State Of Washington v. Baraka Asaba

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 80236-4-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
BARAKA ASABA,
Appellant.
SMITH, J. — Baraka Asaba and his codefendant were charged with first
degree robbery. At trial, Asaba contended that the complaining witness did not
accurately identify him as the robber. During her testimony at trial, the
investigating detective misidentified Asaba based on photographs attached to an
inadmissible e-mail exhibit. The prosecutor referenced and mischaracterized the
e-mail exhibit and discussed reasonable doubt in a context not material to the
issues at trial. The jury acquitted Asaba’s codefendant but found Asaba guilty of
second degree robbery. On appeal, Asaba contends that the prosecutor’s
statements constituted misconduct and deprived him of his right to a fair trial.
While we agree that the prosecutor’s comments were improper, Asaba failed to
show prejudice. Accordingly, we conclude that the trial court did not err when it
denied his motion for a mistrial, and we affirm his conviction.
FACTS
On May 15, 2017, at around 10:00 p.m., Nabil Madih met with a high
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80236-4-I/2
school acquaintance, Seid, at Seid’s house.1 The two left Seid’s house to meet
with another former high school classmate, Abdou Darboe. Seid asked Madih if
he could drive Madih’s car, and Madih agreed, although he found the request
odd. The two arrived across the street from Darboe’s apartment in Lynnwood,
Washington, and Darboe got into Madih’s vehicle with Seid and Madih. They
listened to music, talked, and smoked marijuana. Seid and Darboe suggested
that the three of them meet with another classmate whom Madih did not
recognize at first. In showing Madih a Facebook profile of “Bongo Lion” to jar his
memory, Madih recognized the profile as Asaba’s, although he did not know his
name. Asaba had been Madih’s peer in English class during high school. Thus,
Madih, who had graduated high school in 2014, had seen Asaba in class around
four times per month for an hour and a half each time and for around three
months.
When Madih expressed a desire to leave, Darboe and Seid insisted that
they stay. Eventually, two men arrived in an orange Infiniti SUV. Madih testified
that Asaba was in the driver’s seat of the SUV. Madih spoke with Asaba through
the vehicles’ windows. Madih later testified that the man spoke as if he had been
Madih’s classmate and that he was one “hundred percent sure” that the SUV’s
driver was the person that he had English class with, i.e., Asaba.
Seid and Darboe exited Madih’s vehicle and entered the back of the SUV.
Madih remained in the passenger seat of his vehicle. Around 15 minutes later,
1 Seid’s first name is used throughout this opinion, consistent with the
parties’ briefs and references to him during trial.
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Seid and Darboe got out of the SUV, and Seid returned to Madih’s vehicle.
Darboe returned to his apartment. Asaba thereafter exited the SUV and stood
outside of Madih’s passenger side window, next to Madih. The SUV’s passenger
(passenger) exited the vehicle and got into the back of Madih’s car.
“[T]hey” asked for Madih’s phone. Madih asked them, “[W]hy?” In
response, the passenger and Asaba became aggressive and threatened to shoot
Madih or steal his car. Madih believed the passenger had a gun because the
passenger held his hand inside his jacket at his beltline. But Madih never saw a
weapon. Asaba took Madih’s wallet, discarding some cards back into the vehicle
that he believed were expired. Asaba looked at Madih’s identification and told
Madih, “I know where you live, like don’t think about going to the cops.” The
passenger and Asaba took Madih’s vaporizer, phone, car keys, and wallet.
At this point, Madih told the passenger and Asaba to let him and Seid
leave. Madih put the car into drive and told Seid to step on the gas. Seid drove
around 20 feet but stopped. The passenger exited, and Madih and Seid drove
away. Madih asked Seid to call 911, but Seid said that “he didn’t want anything
to do with it.” Madih made Seid pull over at a gas station so that he could drive,
and then Madih dropped off Seid at his home. Madih drove to the Mill Creek
police station. An officer there told Madih that he needed to go to the Lynnwood
police station, as the incident occurred in its jurisdiction. Madih drove to his
sister’s home and used her phone to call the Lynnwood police.
The Lynnwood police responded, and Madih recounted the events. At
trial, Madih could not remember whether or not he told the responding officer that
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he had smoked marijuana prior to the incident. After discussing the incident with
the officer, Madih drove to the police station, where he gave Detective Jaqueline
Arnett his initial statement. Madih identified Asaba as the individual who stood
outside his window. However, he asked Darboe and Seid for photographs of the
passenger. After receiving two photographs, Madih later testified that he
believed that he had sent the photographs to Detective Arnett via e-mail.
At trial, Detective Arnett testified from memory that Madih had sent two
images, one of Asaba and one of Ousman Faye. In response, the State
introduced the e-mail exchange between Detective Arnett and Madih and the
attached pictures to refresh Detective Arnett’s recollection; the e-mails and
pictures were not admitted as evidence. After reviewing the e-mails, Detective
Arnett said that the e-mails included two photographs “of the same person,”
which she contended “look[ed] like Baraka Asaba.” However, she reviewed the
e-mails again and stated that “[t]he only subject [Madih] refers to in the emails is
Mr. Darboe,” concluding that the photographs must be of Darboe.
During Detective Arnett’s investigation, Madih provided her with the
Facebook profile for “Bongo Lion.” Detective Arnett thereafter created a photo
montage wherein she included a photograph of Asaba, whom she knew to be
Bongo Lion. The second montage she created included a photograph of another
individual who owned an orange Infiniti SUV. The final montage included a
photograph of Faye. When shown the montages, Madih selected Asaba and
Faye as the two individuals who had robbed him. Madih testified at trial that he
was 100 percent sure that Asaba was the individual that stood at his window
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because they had English class together.
Referencing exhibit 9, which was not admitted as evidence, defense
counsel made the following statement during closing arguments:
And so is it possible that Mr. Madih could have been looking
[at] the picture shortly before he saw my client and shortly after and
still confuse that it was actually my client who was there? I think
you saw, during the trial, with your own eyes that it was. You saw
Detective Arnett on the stand. You saw her looking at an email that
was provided to her by Nabil. You saw her looking at two pictures
and confidently saying that that person was Baraka Asaba.
And you saw Mr. Hunter asking her, are you sure? Are you
sure that’s who that is? And you saw her looking. Does the
content of the email in front of it give you any other indication of
who that is? She’s right there, pictures in front of her. And my
client, Mr. Asaba, is standing -- sitting right here in front of her.
Oh. Looking at the email, it appears that these are actually
pictures of Abdou Darboe. So you can see how that works. How it
works, that somebody can misidentify somebody even in those
circumstances.
During rebuttal argument, the State argued:
[PROSECUTOR:] With respect to Detective Arnett
misidentifying the picture on the attached to the email exhibit that I
was showing her, I suggest it’s not so clear whether she
misidentified the person or used the wrong name, but assume,
since I’ve got the burden, that she misidentified the person -- you
don’t get to see in the picture that was attached to that email. You
don’t know how large or small it was, whether it was a photocopy of
a fax of a photocopy, and so I’m just saying don’t make
assumptions on that point.
....
[PROSECUTOR:] Lastly, I think I just want to give you one
contrasting example with respect to reasonable doubt. There have
been suggestions that Seid and Abdou set Nabil up, which also
there are suggestions that somehow set the defendant up too.
That’s a good example of reasonable doubt. And you heard the
evidence. Yeah, one of those guys, if not both, probably were in on
this. But if I were standing here, asking you to convict them [with]
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No. 80236-4-I/6
proof beyond a reasonable doubt --
[DEFENSE:] Objection, your Honor. This is an improper
question, there is no testimony, they are not on trial, there was no
investigation about this.
[THE COURT:] Overruled.
[PROSECUTOR:] I’m just saying, it’s a good contrast
between -- or it’s a good example of reasonable doubt. Certainly
nobody is going to convict those two with the information they have --
[DEFENSE:] I’m going to renew my objection, your Honor,
I’m sorry.
[THE COURT:] Overruled.
[PROSECUTOR:] Even though just about everybody
probably suspects they were setting him up.
So that’s all I have to say. Again, thank you for your time
and attention. I appreciate the work you will put into this, and I’m
asking to you return guilty verdicts on both for first degree. Thank
you.
The next day, Asaba moved for a mistrial as the jury continued to
deliberate. Asaba argued that the inadmissible photographs attached to the e-
mail were large and clear and, thus, the prosecutor’s argument was untrue and
improper. The trial court denied Asaba’s motion.
During deliberations, the jury sent an inquiry to the court requesting to
view the e-mails Madih had sent to Detective Arnett, “including photos.” The
court could not and did not provide the e-mails to the jury. The jury found Asaba
guilty of the lesser included crime of second degree robbery. Asaba appeals.
ANALYSIS
Asaba contends that reversal is required due to prosecutorial misconduct.
Although we agree with Asaba that the prosecutor’s comments during trial were
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No. 80236-4-I/7
improper, we conclude that those comments do not warrant reversal.
Prosecutorial misconduct may deprive a defendant of their guaranty to a
fair trial under the Sixth and Fourteenth Amendments to the United States
Constitution and article I, section 22 of the Washington State Constitution. In re
Pers. Restraint of Glasmann, 175 Wn.2d 696, 703-04, 286 P.3d 673 (2012)
(plurality opinion). To prevail on a prosecutorial misconduct claim, a defendant
must first show that the prosecutor’s statements were improper. State v. Emery,
174 Wn.2d 741, 759, 278 P.3d 653 (2012). “Once a defendant establishes that a
prosecutor’s statements are improper, we determine whether the defendant was
prejudiced under one of two standards of review.” Emery, 174 Wn.2d at 760.
First, “[i]f the defendant objected at trial, the defendant must show that the
prosecutor’s misconduct resulted in prejudice that had a substantial likelihood of
affecting the jury’s verdict.” Emery, 174 Wn.2d at 760. A motion for a mistrial
based on prosecutorial misconduct constitutes an objection and preserves the
issue for appeal. State v. Lindsay, 180 Wn.2d 423, 430-31, 326 P.3d 125 (2014).
We review claims of prosecutorial misconduct for an abuse of discretion because
“[t]he trial judge is generally in the best position to determine whether the
prosecutor’s actions were improper and whether, under the circumstances, they
were prejudicial.” State v. Ish, 170 Wn.2d 189, 195-96, 241 P.3d 389 (2010).
Asaba contends that the prosecutor made two improper comments. We
address each below.
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No. 80236-4-I/8
Reference to E-mail Exhibit
Asaba first contends that the prosecutor committed misconduct when he
referenced exhibit 9, the inadmissible exhibit containing photographs of Darboe.
He asserts that the statement was improper because it was false and misleading,
it interjected matters into the proceeding that were not probative of Asaba’s guilt,
and it vouched for Madih. We agree that the statement was improper but
conclude that Asaba failed to show actual prejudice.
State v. Thorgerson, 172 Wn.2d 438, 258 P.3d 43 (2011), is instructive.
There, Thorgerson challenged the prosecutor’s statements during closing
argument regarding what the victim had said to others and regarding how the
hearsay rules prevented the State’s production of those statements. Thorgerson,
172 Wn.2d at 445. Our Supreme Court determined that “the prosecutor’s
references to the victim having made additional out-of-court statements
consistent with her in-court testimony, while advising the jury those statements
were not admissible as evidence, possibly bolstered her credibility to some
degree.” Thorgerson, 172 Wn.2d at 447. It noted that it did not condone the
prosecutor’s comments. Thorgerson, 172 Wn.2d at 445. However, it concluded
that in the context of the trial and because “the defense theory was the focus of
the prosecutor’s references,” Thorgerson failed to show prejudice. Thorgerson,
172 Wn.2d at 450, 455.
Here, the prosecutor’s statement regarding the e-mail exhibit was
improper. The prosecutor stated, “[A]ssume, since I’ve got the burden, that she
misidentified the person -- you don’t get to see in the picture that was attached to
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No. 80236-4-I/9
that email. You don’t know how large or small it was, whether it was a photocopy
of a fax of a photocopy.” Like in Thorgerson, the prosecutor was referencing
evidence that was inadmissible. And because the prosecutor knowingly
mischaracterized the photographs as potentially unclear, we conclude that the
statement was improper.
However, with regard to the prejudicial effect of the prosecutor’s comment,
the references to, and any mischaracterization of, the inadmissible evidence “did
not provide any additional ground for finding the defendant guilty.” Thorgerson,
172 Wn.2d at 450. Specifically, Detective Arnett’s identification of Asaba did not
decide Asaba’s guilt; Madih’s identification—which he provided in certain terms
based off of his prior personal knowledge of Asaba from high school and not the
pictures contained in the e-mail exhibits—did. Therefore, whether or not
Detective Arnett misidentified Asaba did not provide additional grounds for
finding Asaba guilty and did not provide direct support for Asaba’s theory that
Madih misidentified him. Also like in Thorgerson, the statement was in response
to Asaba’s reliance on Detective Arnett’s misidentification. Accordingly, Asaba
fails to show prejudice.
Discussion of Seid, Darboe, and Reasonable Doubt
Asaba next contends that the prosecutor committed misconduct when it
compared the reasonable doubt associated with the theory that Seid and Darboe
set up Madih to the reasonable doubt that Asaba robbed Madih. We agree that
the statement was improper but conclude that Asaba failed to make a showing of
prejudice.
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No. 80236-4-I/10
In Emery, Anthony Marquise Emery Jr. and his codefendant, Aaron
Edward Olson, appealed their convictions for, among other charges, first degree
kidnapping and first degree robbery. 174 Wn.2d at 746. They contended that
the prosecutor committed misconduct when it presented the jury with a “‘fill in the
blank’” statement with regard to reasonable doubt. Emery, 174 Wn.2d at 759.
Specifically, the prosecutor told the jury that “‘to find the defendant not guilty,’” it
must fill in the blank with a reason why doubt exists. Emery, 174 Wn.2d at 759-
60. The court concluded that the statement “subtly shift[ed] the burden [of proof]
to the defense.” Emery, 174 Wn.2d at 760. It nonetheless held that Emery and
Olson failed to show prejudice. Emery, 174 Wn.2d 760-61.
Here, like in Emery, the prosecutor misstated the reasonable doubt
standard; the prosecutor used an inappropriate comparison when, in discussing
reasonable doubt, he interjected an argument regarding two individuals not on
trial. Furthermore, the prosecutor potentially lessened the State’s burden of
proof. Specifically, by contending that there existed less doubt in the case of
Asaba’s guilt than in the case of Seid’s or Darboe’s, the prosecutor potentially
conflated having less doubt with having proof beyond a reasonable doubt. Thus,
the prosecutor’s comparison was improper.
However, we cannot conclude that the trial court abused its discretion
because there is not a substantial likelihood that the argument affected the jury’s
determination. In particular, the relevant evidence—i.e., the testimony of
Madih—established that Asaba committed the crime, and Madih based his
identification on his prior knowledge of Asaba. In addition, an instruction could
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No. 80236-4-I/11
have cured this issue, and to that end, the court instructed the jury regarding the
proper reasonable doubt standard. And we presume that juries “‘follow
instructions absent evidence to the contrary.’” State v. Lamar, 180 Wn.2d 576,
586, 327 P.3d 46 (2014) (quoting State v. Dye, 178 Wn.2d 541, 556, 309 P.3d
1192 (2013)). Accordingly, Asaba failed to show prejudice on his second theory
of prosecutorial misconduct.
Asaba relies on State v. Thierry, 190 Wn. App. 680, 360 P.3d 940 (2015),
for the proposition that “[c]reating straw man arguments does not comport with
the prosecutor’s duty to seek convictions based on probative evidence and
sound reason.” In Thierry, the prosecutor argued that if the jury accepted
defense counsel’s argument and did not believe the complaining witness, the
State would be unable to prosecute child rape cases, and the jury would be
“‘declaring open season on children,’” allowing anyone to touch children
inappropriately. 190 Wn. App. at 690-91 (quoting State v. Powell, 62 Wn. App.
914, 918 n.4, 816 P.2d 86 (1991)). On appeal, the court held that the
prosecutor’s statements were improper and “misrepresented [defense counsel’s]
argument in a way that exacerbated the prejudice flowing from the misconduct,”
and “created a substantial risk that the jury [would] credit [the victim’s] testimony
for improper reasons.” Thierry, 190 Wn. App. at 692, 694. The court reversed
Thierry’s conviction on this basis. Thierry, 190 Wn. App. at 695. Here, the
prosecutor’s comments did not pose a similar risk of inflaming the jury against
Asaba. Accordingly, Thierry does not control.
Because Asaba failed to establish that either instance of the prosecutor’s
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improper conduct affected the outcome of trial, we do not apply a cumulative
error analysis. See, e.g., Thorgerson, 172 Wn.2d at 442-44, 454 (reviewing
multiple claims of prosecutorial misconduct individually and, despite finding some
improper, declining to apply the cumulative error doctrine).
We affirm.
WE CONCUR:
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