¶1 Rеference to a “snitch code” in closing argument, when supported by the evidence and not accompanied by racial comments, is not prosecutorial misconduct. Nor does a prosecutor commit misconduct by arguing that the defendant tailored his account of events in response to other witnesses’ testimony where the argument is based on defendant’s testimony on direct examination. We reject Ivory Berube’s challenges to his convictions and affirm.
FACTS
¶2 On the night of July 11, 2008, Tanisha Barquet and Kyla Jackson went to Thompson’s Point of View, a Seattle nightclub located at 23rd and Union. Outside the nightclub, Ivory Berube’s brother Emory
¶3 As Barquet later testified, Emory threatened her, called her names, and then made several calls on his cell phone, telling her he was going to call Clips. Barquet decided to leave. Before she did so, she saw
¶4 Barquet and Jackson left Thompson’s and visited two other bars in the area. Eventually Barquet joined another friend, Alysha Johnson, and they drove to Waid’s, a Haitian restaurant near Jefferson Street and 12th Avenue. Waid’s was closing, and people were outside in the street, including the Berube brothers.
¶5 The Waid’s security video shows the brothers noticing Barquet’s arrival.
¶6 Barquet’s memory of what happened is hazy. She remembers “[a] lot of commotion, a lot of people yelling” as she crossed the street after getting out of Johnson’s car.
¶7 Joseph Burgess was driving on Jefferson Street and heard the gunfire. He parked and was attempting to call 911 when he saw someone “running with a purpose” past his car.
¶8 Police responding to the scene were advised the suspected shooter was a black male in his 20s wearing a white T-shirt, white baseball cap, and black jeans and possibly wearing glasses, running north on 13th Avenue. Officers stopped а car occupied by Charles Justice a few blocks southeast of the scene. Justice attempted to flee on foot but was subdued by a stun gun. Police later found two semiautomatic weapons in the car.
¶9 On July 14, 2008, Detective James Cooper showed Barquet a photomontage that included Justice’s photograph. Barquet stated she knew Justice and he was not the person who shot her. Shown two more photomontages, she identified Emory as the person who had confronted her outside Thompson’s and Berube as the person who shot her. Burgess alsо picked Berube from a photomontage as the person who ran past his car, though he could not identify him with certainty.
¶10 On July 17, 2008, police arrested Emory. The next day, Emory made several phone calls to Berube from the jail. Calls from the jail are recorded. Among other things, they talked about the possibility of Emory’s arrest being the result of an informant talking to police, about the officers telling Emory they had seen the Waid’s video and knew he was not the shooter, and about Berube being “in the wind.”
¶11 Berube took a bus to New Bedford, Massachusetts. He was arrested there at his mother’s house on July 28, 2008.
¶12 Detectives advised Berube of his Miranda
¶13 He was not at first forthcoming. But eventually Berube acknowledged he was at Thompson’s Point of View with his brother the night of the shooting. He said he did not “remember” talking to Barquet there.
¶14 Berube was charged with first degree assault while armed with a firearm and first degree unlawful possession of a firearm.
¶15 At trial, Barquet testified she had no doubt Berube was the person who shot her. Joseph Burgess testified that Berube looked like the man who had run past him. The detectives testified to Berube’s statements. The jurors saw the video and heard the taped conversations between Berube and his brother in the jail.
¶16 In the defense case, Berube’s mother, Deborah Berube, testified that Berube had told her he had had drinks with Barquet the night of the shooting: “She had some bottles of liquor in the back of her car, and they were drinking.”
¶17 Berube took the stand. He testified that on July 11, he and Emory were at Thompson’s Point of View, where he spoke cordially with Barquet and drank vodka with her in Kyla Jackson’s car.
¶18 The jury found Berube guilty as charged.
DISCUSSION
Standard of Review
¶19 Berube’s appeal centers upon allegations that the prosecutor committed misconduct in closing argument. Because Bеrube did not object to any of the alleged improprieties, he has waived any objection unless the misconduct was so flagrant and ill intentioned as to cause enduring prejudice that could not have been cured by instruction to the jury and had a substantial likelihood of affecting the verdict.
Injection of Racial Prejudice
¶20 The reluctance of witnesses to come forward was a major theme at trial. In her closing argument, the prosecutor asserted that witnesses were not willing to testify against Berube “because there is a code. And that code is: Don’t snitch. Don’t get the police involvеd. Don’t help the police.
¶21 Monday also involved a shooting and a coincidental video recording.
¶22 Our Supreme Court called this conduct “highly improper.”
¶23 The court therefore departed from the usual rule
¶24 This case is not like Monday. The prosecutor here made no mention of race and did not suggest that the antisnitch code was particular to anf community. Berube contends the jury would necessarily have
¶25 A prosecutor has “wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury.”
¶26 The prosecutor’s comments were based upon the evidence and had no racial content. There was no misconduct.
Generic Tailoring Argument
¶27 Under both the United States and the Washington State Constitutions, a defendant has the right to “appear and defend in person,” to testify on his own behalf, and to confront the witnesses against him.
¶28 Berube had told police he did not see Barquet or Jackson the night of the shooting. His mother testified, however, that Berube had described having drinks with Barquet that night. Berube testified consistent with his mother’s account. In closing argument, the prosecutor made the following comment challenging Berube’s credibility:
And what does he do then when he takes the stand about that conversation, he who has sаt here throughout the entire trial and listened to everything that everyone testifies about? He has to make his versionof his events conform with what he has heard his mother testify about. So he tells you that Kyla and Tanisha had a drink and that he stood there and sipped his vodka drink with them. If that had happened, Tanisha would have told you that that happened because that would only strengthen her identification of him as the shooter.[ 40 ]
¶29 At the time of Berube’s trial, the controlling case law permitted “generic” tailoring arguments — that is, arguments that defendant’s testimony was tailored, based only upon defendant’s presence at trial. In Portuondo v. Agard, the United States Supreme Court held that a testifying defendant should be treated as other witnesses are treated, observing that commentary upon a defendant’s opportunity to tailor his testimony is appropriate and “sometimes essential.”
¶30 After Berube’s trial however, our Supreme Court rejected the Portuondo rule and concluded that the Washington Constitution provides greater protections than does the Sixth Amendment. In State v. Martin, the court expressly adopted the standard articulated by Justice Ginsburg in her Portuondo dissent.
¶31 In Justice Ginsburg’s view, arguments “tied only to the defendant’s presence in the courtroom and not to his actual testimony” amount to an “irrebuttable observation that can be made about any testifying defendant” and do not help the jury “sort those who tailor their testimony from those who do not, much less the guilty from the innocent.”
¶32 Applying this rule to its facts, our Supreme Court held in Martin that state constitutional protections were not violated when, on cross-examination, the prosecutor suggested that the defendant had tailored his testimony.
¶33 From this, Berube posits that a tailoring argument is always prohibited if not preceded by cross-examination. He contends that because the tailoring issue was not raised during his cross-examination, it amounted to a “generic tailoring argument unmoored from admitted evidence” such that reversal is required under Martin.
¶34 We disagree. First, the Martin cоurt expressly declined to address generic tailoring arguments.
Shifting the Burden of Proof
¶35 “A criminаl defendant has no burden to present evidence, and it is error for the State to suggest otherwise.”
And why wouldn’t [Berube] provide you with the names of any of the people that he was with who could corroborate his version of these events, the people who could help him out and say that he did what he told you he did?
The code that’s out there does not override common sense. And when you’re accused of a crime, . . . you do not remain silent and take the hit for someone else. You talk in that situation. And when there are others who can help you out, you provide the names of those others. And you need to ask yourself: Is Ivory Berube so self-sacrificing and is he protecting others with this code or is it because there is no one who can corroborate his version of events?[52 ]
¶36 Berube contends these remarks impermissibly shifted the burden to him to produce missing witnesses. Berube relies upon State v. Montgomery.
¶37 But Montgomery involved a missing witness instruction given by the court. There, the prosecutor made numerous references to the absence from trial of the defendant’s grandson and landlord and questioned the defendant extensively as to where they were and why they did not testify to corroborate his explanation about materials commonly obtained to manufacture methamphetamine.
¶38 Berube’s reliance upon Montgomery is misplaced. The State did not suggest that any witness was particularly under Berube’s control and did not request a missing witness instruction, so the test for justifying the instruction is not pertinent. Rather, the argument was another challenge to Berube’s credibility. The State emphasized that despite conceding he knew some of those present at the shooting and that he could identify the shooter, Berube refused to do so, and predicted that witnesses would not testify at trial. The State was entitled to comment upon these facts. To the extent the prosecutor’s argument implied that Berube had a burden to produce witnesses, any error was easily curable by an instruction and was therefore waived by Berube’s failure to object.
Appeal to the Jury’s Passion and Prejudice
¶39 A prosecutor may not appeal to the passions of a jury so as to encourage a verdict based on emotion rather than evidence.
How sad is it that a mother and a son would go for 13 years without seeing each other? And how happy his mother must have been when he came to see her. And how disappointed must she have been when she learned that he came because he was running from the law?[59 ]
¶40 Berube relies upon cases that are easily distinguished. In State v. Belgarde, the prosecutor described the American Indian defendant a leader in “ ‘a deadly group of madmen’ ” and “ ‘butchеrs that kill indiscriminately.’ ”
¶41 Nothing of that sort occurred here. The prosecutor used no inflammatory language and introduced no hearsay or new evidence. Berube’s mother testified she loved her son, and it was not an unreasonable inference that she would be saddened and disappointed by the circumstances. And again, Berube did not object. The statements, even if improper, were not flagrant and ill intentioned, were easily curable by instruction, and do not warrant notice for the first time on appeal.
Mischaracterization of Burden of Proof
¶42 Berube next contends the prosecutor mischaracterized the burden of proof and the reasonable doubt standard:
This is like a puzzle that you need to put together when you go back into that room. And all the pieces of this puzzle fit together. And this is not a thousand-piece puzzle where everything is a shade of blue when you’re trying to make it all fit together. This is a kid’s puzzle, and the pieces in this puzzle are very big, and they all fit together.
[Defense counsel] said he wanted a fair trial in this process. Mr. Ivory Berube has received a fair trial. He has the right to confront the witnesses against him. He has the right to call witnesses on his behalf. The burden is all mine.
The word verdict means to speak the truth. And I ask that you search for the truth. When you go back into that jury room, you search for the truth, not a search for reasonable doubt. And I ask that you find him guilty.[62 ]
Berube argues the prosecutor impermissibly portrayed the reasonable doubt standard as a defense tool for hiding the truth and suggested that a jury’s scrutiny оf the evidence for reasonable doubt is inconsistent with a search for the truth.
¶43 We agree. A criminal trial may in some ways be a search for truth.
¶44 In State v. Emery, a similar argument was made:
“The literal translation of [the Latin term] ‘verdictum’ into the English language isto speak the truth. Your verdict should speak the truth.
“Members of the jury, I ask you, go back there to deliberate, consider the evidence, use your life experience and common sense, and speak the truth by holding these men accountable for what they did.”[64 ]
Our Supreme Court held the argument improper:
The jury’s job is not to determine the truth of what happened; a jury therefore does not “speak the truth” or “declare the truth.” Rather, a jury’s job is to determine whether the State has proved the charged offenses beyond a reasonable doubt.[65 ]
However, the court held the error had been wаived by failure to object because defendants could not show the improper remarks were “incurable or prejudicial.”
¶45 The same is true here. Berube did not object, and the impropriety was easily curable, especially in light of the court’s instructions. Any error was waived.
¶46 Finally, Berube argues that the prosecutor’s puzzle analogy trivialized the State’s burden. In State v. Johnson, the prosecutor likened the “abiding belief” portion of the reasonablе doubt standard to a partially completed puzzle, and that despite some missing pieces, it was possible to conclude beyond a reasonable doubt what the puzzle represented.
¶47 The court reversed, holding the “fill in the blank” argument improper:
[T]he prosecutor’s arguments discussing the reasonable doubt standard in the context of making an affirmative decision based on a partially completed puzzle trivialized the State’s burden, focused on the degree of certainty the jurors needed to act, and implied that the jury had a duty to convict without a reason not to do so.[70 ]
¶48 The puzzle analogy is an apt description of a trial, given that evidence is heard not in logical or chronological order but in order of witness knowledge. The problem arises when the analogy is used to trivialize the State’s burden under the reasonable doubt standard. Here, the prosecutor did not argue the jury must supply missing puzzle pieces in order to justify reasonable doubt, as was argued in Johnson. Rather, she said, “[T]he pieces in this рuzzle are very big, and they all fit together.”
Special Verdict Instruction
¶49 The court here instructed the jury that it must be unanimous to answer whether the State proved the facts necessary to support a sentencing enhancement.
¶50 Affirmed.
Review denied at
Notes
To avoid confusion, we refer to Emory Berube by his first name and Ivory Berube by his last.
Also referred to as “E Clips” or “Eclipse.” His real name is Diantre Jefferson. He had been shot in June 2008.
Report of Proceedings (RP) (Apr. 16, 2009 a.m. session) at 38.
The video is grainy and blurred. Our description is taken from the prosecutor’s unchallenged statements as the video was shown to the jury during closing argument. See RP (Apr. 23, 2009) at 16-18.
RP (Apr. 16, 2009 a.m. session) at 49.
RP (Apr. 16, 2009 p.m. session) at 36.
Id. at 38.
Ex. 33, at 6.
Id.
Miranda v. Arizona,
RP (Apr. 20, 2009) at 49.
Id. at 52.
Id.
Id at 55.
RP (Apr. 21, 2009) at 39-40.
The court reporter’s notes of the testimony of Ivory Berube and Officer James Dyment were lost and therefore were not transcribed. The court and the parties agreed on a means of reconstructing the record, and the court approved a narrative report of proceedings. See Clerk’s Papers at 100-09. Berube noted additions and objections, some of which the court adopted. See Clerk’s Papers аt 111-16. Berube does not contend the record is insufficient for review. This summary is taken from the court’s narrative report.
State v. Emery,
RP (Apr. 23, 2009) at 7.
State v. Monday,
The video included the actual shooting. Id. at 669.
Id. at 671.
Id. at 674.
Id. at 679.
Id. at 678-79.
Id. at 678.
Id. at 680.
“Generally the prosecutor’s improper comments are prejudicial ‘only where there is a substantial likelihood the misconduct affected the jury’s verdict.’ ” Id. at 675 (emphasis and internal quotation marks omitted) (quoting State v. Yates,
Id at 680.
Id at 669.
The constitutional harmless error test has otherwise been applied to a claim of prosecutorial misconduct only in cases of reference to defendant’s pre- or postarrest silence. Emery,
The State argued the “flagrant and ill-intentioned, enduring prejudice, substantial likelihood” test should apply. Monday,
As indicated earlier, most of those present did not testify and the video is grainy and blurry.
Monday,
Id.
State v. Stenson,
RP (Apr. 20, 2009) at 55.
Id. at 71.
In closing argument, defense counsel asserted that “the jurors don’t know the society with which this incident hаppened. They don’t know the people. They don’t know their customs. They are not familiar with people that will not talk to the police, refuse to talk to the police, and don’t like to talk to the police. That is what’s going on with this case.” RP (Apr. 23, 2009) at 28. He described a difficulty of the defense as “the people that don’t want to name names. That is part of the society for [witnesses to the shooting]. It is the way they work.” Id. at 28-29.
The Sixth Amendment to the United States Constitution provides in pertinent part, “In all criminal prosecutions, the accused shall enjoy the right... to be сonfronted with the witnesses against him.” The confrontation clause includes the right to be present at trial. Illinois v. Allen,
RP (Apr. 23, 2009) at 24.
Portuondo,
Id. at 78 (Ginsburg, J., dissenting).
Id. (Ginsburg, J., dissenting).
Martin,
Id.
Appellant’s Br. at 28.
Martin,
State v. Montgomery,
RP (Apr. 23, 2009) at 44.
Id. at 596-97.
Id.
Id. at 599.
State v. Belgarde,
State v. Miles,
RP (Apr. 23, 2009) at 23.
Belgarde,
RP (Apr. 23, 2009) at 48.
See, e.g., United States v. Mezzanatto,
Id. at 760 (citation and internal quotation marks omitted).
Id. at 765.
Id. at 763-64 (discussing State v. Warren,
Id.
Id. at 685. A similar argument without such language has been held proper. State v. Curtiss,
RP (Apr. 23, 2009) at 48.
Instruction 18 provided in pertinent part, “If you find the defendant guilty of this crime, you will then use the special verdict form and fill in the blank with the answer ‘yes’ or ‘no’ according to the decision you reach. Because this is a criminal case, all twelve of you must agree in order to answer the special verdict form. In order to answer the special verdict form ‘yes,’ you must unanimously be satisfied beyond a reasonable doubt that ‘yes’ is the correct answer. If you unanimously have a reasonable doubt as to this question, you must answer ‘no.’ ” Clerk’s Papers at 50.
Guzman Nuñez,