The State of Washington v. Virgil R. Montgomery

Summary

The Washington Supreme Court affirmed the sufficiency of the evidence supporting Virgil Montgomery's conviction for possession of pseudoephedrine with intent to manufacture methamphetamine, but reversed the conviction because the trial court gave an improper missing witness jury instruction as to Montgomery's grandson and landlord, and the prosecutor repeatedly argued the absence of those witnesses in closing. The court also held that the State's witnesses (two detectives and a forensic chemist) gave improper opinion testimony on Montgomery's intent, but that error was not manifest because Montgomery failed to object and the jury was properly instructed. The court announced procedural guidelines for laying foundations for opinion testimony and offered a model colloquy. Justice Madsen concurred, criticizing the majority's fact presentation and its unnecessary reach to the opinion testimony issue; Justice J.M. Johnson concurred, agreeing with the reversal but concluding the instruction as to the grandson was not error.