State v. Allen

• Citation: 294 P.3d 679
• Decision Date: 08 February 2013
• Docket Number: No. 86119–6.,86119–6.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Bryan Edward ALLEN, Petitioner.

294 P.3d 679

STATE of Washington, Respondent,

v.Bryan Edward ALLEN, Petitioner.

No. 86119–6.

Supreme Court of Washington,

En Banc.

Argued March 1, 2012.

Decided Jan. 24, 2013.

As Amended Feb. 8, 2013.

Susan F. Wilk, Washington Appellate Project, Seattle, WA, for Petitioner.

Ann Marie Summers, Deborah A. Dwyer, Dennis John McCurdy, King County Prosecutor's Office, Seattle, WA, for Respondent.

Sarah A. Dunne, Nancy Lynn Talner, ACLU of Washington Foundation, Charles Christian Sipos, Perkins Coie LLP, Seattle, WA, amicus counsel for ACLU.

Todd Maybrown, Allen Hansen & Maybrown PS, Seattle, WA, amicus counsel for College and University Professors, Jennifer Devenport, Jennifer Dysart Geoffrey Loftus, Steven Penrod, Nancy Steblay, Gary Wells.

Theodore J. Angelis, Marie E. Quasius, Ryan James Groshong, K & L Gates LLP, Robert S. Chang, Seattle University School of Law, David A. Perez, Perkins Coie LLP, Seattle, WA, amicus counsel for Fred T. Korematsu Center for Law and Equality.

Colette Tvedt, Schroeter Goldmark Bender, Seattle, WA, Gregory G. Little, Rebecca M. Bodony, White & Case LLP, New York, NY, amicus counsel for the Innocence Network.

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, amicus counsel for Washington Association of Criminal Lawyers.

Seth Aaron Fine, Snohomish County Prosecutor's Office, Everett, WA, Pamela Beth Loginsky, Washington Assoc. of Prosecuting Atty., Olympia, WA, amicus counsel for Washington Association of Prosecuting Attorneys.

Travis Stearns, Washington Defender Association, Seattle, WA, amicus counsel for Washington Defender Association.

C. JOHNSON, J.

¶ 1 Petitioner Bryan Allen challenges his felony harassment conviction, raising three issues. The primary issue involves whether the trial court erred by not instructing the jury on the potential fallibility of cross-racial eyewitness identification. Based on the facts of this case, Allen cannot show the trial court violated his constitutional rights by refusing to give the cautionary instruction. A second issue involves whether the “true threat” requirement is an essential element of a harassment statute that must be pleaded in the information and included in the “to-convict” instruction. A third issue involves prosecutorial misconduct. The Court of Appeals rejected the arguments raised. We affirm the Court of Appeals.

Facts

¶ 2 Gerald Kovacs, who is white, was walking near the University of Washington at dusk when he was approached by two young African American men who offered to sell Kovacs marijuana. Irritated, he told them to “F[uck] off.” Verbatim Report of Proceedings (VRP) (Oct. 21, 2009) at 8. The men screamed and cursed Kovacs, and then followed him. One of the men told Kovacs, “I'm going to kill you, you B[itch],” and lifted up his shirt to display what Kovacs believed to be a gun. VRP (Oct. 21, 2009) at 11. Kovacs ran to the nearest gas station and called the police.

¶ 3 During the 911 call, Kovacs described the man with the gun as an African American in his mid–20s, wearing a black hooded sweatshirt, a hat, and big, gold-framed sunglasses. Kovacs also described the man as being around 5'9? and between 210–220 pounds. He described the other man as an African American in his teens, around 5'5?, wearing a “red kind of shirt,” though he could not remember the color exactly. VRP (Oct. 22, 2009) at 4. Several minutes later, based on Kovacs' description, a University of Washington patrol officer attempted to stop two African American men near the scene of the crime. One of the men, wearing a white T-shirt, fled. The other, Bryan Allen, did not. Seattle City Police detained Allen and Kovacs was transported to the location of the arrest for a show-up identification procedure. Though Allen matched Kovacs' description of the man with the gun as to race, clothing, hat, and sunglasses, physically he was larger at 6'1? and 280 pounds. Kovacs identified Allen as the man who threatened him. The police searched Allen incident to arrest but found no gun, marijuana, or cash.

¶ 4 The State charged Allen with felony harassment. Prior to trial, Allen requested the court to instruct the jury regarding cross-racial identifications.¹ The court refused Allen's request. No expert testimony on the reliability of cross-racial eyewitness testimony was given at trial. The only testimony given on the subject was by Officer Bennett, the officer in charge of directing the show-up identification, who, on cross-examination, agreed that he was “aware of studies suggesting that cross [-]racial identifications can be more difficult for people.” VRP (Oct. 21, 2009) at 57. He also agreed that “sometimes people of different races will have a more difficult time identifying somebody of a different race,” though he did not see any indication of difficulties in Kovacs' identification. VRP (Oct. 21, 2009) at 57. Allen's defense counsel, in closing argument, challenged the reliability of such evidence.

¶ 5 Later, in rebuttal closing argument, the prosecutor made several comments regarding Kovacs' character:

So, what's most important here is whether or not you accept Mr. Kovacs. I would point out to you from the evidence Mr. Kovacs is not a flake. He's not some derelict. The evidence would show he is a teacher, very passionate about his work. Not only is he a teacher he is a special ed[ucation] teacher.

VRP (Oct. 21, 2009) at 105–06. Allen objected to this argument on the basis that the State was vouching for Kovacs' credibility, but the court overruled the objection. The jury found Allen guilty.

¶ 6 On appeal, Allen argued the trial court's failure to instruct the jury on the fallibility of cross-racial identifications violated his right to present a defense and to due process. Allen also argued for the first time that the true threat requirement of felony harassment is an element that must be pleaded in the information and included in the to-convict instruction, the omission of which in this case resulted in prejudicial error. Finally, he argued prosecutorial misconduct in closing argument denied him a fair trial. The Court of Appeals affirmed the trial court.

Issues

1. Whether the trial court erred in failing to instruct the jury on the fallibility of cross-racial eyewitness identifications.

2. Whether the “true threat” requirement of an antiharassment statute is an essential element of the offense that must be pleaded in the information and included in the “to-convict” instruction.

3. Whether the prosecutor's comments on Kovacs character were impermissible and denied Allen a fair trial.

Analysis

1. Cross–Racial Identification Instruction

¶ 7 Concerns and discussions over the reliability of eyewitness identifications, and more specifically cross-racial eyewitness identifications, have arisen in cases for some time. The United States Supreme Court focused on eyewitness identification problems in United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), noting that the “vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.” The United States District Court for the District of Columbia, in United States v. Telfaire, 152 U.S.App. D.C. 146, 469 F.2d 552 (1972), cited to Wade and discussed the importance of, and need for, a special instruction on the issue of identification in order to safeguard the presumption of innocence. The court in Telfaire crafted a special identification instruction for use in future cases, to specifically instruct the jury to assess the value of eyewitness testimony based on several considerations.² This model instruction did not specifically address cross-racial eyewitness identification; however, in his concurring opinion, Chief Judge Bazelon urged that juries be charged specifically on the pitfalls of cross-racial identification and also proposed sample instruction language. Telfaire, 469 F.2d at 559–61 (Bazelon, C.J., concurring).

¶ 8 After Telfaire, jurisdictions have developed three general approaches to address the problems perceived to be inherent in eyewitness identification testimony. Some have accepted the rationale underlying Telfaire and have required or encouraged a particularized instruction to be given. See People v. Wright, 45 Cal.3d 1126, 755 P.2d 1049, 248 Cal.Rptr. 600 (1988) (approving a condensed Telfaire-type instruction and requiring that such an instruction be given when requested in a case in which identification is a central issue and there is little corroborative evidence); State v. Warren, 230 Kan. 385, 635 P.2d 1236 (1981) (holding that where eyewitness identification is a critical part of the prosecution's case and there is serious doubt about the reliability of the identification, a cautionary instruction should be given); State v. Henderson, 208 N.J. 208, 27 A.3d 872 (2011) (requiring that an instruction on cross-racial identification be given whenever cross-racial identification is an issue at trial).³

¶ 9 In other jurisdictions, the decision has been left up to the discretion of the trial court. See United States v. Sambrano, 505 F.2d 284, 287 (9th Cir.1974) (applying an abuse of discretion standard to the alleged error of failing to give an eyewitness identification instruction and holding the trial court had not abused its discretion where general instructions given by the court adequately directed the jury's attention to the identification issue); Wallace v. State, 306 Ga.App. 118, 701 S.E.2d 554 (2010) (holding the trial court did not abuse its discretion in refusing the defendant's requested jury instruction on the reliability of cross-racial eyewitness identification where, by general instructions, the jury was informed that it was required to determine whether the eyewitness identification was sufficiently reliable to help satisfy the State's burden of proof and other corroborating evidence existed).

¶ 10 The final approach adopted by some jurisdictions has been to reject outright a requirement...