State Of Washington, Res./cross-app. v. Odies D. Walker, App./cross-res. ( 2013 )

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000i;- OF APPEALS
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2013 DEC $
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IN THE COURT OF APPEALS OF THE STATE OF WA ING101
DIVISION II
EF
STATE OF WASHINGTON, No. 41970 -0 -II
Respondent /
Cross Appellant,
V.
ODIES DELANDUS WALKER, PUBLISHED IN PART OPINION
Appellant /
Cross
PENOYAR, J. A jury convicted Odies Walker of first degree murder, first degree
assault, first degree robbery, solicitation, and conspiracy for his role in the murder and robbery of
an armored truck driver inside a Walmart. Walker appeals his convictions, arguing that the " to
convict" premeditated murder instruction violated his due process rights because it allowed the
jury to convict him as an accomplice without proving that the principal committed all of the
elements of the crime. Because accomplice liability law allows a jury to convict participants
without unanimously determining which participants satisfied which elements of the crime, we
hold that the jury instructions were not erroneous.
In the unpublished portion of the opinion, we address Walker' s additional arguments that
1) the prosecutor committed numerous instances of misconduct and ( 2) his trial counsel was
ineffective for failing to request a cautionary instruction on accomplice testimony and for failing
to object to the prosecutor' s misconduct. We also consider Walker' s statement of additional
grounds ( SAG) arguing that the trial court erred by denying his motion for a CrR 3. 6 hearing.
We hold that none of the alleged prosecutorial misconduct committed requires reversal, counsel
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was not ineffective, and the trial court correctly denied Walker' s CrR 3. 6 motion because the
items to be suppressed were within the scope of a valid search warrant.' We affirm.
FACTS
I. BACKGROUND
In June 2009, Calvin Finley and Marshawn Turpin killed and robbed an armored truck
driver inside the Lakewood Walmart. Finley shot and killed Kurt Husted, a Loomis armored
truck driver who was picking up the store' s daily earnings. The bullet went through Husted and
struck a bystander, injuring the bystander' s shoulder. Turpin grabbed the bag of money on
Husted' s cart, and he and Finley fled the store to a white Buick waiting in the parking lot. A
witness later identified Walker, who is Finley' s cousin, as the driver of the Buick, and police
recovered Walker' s fingerprint on the driver' s side seatbelt.
Police were able to trace the Buick because a witness had memorized a partial license
plate number. The Buick was registered to Sartara Williams, the mother of Finley' s child. At
Finley' s request, Williams falsely reported the vehicle stolen in April and gave Finley the keys.
1 The Buick was parked behind Walker' s house under a tarp fora few months, until the robbery in
June. After the robbery, the police found the Buick in an alley behind Finley' s friend' s house.
Neighbors had seen Finley, Walker, and another man in the area that same afternoon. One of the
men was carrying a bag behind his back.
About 30 minutes after the robbery, Walker returned to Walmart to pick up Turpin' s car.
He then went home, where his girl friend, Tonie Williams -Irby, found him watching the news .
when she returned from work.
The State cross appeals, arguing that the trial court erred when it included language in the
aggravating circumstances instruction that is only applicable in death penalty cases. Because we
do not remand, we do not reach this issue on appeal.
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Walker and Williams -
Irby picked their children up from school, then Walker drove to the
alley where the Buick was parked, telling Williams -Irby that he needed to wipe fingerprints off
the car. The Buick was surrounded by police when they arrived, so Walker kept driving.
Walker next drove his family to Al Trevino' s house. On the way, Walker told Williams-
Irby that he was in the Buick and on the phone with Finley during the robbery. When Finley
asked the guard for the money, the guard laughed, so Walker told Finley to " kill the mother
fucker." 8 Report of Proceedings ( RP) at 729.
Turpin Trevino' Walker Walker' family arrived. Walker,
Finley and were at s when and s
Finley, and Turpin went into Trevino' s bathroom and changed clothes. They put their clothes
and a Loomis bag into a black plastic bag. Walker then put two $ 10, 000 bundles of cash in
Williams -
Irby' s purse and gave her $ 2, 500 in cash to pay bills. Walker also threatened Trevino,
telling him that it was " on [ his] life and [ his] family" if he said anything. 10 RP at 1143.
Trevino, Finley, and Turpin left Trevino' s house together. Trevino drove them down
near the river, where he saw Finley run in the direction of the river with the black plastic bag.
Finley did not have the bag with him when he returned to the vehicle. Trevino then drove Finley
to a motel.
Walker left Trevino' s house with his family and drove to the Federal Way Walmart
where he purchased two safes and a Nintendo Wii with cash. Walker gave one safe to Finley
and put the other in the master bedroom closet at Walker' s house. Walker put the $ 20, 000 in
cash into the closet safe. Williams -Irby put the cash Walker had given her for bills in an
envelope that she placed in her dresser drawer. Walker then took his family out to dinner, where
he paid with cash. While at dinner, he told Williams -
Irby' s son, "[ T] his is how you do it. This is
how you murder these niggers and get this money." 8 RP at 773.
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On his way back from the restaurant, Walker was stopped by the police, who had
received a tip that he was involved in -he robbery
t and murder. The police arrested Walker and
Williams -
Irby. They obtained a search warrant for Walker' s house. They found a safe in the
master bedroom closet containing $ 20, 000, an envelope containing $ 900 in the dresser, and
ammunition for a 9 mm handgunthe same type of weapon used to shoot the guard —in the
closet.
During questioning, Walker denied any involvement in the robbery. He admitted that he
had seen the armored truck arrive at Walmart many times while he was waiting to pick up
Williams -
Irby, a manager at Walmart, from her shift. He also admitted that he had been at
Walmart after the robbery to pick up Turpin' s car.
The police arrested Finley the next day in Trevino' s wife' s car. The police searched the
trunk of the car and discovered a safe containing $21, 830 in cash.
II. TRIAL
The State charged Walker as an accomplice with ( 1) aggravated first degree premeditated
murder, ( 2) first degree felony murder further aggravated by a high degree of planning and a
destructive and foreseeable impact on persons other than the victim, ( 3) first degree assault, ( 4)
first degree robbery, ( 5) first degree solicitation to commit robbery,' and ( 6) first degree
conspiracy to commit robbery. The State also sought deadly weapon enhancements for the
murder, assault, and robbery charges.
At trial, Williams -Irby, Darrell Parrott, Jessie Lewis, and Jordan Lopez all testified that
they heard Walker planning to rob the armored truck at Walmart months before June 2009.
Walker had attempted to recruit both Parrott and Lewis for the robbery. In May, Walker asked
Parrott to be back up for Parrott that he have to carry gun. Parrott
Finley, telling would a
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refused. Around the same time, Walker told Lewis about his plan. He told Lewis that Lewis' s
job would be to shoot the guard and that he, Walker, would be the getaway driver. Walker then
drove Lewis and Finley to Walmart to show them how the plan would work. Walker knew the
timing of the armored truck' s arrival and how many guards went into the store each time.
Walker offered both Finley and Lewis guns; Finley took a gun but Lewis refused. Finley and
Lewis entered the store after the guard. Lewis left the store before the guard retrieved the money
because he was nervous about the plan and " knew that someone was going to get killed." 9 RP
at 912. Although Walker did not try to recruit her, Lopez twice overheard Walker discussing his
plans to rob Walmart with Lewis and Finley.
Williams - rby also overheard Walker discussing his plans to rob Walmart on numerous
I
occasions. In February 2009, Walker started asking Williams -Irby, who sometimes attended
Walmart staff meetings where the previous day' s earnings were announced, how much money
the armored truck picked up each day. Walker mentioned that he thought the armored truck
would be " easy money." 7 RP at 656. In March, Williams -
Irby heard Walker yelling at Finley
and someone named Jonathan about the plan to rob Walmart. Walker was angry that it was
taking so long and was worried that Jonathan would make a mistake. He told the others that they
would all go to jail if there was a mistake and that he would get the most time because he
planned it. In April, she heard Walker discussing the robbery with Finley and Turpin. She heard
Walker say that he would be the getaway driver because he was a better driver than the others
and he would be recognized if he entered the store, where he used to work as a greeter. She also
heard Walker and Finley discussing killing the armored truck guard. Walker told Finley to " do
what you got to do" and then he offered Finley a 9 mm handgun. 7 RP at 665. On the morning
of the robbery, Williams - rby called Walker to report Walmart' s earnings for the previous day.
I
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Walker attempted to challenge Williams -Irby' s credibility on cross examination, pointing
out that she had initially told the police that neither she nor Walker was involved in the robbery
and that she had entered a plea deal with the State. Walker repeatedly asked Williams -
Irby if she
had told the State what it wanted to hear. Williams -Irby consistently replied that she knew the
State wanted the truth. She also said " My desire is to tell the truth and get closure for Mr.
Husted' s family." 8 RP at 822. Walker asked, " The truth is determined by [ the prosecutor] isn' t
it ?" 8 RP at 815. Williams -Irby replied that "[ t]he truth is determined by what happened" and
that she was " telling the truth whether [ the prosecutor] want[ s] to hear it or not." 8 RP at 815,
818.
The jury found Walker guilty as charged. The jury also found that the State had proven
all of the alleged aggravating circumstances and that Walker or an accomplice was armed with a
firearm during the murder, assault, and robbery. The trial court sentenced Walker to life plus
2
303 months. Walker appeals his convictions. The State cross appeals, arguing that the trial
court erred in its jury instructions.
ANALYSIS
PREMEDITATION JURY INSTRUCTIONS
First, Walker argues that the trial court' s premeditation instructions violated his due
process rights because ( 1) they relieved the State of its burden of proving the charged crime and
2) they violated his right to a unanimous verdict. Specifically, he asserts that the trial court' s
premeditation instructions were erroneous because, under the first degree murder and accomplice .
liability statutes, the State had to prove that Finley, the shooter, had premeditated intent to kill
the guard and, here, the instructions allowed the jury to find Walker guilty if it found either he or.
2 The trial court merged the two murder convictions for sentencing.
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Finley had premeditated intent to kill the guard. We hold that the trial court' s instructions
properly stated accomplice liability law.
We review jury instructions de novo. State v. Levy, 156 Wash. 2d 709, 721, 132 P. M . 076
1
2006). Jury instructions are sufficient if, when read as a whole, they accurately state the law,
are not misleading, and permit each party to argue its theory of the case. State v. Clausing, 147
Wash. 2d 620, 626, 56 P.3d 550 ( 2002).
Under the first degree premeditated murder statute, the State must prove that the
defendant, with premeditated intent, caused the death of another person. RCW 9A.32. 030( 1)( a).
A person may be liable for the acts of another if he acts as an accomplice. RCW 9A.08. 020. A
person is an accomplice if, with knowledge that it will promote or facilitate the commission of a
crime, he solicits, commands, encourages, or requests another person to commit the crime or aids
or agrees to aid another in planning or committing the crime. RCW 9A.08. 020( 3)( a).
The trial court gave the following instructions regarding premeditation: " 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." CP at 213.
To convict the defendant of the crime of premeditated murder in the first
degree, count I, each of the following elements of the crime must be proved
beyond a reasonable doubt:
1) That on or about 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 ....
CP at 216. Neither party objected to these instructions at trial.
Division One of this court has upheld similar jury instructions involving accomplice
liability. In State v. Haack, the State charged the defendant with first degree assault after he and
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his brother both attacked the victim. 88 Wn. App. 423, 429 -30, 958 P.2d 1001 ( 1997). The trial
court instructed the jury that, to convict the defendant, it must find that " the defendant or an
accomplice assaulted [ the victim]" and that " the defendant or an accomplice acted with intent to
inflict great bodily harm." Haack, 88 Wn. App. at 427 ( emphasis omitted). The defendant
argued that this instruction allowed the jury to convict by splitting the elements of the crime
between himself and his brother. Haack, 88 Wash. App. at 427. Division One agreed but held that
the instructions were not an incorrect statement of accomplice liability law. Haack, 88 Wash. App.
at 427. The court stated that the jury could convict all of the participants in a first degree assault
if the State proved that a life -
threatening injury was caused by one of the participants and that at
least one of the participants intended to inflict life -
threatening harm; the State did not have to
prove which participant actually inflicted the injury. Haack, 88 Wash. App. at 428; see also State
v. Hoffman, 116 Wash. 2d 51, 84 -85, 104, 804 P.2d 577 ( 1991) ( affirming defendants' first degree
murder convictions even though instructions allowed the jury to convict if they found either
defendant had premeditated the shooting; the jury did not have to unanimously agree which
defendant was the accomplice or principal).
Walker attempts to distinguish Haack, but his argument is not persuasive. He argues that
in Haack, there was evidence that the principal both had the necessary intent and actually
committed the assault, whereas here, the evidence proved that Finley was the shooter and Walker
had premeditated intent. This distinction is inapposite for two reasons. First, there is evidence
from find that Finley had intent. Several witnesses
which the jury could also premeditated
testified that they overheard Walker and Finley discussing the robbery, including the fact that
someone would shoot the guard. Irby heard Walker tell
Williams - Finley " do what you got to
7 RP 665. Walker Finley with a loaded gun that
do" in regards to killing the guard. at provided
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Finley carried into Walmart both the time that he entered with Lewis and did not attempt the
robbery and the day of the murder. See State v. Ra, 144 Wash. App. 688, 703, 175 P.3d 609 ( 2008)
listing the planned presence of a weapon at the scene of the crime as one circumstance
supporting premeditation).
Second, even if the jury did " split the elements of the crime" between Finley and Walker,
this was not an error under accomplice liability law. Appellant' s Br. at 48. The jury needs only
to conclude unanimously that both the principal and the accomplice participated in the crime; it
does not need to unanimously conclude as to the manner of their participation. Hoffman, 116
Wash. 2d at 104. Therefore, as the Haack court stated, the jury could convict all participants of a
crime, even the lookout, as long as the State proved that at least one participant committed the
criminal act and one participant —not necessarily the same one — possessed the required intent.
88 Wash. App. at 429. Nor does it matter that the evidence clearly showed that Finley, not Walker,
performed the actual shooting.
The legislature has said that anyone who participates in the commission of a
crime is guilty of the crime and should be charged as a principal, regardless of the
degree or nature of his participation. Whether he holds the gun, holds the victim,
keeps a lookout, stands by ready to help the assailant, or aids in some other way,
he is a participant. The elements of the crime remain the same.
State v. Carothers, 84 Wash. 2d 256, 264, 525 P.2d 731 ( 1974), overruled on other grounds by
State v. Harris, 102 Wash. 2d 148, 685 P.2d 584 ( 1984).
The trial court' s instructions were correct statements of accomplice liability law and did
not deny Walker his due process. There was no need for a unanimity instruction where
accomplice liability allows a jury to convict as long as it finds that the elements of the crime
were met, regardless of which participant fulfilled them.
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A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for public
record in accordance with RCW 2. 06. 040, it is so ordered.
I. PROSECUTORIAL MISCONDUCT
Next, Walker argues that prosecutorial misconduct denied him a fair trial. We disagree.
He points to several instances during opening and closing arguments where the prosecutor
allegedly made prejudicial statements. Although some of the statements were improper, none of
them affected the outcome of the trial.
A. Standard of Review
A defendant who alleges prosecutorial misconduct bears the burden of proving that, in
the context of the record and circumstances of the trial, the prosecutor' s conduct was both
improper and prejudicial. State v. Thorgerson; 172 Wash. 2d 438, 442, 258 P.3d 43 ( 2011). A
defendant establishes prejudice by showing a.substantial likelihood that the misconduct affected
the jury verdict. Thorgerson, 172 Wash. 2d at 443. Where the defendant fails to object to the
prosecutor' s improper statements at trial, such failure constitutes a waiver unless the prosecutor' s
statement is "`` so flagrant and ill-intentioned that it causes an enduring and resulting prejudice
that could not have been neutralized by a curative instruction to the jury. "' State v. Dhaliwal,
150 Wash. 2d 559, 578, 79 P.3d 432 ( 2003) ( quoting State v. Brown, 132 Wash. 2d 529, 561, 940 P.2d
546 ( 1997)).
In determining whether the -misconduct warrants reversal, we consider its prejudicial
nature and cumulative effect. State v. Boehning, 127 Wash. App. 511, 518, 111 P.3d 899 ( 2005).
We review a prosecutor' s remarks during closing argument in the context of the total argument,
the issues in the case, the evidence addressed in the argument, and the jury instructions.
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Dhaliwal, 150 Wash. 2d at 578. It is not misconduct to argue that the evidence fails to support the
defense' s theory, and the prosecutor is entitled to make a fair response to the defense' s
arguments. State v. Russell, 125 Wash. 2d 24, 87, 882 P.2d 747 ( 1994).
B. Opening Statement
First, Walker argues that the prosecutor committed misconduct by calling Walker a liar
during opening statements. But the prosecutor was stating what the evidence was expected to
show —that Walker lied to police. This conduct is distinguishable from situations where the
prosecutor improperly opined about the defendant' s veracity; the prosecutor' s comments here
were not misconduct.
In his opening statement, 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.
Supp. RP at 48. Walker did not object to this comment at trial.
The prosecutor may not give his personal opinion about the credibility of a witness. State
v. Copeland, 130 Wash. 2d 244, 290, 922 P.2d 1304 ( 1996). But during an opening statement, the
prosecutor may state what the State' s evidence is expected to show. State v. Magers, 164 Wash. 2d
174, 191, 189 P.3d 126 ( 2008).
Walker argues that this remark is similar to the prosecutor' s remark in State v. Reed, 102
Wash. 2d 140, 145 -46, 684 P.2d 699 ( 1984). In Reed, another first degree murder case, the
Supreme Court held that the prosecutor committed reversible misconduct when he called the
defendant a liar four times, stated that the defense did not have a case and that the defendant was
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clearly guilty, and implied that defense witnesses were untrustworthy because they were from
out of town. 102 Wash. 2d at 145 -46. The defendant objected to all of these comments at trial.
Reed, 102 Wash. 2d at 144. The court held that these comments were improper and that they
prejudiced the defendant, focusing on the prosecutor' s attacks on the defense witnesses. Reed,
102 Wash. 2d at 147. The court also noted that the State' s evidence was not overwhelming,
contributing to the likelihood that the comments affected the jury' s decision. Reed, 102 Wash. 2d
at 147.
Here, the prosecutor' s remark was not misconduct. The prosecutor stated what the
State' s evidence was expected to show. The State' s evidence, including Williams -
Irby' s
testimony, was expected to show that Walker was involved in the robbery and murder and that
he lied to the police when he said he was not. Further, this case is distinguishable from Reed.
Unlike the defendant in Reed, Walker did not object to the prosecutor' s arguments. Therefore,
Walker must meet a higher standard to show error— flagrant and ill intentioned misconduct—
than the defendant in Reed. And, in Reed, the prosecutor baldly asserted that the defendant was a
liar, telling the that the defendant " t tell the truth torture." 102 Wash. 2d at 143.
jury couldn' under
Here, the prosecutor was stating what the State' s evidence was expected to show.
Even assuming the prosecutor' s statement was misconduct, there is not a substantial
likelihood that it affected the jury' s verdict. The statement attacked Walker' s credibility, but his
credibility was not an issue at trial. Walker did not testify, and his argument was that the State' s
evidence was only circumstantial and its witnesses were not credible. Therefore, any statements
about Walker' s own credibility would not have affected the jury' s verdict.
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C. PowerPoint
Next, Walker argues that the prosecutor committed misconduct by expressing a personal
opinion of Walker' s guilt through a PowerPoint presentation during closing arguments. Under In
re Personal Restraint of Glasmann, 175 Wash. 2d 696, 286 P.3d 673 ( 2012), it was improper for
the State to opine about Walker' s guilt, but, given the facts of this case, this misconduct did not
affect the outcome of the trial.
The State' s closing argument presentation included several slides with text imposed over
pictures of Walker. The second slide of the presentation is Walker' s booking photo with the
words " SHOOT THE MOTHER FUCKER" imposed over it. Ex. 243, at 1. Toward the end of
the presentation, the prosecutor included two other booking photos, one with " GUILTY
BEYOND A REASONABLE DOUBT" imposed on it and one with " we are going to beat this"
imposed on it. Ex. 243, at 87, 89. The presentation also includes a picture of Walker and his
family out at dinner with " THIS IS HOW YOU MURDER AND ROB NIGGERS NEXT TIME
IT WILL BE MORE MONEY" written under it, and a picture of cash on a table with " MONEY
IS MORE IMPORTANT THAN HUMAN LIFE" imposed on it. Ex. 243, at 5, 89.
Additionally, about half of the slides have the heading " DEFENDANT WALKER GUILTY OF
PREMEDITATED MURDER." Ex. 243, at 6.
In Glasmann, the Supreme Court reversed the defendant' s convictions after the
prosecutor improperly presented the jury with multiple copies of the defendant' s bloody booking
photograph with text questioning the defendant' s veracity and stating that the defendant was
GUILTY, GUILTY, GUILTY." 175 Wash. 2d at 706. The Court determined that the multiple
altered photographs were improper because the prosecutor' s modification of the photographs
was the equivalent of submitting unadmitted evidence to the jury. Glasmann, 175 Wash. 2d at 706.
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Although the booking photograph had been admitted into evidence, the prosecutor had modified
the photograph by adding text asking " DO YOU BELIEVE HIM?" and " WHY SHOULD YOU
BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?" and proclaiming that the
defendant was " GUILTY." Glasmann, 175 Wash. 2d at 706. Noting that " it is improper to present
evidence that has been deliberately altered in order to influence the jury' s deliberations," the
court determined that the photographs may have affected the jury' s feelings about the need to
strictly observe legal principles and the care it must take in determining the defendant' s guilt.
Glasmann, 175 Wash. 2d at 706.
Moreover, the modified photographs were inappropriate expressions of the prosecutor' s
opinion of the defendant' s guilt. Glasmann, 175 Wash. 2d at 706. Because the case law and
professional standards make it clear that the prosecutor' s conduct— submitting prejudicial and
unadmitted evidence to the jury and commenting on the defendant' s guilt —was improper and
because these standards were available to the prosecutor before trial, the court held that the
prosecutor engaged in misconduct. Glasmann, 175 Wash. 2d at 706 -07.
The Glasmann court further determined that the misconduct was so pervasive that it
could not be cured with a jury instruction. 175 Wash. 2d at 707. The court reasoned that "[ h] ighly
prejudicial images may sway a jury in ways that words cannot." Glasmann, 175 Wash. 2d at 707.
Therefore, it may be difficult to overcome the images with a jury instruction. Glasmann, 175
Wash. 2d at 707. Additionally, the court held that there was a substantial likelihood that the
misconduct affected the verdict. Glasmann, 175 Wash. 2d at 708. The defendant had produced
evidence that he lacked the opportunity and capacity to form the necessary intent to commit the
charged crimes, and, absent the misconduct, the jury might have believed the defendant' s theory.
Glasmann, 175 Wash. 2d at 708.
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Here, the State engaged in improper conduct. Like in Glasmann, ' the prosecutor
submitted modified photographs to the jury that were not admitted as evidence during the trial.
Although some of the pictures included quoted testimony, neither party introduced into evidence
a booking photograph of Walker with text written over or underneath it. As in Glassman, these
deliberately altered photographs may have affected the jury' s feelings about strictly observing
legal principles. Additionally, the prosecutor in this case improperly expressed their opinion on
Walker' s guilt by titling many of their slides " DEFENDANT WALKER GUILTY OF
PREMEDITATED MURDER" and
by writing " GUILTY BEYOND A REASONABLE
DOUBT" over Walker' s booking photograph. Ex. 243, at 6, 87. As the Glasmann court noted, a
prosecutor may not use his position as prosecutor to attempt to sway the jury. 175 Wash. 2d at 706.
Finally, the State appealed to the jury' s emotions by showing pictures of the stolen cash and
Walker at dinner with his family with prejudicial quotes written across them. The prosecutor had
notice before trial through professional standards and case law that this conduct was improper.
See Glasmann, 175 Wash. 2d at 706 -07 ( citing American Bar Association Standards for Criminal
Justice and case law from 2006 and earlier stating that it is improper for a prosecutor to express
his personal opinion of defendant' s guilt); Reed, 102 Wash. 2d at 147 ( holding that the prosecutor
committed misconduct by expressing his personal opinion of defendant' s guilt). The State' s
conduct here was clearly improper under Glasmann.
But Walker has failed to show that there is a substantial likelihood that the improper
conduct affected the jury' s verdict. Our Supreme Court has cautioned that reviewing a claim of
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prosecutorial misconduct is not a matter of determining whether there is sufficient evidence to
convict the defendant. Glasmann, 175 Wash. 2d at 710. Rather, we must determine whether the
misconduct encouraged the jury to base its decision on improper grounds. Glasmann, 175
Wash. 2d at 711.
Here, not only did the State present overwhelming evidence connecting Walker to the
robbery and murder but also this case is distinguishable from cases where the misconduct' s
context required reversal. Therefore, it is unlikely that the slides affected the jury' s decision.
The State had overwhelming evidence connecting Walker to the robbery and murder. Evidence
linked Walker to Finley, Turpin, and the Buick on the day of the robbery. Before the robbery,
several witnesses heard Walker discussing the robbery, including the possibility that a participant
would shoot the guard. Williams -Irby, Trevino, and Parrott all testified about Walker' s actions
after the robbery, including attempting to wipe the prints off the Buick, carrying $ 20, 000 cash,
gloating to his family about the robbery, and threatening Trevino.
Additionally, this case is distinguishable from cases where the State' s misconduct
required reversal because the jury might have believed the defendant' s theory of the case if not
for the misconduct. In Reed, the defendant argued only that he did not have the requisite intent
to commit first degree murder. 102 Wash. 2d at 147. He presented evidence that he was severely
intoxicated at the time of the murder and that he suffered from borderline personality disorders.
Reed, 102 Wash. 2d at 147. In holding that the misconduct required reversal, the court noted that
the State' s evidence was not overwhelming and the defendant' s theory was plausible. Reed, 102
Wn.2drat 147. Similarly, in Glasmann, the defendant argued only that he did not have the
requisite intent and provided evidence supporting his claims that he was intoxicated at the time
of the crimes and that he did,not have the opportunity to form intent. 175 Wash. 2d at 708.
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In both cases, the defendants had presented plausible alternative theories supported by
evidence. By contrast, here, the State' s case was strong and Walker' s theory was not nearly as
plausible as the defendants' theories in Reed and Glasmann. Walker argued that the State' s
evidence was circumstantial and that its witnesses were not credible. However,
only
circumstantial evidence carries the same weight as direct evidence, State v. Varga, 151 Wash. 2d
179, 201, 86 P.3d 139 ( 2004), and much of the witnesses' testimony was corroborated by other
witnesses and evidence. Further, the defendants' arguments in Glasmann and Reed depended on
the defendants' credibility, which the prosecutors in both cases attacked. Here, Walker did not
take the stand and his credibility was not an issue for the jury. Therefore, although we do not
condone the State' s misconduct during closing argument, we affirm because the slides did not
affect the jury' s verdict.
D. Reasonable Doubt Analogies
Walker next argues that the State' s reasonable doubt analogies were misconduct. The
State' s puzzle and railroad tie analogies were not improper. Although the basketball analogy
arguably improperly quantified the level of certainty needed to satisfy the State' s burden, it did
not affect the verdict.
The prosecutor used three analogies to explain the beyond a reasonable doubt standard.
Reasonable doubt is not an impossible standard. It is not magic. Imagine,
if you will, a jigsaw puzzle of the Tacoma Dome. There will come a time when
you are putting that puzzle together, that you will be able to say with some
certainty beyond a reasonable doubt what that puzzle is. The Tacoma Dome.
12 RP at 1393.
You might look at it like this, consider the elements that must be proven —
imagine, if you will, a set of railroad tracks in the countryside. You have the two
steel rails. Those are like the elements that we have to prove. Underneath that,
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supporting those elements, are a whole bunch of railroad ties. Those are like the
individual pieces of evidence that you have in this case....
Well, some of the ties, if you will, some piece of evidence might not be
that strong in You might give little weight to certain testimony or
your mind.
pieces of evidence. Still,
the State can readily prove its case because the
elements, themselves, that which we have to prove are still supported by ample
solid evidence. If you take away, some of the railroad ties, you still have well -
supported rails.
12 RP at 1431 -32.
Now, the defense — because this is March Madness basketball season, I
will use — forgive me for using a sports analogy, but I' ll use a basketball analogy,
okay.
The defense is going to score a bucket or two on occasion. When the State
has scored 40 points to the defendant' s 2 points, that doesn' t mean that there is a
reasonable doubt in the case.
12 RP at 1432 -33. Walker did not object to any of these statements at trial.
We review a prosecutor' s use of an analogy to explain the beyond a reasonable doubt
standard on a case by case basis. State v. Fuller, 169 Wash. App. 797, 825, 282 P.3d 126 ( 2012),
review denied, 176 Wash. 2d 1006, 297 P.3d 68 ( 2013). We have held that the State' s use of an
analogy constitutes prosecutorial misconduct where the State either equates its burden of proof to
making an everyday choice, or quantifies the level of certainty necessary to satisfy the beyond a
reasonable doubt standard. Fuller, 169 Wash. App. at 827; see also State v. Anderson, 153 Wn.
App. 417, 220 P.3d 1273 ( 2009); State v. Johnson, 158 Wash. App. 677, 243 P.3d 936 ( 2010).
But, where the State does not minimize its burden of proof or shift the burden of proof to the
defendant does to the level of misconduct. Fuller,
by use of a puzzle analogy, such use not rise
169 Wash. App. at 826 ( citing State v. Curtiss, 161 Wash. App. 673, 700 -701, 250 P.3d 496, review
denied, 172 Wash. 2d 1012, 259 P.3d 1109 ( 2011)).
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The puzzle example used in this case is nearly identical to the example we held
acceptable in Curtiss. 161 Wn. App. at 700. In both cases, the examples were " analog[ ies] to
describe the. relationship between circumstantial evidence, direct evidence, and the beyond -a-
reasonable - doubt burden of proof." Curtiss, 161 Wn. App. at 700. The puzzle analogy did not
equate. the burden of proof to making an everyday choice or quantify the standard necessary to
satisfy its burden. Similarly, the railroad tie analogy did not shift or trivialize the State' s burden.
The basketball analogy presents a more difficult question. Arguably, with this analogy,
the State improperly quantified the level of certainty needed to satisfy the beyond a reasonable
doubt standard. But, even if this statement was improper, as discussed in the preceding section,
it did not affect the outcome of the trial.
E. Urging Jury to Find the Truth
Walker next contends that the prosecutor' s statements asking the jury to " decide what the
truth is" and telling the jury that " the remedy" is for you to return " true verdicts" were improper.
Appellant' s Br. at 68, 70. It is improper to ask the jury to declare the truth, but this error may be
remedied by a curative instruction. Additionally, it is not improper to ask the jury to return a true
verdict.
In its rebuttal, the State told the jury " it is your job to decide what the truth is" and " you
have to ... tell us the truth of what happened by your verdicts." 12 RP at 1435. It also stated,
the peace and dignity of the people of the state of Washington is offended by the crimes that are
committed, by the defendant' s crimes, the remedy in this public trial is for you to return true
verdicts, finding the defendant guilty as charged." 12 RP at 1438 -39.
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The jury' s role is not to determine the truth of what happened; rather, its role is to
determine whether the State has proved the charged crimes beyond a reasonable doubt. State v.
Emery, 174 Wash. 2d 741, 760, 278 P.3d 653 ( 2012). The prosecutor' s comments asking the jury
to " decide what the truth is" and to " tell us the truth of what happened" suggested an improper
role for the jury. 12 RP at 1435. Therefore, the comments were misconduct.
However, Walker fails to show that he was prejudiced by these comments. In Emery, the
State made similar comments urging the jury to " speak the truth." 174 Wash. 2d at 751. The
Supreme Court held that these comments were improper but that the defendant failed to show the
requisite prejudice. Emery, 174 Wash. 2d at 760. The court stated that the comments were not
inflammatory. Emery, 174 Wash. 2d at 763. The remarks may have confused the jury, but that
have been instruction. Emery, 174 Wash. 2d at 764. Because
confusion could cured by a proper
the defendants had to show that the misconduct could not have been cured by an instruction,
their argument failed. Emery, 174 Wash. 2d at 764. The challenged comments were similar in this
case to those in Emery and the jury was instructed —without objection either at trial or on
appeal — about the State' s burden of proof; therefore, we follow Emery and hold that the
misconduct could be corrected by a jury instruction; thus, Walker' s argument fails.
Additionally, the prosecutor' s statement that the " remedy ... is for you to return true
verdicts" was not improper. 12 RP at 1439. It is improper for the prosecutor to argue that the
to the community deter future law breaking. United States v.
jury should convict protect or
Solivan, 937 F.2d 1146, 1153 ( 6th Cir. 1991) ( quoting United States v. Monaghan, 741 F.2d
1434, 1441 ( D. C. Cir. 1984), cent. denied, 470 U.S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 146
1985)). In State v. Ramos, Division One of this court held that the State committed misconduct
when it asked the jury to convict the defendant to protect the community from drug activities.
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164 Wn. App. 327, 338, 340, 263 P.3d 1268 ( 2011). Here, the State did not ask the jury to
protect the community or deter future law breaking. Instead, it alleged — as in its charging
document —that Walker had committed crimes against the " peace and dignity" of Washington
and asked the jury to find him guilty. 12 RP at 1438. Further, we have held that, although it is
improper to ask the jury to decide the truth, it is not improper to ask the jury to return a true
verdict. See Curtiss, 161 Wash. App. at 701 ( holding that it is not misconduct to urge the jury to
return a just verdict).
F. Comments about Defense Strategy
Walker next contends that the State committed misconduct when it argued that he was
misleading the jury. Because the State' s comments were responses to Walker' s closing
argument, they were not misconduct.
It is improper for the prosecutor to disparagingly comment on defense counsel' s role or
impugn counsel' s integrity. Thorgerson, 172 Wash. 2d at 451. In Thorgerson, the defendant
argued that the State committed misconduct when it accused the defense of engaging in " sleight
of hand" and used disparaging terms like " bogus" and " desperation." 172 Wash. 2d at 451 -52.
Focusing on the State' s use of " bogus" and the " sleight of hand" comment, which the State
planned in advance, the court determined that the State engaged in misconduct. Thorgerson, 172
Wash. 2d at 450, 452. But the court concluded that the misconduct was not prejudicial because it
was not likely to have altered the outcome of the case. Thorgerson, 172 Wash. 2d at 452.
Here, the State' s arguments were not misconduct. First, its comments were in response
to Walker' s closing argument. In his closing argument, Walker urged the jury to have a " healthy
distrust for government" because "[ t] hey are trying to sell you something." 12 RP at 1398. He
discussed to point out weaknesses. He paid
then each witness' s testimony and attempted
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particular attention to Williams -Irby' s testimony, arguing that it was " bought and paid for" by
the State. 12 RP at 1418 -19. On rebuttal, the State addressed some of Walker' s closing
arguments and argued that his characterization of the testimony was misleading and pointed out
facts that he had misconstrued. For example, regarding Williams- Irby' s testimony, the State
said, " The defense stood up here minutes ago and try [ sic] to mislead you again into thinking that
Ms. Williams -Irby only pled guilty after the ante had been upped, after the charges [ had] been
increased. That' s misleading. That' s wrong. What this is, is a desperate attempt to cast doubt."
12 RP at 1427. The State also referred to " desperation by the defense" and " attempts to mislead
you" while discussing testimony that Walker misstated
during closing argument ( i.e., Williams -
Irby never said she was present when Walker bought the 9 mm, she was present when he bought
the . 45; a witness at Walmart never said she saw the Buick' s window down, she said she could
not remember whether it was down). 12 RP at 1427.
Second, although the State did. refer to some of Walker' s attempts to characterize witness
testimony as " desperate," this was not misconduct. This case is distinguishable from
Thorgerson. In Thorgerson, the State used " desperation" to describe defense counsel' s
arguments, but this term was combined with other comments that the court found to be clearly
disparaging. 172 Wash. 2d at 451 -52. In fact, the court focused on the other comments in holding
that the State committed misconduct. Here, there is no other disparaging language that rises to
the level of the language in Thorgerson. Additionally, the Thorgerson court determined that the
State had hand" during the defendant. 172
set up its " sleight of argument cross examination of
Wn. 2d at 452. Here, there is no indication that the State planned its challenged arguments in
advance.
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G. Premeditation Example
Walker next argues that the State misinformed the jury about premeditation. The State' s
premeditation example was not improper, and, even if it was, it was not likely to affect the jury' s
verdict on premeditation.
In its closing argument, the State defined premeditation for the jury and then gave the
following example: " Just by going to— stopping at a stop sign or a railroad crossing, that is
deliberation. You formulate the intent, and then you act." 12 RP at 1376.
Premeditation involves more than a moment in point of time. RCW 9A.32. 020( 1). It is
the " deliberate formation of and reflection upon the intent to take a human life and involves the
mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a
period of time, however short." Hoffman, 116 Wash. 2d at 82 -83.
The State did not misstate the law on premeditation. Although the stop sign example
suggested that premeditated intent could be formed in a short period of time, the State still
informed the jury that some time was required. Before giving its example, the State said,
Premeditation must involve more than a moment of time. The law requires some time, however
long or short, in which it [ sic] a design to kill is deliberately formed." 12 RP at 1376.
Walker additionally asserts that the stop sign example was inapt because few people
deliberate about whether to stop. This mischaracterizes the State' s analogy. As the trial court
noted, the State was referring to the decision to proceed after stopping at a stop sign and
considering whether it is safe to go forward.
Even if the State had misstated the law, any misstatement was cured by the jury
instructions. The court properly instructed the jury regarding premeditation, and we presume
that the jury follows the trial court' s instructions. State v. Southerland, 109 Wash. 2d 389, 391, 745
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P. 2d 33 ( 1987). Moreover, there is not a substantial likelihood that the State' s premeditation
explanation affected the verdict because there was ample evidence of premeditation by both
Walker and Finley. Multiple witnesses testified that they heard Walker and Finley discussing the
the Lewis
robbery beforehand, including the possibility that someone might shoot guard.
testified that he actually went to Walmart with Finley and Walker so they could show him how
the robbery would take place and that Walker offered him and Finley guns before they entered
the store. And, on the day of the actual robbery, Finley entered the store with a loaded gun. See
Ra, 144 Wash. App. at 703 ( listing the planned presence of a weapon at the scene of the crime as
one circumstance supporting premeditation).
H. Cumulative Error
Finally, Walker argues that, if we do not find prejudice in any individual instances of
misconduct, we should find that the misconduct, when taken together, violated his rights to a fair
trial. We may reverse a defendant' s conviction when the combined effect of errors during trial
effectively denied the defendant his right to a fair trial, even if each error standing alone would
be harmless. State v. Weber, 159 Wash. 2d 252, 279, 149 P.3d 646 ( 2006). But, this doctrine does
not where the errors are few and have little or no effect on the outcome of the trial. Weber,
apply
159 Wash. 2d at 279. Here, only some of the conduct complained of was clearly error: the
PowerPoint slides declaring Walker guilty, and the State' s comments telling the jury to " decide
what the truth is." 12 RP at 1435. As discussed above, the improper slides did not affect the
outcome of the case. The added error of the " truth" statements is not enough to establish
cumulative error where these statements did not inflame the jury and they were easily remedied
by the court' s instructions regarding the jury' s duties. This argument fails.
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II. INEFFECTIVE ASSISTANCE OF COUNSEL
Walker next argues that defense counsel was ineffective because counsel failed to request
a cautionary instruction for Williams -Irby' s testimony and failed to object to multiple instances
of prosecutorial misconduct. Because a cautionary instruction is not necessary where the
accomplice' s testimony is corroborated by other evidence and because the State' s errors were not
prejudicial, we disagree.
Strickland3
Under the test, Walker must show that counsel' s performance was deficient
and that this deficient performance prejudiced him. State v. Thomas, 109 Wash. 2d 222, 225 -26,
743 P.2d 816 ( 1987). Performance is deficient only if it "[ falls] below an objective standard of
reasonableness." Strickland, 466 U.S. at 688. Performance is not deficient if counsel' s conduct
can be characterized as a legitimate trial strategy. State v. Kyllo, 166 Wash. 2d 856, 863, 215 P.3d
177 ( 2009). To establish prejudice, the defendant must show a reasonable probability that the
deficient performance affected the outcome of the trial. Thomas, 109 Wash. 2d at 226.
Walker first argues that counsel erred by not requesting a cautionary instruction regarding
accomplice Williams -
Irby' s testimony. Where the State introduces accomplice testimony, it is
4
the " better practice" to give a cautionary jury instruction. State v. Harris, 102 Wash. 2d 148, 155,
685 P.2d 584 ( 1984) overruled on other grounds by State v. Brown, 111 Wash. 2d 124, 761 P.2d
3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).
4
For example, the pattern instruction states:
Testimony of an accomplice given on behalf of the [ State] should be subjected to
careful examination in the light of other evidence in the case, and should be acted
upon with great caution. You should not find the defendant guilty upon such
testimony alone unless, after carefully considering the testimony, you are satisfied
beyond a reasonable doubt of its truth.
11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6. 05, at 184
3d ed. 2008).
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588 ( 1988). Failure to give the cautionary instruction is reversible error when the prosecution
relies solely on accomplice testimony, but if the accomplice testimony was substantially
corroborated by testimonial, documentary, or circumstantial evidence, then the trial court did not
commit reversible error by failing to give the instruction. Harris, 102 Wash. 2d at 155.
Here, counsel was not deficient for failing to request the instruction because Williams-
Irby' s testimony was substantially corroborated by other evidence. Parrott, Lewis, and Lopez all
also testified that they heard Walker planning the robbery beforehand, including the roles each
person would play. Parrott and Trevino corroborated Williams -Irby' s testimony about the events
after the robbery. Other witnesses saw Walker in the Buick in the Walmart parking lot and with
Finley and another man after the robbery. There was also evidence that the Buick was parked at
Walker' s house prior to the robbery, and his fingerprint was found on the driver' s seatbelt.
there is footage Walker purchasing two safes with cash after the robbery. One
Finally, video of
of the safes was found in the car Finley was arrested in and the other was found in Walker' s
house with large amounts of cash in it. Williams -Irby' s testimony was substantially corroborated
by other testimonial, direct, and circumstantial evidence.
Walker next argues that counsel erred by not objecting to the prosecutor' s misconduct.
Again, only a few of the prosecutor' s remarks and actions were actually errors; counsel was not
deficient for failing to object to conduct that was not improper. But the prosecutor did err by
giving personal opinions regarding Walker' s guilt in the closing argument PowerPoint and by
to decide the truth, failed to to both of these errors. Without
asking the jury and counsel object
providing any authority, Walker states that any failure to object to errors that could be cured by a
jury instruction is deficient performance. Assuming this to be true, Walker has still failed to
show any prejudice, even under the " somewhat lower" standard of prejudice used for ineffective
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assistance claims. Strickland, 466 U.S. at 694. The trial court correctly instructed the jury
regarding its duty in the case; therefore, the State' s " truth" comments did not affect the outcome
of the trial. Additionally, given the strength of the State' s evidence, the prosecutor' s closing
argument slides did not affect the outcome of the trial. Accordingly, Walker has failed to show
that counsel was ineffective.
III. STATEMENT OF ADDITIONAL GROUNDS
In his SAG, Walker alleges that the evidence found in his safe should have been
suppressed and that the trial court erred by denying him a CrR 3. 6 hearing. Walker filed a
motion to suppress the evidence from the safe on the Friday before the trial was about to begin.
The trial court denied his motion for two reasons: ( 1) the motion was untimely and ( 2) Walker
failed to establish any basis for suppression because the search was pursuant to a warrant and the
warrant listed items that could be contained in a safe.
Walker argues that the police cannot search a locked container, citing to cases involving
warrantless searches of vehicles and homes. But here, the search involved a house, not a vehicle,
and the police possessed a valid search warrant, which Walker does not challenge. Additionally,
the warrant included items that could fit in a safe. Because the motion would not have been
granted even if the trial court had held a CrR 3. 6 hearing, the trial court did not err by denying
Walker' s motion for a hearing.
IV. STATE' S CROSS APPEAL
In its cross appeal, the State challenges part of the trial court' s aggravating circumstances
instruction. The trial court instructed the jury that
f]or the aggravating circumstance to apply [ to the first degree premeditated
murder charge],the defendant must have been a major participant in acts causing
the death of Kurt Husted and the aggravating factors must specifically apply to
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the defendant' s actions. The State has the burden of proving this beyond a
reasonable doubt. If you have a reasonable doubt whether the defendant was a
major participant, you should answer the special verdict " no."
CP at 250. The State argues that this language was inappropriate because it only applies when
the State is seeking the death penalty, which it did not do here. Although the jury found that the
State met its burden of proving the aggravating factors in this case, the State asks us to hold that
this language is in error and to instruct the trial court to remove this language from the
aggravating circumstances instruction in the event of a remand. Because we affirm the trial
court, there is no need to remand and no need to consider the State' s argument.
Affirmed.
Penoyar,
We concur:
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