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State v. Musayev3/4/2002
t Davidyants brought himself close to the knife when biting Musayev's hand and was nicked on the neck. This argument is misplaced, because the applicable standard of review requires that the State's evidence is taken as true and all reasonable inferences must be drawn in the State's favor.
Last, Musayev argues that the prosecutor deprived him of a fair trial by misstating the law during closing arguments. The prosecutor summarized the standard for attempt as follows: "{Musayev} has to have taken a substantial step, more than mere preparation, but any step suffices under the law." 11 Report of Proceedings at 5.
The law requires a substantial step. . . . A substantial step, which is described in your jury instructions, is any act as long as it is more than mere preparation. Any act is that he went back to the apartment to get the knife. And as if that wasn't enough to constitute any act, he used the knife. And what is significant is how he used it and where he used it. Id. at 16.
It is improper for a prosecutor to misrepresent the law. State v. Fleming, 83 Wn. App. 209, 214, 921 P.2d 1076 (1996). Allegedly improper comments are reviewed '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). Reversal is required only if there is a substantial likelihood that the misconduct affected the verdict. State v. Lord, 117 Wn.2d 829, 887, 822 P.2d 177 (1991). However, the failure to object to a prosecutor's improper remark constitutes a waiver of the error 'unless the remark is deemed to be so flagrant and ill intentioned that it evinces an enduring and resulting prejudice that could not have been neutralized by an admonition to the jury.' Bryant, 89 Wn. App. at 874, quoting State v. Gentry, 125 Wn.2d 570, 640, 888 P.2d 1105 (1995).
Musayev correctly points out that a 'substantial step' is conduct 'strongly corroborative of the actor's criminal purpose.' State v. Smith, 115 Wn.2d 775, 782, 801 P.2d 975 (1990). Therefore, the prosecutor's statement that 'any act' would suffice as a substantial step incorrectly omitted an important part of the standard. However, defense counsel failed to object to the allegedly improper statements at trial. Therefore, even if we were to assume that the prosecutor's overly abbreviated statement of the law constituted prosecutorial misconduct, reversal is not required because the statement was not so flagrant and ill-intentioned that a jury instruction could not have cured the problem. The prosecutor referred back to the jury instructions, which correctly stated that a person 'commits the crime of attempted Murder in the Second Degree when, with intent to commit that crime, he does any act which is a substantial step towards the commission of that crime{,}' and that a substantial step is 'conduct which strongly indicates a criminal purpose and which is more than mere preparation.' Clerk's Papers at 50-51. Had defense counsel objected at trial, the court could have easily remedied any resulting prejudice by reminding the jury that the court's instructions contained the applicable law. Musayev relies on State v. Davenport, 100 Wn.2d 757, 675 P.2d 1213 (1984), but that case is distinguishable on several grounds. In Davenport, the prosecutor argued to the jury that the defendant was guilty as an accomplice, although he was not charged as an accomplice and the court did not instruct the jury on accomplice liability. Id. at 760. The trial court denied the defendant's motion for a mistrial. Id. The Washington Supreme Court held that this statement constituted reversible prejudicial error, noting that the prosecutor seriously m
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