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State v. Siddiq6/27/2005
ch he was tried, here there was a fistfight that went on, with a few breaks, for some minutes. The statements of the witnesses and the varying inferences that could be drawn from them may well have been difficult to sort out, but that is the work we expect from juries. The State provided evidence to support its theory that Siddiq was an aggressor and not entitled to claim self-defense. The trial court did not err in giving the instruction.
PROSECUTORIAL MISCONDUCT
During the State's rebuttal, the prosecutor argued that the aggressor instruction applied in this case to Siddiq because he had provoked the fight by his words to Jimicum. Siddiq objected; the court reminded the jury that remarks of counsel are not evidence and are not the law; and the prosecutor made a correction.
{Prosecutor}: Remember Sonya Gogo's testimony? She kept telling Abdul would you just leave. 'Abdul, leave.' And her testimony is that this guy wanted a piece of George Jimicum and kept screaming and yelling at him. And the testimony is, is that George was out of that fight when this guy started yelling at him, and that's where this initial aggressor instruction comes into play. You can not scream and call somebody out for a fight, and then after you've gunned the guy down, and say, whoops, self-defense.
{Defense}: Your Honor, excuse me. I rarely do this, but that is a misstatement of the law. The jury instruction addresses that fact. I would object.
The Court: Let me remind the jury that counsel's remarks, statements, are not the evidence and they are not the law. You are to read the instructions of law and apply them to the facts. You are the sole judges of the facts in the case, and obviously I've already given you the instructions and the instructions speak for themselves.
{Defense}: Thank you, Your Honor.
{Prosecutor}: So read Jury Instruction No. 31, the initial aggressor, and read that in conjunction with No. 26, the self-defense, because if you find that he used a reasonable amount of force, which I would suggest to you is completely preposterous, then you also got to plug in No. 31 and what the defendant said and did that brought Jimicum back to the fight.
Siddiq did not ask for a curative instruction at the time, but he now argues that in addition to the remarks quoted above, the court should have instructed the jury to the effect of the holding in Riley - that words alone are not sufficient provocation to make Siddiq the aggressor.
This court reviews allegedly improper comments during closing argument 'in the context of the entire argument, the issues in the case, the evidence addressed in the argument and the instructions given.' State v. Bryant, 89 Wn. App. 857, 873, 950 P.2d 1004 (1998). The 'defendant bears the burden of establishing that the prosecutor's conduct was both improper and prejudicial.' State v. Finch, 137 Wn.2d 792, 839, 975 P.2d 967 (1999).
Prejudice is established if the misconduct was 'sufficiently damaging that we can say there is a reasonable probability it affected the outcome of the trial.' State v. Casteneda-Perez, 61 Wn. App. 354, 364, 810 P.2d 74 (1991). The State concedes that the argument incorrectly stated the law. However, the aggressor instruction correctly stated the law by referring to both acts and conduct. The court provided a generic curative instruction. The prosecutor immediately corrected his misstatement by telling the jury to consider what Siddiq 'said and did' that brought Jimicum back to the fight. The set of instructions given to the jury included one that said 'Words alone do not constitute sufficient provocation to warrant an assault.' Defense counsel used
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