Fl LE 

IN CLERKS OFFICE 

1UPR!ME COURT, STATE 01' WMIII«mmll 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

STATE OF WASHINGTON, 

Respondent, 

v. 

ODIES DELAND US WALKER, 

Petitioner. 

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_______________________) 

No. 89830-8 

ENBANC 

Filed: JAN 2 2 2015 

YU, J.- Odies Delandus Walker was convicted as an accomplice to first 

degree murder, first degree assault, first degree robbery, solicitation, and 

conspiracy. The primary question in this case is whether those convictions must be 

reversed in light of the Power Point presentation the prosecuting attorney used 

during closing argument. That presentation repeatedly expressed the prosecutor's 

personal opinion on guilt-over 100 of its approximately 250 slides were headed 

with the words "DEFENDANT WALKER GUILTY OF PREMEDITATED 

MURDER," and one slide showed Walker's booking photograph altered with the 

words "GUILTY BEYOND A REASONABLE DOUBT," which were 

superimposed over his face in bold red letters. The prosecutor also appealed to 
State v. Walker, No. 89830-8 

passion and prejudice by juxtaposing photographs of the victim with photographs 

of Walker and his family, some altered with the addition of inflammatory captions 

and superimposed text. While the prosecutor is entitled to draw the jury's attention 

to admitted evidence, those slides, as presented, served no legitimate purpose. 

Their prejudicial effect could not have been cured by a timely objection, and we 

cannot conclude with any confidence that Walker's convictions were the result of a 

fair trial. Consistent with both long-standing precedent and our recent holding in In 

re Personal Restraint ofGlasmann, 175 Wn.2d 696, 286 P.3d 673 (2012), we must 

reverse Walker's convictions and remand for a new trial. 

FACTS AND PROCEDURAL HISTORY 

We summarize the underlying facts to provide a context for our decision in 

this case. The State's evidence supports the following version of the events. 

During the relevant time period, Walker lived with his girlfriend, Tonie 

Marie Williams-Irby; several of their children; and Walker's cousin, Calvin Finley. 

Williams-Irby worked at a Walmart in Lakewood as a department manager. 

Williams-Irby told Walker, Finley, and another friend (Jonathan) that she knew· 

what time an armored truck arrived each day to pick up the store's daily receipts 

and knew the average daily amount of those receipts from staff meetings. Several 

weeks later, Walker discussed the armored truck with Finley and Jonathan, saying 

it would be "easy money." 7 Verbatim Report of Proceedings (VRP) at 656. 

2 
State v. Walker, No. 89830-8 

Jonathan was later excluded from the robbery discussions. Other potential 

participants were considered, and ultimately Walker, Finley, and their friend 

Marshawn Turpin made a plan to rob the armored tn1ck "custodian." 4 VRP at 170. 

During this preliminary planning stage, Walker and Finley discussed the possibility 

that Finley might need to shoot the armored truck custodian. Walker told Finley to 

"do what you got to do," 7 VRP at 665, and that Walker would provide a gun. 

Williams-Irby was aware of these plans and would regularly answer Walker's 

questions about the amount of the store's daily receipts. 

On the day of the crime, Walker drove Williams-Irby to work and asked her 

to find out what the day's receipts would be. Williams-Irby went to the daily staff 

meeting and reported to Walker that the day's receipts totaled $207,000. Walker 

and Finley then drove to the Walmart in a white Buick Oldsmobile. Turpin arrived 

in a gold Nissan Maxima, then entered the parked Buick. When the armored tn1ck 

arrived to pick up the money, Finley and Turpin entered the store while Walker 

remained in the Buick. Finley was armed with a handgun. As the armored truck 

custodian reached the store entrance to leave, Finley and Turpin approached him 

and Finley shot him in the head, killing him. Finley and Turpin grabbed the money 

bag and fled in the Buick. Walker drove them to an alley behind a friend's house to 

ditch the car. Walker later returned to the Walmart to pick up the gold Nissan. 

3 
State v. Walker, No. 89830-8 

When Williams-Irby returned home from work, Walker told her that they 

needed to go to where he had left the Buick so he could wipe away his fingerprints. 

When they got there, police officers were milling around the car, so they left and 

drove to another friend's house (AI Trevino). Williams-Irby testified that on the 

way to Trevino's house, Walker told her that he was in the white Buick in the 

Walmart parking lot and was on the phone with Finley during the robbery. When 

Finley asked for the money, the armored truck driver laughed, so Walker told 

Finley to "kill the mother fucker." 8 VRP at 729. 

Finley and Turpin were already at Trevino's house when Walker and 

Williams-Irby arrived. After distributing some of the cash, Walker, Finley, and 

Turpin placed the clothes they were wearing during the robbery and the nowempty money bag into a plastic bag, which Finley discarded in a nearby river. 

Walker and Williams-Irby left Trevino's house after about 30 minutes and 

drove to a motel in Fife where Walker met up with Finley and Trevino. Walker and 

Williams-Irby then drove to a Walmart in Federal Way, and Walker bought two 

safes and a video game system. Walker kept one safe for himself and drove back to 

Fife to give the other safe to Finley. Walker and Williams-Irby then returned home, 

where Walker put a gun and his share of the robbery proceeds in his safe and put 

the safe and the video game system in his bedroom closet. 

4 
State v. Walker, No. 89830-8 

Walker then took Williams-Irby and their children out for dinner at Red 

Lobster. At dinner, Walker told Williams-Irby's son, "This is how you murder 

these niggers and get this money." !d. at 773. Walker paid the bill for the meal, 

nearly $200, in cash. Police pulled over and arrested Walker and Williams-Irby as 

they drove home from the restaurant. Williams-Irby told police she didn't know 

anything. When interviewed by police, Walker denied having any involvement 

with the robbery. 

Williams-Irby was charged and, after entering into a plea agreement with the 

State, testified against Walker consistent with the above factual summary. The 

State charged Walker as an accomplice to aggravated first degree premeditated 

murder, first degree felony murder, first degree assault, first degree robbery, first 

degree solicitation to commit robbery, and first degree conspiracy to commit 

robbery. The State also sought deadly weapon enhancements for the murder, 

assault, and robbery charges. 

In opening statements, the prosecutor said: 

When the police question the defendant, he is being-he is 

adamant. He is cursing. He is yelling. He is swearing. He is saying he 

didn't have any idea why the police stopped him. Why did you arrest 

me? I didn't do anything. I had nothing to do with it. My wife, 

Williams-Irby, she didn't have anything to do with this. He is lying 

like crazy to the police. Williams-Irby pled guilty to second-degree 

murder, and she will tell you what she had to do with it. He told the 

cops he didn't have anything to do with it. 

... At the close of this case, we are going to ask you to convict 

the defendant of each one, every one of these righteous charges that 

5 
State v. Walker, No. 89830-8 

have been filed against him. 

Suppl. VRP (Mar. 7, 2011) at 48, 52. Walker's counsel did not object to these 

statements. 

During closing remarks, the prosecutor utilized a Power Point presentation 

made up of approximately 250 slides. Over 100 of those slides have the heading 

"DEFENDANT WALKER GUlL TY OF PREMEDITATED MURDER." Pl.'s 

Ex. 243, at 6-7, 9-49, 54, 56-59, 61-66, 68-77. Two slides have the heading 

"DEFENDANT WALKER GUILTY OF ASSAULT IN THE FIRST 

DEGREE," id. at 83, and three have the heading "DEFENDANT WALKER 

GUILTY OF SOLICITATION TO COMMIT ROBBERY," id. at 85-86. The 

PowerPoint also includes a slide superimposing the words "GUlL TY BEYOND A 

REASONABLE DOUBT" over Walker's booking photo. !d. at 87. The record 

contains only grayscale copies of the slides, but the briefing indicates that the 

lettering was in bright red. See Pet'r' s Suppl. Br. at 2. 

6 
State v. Walker, No. 89830-8 

Pl.'s Ex. 243, at 87. 

There is a series of slides suggesting Walker is guilty because he used the 

stolen money for video games and lobster. The first asserts, "Defendant Walker is 

GUILTY as an ACCOMPLICE to the murder because he SPLURGED ON 

FRIVOLOUS THINGS." Jd. at 63. The next slides explain that those splurges 

included "[two] safes, a WII [sic] and several games at the Federal Way Walmart," 

as well as "$200.00 for dinner at the Red Lobster." Jd. at 63-64. The next slide is a 

photo of Walker and his family happily eating that dinner. Jd. at 64. 

DEFENDANT WALKER GUILTY OF 

PREMED~TATED MURDER 

(26) Defendant Walker Is GUlL TY a.'S an 

ACCOMPLICE to the murder because 

SPLURGED ON FRIVOLOUS 

THINGS 

DEFENDANT WALKER GUILTY OF 

PREMEDITATED MURDER 

DEFENDANT SPLURGED 

7 

DEFENDANT WALKER GUiLTY OF 

PREMEDITATED MURDER 

DEFENDANT SPLURGED 

WS~Iker purchased 2 a 

Wiland everal games at .. .,.f'1A<'1lll Way 

Welmart 
State v. Walker, No. 89830-8 

!d. at 63-64. 

Several other slides include photographs that were admitted exhibits, but 

altered with captions, headings, and superimposed text. For example, one slide is a 

photograph of money seized by police with the heading "MONEY IS MORE 

IMPORTANT THAN HUMAN LIFE": 

!d. at 5. It was not alleged that Walker, or anyone else, actually said those words. 

Another particularly problematic example of admitted exhibits altered with 

inflammatory text comes near the end of the presentation. First, a slide depicts an 

in-life photograph of the victim with a superimposed heading reading 

"DEFENDANT'S GREED AND CALLOUS DISREGARD FOR HUMAN 

LIFE" and text detailing the money stolen and its distribution amongst the 

participants. !d. at 88. That slide is juxtaposed with the one immediately following 

it, the same photograph of Walker and his family eating dinner at the Red Lobster 

used earlier, but this time with a caption '"THIS IS HOW YOU MURDER AND 

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State v. Walker, No. 89830-8 

ROB NIGGERS NEXT TIME IT WILL BE MORE MONEY.'" I d. at 89. Next 

comes Walker's booking photograph, altered with the caption, "'WE ARE 

GOING TO BEAT THIS,"' contrasted with the final image, an in-life photograph 

of the victim. Id. 

Id. at 88-89. 

During the State's closing, Walker's attorney unsuccessfully objected to the 

State's discussion of premeditation and a slide analogizing premeditation to 

9 
State v. Walker, No. 89830-8 

stopping at a railroad crossing. 12 VRP at 1376-80. However, Walker's counsel 

never objected to the PowerPoint slides referenced here. 

Walker did not testify, and he was subsequently convicted of all charges. He 

appealed his convictions, claiming prosecutorial misconduct, improper jury 

instructions, and ineffective assistance of counsel. In a partially published opinion, 

the Court of Appeals affirmed the convictions. State v. Walker, 178 Wn. App. 478, 

315 P.3d 562 (2013) (published in part). Walker petitioned for review. 1 The State 

did not file an answer to Walker's petition,2 and we granted review. State v. 

Walker, 180 Wn.2d 1002, 321 P.3d 1206 (2014). 

ANALYSIS 

I. Prosecutorial misconduct violated Walker's right to a fair trial 

Walker argues that the prosecutor committed reversible misconduct 

primarily in the PowerPoint presentation used during closing argument.3 We 

recently addressed this very same issue in Glasmann, 175 Wn.2d 696, and it is 

regrettable that some prosecutors continue to defend these practices and the 

1 Because we reverse Walker's convictions due to prosecutorial misconduct, we do not reach 

Walker's claim that he received ineffective assistance of counsel. 

2

In its supplemental brief, the State reasserts the cross assignment of error it raised on direct 

appeal. That issue is not properly before us, and we will not consider it. RAP 13 .4( d). 

3

Walker also contends the prosecutor committed misconduct during opening statements. The 

prosecutor's assertion that Walker was "lying like crazy" because his statements to the police 

conflicted with Williams-Irby's testimony, Suppl. VRP (Mar. 7, 2011) at 48, improperly 

vouched for Williams-Irby's credibility. State v. Allen, 176 Wn.2d 611, 631, 294 P.3d 679 

(2013). We need not determine whether it was reversible error because the impropriety of the 

prosecutor's closing was so egregious. 

10 
State v. Walker, No. 89830-8 

validity of convictions obtained by using them. We reject the State's arguments 

that Glasmann is materially distinguishable and should be disavowed in part and 

hold that, as in Glasmann, the State's PowerPoint presentation requires reversal of 

Walker's convictions. 

A. The prosecutor's duty is to seek justice, not merely convictions 

We have had numerous occasions to point out the dual roles of a prosecutor. 

"A prosecutor must enforce the law by prosecuting those who have violated the 

peace and dignity of the state by breaking the law." State v. Monday, 171 Wn.2d 

667,676,257 P.3d 551 (2011) (citing State v. Case, 49 Wn.2d 66,70-71,298 P.2d 

500 (1956) (quoting People v. Fielding, 158 N.Y. 542, 547, 53 N.E. 497 (1899))). 

At the same time, a prosecutor "functions as the representative of the people in a 

quasijudicial capacity in a search for justice." Id. A prosecutor does not fulfill 

either role by securing a conviction based on proceedings that violate a defendant's 

right to a fair trial-such convictions in fact undermine the integrity of our entire 

criminal justice system. We fail to appreciate why the prosecutor felt these slides 

were necessary to secure a conviction, and remain committed to the words of 

Fielding, which resonate as strongly today as when they were first made over 100 

years ago: 

"[A] public prosecutor ... is a quasi-judicial officer, representing the 

People of the state, and presumed to act impartially in the interest only 

of justice. If he lays aside the impartiality that should characterize his 

official action to become a heated partisan, and by vituperation of the 

11 
State v. Walker, No. 89830-8 

prisoner and appeals to prejudice seeks to procure a conviction at all 

hazards, he ceases to properly represent the public interest, which 

demands no victim, and asks no conviction through the aid of passion, 

sympathy or resentment." 

Id. at 676 n.2 (alterations in original) (quoting Fielding, 158 N.Y. at 547, quoted 

with approval in Case, 49 Wn.2d at 70-71 ). 

Attorneys may use multimedia resources in closing arguments to summarize 

and highlight relevant evidence, and good trial advocacy encourages creative use 

of such tools. Moreover, closing arguments are an opportunity for counsel to argue 

reasonable inferences from the evidence. However, advocacy has its limits, and a 

prosecutor has the duty to "subdue courtroom zeal," not to add to it, in order to 

ensure the defendant receives a fair trial. State v. Thorgerson, 172 Wn.2d 438, 443, 

258 P.3d 43 (2011); see State v. Reed, 102 Wn.2d 140, 147, 684 P.2d 699 (1984) 

(Prosecutors are "public officers whose 'devotion to duty is not measured, like the 

prowess of the savage, by the number of their victims."' (quoting State v. 

Montgomery, 56 Wash. 443,447-48, 105 P. 1035 (1909))). 

In reversing Walker's convictions, we do not retreat from the general rule 

that a defendant should contemporaneously object to improper comments. Proper 

and timely objections provide the trial court an opportunity to correct the 

misconduct and caution jurors to disregard it. It prevents abuse of the appellate 

process and saves the substantial time and expense of a new trial. State v. Emery, 

174 Wn.2d 741, 761-62, 278 P.3d 653 (2012). However, the failure to object will 

12 
State v. Walker, No. 89830-8 

not prevent a reviewing court from protecting a defendant's constitutional right to 

a fair trial. "An objection is unnecessary in cases of incurable prejudice only 

because 'there is, in effect, a mistrial and a new trial is the only and the mandatory 

remedy."' Id. at 762 (quoting Case, 49 Wn.2d at 74). Reversing a defendant's 

convictions for prosecutorial misconduct is a serious remedy that we do not lightly 

impose given the consequential impact on the victim or his or her family and the 

expense of a new trial. 

B. The prosecutor committed egregious misconduct in its closing 

PowerPoint presentation 

A defendant arguing that prosecutorial misconduct violated his or her right 

to a fair trial has the burden of showing the prosecutor's conduct was both 

improper and prejudicial in the context of the entire trial. Glasmann, 17 5 Wn.2d at 

704. And where a defendant raises the issue for the first time on appeal, the 

defendant must also show "that the misconduct was so flagrant and ill intentioned 

that an instruction would not have cured the prejudice." Id. We do not focus on the 

prosecutor's subjective intent in committing misconduct, but instead on whether 

the defendant received a fair trial in light of the prejudice caused by the violation 

of existing prosecutorial standards and whether that prejudice could have been 

cured with a timely objection. Emery, 174 Wn.2d at 762. 

We have no difficulty holding the prosecutor's conduct in this case was 

improper. Closing argument provides an opportunity to draw the jury's attention to 

13 
State v. Walker, No. 89830-8 

the evidence presented, but it does not give a prosecutor the right to present altered 

versions of admitted evidence to support the State's theory of the case, to present 

derogatory depictions of the defendant, 4 or to express personal opinions on the 

defendant's guilt. Glasmann, 176 Wn.2d at 706-07,712. Furthermore, RPC 3.4(e) 

expressly prohibits a lawyer from vouching for any witness's credibility or stating 

a personal opinion "on the guilt or innocence of an accused." The prosecution 

committed serious misconduct here in the portions of its PowerPoint presentation 

discussed above-it included multiple exhibits that were altered with inflammatory 

captions and superimposed text; it suggested to the jury that Walker should be 

convicted because he is a callous and greedy person who spent the robbery 

proceeds on video games and lobster; it plainly juxtaposed photographs of the 

victim with photographs of Walker and his family, some altered with racially 

inflammatory text; and it repeatedly and emphatically expressed a personal opinion 

on Walker's guilt. 

C. The misconduct was prejudicial to Walker's case and could not have 

been cured with a timely objection 

Both this case and Glasmann deal with PowerPoint presentations during 

closing argument that included altered exhibits, expressions of the prosecutor's 

4

We agree with that portion of Justice Gordon McCloud's concurrence noting that some of the 

State's PowerPoint slides implicitly encouraged a verdict specifically based on racial prejudice. 

14 
State v. Walker, No. 89830-8 

opinion on the defendant's guilt, and clear efforts to distract the jury from its 

proper function as a rational decision-maker. Glasmann required the jury to 

analyze the "nuanced distinctions" between different degrees of offenses. !d. at 

710. The issue at trial here was the extent, if any, of Walker's involvement in the 

crimes, requiring the jury to make sense of a multistage criminal scheme with 

several participants playing separate roles. The State's PowerPoint presentation 

obfuscated the complicated facts presented to the jury here at least as much as the 

presentation in Glasmann did. The State's misconduct here was so flagrant, 

pervasive, and prejudicial that it could not have been overcome with a timely 

objection and an instruction to the jury to disregard the improper slides.5 

Our analysis of "prejudicial impact" does not rely on a review of sufficiency 

of the evidence. The Court of Appeals minimized the prejudicial impact because 

"the State's case was strong and Walker's theory was not nearly as plausible as the 

defendants' theories in Reed and Glasmann." State v. Walker, No. 41970-0-II, slip 

op. (unpublished portion) at 17 (Wash. Ct. App. Dec. 20, 2013). While the State 

had strong evidence in those cases-enough to affirm the convictions had the 

defendant challenged the sufficiency of the evidence-"[t]he focus must be on the 

misconduct and its impact, not on the evidence that was properly admitted." 

5

We decline the State's invitation to adopt the plain error standard contemplated by Fed. R. 

Crim. P. 52(b). 

15 
State v. Walker, No. 89830-8 

Glasmann, 175 Wn.2d at 711. The voluminous number of slides depicting 

statements of the prosecutor's belief as to defendant's guilt, shown to the jury just 

before it was excused for deliberations, is presumptively prejudicial and may in 

fact be difficult to overcome, even with an instruction. 

Equally troubling is the Court of Appeals' suggestion that to be entitled to a 

fair trial, Walker had the duty to come up with some plausible defense theory 

beyond the State's failure to meet its burden of proof and to produce evidence in 

support. Walker, slip op. at 16-17 (unpublished portion). This suggestion 

disregards "the bedrock upon which the criminal justice system stands"-every 

defendant is entitled to a presumption of innocence, which is overcome only when 

the State proves guilt beyond a reasonable doubt as determined by an impartial jury 

based on evidence presented at a fair trial. State v. Bennett, 161 Wn.2d 303, 315, 

165 P.3d 1241 (2007). 

We decline the State's invitation to disavow Glasmann to the extent it holds 

the prosecution should have known it was committing misconduct. 6 Glasmann is 

certainly not the first case to hold that visual aids must be used only for their 

proper purpose. Nearly 30 years ago, the Court of Appeals observed that "in order 

6Glasmann does not hold that the color red is inherently prejudicial, that the use of all capital 

letters always constitutes shouting, or that the word "guilty," when presented as a written word in 

a visual aid, always constitutes an improper expression of the prosecutor's opinion on guilt. 

Because it misconstmes our holdings, we need not consider the State's argument that we should 

disavow them. 

16 
State v. Walker, No. 89830-8 

to help the jury more easily understand other evidence, modern visual aids can and 

should be utilized. A trial judge must, however, be careful to avoid letting the 

visual aids be used more for their shock value than to educate." State v. Strandy, 49 

Wn. App. 537, 541-42, 745 P.2d 43 (1987). There is also nothing new about the 

idea that purported visual aids can cross the line into unadmitted evidence. E.g., 

Hollandv. United States, 348 U.S. 121, 127-28,75 S. Ct. 127, 99 L. Ed. 150 

(1954); Gustin v. Jose, 11 Wash. 348, 350, 39 P. 687 (1895). Given the serious 

need to curb abuses of such visual presentations, we encourage trial court judges to 

intervene and to preview such slides before they are shown to a jury. Providing the 

presiding judicial officer with a printed copy of the Power Point slides in advance is 

not burdensome and could curtail the necessity of a retrial due to misconduct. 

Walker has met his burden of showing that the State committed 

prosecutorial misconduct that was so prejudicial and flagrant that it denied Walker 

his constitutional right to a fair trial. 

II. The jury was properly instructed on the law of accomplice liability 

While prosecutorial misconduct committed at trial is dispositive, we address 

Walker's challenge to the jury instructions in case the issue is raised on remand. 

Our review of the legal sufficiency of jury instructions is de novo. State v. Barnes, 

153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Jury instructions are not legally 

17 
State v. Walker, No. 89830-8 

sufficient if they relieve the State of its burden to prove every essential element of 

the charged crime. State v. Byrd, 125 Wn.2d 707, 713-14, 887 P.2d 396 (1995). 

Walker specifically challenges the definitional and to-convict instructions on 

premeditated murder.7 The definitional instruction reads, "A person commits the 

crime of premeditated murder in the first degree, as charged in Count I, when, with 

a premeditated intent to cause the death of another person, he or an accomplice 

causes the death of another person." Clerk's Papers at 213. The to-convict 

instn1ction reads: 

To convict the defendant of the crime of premeditated murder 

in the first degree, [C]ount I, each of the following elements of the 

crime must be proved beyond a reasonable doubt: 

(1) That on or about [the] 2nd day of June, 2009, the defendant 

or an accomplice acted with intent to cause the death of Kurt Husted; 

(2) That the intent to cause the death was premeditated; 

(3) That Kurt Husted died as a result of the defendant's or an 

accomplice's acts; and 

(4) That any of these acts occurred in the State of Washington. 

If you find from the evidence that each of these elements has 

been proved beyond a reasonable doubt, then it will be your duty to 

return a verdict of guilty. 

On the other hand, if, after weighing all of the evidence, you 

have a reasonable doubt as to any one of these elements, then it will 

be your duty to return a verdict of not guilty. 

7

Walker objected to the to-convict instruction at trial, 12 VRP at 1331, but did not object to the 

definitional instruction. Jury instructions that relieve the State of its burden to prove every 

element of the crime charged may be considered for the first time on review. State v. 0 'Hara, 

167 Wn.2d 91, 100-01,217 P.3d 756 (2009). 

18 
State v. Walker, No. 89830-8 

Jd. at 216. Walker argues these instructions allowed the jury to convict him as an 

accomplice to premeditated murder even if the jury may have believed that the 

principal (Finley, the shooter) had committed only intentional murder without 

premeditation. This, Walker argues, relieved the State of its burden of proving the 

essential element that the principal in fact committed the crime that Walker was 

charged with as an accomplice-intentional murder with premeditation. 

In the premeditated murder context, the level of knowledge or intent shared 

between an accomplice and principal may be a highly relevant issue. See, e.g., 

State v. Roberts, 142 Wn.2d 471, 505, 14 P.3d 713 (2000). We do not foreclose the 

possibility that the level of shared intent may be important in other cases and 

circumstances, including some we have not yet considered, but it is not a relevant 

consideration here. 8 

The complicity statute makes an accomplice legally accountable for a crime 

"if it is committed by the conduct of another person." RCW 9A.08.020(1) 

(emphasis added). The statute provides that one can be liable as an accomplice for 

another's conduct even where the accomplice is "legally incapable" of committing 

8 The concurrence ignores the evidence presented in this case and instead attempts to gradually 

erode accomplice liability under a hypothetical case. See concurrence (Gordon McCloud, J.) at 

9, 13. Contrary to the suggestion that the jurors might have convicted Walker even if he may 

have done nothing since he was not the shooter, the evidence presented showed that Walker 

planned the robbery with Finley, provided the gun, and ordered Finley to shoot. Jurors are not so 

easily confused by multiple instmctions and are capable oflmderstanding the difference between 

guilt by association and guilt because a person helped plan and carry out a murder. 

19 
State v. Walker, No. 89830-8 

the crime, RCW 9A.08.020(4), and that one can be convicted as an accomplice 

even if the principal is not prosecuted for or convicted of the same (or any) crime, 

RCW 9A.08.020(6). 

Walker concedes that this court and the Court of Appeals have affirmed 

other convictions where a jury may have split the elements between two 

participants. Pet'r's Suppl. Br. at 29 (citing State v. McDonald, 138 Wn.2d 680, 

981 P.2d 443 (1999); State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991); State 

v. Haack, 88 Wn. App. 423, 958 P.2d 1001 (1997)); see State v. Kwan Fai Mak, 

105 Wn.2d 692, 743-45, 718 P.2d 407 (1986), rejected in part on other grounds by 

State v. Hill, 123 Wn.2d 641, 645, 870 P.2d 313 (1994). As held by the Court of 

Appeals below, the law of accomplice liability allows the jury to reach a 

conviction by splitting the elements of premeditated first degree murder between 

accomplices. Walker, 178 Wn. App. at 486 (citing Haack, 88 Wn. App. at 427-28). 

A conviction based on split elements may be affirmed "[s]o long as the State 

proved beyond a reasonable doubt to the satisfaction of all of the jurors that at least 

one of the participants [had the requisite intent] and at least one but not necessarily 

that same participant [committed the criminal act]." Haack, 88 Wn. App. at 429. 

Walker argues that he was not physically present at the shooting, while in 

Haack, Hoffman, and McDonald there was evidence that the defendant was 

physically present. In some cases this might be an important factual distinction, but 

20 
State v. Walker, No. 89830-8 

here it is not. A trial court's jury instructions must be considered in the context of 

the case actually presented. In this case the State introduced evidence that Walker 

and Finley planned the crime ahead of time, such that Finley could have 

premeditated intent and caused the death. It also introduced evidence that Walker 

contemporaneously participated in the crime via cellular phone, and in fact ordered 

the shooting, such that Walker could also have both premeditated and partially 

caused the death.9 Walker concedes that splitting the elements makes sense when 

there is evidence that both participants acted as principals. Such evidence was 

presented here, and the instructions were proper. 

III. The lack of a unanimity instruction on accomplice liability did not violate 

Walker's right to a unanimous jury verdict 

Walker also argues that the jury instructions discussed above, when given 

without a unanimity instruction, violated his right to a unanimous jury verdict. We 

have already rejected this argument because principal and accomplice liability are 

not alternative means. Hoffman, 116 Wn.2d at 104-05. The Court of Appeals 

correctly concluded that the jury needs to unanimously find only that both the 

principal and accomplice participated in the crime; it need not unanimously 

conclude as to the manner of participation. It does not matter in this case that 

9

It is not a defense that another person also partially caused the death. State v. McDonald, 138 

Wn.2d 680, 690-91, 981 P.2d 443 (1999). 

21 
State v. Walker, No. 89830-8 

Finley, not Walker, performed the actual shooting given Walker's level of 

involvement and participation. 

Walker urges us to disavow this precedent, arguing that the right to a 

unanimous verdict under article I, section 21 of the Washington Constitution is 

greater than that provided in the United States Constitution under State v. Gunwall, 

106 Wn.2d 54, 720 P.2d 808 (1986). A Gunwall analysis is appropriate where the 

contours of the Washington Constitution are not fully developed, but on this issue 

our precedent is clear, and Walker's cursory Gunwall analysis is insufficient to 

show it should be disavowed. No Washington court has examined article I, section 

21 under Gunwall to determine whether or not an accused person has a 

constitutional right to jury unanimity as to the mode of participation in a felony 

accomplice case, and we decline to do so without sufficient analysis. 

CONCLUSIONS 

We affirm the Court of Appeals' holding that the jury instructions properly 

stated the law on accomplice liability and did not violate Walker's right to a 

unanimous jury verdict. However, we reverse its conclusion that Walker received a 

fair trial in light of the prosecutorial misconduct the State committed in its closing 

argument and we reverse Walker's convictions and remand for a new trial. 

22 
State v. Walker, No. 89830-8 

WE CONCUR: 

( 

23 
State v. Walker (Odies Delandus) 

No. 89830-8 

STEPHENS, J. (concurring)-! agree with the majority that the State's 

misconduct during closing argument requires reversal of Odies Delandus Walker's 

conviction, consistent with our decision in In re Personal Restraint of Glasmann, 

175 Wn.2d 696, 286 P.3d 673 (2012). However, I share Justice Gordon McCloud's 

view that the State was entitled to call out admitted evidence during closing 

argument and that the misconduct was not as far reaching as the majority suggests. 

Therefore, I join Justice Gordon McCloud's concurrence on this issue. 

In light of the court's holding on prosecutorial misconduct during closing 

argument, if is unnecessary to opine on any other issues. Nonetheless, the majority 

and concurrence correctly recognize that the trial court on remand may benefit from 

guidance with respect to the jury instn1ctions addressing accomplice liability. I 

concur in the majority's resolution of this issue. 
State v. Walker (Odies Delandus), 89830-8 (Stephens, J. Concurrence) 

-2-
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

No. 89830-8 

GORDON McCLOUD, J. (concurring)-! agree with the majority that the 

prosecutor's closing argument in this case contained so much personal opinion, 

vouching, and inflammatory imagery that we must reverse. But it is the vouching, 

prejudice, and the inflammatory imagery that necessitate reversal, not the 

prosecutor's use of actual admitted evidence. And some of the material on the 

PowerPoint slides that the majority quotes and reproduces fall into the latter, 

permissible category-evidence-rather than the former, impermissible category. I 

write separately to try to clarify the difference between the two categories: the 

permissible use of unaltered, admitted, but very damaging evidence on the one hand 

and the impermissible use of inflammatory images that were not admitted, on the 

other. I conclude that the many slides carrying the prosecutor's opinion of "guilty" 

are not just impermissible but also inflammatory and prejudicial. The majority, 

however, also criticizes several slides that do not contain the prosecutor's opinion. 

I write separately to explain the majority's perhaps unstated assumption: those slides 

are inflammatory and prejudicial because they highlight the defendant's race. 

1 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

I also write to disagree with the majority's endorsement of the wording of the 

elements, or "to convict," instruction. That instruction allowed the jury to convict if 

either the accomplice "or" the defendant held a specific mens rea and either the 

accomplice "or" the defendant committed specific acts. It is confusing. The problem 

is not just the one the majority addresses, i.e., that the instruction allows a conviction 

even if the jury concludes that the prohibited act and the prohibited mens rea are 

"split" between the defendant and some other participant. The problem is that such 

an instruction could be read to allow the jury to convict even if it concludes that both 

the prohibited act and the prohibited mens rea are attributable to another participant, 

and not to the defendant. I would not endorse that language but would advise trial 

courts to go back to using an accomplice liability instruction along with a simple "to 

convict" instruction referring solely to the defendant. The combination of the two 

allows the jury to convict the defendant as either principal or accomplice without all 

the confusion. 

For these reasons, I respectfully concur. 

I. The Prosecutor Committed Misconduct by Vouching and by Making 

Inflammatory Arguments, but Not by Using Admitted Evidence 

The majority correctly explains that it is impermissible for the prosecutor to 

vouch for the credibility of witnesses, to appeal to jury prejudices, or to convey a 

personal opinion about the defendant's guilt. In re Pers. Restraint of Glasmann, 17 5 

2 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

Wn.2d 696,286 PJd 673 (2012); State v. Lindsay, 180 Wn.2d 423,432,437, 326 P.3d 

125 (201.4). The majority tracks the closing argument in this case and explains how 

the deputy prosecutor committed each of those errors, again and again, during 

closing. 

But not all of the images pictured on the Power Point slides that the majority 

criticizes contain personal opinions about guilt. Some of them contained actual 

quotations from or portions of photos from properly admitted evidence, or both. For 

example, the majority criticizes the PowerPoint slide containing a photo of the 

defendant's family at dinner after the murder with an inculpatory caption. But the 

photo of the family at dinner was admitted (over what sounds like a relevance 

objection). Ex. 210; 8 Verbatim Report of Proceedings (VRP) at 775. It was 

certainly relevant: whether Walker had extra money burning a hole in his pocket 

immediately after a $200,000 robbery is certainly probative of whether he is the one 

who committed and benefitted from that robbery. 1 And the record further shows that 

witness Williams-Irby testified, when referring to both the murder and the robbery, 

that it was Walker himself who stated, after the robbery-murder, "This is how you 

1 State v. Luvene, 127 Wn.2d 690, 709, 903 P.2d 960 (1885) (defendant's 

"possession of unusual amounts of money around the time of the robbery ... is relevant in 

that it has some tendency to make it more probable that [the defendant] committed the 

robbery"). 

3 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

murder these n[, ___ ] and get this money. The next time, it will be more money." 

8 VRP at 773. I agree that this testimony is highly damaging to Walker. But it was 

a statement that witness Williams-Irby attributed to Walker. Id. It is thus both 

admissible, Evidence Rule (ER) 80l(d)(2), 804(b)(3), and relevant to whether 

Walker committed murder and robbery. ER 401. In fact, it's a confession. I think 

we should make clear that extremely damaging evidence and confessions, which 

constitute actual evidence, are fair game during closing. 

Nevertheless, I agree with the majority that the slide containing the "n ---" 

quote was improper. I write separately to explain why. 

The problem is that the state altered the photo (Ex. 210) of the black defendant 

and his black family, at dinner, by superimposing on it a quote highlighting race as 

some kind of important factor with the moniker, "niggers." There is no denying that 

this word is powerful, gripping, and emotional. But it was irrelevant-there was no 

indication of a racial motive in this case, and indeed, the victim apparently 

referenced was not even black In context, placing that quote on that photograph of 

the defendant's black family did not just alter both pieces of evidence in violation of 

Glasmann. It also created imagery highlighting the defendant's race-his 

4 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

blackness-in a case where that had absolutely no relevance. That alteration of the 

evidence is inflammatory, whether the prosecutor intended it or not. 2 

Similarly, the majority correctly criticizes the State for repeatedly using 

Walker's booking photo and presenting it once with the caption, "'We are going to 

beat this."' Majority at 9 (emphasis and capitalization omitted) (quoting Pl.'s Ex. 

243, at 89). The majority characterizes this and other slides as impermissibly 

"altered with inflammatory text." Majority at 8. To be sure, altering evidence on 

PowerPoint slides constitutes misconduct. Glasmann, 175 Wn.2d 696. But the quote 

alone would not be improperly damaging. It was a direct quotation that Ms. 

Williams-Irby attributed to Walker. 8 VRP at 781. The court admitted it without 

objection. Id. at 779. A trier of fact might interpret it as reflecting consciousness of 

2 I do not mean to suggest that only prosecutors are susceptible to maldng 

unintentional appeals to race-indeed, criminal defense lawyers and judges can be. See, 

e.g., State v. Saintcalle, 178 Wn.2d 34, 44-48 & n.3, 309 P.3d 327 (2013); L. Song 

Richardson & P. A. Goff, Implicit Racial Bias in Public Defender Triage, 122 YALE L.J. 

122 (2013) (analyzing unconscious race bias in public defender decision-maldng). As our 

court stated in Saintcalle, 178 Wn.2d at 34, 42 n.l, "' [B]ias pervades the entire legal system 

in general and hence [minorities] do not trust the court system to resolve their disputes or 

administer justice evenhandedly."' (Quoting TASK FORCE ON RACE AND THE CRIMINAL 

JUSTICE SYSTEM, PRELIMINARY REPORT ON RACE AND WASHINGTON'S CRIMINAL JUSTICE 

SYSTEM at 6 (2011) (second alteration in original), available at 

http://www .law. washington.edu/ About/RaceTaskF orce/preliminary _ report_race _criminal 

justice_030lll.pdf (quoting WASH. ST. MINORITY & JUSTICE COMM'N, 1990 Final 

Report at xxi (1990), available at http://www. 

courts.wa.gov/committee/pdf/TaskForce.pdf); see also Saintcalle, 178 Wn.2d at 62 

(Madsen, C.J., concurring)). The issue raised in this case, though, was prosecutorial 

misconduct. 

5 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

guilt, so it is relevant to whether Walker committed the charged crimes. ER 401, 

402. Once again, I think we should make clear that it is proper for the State to 

highlight that type of statement for the jury. 

Nevertheless, I agree with the majority that all the slides of the booking photo 

were improper. I write separately to explain why. 

The first problem is that in one slide, the quote was superimposed on the 

defendant's booking photo. This alters both the quote and the photo. The second 

problem is that the booking photo was never admitted into evidence in that form. 

According to the record we have been supplied with, the booking photo was used as 

a part-one-sixth-of the photo montage (Ex. 74A) that an independent witness 

viewed before failing to identify, and only later claiming to identify, the defendant's 

photo in position two as the driver of an Oldsmobile leaving Walmart after the 

murder. 5 VRP at 239-43. The montage was admitted (Ex. 74A). The booking 

photo was not. There was probably a good reason for that: booking photos are 

notoriously prejudicial and inflammatory and are generally admissible only if 

specifically relevant. 3 So the PowerPoint slide showed a doubly altered image-a 

3 State v. Walter, No. WD 76655,_ S.W.3d _, 2014 WL 4976913 (Mo. App. 

W.D. 2014) at *17-18 ("Giving the State the widest possible latitude, there is still no 

rational justification for the prosecutor's use of the mug shot during closing 

argument. Showing Walter wearing an inmate uniform with the word 'GUILTY' 

6 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

booking photo excised from a part of exhibit 74A with a superimposed quote. The 

next problem is that, in context, superimposing that text on a booking photo of the 

defendant from after the crime, looking disheveled, antisocial, and tough, highlights 

the defendant's appearance at booking. That is an irrelevant fact. Use of one of the 

many photos of the crime itself (e.g., Exs. 30A-D, 31A-D, 32A-D, 33A-D, 34A-D, 

prominently displayed across his face added nothing to the State's argument. Rather, the 

only purpose it could have served was to portray Walter in a negative light to the jury. 

Accordingly, the prosecutor injected incompetent and potentially prejudicial matters into 

its closing argument by displaying an altered piece of evidence to the jury for the sole 

purpose of affecting the jur~ opinion of the defendant." (footnote omitted)); State v. Lazo, 

209 N.J. 9, 19, 34 A.3d 1233 (2012) ("[a]rrest photos raise particular concerns, though, 

because they can inject prejudice by suggesting a defendant has a prior criminal record;" 

"an arrest photo may be admitted only if it is presented 'in as neutral a form as possible."' 

(quoting State v. Taplin, 230 N.J. Super. 95, 99, 552 A.2d 1015 (App. Div.1988)); Watters 

v. State, 313 P.3d 243, 245, 247 (Nev. 2013) ("At trial, the State used a PowerPoint to 

support its opening statement to the jury. The presentation included a slide showing 

Watters's booking photo with the word 'GUILTY' written across his battered face." (citing 

Glasmann with approval and holding that this constituted prejudicial error)); Area v. State, 

71 Md. App. 102, 105-06, 523 A.2d 1064 (1987) (abuse of discretion to admit mug shots 

of defendant in a photo array where identity was not in issue); Smith v. Rhay, 419 F .2d 160, 

164 (9th Cir. 1969) ("the introduction into evidence of 'mug shots' for purposes of 

identification has been held to be highly prejudicial. The Supreme Court of Washington 

has itself seen prejudicial inferences in the introduction of 'mug shots,' State v. Devlin, 145 

Wash. 44, 258 P. 826 (1927) ... " (citation omitted)); Williams v. Commonwealth, 810 

S.W.2d 511, 513 (Ky.1991) (given prejudice posed by use of booking photos at trial, they 

are inadmissible unless "'(1) the prosecution [had] a demonstrable need to introduce the 

photographs; (2) the photos themselves, if shown to the jury, [did] not imply that the 

defendant had a criminal record; and (3) the manner of their introduction at trial must be 

such that it [did] not draw particular attention to the source or implications of the 

photographs."' (quoting Redd v. Commonwealth, 591 S.W.2d 704, 708 (Ky. App. 1979))). 

7 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

35A-D, or 36A-D) would have been far more relevant, but racial differences are not 

always clearly apparent in them. 

Race is not a relevant fact in this case. It was a robbery-murder with a greed 

motive and a question about whether Mr. Walker, who was not present at the murder 

scene itself, orchestrated the crime and gave the kill order. The answer to that 

question was based mainly on witness credibility. Where credibility, not race, is the 

issue, such a powerful focus on race through altered evidence is error. 

In sum, I agree with the majority that a digital media presentation highlighting 

the prosecutor's personal opinion about Walker's guilt over and above the evidence, 

throughout closing, constitutes error under Glasmann. But many of the items of 

evidence listed above, ifleft unaltered, would not fall into that category. They would 

be evidence, which is what the prosecutor is supposed to use in closing argument. It 

is the fact that the evidence was altered in a way that emphasized the prosecutor's 

opinion and-perhaps unintentionally-the defendant's race that caused the 

problem.4 

4 There are certainly no explicit appeals to racial bias anywhere in the record. But 

we have recognized that our State criminal justice system is not immune from unconscious, 

implicit, racial bias and that we need to devise strategies to deal with it. Saintcalle, 178 

Wn.2d at 46-47 nn.3-6. We are not alone. The National Center for State Courts counsels 

that implicit bias is pervasive and operates without our awareness: "Unlike explicit bias 

(which reflects the attitudes or beliefs that one endorses at a conscious level), implicit bias 

8 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

II. The Elements Instruction Is Confusing Because It Allows the Jury To 

Convict One Alleged Participant in the Crime Based Solely On 

Another's Actions and Intent 

I also respectfully disagree with the majority's endorsement of an elements 

instruction that is confusing. Whether an elements instruction should permit the jury 

to convict one defendant upon proof that "an accomplice," but not the defendant, 

had the prohibited intent and that "an accomplice," but not the defendant, committed 

a prohibited act is a question of first impression in our court. Based on our case law, 

we must conclude that such an instruction might be confusing and, hence, we should 

not endorse it. 

The challenged elements instruction provides: 

To convict the defendant of the crime of premeditated murder in 

the first degree, [C]ount I, each ofthe following elements of the crime 

must be proved beyond a reasonable doubt: 

(1) That on or about [the] 2nd day of June, 2009, the defendant 

or an accomplice acted with intent to cause the death of Kurt Husted; 

(2) That the intent to cause the death was premeditated; 

is the bias in judgment and/or behavior that results from subtle cognitive processes (e.g., 

implicit attitudes and implicit stereotypes) that often operate at a level below conscious 

awareness and without intentional control." NAT'L CTR. FOR STATE COURTS, HELPING 

COURTS ADDRESS IMPLICIT BIAS: FREQUENTLY ASKED 

QUESTIONS, http://www.ncsc.org/~/media/Files/PDF/Topics/Gender%20and%20Racial% 

20Fairness/Implicit%20Bias%20FAQs%20rev.ashx (last visited Jan. 8, 2015). 

9 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

(3) That Kurt Husted died as a result of the defendant's or an 

accomplice's acts; and 

( 4) That any of these acts occurred in the State of Washington. 

If you find from the evidence that each of these elements has 

been proved beyond a reasonable doubt, then it will be your duty to 

return a verdict of guilty. 

On the other hand, if, after weighing all of the evidence, you have 

a reasonable doubt as to any one of these elements, then it will be your 

duty to return a verdict of not guilty. 

Clerk's Papers (CP) at 216 (emphasis added). 

The majority identifies the issue as whether a single error in the elements 

instruction, which permitted the jury to "split" the elements of the crime between the 

defendant and a different participant, is improper. But the real issue is whether the 

double error shown by the elements instruction above, which actually permitted the 

jury to convict Walker even if he did nothing and a different participant was the only 

one harboring the prohibited mens rea and doing the prohibited acts, is improper. 5 

The answer to that question is that such an instruction can be read as relieving 

the State of the burden of proving that Walker harbored the intent or committed the 

acts required for murder. It can even be read to relieve the State of the burden of 

5 The majority's note 8 argues that given the amount of evidence against Walker, 

the jury could not possibly have convicted Walker on an improper basis. Majority at 19 n. 

8. The majority is probably correct about this. But that just means that the error I discuss 

below was harmless. It was, however, still an error. 

10 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

proving that Walker harbored the lesser mens rea of knowledge or committed the 

more limited act of "aid[ing]" required for accomplice liability. In fact, instruction 

13 tells the jury that it could convict Walker even if a different participant had "intent 

to cause the death" but that Walker did not, and a different participant "acted" with 

that intent and committed "acts" causing death but that Walker did not. Id. 

It is certainly true that under Washington law, a jury can convict a defendant 

as an accomplice even if that defendant does not have the same intent as the principal 

(or as any other participant) and who 9id not commit the same acts as the principal 

(or as any other participant). A jury can convict a defendant as an accomplice if that 

defendant is the one who "( 1) solicits, commands, encourages, or requests another 

person to commit the crime; or (2) aids or agrees to aid another person in planning 

or committing the crime." 11 WASHINGTON PRACTICE: WASHINGTON PATTERN 

JURY INSTRUCTIONS: CRIMINAL 10.51 (3d ed. 2008); see also RCW 

9A.08.20(3)(a)(i), (ii); State v. Roberts, 142 Wn.2d 471, 510, 14 P.3d 713 (2000); 

State v. Cronin, 142 Wn.2d 568, 576-77, 14 P.3d 752 (2000). It is not necessary for 

the accomplice's mens rea to match the crime's mens rea; a jury can convict a 

defendant as an accomplice even if that defendant has only '"knowledge that [his or 

her acts] will promote or facilitate the commission of a crime,"' not intent. State v. 

Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577 (1991) (quoting State v. Guloy, 104 

11 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

Wn.2d 412, 431, 705 P.2d 1182 (1985)). This means that a jury could convict 

Walker if he were "'present at the scene and ready to assist,"' State v. Rotunno, 95 

Wn.2d 931, 933, 631 P.2d 951 (1981), even if he did not have premeditated intent 

to kill and did not himself commit the murder. In fact, a jury could convict Walker 

as an accomplice even if the principal was not prosecuted or convicted. RCW 

9A.08.020(6); accord State v. Cleman, 18 Wn. App. 495, 499-500, 568 P.2d 832 

(1977). 

But a jury cannot convict Walker if he did nothing objectionable at all. The 

jury must find, at the very least, that he had knowledge of "the crime" to be 

committed and that he acted with knowledge that his conduct would promote or 

facilitate that crime. Roberts, 142 Wn.2d at 510-11; Cronin, 142 Wn.2d at 579 

(conviction reversed); State v. Evans, 154 Wn.2d 438, 114 P.3d 627 (2005) 

(reversing felony murder; jury instruction allowed conviction on murder without 

finding he personally attempted or committed the robbery if it found he was only an 

accomplice to theft); see also In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 

835-36, 39 P.3d 308 (2001) (State must prove accomplice had knowledge of the 

crime to be committed, but the State does not have to prove that accomplice knew 

details of that crime, such as its degree or elements); see generally State v. WR., _ 

Wn.2d _, 336 P.3d 1134 (2014) (the due process clause requires the State to prove 

12 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

all elements of charged crime-as defined by the applicable state statute-beyond a 

reasonable doubt). 

A jury instruction stating that the jury could convict the defendant of 

premeditated murder even if someone else had the prohibited intent or knowledge 

and someone else committed the prohibited act or facilitation does not ensure that 

that standard is satisfied. That is why instruction 13 can be confusing. 

It is true that instruction 13 requires the jury to find that the other participant 

who had the prohibited intent and committed the prohibited act was "an 

accomplice." CP at 216. Instruction 9 then defines "accomplice" as one who "either 

... encourages ... another person to commit the crime; or ... aids ... another 

person in ... committing the crime." CP at 212 (emphasis added). It doesn't say 

who the other person has to be, whether it has to be the defendant identified in the 

"to convict" instruction or one of the other participants, or what the definition of 

"another person" or "participant" is. In sum, the court's instructions require too 

many unclear cross-references to ensure that the jury concluded that Walker was a 

principal or an accomplice. 

The majority and the Court of Appeals cite several decisions in support of 

their conclusions to the contrary and imply that those cases show that the wording 

of this elements instruction is well accepted in Washington law. One of these cases 

13 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

is State v. Mak, 105 Wn.2d 692, 740, 718 P.2d 407 (1986), overruled on other 

grounds by State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994) (cited by majority at 

20). But the "to convict" instruction in Mak was strikingly different than the "to 

convict" instruction here. In Mak, the "to convict" instruction listed the following 

elements: 

"(1) That on ... February, 1983, the defendant or an 

accomplice caused the death of the individual named; 

"(2) That the defendant acted with the intent to cause the death; 

"(3) That the defendant acted with premeditated intent to cause 

the death; 

"( 4) That the death was a result of the acts of the defendant or 

his accomplice; 

"( 5) That one or more of the following aggravating factors was 

present." 

Mak, 105 Wn.2d at 740. There are two critical differences between Mak and this 

case. First, in Mak, the defendant did not raise and the court did not consider the 

issue raised here. The only challenge to accomplice liability raised in Mak was 

whether "the defendant could be convicted of aggravated murder in the first degree 

based on an accomplice theory." !d. at 739. Second, in Mak, the court added the 

words ''or his accomplice" only to the elements involving the cause of death, not to 

the elements concerning intent. See id. at 7 44 (discussing the instruction with 

14 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

approval in part because the words "or an accomplice" were added only to the 

elements concerning cause of death, not the elements concerning intent). Thus, the 

Mak elements instruction did not suffer the same infirmity as the elements 

instruction in this case. 

Another case that the majority and the Court of Appeals cite to support the 

notion that a "to convict" instruction like the one used in this case is well accepted 

in Washington law is State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991). 

Majority at 20; State v. Walker, 178 Wn. App. 478,486-87,315 P.3d 562 (2013). In 

Hoffman, this court made several general statements about accomplice liability that 

remain correct today, even after Roberts and Cronin, such as: 

[T]he accomplice liability statute predicates criminal liability on 

general knowledge of the crime and not on specific knowledge of the 

elements of the participant's crime. Accomplice liability represents a 

legislative decision that one who participates in a crime is guilty as a 

principal, regardless of the degree of the participation. 

116 Wn.2d at 104 (footnote omitted). 

But with respect to the particular issue about the correct phrasing of the 

elements instruction, Hoffman provides the majority with no help. The elements 

instruction in Hoffman actually required the jury to find that the defendant personally 

committed unlawful acts and personally harbored an unlawful intent before the jury 

15 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

could convict him (the court defined "accomplice liability" in a separate instruction); 

the elements instruction stated: 

"To convict a Defendant of the crime of Murder in the First 

Degree, each of the following elements of the crime must be proved 

beyond a reasonable doubt: 

"(1) That on or about the 27th day of August, 1986, the 

Defendant shot Louis A. Millard; 

"(2) That the Defendant acted with intent to cause the death of 

Louis A. Millard; 

"(3) That the intent to cause the death was premeditated; 

"(4) That Louis A. Millard died as a result of Defendant's acts; 

and 

"(5) That the acts occurred in Okanogan County, Washington." 

!d. at 107-08. The elements instruction in this case was totally different. If the court 

had used this Hoffman instruction, no error would have occurred. 

Another case cited in support of the elements instruction used here is State v. 

Haack, 88 Wn. App. 423, 958 P.2d 1001 (1997). See majority at 20; Walker, 178 

Wn. App. at 486. In Haack, the Court of Appeals did state that a jury could convict 

even if one participant in a group crime held one intent, another participant held 

another intent, and different participants committed different acts with differing 

levels of culpable intent or knowledge, causing different levels of harm. But the 

court in Haack did not hold that a jury could convict a defendant without the State 

16 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

proving that the defendant held any objectionable mens rea or committed any 

objectionable act at all. Instead, the Haack court stated, 

So long as the State proved beyond a reasonable doubt ... that at least 

one of the participants intended to inflict great bodily harm and at least 

one but not necessarily that same participant inflicted great bodily harm 

during the attack on the victim, the jury with its differing viewpoints as 

to what actually happened could rationally convict all the participants 

of first degree assault, including Participant D, who struck no blows 

and who did not intend to inflict great bodily harm, but who acted as a 

lookout to alert the remaining participants if the police should arrive. 

88 Wn. App. at 429 (emphasis added). Thus, the Haack court actually held that a 

jury cannot convict a defendant charged with the group's acts unless the State proves 

that that specific defendant is a "participant[]," that that specific defendant took 

actions to further the crime ("acted as a lookout"), and that that specific defendant 

took those actions to facilitate the crime ("to alert the remaining participants if the 

police should arrive"). Id. The elements instruction here contains none of these 

prerequisites to conviction. 

Finally, the majority cites to State v. McDonald, 138 Wn.2d 680, 981 P.2d 

443 (1999), as support for the either-or elements instruction given in this case. 

Majority at 20. But the only holding of the McDonald case with regard to 

accomplice liability is that accomplice and principal liability are not alternative 

means of committing the crime and hence they are not subject to our jurisprudence 

on jury unanimity regarding means of commission of a crime. 138 Wn.2d at 687-

17 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

88. Like the decisions cited above, the court in McDonald clearly required the State 

to prove that the defendant was a culpable ""participa[nt]"' in the crime and that the 

defendant facilitated the crime while having knowledge of the crime, "Here the 

jurors need not have decided whether it was Bassett or McDonald who actually killed 

Michael 'so long as both participated in the crime.' State v. Hoffman, 116 Wn.2d 

51, 105, 804 P.2d 577 (1991)." Id. at 688. And, in fact, as the McDonald court 

described in detail, the State certainly bore that burden of proof in that case: 

Even if the jury concluded that McDonald did not act as a 

principal when he shot Michael in the head, it could have found that 

McDonald aided Bassett in the commission of a crime. McDonald, by 

his own admission, shot Michael Bassett in the head while he was still 

alive. Surely a more compelling example of participation in a crime 

could not be found. We have written that "it matters not that some jurors 

may have believed that the petitioner fired the gun, while others may 

have believed that his only role was in aiding and abetting [the other 

participant], so long as all twelve agreed that he did participate." 

Id. at 690 (emphasis added) (alteration in original) (internal quotation marks 

omitted) (quoting Hoffman, 116 Wn.2d at 1 05). 

I therefore respectfully disagree with the majority's statement that the 

elements instruction used in this case is well accepted by this court. I also disagree 

with its conclusion that the elements instruction accurately and clearly describes the 

law of accomplice liability for the jury. I think that it is far less confusing to instruct 

the jury on the elements of the crime in one instruction (without using the alternative 

18 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

"or an accomplice" in that elements instruction) and to provide a definition of 

"accomplice liability" in a separate instruction. Each party can then argue its theory 

without fear that the jury will convict based upon association, rather than based upon 

the defendant's acts and knowledge. 

III. Conclusion 

I agree with the majority's decision to reverse Walker's conviction due to 

prosecutorial misconduct. I respectfully disagree with its statements about the 

proper wording of an elements instruction in a case where the court also gives an 

accomplice liability instruction. The far better practice is to provide the jury with 

the elements of the crime in one instruction, without an either-or clause about who 

must commit those elements, and to provide the jury with the definition of 

"accomplice liability" in a separate instruction. I therefore concur. 

19 
State v. Walker (Odies Delandus), No. 89830-8 

(Gordon McCloud, J., Concurring) 

20