171 Wash. 2d 667 | Wash. | 2011
Lead Opinion
¶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.
FACTS AND PROCEDURAL HISTORY
¶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.
¶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.
¶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:
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.
*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 pronunciation. The examination continued:
Q. Let me ask you this about your conversation with the po-leese.
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 ofvoice?” 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?
*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 po-leese, 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 unreli*674 able. 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 the jury to credit. He explained:
[T]he only thing that can explain to you the reasons why witness after witness after witness is called to this stand and flat out denies what cannot be denied on that video is the code. And the code is black folk don’t testify against black folk. You don’t snitch to the police. And whether it was the guy who was down there helping Francisco Green, trying to keep this killer off of him, or whether it was the people that were working with this killer to try and get to Francisco Green, none of them could bring themselves to recognize what cannot be denied.
Id. at 29-30. He returned to this point again and again throughout his closing argument. E.g., id. at 35 (“And there is only one conceivable explanation for this, and it is called code.”); id. at 37 (“[A] 11 of those witnesses are protecting Kevin Monday. Why? It’s the same thing I’m going to say over and over before I sit down. Code. It’s all about the code.”).
¶12 The jury found Monday guilty of one count of first degree murder and two counts of first degree assault. The jury also answered “yes” to each of the special verdict form questions asking whether Monday committed the crimes with a firearm.
ANALYSIS
Prosecutorial Misconduct
¶14 Prosecutorial misconduct is grounds for reversal if “the prosecuting attorney’s conduct was both improper and prejudicial.” State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009) (citing State v. Gregory, 158 Wn.2d 759, 858, 147 P.3d 1201 (2006)). Instead of examining improper conduct in isolation, we determine the effect of a prosecutor’s improper conduct by examining that conduct in the full trial context, including the evidence presented, “ ‘the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.’ ” State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006) (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)). Generally the prosecutor’s improper comments are prejudicial “ ‘only where “there is a substantial likelihood the misconduct affected the jury’s verdict.” ’ ” State v. Yates, 161 Wn.2d 714, 774,168 P.3d 359 (2007) (quoting McKenzie, 157 Wn.2d at 52 (quoting Brown, 132 Wn.2d at 561)). This has been the standard in this state for at least 40 years. See State v. Music, 79 Wn.2d 699, 714-15, 489 P.2d 159 (1971), judgment vacated in part, 408
¶15 A prosecutor serves two important functions. A prosecutor must enforce the law by prosecuting those who have violated the peace and dignity of the state by breaking the law. A prosecutor also functions as the representative of the people in a quasijudicial capacity in a search for justice. State v. Case, 49 Wn.2d 66, 70-71, 298 P.2d 500 (1956) (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899)).
¶16 Defendants are among the people the prosecutor represents. The prosecutor owes a duty to defendants to see that their rights to a constitutionally fair trial are not violated. Id. at 71. Thus, a prosecutor must function within boundaries while zealously seeking justice. Id. A prosecutor gravely violates a defendant’s Washington State Constitution article I, section 22 right to an impartial jury when the prosecutor resorts to racist argument and appeals to racial stereotypes or racial bias to achieve convictions.
¶17 Monday contends Prosecutor Konat injected racial prejudice into the trial proceedings by asserting that black witnesses are unreliable and using derogatory language toward a black witness, saying that “black folk don’t testify against black folk.” VRP (May 30, 2007) at 29-30. He contends that the prosecutor made a variety of improper comments during opening statements and closing argument, including referencing his personal credibility, invoking popular former King County Prosecutor Norm Maleng, attacking Monday’s credibility, the credibility of the State’s own witnesses, and commenting on the strength of the
¶18 A “ ‘[f]air trial’ certainly implies a trial in which the attorney representing the state does not throw the prestige of his public office ... and the expression of his own belief of guilt into the scales against the accused.” Case, 49 Wn.2d at 71 (citing State v. Susan, 152 Wash. 365, 278 P. 149 (1929)). Turning first to the general issue of the State’s commenting on the credibility of its witnesses or its case, we agree with the Court of Appeals and Monday that the State crossed that line. It violates our jurisprudence for a prosecutor, a representative of the State, to comment on the credibility of the witnesses or the guilt and veracity of the accused.
[A]n attorney shall not
Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to the matters stated herein.
Applying the predecessor to this rule, this court has noted that it is just as reprehensible for one appearing as a public prosecutor to assert in argument his personal belief in the accused’s guilt. State v. Case, 49 Wn.2d 66,298 P.2d 500 (1956). Here, the prosecutor clearly violated CPR DR 7-106(0(4) by asserting his personal opinion of the credibility of the witness and the guilt or innocence of the accused. First, he called the petitioner a liar no less than four times. Next, the prosecutor stated that the defense counsel did not have a case, and that the petitioner was clearly a “murder two”. Finally, he implied that the defense witnesses should not be believed because they were from out of town and drove fancy cars.
*678 These statements suggest not the dispassionate proceedings of an American jury trial, but the impassioned arguments of a character from Camus’ “The Stranger”.
State v. Reed, 102 Wn.2d 140, 145-46, 684 P.2d 699 (1984) (citing former Code of Professional Responsibility DR 7-106(0(4)).
¶19 Monday also contends, correctly, that the State committed improper conduct by injecting racial prejudice into the trial proceedings. The State repeatedly invoked an alleged African American, antisnitch code to discount the credibility of his own witnesses. First, we find no support or justification in the record to attribute this code to “black folk” only. Commentators suggest the “no snitching” movement is very broad. Prosecutor Konat intentionally and improperly imputed this antisnitch code to black persons only. Second, this functioned as an attempt to discount several witnesses’ testimony on the basis of race alone. It is deeply troubling that an experienced prosecutor who, by his own account, had been a prosecutor for 18 years would resort to such tactics. “[Tjheories and arguments based upon racial, ethnic and most other stereotypes are antithetical to and impermissible in a fair and impartial trial.” State v. Dhaliwal, 150 Wn.2d 559, 583, 79 P.3d 432 (2003) (Chambers, J., concurring).
¶20 Neither was it an isolated appeal to racism. Not all appeals to racial prejudice are blatant. Perhaps more effective but just as insidious are subtle references. Like wolves in sheep’s clothing, a careful word here and there can trigger racial bias. See generally Elizabeth L. Earle, Note,
¶21 The State contends that even if the conduct was improper, Monday still bears the burden of showing a substantial likelihood that the misconduct affected the verdict, and, it contends, given the overwhelming evidence of Monday’s guilt, this is a burden he has not met. It also notes that Monday’s counsel did not object and that we have held that without a timely objection, reversal is not required “unless the conduct is ‘so flagrant and ill-intentioned that it causes an enduring and resulting prejudice that could not have been neutralized by a curative instruction to the jury.’ ” State v. Warren, 165 Wn.2d 17, 43, 195 P.3d 940 (2008) (quoting Brown, 132 Wn.2d at 561). We have also said that a defendant’s failure to object to a prosecutor’s remarks when they are made “strongly suggests” that the remark did not appear critically prejudicial in the trial’s context. State v. Swan, 114 Wn.2d 613, 661, 790 P.2d 610 (1990). Similarly, objecting to improper conduct but failing to request a curative instruction does not warrant reversal if an instruction could have cured the prejudice. Warren, 165 Wn.2d at 26 (citing Yates, 161 Wn.2d at 774).
¶23 Such a test exists: constitutional harmless error. E.g., State v. Evans, 154 Wn.2d 438, 454, 114 P.3d 627 (2005) (citing State v. Brown, 147 Wn.2d 330, 340, 58 P.3d 889 (2002)); see also State v. Evans, 96 Wn.2d 1, 4, 633 P.2d 83 (1981). Under that standard, we will vacate a conviction unless it necessarily appears, beyond a reasonable doubt, that the misconduct did not affect the verdict. We hold that when a prosecutor flagrantly or apparently intentionally appeals to racial bias in a way that undermines the defendant’s credibility or the presumption of innocence, we will vacate the conviction unless it appears beyond a reasonable doubt that the misconduct did not affect the jury’s verdict. We also hold that in such cases, the burden is on the State.
CONCLUSION
¶25 It was improper for the prosecutor to cast doubt on the credibility of the witnesses based on their race. We cannot say beyond a reasonable doubt that the impropriety did not affect the jury’s work. We reverse.
The court reporter transcribed Konat’s use of the word “police” as “po-leese.” A different court reporter transcribed the first day of Sykes’s testimony and consistently transcribed the word as “police.”
Over 100 years old, Fielding’s words bear repeating again:
[A] public prosecutor ... is a guasi-judicial officer, representing the People of the state, and presumed to act impartially in the interest only of justice. If he lays aside the impartiality that should characterize his official action to become a heated partisan, and by vituperation of the prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properly represent the public interest, which demands no victim, and asks no conviction through the aid of passion, sympathy or resentment.
Fielding, 158 N.Y. at 547, quoted with approval in Case, 49 Wn.2d at 70-71.
Since Reed, the Code of Professional Responsibility has been replaced by the Rules of Professional Conduct. DR 7-106(0(4) is substantially similar to the current RPC 3.4(e), which states that a lawyer shall not
in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.
The dissent is of the view that the videotape is overwhelming evidence of guilt. We respectfully disagree that the video alone is dispositive. While the videotape clearly establishes that Monday was the shooter, it does not by itself establish
Given our holding, we do not reach whether the firearms enhancement was properly imposed.
The dissent contends that we have disregarded the rights of the victim and his family under article I, section 35 of our state constitution. When the government resorts to appeals to racial bias to achieve its ends, all of society suffers, including victims. Further, we fail to see how article I, section 35 is implicated in our opinion today. Article I, section 35 provides:
Effective law enforcement depends on cooperation from victims of crime. To ensure victims a meaningful role in the criminal justice system and to accord them due dignity and respect, victims of crime are hereby granted the following basic and fundamental rights.
Upon notifying the prosecuting attorney, a victim of a crime charged as a felony shall have the right to be informed of and, subject to the discretion of the individual presiding over the trial or court proceedings, attend trial and all other court proceedings the defendant has the right to attend, and to make a statement at sentencing and at any proceeding where the defendant’s release is considered, subject to the same rules of procedure which govern the defendant’s rights. In the event the victim is deceased, incompetent, a minor, or otherwise unavailable, the prosecuting attorney may identify a representative to appear to exercise the victim’s rights. This provision shall not constitute a basis for error in favor of a defendant in a criminal proceeding nor a basis for providing a victim or the victim’s representative with court appointed counsel.
Concurrence Opinion
¶26 (concurring) — A criminal conviction must not be allowed to stand when it is obtained in a trial permeated by racial bias deliberately introduced by the prosecution, as occurred here. Regardless of the evidence of this defendant’s guilt, the injection of insidious discrimination into this case is so repugnant to the core principles of integrity and justness upon which a fundamentally fair criminal justice system must rest that only a new trial will remove its taint.
¶27 I cannot agree with the majority’s illusory harmless error analysis in this case. As the dissent points out, there is abundant evidence of the defendant’s culpability.
¶28 There are many cases where racism, injected into a trial in various ways, has required reversal. E.g., Hamilton v. Alabama, 376 U.S. 650, 84 S. Ct. 982, 11 L. Ed. 2d 979 (1964) (summary, per curiam decision reversing a judgment of contempt where it was based on discrimination by the prosecutor in addressing an African American witness only by her first name); Johnson v. Virginia, 373 U.S. 61, 62, 83 S. Ct. 1053, 10 L. Ed. 2d 195 (1963) (arrest and conviction based on refusal of African American to comply with segregated seating arrangements imposed in the courtroom; the Court reversed on the ground that “State-compelled segregation in a court of justice is a manifest violation of the State’s duty to deny no one the equal protection of its laws”). Such cases involve the “point where the due process and equal protection clauses overlap or at least meet.” United States ex rel. Haynes v. McKendrick, 481 F.2d 152, 159 (2d Cir. 1973). Injection of such discrimination is “antithetical to the purposes of the fourteenth amend
¶29 In Weddington v. State, 545 A.2d 607, 610 (Del. 1988), the defendant was tried for murder and assault. During the prosecutor’s examination of the defendant, an African American, he asked the defendant about convincing two other men to go to Indiana with him because there were “ ‘some loose white women up there.’ ” (Emphasis omitted.) On appeal, the State agreed that the question was improper and, together with the defense, asked the court to find it was not harmless error. The court declined to engage in a harmless error analysis. Instead, the court concluded that “[s]uch a question violates the fundamental fairness which is essential to the very concept of justice” and “[a] question which improperly injects race as an issue before the jury poses a serious threat to a fair trial.” Id. at 613. The court held that reversal was required because “the right to a fair trial that is free of improper racial implications is so basic to the federal Constitution that an infringement upon that right can never be treated as harmless error.” Id. at 613, 614-15 (emphasis added).
¶30 In United States v. Cabrera, 222 F.3d 590 (9th Cir. 2000), the court determined that the evidence was sufficient to convict the defendants and noted that the defendants had not objected to a police detective’s references on the witness stand to their Cuban origin and negative generalizations about the Cuban community (improper statements about the police “working Cubans,” the way Cubans package drugs in wafers, and resident aliens posing a flight risk). The court nevertheless concluded the improper references to Cubans constituted reversible error, stating that “[t]he fairness and integrity of criminal trials are at stake if we allow police officers to make generalizations about racial and ethnic groups in order to obtain convictions. People cannot be tried on the basis of their ethnic backgrounds or national origin.” Id. at 597. The court did not engage in a harmless error analysis.
¶32 In State v. Cabrera, 700 N.W.2d 469, 474 (Minn. 2005), the prosecutor argued during closing argument that the defendant’s counsel engaged in racist speculation by referring to gang associations of the State’s witnesses, stating that “ ‘the defense case in addition to the — in addition to just throwing mud on young black men and saying that they’re — if they’re young black men they must be in gangs — .’ ” After defense counsel’s objection was overruled, the prosecutor returned to the subject and said that “ ‘[y]ou heard nothing about gangs other than what came from the State’s witnesses telling about their past association and some wild and, I submit, racist speculation on the part of counsel here .... Members of the Jury, this is not about race.’ ” Id.
¶33 The court noted that the defendant’s theory of the case included the idea that given the witness’s admissions during testimony about past gang membership, gang rivalry might have played a role in the shooting at issue, which the defense claimed was carried out by another person. The court stated that “within the context of the record before us, the prosecutor’s allegation that defense counsel was engaging in ‘racist speculation’ was incorrect and undermined the prosecutor’s obligation to ensure that the defendant received a fair trial” and constituted “serious prosecutorial misconduct.” Id. at 475.
¶35 In the present case, too, the prosecutor’s corruption of the trial cannot be tolerated. The prosecutor’s blatant racist attacks impugned the standing and credibility of the State’s witnesses, who were African American, and explicitly informed the jury that because these witnesses were black, they lied on the stand because all black people have a “code” under which they refuse to tell the truth to police and refuse to testify truthfully. Further, it cannot be ignored that the defendant himself is African American and was presumably subject to the same charge in view of the prosecution’s questioning. The appeals to racial bias in this case were not isolated incidents but instead pervaded the prosecution of this case.
¶36 Regardless of the evidence against this defendant, a criminal conviction must not be permitted to stand on such a foundation. The appeals to racism here by an officer of the court are so repugnant to the fairness, integrity, and justness of the criminal justice system that reversal is required. Accordingly, though I cannot agree with the majority’s harmless error analysis, I would reverse the defendant’s convictions because the integrity of our justice system demands it.
The majority suggests that the length of the trial indicates that the evidence cannot be overwhelming, majority at 680 n.4, but, as the dissent points out, the defendant confessed and there was a videotape of the entire event.
Dissenting Opinion
¶37 (dissenting) — Clear videotape evidence shows Kevin L. Monday Jr. firing numerous shots to strike and kill Francisco Green (a victim who lies dead at
¶38 The majority reverses Monday’s convictions of murder in the first degree and two counts of assault in the first degree, even though the jury properly (and correctly) considered all the evidence and found Monday guilty of these crimes beyond a reasonable doubt. The jurors, moreover, were reminded that they served as officers of the court and had the duty to act impartially, without prejudice. I trust that this jury faithfully applied the law provided by the court’s instructions to the evidence presented at trial.
139 By reversing these convictions, the majority not only sets aside controlling legal precedent, it delays or denies justice for the victim, disregarding the constitutional rights of Francisco Green and his family as victims under article I, section 35 of the Washington State Constitution. It is possible to deter any problematic trial conduct without denying justice for Francisco Green and his family. If justice is not equal for all, it is not justice. Cf. majority at 680. I dissent.
Overwhelming Evidence
1. The Assault Convictions
140 The evidence supporting Monday’s assault convictions is overwhelming. The entire confrontation between Monday and Francisco Green was captured on videotape, which is approximately three minutes in length. The videotape shows Monday raising and aiming his gun directly at Green after 2 minutes and 36 seconds of verbal provocations and escalating scuffles between Monday and Green. The videotape then shows that Monday, after a pause of 3
2. The First Degree Murder Conviction
¶41 This same videotape evidence supports Monday’s murder conviction, including the element of premeditation. Monday shot Green in the back, chest, and arm with 4 out of 11 shots fired from a .40 caliber firearm, as Green ran away, after at least 2 minutes and 39 seconds of confrontation and escalated fighting captured on videotape.
Exhibit 132 — Videotape Evidence
¶43 Monday’s convictions should be affirmed regardless of the test the majority employs to achieve its result. The videotape alone provides sufficient evidence for the jury to convict Monday of assault in the first degree and first degree murder and was shown in its entirety to the jury multiple times throughout the trial. As the court stated in its ruling, to give the jury the option to watch the videotape in the deliberation room, “[T]he jury has seen this thing stop and go multiple times in this case .... [I] t was stopped and started and dissected all the way through the trial .... I don’t see any harm [in giving the jury the option to watch the videotape in the deliberation room].” Verbatim Report of Proceedings (VRP) (May 30, 2007) at 20.
¶44 At the beginning of the videotape, Monday is seen lifting up his red shirt in a threatening and provocative manner. Ex. 132 (0:00-0:10). Monday is also heard verbally addressing an individual, likely the victim, while shouting “West Side G____” Id. Monday leaves the camera view about 10 seconds into the videotape, and before he reenters the
¶45 If this were not enough, the last portion of the videotape shows Monday shooting Green numerous times — a total of 11 shots. Id. (1:53-2:44). This easily satisfies the State’s burden of proof. Monday pulled a gun and started walking toward Green with the gun aimed in Green’s direction. Id. (2:36). This took several seconds before he started firing. Id. (2:36-2:39). Standing still, Monday fired 5 shots at Green, then 6 more as he walked slowly backward. Id. (2:39-2:43). After firing all 11 shots, Monday turned and ran away. Id. (2:44). Evidence established that Green was hit in his back, chest, and arm. The total length of the fight, as caught by the videotape, is approximately 2 minutes and 43 seconds, measured from the start of the videotape to the last of the 11 shots fired by Monday.
¶46 This evidence was sufficient to remove any reasonable doubt that Monday deliberately killed Green. The videotape shows no erratic behavior by Monday during the shooting. Monday appears calm and composed. Premeditation under RCW 9A.32.030(l)(a) does not require an exhaustive analysis of a defendant’s alternative course of
Alleged Prosecutorial Misconduct and Harmless Error
¶47 I agree that the prosecutor made several problematic expressions over the course of a month-long trial. I do not agree, however, that reversal of Monday’s convictions is the appropriate remedy. The convictions should be affirmed based on the jury’s proper application of the law to the evidence, not reversed in the name of deterrence. It is possible to deter any improper trial conduct without delaying or denying justice for Francisco Green and his family and disregarding their constitutional rights under article I, section 35.
¶48 Unfortunately, the majority misconstrues what the prosecutor said and does not consider the context of the statements, as our case law requires.
[T]he only thing that can explain . . . why witness after witness ... is called to this stand and flat out denies what cannot be denied on that video is the code. And the code is black folk don’t testify against black folk. You don’t snitch to police.
VBP (May 30, 2007) at 29. The prosecutor’s reference was made in the context of a month-long trial in which several witnesses recanted earlier statements made to police and expressed reluctance to testify. Indeed, the trial court noted,
¶49 Second, although the transcript has the prosecutor saying “police” for part of Ms. Sykes’ direct examination, the transcript has both him and Ms. Sykes saying “po-leese.” VRP (May 21,2007) at 146-209; VRP (May 22,2007) at 2-55. The transcript has the prosecutor saying “po-leese” after the prosecutor had difficulty interacting with Ms. Sykes throughout her direct examination, and the prosecutor said “we’ll use your term then” once before in an unfortunate effort to elicit Ms. Sykes’ testimony. See VRP (May 22,2007)
¶50 I would agree that the prosecutor’s intonation of the word “police” — transcribed as “po-leese” at certain places in the record — was inappropriate and unprofessional. VRP (May 21, 2007) at 146-209; VRP (May 22, 2007) at 2-55. But this does not mean the prosecutor employed racially derogatory language de facto by saying “po-leese” while questioning Adonijah Sykes, or more importantly, that the jury was unable to discount it. We surely cannot conclude that the prosecutor was employing racially derogatory language de facto based on the text of the transcript alone, and the references surely do not justify reversing this jury’s murder and assault convictions.
¶51 We should hold as the trial court did in its response to the prosecutor’s tone: “[L]et the jury decide .... I’m sure they have the ability to do that.” VRP (May 22, 2007) at 20. A reasonable jury found Monday guilty beyond a reasonable doubt of murder in the first degree and two counts of assault in the first degree. The trial court could not have overturned the jury’s verdict under our civil rules.
¶52 Third, and perhaps most vexing, the majority fails to honestly apply the holding of tried, tested, and controlling precedent. Appellate courts do not assess “ ‘[t]he prejudicial effect of a prosecutor’s improper comments ... by looking at the comments in isolation but by placing the remarks “in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions
¶53 In contrast, I would look to the context of the argument and the context of a month-long trial in which several witnesses recanted earlier statements made to police and were reluctant to testify. Most importantly, the prosecutor repeatedly referred to the overwhelming videotape evidence throughout his argument.
¶54 This court has employed a specific test for prosecutorial misconduct for at least 40 years: we examine the allegedly improper conduct in the full context of the trial. The conviction will be reversed only if (1) the conduct was improper and (2) there is a substantial likelihood that the misconduct affected the jury’s verdict. McKenzie, 157 Wn.2d at 52. The defendant carries this burden. State v.
¶55 The majority’s refusal to thoroughly engage in the second prong of our constitutional analysis is tacit acknowledgment that the defendant was not prejudiced. The corollary of this conclusion is that the jury’s verdict was sound.
Conclusion
¶56 The videotape of Monday repeatedly shooting Mr. Green was shown to the jury and proved beyond a reasonable doubt that Monday deliberately took Green’s life. There was abundant other evidence. Even if the prosecutor’s comments arguably tainted the jury’s impressions of some witnesses, this could not affect the jury’s perception of the videotape and other evidence.
¶57 This jury properly (and correctly) performed its duty and found Monday guilty beyond a reasonable doubt. The defendant received the fair trial that is constitutionally guaranteed. The majority fails to accord murder victim Francisco Green the dignity and respect he deserves under our constitution. Sadly, the victim’s family is sentenced to relive his murder at another trial. I respectfully dissent.
I am happy to allow the videotape to speak for itself: http://www.courts.wa.gov/ newsinfo/content/video/827362EvidenceVideo.htm. Cf. Scott v. Harris, 550 U.S. 372,379 n.5,127 S. Ct. 1769,167 L. Ed. 2d 686 (2007) (Scalia, J., majority opinion).
A person is guilty of assault in the first degree if he or she, with the intent to inflict great bodily harm, assaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death. ROW 9A.36.011.
To prove the element of premeditation, the State must show only that the defendant decided to cause the victim’s death after deliberating or reflecting for some period. State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006). As we recently affirmed in Gregory, premeditation is the “ ‘deliberate formation of and reflection upon the intent to take a human life [that] involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short! ” Id. (emphasis added) (alteration in original) (quoting State v. Hoffman, 116 Wn.2d 51, 82-83, 804 P.2d 577 (1991)); State v. Ollens, 107 Wn.2d 848, 850, 733 P.2d 984 (1987) (quoting State v. Brooks, 97 Wn.2d 873, 876, 651 P.2d 217 (1982)). There is no fixed or definite length of time between the formation of the intention to kill and the killing necessary to establish premeditation. State v. Duncan, 101 Wash. 542, 544, 172 P. 915 (1918). This time may be very brief, even “but a moment.” Id. at 545. The period of time at issue here was, therefore, easily sufficient for the jury to find that Monday deliberately shot and killed Green in light of all evidence and testimony presented in this case. For more cases supporting the jury’s finding of premeditation in this case, see State v. Ortiz, 119 Wn.2d 294, 311-12, 831 P.2d 1060 (1992) (finding premeditation where multiple wounds were inflicted by a knife and the victim was struck in the face after a prolonged struggle); Ollens, 107 Wn.2d at 853 (holding that multiple wounds alone were probative to the inference of premeditation where a weapon was used, the victim was struck from behind, and there was evidence of a motive); State v. Gentry, 125 Wn.2d 570, 599, 888 P.2d 1105 (1995) (citing Ollens and Ortiz and detailing other cases in which the evidence was sufficient to establish premeditation); State v. Rehak, 67 Wn. App. 157,164,834 P.2d 651 (1992)
A person is guilty of murder in the first degree when, “[w]ith a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person . . . .” RCW 9A.32.030(l)(a).
Exhibit 132 was pretrial exhibit 6. Clerk’s Papers (CP) at 278.
E.g., State v. McKenzie, 157 Wn.2d 44, 52, 134 P.3d 221 (2006); accord State v. Yates, 161 Wn.2d 714, 774, 168 P.3d 359 (2007) (we do not assess “ ‘[t]he prejudicial effect of a prosecutor’s improper comments ... by looking at the comments in isolation but by placing the remarks “in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.” ’ ” (emphasis added) (alterations in original) (quoting McKenzie, 157 Wn.2d at 52 (quoting State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997)))).
See, e.g., Andrea L. Dermis, Collateral Damage? Juvenile Snitches in America’s “Wars” on Drugs, Crime, and Gangs, 46 Am. Crim. L. Rev. 1145, 1147 (2009) (noting that even children who were only suspected of“snitching” have been killed by gang members); Kari Larsen, Deliberately Indifferent: Government Response to HIV in U.S. Prisons, 24 J. Contemp. Health L. & Pol’y 251, 257 (2008) (“An inmate “who snitches or rats... violates a strict prison code, subjecting them to severe and violent retribution by the entire inmate community.’ ” (alteration in original) (quoting Richard D. Vetstein, Note, Rape and AIDS in Prison, A Collision Course to a New Death Penalty, 30 Suffolk U.L. Rev. 863, 871 (1997))).
See, e.g., VRP (May 30, 2007) at 77-78 (“The State says that Antonio Kidd ... won’t identify [himself] because of the code. [Mr. Kidd was] [w]illingto put himself at personal risk, but, in terms of intervening in this fight, but [sic] there is this unwritten code that he is going to abide by.”); id. at 78 (“The State would have you believe that the only reason [Nakita Banks] did not identify Kevin Monday as the shooter was because of this code [and] decided that this code is more important than her oath to tell the truth.”); id. at 78-79 (“[A]gain, this code of silence is something that [DiVaughn Jones] considers more important than looking out for Francisco Green.”). Id. at 79.
“If, during a trial by jury, a party has been fully heard with respect to an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find or have found for that party with respect to that issue, the court may grant a motion for judgment as a matter of law against the party on any claim ...” CR 50(a)(1).
E.g., VRP (May 30, 2007) at 32 (“Recall, if you will, the video.”).
In Instruction 1, the court reminded the jury of its solemn duty to render an impartial verdict:
It is your duty to decide the facts in this case based upon the evidence presented to you during this trial.... You must apply the law from my instructions to the facts that you decided have been proved, and in this way decided the case ... you are the sole judges of the credibility of each witness .... As jurors, you are officers of this court. You must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. To ensure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a proper verdict.
CP at 171-73 (emphasis added).
In Instruction 2, the court reiterated, “[E]ach of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors.” CP at 174. This was done before the court instructed the jury as to the elements of each crime, the presumption of evidence, and so forth. CP at 175-221.