Appeal from Superior Court of King County. Docket No: 94-1-06059-3. Date filed: 04/03/95. Judge signing: Hon. Anthony P. Wartnik.
Authored by Susan R. Agid. Concurring: Walter E. Webster, William W. Baker.
The opinion of the court was delivered by: Agid
AGID, J. -- Michael J. Christopherson appeals his conviction for second degree murder. He argues that he was deprived of effective assistance of counsel when his attorney failed to request a limiting instruction that would have informed the jury that the prior inconsistent statement of a defense witness admitted for impeachment purposes could be considered only for purposes of determining the witness's credibility and not as substantive evidence. He also contends that it was prosecutorial misconduct for the State to argue in closing that the jury could treat that prior inconsistent statement as substantive evidence. We agree that the cumulative effect of those errors deprived him of a fair opportunity to present his self-defense argument and reverse.
On September 1, 1994, Michael J. Christopherson shot and killed Spyridon Avlonitis after an altercation outside a neighbor's garage in which his father, Warren Christopherson, had also joined. Michael was charged by amended information with first degree murder and, in the alternative, second degree murder. Warren testified at trial that his son shot Avlonitis as he was coming toward them across their lawn while he, Warren, was standing on their porch. The prosecutor impeached Warren with the account he had given police on the day of the shooting:
Now, when you were talking with the detective about what was happening at the time of the shooting, do you recall telling Detective Hatch on more than one occasion that the victim was actually backing up when Mike came out of the door?
The witness responded that he did not recall saying that, but explained that he was extremely upset on the day he made the statement. Although he had no recollection of having told the investigating officer that Avlonitis was backing up or just standing there at the time he was shot, Warren admitted it was possible he had said that to the officer.
Even though Warren did not deny making the statement to police, the prosecutor asked Detective Hatch on direct examination whether Warren had told him at any time that "the victim came at him or came at his son." The defense objected on hearsay grounds, arguing that it could not be admitted as a prior inconsistent statement because Warren did not deny that he had given the officers a different account on the day of the shooting. The court sustained the objection. Prior to calling a second police witness, the prosecutor again raised the issue, arguing that she should be permitted to question the officer regarding that statement because Warren had not really admitted making the statement. The court denied the request and instructed the prosecutor not to question the officer about the content of Warren's prior statement. The court did permit her to ask the officer whether he had discussed the shooting with Warren on that day.
During closing argument, the defense argued that Michael had acted in self-defense. In rebuttal, the State argued as follows:
: Now, after the shooting Warren talked to the police. He gave a taped statement. You will have that transcript of his testimony. And what was acknowledged from that transcript is evidence.
He was asked at least three different times: Where was the victim when he was shot?
: Your Honor, at this time I am going to object to that exhibit. I would like to have a side-bar on it.
: It's a recapping of the testimony. . . .
THE COURT: Objection is overruled. Counsel can use the demonstra-tive or the handwritten information for demonstrative purposes only. It will not go ...