State v. Allen

• Decision Date: 09 May 2011
• Docket Number: No. 64466–1–I.,64466–1–I.
• Citation: 161 Wash.App. 727,255 P.3d 784
• Parties: STATE of Washington, Respondent,v.Bryan Edward ALLEN, Appellant.
• Court: Washington Court of Appeals

161 Wash.App. 727

255 P.3d 784

STATE of Washington, Respondent,

v.Bryan Edward ALLEN, Appellant.

No. 64466–1–I.

Court of Appeals of Washington, Division 1.

May 9, 2011.

Lila Jane Silverstein, Marla Leslie Zink, Susan F. Wilk, Maureen Marie Cyr, Washington Appellate Project, Seattle, WA, for Appellant.Ann Marie Summers, King County Prosecutor's Office, Seattle, WA, for Respondent.APPELWICK, J.

[161 Wash.App. 731] ¶ 1 Allen appeals his conviction for felony harassment, contending that he did not receive a fair trial because the trial court refused to give his proposed jury instruction on cross-racial eyewitness identification. Allen also argues that the prosecutor improperly vouched for the credibility of the complaining witness. Finally, Allen contends that his information and “to convict” instruction were deficient for not containing “true threat” as an element of felony harassment. Finding no error, we affirm.

FACTS

¶ 2 Gerald Kovacs was walking on University Way near NE 47th Street in the University District at dusk when two men approached him and asked him if he wanted to buy marijuana. He told them to fuck off. They began screaming and cursing and then followed him. He asked them why they were following him, and one of the men said, “I'm going to kill you, you B[itch],” and lifted his shirt to display what Kovacs thought was a handgun. Kovacs ran to the nearest gas station and called the police.

¶ 3 Kovacs described the person as wearing a black “hoodie” sweatshirt, a hat, and gold-rimmed sunglasses. He also reported that the person was similar to Kovacs in height and a bit heavier than Kovacs in weight. Police arrested Bryan Allen based on Kovacs's description. Kovacs was transported to the scene of Allen's detention and positively identified him as the man who had threatened him. The police searched Allen incident to his arrest. The police found no gun, marijuana, or cash on his person.

¶ 4 The State charged Allen with felony harassment. Allen did not exactly match Kovacs's physical description, in that he was four or five inches taller than Kovacs had estimated. At the time of trial Allen weighed 60 pounds more than Kovacs had estimated. The jury found Allen guilty as charged. Allen appeals.

DISCUSSION

I. Cross–Racial Eyewitness Identification Instruction

¶ 5 Allen first contends the trial court erred when it refused his proposed instructions regarding cross-racial eyewitness identification evidence. Allen and Kovacs are of different races.

[161 Wash.App. 733] ¶ 6 Allen submitted two alternative proposed instructions. The first read:

“In this case, the identifying witness is of a different race than the defendant. In the experience of many, it is more difficult to identify members of a different race than member's [sic] of one's own [race]. Psychological studies support this impression. In addition, laboratory studies reveal that even people with no prejudice against other races and substantial contact with persons of other races still experience difficulty in accurately identifying members of a different race. Quite often people do not recognize this difficulty in themselves. You should consider these facts in evaluating the witness's testimony, but you must also consider whether there are other factors present in this case.”

The second proposed instruction read:

“In this case, the defendant, Bryan [Allen], is of a different race than Gerald Kovacs, the witness who has identified him. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness'[s] original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race. You may also consider whether there are other factors present in this case which overcome any such difficulty of identification.” ¹

The trial court refused both instructions.

¶ 7 In this case, there was no expert testimony on the reliability of cross-racial eyewitness identification evidence. The only testimony given on the subject was by the arresting officer, Anthony Bennett. On cross-examination, he agreed that he was “aware of studies suggesting that cross[-]racial identifications can be more difficult for people.” He also agreed that “sometimes people of different races will have a more difficult time identifying somebody of a different race.” He also testified that he did not see any indication of difficulties in Kovacs's identification. The defense followed up in closing argument regarding the reliability of such evidence.

¶ 8 Allen argues that he was denied his due process right to a fair trial and the right to a defense by the trial court's denial of his proposed instruction relating to cross-racial eyewitness testimony. Due process requires that jury instructions allow the parties to argue all theories of their respective cases supported by sufficient evidence, fully instruct the jury on the defense theory, inform the jury of the applicable law, and give the jury discretion to decide questions of fact. State v. Koch, 157 Wash.App. 20, 33, 237 P.3d 287 (2010), review denied, 170 Wash.2d 1022, 245 P.3d 773 (2011). Alleged errors of law in jury instructions are reviewed de novo. State v. Barnes, 153 Wash.2d 378, 382, 103 P.3d 1219 (2005).

¶ 9 Allen argues that modern research suggests that eyewitness testimony should be approached with great caution. Mistaken eyewitness identification is a leading cause of wrongful conviction. See State v. Riofta, 166 Wash.2d 358, 371, 209 P.3d 467 (2009) (“ ‘The vast majority of [studied] exonerees (79%) were convicted based on eyewitness testimony; we now know that all of these eyewitnesses were incorrect.’ ” (alteration in original) (quoting Brandon L. Garrett, Judging Innocence, 108 Colum. L.Rev. 55, 60 (2008))); see also Eyewitness Identification Reform, Innocence Project, http:// www. innocence project. org/ Content/ Eyewitness_ Identification_ Reform. php (last visited Jan. 25, 2011). Eyewitness identification evidence is among the least reliable forms of evidence and yet is persuasive to juries. See Riofta, 166 Wash.2d at 377 & n. 5, 209 P.3d 467 (Chambers, J., concurring in dissent) (quoting Bernal v. People, 44 P.3d 184, 190 (Colo.2002) (citing Gary L. Wells et al., Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads, 22 Law & Hum. Behav.. 603, 605 (1998) and other legal and psychological studies of the identification problem)). Recognition accuracy is poorer when the perpetrator is holding a weapon. Bernal, 44 P.3d at 190 (quoting Vaughn Tooley et al., Facial Recognition: Weapon Effect and Attentional Focus, 17 J. Applied Soc. Psychol. 845, 854 (1987)).

¶ 10 Studies have shown that a cross-racial identification, or an identification when an eyewitness of one race is asked to identify a particular individual of another race, is an especially problematic identification. See State v. Cheatam, 150 Wash.2d 626, 646, 81 P.3d 830 (2003) (citing Thomas Dillickrath, Expert Testimony on Eyewitness Identification: Admissibility and Alternatives, 55 U. Miami L.Rev. 1059, 1063–65 (2001)); State v. Cromedy, 158 N.J. 112, 120–21 727 A.2d 457 (1999); John P. Rutledge, They All Look Alike: The Inaccuracy of Cross–Racial Identifications, 28 Am. J.Crim. L. 207, 211–12 (2001); Sheri Lynn Johnson, Cross–Racial Identification Errors in Criminal Cases, 69 Cornell L.Rev. 934, 942 (1984); Criminal Justice Section, Report to House of Delegates, Am. Bar Ass'n 4 (Aug. 2008), http:// www. abanet. org/ crimjust/ policy/ eyewitness. pdf (hereinafter “Criminal Justice Section Report”).

¶ 11 Recognition of difficulties associated with the identification of strangers is not new. State v. Romero, 191 N.J. 59, 73, 922 A.2d 693 (2007). Eighty-four years ago, Justice Frankfurter called “[t]he identification of strangers ... proverbially untrustworthy.” Felix Frankfurter, The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen 30 (1927). Justice Brennan observed in 1967 that “ ‘[t]he influence of improper suggestion upon identifying witnesses probably accounts for more miscarriages of justice than any other single factor-perhaps it is responsible for more such errors than all other factors combined.’ ” United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (alteration in original) (quoting Patrick M. Wall, Eye–Witness Identification in Criminal Cases 26 (1965)). “Indeed, academics have long questioned the reliability of eyewitness identifications.” Romero, 191 N.J. at 73–74, 922 A.2d 693 (citing Hugo Munsterberg, On the Witness Stand: Essays on Psychology and Crime 49–56 (1923) (“discussing early twentieth century experiments that revealed people's inability to recall details of witnessed crimes”); Edwin Borchard, Convicting the Innocent: Errors of Criminal Justice xiii-xiv (1932) (“early case study of sixty-five exonerated defendants finding that ‘the major source’ of wrongful conviction was witness misidentification”)).

¶ 12 Some jurisdictions have permitted the use of some form of instruction addressing the validity of eyewitness identification evidence. See United States v. Telfaire, 469 F.2d 552, 558–59 (D.C.Cir.1972); State v. Long, 721 P.2d 483, 494–95 (Utah 1986); Cromedy, 158 N.J. at 131, 727 A.2d 457; Commonwealth v. Hyatt, 419 Mass. 815, 818–19, 647 N.E.2d 1168 (1995); United States v. Cannon, 26 M.J. 674, 675 (A.F.Ct.M.R.1988); People v. Palmer, 154 Cal.App.3d 79, 89, 203 Cal.Rptr. 474 (1984); State v. Hunt, 275 Kan. 811, 817–18, 69 P.3d 571 (2003); see also Judicial Council of Cal., Criminal Jury Instructions 315 (2011) (permitting witnesses to consider whether the witness and defendant are of different races); Ninth Circuit Jury Instructions Comm.,...