State Of Washington v. Roberto Conrad Otero
74122-5
Wash. Ct. App. UApr 17, 2017Background
- 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)