STATE v. GREEN (2003)

OPINION PUBLISHED IN PART

Greg Green appeals his conviction for attempted murder in the first degree.   He contends that the trial court abused its discretion in admitting an immunity agreement between the State and the victim, the court erred by refusing to give a cautionary instruction regarding accomplice testimony and by giving an erroneous instruction on accomplice liability, and the prosecutor engaged in misconduct.   We conclude that although the State should not have been permitted to introduce the immunity agreement in direct examination, the error was harmless.   A  cautionary accomplice instruction was not necessary because the testimony was substantially corroborated, the erroneous jury instruction on accomplice liability was harmless error and there was no prosecutorial misconduct.   We affirm.

FACTS

On October 25, 1997, Rio Cole, a marijuana dealer, was shot and robbed.   Cole testified that Greg Green and James Elliott robbed him and Green shot him.

For several years, Cole had supplied marijuana to his friends Will King and Andre Brown.   During the summer prior to the shooting, Cole also supplied marijuana to their friends:  Donte Perry, Wassell Grissom and Elliott.¹  Cole saw Green, Perry's cousin, at least once during that summer when he sold some marijuana to Brown.   Both Brown and Cole testified that on that occasion, Green looked at Cole in a menacing manner.

On October 23, 1997, two days before Cole was shot and robbed, Perry called Cole, on behalf of Grissom and Elliott, and asked if he would sell them a pound of marijuana.   Cole agreed to sell a pound for $4,000 and brought the marijuana to Perry's, Grissom's, and Elliott's apartment.   Perry, Grissom, and Elliott were present during the transaction with Cole.²

Cole testified that two days later, on October 25, 1997, Perry called to negotiate another sale, this time for two pounds of marijuana.   Cole agreed to sell Perry two pounds for $8,000.   Perry and Elliott agreed to split the purchase.   Perry told Cole he would send two people over to Cole's apartment with the money.   Elliott testified that Perry said  his cousin, Green, would bring his half of the money and go with Elliott to Cole's apartment.

That afternoon, Elliott and Green drove in a van to buy the marijuana.³  Elliott called Cole from a payphone near the apartment complex to get further directions.   Cole walked up the street and met Elliott and Green.   He got in the van and directed Elliott, who was driving, to his apartment.

They arrived at Cole's apartment in Tukwila a few minutes later.   Cole's girlfriend, Erika Sampson, and their two young children were also there.   Cole's two-year old son was sleeping on the floor in the living room.   Green and Elliott sat on the couch and Cole went to get the marijuana.   When Cole returned, he placed a duffel bag containing two pounds of marijuana by Elliott's feet and sat down.   The three watched a football game while Elliott examined the marijuana.   Green then asked to use the restroom and Cole directed him to the bathroom down the hall.   When Green returned, he was holding a gun with a laser site pointed at Cole. Cole said “I didn't know it was like this․” ⁴ Cole looked at Elliott, who appeared shocked, and told him to take the marijuana.

Green ordered Cole to get down on the floor.   Cole got on his knees and Green told him to lie flat.   Green then directed Elliott to take the marijuana and leave.   Elliott grabbed the duffel bag, but had difficulty opening the front door.   He dropped the duffle bag, eventually opened the door, and left.   Cole looked up at Green.   As Green backed out of the apartment, he shot Cole. The first shot hit Cole in the mouth and face and the second hit him in the arm.   Green picked up the duffel bag of marijuana and joined Elliott in the van.

Erika Sampson testified that she saw two African-American men arrive at the apartment in a van with Cole. She  was in the kitchen when she heard Cole exclaim they “didn't have to do this.” ⁵  Sampson moved towards the living room and saw Cole lying on the floor and one of the men pointing a gun at him.⁶  Frightened, she backed into the kitchen.   She then heard the shooter fire two shots and leave.   Sampson immediately called 911.   Police and medics arrived shortly thereafter.   Cole was bleeding profusely from his mouth, neck, and arm.   He had lost teeth and had difficulty speaking. When asked, he told the police that “two men” shot him.   An ambulance took Cole to Harborview Medical Center for treatment.

Elliott testified that after leaving Cole's apartment, he drove to a house where he knew some people and got a ride from them back to the apartment he shared with Perry and Grissom.   When he arrived at the apartment, several people were there, including Green and Grissom.

Grissom testified that he was taking a nap when he heard people talking loudly.   As he came out of his room, Elliott said that he and Green had “hit a lick,” meaning that they had robbed someone.⁷  Green displayed a 9 millimeter (mm) handgun with a laser site and put it on the counter.   Green said he shot Cole, but did not know if he was dead.   He then put ziplock bags of marijuana on the counter.

By the following day, Green, Elliott, Grissom and Perry had all fled the state.

In a statement to the police after the shooting, Sampson said she thought the person who shot Cole was driving the van.   She could not positively identify either Green or Elliott from photo montages.   She could not identify who shot Cole when she testified at trial.

During their search of Cole's apartment, the police found a half-pound of marijuana and approximately $8,000 in a safe.   In the living room, they recovered two shell casings and bullet fragments from a 9 mm gun.

 Two days after the shooting, Tukwila police detective William Bales interviewed Cole at Harborview.   Cole told him that Elliott and Green were the two men who came to purchase marijuana and Green was the one who shot him.⁸  In January 1998, Cole selected and identified both Green and Elliott from photo montages.

In February 1998, the State entered into a written agreement with Cole. The State agreed not to prosecute or file charges for the drugs found in his apartment if he agreed to testify at trial.

In March 1998, the State charged Green with first degree assault.   In March or April 1999, Green was arrested in California.   Green admitted that he knew Cole, but said he did not know Cole had been shot.   Green asked if Elliott was in custody and if Elliott had said he shot Cole.

After Green's arrest the State filed an amended information and charged Green and Elliott with first degree attempted murder.   Elliott eventually turned himself in and pleaded guilty to second degree robbery.   As a part of the plea agreement, Elliott agreed to testify in the trial against Green, cooperate with the police in their investigation of the case, give a statement and be interviewed about the case.

At trial, the State charged Green with first degree attempted murder and, in the alternative, first degree assault.   The sole issue at trial was the identity of who shot Cole. The State relied on the testimony of Cole, Grissom and Elliott to identify Green as the shooter.⁹  Green argued that Cole's identification of him as the shooter was unreliable and was based on his mistaken belief that the person who shot him was the same person who purchased marijuana two days before the shooting.   Green also claimed that Will King, who visited Cole at Harborview shortly after the incident, suggested that Cole name him as the shooter.   Green argued that Grissom, who is physically similar to  Green, was the shooter and that Elliott, Brown, King and their other friends liked Grissom but did not like Green.¹⁰  Finally, Green introduced lyrics written by Grissom to a rap song found in the van that described a similar robbery using a gun with a laser to support his theory that Grissom shot Cole.¹¹

After a month-long trial, the jury found Green guilty of attempted murder in the first degree, while armed with a firearm.¹²

Use of the Immunity Agreement

Cole entered into two separate agreements with the State to testify at Green's trial.   First, in a written agreement dated February 1998 Cole agreed to appear at Green's trial and testify truthfully and to abandon any claim to the money seized at his apartment.   The State agreed not to prosecute him or file drug charges based on the marijuana found in his apartment.¹³

In a subsequent plea agreement related to two pending drug charges against Cole, the State dismissed a 1999 possession charge and amended a 1998 charge to a lesser charge of possession of marijuana in exchange for Cole's agreement to testify at Green's trial.   The State also agreed to recommend a sentence of sixty days confinement and 12 months of community supervision for the 1998 drug offense.¹⁴

 Pretrial, the parties addressed the scope of examination about Cole's agreements with the State.   While Green intended to ask Cole about the February 1998 immunity agreement and the favorable treatment he received with respect to the two later drug charges, he objected to the introduction of the February 1998 letter agreement as an exhibit.¹⁵  Green's objection was two-fold.   First, he claimed “the language suggests it was written for the purpose of being admitted as an exhibit in court” and secondly, that the agreement was “self-serving to the State ․”.¹⁶  Green particularly objected to the part of the agreement that stated:  “The intent of this agreement is to secure the true and accurate testimony of your client concerning his knowledge of the events surrounding the shooting and robbery of Rio Cole.” ¹⁷ Green argued this language impermissibly vouched for Cole's credibility and improperly bolstered his testimony.   Although Green objected to the admission of the agreement as an exhibit, he did not request that it be redacted.

Because Green was going to question Cole about the immunity agreement, the State insisted it was entitled to introduce the letter agreement as an exhibit during its direct examination before Cole was impeached.   The State said it did not intend to focus on the “testify truthfully” language or argue that Cole was credible because he testified consistently with the agreement.   The trial court ruled that the February 1998 agreement was admissible as an exhibit in the State's case, particularly given the way the State intended to use it.

 Green assigns error to the court's admission of the immunity agreement and argues it contains irrelevant and prejudicial provisions and language vouching for Cole's  credibility.   Decisions regarding the admissibility of evidence are reviewed for abuse of discretion.  State v. Grant, 83 Wash.App. 98, 105, 920 P.2d 609 (1991).

 In State v. Jessup, 31 Wash.App. 304, 641 P.2d 1185 (1982), this court addressed the use of immunity agreements and looked to federal precedent to determine whether the trial court erred in admitting an immunity agreement that contained prejudicial language.   The challenged agreement in Jessup stated that some state witnesses were in protective custody.  Jessup, 31 Wash.App. at 315, 641 P.2d 1185. The trial court denied the defendant's motion to redact the prejudicial portion of the agreement and allowed the State to admit the agreement in its entirety in its case in chief.   Although this court reversed the defendant's conviction on another ground, we addressed the admission of the immunity agreement.   We concluded that the agreement should not have been admitted in the State's case in chief before the witness's credibility was attacked.   Evidence of agreements between the State and a testifying witness are admissible on cross examination to show bias.   Jessup, 31 Wash.App. at 316, 641 P.2d 1185.   If a witness is impeached, the State may introduce the agreement as an exhibit to rebut a charge of bias as “ ‘evidence of explanation’ ”. Jessup, 31 Wash.App. at 316, 641 P.2d 1185 (quoting United States v. Roberts, 618 F.2d 530, 535 (9th Cir.1980)).   In Jessup, we said that if the agreement was introduced on redirect, the irrelevant and prejudicial portion regarding protective custody should be redacted.  Jessup, 31 Wash.App. at 316, 641 P.2d 1185.

 As in Jessup, the trial court erred in allowing the State to introduce the immunity agreement as an exhibit in its case before Cole's credibility was attacked.

The State argues that the admission of the immunity agreement on direct is permissible under State v. Bourgeois, 133 Wash.2d 389, 402, 945 P.2d 1120 (1997).   In Bourgeois, the State was allowed to ask questions of a witness in order to “pull the sting” out of an anticipated attack in cross examination.  Bourgeois, 133 Wash.2d at 402, 945 P.2d 1120.

 While the rationale of Bourgeois permits the State to ask questions, it does not support the admission of the immunity agreement absent an attack on Cole's credibility.   Consistent with Bourgeois, the State could ask Cole about the agreement, but was not entitled to introduce the immunity agreement as an exhibit until Cole's credibility was attacked.   During cross-examination, Green used Cole's agreement with the State to impeach him.   The State would have been allowed to introduce the agreement in redirect.   This approach is consistent with Jessup and federal precedent and allows the State to inquire in its direct examination about the existence of an agreement and the witness's reasons for cooperating to avoid an appearance that it is attempting to conceal information from the jury.   See United States v. Borello, 766 F.2d 46, 57 (2d Cir.1985).

 Evidence is not admissible merely because it is contained in an agreement;  references to irrelevant or prejudicial matters should be redacted.  Jessup, 31 Wash.App. at 316, 641 P.2d 1185;  See also Roberts, 618 F.2d at 536 (“A strong case can be made for excluding a plea agreement promise of truthfulness.   The witness, who would otherwise seem untrustworthy, may appear to have been compelled by the prosecutor's threats and promises to come forward and be truthful.”)   While the immunity agreement was admissible after Cole's credibility was attacked, we agree that the language that the intent of the agreement was to “secure the true and accurate testimony” and the provision that Cole “testify truthfully” should have been redacted if such a request had been made.   These provisions were prejudicial and improperly vouched for Cole's veracity.¹⁸

 Although the immunity agreement exhibit was not admissible on direct, an error in the admission of evidence is “not prejudicial unless, within reasonable probabilities,  the outcome of the trial would have been materially affected had the error not occurred.”  Bourgeois, 133 Wash.2d at 403, 945 P.2d 1120.¹⁹

 Because the agreement would have been admitted anyway, it is not within reasonable probabilities that the outcome of Green's trial was materially affected by introduction of the agreement on direct instead of during redirect.   And unlike Roberts, the case relied on by Green, there was no improper argument by the State regarding the immunity agreement with Cole. In Roberts, an immunity agreement with the State's key witness was admitted into evidence and in closing argument, the prosecutor made “devastating” use of it.  Roberts, 618 F.2d at 532.   The State argued in Roberts that the critical issue was who was telling the truth and told the jury that its witness “would not lie for fear of violating his plea agreement.”  Roberts, 618 F.2d at 532.   Here, the State did not rely on or argue about Cole's credibility based on the immunity agreement.   Cole's memory and his ability to identify Green, rather than his credibility, were the central issues regarding his testimony.   And Cole was not the State's only witness who testified that Green shot Cole. Both Elliott's and Grissom's testimony directly implicated Green as the shooter.   There is not a reasonable probability that the outcome of the trial was materially affected by the error in allowing the State to admit the immunity agreement on direct.

The remainder of this opinion lacks precedential value and will not be printed in the Washington Appellate Reports, but will be filed in accordance with RCW 2.06.040.

Cautionary Accomplice Instruction

Green requested the court give Washington Pattern Jury Instruction (WPIC) 6.05, a cautionary instruction, to the jury regarding Elliott's testimony because Elliott was an accomplice to the robbery.20  WPIC 6.05 provides:

The testimony of an accomplice, given on behalf of the plaintiff, should be subjected to careful examination in the light of other evidence in the case, and should be acted upon with great caution.   You should not find the defendant guilty upon such testimony alone unless, after carefully considering the testimony, you are satisfied beyond a reasonable doubt of its truth.

The Committee's note following WPIC 6.05 states that it should be given “in every case in which the State relies upon the testimony of an accomplice.   Do not use this instruction if an accomplice or codefendant testifies for the defendant.”   WPIC 6.05 (Note on Use).   The commentary to WPIC 6.05 says that the instruction is required only if the State relies “solely upon the uncorroborated testimony of an accomplice”.   WPIC 6.05 (Comment).

The State opposed Green's request to give WPIC 6.05.   The State argued that the instruction should not be given because Elliott's testimony was corroborated by the testimony of Cole and Grissom.   Although Green admitted there was testimony to corroborate Elliott, he argued that if the jury did not believe that evidence, then it could base its decision solely on Elliott's testimony.21  The trial court decided that because there was evidence corroborating Elliott's testimony, the instruction should not be given.

On appeal, Green argues that Elliott's testimony was not sufficiently corroborated and the trial court erred in not giving the cautionary instruction.

We review a trial court's refusal to give proposed jury instructions, if based on a factual dispute, for an abuse of discretion.  State v. Walker, 136 Wash.2d 767, 771-72, 966 P.2d 883 (1998).

The Washington Supreme Court has explained when a cautionary accomplice instruction is appropriate:

(1) it is always the better practice for a trial court to give the cautionary instruction whenever accomplice testimony is introduced;  (2) failure to give this instruction is always reversible error when the prosecution relies solely on accomplice testimony;  and (3) whether failure to give this instruction constitutes reversible error when the accomplice testimony is corroborated by independent evidence depends upon the extent of corroboration.   If the accomplice testimony was substantially corroborated by testimonial, documentary or circumstantial evidence, the trial court did not commit reversible error by failing to give the instruction.

State v. Harris, 102 Wash.2d 148, 155, 685 P.2d 584 (1984), overruled on other grounds, State v. Brown, 111 Wash.2d 124, 157, 761 P.2d 588 (1988).

Green relies on State v. Calhoun, 13 Wash.App. 644, 648, 536 P.2d 668 (1975).   In Calhoun, the defendant was charged with three counts of armed robbery.   With respect to the third count, the accomplices' testimony was corroborated only by the testimony of the defendant and a witness who both said Calhoun had stored a gun for a period of time at the house they shared.   Because the corroborating evidence provided “no connection between the defendant and the crime charged” the failure to give a cautionary instruction was error.  Calhoun, 13 Wash.App. at 648, 536 P.2d 668.

Unlike Calhoun, the State's corroborating evidence connected Green to the crime charged.   Cole described what happened in detail and consistently identified Green as the shooter.   He positively identified Green in a photo montage following the shooting and identified him at trial.   Grissom testified that after the shooting, Elliott said that he and Green had committed a robbery, Green had a 9 mm gun and admitted that he shot Cole. Grissom also testified that Elliott and Green placed ziplock bags of marijuana on the kitchen counter.

Green argues that the evidence did not substantially corroborate Elliott's testimony because the testimony of Cole and Grissom was not persuasive.   He points out that Cole had only seen him once prior to the incident and notes that when police arrived at the scene, Cole said that “two men” robbed and shot him.   Green also relies on the fact that Cole initially claimed he had sold marijuana to him a few days before the shooting, and later admitted the prior sale had been to Elliott and Grissom.   According to Green, Grissom was also not a credible witness because there was evidence linking Grissom to the crime which gave him a motive to falsely implicate Green.

There is no support for Green's argument that Elliott's testimony was not substantially corroborated because the credibility of witnesses was disputed.   It is province of the jury to weigh the credibility of the witnesses and to decide what inferences to draw from the evidence.  State v. Atsbeha, 142 Wash.2d 904, 925, 16 P.3d 626 (2001).   There was evidence substantially corroborating Elliot's testimony and the trial court did not abuse its discretion in declining to give a cautionary accomplice instruction.

Accomplice Liability Instruction

Although Green was the only person charged with the crime of attempted murder in the first degree and the State's theory was that he was the principal, the trial court gave an accomplice liability instruction and the State concedes it was erroneous.22  See State v. Cronin, 142 Wash.2d 568, 579, 14 P.3d 752 (2000);  State v. Roberts, 142 Wash.2d 471, 513, 14 P.3d 713 (2000) (It is a misstatement of the law of accomplice liability to instruct a jury that a person is an accomplice if he or she acts with knowledge that his or her actions will promote any crime).

An erroneous accomplice liability instruction may be harmless error “if, from the record in a given case, it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict.”  State v. Brown, 147 Wash.2d 330, 332, 58 P.3d 889 (2002).   Where “evidence shows that a defendant facing multiple charges acted as a principal in any of the crimes charged, the difference between ‘a crime’ and ‘the crime’ in the accomplice instruction is harmless with respect to those charges.”  State v. Stovall, 115 Wash.App. 650, 656, 63 P.3d 192 (2003) (citing Brown, 147 Wash.2d at 341-42, 58 P.3d 889).

The State's theory, based on the testimony of Cole, Elliott and Grissom, was that Green shot Cole. Green's defense was that he did not shoot Cole and he was not present at Cole's apartment on the day of the shooting.   Neither party argued that Green acted as an accomplice to the shooter.23

Green acknowledges that he was charged and prosecuted as a principal, but relies on Roberts for the proposition that the erroneous instruction was not harmless because the jury was instructed about the theory of accomplice liability and could have convicted him as an accomplice.   But in Roberts, although the State asserted that Roberts was the principal, it argued in the alternative that he was an accomplice.  Roberts, 142 Wash.2d at 507, 14 P.3d 713.   Further, the “to convict” instruction in that case allowed Roberts to be convicted if he or an accomplice stabbed the victim.  Roberts, 142, Wash.2d at 489, 14 P.3d 713.

Here, no one argued to the jury that accomplice liability was an alternative theory.   Contrary to Green's argument on appeal, he did not argue that he was an accomplice to Elliott for the charged crime of attempted murder.   The only reference to Elliott being the shooter was in closing argument when Green mentioned Sampson's statement that she thought the driver of the van was the shooter.   But this statement was part of his explanation about why Elliott had a motive to testify against him.   Green's defense was that he was not there and was not involved in the shooting at all.   If the jury believed that Green was at the apartment, the evidence supported his liability only as a principal.   In order to convict Green of attempted murder the jury was required to find, under the “to convict” instruction, that Green “shot Cole.” 24

Green also contends that the instruction was not harmless because the jury could have found him guilty of the crime of attempted murder as an accomplice based on his involvement in uncharged crimes:  namely, the drug transaction or the robbery of Cole. This argument was raised in State v. Bui, 142 Wash.2d 568, 14 P.3d 752 (2000), and in State v. Stovall, 115 Wash.App. at 650, 63 P.3d 192.   In both cases, the State argued that the defendant's liability for the charged crime could be based on participation in an uncharged crime.   Here, there was no argument about accomplice liability, nor did the State argue or in any way suggest that Green's participation in a drug sale or robbery made him liable for attempted first degree murder.

Finally, relying on language from the Supreme Court's decision in State v. Brown, Green argues that because the evidence about whether he shot Cole was controverted, the erroneous instruction was not harmless.   This court recently addressed and rejected this argument.. In re Smith, 117 Wash.App. 846, 73 P.3d 386, 395-96 (2003).   Evidence does not need to be uncontroverted for an erroneous accomplice liability instruction to be harmless error.  Smith, 117 Wash.App. at 866, 73 P.3d 386 (“it is the rare criminal trial in which the State's key evidence is not controverted in some way, though not always by way of testimony of the defendant.”)

The only evidence of Green's liability was as a principal, and there was no argument or suggestion that liability could be based on his participation in the crime as an accomplice or his participation in uncharged crimes.   The fact that Green contested his involvement in the shooting does not preclude the error from being harmless.   We conclude beyond a reasonable doubt that the erroneous accomplice liability instruction did not contribute to the verdict.   The instructional error was harmless and not grounds for reversal of Green's conviction.

Prosecutorial Misconduct

Green argues that in closing argument the prosecutor improperly shifted the burden of proof and expressed a personal opinion about the credibility of a witness.

1. Improper Shifting of the Burden of Proof

During closing argument, the prosecutor referred to statements made by Green's attorney in opening statement:  “[d]efense counsel made you some promises in that opening statement that were not delivered upon.” 25  The court overruled Green's objection.   The prosecutor continued:  “[t]here was discussion of parole officers.   Not delivered.” 26

Later, the prosecutor argued that Green had a financial motive to commit the crime.   He reminded the jury that Green was not working at the time of the shooting.   The prosecutor said records showed Green had “lost” his job. 27  The court sustained Green's objection to this comment.   The prosecutor then argued, “You've heard no evidence or testimony of any kind of other source of income for the defendant.” 28  The court again sustained Green's objection.   The prosecutor then contrasted Green's situation to Grissom's, and argued that Grissom had just purchased a large quantity or marijuana from Cole to sell for profit, and therefore, had no motive to rob him.

A defendant alleging prosecutorial misconduct must show both improper conduct and prejudicial effect.  State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997), To establish prejudice, the defendant must show a substantial likelihood that the misconduct affected the jury's verdict.   In the Matter of the Personal Restraint Petition of Pirtle, 136 Wash.2d 467, 481-82, 965 P.2d 593 (1998).   In determining whether a prosecutor's remarks require a new trial, this court must view the remarks in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.  State v. Russell, 125 Wash.2d 24, 86, 882 P.2d 747 (1994).

The State bears the burden of proving its case, and a prosecutor commits misconduct by suggesting that the defendant has an obligation to produce evidence of his innocence.  State v. Cleveland, 58 Wash.App. 634, 648, 794 P.2d 546 (1990);  State v. Traweek, 43 Wash.App. 99, 107, 715 P.2d 1148 (1986).   But it is not improper for a prosecutor to call attention to the fact that evidence promised by the defense in opening was not produced.  State v. Boyce, 24 Wash. 514, 527, 64 P. 719 (1901);  see also Russell, 125 Wash.2d at 86, 882 P.2d 747.   The prosecutor's remark about evidence promised in opening argument but not produced at trial did not shift the burden to Green.

The prosecutor's comment about the lack of evidence showing a legitimate source of income and the suggestion that Green had a duty to produce evidence on this point was improper.   However, even where argument is improper, reversal is not required if the error could have been obviated by a curative instruction.  Russell, 125 Wash.2d at 85, 882 P.2d 747.   The trial court sustained Green's objections to these remarks but he did not make a motion to strike or ask for a curative instruction.   A prompt curative instruction could have cured any prejudice caused by this remark.   And in the context of the argument as a whole, the reference to Green's lack of income was insignificant.   There is not a substantial likelihood that the remark affected the jury's verdict.

2. Personal Opinion about Witness Credibility

Green also claims that the prosecutor improperly expressed his personal opinion as to the credibility of James Elliott when he argued:

Try and recall the very end of my examination of James Elliott.   I asked him:  Who shot Rio Cole? Now, that's a pretty obvious question and this is a question I'm sure you all expected one particular answer and you got that particular answer.   Try to remember the way that James Elliott said that.   I don't know if you recall that.   But it wasn't that sort of staccato, Greg Green shot Rio Cole, or, he shot Rio Cole. He said, he shot Rio Cole.

And if you listened to that answer in the same way that I did and if you recall from your instructions that you are asked to remember the manner of the person while testifying and you can take that into account while looking at credibility, I think you'll agree that James Elliot was giving you a real answer to that question.29

Although it is improper to vouch for a witness's credibility, attorneys may argue credibility and draw inferences about it from the evidence.  State v. Brett, 126 Wash.2d 136, 175, 892 P.2d 29 (1995).   A prosecutor arguing credibility only commits misconduct when it is “clear and unmistakable” that he is expressing a personal opinion rather than arguing an inference from the evidence.  State v. Papadopoulos, 34 Wash.App. 397, 400, 662 P.2d 59 (1983);  see also State v. Day, 51 Wash.App. 544, 551-52, 754 P.2d 1021 (1988) (prosecutor's statement, “He's believable,” was not an expression of opinion).   Here, the prosecutor urged the jury to consider Elliott's demeanor and argued that he was a credible witness.   The prosecutor was arguing an inference based on the evidence and did not commit misconduct.

Cumulative Error

Green contends that cumulative errors denied him a fair trial.   When a single error is not sufficient to warrant reversal, the cumulative effect of more than one error may deny a defendant a fair trial.  State v. Coe, 101 Wash.2d 772, 789, 684 P.2d 668 (1984).   In this case the errors were harmless and Green was not denied a fair trial.

Conclusion

Although it was error to allow the State to introduce Cole's immunity agreement in direct examination, we conclude that the error was harmless.   The erroneous accomplice liability instruction was also harmless error.   Because Elliott's testimony was substantially corroborated, the court did not err in declining to give a cautionary accomplice instruction.   Green was not denied a fair trial because of prosecutorial misconduct or cumulative error.

We affirm.

FOOTNOTES

1.   Perry is also known as “Eric Green”.   Grissom also goes by the name “Smiley”, and Elliott goes by the name “Buster”.

2.   Up until trial, Cole maintained that he sold marijuana on this occasion to Green and Elliott, rather than Grissom and Elliott.   But at trial, he said he had seen Grissom in person twice after the shooting, once at the courthouse and once at a nightclub, and after seeing him, he realized that it was Grissom, not Green, who bought the pound of marijuana a couple of days before the shooting.

3.   Grissom rented the van in Portland several weeks before, and it was used communally by the group of friends.

4.   RP (6/7/99) at 124.

5.   RP (6/22/99) at 188.

6.   She said the gun appeared to be 9 mm.

7.   RP (6/16/99) at 169.

8.   He knew Elliott only as “Buster” and only knew Green's first name, Greg.

9.   Green did not testify.

10.   There was no evidence to support Green's theory that King disliked Green or had a motive to accuse him.   Nor did the evidence support the theory that Green was uniformly disliked by the group of friends or that there was a conspiracy among them to falsely implicate him in the crime.

11.   At trial, Grissom admitted to writing the song, but denied it was based on his participation in the crime.

12.   He was sentenced within the standard range.

13.   Although this agreement is not in the record on appeal, it is attached as an appendix to the State's brief.

14.   At trial, the State introduced Cole's plea agreement, the State's sentence recommendation and the amended information during its direct examination of Cole. Those exhibits are not a part of the record on appeal and Green does not challenge the admission of the documents and the agreement.

15.   RP (6/7/99) at 31, 36.

16.   RP (6/7/99) at 40-41.

17.   Resp. Br. at Appendix A.

18.   On appeal, Green also challenges the admission of a portion of the agreement containing the substance of Cole's statements to the police.   But while Green initially objected to this portion of agreement below, he later conceded it would be cumulative and was not prejudicial if Cole testified consistently with the statements contained in the agreement, which Cole did.   RP (6/7/99) at 44.

19.   Contrary to Green's assertion, the error in allowing the State to introduce the agreement on direct is not reviewed under the constitutional harmless error standard.   The case he relies on, State v. Johnson, 80 Wash.App. 337, 340-41, 908 P.2d 900 (1996), overruled on other grounds by State v. Miller, 110 Wash.App. 283, 40 P.3d 692 (2002), applies the constitutional harmless error standard to prosecutorial remarks that implicate a defendant's exercise of constitutional rights.

FN20.  Elliott testified he participated in robbing Cole. Green was charged only with attempted murder and assault, not robbery..  FN20.  Elliott testified he participated in robbing Cole. Green was charged only with attempted murder and assault, not robbery.

FN21.  RP (6/25/99) at 16..  FN21.  RP (6/25/99) at 16.

FN22.  Instruction No. 20 states, in part:A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:(1) solicits, commands, encourages, or requests another person to commit the crime;  or(2) aids or agrees to aid another person in planning or committing a crime..  FN22.  Instruction No. 20 states, in part:A person who is an accomplice in the commission of a crime is guilty of that crime whether present at the scene or not.A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of a crime, he or she either:(1) solicits, commands, encourages, or requests another person to commit the crime;  or(2) aids or agrees to aid another person in planning or committing a crime.

FN23.  In fact, it appears that the inclusion of the accomplice liability instruction was a mistake or an oversight..  FN23.  In fact, it appears that the inclusion of the accomplice liability instruction was a mistake or an oversight.

FN24.  Clerk's Papers (CP) at 44..  FN24.  Clerk's Papers (CP) at 44.

FN25.  RP (6/28/99) at 28.   The opening arguments were not transcribed, so it unclear exactly what defense counsel said, but Green does not dispute that counsel stated his intent to produce certain evidence..  FN25.  RP (6/28/99) at 28.   The opening arguments were not transcribed, so it unclear exactly what defense counsel said, but Green does not dispute that counsel stated his intent to produce certain evidence.

FN26.  RP (6/28/99) at 28..  FN26.  RP (6/28/99) at 28.

FN27.  RP (6/28/99) at 38..  FN27.  RP (6/28/99) at 38.

FN28.  RP (6/28/99) at 39..  FN28.  RP (6/28/99) at 39.

FN29.  RP (6/28/99) at 30..  FN29.  RP (6/28/99) at 30.

SCHINDLER, J.