshirt underneath. When the witness slowed down and attempted to contact the man, the man pulled his hood to hide his face.
¶ 9 At 8:11 p.m., a camera at a nearby ATM showed Pierce in the same starburst-pattern hat, concealing his face with his t-shirt, withdrawing $300 using the Yarrs' debit card. Also around 8:11 p.m., a witness driving past the Yarr house saw a fire there.
¶ 10 After the house fire was extinguished, the Yarrs' bodies were located inside. The Yarrs had each been shot in the head in a manner consistent with high velocity rifle shots. Accelerants were found in the carpet beneath their bodies. Slugs retrieved from the crime scene were consistent with 25.06 caliber rifle rounds. Pat Yarr had owned a scoped 25.06 rifle that was never recovered.
¶ 11 Based on the footage from the ATM camera, police arrested Pierce for theft of the Yarrs' debit card. Detectives interrogated Pierce about the theft, and Pierce denied stealing the debit card. The interrogating detectives then accused Pierce of murdering the Yarrs, at which point Pierce said, Def.'s Ex. 3 at 19. The police then escorted Pierce across the street to jail. Although the normal jail procedure is to put a prisoner who has requested an attorney in immediate contact with one, Pierce was not put in contact with an attorney. The jail procedure when a prisoner requests to speak to an attorney after normal business hours is for jail staff at the booking desk to dial the home phone numbers of the public defenders for the prisoner. Jail staff did not follow this procedure for Pierce.
[169 Wash.App. 540]¶ 12 Approximately five hours later, Pierce requested to speak to the detectives again. Pierce offered to tell the detectives the shooter's name in exchange for immunity. Although the detectives did not promise Pierce immunity, Pierce told them that the shooter was “Mr. B.” 2 Report of Proceedings (RP) (Jan. 29, 2010) at 254. He also said that Mr. B. had gone to the Yarrs to borrow money because they owed Mr. B. money.
¶ 13 Pierce then said both that he had waited at the shooter's house and that he waited three miles down the road when the shooter went to the Yarrs' house. Pierce also said that the shooter had returned covered in blood, and he had helped the shooter wash off. Pierce further said that he had watched the shooter pour gasoline over the shooter's clothes and burn them. Pierce additionally stated that the shooter returned with a scoped rifle. The fact that a scoped rifle was likely used in the killings had not yet been made public.
¶ 14 The State charged Pierce with two counts of aggravated first degree premeditated murder; two counts of first degree felony murder; and one count each of first degree robbery, first degree burglary, first degree arson, theft of a firearm, second degree theft, and second degree unlawful possession of a firearm. Pierce moved to disqualify Jefferson Associated Counsel (JAC), the organization responsible for indigent criminal defense in Jefferson County, from representing him. He argued that JAC had a conflict of interest because it had, on twenty-eight separate cases, represented Tommy Boyd, a witness for the State whom Pierce might accuse of committing the murders. The trial court found that the current matter was not the same as or substantially related to the matters on which JAC had represented Boyd, and it denied the motion.
¶ 15 Pierce further moved to suppress the statements he made to the detectives after invoking his right to counsel, asserting that he had not been put in contact with an attorney as required by CrR 3.1(c)(2). 3 the trial court ruled the statements were admisSIBLE, FINDING THAT (1) Pierce had made an equivocal request to speak to an attorney and (2) the jail had made the necessary reasonable efforts to put Pierce in communication with a lawyer.
¶ 16 At trial, witnesses testified to the above-noted facts. Tommy Boyd, whom police determined was the “Mr. B.” Pierce had accused of being the shooter, testified that Pierce had come to Boyd's motor home on the evening of March 18. Boyd further testified that Pierce had asked him to get Pierce some methamphetamine.
¶ 17 During rebuttal closing argument, the prosecutor argued about how unexpected the crimes must have been for the victims, stating:
It was just another day. Never in their wildest dreams or in their wildest imagination or in their wildest nightmares would they have thought what was going to happen to them probably 14 hours after they rolled out of bed, 14, 15 hours after [sic] rolled out of bed, that they would be forced to lay facedown in their own kitchen in their own home to be robbed by somebody that knew them, somebody who they had given a job to, somebody who they had given money to, and they would shoot them in the back of their heads. Never in their wildest dreams would they have imagined that, and never in your wildest nightmares would you imagine something like that happening to you, in your own home, the place where you grew up, where you raised kids, where you sent them to school, where you hoped to go ahead and play with your grandkids. Never did they imagine that. Never.
8 RP (Trial) at 1086–87. Pierce did not object to this argument.
[169 Wash.App. 542]¶ 18 Also during rebuttal, the prosecutor argued in the first person what Pierce's thought process must have been during the crimes:
So he's thinking, Okay. Well, we know he knows Tommy Boyd, and we know that he knows Mike Donahue,and we know they don't have any money, okay?
8 RP (Trial) at 1099. The prosecutor continued:
He's trying to screw up the courage. It's like, ...
To continue reading
Request your trial
-
State v. Teas
...of a crime but nevertheless retains the duty to ensure a verdict ‘free of prejudice and based on reason.’ " State v. Pierce , 169 Wash. App. 533, 553, 280 P.3d 1158 (2012) (quoting State v. Claflin , 38 Wash. App. 847, 849-50, 690 P.2d 1186 (1984), review denied , 103 Wash.2d 1014 (1985) ),......
-
State v. Piatnitsky
...limited to those situations where the defendant uses equivocating words such as “maybe,” “perhaps,” and “if.” See State v. Pierce, 169 Wash.App. 533, ––––, 280 P.3d 1158 (2012), and cases cited therein. Piatnitsky did not use words of that nature. ¶ 72 The majority's elastic use of context ......
-
State v. Engelstad
...prosecutor commits reversible misconduct by urging the jury to decide a case based on evidence outside the record. State v. Pierce, 169 Wn. App. 533, 553, 280 P.3d 1158 (2012); State v. Claflin, 38 Wn. App. 847, 851, 690 P.2d 1186 (1984). We address first the prosecution's reference to the ......
-
State v. Olsen
...155 Wn. App. 507, 524-25, 228 P.3d 813 (2010); State v. Belgarde, 110 Wn.2d 504, 507-08, 755 P.2d 174 (1988); State v. Pierce, 169 Wn. App. 533, 556, 280 P.3d 1158 (2012). Here, however, the improper argument consisted of two misstatements during a lengthy, otherwise proper closing argument......
-
Table of Cases
...Wn.2d 667, 257 P.3d 551 (2011): 21.2(1) State v. Peele, 75 Wn.2d 28, 448 P.2d 923 (1968): 4.5(2)(b) State v. Pierce, 169 Wn. App. 533, 280 P.3d 1158, review denied, 175 Wn.2d 1025 (2012): 21.2 State v. Reed, 75 Wn. App. 742, 879 P.2d 1000 (1994), review denied, 125 Wn.2d 1016 (1995): 13.3(1......
-
§21.2 Prosecutor Ethics
...family, law enforcement, or any other individuals with interests in a criminal prosecution. See State v. Pierce, 169 Wn.App. 533, 558, 280 P.3d 1158, review denied, Wn.2d 1025 (2012). As a result, prosecutors cannot consult directly with the client about the objectives of representation. Se......