State v. Monschke

135 P.3d 966

133 Wn. App. 313

STATE of Washington, Respondent, v. Kurtis William MONSCHKE, Appellant.

No. 31847-4-II.

Court of Appeals of Washington, Division 2.

June 1, 2006.

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Kathleen Proctor, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent.

Rita Joan Griffith, Attorney at Law, Seattle, WA, for Appellant.

PART PUBLISHED OPINION

QUINN-BRINTNALL, C.J.

¶ 1 Kurtis Monschke appeals his conviction for aggravated first degree murder. The evidence presented at trial established that Monschke murdered a homeless man to advance his status as a white supremacist. Monschke raises numerous issues in this appeal, including challenges to the constitutionality of RCW 10.95.020(6), the sufficiency of the evidence, the court's refusal to bifurcate the trial, and the court's order requiring him to wear a stun belt at trial. We affirm.¹

FACTS

¶ 2 Early on the morning of March 23, 2003, Terry Hawkins and Cindy Pitman observed a group of "[s]kinheads" kicking and using baseball bats to hit what appeared to be the Tacoma railroad track. 22 Report of Proceedings (RP) at 1078. The individuals were hollering and appeared drunk. Hawkins and Pitman were homeless and lived in a camp under Interstate 705 near the train tracks and the Tacoma Dome. Hawkins told police that he saw three men and a woman kicking dirt and hitting at the ground; at trial, he testified that he saw two men swinging bats, a woman kicking, and a third man standing four feet away. Pitman told police and later testified that she saw three men with shaved heads swinging and kicking but did not see a woman.

¶ 3 Hawkins and Pitman watched for approximately 10 minutes before turning around and walking away. They headed up a trail but when the commotion stopped, they decided to go back toward the train tracks and their camp. On their way to the camp site, Hawkins and Pitman passed the people involved in the commotion: a man and woman snuggled together with two men following behind. The four headed up the trail and appeared "scared," like "[t]hey were trying to get away from there." 23 RP at 1218.

¶ 4 As Hawkins and Pitman approached the tracks where the commotion had been, they heard a strange gurgling sound. They discovered the badly beaten and bloody body of Randy Townsend, lying on his back with his head slumped over the train track. Hawkins and Pitman knew Townsend as a white acquaintance who camped nearby, but Townsend was so disfigured that neither Hawkins nor Pitman immediately recognized him. Hawkins and Pitman ran to get aid and call the police. As they returned to Townsend, Hawkins and Pitman saw the four individuals involved in Townsend's assault driving away in a "blue Datsan [sic] beater." 27 RP at 1769.

¶ 5 Townsend never regained consciousness and died after 20 days on life support. The medical examiner determined the cause of death as blunt force trauma to the head, with at least 19 points of impact. Townsend's facial bones were broken and his face had separated from his skull. One of the blows caused a large subdural hematoma on the back side of his skull. This wound was consistent with his head having been forcefully stomped on while he was lying face down on the train track.

¶ 6 During the investigation that followed, officers found hate-based graffiti near the murder scene. The graffiti included swastikas, lightning bolts in the shape of "SS," "White Power Skinheads," "U Suck Wiggers," "El Spic," "Skinhead white to the bone," "Die SHARPS," "Die Junky Die," "El Nigger," "Tacoma Skinhead Movement," "die niggers," "Heil Hitler," and "Fuck All Drug Addicts."² 21 RP at 940; 26 RP at 112, 116, 118-19, 121-22. Homeless people in the area told police that the graffiti began appearing a couple weeks before Townsend's murder.

¶ 7 Officers also talked to Mertis Mathes and Amy Gingrich, a homeless couple living in a camp two blocks from the murder scene. Mathes is black and Gingrich is white. Mathes and Gingrich told officers they woke early on the night of the murder when three loud men approached their camp. Gingrich recognized one of the men from a casual encounter a couple weeks earlier. The men had shaved heads, appeared drunk, and were carrying baseball bats. Mathes asked what the men wanted. One responded, "we plan on doing a nigger like you." 21 RP at 956. When Mathes grabbed his machete, the three men walked away.

¶ 8 Officers linked the crime scene graffiti to a reported incident of graffiti at an apartment building two blocks from the murder scene. Scotty Butters, Tristain Frye, and David Pillatos had been evicted from the Rich Haven Apartments for yelling racial slurs at passersby, painting swastikas and "Fuck all niggers" on the building, and for Butters's sale of imitation cocaine to a drug addict. 26 RP at 147. Butters, Frye, and Pillatos matched Hawkins and Pitman's descriptions of Townsend's assailants.

¶ 9 Frye and Pillatos lived with Monschke. Frye and Pillatos were in a relationship and Frye was three months' pregnant. A car matching the one Hawkins and Pitman described was parked outside Monschke's apartment. Officers went to the apartment to discuss an unrelated incident with Pillatos, and he invited them inside. In Monschke's apartment, officers saw Nazi and white supremacist paraphernalia. They also noticed cigarette packages and empty beer bottles of the same brand found at the crime scene. Pillatos freely told the officers that he and Monschke were white supremacists.

¶ 10 The State charged Monschke, Butters, Frye, and Pillatos with premeditated first degree murder under RCW 9A.32.030 and alleged that the murder was aggravated under RCW 10.95.020(6) because Townsend was murdered so that the defendants could obtain or maintain their membership or advance their position in the hierarchy of an organization or identifiable group, namely, "white supremacists." 1 Clerk's Papers (CP) at 84. Under a plea bargain, Butters and Pillatos pleaded guilty to first degree murder, and Frye pleaded guilty to second degree murder. Each agreed to testify at Monschke's trial.

¶ 11 Prior to the plea agreements, the defendants appeared at a pretrial hearing where they were separated for security purposes. Each wore leg shackles and a belly chain with arm restraints. At some point, Butters and Pillatos began spitting and cursing at each other. As they were being subdued, Monschke stood up and started yelling at Pillatos and calling him a "fucking spic." 5 CP at 431; see note 1, supra. Monschke then grabbed a chair and attempted to throw it at Pillatos. Monschke was subdued and taken from the courtroom spitting and resisting.

¶ 12 After the altercation and after the plea agreements, the trial court held a hearing on a State motion to have Monschke wear a stun belt. At the hearing, the court heard testimony from Sergeant Sabrina Braswell of the Pierce County Department of Corrections. Sergeant Braswell testified that Monschke had been wearing a stun belt on his waist to every court proceeding since the altercation. She also testified that without the belt, Monschke was highly disruptive in the jail. Monschke had possessed makeshift weapons on several occasions and he routinely antagonized other inmates by, among other things, throwing feces at them. Sergeant Braswell testified that without restraints, she would have to instruct her officers to essentially "sit[]on top" of Monschke to ensure courtroom safety. 14 RP at 594.

¶ 13 Based on this testimony and its own observations of Monschke's courtroom conduct, the court ordered that Monschke be required to wear a stun belt during trial. The court concluded that the stun belt was necessary because the trial would become intense and Monschke had shown a pattern of misbehavior when not controlled. The court left it to the jail staff to determine whether to use a waist or ankle belt. Sergeant Braswell had testified that inmates often preferred the waist belt over the ankle belt. The court stated that it had not noticed Monschke wearing the waist belt but instructed defense counsel to raise any visibility issues if they arose.

¶ 14 Monschke moved to bifurcate his trial into a first degree murder phase and an aggravating circumstance phase, arguing that bifurcation was necessary to keep the jury from considering his white supremacist beliefs when deliberating on the first degree murder elements. The court denied the motion, concluding that evidence of Monschke's white supremacist affiliations was admissible in the trial on the merits of the first degree murder charge to prove motive and intent.

¶ 15 Frye testified at trial that on the evening of March 22, 2003. Pillatos brought up the subject of taking Frye out to earn her "red [shoe]laces." 30 RP at 2330. According to Frye, red shoelaces symbolized that the wearer had assaulted a member of a minority group; Butters, Monschke, and Pillatos each wore red shoelaces. Pillatos encouraged Butters and Monschke to take Frye out; the three men had discussed the idea two or three times before. After the discussion, the four drove to a grocery store to buy beer. The three men also purchased two baseball bats. They did not discuss the reason for the bats, but, according to Frye, it was understood that "they weren't going to be used for baseball." 31 RP at 2485.

¶ 16 The four then drove to the Tacoma Dome. Butters expressed a desire to go to a different part of the city to "beat up some niggers," but Frye and Pillatos wanted to show Monschke graffiti they had recently painted nearby. 30 RP at 2333. As they walked underneath Interstate 705, Frye separated from the group. She sat down and Townsend approached her. Townsend asked for a cigarette and a beer and the two talked for awhile.

¶ 17 Townsend finished his cigarette and had begun to walk away when Butters and Pillatos confronted him. Butters said something to Townsend and then struck him in the head with the bat. The blow shattered...