State v. Berube, 286 P.3d 402

Background

On July 11, 2008, Tanisha Barquet was shot outside a Seattle nightclub; Ivory Berube is alleged shooter and Emory Berube is his brother involved in threatening Barquet.
Barquet identified Emory confronting her; Berube’s gang or associates were present; surveillance video from Waid’s shows Berube signaling or handling a weapon.
Barquet was wounded severely; Burgess observed movement near the shooter; police later recovered two semiautomatic weapons in a car linked to the Berubes.
Barquet initially could not identify the shooter but later identified Emory (confronting) and Berube (shooter) in photomontages; Burgess could not identify Berube with certainty.
Berube was tried on first-degree assault with a firearm and unlawful possession of a firearm; defense presented testimony from Berube’s mother and Berube himself denying involvement or flight.
The jury found Berube guilty; various prosecutorial closing arguments challenged on grounds of alleged misconduct and burden-shifting, later appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did closing argument referencing a street antisnitch code constitute misconduct?	Berube argues antisnitch code invoked racial prejudice.	Berube contends the code was race-based and prejudicial.	No misconduct; argument based on evidence, not race.
May a prosecutor argue that a defendant tailored his testimony to other witnesses based on direct testimony?	Berube contends tailoring claim requires cross-examination; closing argument improper.	Berube argues tailoring inference is improper or unmoored from evidence.	Not misconduct; tailored- testimony argument permissible when grounded in defendant’s own testimony.
Did the prosecutor improperly shift the burden of proof by urging the defendant to provide corroborating witnesses?	Berube asserts prosecution implied defendant bore burden to produce witnesses.	Berube argues missing-witness suggestions shift burden.	Waived; any error curable by instruction; no reversible error.
Did prosecutor’s appeals to passion/prejudice (mother’s aftermath) prejudice the trial?	Berube claims inflammatory touching of familial relations biased jurors.	Berube asserts improper appeal to emotions without basis.	Not flagrant or incurable; waived due to lack of objection.
Was the ‘puzzle’/reasonable doubt rhetoric improper in misdescribing jury's duties?	Berube contends phrases trivialize burden of proof.	Berube argues the rhetoric misstates duties and distracts from proof standard.	Not improper; not like Johnson; not reversible given instructions and lack of objection.

Key Cases Cited

State v. Emery, 174 Wn.2d 741 (2012) (harmless error framework for prosecutorial misconduct; pre/postarrest silence considerations)
State v. Monday, 171 Wn.2d 667 (2011) (constitutional harmless error test for racial-bias arguments)
Portuondo v. Agard, 529 U.S. 61 (1999) (certainty about tailoring arguments; closing argument limits)
State v. Martin, 171 Wn.2d 521 (2011) (Washington Constitution provides greater protections; tailoring context)
State v. Montgomery, 163 Wn.2d 577 (2008) (missing-witness/defendant-control analysis; instruction impact)
State v. Belgarde, 110 Wn.2d 504 (1988) (limits on inflammatory/narrative prejudicial arguments)
State v. Miles, 73 Wn.2d 67 (1968) (illustrative rules about prosecutorial argument; prejudice considerations)
State v. Johnson, 158 Wn. App. 677 (2010) (prohibition on trivializing reasonable doubt through puzzle analogies)
State v. Bashaw, 158 Wn. App. 677 (2010) (instructional error framework; subsequent overrule in Bashaw context)
State v. Warren, 165 Wn.2d 17 (2008) (truth-seeking vs. burden of proof; cure-ability of improper remarks)