State v. Walker ( 2015 )

Fl LE
IN CLERKS OFFICE
1UPR!ME COURT, STATE 01' WMIII«mmll
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
)
STATE OF WASHINGTON, )
) No. 89830-8
Respondent, )
)
v. ) ENBANC
)
ODIES DELAND US WALKER, )
) Filed: JAN 2 2 2015
Petitioner. )
_______________________)
YU, J.- Odies Delandus Walker was convicted as an accomplice to first
degree murder, first degree assault, first degree robbery, solicitation, and
conspiracy. The primary question in this case is whether those convictions must be
reversed in light of the PowerPoint presentation the prosecuting attorney used
during closing argument. That presentation repeatedly expressed the prosecutor's
personal opinion on guilt-over 100 of its approximately 250 slides were headed
with the words "DEFENDANT WALKER GUILTY OF PREMEDITATED
MURDER," and one slide showed Walker's booking photograph altered with the
words "GUILTY BEYOND A REASONABLE DOUBT," which were
superimposed over his face in bold red letters. The prosecutor also appealed to
State v. Walker, No. 89830-8
passion and prejudice by juxtaposing photographs of the victim with photographs
of Walker and his family, some altered with the addition of inflammatory captions
and superimposed text. While the prosecutor is entitled to draw the jury's attention
to admitted evidence, those slides, as presented, served no legitimate purpose.
Their prejudicial effect could not have been cured by a timely objection, and we
cannot conclude with any confidence that Walker's convictions were the result of a
fair trial. Consistent with both long-standing precedent and our recent holding in In
re Personal Restraint ofGlasmann, 175 Wash. 2d 696, 286 P.3d 673 (2012), we must
reverse Walker's convictions and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
We summarize the underlying facts to provide a context for our decision in
this case. The State's evidence supports the following version of the events.
During the relevant time period, Walker lived with his girlfriend, Tonie
Marie Williams-Irby; several of their children; and Walker's cousin, Calvin Finley.
Williams-Irby worked at a Walmart in Lakewood as a department manager.
Williams-Irby told Walker, Finley, and another friend (Jonathan) that she knew·
what time an armored truck arrived each day to pick up the store's daily receipts
and knew the average daily amount of those receipts from staff meetings. Several
weeks later, Walker discussed the armored truck with Finley and Jonathan, saying
it would be "easy money." 7 Verbatim Report of Proceedings (VRP) at 656.
2
State v. Walker, No. 89830-8
Jonathan was later excluded from the robbery discussions. Other potential
participants were considered, and ultimately Walker, Finley, and their friend
Marshawn Turpin made a plan to rob the armored tn1ck "custodian." 4 VRP at 170.
During this preliminary planning stage, Walker and Finley discussed the possibility
that Finley might need to shoot the armored truck custodian. Walker told Finley to
"do what you got to do," 7 VRP at 665, and that Walker would provide a gun.
Williams-Irby was aware of these plans and would regularly answer Walker's
questions about the amount of the store's daily receipts.
On the day of the crime, Walker drove Williams-Irby to work and asked her
to find out what the day's receipts would be. Williams-Irby went to the daily staff
meeting and reported to Walker that the day's receipts totaled $207,000. Walker
and Finley then drove to the Walmart in a white Buick Oldsmobile. Turpin arrived
in a gold Nissan Maxima, then entered the parked Buick. When the armored tn1ck
arrived to pick up the money, Finley and Turpin entered the store while Walker
remained in the Buick. Finley was armed with a handgun. As the armored truck
custodian reached the store entrance to leave, Finley and Turpin approached him
and Finley shot him in the head, killing him. Finley and Turpin grabbed the money
bag and fled in the Buick. Walker drove them to an alley behind a friend's house to
ditch the car. Walker later returned to the Walmart to pick up the gold Nissan.
3
State v. Walker, No. 89830-8
When Williams-Irby returned home from work, Walker told her that they
needed to go to where he had left the Buick so he could wipe away his fingerprints.
When they got there, police officers were milling around the car, so they left and
drove to another friend's house (AI Trevino). Williams-Irby testified that on the
way to Trevino's house, Walker told her that he was in the white Buick in the
Walmart parking lot and was on the phone with Finley during the robbery. When
Finley asked for the money, the armored truck driver laughed, so Walker told
Finley to "kill the mother fucker." 8 VRP at 729.
Finley and Turpin were already at Trevino's house when Walker and
Williams-Irby arrived. After distributing some of the cash, Walker, Finley, and
Turpin placed the clothes they were wearing during the robbery and the now-
empty money bag into a plastic bag, which Finley discarded in a nearby river.
Walker and Williams-Irby left Trevino's house after about 30 minutes and
drove to a motel in Fife where Walker met up with Finley and Trevino. Walker and
Williams-Irby then drove to a Walmart in Federal Way, and Walker bought two
safes and a video game system. Walker kept one safe for himself and drove back to
Fife to give the other safe to Finley. Walker and Williams-Irby then returned home,
where Walker put a gun and his share of the robbery proceeds in his safe and put
the safe and the video game system in his bedroom closet.
4
State v. Walker, No. 89830-8
Walker then took Williams-Irby and their children out for dinner at Red
Lobster. At dinner, Walker told Williams-Irby's son, "This is how you murder
these niggers and get this money." !d. at 773. Walker paid the bill for the meal,
nearly $200, in cash. Police pulled over and arrested Walker and Williams-Irby as
they drove home from the restaurant. Williams-Irby told police she didn't know
anything. When interviewed by police, Walker denied having any involvement
with the robbery.
Williams-Irby was charged and, after entering into a plea agreement with the
State, testified against Walker consistent with the above factual summary. The
State charged Walker as an accomplice to aggravated first degree premeditated
murder, first degree felony murder, first degree assault, first degree robbery, first
degree solicitation to commit robbery, and first degree conspiracy to commit
robbery. The State also sought deadly weapon enhancements for the murder,
assault, and robbery charges.
In opening statements, the prosecutor said:
When the police question the defendant, he is being-he is
adamant. He is cursing. He is yelling. He is swearing. He is saying he
didn't have any idea why the police stopped him. Why did you arrest
me? I didn't do anything. I had nothing to do with it. My wife,
Williams-Irby, she didn't have anything to do with this. He is lying
like crazy to the police. Williams-Irby pled guilty to second-degree
murder, and she will tell you what she had to do with it. He told the
cops he didn't have anything to do with it.
... At the close of this case, we are going to ask you to convict
the defendant of each one, every one of these righteous charges that
5
State v. Walker, No. 89830-8
have been filed against him.
Suppl. VRP (Mar. 7, 2011) at 48, 52. Walker's counsel did not object to these
statements.
During closing remarks, the prosecutor utilized a PowerPoint presentation
made up of approximately 250 slides. Over 100 of those slides have the heading
"DEFENDANT WALKER GUlL TY OF PREMEDITATED MURDER." Pl.'s
Ex. 243, at 6-7, 9-49, 54, 56-59, 61-66, 68-77. Two slides have the heading
"DEFENDANT WALKER GUILTY OF ASSAULT IN THE FIRST
DEGREE," id. at 83, and three have the heading "DEFENDANT WALKER
GUILTY OF SOLICITATION TO COMMIT ROBBERY," id. at 85-86. The
PowerPoint also includes a slide superimposing the words "GUlLTY BEYOND A
REASONABLE DOUBT" over Walker's booking photo. !d. at 87. The record
contains only grayscale copies of the slides, but the briefing indicates that the
lettering was in bright red. See Pet'r' s Suppl. Br. at 2.
6
State v. Walker, No. 89830-8
Pl.'s Ex. 243, at 87.
There is a series of slides suggesting Walker is guilty because he used the
stolen money for video games and lobster. The first asserts, "Defendant Walker is
GUILTY as an ACCOMPLICE to the murder because he SPLURGED ON
FRIVOLOUS THINGS." Jd. at 63. The next slides explain that those splurges
included "[two] safes, a WII [sic] and several games at the Federal Way Walmart,"
as well as "$200.00 for dinner at the Red Lobster." Jd. at 63-64. The next slide is a
photo of Walker and his family happily eating that dinner. Jd. at 64.
DEFENDANT WALKER GUILTY OF DEFENDANT WALKER GUiLTY OF
PREMED~TATED MURDER PREMEDITATED MURDER
DEFENDANT SPLURGED
(26) Defendant Walker Is GUlLTY a.'S an
ACCOMPLICE to the murder because WS~Iker purchased 2 a
SPLURGED ON FRIVOLOUS Wiland everal games at .. .,.f'1A<'1lll Way
THINGS Welmart
DEFENDANT WALKER GUILTY OF
PREMEDITATED MURDER
DEFENDANT SPLURGED
7
State v. Walker, No. 89830-8
!d. at 63-64.
Several other slides include photographs that were admitted exhibits, but
altered with captions, headings, and superimposed text. For example, one slide is a
photograph of money seized by police with the heading "MONEY IS MORE
IMPORTANT THAN HUMAN LIFE":
!d. at 5. It was not alleged that Walker, or anyone else, actually said those words.
Another particularly problematic example of admitted exhibits altered with
inflammatory text comes near the end of the presentation. First, a slide depicts an
in-life photograph of the victim with a superimposed heading reading
"DEFENDANT'S GREED AND CALLOUS DISREGARD FOR HUMAN
LIFE" and text detailing the money stolen and its distribution amongst the
participants. !d. at 88. That slide is juxtaposed with the one immediately following
it, the same photograph of Walker and his family eating dinner at the Red Lobster
used earlier, but this time with a caption '"THIS IS HOW YOU MURDER AND
8
State v. Walker, No. 89830-8
ROB NIGGERS NEXT TIME IT WILL BE MORE MONEY.'" I d. at 89. Next
comes Walker's booking photograph, altered with the caption, "'WE ARE
GOING TO BEAT THIS,"' contrasted with the final image, an in-life photograph
of the victim. Id.
Id. at 88-89.
During the State's closing, Walker's attorney unsuccessfully objected to the
State's discussion of premeditation and a slide analogizing premeditation to
9
State v. Walker, No. 89830-8
stopping at a railroad crossing. 12 VRP at 1376-80. However, Walker's counsel
never objected to the PowerPoint slides referenced here.
Walker did not testify, and he was subsequently convicted of all charges. He
appealed his convictions, claiming prosecutorial misconduct, improper jury
instructions, and ineffective assistance of counsel. In a partially published opinion,
the Court of Appeals affirmed the convictions. State v. Walker, 178 Wash. App. 478,
315 P.3d 562 (2013) (published in part). Walker petitioned for review. 1 The State
did not file an answer to Walker's petition, 2 and we granted review. State v.
Walker, 180 Wash. 2d 1002, 321 P.3d 1206 (2014).
ANALYSIS
I. Prosecutorial misconduct violated Walker's right to a fair trial
Walker argues that the prosecutor committed reversible misconduct
primarily in the PowerPoint presentation used during closing argument. 3 We
recently addressed this very same issue in Glasmann, 175 Wash. 2d 696, and it is
regrettable that some prosecutors continue to defend these practices and the
1
Because we reverse Walker's convictions due to prosecutorial misconduct, we do not reach
Walker's claim that he received ineffective assistance of counsel.
2
In its supplemental brief, the State reasserts the cross assignment of error it raised on direct
appeal. That issue is not properly before us, and we will not consider it. RAP 13 .4( d).
3
Walker also contends the prosecutor committed misconduct during opening statements. The
prosecutor's assertion that Walker was "lying like crazy" because his statements to the police
conflicted with Williams-Irby's testimony, Suppl. VRP (Mar. 7, 2011) at 48, improperly
vouched for Williams-Irby's credibility. State v. Allen, 176 Wash. 2d 611, 631, 294 P.3d 679
(2013). We need not determine whether it was reversible error because the impropriety of the
prosecutor's closing was so egregious.
10
State v. Walker, No. 89830-8
validity of convictions obtained by using them. We reject the State's arguments
that Glasmann is materially distinguishable and should be disavowed in part and
hold that, as in Glasmann, the State's PowerPoint presentation requires reversal of
Walker's convictions.
A. The prosecutor's duty is to seek justice, not merely convictions
We have had numerous occasions to point out the dual roles of a prosecutor.
"A prosecutor must enforce the law by prosecuting those who have violated the
peace and dignity of the state by breaking the law." State v. Monday, 171 Wn.2d
667,676,257 P.3d 551 (2011) (citing State v. Case, 49 Wn.2d 66,70-71,298 P.2d
500 (1956) (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899))).
At the same time, a prosecutor "functions as the representative of the people in a
quasijudicial capacity in a search for justice." Id. A prosecutor does not fulfill
either role by securing a conviction based on proceedings that violate a defendant's
right to a fair trial-such convictions in fact undermine the integrity of our entire
criminal justice system. We fail to appreciate why the prosecutor felt these slides
were necessary to secure a conviction, and remain committed to the words of
Fielding, which resonate as strongly today as when they were first made over 100
years ago:
"[A] public prosecutor ... is a quasi-judicial officer, representing the
People of the state, and presumed to act impartially in the interest only
of justice. If he lays aside the impartiality that should characterize his
official action to become a heated partisan, and by vituperation of the
11
State v. Walker, No. 89830-8
prisoner and appeals to prejudice seeks to procure a conviction at all
hazards, he ceases to properly represent the public interest, which
demands no victim, and asks no conviction through the aid of passion,
sympathy or resentment."
Id. at 676 n.2 (alterations in original) (quoting Fielding, 158 N.Y. at 547, quoted
with approval in Case, 49 Wash. 2d at 70-71 ).
Attorneys may use multimedia resources in closing arguments to summarize
and highlight relevant evidence, and good trial advocacy encourages creative use
of such tools. Moreover, closing arguments are an opportunity for counsel to argue
reasonable inferences from the evidence. However, advocacy has its limits, and a
prosecutor has the duty to "subdue courtroom zeal," not to add to it, in order to
ensure the defendant receives a fair trial. State v. Thorgerson, 172 Wash. 2d 438, 443,
258 P.3d 43 (2011); see State v. Reed, 102 Wash. 2d 140, 147, 684 P.2d 699 (1984)
(Prosecutors are "public officers whose 'devotion to duty is not measured, like the
prowess of the savage, by the number of their victims."' (quoting State v.
Montgomery, 56 Wash. 443,447-48, 105 P. 1035 (1909))).
In reversing Walker's convictions, we do not retreat from the general rule
that a defendant should contemporaneously object to improper comments. Proper
and timely objections provide the trial court an opportunity to correct the
misconduct and caution jurors to disregard it. It prevents abuse of the appellate
process and saves the substantial time and expense of a new trial. State v. Emery,
174 Wash. 2d 741, 761-62, 278 P.3d 653 (2012). However, the failure to object will
12
State v. Walker, No. 89830-8
not prevent a reviewing court from protecting a defendant's constitutional right to
a fair trial. "An objection is unnecessary in cases of incurable prejudice only
because 'there is, in effect, a mistrial and a new trial is the only and the mandatory
remedy."' Id. at 762 (quoting Case, 49 Wash. 2d at 74). Reversing a defendant's
convictions for prosecutorial misconduct is a serious remedy that we do not lightly
impose given the consequential impact on the victim or his or her family and the
expense of a new trial.
B. The prosecutor committed egregious misconduct in its closing
PowerPoint presentation
A defendant arguing that prosecutorial misconduct violated his or her right
to a fair trial has the burden of showing the prosecutor's conduct was both
improper and prejudicial in the context of the entire trial. Glasmann, 17 5 Wash. 2d at
704. And where a defendant raises the issue for the first time on appeal, the
defendant must also show "that the misconduct was so flagrant and ill intentioned
that an instruction would not have cured the prejudice." Id. We do not focus on the
prosecutor's subjective intent in committing misconduct, but instead on whether
the defendant received a fair trial in light of the prejudice caused by the violation
of existing prosecutorial standards and whether that prejudice could have been
cured with a timely objection. Emery, 174 Wash. 2d at 762.
We have no difficulty holding the prosecutor's conduct in this case was
improper. Closing argument provides an opportunity to draw the jury's attention to
13
State v. Walker, No. 89830-8
the evidence presented, but it does not give a prosecutor the right to present altered
versions of admitted evidence to support the State's theory of the case, to present
derogatory depictions of the defendant, 4 or to express personal opinions on the
defendant's guilt. Glasmann, 176 Wn.2d at 706-07,712. Furthermore, RPC 3.4(e)
expressly prohibits a lawyer from vouching for any witness's credibility or stating
a personal opinion "on the guilt or innocence of an accused." The prosecution
committed serious misconduct here in the portions of its PowerPoint presentation
discussed above-it included multiple exhibits that were altered with inflammatory
captions and superimposed text; it suggested to the jury that Walker should be
convicted because he is a callous and greedy person who spent the robbery
proceeds on video games and lobster; it plainly juxtaposed photographs of the
victim with photographs of Walker and his family, some altered with racially
inflammatory text; and it repeatedly and emphatically expressed a personal opinion
on Walker's guilt.
C. The misconduct was prejudicial to Walker's case and could not have
been cured with a timely objection
Both this case and Glasmann deal with PowerPoint presentations during
closing argument that included altered exhibits, expressions of the prosecutor's
4
We agree with that portion of Justice Gordon McCloud's concurrence noting that some of the
State's PowerPoint slides implicitly encouraged a verdict specifically based on racial prejudice.
14
State v. Walker, No. 89830-8
opinion on the defendant's guilt, and clear efforts to distract the jury from its
proper function as a rational decision-maker. Glasmann required the jury to
analyze the "nuanced distinctions" between different degrees of offenses. !d. at
710. The issue at trial here was the extent, if any, of Walker's involvement in the
crimes, requiring the jury to make sense of a multistage criminal scheme with
several participants playing separate roles. The State's PowerPoint presentation
obfuscated the complicated facts presented to the jury here at least as much as the
presentation in Glasmann did. The State's misconduct here was so flagrant,
pervasive, and prejudicial that it could not have been overcome with a timely
objection and an instruction to the jury to disregard the improper slides. 5
Our analysis of "prejudicial impact" does not rely on a review of sufficiency
of the evidence. The Court of Appeals minimized the prejudicial impact because
"the State's case was strong and Walker's theory was not nearly as plausible as the
defendants' theories in Reed and Glasmann." State v. Walker, No. 41970-0-II, slip
op. (unpublished portion) at 17 (Wash. Ct. App. Dec. 20, 2013). While the State
had strong evidence in those cases-enough to affirm the convictions had the
defendant challenged the sufficiency of the evidence-"[t]he focus must be on the
misconduct and its impact, not on the evidence that was properly admitted."
5
We decline the State's invitation to adopt the plain error standard contemplated by Fed. R.
Crim. P. 52(b).
15
State v. Walker, No. 89830-8
Glasmann, 175 Wash. 2d at 711. The voluminous number of slides depicting
statements of the prosecutor's belief as to defendant's guilt, shown to the jury just
before it was excused for deliberations, is presumptively prejudicial and may in
fact be difficult to overcome, even with an instruction.
Equally troubling is the Court of Appeals' suggestion that to be entitled to a
fair trial, Walker had the duty to come up with some plausible defense theory
beyond the State's failure to meet its burden of proof and to produce evidence in
support. Walker, slip op. at 16-17 (unpublished portion). This suggestion
disregards "the bedrock upon which the criminal justice system stands"-every
defendant is entitled to a presumption of innocence, which is overcome only when
the State proves guilt beyond a reasonable doubt as determined by an impartial jury
based on evidence presented at a fair trial. State v. Bennett, 161 Wash. 2d 303, 315,
165 P.3d 1241 (2007).
We decline the State's invitation to disavow Glasmann to the extent it holds
the prosecution should have known it was committing misconduct. 6 Glasmann is
certainly not the first case to hold that visual aids must be used only for their
proper purpose. Nearly 30 years ago, the Court of Appeals observed that "in order
6
Glasmann does not hold that the color red is inherently prejudicial, that the use of all capital
letters always constitutes shouting, or that the word "guilty," when presented as a written word in
a visual aid, always constitutes an improper expression of the prosecutor's opinion on guilt.
Because it misconstmes our holdings, we need not consider the State's argument that we should
disavow them.
16
State v. Walker, No. 89830-8
to help the jury more easily understand other evidence, modern visual aids can and
should be utilized. A trial judge must, however, be careful to avoid letting the
visual aids be used more for their shock value than to educate." State v. Strandy, 49
Wash. App. 537, 541-42, 745 P.2d 43 (1987). There is also nothing new about the
idea that purported visual aids can cross the line into unadmitted evidence. E.g.,
Hollandv. United States, 348 U.S. 121, 127-28,75 S. Ct. 127, 99 L. Ed. 150
(1954); Gustin v. Jose, 11 Wash. 348, 350, 39 P. 687 (1895). Given the serious
need to curb abuses of such visual presentations, we encourage trial court judges to
intervene and to preview such slides before they are shown to a jury. Providing the
presiding judicial officer with a printed copy of the PowerPoint slides in advance is
not burdensome and could curtail the necessity of a retrial due to misconduct.
Walker has met his burden of showing that the State committed
prosecutorial misconduct that was so prejudicial and flagrant that it denied Walker
his constitutional right to a fair trial.
II. The jury was properly instructed on the law of accomplice liability
While prosecutorial misconduct committed at trial is dispositive, we address
Walker's challenge to the jury instructions in case the issue is raised on remand.
Our review of the legal sufficiency of jury instructions is de novo. State v. Barnes,
153 Wash. 2d 378, 382, 103 P.3d 1219 (2005). Jury instructions are not legally
17
State v. Walker, No. 89830-8
sufficient if they relieve the State of its burden to prove every essential element of
the charged crime. State v. Byrd, 125 Wash. 2d 707, 713-14, 887 P.2d 396 (1995).
Walker specifically challenges the definitional and to-convict instructions on
premeditated murder. 7 The definitional instruction reads, "A person commits the
crime of premeditated murder in the first degree, as charged in Count I, when, with
a premeditated intent to cause the death of another person, he or an accomplice
causes the death of another person." Clerk's Papers at 213. The to-convict
instn1ction reads:
To convict the defendant of the crime of premeditated murder
in the first degree, [C]ount I, each of the following elements of the
crime must be proved beyond a reasonable doubt:
(1) That on or about [the] 2nd day of June, 2009, the defendant
or an accomplice acted with intent to cause the death of Kurt Husted;
(2) That the intent to cause the death was premeditated;
(3) That Kurt Husted died as a result of the defendant's or an
accomplice's acts; and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you
have a reasonable doubt as to any one of these elements, then it will
be your duty to return a verdict of not guilty.
7
Walker objected to the to-convict instruction at trial, 12 VRP at 1331, but did not object to the
definitional instruction. Jury instructions that relieve the State of its burden to prove every
element of the crime charged may be considered for the first time on review. State v. 0 'Hara,
167 Wash. 2d 91, 100-01,217 P.3d 756 (2009).
18
State v. Walker, No. 89830-8
Jd. at 216. Walker argues these instructions allowed the jury to convict him as an
accomplice to premeditated murder even if the jury may have believed that the
principal (Finley, the shooter) had committed only intentional murder without
premeditation. This, Walker argues, relieved the State of its burden of proving the
essential element that the principal in fact committed the crime that Walker was
charged with as an accomplice-intentional murder with premeditation.
In the premeditated murder context, the level of knowledge or intent shared
between an accomplice and principal may be a highly relevant issue. See, e.g.,
State v. Roberts, 142 Wash. 2d 471, 505, 14 P.3d 713 (2000). We do not foreclose the
possibility that the level of shared intent may be important in other cases and
circumstances, including some we have not yet considered, but it is not a relevant
consideration here. 8
The complicity statute makes an accomplice legally accountable for a crime
"if it is committed by the conduct of another person." RCW 9A.08.020(1)
(emphasis added). The statute provides that one can be liable as an accomplice for
another's conduct even where the accomplice is "legally incapable" of committing
8
The concurrence ignores the evidence presented in this case and instead attempts to gradually
erode accomplice liability under a hypothetical case. See concurrence (Gordon McCloud, J.) at
9, 13. Contrary to the suggestion that the jurors might have convicted Walker even if he may
have done nothing since he was not the shooter, the evidence presented showed that Walker
planned the robbery with Finley, provided the gun, and ordered Finley to shoot. Jurors are not so
easily confused by multiple instmctions and are capable oflmderstanding the difference between
guilt by association and guilt because a person helped plan and carry out a murder.
19
State v. Walker, No. 89830-8
the crime, RCW 9A.08.020(4), and that one can be convicted as an accomplice
even if the principal is not prosecuted for or convicted of the same (or any) crime,
RCW 9A.08.020(6).
Walker concedes that this court and the Court of Appeals have affirmed
other convictions where a jury may have split the elements between two
participants. Pet'r's Suppl. Br. at 29 (citing State v. McDonald, 138 Wash. 2d 680,
981 P.2d 443 (1999); State v. Hoffman, 116 Wash. 2d 51, 804 P.2d 577 (1991); State
v. Haack, 88 Wash. App. 423, 958 P.2d 1001 (1997)); see State v. Kwan Fai Mak,
105 Wash. 2d 692, 743-45, 718 P.2d 407 (1986), rejected in part on other grounds by
State v. Hill, 123 Wash. 2d 641, 645, 870 P.2d 313 (1994). As held by the Court of
Appeals below, the law of accomplice liability allows the jury to reach a
conviction by splitting the elements of premeditated first degree murder between
accomplices. Walker, 178 Wash. App. at 486 (citing Haack, 88 Wash. App. at 427-28).
A conviction based on split elements may be affirmed "[s]o long as the State
proved beyond a reasonable doubt to the satisfaction of all of the jurors that at least
one of the participants [had the requisite intent] and at least one but not necessarily
that same participant [committed the criminal act]." Haack, 88 Wash. App. at 429.
Walker argues that he was not physically present at the shooting, while in
Haack, Hoffman, and McDonald there was evidence that the defendant was
physically present. In some cases this might be an important factual distinction, but
20
State v. Walker, No. 89830-8
here it is not. A trial court's jury instructions must be considered in the context of
the case actually presented. In this case the State introduced evidence that Walker
and Finley planned the crime ahead of time, such that Finley could have
premeditated intent and caused the death. It also introduced evidence that Walker
contemporaneously participated in the crime via cellular phone, and in fact ordered
the shooting, such that Walker could also have both premeditated and partially
caused the death. 9 Walker concedes that splitting the elements makes sense when
there is evidence that both participants acted as principals. Such evidence was
presented here, and the instructions were proper.
III. The lack of a unanimity instruction on accomplice liability did not violate
Walker's right to a unanimous jury verdict
Walker also argues that the jury instructions discussed above, when given
without a unanimity instruction, violated his right to a unanimous jury verdict. We
have already rejected this argument because principal and accomplice liability are
not alternative means. Hoffman, 116 Wash. 2d at 104-05. The Court of Appeals
correctly concluded that the jury needs to unanimously find only that both the
principal and accomplice participated in the crime; it need not unanimously
conclude as to the manner of participation. It does not matter in this case that
9
It is not a defense that another person also partially caused the death. State v. McDonald, 138
Wash. 2d 680, 690-91, 981 P.2d 443 (1999).
21
State v. Walker, No. 89830-8
Finley, not Walker, performed the actual shooting given Walker's level of
involvement and participation.
Walker urges us to disavow this precedent, arguing that the right to a
unanimous verdict under article I, section 21 of the Washington Constitution is
greater than that provided in the United States Constitution under State v. Gunwall,
106 Wash. 2d 54, 720 P.2d 808 (1986). A Gunwall analysis is appropriate where the
contours of the Washington Constitution are not fully developed, but on this issue
our precedent is clear, and Walker's cursory Gunwall analysis is insufficient to
show it should be disavowed. No Washington court has examined article I, section
21 under Gunwall to determine whether or not an accused person has a
constitutional right to jury unanimity as to the mode of participation in a felony
accomplice case, and we decline to do so without sufficient analysis.
CONCLUSIONS
We affirm the Court of Appeals' holding that the jury instructions properly
stated the law on accomplice liability and did not violate Walker's right to a
unanimous jury verdict. However, we reverse its conclusion that Walker received a
fair trial in light of the prosecutorial misconduct the State committed in its closing
argument and we reverse Walker's convictions and remand for a new trial.
22
State v. Walker, No. 89830-8
WE CONCUR:
(
23
State v. Walker (Odies Delandus)
No. 89830-8
STEPHENS, J. (concurring)-! agree with the majority that the State's
misconduct during closing argument requires reversal of Odies Delandus Walker's
conviction, consistent with our decision in In re Personal Restraint of Glasmann,
175 Wash. 2d 696, 286 P.3d 673 (2012). However, I share Justice Gordon McCloud's
view that the State was entitled to call out admitted evidence during closing
argument and that the misconduct was not as far reaching as the majority suggests.
Therefore, I join Justice Gordon McCloud's concurrence on this issue.
In light of the court's holding on prosecutorial misconduct during closing
argument, if is unnecessary to opine on any other issues. Nonetheless, the majority
and concurrence correctly recognize that the trial court on remand may benefit from
guidance with respect to the jury instn1ctions addressing accomplice liability. I
concur in the majority's resolution of this issue.
State v. Walker (Odies Delandus), 89830-8 (Stephens, J. Concurrence)
-2-
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
No. 89830-8
GORDON McCLOUD, J. (concurring)-! agree with the majority that the
prosecutor's closing argument in this case contained so much personal opinion,
vouching, and inflammatory imagery that we must reverse. But it is the vouching,
prejudice, and the inflammatory imagery that necessitate reversal, not the
prosecutor's use of actual admitted evidence. And some of the material on the
PowerPoint slides that the majority quotes and reproduces fall into the latter,
permissible category-evidence-rather than the former, impermissible category. I
write separately to try to clarify the difference between the two categories: the
permissible use of unaltered, admitted, but very damaging evidence on the one hand
and the impermissible use of inflammatory images that were not admitted, on the
other. I conclude that the many slides carrying the prosecutor's opinion of "guilty"
are not just impermissible but also inflammatory and prejudicial. The majority,
however, also criticizes several slides that do not contain the prosecutor's opinion.
I write separately to explain the majority's perhaps unstated assumption: those slides
are inflammatory and prejudicial because they highlight the defendant's race.
1
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
I also write to disagree with the majority's endorsement of the wording of the
elements, or "to convict," instruction. That instruction allowed the jury to convict if
either the accomplice "or" the defendant held a specific mens rea and either the
accomplice "or" the defendant committed specific acts. It is confusing. The problem
is not just the one the majority addresses, i.e., that the instruction allows a conviction
even if the jury concludes that the prohibited act and the prohibited mens rea are
"split" between the defendant and some other participant. The problem is that such
an instruction could be read to allow the jury to convict even if it concludes that both
the prohibited act and the prohibited mens rea are attributable to another participant,
and not to the defendant. I would not endorse that language but would advise trial
courts to go back to using an accomplice liability instruction along with a simple "to
convict" instruction referring solely to the defendant. The combination of the two
allows the jury to convict the defendant as either principal or accomplice without all
the confusion.
For these reasons, I respectfully concur.
I. The Prosecutor Committed Misconduct by Vouching and by Making
Inflammatory Arguments, but Not by Using Admitted Evidence
The majority correctly explains that it is impermissible for the prosecutor to
vouch for the credibility of witnesses, to appeal to jury prejudices, or to convey a
personal opinion about the defendant's guilt. In re Pers. Restraint of Glasmann, 17 5
2
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
Wn.2d 696,286 PJd 673 (2012); State v. Lindsay, 180 Wn.2d 423,432,437, 326 P.3d
125 (201.4). The majority tracks the closing argument in this case and explains how
the deputy prosecutor committed each of those errors, again and again, during
closing.
But not all of the images pictured on the PowerPoint slides that the majority
criticizes contain personal opinions about guilt. Some of them contained actual
quotations from or portions of photos from properly admitted evidence, or both. For
example, the majority criticizes the PowerPoint slide containing a photo of the
defendant's family at dinner after the murder with an inculpatory caption. But the
photo of the family at dinner was admitted (over what sounds like a relevance
objection). Ex. 210; 8 Verbatim Report of Proceedings (VRP) at 775. It was
certainly relevant: whether Walker had extra money burning a hole in his pocket
immediately after a $200,000 robbery is certainly probative of whether he is the one
who committed and benefitted from that robbery. 1 And the record further shows that
witness Williams-Irby testified, when referring to both the murder and the robbery,
that it was Walker himself who stated, after the robbery-murder, "This is how you
1
State v. Luvene, 127 Wash. 2d 690, 709, 903 P.2d 960 (1885) (defendant's
"possession of unusual amounts of money around the time of the robbery ... is relevant in
that it has some tendency to make it more probable that [the defendant] committed the
robbery").
3
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
murder these n[,___] and get this money. The next time, it will be more money."
8 VRP at 773. I agree that this testimony is highly damaging to Walker. But it was
a statement that witness Williams-Irby attributed to Walker. Id. It is thus both
admissible, Evidence Rule (ER) 80l(d)(2), 804(b)(3), and relevant to whether
Walker committed murder and robbery. ER 401. In fact, it's a confession. I think
we should make clear that extremely damaging evidence and confessions, which
constitute actual evidence, are fair game during closing.
Nevertheless, I agree with the majority that the slide containing the "n- - -"
quote was improper. I write separately to explain why.
The problem is that the state altered the photo (Ex. 210) of the black defendant
and his black family, at dinner, by superimposing on it a quote highlighting race as
some kind of important factor with the moniker, "niggers." There is no denying that
this word is powerful, gripping, and emotional. But it was irrelevant-there was no
indication of a racial motive in this case, and indeed, the victim apparently
referenced was not even black In context, placing that quote on that photograph of
the defendant's black family did not just alter both pieces of evidence in violation of
Glasmann. It also created imagery highlighting the defendant's race-his
4
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
blackness-in a case where that had absolutely no relevance. That alteration of the
evidence is inflammatory, whether the prosecutor intended it or not. 2
Similarly, the majority correctly criticizes the State for repeatedly using
Walker's booking photo and presenting it once with the caption, "'We are going to
beat this."' Majority at 9 (emphasis and capitalization omitted) (quoting Pl.'s Ex.
243, at 89). The majority characterizes this and other slides as impermissibly
"altered with inflammatory text." Majority at 8. To be sure, altering evidence on
PowerPoint slides constitutes misconduct. Glasmann, 175 Wash. 2d 696. But the quote
alone would not be improperly damaging. It was a direct quotation that Ms.
Williams-Irby attributed to Walker. 8 VRP at 781. The court admitted it without
objection. Id. at 779. A trier of fact might interpret it as reflecting consciousness of
2
I do not mean to suggest that only prosecutors are susceptible to maldng
unintentional appeals to race-indeed, criminal defense lawyers and judges can be. See,
e.g., State v. Saintcalle, 178 Wash. 2d 34, 44-48 & n.3, 309 P.3d 327 (2013); L. Song
Richardson & P. A. Goff, Implicit Racial Bias in Public Defender Triage, 122 YALE L.J.
122 (2013) (analyzing unconscious race bias in public defender decision-maldng). As our
court stated in Saintcalle, 178 Wash. 2d at 34, 42 n.l, "' [B]ias pervades the entire legal system
in general and hence [minorities] do not trust the court system to resolve their disputes or
administer justice evenhandedly."' (Quoting TASK FORCE ON RACE AND THE CRIMINAL
JUSTICE SYSTEM, PRELIMINARY REPORT ON RACE AND WASHINGTON'S CRIMINAL JUSTICE
SYSTEM at 6 (2011) (second alteration in original), available at
http://www .law. washington.edu/About/RaceTaskF orce/preliminary_ report_race_criminal
justice_030lll.pdf (quoting WASH. ST. MINORITY & JUSTICE COMM'N, 1990 Final
Report at xxi (1990), available at http://www.
courts.wa.gov/committee/pdf/TaskForce.pdf); see also Saintcalle, 178 Wash. 2d at 62
(Madsen, C.J., concurring)). The issue raised in this case, though, was prosecutorial
misconduct.
5
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
guilt, so it is relevant to whether Walker committed the charged crimes. ER 401,
402. Once again, I think we should make clear that it is proper for the State to
highlight that type of statement for the jury.
Nevertheless, I agree with the majority that all the slides of the booking photo
were improper. I write separately to explain why.
The first problem is that in one slide, the quote was superimposed on the
defendant's booking photo. This alters both the quote and the photo. The second
problem is that the booking photo was never admitted into evidence in that form.
According to the record we have been supplied with, the booking photo was used as
a part-one-sixth-of the photo montage (Ex. 74A) that an independent witness
viewed before failing to identify, and only later claiming to identify, the defendant's
photo in position two as the driver of an Oldsmobile leaving Walmart after the
murder. 5 VRP at 239-43. The montage was admitted (Ex. 74A). The booking
photo was not. There was probably a good reason for that: booking photos are
notoriously prejudicial and inflammatory and are generally admissible only if
specifically relevant. 3 So the PowerPoint slide showed a doubly altered image-a
3 State v. Walter, No. WD 76655,_ S.W.3d _ , 2014 WL 4976913 (Mo. App.
W.D. 2014) at *17-18 ("Giving the State the widest possible latitude, there is still no
rational justification for the prosecutor's use of the mug shot during closing
argument. Showing Walter wearing an inmate uniform with the word 'GUILTY'
6
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
booking photo excised from a part of exhibit 74A with a superimposed quote. The
next problem is that, in context, superimposing that text on a booking photo of the
defendant from after the crime, looking disheveled, antisocial, and tough, highlights
the defendant's appearance at booking. That is an irrelevant fact. Use of one of the
many photos of the crime itself (e.g., Exs. 30A-D, 31A-D, 32A-D, 33A-D, 34A-D,
prominently displayed across his face added nothing to the State's argument. Rather, the
only purpose it could have served was to portray Walter in a negative light to the jury.
Accordingly, the prosecutor injected incompetent and potentially prejudicial matters into
its closing argument by displaying an altered piece of evidence to the jury for the sole
purpose of affecting the jur~ opinion of the defendant." (footnote omitted)); State v. Lazo,
209 N.J. 9, 19, 34 A.3d 1233 (2012) ("[a]rrest photos raise particular concerns, though,
because they can inject prejudice by suggesting a defendant has a prior criminal record;"
"an arrest photo may be admitted only if it is presented 'in as neutral a form as possible."'
(quoting State v. Taplin, 230 N.J. Super. 95, 99, 552 A.2d 1015 (App. Div.1988)); Watters
v. State, 313 P.3d 243, 245, 247 (Nev. 2013) ("At trial, the State used a PowerPoint to
support its opening statement to the jury. The presentation included a slide showing
Watters's booking photo with the word 'GUILTY' written across his battered face." (citing
Glasmann with approval and holding that this constituted prejudicial error)); Area v. State,
71 Md. App. 102, 105-06, 523 A.2d 1064 (1987) (abuse of discretion to admit mug shots
of defendant in a photo array where identity was not in issue); Smith v. Rhay, 419 F .2d 160,
164 (9th Cir. 1969) ("the introduction into evidence of 'mug shots' for purposes of
identification has been held to be highly prejudicial. The Supreme Court of Washington
has itself seen prejudicial inferences in the introduction of 'mug shots,' State v. Devlin, 145
Wash. 44, 258 P. 826 (1927) ... " (citation omitted)); Williams v. Commonwealth, 810
S.W.2d 511, 513 (Ky.1991) (given prejudice posed by use of booking photos at trial, they
are inadmissible unless "'(1) the prosecution [had] a demonstrable need to introduce the
photographs; (2) the photos themselves, if shown to the jury, [did] not imply that the
defendant had a criminal record; and (3) the manner of their introduction at trial must be
such that it [did] not draw particular attention to the source or implications of the
photographs."' (quoting Redd v. Commonwealth, 591 S.W.2d 704, 708 (Ky. App. 1979))).
7
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
35A-D, or 36A-D) would have been far more relevant, but racial differences are not
always clearly apparent in them.
Race is not a relevant fact in this case. It was a robbery-murder with a greed
motive and a question about whether Mr. Walker, who was not present at the murder
scene itself, orchestrated the crime and gave the kill order. The answer to that
question was based mainly on witness credibility. Where credibility, not race, is the
issue, such a powerful focus on race through altered evidence is error.
In sum, I agree with the majority that a digital media presentation highlighting
the prosecutor's personal opinion about Walker's guilt over and above the evidence,
throughout closing, constitutes error under Glasmann. But many of the items of
evidence listed above, ifleft unaltered, would not fall into that category. They would
be evidence, which is what the prosecutor is supposed to use in closing argument. It
is the fact that the evidence was altered in a way that emphasized the prosecutor's
opinion and-perhaps unintentionally-the defendant's race that caused the
problem. 4
4
There are certainly no explicit appeals to racial bias anywhere in the record. But
we have recognized that our State criminal justice system is not immune from unconscious,
implicit, racial bias and that we need to devise strategies to deal with it. Saintcalle, 178
Wash. 2d at 46-47 nn.3-6. We are not alone. The National Center for State Courts counsels
that implicit bias is pervasive and operates without our awareness: "Unlike explicit bias
(which reflects the attitudes or beliefs that one endorses at a conscious level), implicit bias
8
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
II. The Elements Instruction Is Confusing Because It Allows the Jury To
Convict One Alleged Participant in the Crime Based Solely On
Another's Actions and Intent
I also respectfully disagree with the majority's endorsement of an elements
instruction that is confusing. Whether an elements instruction should permit the jury
to convict one defendant upon proof that "an accomplice," but not the defendant,
had the prohibited intent and that "an accomplice," but not the defendant, committed
a prohibited act is a question of first impression in our court. Based on our case law,
we must conclude that such an instruction might be confusing and, hence, we should
not endorse it.
The challenged elements instruction provides:
To convict the defendant of the crime of premeditated murder in
the first degree, [C]ount I, each ofthe following elements of the crime
must be proved beyond a reasonable doubt:
(1) That on or about [the] 2nd day of June, 2009, the defendant
or an accomplice acted with intent to cause the death of Kurt Husted;
(2) That the intent to cause the death was premeditated;
is the bias in judgment and/or behavior that results from subtle cognitive processes (e.g.,
implicit attitudes and implicit stereotypes) that often operate at a level below conscious
awareness and without intentional control." NAT'L CTR. FOR STATE COURTS, HELPING
COURTS ADDRESS IMPLICIT BIAS: FREQUENTLY ASKED
QUESTIONS, http://www.ncsc.org/~/media/Files/PDF/Topics/Gender%20and%20Racial%
20Fairness/Implicit%20Bias%20FAQs%20rev.ashx (last visited Jan. 8, 2015).
9
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
(3) That Kurt Husted died as a result of the defendant's or an
accomplice's acts; and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has
been proved beyond a reasonable doubt, then it will be your duty to
return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have
a reasonable doubt as to any one of these elements, then it will be your
duty to return a verdict of not guilty.
Clerk's Papers (CP) at 216 (emphasis added).
The majority identifies the issue as whether a single error in the elements
instruction, which permitted the jury to "split" the elements of the crime between the
defendant and a different participant, is improper. But the real issue is whether the
double error shown by the elements instruction above, which actually permitted the
jury to convict Walker even if he did nothing and a different participant was the only
one harboring the prohibited mens rea and doing the prohibited acts, is improper. 5
The answer to that question is that such an instruction can be read as relieving
the State of the burden of proving that Walker harbored the intent or committed the
acts required for murder. It can even be read to relieve the State of the burden of
5
The majority's note 8 argues that given the amount of evidence against Walker,
the jury could not possibly have convicted Walker on an improper basis. Majority at 19 n.
8. The majority is probably correct about this. But that just means that the error I discuss
below was harmless. It was, however, still an error.
10
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
proving that Walker harbored the lesser mens rea of knowledge or committed the
more limited act of "aid[ing]" required for accomplice liability. In fact, instruction
13 tells the jury that it could convict Walker even if a different participant had "intent
to cause the death" but that Walker did not, and a different participant "acted" with
that intent and committed "acts" causing death but that Walker did not. Id.
It is certainly true that under Washington law, a jury can convict a defendant
as an accomplice even if that defendant does not have the same intent as the principal
(or as any other participant) and who 9id not commit the same acts as the principal
(or as any other participant). A jury can convict a defendant as an accomplice if that
defendant is the one who "( 1) solicits, commands, encourages, or requests another
person to commit the crime; or (2) aids or agrees to aid another person in planning
or committing the crime." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN
JURY INSTRUCTIONS: CRIMINAL 10.51 (3d ed. 2008); see also RCW
9A.08.20(3)(a)(i), (ii); State v. Roberts, 142 Wash. 2d 471, 510, 14 P.3d 713 (2000);
State v. Cronin, 142 Wash. 2d 568, 576-77, 14 P.3d 752 (2000). It is not necessary for
the accomplice's mens rea to match the crime's mens rea; a jury can convict a
defendant as an accomplice even if that defendant has only '"knowledge that [his or
her acts] will promote or facilitate the commission of a crime,"' not intent. State v.
Hoffman, 116 Wash. 2d 51, 104, 804 P.2d 577 (1991) (quoting State v. Guloy, 104
11
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
Wn.2d 412, 431, 705 P.2d 1182 (1985)). This means that a jury could convict
Walker if he were "'present at the scene and ready to assist,"' State v. Rotunno, 95
Wash. 2d 931, 933, 631 P.2d 951 (1981), even if he did not have premeditated intent
to kill and did not himself commit the murder. In fact, a jury could convict Walker
as an accomplice even if the principal was not prosecuted or convicted. RCW
9A.08.020(6); accord State v. Cleman, 18 Wash. App. 495, 499-500, 568 P.2d 832
(1977).
But a jury cannot convict Walker if he did nothing objectionable at all. The
jury must find, at the very least, that he had knowledge of "the crime" to be
committed and that he acted with knowledge that his conduct would promote or
facilitate that crime. Roberts, 142 Wash. 2d at 510-11; Cronin, 142 Wash. 2d at 579
(conviction reversed); State v. Evans, 154 Wash. 2d 438, 114 P.3d 627 (2005)
(reversing felony murder; jury instruction allowed conviction on murder without
finding he personally attempted or committed the robbery if it found he was only an
accomplice to theft); see also In re Pers. Restraint of Sarausad, 109 Wash. App. 824,
835-36, 39 P.3d 308 (2001) (State must prove accomplice had knowledge of the
crime to be committed, but the State does not have to prove that accomplice knew
details of that crime, such as its degree or elements); see generally State v. WR., _
Wn.2d _, 336 P.3d 1134 (2014) (the due process clause requires the State to prove
12
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
all elements of charged crime-as defined by the applicable state statute-beyond a
reasonable doubt).
A jury instruction stating that the jury could convict the defendant of
premeditated murder even if someone else had the prohibited intent or knowledge
and someone else committed the prohibited act or facilitation does not ensure that
that standard is satisfied. That is why instruction 13 can be confusing.
It is true that instruction 13 requires the jury to find that the other participant
who had the prohibited intent and committed the prohibited act was "an
accomplice." CP at 216. Instruction 9 then defines "accomplice" as one who "either
... encourages ... another person to commit the crime; or ... aids ... another
person in ... committing the crime." CP at 212 (emphasis added). It doesn't say
who the other person has to be, whether it has to be the defendant identified in the
"to convict" instruction or one of the other participants, or what the definition of
"another person" or "participant" is. In sum, the court's instructions require too
many unclear cross-references to ensure that the jury concluded that Walker was a
principal or an accomplice.
The majority and the Court of Appeals cite several decisions in support of
their conclusions to the contrary and imply that those cases show that the wording
of this elements instruction is well accepted in Washington law. One of these cases
13
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
is State v. Mak, 105 Wash. 2d 692, 740, 718 P.2d 407 (1986), overruled on other
grounds by State v. Hill, 123 Wash. 2d 641, 870 P.2d 313 (1994) (cited by majority at
20). But the "to convict" instruction in Mak was strikingly different than the "to
convict" instruction here. In Mak, the "to convict" instruction listed the following
elements:
"(1) That on . . . February, 1983, the defendant or an
accomplice caused the death of the individual named;
"(2) That the defendant acted with the intent to cause the death;
"(3) That the defendant acted with premeditated intent to cause
the death;
"(4) That the death was a result of the acts of the defendant or
his accomplice;
"( 5) That one or more of the following aggravating factors was
present."
Mak, 105 Wash. 2d at 740. There are two critical differences between Mak and this
case. First, in Mak, the defendant did not raise and the court did not consider the
issue raised here. The only challenge to accomplice liability raised in Mak was
whether "the defendant could be convicted of aggravated murder in the first degree
based on an accomplice theory." !d. at 739. Second, in Mak, the court added the
words ''or his accomplice" only to the elements involving the cause of death, not to
the elements concerning intent. See id. at 744 (discussing the instruction with
14
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
approval in part because the words "or an accomplice" were added only to the
elements concerning cause of death, not the elements concerning intent). Thus, the
Mak elements instruction did not suffer the same infirmity as the elements
instruction in this case.
Another case that the majority and the Court of Appeals cite to support the
notion that a "to convict" instruction like the one used in this case is well accepted
in Washington law is State v. Hoffman, 116 Wash. 2d 51, 804 P.2d 577 (1991).
Majority at 20; State v. Walker, 178 Wash. App. 478,486-87,315 P.3d 562 (2013). In
Hoffman, this court made several general statements about accomplice liability that
remain correct today, even after Roberts and Cronin, such as:
[T]he accomplice liability statute predicates criminal liability on
general knowledge of the crime and not on specific knowledge of the
elements of the participant's crime. Accomplice liability represents a
legislative decision that one who participates in a crime is guilty as a
principal, regardless of the degree of the participation.
116 Wash. 2d at 104 (footnote omitted).
But with respect to the particular issue about the correct phrasing of the
elements instruction, Hoffman provides the majority with no help. The elements
instruction in Hoffman actually required the jury to find that the defendant personally
committed unlawful acts and personally harbored an unlawful intent before the jury
15
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
could convict him (the court defined "accomplice liability" in a separate instruction);
the elements instruction stated:
"To convict a Defendant of the crime of Murder in the First
Degree, each of the following elements of the crime must be proved
beyond a reasonable doubt:
"(1) That on or about the 27th day of August, 1986, the
Defendant shot Louis A. Millard;
"(2) That the Defendant acted with intent to cause the death of
Louis A. Millard;
"(3) That the intent to cause the death was premeditated;
"(4) That Louis A. Millard died as a result of Defendant's acts;
and
"(5) That the acts occurred in Okanogan County, Washington."
!d. at 107-08. The elements instruction in this case was totally different. If the court
had used this Hoffman instruction, no error would have occurred.
Another case cited in support of the elements instruction used here is State v.
Haack, 88 Wash. App. 423, 958 P.2d 1001 (1997). See majority at 20; Walker, 178
Wash. App. at 486. In Haack, the Court of Appeals did state that a jury could convict
even if one participant in a group crime held one intent, another participant held
another intent, and different participants committed different acts with differing
levels of culpable intent or knowledge, causing different levels of harm. But the
court in Haack did not hold that a jury could convict a defendant without the State
16
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
proving that the defendant held any objectionable mens rea or committed any
objectionable act at all. Instead, the Haack court stated,
So long as the State proved beyond a reasonable doubt ... that at least
one of the participants intended to inflict great bodily harm and at least
one but not necessarily that same participant inflicted great bodily harm
during the attack on the victim, the jury with its differing viewpoints as
to what actually happened could rationally convict all the participants
of first degree assault, including Participant D, who struck no blows
and who did not intend to inflict great bodily harm, but who acted as a
lookout to alert the remaining participants if the police should arrive.
88 Wash. App. at 429 (emphasis added). Thus, the Haack court actually held that a
jury cannot convict a defendant charged with the group's acts unless the State proves
that that specific defendant is a "participant[]," that that specific defendant took
actions to further the crime ("acted as a lookout"), and that that specific defendant
took those actions to facilitate the crime ("to alert the remaining participants if the
police should arrive"). Id. The elements instruction here contains none of these
prerequisites to conviction.
Finally, the majority cites to State v. McDonald, 138 Wash. 2d 680, 981 P.2d
443 (1999), as support for the either-or elements instruction given in this case.
Majority at 20. But the only holding of the McDonald case with regard to
accomplice liability is that accomplice and principal liability are not alternative
means of committing the crime and hence they are not subject to our jurisprudence
on jury unanimity regarding means of commission of a crime. 138 Wash. 2d at 687-
17
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
88. Like the decisions cited above, the court in McDonald clearly required the State
to prove that the defendant was a culpable ""participa[nt]"' in the crime and that the
defendant facilitated the crime while having knowledge of the crime, "Here the
jurors need not have decided whether it was Bassett or McDonald who actually killed
Michael 'so long as both participated in the crime.' State v. Hoffman, 116 Wash. 2d
51, 105, 804 P.2d 577 (1991)." Id. at 688. And, in fact, as the McDonald court
described in detail, the State certainly bore that burden of proof in that case:
Even if the jury concluded that McDonald did not act as a
principal when he shot Michael in the head, it could have found that
McDonald aided Bassett in the commission of a crime. McDonald, by
his own admission, shot Michael Bassett in the head while he was still
alive. Surely a more compelling example of participation in a crime
could not be found. We have written that "it matters not that some jurors
may have believed that the petitioner fired the gun, while others may
have believed that his only role was in aiding and abetting [the other
participant], so long as all twelve agreed that he did participate."
Id. at 690 (emphasis added) (alteration in original) (internal quotation marks
omitted) (quoting Hoffman, 116 Wash. 2d at 105).
I therefore respectfully disagree with the majority's statement that the
elements instruction used in this case is well accepted by this court. I also disagree
with its conclusion that the elements instruction accurately and clearly describes the
law of accomplice liability for the jury. I think that it is far less confusing to instruct
the jury on the elements of the crime in one instruction (without using the alternative
18
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
"or an accomplice" in that elements instruction) and to provide a definition of
"accomplice liability" in a separate instruction. Each party can then argue its theory
without fear that the jury will convict based upon association, rather than based upon
the defendant's acts and knowledge.
III. Conclusion
I agree with the majority's decision to reverse Walker's conviction due to
prosecutorial misconduct. I respectfully disagree with its statements about the
proper wording of an elements instruction in a case where the court also gives an
accomplice liability instruction. The far better practice is to provide the jury with
the elements of the crime in one instruction, without an either-or clause about who
must commit those elements, and to provide the jury with the definition of
"accomplice liability" in a separate instruction. I therefore concur.
19
State v. Walker (Odies Delandus), No. 89830-8
(Gordon McCloud, J., Concurring)
20