Appeal from Superior Court of King County. Docket No: 94-1-04159-9. Date filed: 12/27/94. Judge signing: Hon. Leroy McCullough.
PER CURIAM. Willie King appeals from his conviction for second degree robbery. He contends that the trial court erred in denying his motion for a new trial on the basis of prosecutorial misconduct and that the evidence was insufficient to support his conviction. Because there was no substantial likelihood that any misconduct affected the verdict and because the evidence was sufficient to establish that King used force in taking a ring from a jewelry store employee, we affirm.
Carmen Abadilla, the assistant manager of the Friedlander Jewelry store in downtown Seattle, testified that King entered the store on the afternoon of June 9, 1994, and began talking to Etsuko Holbrooks, a new sales associate. Holbrooks called Abadilla over to help King, who said he wanted to look at wedding ring sets. King then asked to see unmounted diamonds weighing 1 to 1.5 carats. At this point, Abadilla became suspicious because these diamonds were too large for the settings that King was interested in.
Abadilla declined King's request to examine 2 unmounted diamonds at the same time, but agreed to show him an unmounted diamond in a display "packet" and a diamond ring that she placed on her index finger. King suddenly stood up, grabbed the ring from Abadilla's finger, and ran out the door. The ring was valued at about $6,000.
Abadilla told police that the robber was 5'11" or 6'0" tall and weighed about 200 pounds. Two weeks after the robbery, Abadilla positively identified King from a photo montage. She testified that she recognized King "instantly" on the basis of his facial features. Abadilla also identified King in court.
Eleven days after the robbery, Etsuko Holbrooks identified King from a photo montage. At the time, Holbrooks was "70 percent" certain that King was the robber. When Holbrooks identified King in court, she explained that she was "more certain" of her in-court identification.
A videotape of the robbery from the store security camera was played for the jury. Several photographs prepared from the videotape were also admitted into evidence. No identifiable fingerprints were recovered from the store.
Seattle Police Detective David Kannas was assigned to investigate the robbery. On June 14, he learned from the Burlington Police Department that King was "under lawful arrest." Det. Kannas then traveled to Skagit County and obtained the shirt that King was wearing when he was arrested. He testified that he found "similarities" between King's shirt and the shirt depicted in the videotape, but he could not "say it's the shirt." Det. Kannas also conceded that there were some "discrepancies" between King's shirt and the shirt in the videotape. Abadilla testified that the shirt appeared to be the shirt worn by the robber.
Lori Fall, the defense investigator, prepared several photographs of King to demonstrate his height and beard line. She testified that several photographs prepared from the videotape indicated that the robber may have been left-handed and wore an earring on his right ear.
King testified that he was 5'9" tall, and weighed about 220 pounds. He wore an earring in his left ear but stated that he did not have a pierced right ear. In June 1994, King was living in Everett and working as a security guard. He usually worked evenings from about 5 p.m. to 11 p.m. and "was home with the family during the day or I took care of business, putting in resumes for other particular jobs." King denied that he was the person in the videotape. During cross examination, King was unable to remember what he was doing on the day of the robbery.
The jury found King guilty as charged. The trial court subsequently denied his motion for a new trial and sentenced him to a standard-range term.
King first contends that he was entitled to a new trial because of prosecutorial misconduct. A trial court's ruling on a motion for a new trial is reviewed only for a manifest abuse of discretion. See State v. Ray, 116 Wash. 2d 531, 549, 806 P.2d 1220 (1991). The defendant bears the burden of establishing that the challenged conduct was both improper and prejudicial. State v. Luvene, 127 Wash. 2d 690, 701, 903 P.2d 960 (1995).
The conviction will be reversed only if there is a "substantial likelihood" that the misconduct affected the jury's verdict. State v. Barrow, 60 Wash. App. 869, 876, 809 P.2d 209, review denied, 118 Wash. 2d 1007, 822 P.2d 288 (1991). Alleged misconduct must be reviewed "in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given." State v. Graham, 59 Wash. App. 418, 428, 798 P.2d 314 (1990).
King alleges that several incidents of misconduct deprived him of a fair trial: (1) the prosecutor impermissibly shifted the burden of proof by suggesting that King was required to establish an alibi; (2) the prosecutor violated pre-trial rulings by eliciting testimony about prior "bad acts" and King's exercise of his post-arrest right to silence; and (3) the prosecutor elicited a witness's opinion on King's ...