State Of Washington v. Roberto Conrad Otero, 74122-5

Background

On Feb 28, 2015, a woman discovered missing debit/credit cards and disturbed belongings in her apartment; a backpack strap was jammed in the door. Police were called.
Building security footage showed a man exiting the elevator on the victim’s floor around midnight and returning to the lobby ~20 minutes later. Store surveillance captured the victim’s cards used in three unauthorized purchases.
Police matched the surveillance images to Roberto Otero and charged him with one count of residential burglary and three counts of identity theft. At trial Otero testified and denied entering the apartment.
During cross-examination, the prosecutor asked questions the court sometimes sustained as beyond the scope of direct; when the court sustained one objection, the prosecutor asked, “Is the witness’s credibility not at issue?”
The jury convicted Otero of the three identity theft counts (no verdict on burglary). Otero appealed, arguing prosecutorial misconduct based on the prosecutor’s credibility comment.
The trial court had previously found Otero indigent for appeal; the State sought appellate costs, which the Court of Appeals denied absent a finding his financial circumstances had improved.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor committed misconduct by commenting on witness credibility during cross-exam	State: prosecutor’s question challenged the court’s ruling and sought to test credibility; not a personal opinion	Otero: asking “Is the witness’s credibility not at issue?” improperly expressed a personal opinion and was misconduct	Court: remark was an argument about testing credibility, not a flagrant personal opinion; not incurably prejudicial, no reviewable misconduct
Whether unobjected-to prosecutorial remark is preserved for appeal	State: remark was not improper and thus no plain-error review needed	Otero: failed to object at trial but argues the remark was incurable and warrants review	Court: because Otero did not object, claim waived unless remark was so flagrant that instruction couldn’t cure; here it was not
Scope of cross-examination — whether prosecutor exceeded scope of direct	State: cross-examination may probe credibility and is an appropriate use	Otero: prosecutor exceeded scope of direct with certain questions	Court: cross-examination tests credibility but is limited to scope of direct; trial court appropriately policed scope, and prosecutor’s comment merely challenged that policing
Whether appellate costs should be imposed	State: requests costs; record doesn’t show improvement in Otero’s finances	Otero: was found indigent at sentencing and lacks realistic ability to pay	Court: under RAP 14.2, absent a finding of improved finances, deny State’s request for appellate costs

Key Cases Cited

State v. Lindsay, 180 Wn.2d 423 (2014) (prosecutor may not express personal opinion on witness credibility)
State v. Emery, 174 Wn.2d 741 (2012) (failure to object waives prosecutorial-misconduct claim unless remark is incurable by instruction)
State v. Horton, 116 Wn. App. 909 (2003) (improper for prosecutor to state belief that defendant lied)
State v. Lord, 117 Wn.2d 829 (1991) (cross-examination properly used to test witness credibility)
State v. Hobbs, 13 Wn. App. 866 (1975) (cross-examination limited to scope of direct)