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Washington v. Stover

decided: August 24, 1992.

THE STATE OF WASHINGTON, RESPONDENT,
v.
HUGH ALLEN STOVER, APPELLANT



Baker, J. Grosse, C.j., and Coleman, J., concur.

Author: Baker

Hugh Allen Stover appeals his convictions for first degree assault, first degree robbery, two counts of attempting to elude a police vehicle, and attempted first degree robbery. Stover contends that (1) prosecutorial misconduct denied him a fair trial; (2) the amended information incorrectly charged him with first degree robbery and attempted first degree robbery; (3) the trial court erred in refusing to conduct an in camera review of one of the victim's medical records; and (4) the trial court erred in imposing financial obligations on him. We find no error, and affirm.

Facts

Stover's robbery conviction arose from an incident in which he and Todd Scott drove into the parking lot of an apartment complex where Scott pointed a gun at a resident and said, "Give me your wallet." According to the resident, Stover made no effort to restrain Scott.

Stover denied having any knowledge that Scott was planning to rob anyone. He testified that when Scott demanded the wallet, he grabbed Scott's arm and asked, "What are you doing?" Scott testified that Stover did not know he was going to rob anyone because he acted on the spur of the moment.

Later that evening, Stover drove by a tavern with Scott and two other friends. Robert McDonald exited the tavern at approximately 2 a.m. He had been in the tavern since 10

p.m. and had consumed one or two pitchers of beer. The testimony at trial concerning this incident was controverted. McDonald testified that when he reached his car, a black male approached him from behind and held a gun to his head. A second person was standing by the passenger door of the car, also aiming a gun at McDonald's head. McDonald stated that the person behind him said, "Give me your money or you're dead." McDonald told them he did not have any money and one of the men shot him.

During the trial, the prosecutor repeatedly questioned Scott and Stover in a manner which required them to characterize other witnesses' testimony as lies. Counsel for the defense did not object to this line of questioning. During the rebuttal portion of his closing argument, the prosecutor stated: "Well, I would suggest to you that you have been lied to repeatedly, and primarily by him. You also have lies by the defendant and also by Mr. Scott repeatedly, and Mr. Scott, personally, has no qualms about that." Defense counsel did not object to the prosecutor's statements on rebuttal.

Prosecutorial Misconduct

Stover asserts that the prosecutor improperly engaged in name calling of defense witnesses, asked witnesses to express an opinion as to whether other witnesses had lied, and asked witnesses to state legal conclusions. In addition, he contends that in closing argument, the prosecutor improperly suggested that the defense witnesses lied. Stover contends that the cumulative effect of the prosecutor's misconduct denied him a fair trial.

[1] In order to establish prosecutorial misconduct, "the defendant must show misconduct and resulting prejudice." State v. Smith, 104 Wash. 2d 497, 510, 707 P.2d 1306 (1985). Cross examination designed to compel a witness to express an opinion as to whether other witnesses were lying constitutes misconduct. State v. Casteneda-Perez, 61 Wash. App. 354, 363, 810 P.2d 74, review denied, 118 Wash. 2d 1007 (1991); State v. ...


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