State Of Washington, Respondent/cross Appellant V Darcus D. Allen, Appellant/cross Respondent (Majority, Concurrence and Dissent)
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FI . EIS G UN T OF APPEALS 01` 41iS #(-,!rA I 20i' I A IN THE COURT OF APPEALS OF THE STATE OF W DIVISION II ON VA No. 42257 -3 - II STATE OF WASHINGTON, Respondent /Cross Appellant, V. PUBLISHED OPINION DARCUS D. ALLEN, ss A jury convicted Darcus Allen of first degree premeditated murder fof PENOYAR, J. his role in the supports his knowledge motel room murders of four convictions, ( required should for He appeals, arguing that ( 1) insufficient evidence 2) the prosecutor committed misconduct by misstating the level of accomplice have been criminal assistance as a police officers. liability, ( 3) evidence from the warrantless entry into his suppressed, ( lesser included 4) the trial court erred by not including rendering offense, ( 5) his sentence enhancement for crimes against uniformed officers does not apply to accomplices, and ( 6) the trial spectators' t -shirts violated his fair trial right. He also includes a statement of additional grounds ( SAG), arguing insufficient evidence and an invalid sentence enhancement. The State cross appeals, contending that the trial court erred by dismissing Allen' s second degree murder counts for insufficient evidence. There is sufficient evidence that Allen knew his actions were furthering the crime and, although the prosecutor misstated the mental state required for accomplice liability, this did not prejudice the trial' s entry into Allen' of first degree accomplice outcome. Additionally, ( 1) exigent circumstances justified the warrantless s motel room, ( 2) rendering criminal assistance is not a lesser included offense murder as an accomplice, ( because it was based on the 3) the sentence enhancement applied to Allen as an victims' statuses and not his actions, ( shirts did 4) the t - 23 42257 -3 - II not violate his fair trial right because they did not convey a message of innocence or guilt, and 5) the issues in his SAG are meritless. We do not reach the State' s cross appeal because remand is not necessary. We affirm. FACTS This case arises from Maurice Clemmons' s shooting of four Lakewood police officers on November 29, 2009. At about 8 A. M., Clemmons walked into a coffee shop with two guns, a 9 mm Glock and a . 38 caliber semiautomatic Smith and Wesson. He shot and killed four officers and then fled the scene, wounded, in a white truck. Allen was the driver of the truck. In the week before the shooting, Clemmons indicated that he was planning to harm police officers. Allen twice heard Clemmons threaten to harm police if they came looking for him. Both times, he displayed a gun. Allen also knew that Clemmons had cut off his 1 ankle monitor. On the day of the shooting, Clemmons called Allen at 7: 30 A.M. and asked Allen to wash his truck; Allen known gathering coffee shop agreed. place Allen admitted that he and Clemmons drove past the coffee shop, a for police, at receipts, one of the least once on officers was at the the way to the coffee shop by 2 car wash . 7: 55 A. M. According to the The officer' s patrol cars, which were parked at the coffee shop during the shooting, would have been visible from the street. 1 The ankle monitor was a bail condition for a previous offense. 2 The State argues that Allen and Clemmons drove by the coffee shop twice before the shooting. Video footage shows several white trucks passing by the coffee shop before the shooting, but the picture is not clear enough to determine which of the trucks is Clemmons' s. 2 42257 - - II 3 Allen drove the truck to the that there coffee was shop only and one person car wash a in the truck began shooting it when little at a few after minutes after entered 8: 00 the A. M. 8: 00 A. M. A witness testified Clemmons entered the car wash. While Clemmons was at the coffee shop, witnesses saw Allen at the car wash, waving the sprayer at the truck without using water. After the shooting, Clemmons arrived back at the truck on foot. He and Allen got into the truck and quickly left the car wash. They abandoned the truck in a grocery store parking lot, where police found it about an hour after the shooting. Police discovered Allen' s fingerprints on the driver' s side door of the truck Clemmons' and s blood on the passenger side. Police also noted that the truck.was not wet. An an officer hour later, with fatally shot police arrested Clemmons in Seattle in the early morning Allen at the New Horizons Motel in Federal Latanya Clemmons, Clemmons' Proceedings ( RP) ( Apr. 28, 2011) questioning. at of s under sister, the name " December 1. About Way. He was staying Randy Huey." Report of Police transported him to the South Hill Precinct for 3069. Allen told police several versions of what happened on November 29, eventually admitting that he was the driver of the white truck but maintaining that he did not know what Clemmons had done. The State charged Allen with four counts of aggravated first degree murder and four counts of second whether Allen' s degree felony warrantless murder. arrest was The trial court held a CrR 3. 6 hearing to determine It found that valid. exigent circumstances officer safetyjustified the warrantless arrest. During the trial, members of the public arrived wearing t -shirts that said " You will not be forgotten, Lakewood Police" and listed the victims' names. RP ( Apr. 28, 2011) at 3024. objected and asked that the shirts be covered up. The trial court denied Allen' s motion. 3 Allen 42257 -3 -II Allen also requested an instruction on rendering criminal assistance, arguing that it is a lesser included offense of first degree murder as an accomplice. The trial court declined to give the instruction. During accomplice closing argument, the instruction for the liability He jury. as it is used in the defined " knowledge" prosecutor stated, " if a person has information that would lead a reasonable person in the same situation to believe that a fact exists, then the jury is permitted, at 3544. known. "' times but not required, The prosecutor RP ( May during closing to find that that then 12, 2011) added, " at person acted with For 3544 45. shorthand He used we' re going to the phrase " Allen' s and rebuttal argument over knowledge." RP ( May 12, 2011) call should that ` should have have known" several and implied that the jury objections could find Allen guilty as an accomplice if he should have known that Clemmons was going to murder the police officers. The trial jury found court dismissed the Allen guilty of four second degree murder counts counts of premeditated first degree for insufficient evidence. The murder. It also found that the crime was committed against law enforcement officers and that Allen or an accomplice was armed with a firearm at the time of the crimes. The trial court imposed an exceptional 420 year sentence. Allen.appeals. The State cross appeals, arguing that the trial court erred by dismissing the second degree murder counts. ANALYSIS I. INSUFFICIENT EVIDENCE OF KNOWLEDGE Allen first argues that there is insufficient evidence to prove that he knew he was assisting in the police officers commission of a crime. and Allen fled the scene Allen knew that Clemmons was threatening to shoot and hid after the shooting. Because of this and other 42257 -3 - II significant incriminating testimony, there is sufficient evidence to prove that Allen knew he was assisting Clemmons in the murders. Evidence is legally sufficient to support a guilty verdict if any rational trier of fact, viewing the evidence in the light most favorable to the State, could find the elements of the charged crime beyond 1256 ( 2000). We interpret Wn.2d 1, State v. trier of a reasonable doubt. State v. Longshore, 141 Wn.2d 414, 420 -21, 5 P. 3d all reasonable 8, 133 P. 3d 936 ( 2006). inferences in the State' and are not subject to favor. State v. Hosier, 157 Direct and circumstantial evidence carry the same weight. Varga, 151 Wn.2d 179, 201, 86 P. 3d 139 ( 2004). fact s review. State v. Credibility determinations are for the Cantu, 156 Wn.2d 819, 831, 132 P. 3d 725 2006): A person is guilty of a crime committed by another if he is an accomplice to the commission of the crime. RCW 9A.08. 020( 1), ( 2)( A person is an accomplice if, with c). knowledge that it will promote or facilitate the commission of the crime, he solicits, commands, encourages, or requests the other person to commit the crime or aids or agrees to aid the other in planning or committing the crime. RCW 9A.08. 020( 3). A person knows or acts with knowledge when he is aware of facts or circumstances described by a statute defining an offense or he has information that would lead a reasonable person in the same situation to believe that such facts exist. RCW 9A.08. 010( 1)( b). establish accomplice liability. Physical presence and assent, without more, are insufficient to State v. Roberts, 80 Wn. App. 342, 355, 908 P. 2d 892 ( 1996). But the accomplice does not have to have specific knowledge of the elements of the principal' s crime. State v. Hoffman, 116 Wn.2d 51, 104, 804 P. 2d 577 ( 1991); State v. Davis, 101 Wn.2d 654, 655, 682 P. 2d 883 ( 1984) ( holding that the State is not required to prove that the accomplice knew the principal was armed). 5 42257 -3 -II Here, there is sufficient evidence for the jury to find that Allen knew he was assisting Clemmons in the murders. In the week leading up to the murders, Allen twice heard Clemmons Both times, Clemmons had displayed threaten to shoot police officers. a gun. Allen also knew that Clemmons had removed his ankle monitor. On the morning of the murders, Allen and Clemmons drove past the coffee shop, where police cars were parked, one person in the truck before going to the when it pulled car wash. into the car wash. A witness testified that there was only Witnesses then saw Allen waving the sprayer without water coming out of it, and, when the truck was discovered about an hour later, it was not wet. From these facts, the jury could conclude that Allen, knowing about Clemmons' s threats against police, dropped Clemmons off at the coffee shop and was pretending to wash the truck until Clemmons returned from the murders. Moreover, flight may be circumstantial 66 Wn.2d 111, 112, 401 P. 2d 340 ( 1965). evidence of guilty knowledge. State v. Bruton, After the shootings, Clemmons, who had been shot and was bleeding, walked from the coffee shop to the car wash, and he and Allen got into the truck and quickly drove away. couple of miles name " from the Randy Huey." They then abandoned the truck in a grocery store parking lot a 3 and Allen checked into a motel in Federal Way under the car wash , When police found Allen, he demonstrated guilty knowledge by giving several different versions of the events on the morning of the shooting before admitting that he was the driver. There was sufficient evidence for the jury to infer Allen' s knowledge that he was assisting Clemmons in the murders by driving him to and from the coffee shop, and we affirm the jury' s verdict. 3 Although Allen claimed that he got out of the truck a few blocks from the car wash when he noticed Clemmons bleeding, Clemmons' s blood was found only on the passenger side of the truck when the truck was recovered from the grocery store parking lot. 6 42257 -3 -II PROSECUTORIAL MISCONDUCT II. Next, Allen argues that the State committed misconduct by misstating the law regarding the level of knowledge required for liability. Because the trial court' s instructions accomplice correctly stated the law regarding knowledge, any improper argument by the prosecutor was not prejudicial. We affirm. In closing argument, after first correctly stating the knowledge instruction, the prosecutor repeatedly used the phrase " should have known" when discussing accomplice liability. Allen objected, but the trial court overruled his objections. The prosecutor again made several " should have known" comments in rebuttal argument, and again the trial court overruled Allen' s objections. During deliberation, the jury asked the court " If someone ` should have known' does that make them an accomplice ?" Clerk' s Papers ( CP) at 2014. After seeking input from both counsel, the trial court referred the jury to its existing instructions. The trial court had instructed the jury that The lawyers' remarks, statements, and arguments are intended to help you understand the evidence and apply the law. It is important, however, for you to remember that the lawyers' statements are not evidence. The evidence is the testimony and the exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argument that is not supported by the evidence or the law in my instructions. CP at 2017. The trial court had also instructed the jury that A person knows or acts knowingly or with knowledge with respect to a fact or circumstance when he or she is aware of that fact or circumstance. If a person has information that would lead a reasonable person in the same situation to believe that a fact exists, the jury is permitted but not required to find that he or she acted with knowledge of that fact. When acting knowingly is required to establish an element of a crime, the element is also established if a person acts intentionally. 7 42257 -3 -II CP at 2026. Neither party objected to these instructions. To establish a prosecutorial misconduct claim, the defendant must prove that, in the context of the record and circumstances of the trial, the prosecutor' s conduct was both improper and prejudicial. But Allen In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012). asks us to apply divergent a standard of review. He contends that we should instead apply the constitutional harmless error standard, which requires the State to prove beyond a reasonable doubt that its misconduct did not contribute to the verdict. Our Supreme Court rejected a similar argument in State v. Emery, 174 Wn.2d 741, 757, There, the defendants argued for the constitutional harmless error 278 P. 3d 653 ( 2012). standard, alleging that the prosecutor' s remarks violated their right to the presumption of innocence and shifted the burden of proof. Emery, 174 Wn.2d at 756. The court declined to adopt the constitutional harmless error standard, reasoning that it had previously refused to adopt the standard under similar circumstances where the misconduct did not directly violate the defendant' s constitutional rights. Emery, 174 Wn.2d at 757; see State v. Warren, 165 Wn.2d 17, 26 n. 3, 195 P. 3d 940 ( 2008) ( declining to apply the constitutional harmless error analysis where the error involved counsel' s argument over the application of instructions on reasonable doubt and the burden of proof and the error could be cured with a jury instruction and distinguishing this misconduct from that of a prosecutor violating the defendant' s Easter, 130 Wn.2d 228, 234, 242, 922 P. 2d 1285 ( 1996) ( right to silence); State v. applying the constitutional harmless error analysis where the defendant' s right to silence had been violated by testimony and closing argument not regarding defendant' involve racial applying the bias, see, constitutional arrest silence). s pre - e. g., State harmless v. Monday, The court also noted that the misconduct did 171 Wn.2d 667, 680, 257 P. 3d 551 ( 2011) error standard where the prosecutor deliberately injected 42257 -3 - II racial bias into closing argument), and the misconduct occurred during closing argument and could not be likened to instructional error. Emery, 174 Wn.2d at 757 -59. The same reasoning is applicable in this case. Similar to the defendants in Emery, Allen alleges that the State' s comments eliminated its burden of proof. The Supreme Court has twice declined to apply the constitutional harmless error analysis where the defendants have not that the alleged misconduct Warren, 165 Wn.2d during at n. 3. 26 argument closing directly violated a constitutional right. Emery, 174 Wn.2d at 757; Further, the misconduct did not involve racial bias and it occurred and did involve not an instructional error. Accordingly, the constitutional harmless error standard does not apply here. Under the established standard of review, we first consider whether the prosecutor' s remarks were Glasmann, 175 Wn.2d improper. at 703. The prosecutor argued multiple times during closing argument that the jury could find that Allen had knowledge that his actions were Clemmons' furthering crime s if Allen " should have known" his actions were furthering .the crime. These statements were accompanied by PowerPoint slides that also contained the " should have known" language.4 Allen objected to the phrase as a misstatement of the law, but the trial court overruled should required his objections. have known" to as The State admits that it was improper for the prosecutor to use shorthand for knowledge. find knowledge if the defendant " should Resp' t' s Br. at 16 -17. The jury is not have known "; instead, it is permitted to find knowledge if the defendant has information that would lead a reasonable person in the same situation to believe that such facts exist. State v. Shipp, 93 Wn.2d 510, 514, 610 P. 2d 1322 1980). We agree that the prosecutor' s comments were improper. 4 Several of the slides are titled " Should Have Known" and one slide crosses out the words Premeditate, Intend, Purpose, Plan, Want, Hope, Care, Know" Known." Ex. 351, at 5, 6. 9 and leaves " Should Have 42257 -3 - II Next, we must decide whether the prosecutor' s improper remarks prejudiced Allen. Glasmann, 175 Wn.2d at 704. A defendant establishes prejudice by showing a substantial likelihood that the misconduct the affected jury Glasmann, 175 Wn.2d verdict. at 704. In determining whether the misconduct warrants reversal, we consider its prejudicial nature and cumulative effect. State v. Boehning, 127 Wn. 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 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003). the jury instructions. State v. Dhaliwal, We presume that the jury followed the court' s instructions. State v. Russell, 125 Wn.2d 24, 84, 882 P. 2d 747 ( 1994). We have considered a number of factors in assessing the likely prejudicial effect of the prosecutor' s improper argument. First, knowledge was a key issue here and the State repeatedly misstated the law regarding knowledge during its closing argument, incorrectly emphasizing should have known" argument. as the standard for knowledge. And Allen properly objected to this Further, the jury' s question during deliberation reflects that at least some jurors focused on the State' s " should have known" argument.5 On the other hand, the jury instructions correctly instructed the jury on knowledge and stated that the law is contained in the instructions and not the lawyer' s arguments. Additionally, the State initially correctly stated the knowledge instruction during closing. argument and argued throughout closing argument that Allen actually knew his actions were facilitating Clemmons' s 5 Allen also urges us to consider juror affidavits in deciding this issue. But a court may not consider an affidavit that relates to a factor that inheres in the verdict. State v. Gobin, 73 Wn.2d 206, 211, 437 P. 2d 389 ( 1968). A factor inheres in the verdict if it concerns the jurors' mental processes, such as their motives, P. 2d 1083 ( 1985) ( quoting State intents, v. or beliefs. State v. Hatley, 41 Wn. App. 789, 793, 706 Crowell, 92 Wn.2d 143, 146, 594 P. 2d 905 ( 1979)). Here, the affidavits relate to the jurors' mental processes in reaching the verdict; therefore, we do not consider the affidavits. 10 42257 -3 - II accompanying this crime, argument with evidence supporting his knowledge. Notably, the prosecutor focused on facts known to Allen: Allen twice heard Clemmons threaten to harm police if they came after him; Clemmons displayed a gun when making those threats; Clemmons had cut off his ankle monitor; Allen drove the truck past the coffee shop where the police cars were visible; Allen waited at the car wash waving the sprayer at the truck without using any water; and Allen quickly drove from the car wash when Clemmons, bleeding from a gunshot The State also made some references to what a reasonable person would have wound, returned. known. The State did not argue that any inference was mandatory. And during his closing argument, Allen countered the State' s " should have known" argument by telling the jury " Well, read those entire instructions. He closing needed the argument, to know." nuances of RP ( May 12, 2011) what Allen " should at 3604. In the context of the have known" versus what a reasonable person would have known based on the information known to Allen likely had no prejudicial impact on the jury. Finally, the trial court redirected the jury to the instructions, which properly stated the law, in response to its question regarding " should have known." We also note that Allen could have requested specific curative instructions, such as an instruction specifically referring to the knowledge instruction with the correct statement of law or an instruction directly refuting the prosecutor' s misstatement. Not acting on this opportunity to rectify the error, Allen agreed to the trial court' s proposal of simply referring the jury back to the legally correct instructions already given. A clear curative instruction could have eliminated any possible confusion and cured any potential prejudice stemming from the prosecutor' s improper remarks. 11 42257 -3 -II Considering all of these factors and the context of the total argument, we conclude that there is not a substantial likelihood that the prosecutor' s misstatement affected the jury verdict. We will not reverse on this record. SUPPRESSION III. Next, Allen argues that the trial court erred by failing to suppress evidence arising from the officers' warrantless entry into Allen' s hotel room and Allen' s warrantless arrest. Because exigent circumstances justified the officers' entry and Allen' s arrest, we affirm the trial court' s denial of Allen' s suppression motion. Allen does not challenge any of the trial court' s findings of fact from the suppression hearing. 6 Unchallenged findings We P. 2d 313 ( 1994). 154" Wn.2d Gaines, are verities review conclusions of 711, 716, 116 on appeal. law from State v. Hill, 123 Wn.2d 641, 644, 870 a suppression Allen P. 3d 993 ( 2005). hearing de challenges novo. the trial State v. court' s conclusions that exigent circumstances justified his detention and that it was reasonable for the officers to not take chances with their own safety. At the suppression hearing, police testified that they learned of Allen' s involvement in the shootings and his current location from informants. Based on this information, police went to room 25 of the New Horizons Motel in Federal Way, where Allen was allegedly staying, to question receipt copy him. for of a They room driver' 25, s did not have a warrant. which was registered license with Allen' s to " At the motel, police asked the manager for the Randy Huey" one picture on 6 it. CP at 807. of Allen' s aliases and had a They knocked on the door of Allen assigns error to four of the trial court' s " Reasons for Admissibility or Inadmissability of finding[ s] of fact." CP at 811, Appellant' s Br. at 2 -3. But all of the reasons are conclusions of law relating to exigent circumstances and the reasonableness the Evidence" " to the extent [ they are] of the police' s conduct rather than findings of fact. 12 42257 -3 - II room 25 and announced Allen inside the said " I knew room, you were their sitting presence, and on coming bed the and Latanya Clemmons next to some pillows. coming hard." CP at 808. opened the door. Officers saw When he saw the officers, Allen The officers could not see Allen' s hands and he appeared to be moving toward the pillows, so a SWAT team entered the room and Officers then placed him in a patrol car and drove him to the precinct for handcuffed him. questioning. In the absence of exigent circumstances, the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a suspect' s home in order to arrest the suspect. State Eserjose, 171 Wn.2d 907, 912, 259 P. 3d 172 ( 2011) ( v. York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 ( 1980)). similarly entitled to citing Payton v. New A guest in a hotel room is constitutional protection against warrantless searches. Stoner v. California, 376 U. S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856 ( 1964). Washington courts have held that danger to [ the] arresting v. officer or to the public "' can constitute an exigent circumstance. State Smith, 165 Wn.2d 511, 517, 199 P. 3d 386 ( 2009) ( quoting State v. Counts, 99 Wn.2d 54, 60, 659 P. 2d 1087 ( 1983)). The State bears the burden of proving that the exigent circumstances exception applies. i Smith, 165 Wn.2d circumstances at 517. by looking at We determine whether the evidence supports a finding of exigent the totality of the situation. Smith, 165 Wn.2d at 518. We consider six factors in analyzing the situation: 1) the gravity or violent nature of the offense with which the suspect is to be is reasonably believed to be armed; ( 3) whether there is reasonably trustworthy information that the suspect is guilty; ( 4) there is strong reason to believe that the suspect is on the premises; ( 5) a likelihood that charged; ( 2) whether the suspect the suspect will escape if not swiftly apprehended; and ( 6) the entry is made peaceably. 13 r 42257 -3 -II State Cardenas, 146 Wn.2d 400, 406, 47 P. 3d 127 ( 2002). v. Because we analyze the totality of the situation, the State does not have to prove all six factors to show that exigent circumstances existed. Smith, 165 Wn.2d at 518. the evidence supports the finding that exigent circumstances permitted the Here, warrantless entry and Allen' s The arrest. offense the shooting of four police officers was extremely grave and violent, and the arresting officers had information from multiple sources indicating that Allen was involved. Although some of the officers knew that Clemmons had been killed before they entered Allen' s motel room, Clemmons' s death did not decrease the gravity of his crimes or the officers' perception of Allen' s involvement in them. And, because Allen' s hands were not visible and he appeared to be reaching for something under the pillows, the officers strong could reason have reasonably believed he to believe that Allen was on the was reaching for a gun. Further, there was a an informant told police he was in premises room 25 at the motel, police found his alias on a receipt for room 25, and the driver' s license picture from the officers' entry receipt matched was relatively the police' s picture of peaceable. him. Finally, there is evidence that the The officers knocked and announced their presence, then waited for someone to answer the door before entering the room. See Cardenas, 146 Wn.2d at 408 ( holding that police entered a motel room peaceably when they were in uniform, announced their presence, and entered through an unlocked window). Police did not know whether Allen was armed, and there was no evidence that Allen was attempting to escape the motel room. But even if these two factors were not met, given the totality of the circumstances, including Allen' s involvement in the shooting of four uniformed officers and simultaneous statement that he knew the officers were coming and " coming hard," 14 42257 -3 - II exigent circumstances justified the police officers' warrantless entry and Allen' s arrest. Therefore, the trial court correctly denied Allen' s suppression motion. IV. LESSER INCLUDED OFFENSE Allen contends that the trial court erred by refusing to instruct the jury on rendering criminal assistance as a lesser included offense of first degree murder as an accomplice. Because the elements of rendering criminal assistance are not necessary elements of the charged offense, this argument fails. We apply a two -prong test to determine whether a defendant is entitled to a lesser included offense instruction: first, each element of the lesser offense must be a necessary element of the charged offense; second, the evidence must support an inference that the lesser crime was committed. State v. Sublett, 176 Wn.2d 58, 83, 292 P. 3d 715 ( 2012). We view the evidence in the light most favorable to the party requesting the instruction. Sublett, 176 Wn.2d at 83. Under RCW 9A.76. 050, a person " renders criminal assistance" if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person_who he or she knows has committed a crime or juvenile offense or is being sought by law enforcement officials for the commission of a crime or juvenile offense or has escaped from a detention facility, he or she: 1) Harbors or conceals such person; or 2) Warns such person of impending discovery or apprehension; or 3) Provides such person with money, transportation, disguise, or other means of avoiding discovery or apprehension; or 4) Prevents or obstructs, by use of force, deception, or threat, anyone from performing an act that might aid in the discovery or apprehension of such person; or 5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person; or 6) Provides such person with a weapon. 15 42257 -3 - II A person is guilty of a crime as an accomplice if, with knowledge that it will promote or facilitate the commission of the crime, he solicits, commands, encourages, or requests another to the commit crime or aids in planning or committing the crime. RCW 9A.08. 020( 1), ( 2), ( 3)( a). The elements of rendering criminal assistance are not necessary elements of first degree murder as an accomplice because both the mental states and the required acts differ for each Rendering offense. criminal assistance requires a greater only knowledge. degree of culpability intent than Compare RCW 9A.76. 050 with RCW accomplice liability, 9A.08. 020. Further, rendering criminal assistance requires proof of the defendant' s acts after a which requires crime has been committed, but a person is guilty as an accomplice if he assists in the planning or commission of the acts which do not necessarily require assistance after the fact. crime, Compare RCW 9A.76. 050 with RCW 9A.08. 020. The trial court correctly denied Allen' s lesser included offense instruction. V. AGGRAVATING FACTOR Next, Allen challenges the trial court' s application of an aggravating factor to enhance his sentence, asserting that the accomplice liability statute cannot be the basis for imposing a sentence enhancement. Because the enhancement statute at issue here refers to the victims' statuses rather than the defendant' s acts, we hold that the enhancement was properly applied to Allen. The jury found the following aggravating factor under RCW 9. 94A. 535( 3)( v): the crime was committed against law enforcement officers who were performing their official duties at the time of the crime and the defendant knew the victims were court used this finding to impose an exceptional sentence. 16 law enforcement officers. The trial 42257 -3 -II Washington courts have recognized that the accomplice liability statute itself cannot be the basis for imposing a sentence enhancement because it imposes liability only for the crime of and another, sentence 661, App. 653, enhancements do 164 ( 2010). 226 P. 3d not define crimes. Therefore, " State v. Pineda Pineda, 154 Wn. the authority to impose a sentencing enhancement on the basis of accomplice liability must come from the specific enhancement Pineda -Pineda, 154 Wn. App. at 661. statute." For example, holding enhancement, App. at 664. in Pineda Pineda, Division One vacated the defendant' s school zone that the enhancement did not apply to an absent accomplice. 154 Wn. There, the defendant was convicted as an accomplice to delivery of a controlled substance after he facilitated a drug deal between his accomplices and the buyer. Pineda Pineda, 154 Wn. App. place within at 658, 659. 25 feet The defendant was not present at the actual delivery, which took of a school bus stop. Pineda- Pineda, 154 Wn. App. at 659. The jury found that the defendant delivered a controlled substance within 1, 000 feet of a school bus stop, and the trial court imposed an exceptional sentence under RCW 69. 50. 435, which states 1) Any with person who the intent to ... violates RCW 69. 50. 401 by ... delivering, or possessing sell or deliver a controlled substance. c) Within one thousand feet of a school bus route stop designated by the school district; ... by a fine . . . or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter. may be punished Pineda -Pineda, 154 Wn. App. at 659. Division One held that this statute does not explicitly authorize imposition of the sentence enhancement on an accomplice; accordingly, the defendant' s own acts must form the basis for the enhancement. Pineda Pineda, 154 Wn. App. at 664. Because the defendant was not physically present at the delivery, the school bus stop enhancement was improper. Pineda Pineda, 154 Wn. App. at 664. 17 42257 -3 - II This In Pineda Pineda, the sentence Pineda. is distinguishable from Pineda - case based enhancement was defendant actually on engaged the defendant' in the Therefore, the State had to show that the s conduct. conduct, namely, delivering drugs within a school zone. By contrast, the sentence enhancement here is based on the victims' statuses as police officers and not on the defendant' s conduct. See RCW 9. 94A.535( 3)( v). Accordingly, the enhancement statute allows for imposition of accomplice liability even if Allen was not physically present at The victims' statuses as officers were not contested, and the enhancement was the shooting. properly applied to Allen. SPECTATOR T- SHIRTS VI. Finally, Allen argues that the spectators' t -shirts deprived him of his right to a fair trial. Because the t -shirts did not convey a message of guilt or innocence, they did not prejudice Allen' s fair trial right and the trial court' s decision to allow them was not manifestly unreasonable. We review the trial court' s decision to allow the spectators' t shirts to determine whether the decision was manifestly unreasonable or based on untenable Lord, 161 Wn.2d 276, 283 -84, 165 P. 3d 1251 ( 2007). scene presented defendant' to the s right to a jury was "` fair trial. "' grounds or reasons. State v. We must consider whether the courtroom so inherently prejudicial as to pose an unacceptable threat to Lord, 161 Wn.2d at 285 ( quoting Holbrook v. Flynn. 475 U. S. 560, 572, 106 S. Ct. 1340, 89 L. Ed. 2d 525 ( 1986)) ( emphasis omitted). Our Supreme Court has held that silent displays of affiliation by trial spectators that do not explicitly advocate guilt or innocence are permissible. Lord, 161 Wn.2d at 289; In re Pers. Restraint of Woods, 154 Wn.2d 400, 416, 418, 114 P. 3d .607 ( 2005). wore buttons with a picture of the victim. In Lord, trial spectators 161 Wn.2d at 282. The court held that the buttons did M. 42257 -3 -II not prejudice the defendant' s fair trial right because they did not convey any message regarding guilt innocence. or Lord, 161 Wn.2d at Additionally, the defendant failed to make a 289. motion for mistrial or a curative jury instruction, which, the court noted, has been held to constitute waiver. Lord, 161 Wn.2d at 291. The t shirts at issue here forgotten, Lakewood Police" and are similarly listed the permissible. names of the The t shirts said " You will not be RP ( Apr. 28, 2011) at 3024. victims. Although they did have writing on them, they did not convey a message of guilt or innocence; they were merely worn in remembrance of the victims. Moreover, like the defendant in Lord, Allen did not move for a mistrial or request a curative instruction and thereby waived his objections. The trial court' s decision to allow the t shirts was not manifestly unreasonable and we affirm. VII. SAG In his SAG, Allen first argues that the evidence is insufficient to establish the mental state and acts required for first degree murder as either an accomplice or principal. The State argued only that Allen was an accomplice to the murders; accordingly, it had to prove only that Allen had knowledge that he was promoting or facilitating the crime and that he aided Clemmons in planning or committing the RCW 9A.08. 020( 3). crime. We discussed the. sufficiency of the evidence regarding knowledge above and we do not consider it again here. Additionally, there is sufficient evidence and from the 1994) ( that Allen murder scene. holding aided Clemmons in committing the he drove Clemmons to crime See State v. Rainwater, 75 Wn. App. 256, 257 n. l, 876 P. 2d 979 that getaway driver was an accomplice to theft). that Allen acted as an accomplice. His first argument fails. 19 There is sufficient evidence 42257 -3 - II Allen Next, 9. 94A.535( 3)( Allen v) is that an element of convicted was argues his the of premeditated enhancement sentence crime he was first degree convicted of. murder. is invalid because RCW This argument is incorrect. Premeditated first degree murder requires the State to prove that Allen or an accomplice acted with premeditated intent to cause the death of as statuses element of VIII. the victim and police that the victim died officers the first degree as a result. aggravating factor RCW 9A.32. 030( 1)( under a). RCW 9. 94A. 535( 3)( The victims' is v) not an Therefore, Allen' s second argument also fails. murder. STATE' S CROSS APPEAL In its cross appeal, the State argues that the trial court erred by dismissing the felony murder counts asks us to for insufficient reverse the trial evidence. court' s In the event that we remand for a new trial, the State dismissal of the not necessary to reach this issue. Affirmed. I concur: 20 felony murder counts. Because we affirm, it is 42257 -3 - II MAXA, J. ( the issues in dissenting presented except part, concurring in prosecutorial part) misconduct. I concur with the majority on all of I cannot agree that the prosecutor' s repeated misstatements of the law regarding the level of knowledge the State must prove to Allen convict as an accomplice which the State admitted constituted misconduct did not prejudice Allen. I dissent on that issue. I conclude that the misstatements were repeated so often and were so significant in the context of the trial evidence that there was a substantial likelihood that the jury' s verdict was affected. Therefore, I would reverse and remand for a new trial. A. PROSECUTORIAL MISCONDUCT A defendant has a fundamental right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 22 of the Washington State Pers. Restraint of Glasmann, 175 Wn.2d 696, 703, . 286 P. 3d 673 ( 2012). Constitution. In Prosecutorial " misconduct" re deliberate whether or inadvertent can deprive a defendant of this constitutional right. Glasmann, 175 Wn.2d at 703 -04. To prevail on a prosecutorial misconduct claim, a defendant bears the burden of proving that the prosecutor' s conduct was In analyzing prejudice the the issues in the argument, both improper conduct case, is the and prejudicial. not viewed evidence, and in isolation, but " in the context of the total the instructions Warren, 165 Wn.2d 17, 28, 195 P. 3d .940 ( 2008). conduct, the substantial prejudice likelihood P. 3d 653 ( 2012). of standard is affecting the whether jury' s the Glasmann, 175 Wn.2d at 704. to the jury." State v. If the defendant objected at trial to the conduct " verdict." given resulted in prejudice that had a State v. Emery, 174 Wn.2d 741, 760, 278 If the defendant did not object at trial, the defendant is deemed to have waived 7 I agree with the majority that the constitutional harmless error standard is inapplicable here. Emery, 174 Wn.2d at 756 -57. Majority at 10. 21 42257 -3 - II any error the prosecutor' s misconduct was so flagrant and ill intentioned that an unless " instruction could not have cured the resulting prejudice." Emery, 174 Wn.2d at 760 -61. Significantly, when deciding whether prosecutorial misconduct requires reversal it is immaterial whether there is sufficient upholding the justify to evidence jury' s Glasmann, 175 verdict. Wn.2d at 711. Misconduct that is relatively Supreme Court has State v. noted minor or insignificant is not grounds for reversal. Our a] defendant is entitled to a fair trial but not a perfect one.' " that " `[ Davis, 175 Wn.2d 287, 345, 290 P. 3d 43 ( 2012) ( internal quotation marks omitted) quoting Brown v. United States, 411 U.S. 223, 231 -32, 93 S. Ct. 1515, 36 L. Ed. 2d 208 ( 1973)), cent. denied, No. 12 -9685, 2013 WL 1490614 ( U. S. Wash. Oct. 7, 2013); see also State v. Garcia, _ Wn. App. _, 313 P. 3d 422, 430 ( 2013), petition for review filed, No. 89691 -7 Wash. Dec. 20, 2013). IMPROPER ARGUMENT B. The prosecutor' s misconduct in this case was misstating what level of knowledge the State was required to prove to convict Allen as an accomplice. Under the Washington accomplice liability statute, a person is an accomplice to a crime only if he or she has actual, subjective knowledge that his or her conduct will promote or facilitate the commission of the charged crime. RCW 9A. 08. 020 ( 3)( 471, 511, 14 P. 3d 713 ( 2000); In 39 P. 3d 308 ( 2001). re a); RCW 9A.08. 010( 1)( b); see State v. Roberts, 142 Wn.2d Pers. Restraint of Sarausad, 109 Wn. App. 824, 838 & n.6, If the defendant has information that would lead a reasonable person to have such knowledge, the jury is allowed but is not required to infer that the defendant had actual, subjective knowledge. Sarausad, 109 Wn. App. at 838 State n. 6. v. 93 Wn.2d 510, 516, 610 P. 2d 1322 ( 1980); Shipp, The trial court 22 instructed the jury on this concept. But 42257 -3 -II comparing the defendant to an ordinary person creates only an inference, and the jury still must find that the defendant acted with actual, subjective knowledge. Shipp, 93 Wn.2d at 517 ( stating that even if the jury finds that an ordinary person would have had knowledge under the circumstances, the jury must still be allowed to conclude that the defendant was less attentive or intelligent than the ordinary person). At the beginning of his closing argument, the prosecutor properly stated the law regarding actual permitted but knowledge not required to that if a reasonable person would have known, the jury was find that Allen acted with knowledge. However, throughout the remainder of closing argument he argued both directly and indirectly that a jury could convict Allen if it found either that he knew or that he should have known that Clemmons would murder the officers. Instead of arguing that the jury could infer Allen' s knowledge from what a reasonable person would know, the prosecutor argued that if a reasonable person would have known and Allen should have known, then Allen was an accomplice. If a person had information and a reasonable person would have known, then he knew. Because it' s really hard to get direct evidence of somebody' s knowledge, right? Report of Proceedings ( RP) at 3545. W]hat a jury should do is look at all the facts and all the circumstances surrounding it and say, well, what would a reasonable person know. And if a reasonable person would have known that Maurice Clemmons was going to go in there and kill those cops, then his getaway driver knew that, too. RP at 3545 ( emphasis added). And under the law, even if he doesn' t actually know, if a reasonable person would have known, he should have known, he' s guilty. So you' re an accomplice if you help another person commit a_crime and you know or should have known that your actions are going to help. And Mr. Allen is an accomplice because he helped Maurice Clemmons commit these murders, and 23 42257 -3 - II he knew or should have known that his actions were going to help these murders happen. RP at 3546 ( emphasis added). becomes and really, the question in the case is did he know or So the question should he have known. Did he know or would a reasonable person have known? Well, did he know? Should he have known? RP at 3548 -49 ( emphasis added). Information that would lead a reasonable person in the same situation to believe. He knew. And he should have known. RP at 3566 ( emphasis added). The PowerPoint slides that accompanied the prosecutor' s argument were just as significant. knew The jury repeatedly was shown slides stating that Allen was an accomplice if he or should have known. The most egregious were two sequential slides entitled " Should Have Known" which listed several words potentially descriptive of Allen' s mental state, the last two of which were " crossed out message was Know" including " clear. and " Should Have Known." Know" except Ex. 352, at 5 - 6. for " Should Have Known." All the words were Ex. 352, at 5. The The jury did not have to find that Allen actually knew Clemmons would murder the officers, only that he should have known. The same argument was repeated in the rebuttal argument by a different prosecutor, along with additional PowerPoint slides. This is the knowledge instruction. What did he know, what should he have known.... Should have known there have known those police ... were police inside the Forza.... Should were going to be killed by Clemmons... . He should have known that Clemmons was going to carry out this plan. RP at 3614 -15. Four slides were titled " Defendant Should Have Known," indicated that the jury had to find actual knowledge. Ex. 354, at 3 -4. 24 none of which 42257 -3 - II Allen necessarily argues agree. that the prosecutor intentionally attempted to mislead jury. the I do not A closing argument is not the same as a written brief, where the author can carefully craft legal statements and ensure they are correct. During closing a prosecutor is on his or her feet arguing in the " heat Although the of the moment," slide presentation prepared in and as a result some misstatements may occur. advance of closing argument included multiple references to a " should have known" standard, those slides would not have been improper if the had carefully prosecutor explained the legal correct standard when discussing them. The prosecutor here simply may have gone astray while making an honest attempt to state the law regarding accomplice liability. However, for purposes of a prosecutorial misconduct claim whether statement is intentional or inadvertent is immaterial to determining whether the statement was improper. Cf. State to draw fine lines between v. Ish, 170 Wn.2d 189, 195 error and misconduct). n. 6, 241 P. 3d 389 ( 2010) ( refusing My dissent here is not based on a finding that the prosecutor engaged in deliberate misconduct. The State correctly acknowledged on appeal that the prosecutors' arguments were improper. Therefore the only issue is whether those arguments prejudiced Allen. C. PREJUDICE Allen objected twice to the " should have known" arguments on the basis that they were incorrect statements of the law, once during closing and once during rebuttal. RP at 3545 -46; RP at 3614. 3614. The trial court overruled both objections, stating, " It' s argument." RP at 3546; RP at As a result, the prejudice standard is whether the improper arguments had a substantial likelihood of affecting the jury' s verdict. Emery, 174 Wn.2d at 760. 25 42257 -3 - II 1. Factors Showing Prejudice Several factors, considered together, compel the conclusion that the improper arguments prejudiced was not Allen' an s constitutional right isolated incident. to fair trial. First, and most important, the misconduct The arguments were made repeatedly and persistently, in both closing argument and rebuttal argument. convict Allen if he should a The prosecutor told the jury several times that it could have known that Clemmons would murder the officers. The court in Glasmann acknowledged that misconduct can be so pervasive that prejudice cannot be avoided, even with a curative instruction. " `[ T] he cumulative effect of repetitive prejudicial prosecutorial misconduct may be so flagrant that no instruction or series of instructions can erase their combined prejudicial State v. effect.' " Walker, 164 Wn. App. Glasmann, 175 Wn.2d at 707 ( alteration in original) ( quoting 724, 737, 265 P. 3d 191 ( 2011), adhered to on remand, noted at 173 Wn. App. 1027, review denied, 177 Wn.2d 1026 ( 2013)). Second, the improper arguments were accompanied by slides that repeated the arguments in visual form. The court in Glasmann emphasized that visual images can be especially prejudicial when used during closing argument: Highly prejudicial imagery then, may images may sway be very difficult to a jury in ways that overcome with an words cannot. Such instruction. Prejudicial imagery may become all the more problematic when displayed in the closing arguments of a trial, when the jury members may be particularly aware of, and susceptible to, the arguments being presented. 175 Wn.2d at 709 -10 ( internal citations omitted). Third, the improper arguments involved an incorrect statement of the law of accomplice liability. " The prosecuting attorney misstating the law of the case to the jury is a serious irregularity having the grave potential 763, 675 P. 2d 1213 ( 1984); see also to mislead the jury." State v. Davenport, 100 Wn.2d 757, Walker, 164 Wn. N61 App. at 736. In Warren the prosecutor 42257 -3 - II repeatedly misstated the burden of proof and made misleading statements about the presumption of innocence. court 165 Wn.2d at 23, 25. Fortunately, in that case after the third misstatement the trial interrupted and gave a lengthy curative Warren, 165 Wn.2d at 24. On appeal, instruction. our Supreme Court stated that it would have found prejudice but for the curative instruction. Had the trial [ court] not intervened to give an appropriate and effective curative instruction, we would not hesitate to conclude that such a remarkable misstatement of the law by a prosecutor constitutes reversible error." Fourth, the State' case. was Warren, 165 Wn.2d at 28. should s" have known" argument was the focus of the entire The State produced no direct evidence that Allen actually knew that Clemmons going to murder the The State did argue that circumstantial evidence officers. showed that Allen had actual knowledge, but its primary argument was that Allen was guilty because he should have known the murders would occur. Because the " should have known" issue was so critical, it is more likely that a misstatement regarding the law would affect the verdict. Finally, the jury' s question about accomplice liability demonstrated that at least one member of the someone ` should CP) at 2014. because the " jury considered the improper have known' does that make arguments. them an The question accomplice ?" read, " If Clerk' s Papers This question shows that the prosecutor' s misstatements made an impact should have known" language was not used in the instructions and, therefore, must have come from closing argument. 2. Majority Arguments Against Prejudice The majority makes four arguments in support of its conclusion that the improper arguments did not prejudice Allen. Majority at 10 -12. 27 First, the majority states that the 42257 -3 -II trial court properly instructed the jury that the law is contained in the instructions and not in arguments of counsel. jury at may be more susceptible 709 -10. Further, argument closing Majority we have could to at However, as the court noted in Glasmann, the 10. prejudicial conduct emphasized the save that "[ during closing argument. 175 Wn.2d i] f a self serving comment at the start of a prosecutor from repeated, intentional, improper comments, there would be no disincentive to committing prosecutorial misconduct." Walker, 164 Wn. App at 739 n.8. Second, the majority points out that the State initially stated the law correctly and did argue that Allen had actual knowledge as well as that he should have known. Majority at However, correctly stating the law once hardly can compensate for 10 -11. misstating the law multiple other times. And making a legitimate argument that Allen had actual knowledge is immaterial because the State improperly argued in the alternative that the jury could convict based on actual knowledge or based on a finding that Allen should have known. Third, the majority notes that Allen countered the State' s argument in his closing by telling 3604. the jury Majority to " at 11. read th[ e] instructions" and that Allen " needed to know." RP at However, it is difficult to conclude that Allen' s attempt to counter the prosecutor' s improper arguments would have neutralized any impact on the jury given the pervasive nature of the misstatements. Fourth, the majority states that the trial court " redirected the jury to the instructions, which properly stated the law, in response to its question regarding ` should have known.' " jury to the Majority correct at 11. instruction. However, the trial court did not specifically direct the The trial court merely 28 wrote, " Please refer to the court' s 42257 -3 -II CP instructions." phrase " should at Further, the knowledge instruction does not reference the 2012. have known" that the State As a result, it is naive to repeated so often. assume that the jury figured out the correct law on its own in the face of the State' s relentless misstatements. Curative Instruction 3. The majority also notes that Allen could have requested specific curative instruction and that a clear instruction could have eliminated any possible confusion and cured Majority potential prejudice. any at 11. However, when the defendant objects to . improper conduct, whether an instruction could have cured the prejudice is not the The test for prejudice is whether the conduct resulted in prejudice that had a standard. substantial likelihood of affecting the jury' s verdict. Emery, 174 Wn.2d at 760. The availability of a curative instruction is only relevant when the defendant fails to object. 174 Wn.2d Emery, have given rejected a 760 -61. at curative Allen' s Further, there is no indication that the trial court would instruction here objections to the " even should if requested. The trial court summarily have known" arguments, and the trial court apparently believed that the prosecutor' s arguments were proper. In any event, I conclude that an appropriate instruction may not have cured the prejudice here. The improper statement of the law was repeated so often that it became a theme the State' s of case. Additionally, the State' s misstatement of the law was on a crucial issue given the evidence presented at trial. And the prosecutor' s arguments likely succeeded in affecting the jury, causing it to consider finding that Allen was an accomplice because he should have known Clemmons would murder the officers. As our Supreme Court noted in Glasmann, repetitive prejudicial prosecutorial misconduct may 29 42257 -3 -II be so flagrant that no instruction can eliminate the potential prejudice. 175 Wn.2d at 707. Under the circumstances of this case, even a detailed instruction may not have eliminated the possibility that the improper arguments would affect the verdict. D. CONCLUSION The murders of officers Griswold, Renninger, Owens and Richards profoundly impacted the people in Pierce County and across the state. I fully understand and support the public' s interest in prosecuting, convicting and punishing everyone who knowingly Clemmons. assisted However, despite the horrifying nature of this crime, the quest for a conviction cannot and should not trump a defendant' s constitutional right to a fair trial. Further, the courts have a constitutional obligation to intervene when a prosecutor' s improper conduct creates a significant risk of prejudice to the defendant. Only if we are willing to reverse cases involving significant prosecutorial misconduct will we " give substance to our message that `prejudicial prosecutorial tactics will not be permitted,' obtaining and our warning that prosecutors must avoid improper, prejudicial means of convictions will not be empty words. Glasmann, 175 Wn.2d at 712 -13 quoting State v. Charlton, 90 Wn.2d 657, 665; 585 P. 2d 142 ( 1978)). I would reverse and remand this case for a new trial. The jury must be allowed to evaluate the evidence of Allen' s actual knowledge, including consideration of an inference of actual knowledge based on what an ordinary person would know, without 30 42257 -3 -II being mislead by improper " should have known" arguments. It may be that a jury once again would convict Allen as an accomplice after considering all the evidence and proper arguments. But that conviction would be the result of a fair trial. MAXA, J. 31
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