OLYMPIA – As ordained minister Virgil Montgomery describes it, the trip that landed him before the state’s highest court began with a few errands.
On a shopping trip to Spokane, the 60-year-old Newport man and a 63-year-old friend bought some matches for his woodstove. And some cough medicine. And some acetone to remove old floor tiles in his old trailer. And a bottle of hydrogen peroxide to treat a dog’s cuts.
By the end of that day in 2004, their borrowed Geo Storm contained a new pair of reading glasses from the Dollar Store and five of the nine ingredients to manufacture methamphetamine. And police had been trailing them since that first cold-medicine purchase at a Spokane Valley Target store.
Montgomery and his friend were arrested, tried and convicted of intent to make meth. But on Thursday, Montgomery got a pleasant surprise from the state Supreme Court. In a unanimous ruling, the justices threw out his conviction and ordered a new trial.
The court didn’t say Montgomery was innocent. On the contrary, Justice Tom Chambers wrote that his “conviction was supported by substantial evidence.” But he said prosecution witnesses were wrongly allowed to opine that Montgomery was guilty, among other problems.
In trials, witnesses are generally barred from speculating about defendants’ guilt or innocence. That’s why lawyers often instead ask a witness if evidence “is consistent with” a particular crime.
But in Montgomery’s case, the court ruled, two detectives and a forensic chemist were improperly allowed to make statements such as, “I felt very strongly that they were, in fact, buying ingredients to manufacture methamphetamine …”
More importantly, the court ruled, too much was made of the fact that Montgomery didn’t put his grandson or landlord on the stand to verify that the dog had cuts or that the trailer tiles needed removing. It’s a point the prosecutor raised seven times in closing arguments.
“If my son were on trial and I knew something, if I could corroborate something for him, do you think you could keep me away from a courtroom?” the prosecutor asked the jury.
The judge also told the jury they could “infer that the testimony … would have been unfavorable” to Montgomery.
Wrong, said the justices.
“A criminal defendant has no burden to present evidence, and it is error for the State to suggest otherwise,” Chambers wrote. Prosecutors can point out that an obvious witness is absent. But the 14-year-old grandson was in school, and nothing suggested that the landlord knew about trailer floor tiles.
Although the ruling was unanimous, two justices differed with parts. Justice Jim Johnson said that noting the missing witnesses was fair game, particularly in the case of the grandson.
“Although attending school is undoubtedly important, when your grandfather could be imprisoned for up to 10 years for a crime he did not commit,” he wrote, it seems reasonable to miss a day to testify.
Justice Barbara Madsen also objected to Chambers’ opinion, which she wrote seems sympathetic to Montgomery and his friend, Joyce Darlene Biby, who remains in prison near Gig Harbor. Chambers, for example, describes the two as “hardly the modern-day equivalent of Bonnie and Clyde.”
Madsen wrote: “It is no more the court’s province to offer an opinion on guilt than it is the province of witnesses to do so.”