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State v. Miller2/19/2002
remarks on the ground upon which he now seeks review and has not argued that they caused incurable prejudice; therefore, this court need not address these comments. Russell, 125 Wn.2d at 86. Even were we to view the remarks as misconduct, they were not of such an egregious sort that a curative instruction could not have removed any resulting prejudice. Twice in closing argument, the prosecutor asked why O'Rose would lie.
Miller argues that this question improperly implies a statement of personal belief and vouches for the witness, as was held improper in State v. Sargent, 40 Wn. App. 340, 698 P.2d 598 (1985). In that case, the prosecutor argued, "I believe Jerry Lee Brown. I believe him". Sargent, 40 Wn. App. at 343 (emphasis in original). Prosecutors may argue an inference from the evidence, and prejudicial error will not be found unless it is "clear and unmistakable" that counsel is expressing a personal opinion. Sargent, 40 Wn. App. at 344.
Here, the prosecutor's rhetorical question was not an unmistakable assertion of O'Rose's credibility, but rather an argument based on evidence indicating that O'Rose had no reason to make up a story to hurt Miller.
2. Violating a Court Order
The court ruled that evidence of threats made after the shootings must be limited to Miller's state of mind on the days following the incident. The prosecutor argued that Miller claimed to be 'fearful for his life in the days following these murders, but what he really did was plan to rob and kill another guy two days later when he was at the motel in north Seattle.'
And
Rick {Miller} told him {O'Rose} that he was going to kill Beto on October 3rd, 1998. Rick did kill him. Then he threatened to kill him if he said anything. Then {Rick} told him he wanted to kill Mr. Sims, Paul Sims, who was a small time heroin dealer up on Capital Hill.
What you have to believe from all this is that Rick is not afraid to kill anybody, and Rick wasn't fighting for his life on October 3 until October 20 when he was arrested{.}
Miller contends that this argument violated the court's ruling because it does not speak to Miller's state of mind; rather, it speaks to propensity.
We disagree. It is clear from the context of the arguments that the prosecutor was using the threats to illustrate Miller's state of mind, to rebut Miller's claim that he was in fear of his life following the shootings.
3. Misstating the evidence
The prosecutor argued that Cortez, one of the victims, set his gun down on the seat and that it remained there while Miller shot Cortez.
Miller contends that this argument misstated the evidence. Miller did not object to this argument and has not argued that it caused incurable prejudice; therefore, this court need not address these comments. Russell, 125 Wn.2d at 86. In any event, we find the argument to be a proper inference from evidence the gun was found under Cortez's jacket on the back seat of the van and it had not been fired.
4. Shifting the burden
Miller argues that the prosecutor made remarks during closing argument that shifted the burden of proof. The prosecutor argued, I think you'll find when you get back to the deliberation room that premeditation has been established beyond any reasonable doubt, unless, of course, you find that this killing was justified, and the only way you can find that these killings were justified is if you believe his story.
{Defense}: Assumes facts not in evidence.
Court: This is argument. The jurors have heard all the testimony and will determine what the facts are.
Mille
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