## Facts

- Gerald Kovacs, a white man, was approached near the University of Washington at dusk by two Black men offering to sell marijuana; he responded with profanity and walked away.
- The men followed, yelled at him, and one said he would kill Kovacs while lifting his shirt to display what Kovacs believed was a gun.
- Kovacs ran to a nearby gas station, called 911, and described the armed man as a Black male in his mid-20s wearing a black hooded sweatshirt, a hat, and large gold-framed sunglasses.
- An officer soon located two Black men generally matching the description; one fled and the other, Bryan Edward Allen, stayed. Allen matched aspects of the description, though there were discrepancies in height and weight, and police did not find a gun on him.
- Police conducted a show-up identification, and Kovacs identified Allen as the person who threatened to kill him.
- The State charged Allen with felony harassment based on a threat to kill; a jury convicted him.
- At trial, Allen requested an instruction cautioning the jury about the potential unreliability of cross-racial eyewitness identification; the trial court declined and instead gave general credibility and identification instructions.

## Issues

1. Whether the trial court violated Allen’s constitutional rights by refusing to give a cautionary instruction on cross-racial eyewitness identification.
2. Whether the constitutional “true threat” requirement is an essential element of felony harassment that must be pleaded in the charging document and included in the “to-convict” instruction.
3. Whether alleged prosecutorial misconduct in closing argument deprived Allen of a fair trial.

## Decision

- The Washington Supreme Court affirmed the conviction.
- The court held the trial court did not err by refusing a specialized cross-racial identification instruction on these facts, where general instructions were given and the defense could challenge reliability through cross-examination and argument.
- The court held “true threat” is a constitutional limitation on enforcement of the harassment statute, not a separate statutory element that must appear verbatim in the information or “to-convict” instruction; the instructions, read as a whole, sufficiently required a serious threat to kill.
- The court held the challenged closing-argument comments were not improper and prejudicial in context, and in any event were not so flagrant and ill-intentioned as to require reversal absent timely objection.

## Legal Principles

- Trial courts have discretion whether to give specialized cautionary instructions on eyewitness identification, including cross-racial identification; general credibility and identification instructions may suffice depending on the circumstances.
- A “true threat” requirement functions as a constitutional constraint ensuring only serious expressions of intent to inflict harm are punishable; it need not be separately pleaded or inserted verbatim into a “to-convict” instruction if the charge and instructions adequately convey the limitation in substance.
- Prosecutorial misconduct warrants reversal only if the defendant shows comments were improper and prejudicial in the context of the entire trial; when no objection is made, reversal generally requires flagrant, ill-intentioned misconduct that could not have been cured by instruction.

## Conclusion

The Washington Supreme Court upheld Allen’s felony harassment conviction, ruling that a cross-racial eyewitness identification instruction was not constitutionally required on the record presented, that “true threat” operates as a constitutional limitation rather than a freestanding element requiring specific pleading and verbatim inclusion in the “to-convict” instruction, and that the prosecutor’s closing argument did not justify reversal.


State v. Allen, 294 P.3d 679 (Wash. 2013)