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State v. Martenia Survell Turner-Bey

The Court of Appeals of Washington, Division Three
Nov 2, 2004
124 Wn. App. 1002 (Wash. Ct. App. 2004)

Opinion

No. 22264-1-III

Filed: November 2, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Grant County. Docket No: 02-1-00804-9. Judgment or order under review. Date filed: 07/01/2003. Judge signing: Hon. Evan E Sperline.

Counsel for Appellant(s), Martenia Survell Turner-Bey (Appearing Pro Se), 1014 Lowry, Moses Lake, WA 98837.

Paul J. II Wasson, Attorney at Law, 2521 W Longfellow Ave, Spokane, WA 99205-1548.

Counsel for Respondent(s), Teresa Jeanne Chen, Grant County Prosecutors Office, PO Box 37, Ephrata, WA 98823-0037.

Edward Asa Owens, Grant County Prosecutor's Office, PO Box 37, Ephrata, WA 98823-0037.


Martenia Survell Turner-Bey was convicted of fourth degree assault and unlawful imprisonment. Claiming the prosecutor committed misconduct so prejudicial as to require a new trial, he appeals. We agree and reverse.

On June 29, 2002, Deputy Steve Martinez was dispatched to investigate a disturbance at the New Bride Baptist Church in Moses Lake. Church member Johnny Barnes told the deputy he had changed the lock on a food locker in the church. The locker was used to store food for Project Blessing, a food bank project funded by the National Association for the Advancement of Colored People (NAACP). Mr. Barnes said Mr. Turner-Bey, a church member and president of the local NAACP chapter, became angry after learning the lock had been changed. Mr. Barnes was in his car, preparing to go to Wal-Mart to make copies of the key for the new lock, when Mr. Turner-Bey approached and choked him, took his car keys, and commanded him to remove the lock from the food locker. Mr. Turner-Bey pushed and shoved him back into the church and watched as he removed the lock. Mr. Barnes told the deputy that he allowed him to leave the church only after removing the lock.

Ruth Brooks, Mr. Barnes' 14 year-old stepdaughter, testified she heard Mr. Turner-Bey and her stepfather discussing the Project Blessing food locker. Mr. Turner-Bey appeared to be mad and told Mr. Barnes that if he did not take the lock off of the food locker, they `were going to have problems' and `were going to fight.' Report of Proceedings (RP) at 86. Ms. Brooks was near the driver's side door of Mr. Barnes' car when she saw Mr. Turner-Bey open the car door and try to take the keys out of the ignition. He then started to choke Mr. Barnes. Ms. Brooks testified she heard Mr. Barnes say, `[L]et me go; what are you doing man; let me go; let me go.' RP at 89. Mr. Barnes told Mr. Turner-Bey that he would take the lock off the food locker. He began to walk towards the church, while Mr. Turner-Bey pushed him. Ms. Brooks then went into the church, hid under a kitchen table, and called 911. After Mr. Barnes took off the lock, Ms. Brooks said he tried to walk away, but Mr. Turner-Bey pushed him again.

Mr. Turner-Bey denied involvement in the crimes. He said he panicked after discovering the new lock on the food locker and went outside to tell Mr. Barnes not to leave until the police arrived. Mr. Turner-Bey believed Mr. Barnes had committed a crime. He never touched Mr. Barnes, but he did attempt to grab his car keys to prevent him from leaving. According to Mr. Turner-Bey, Mr. Barnes was free to leave and could have left the church property had he wanted to do so. After Mr. Turner-Bey told him the police had been called, Mr. Barnes agreed to take the lock off the food locker, rushed into the church to take it off, and left.

Mr. Turner-Bey was charged with fourth-degree assault and unlawful imprisonment. The jury found him guilty as charged. This appeal follows.

He contends the prosecutor committed prejudicial misconduct in closing argument by expressing his personal opinion as to the credibility of witnesses. The prosecutor made these statements: `I don't believe Mr. Turner-Bey when he said he thinks a crime was going on and he's holding him for the police.' RP at 278. `But I believe Ruth Brooks when she says that she saw Johnny Barnes being choked, grabbed around his neck area, and pushed back into the church.' RP at 284. In rebuttal, the prosecutor stated:

I think Ruth Brooks was the only person who was really being the adult there. We train our children when there's trouble to do what? Call 9-1-1. Call help. Call for the police. That's exactly what she did. Why did she do that? Because, number one, I say she was afraid.

RP at 297.

What would the key witness that was three feet away from all this information, what was her motivation to lie? She just came to the church in a van with Mr. Turner-Bey. They're friends. She has no animosity towards him. She doesn't hate him. She's just telling the truth.

RP at 299-300.

The prosecutor concluded by saying: That's how I ask, when I look at this case myself, saying okay who is telling the truth. As a prosecutor I don't find cases and prove how they're guilty, I like to look at both sides of the situation. I look at the situation and who is telling the truth.

RP at 299.

Although it is improper to vouch for a witness's credibility, attorneys may argue credibility and draw inferences about it from the evidence. State v. Brett, 126 Wn.2d 136, 175, 892 P.2d 29 (1995), cert. denied, 516 U.S. 1121 (1996). A prosecutor arguing credibility only commits misconduct when it is `clear and unmistakable' that he is expressing a personal opinion rather than arguing an inference from the evidence. State v. Papadopoulos, 34 Wn. App. 397, 400, 662 P.2d 59, review denied, 100 Wn.2d 1003 (1983). Absent an objection, a defendant cannot claim prosecutorial misconduct on appeal unless the misconduct was so flagrant and ill intentioned that a curative instruction could not have neutralized any prejudice. State v. Hoffman, 116 Wn.2d 51, 93, 804 P.2d 577 (1991).

Mr. Turner-Bey did not object at trial to the statements that he now challenges on appeal. He must therefore establish that the prosecutor's statements were so flagrant and ill intentioned that any prejudice could not have been cured by a jury instruction. The prosecutor's statements here clearly and unmistakably told the jury he personally did not believe the testimony of Mr. Turner-Bey. He also stated that Ms. Brooks was telling the truth. The prosecutor's argument did not make inferences from the facts in evidence, but rather expressed his personal opinion vouching for the credibility of certain witnesses. To underscore his ability to determine who was telling the truth, he told the jury he looked at both sides of the situation in this case and asked himself who was telling the truth. By making improper argument personally vouching for the credibility of Ms. Brooks, he committed misconduct. In these circumstances, the prosecutor's argument was so prejudicial as to demonstrate a substantial likelihood it affected the verdict and deprived Mr. Turner-Bey of a fair trial. State v. Sargent, 40 Wn. App. 340, 343-46, 698 P.2d 598 (1985), rev'd on other grounds, 111 Wn.2d 641 (1988).

Because this issue is dispositive, we need not address the others raised in this appeal. The convictions are reversed; the case is remanded for new trial.

A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

SCHULTHEIS, J. and BROWN, J., Concur.


Summaries of

State v. Martenia Survell Turner-Bey

The Court of Appeals of Washington, Division Three
Nov 2, 2004
124 Wn. App. 1002 (Wash. Ct. App. 2004)
Case details for

State v. Martenia Survell Turner-Bey

Case Details

Full title:STATE OF WASHINGTON, Respondent, v. MARTENIA SURVELL TURNER-BEY, Appellant

Court:The Court of Appeals of Washington, Division Three

Date published: Nov 2, 2004

Citations

124 Wn. App. 1002 (Wash. Ct. App. 2004)
124 Wash. App. 1002