255 P.3d 784
Wash. Ct. App.2011Background
- Allen was convicted of felony harassment in King County; on appeal he challenges the cross-racial eyewitness instruction, prosecutorial vouching, and the absence of true-threat language in the information and to-convict instructions.
- Kovacs described the would-be assailant as wearing a black hoodie, a hat, and gold-rimmed sunglasses; he estimated the suspect’s height and weight, and later identified Allen at the scene.
- Police detained Allen based on Kovacs’s description, transported him to the scene, and Kovacs positively identified him as the threatener; no weapon, marijuana, or cash were found on Allen.
- The trial court refused Allen’s two proposed cross-racial eyewitness identification instructions, which argued race affected identification reliability.
- During closing, the prosecutor made remarks about Kovacs’s credibility and background; defense objections to prosecutorial vouching were overruled.
- The court held that cross-racial identification instructions were not required, and that the information and to-convict instructions, as given, adequately protected First Amendment rights regarding true threats.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cross-racial identification instruction | Allen: due process requires cross-racial instruction. | Allen: trial court erred by refusing instruction. | No error; due process not violated. |
| Prosecutorial vouching | Allen: prosecutor improperly vouched for Kovacs’s credibility. | Allen: comments exceeded proper inference; prejudicial. | No misconduct; arguments were permissible in context. |
| True threat element | Allen: true threat required as element; information and to-convict lacked it. | State: true threat is not an essential element; definitional instruction suffices. | True threat not required as element; deferral to definitional instruction preserves rights. |
Key Cases Cited
- State v. Laureano, 101 Wash.2d 745 (1984) (cross-racial instruction approved or considered under due process)
- State v. Atkins, 156 Wash.App. 799 (2010) (true threat and instruction analysis in harassment cases)
- State v. Schaler, 169 Wash.2d 274 (2010) (defines true threats and mens rea in harassment prosecutions)
- State v. Tellez, 141 Wash.App. 479 (2007) (true threat definition linked to First Amendment considerations)
- State v. Carothers, 84 Wash.2d 256 (1974) (cautionary instruction for accomplice testimony proper; not a comment on evidence)