294 P.3d 679
Wash.2013Background
- Kovacs (white) described a gunman as African American in a dusk encounter near UW; Allen (Black) was stopped and matched race and clothing but differed in height/weight; Kovacs identified Allen at a showup; no gun found; Allen convicted of felony harassment.
- Allen requested a cross-racial identification instruction; trial court refused; no expert testimony on cross-racial ID reliability; officer acknowledged studies on cross-racial ID but testified Kovacs’ ID had no facial reliance.
- Rebuttal closing attacked Kovacs’ credibility; defense challenged cross-racial ID reliability; jury was instructed on reasonable doubt and credibility, but no cross-racial instruction given.
- The Court of Appeals affirmed; leading issue is whether failure to instruct on cross-racial ID violates due process or defense rights; other issues include whether true-threat is an essential element and whether prosecutorial misconduct occurred.
- The Supreme Court affirms the Court of Appeals: no abuse of discretion in not giving cross-racial instruction; true-threat requirement is not an essential element and was addressed by instructions; no prosecutorial misconduct found.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cross-racial identification instruction needed | Allen argues due process requires cross-racial cautionary instruction | Kovacs’ ID relied on race-neutral factors; no facial features | No reversible error; no general rule required cross-racial instruction |
| Essential element: true threat in harassment | True threat element must be pleaded and included | True threat is definitional, not essential element | Not error; true threat instruction sufficed and not an essential element |
| Prosecutorial misconduct in closing | Prosecutor vouched for Kovacs’ credibility | Arguments based on trial evidence; not clear personal opinion | Not misconduct; arguments within permissible inference |
Key Cases Cited
- State v. Laureano, 101 Wn.2d 745 (Wash. 1984) (rejected categorical Telfaire instruction; eyewitness ID cautionary approach varies by case)
- State v. Johnston, 156 Wn.2d 355 (Wash. 2006) (true threat concept; limits bomb-threat statute to true threats; informs jury instruction standard)
- Schaler v. State, 169 Wn.2d 274 (Wash. 2010) (true threat mens rea; jury instructed with subjective intent; cautions on threat scope and mens rea)
- Perry v. New Hampshire, 565 U.S. 228 (U.S. 2012) (due process safeguards for eyewitness identifications; not require specific instructions)