State Of Washington v. Baraka Asaba

• Court: Court of Appeals of Washington
• Decided: November 30, 2020
• Docket: 80236-4
• Status: Unpublished

Opinion

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STATE OF WASHINGTON, No. 80236-4-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION BARAKA ASABA,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.

2 No. 80236-4-I/3

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

4 No. 80236-4-I/5

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]

5 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.

[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

6 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.

7 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

8 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.

9 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

10 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: