# 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 DELANDUS WALKER, Petitioner. ) ) ) ) ) ) ) ) ) ) 

## _______________________) 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. Theprimary question inthis case is whether those convictions must be reversed in light ofthe Power Point presentation the prosecuting attorney used during closing argument. Thatpresentation repeatedly expressed the prosecutor's personal opinion on guilt-over 100 ofits approximately 250 slides were headed withthe words "DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER," and one slide showedWalker's booking photograph altered with the words "GUILTYBEYOND A REASONABLE DOUBT," which were superimposed overhis face in bold red letters. The prosecutor also appealed toState v. Walker, No. 89830-8 passion and prejudice byjuxtaposingphotographs ofthe victim withphotographs ofWalker and his family, some altered with the addition ofinflammatory captions and superimposed text. While the prosecutor is entitled to draw thejury's attention to admitted evidence, those slides, as presented, served no legitimate purpose. Theirprejudicial effect could not have been curedby a timely objection, and we cannot conclude with any confidence that Walker's convictions were the result ofa fair trial. Consistent with both long-standing precedent and ourrecent holding inIn


### re PersonalRestraint 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 ofthe events. During the relevant time period, Walker lived with his girlfriend, Tonie Marie Williams-Irby; several oftheir 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 pickup the store's daily receipts and knew the average daily amount ofthose receipts from staffmeetings. Several weeks later, Walker discussed the armored truck with Finley and Jonathan, saying it wouldbe "easymoney." 7 Verbatim Report ofProceedings (VRP) at 656.

2State v. Walker, No. 89830-8 Jonathan was later excluded from the robbery discussions. Otherpotential 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 preliminaryplanning 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 wouldprovide a gun. Williams-Irby was aware ofthese plans and would regularly answer Walker's questions about the amount ofthe store's daily receipts. On the day ofthe crime, Walker drove Williams-Irbyto work and asked her to find out what the day's receipts wouldbe. Williams-Irbywent to the daily staff meeting and reported to Walkerthat 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 pickup the money, Finley and Turpin enteredthe store while Walker remained in the Buick. Finleywas 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 alleybehind a friend's house to ditch the car. Walker laterreturned to the Walmart to pickup the gold Nissan.

3State v. Walker, No. 89830-8 When Williams-Irby returned home from work, Walker told herthat they needed to go to where he had left the Buick so he could wipe awayhis 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 herthat he was in the white Buickin 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 Walkertold 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 ofthe cash, Walker, Finley, and Turpin placed the clothes theywere wearing during the robbery and the nowempty moneybag into a plastic bag, which Finley discarded in a nearbyriver. 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 Walkerbought two safes and a video game system. Walker kept one safe for himselfand drove back to Fife to give the other safe to Finley. Walker and Williams-Irby then returned home, where Walkerput a gun and his share ofthe robberyproceeds in his safe and put the safe and the video game system in his bedroom closet.

4State v. Walker, No. 89830-8 Walker then tookWilliams-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. Walkerpaid the bill for the meal, nearly $200, in cash. Policepulled over and arrested Walker and Williams-Irby as they drove home from the restaurant. Williams-Irby toldpolice she didn't know anything. When interviewedbypolice, Walker denied having any involvement withthe 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 conspiracyto 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 whythe police stopped him. Why did you arrest me? I didn't do anything. I had nothing to do with it. Mywife, Williams-Irby, she didn'thave anything to do with this. He is lying like crazyto the police. Williams-Irbypled 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 ofthis case, we are going to ask you to convict the defendant ofeach one, every one ofthese righteous charges that
5State 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 prosecutorutilized a Power Pointpresentation made up ofapproximately 250 slides. Over 100 ofthose slides have the heading "DEFENDANT WALKER GUlLTY 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 OFASSAULT 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 "GUlLTYBEYOND A REASONABLE DOUBT" over Walker's booking photo. 

### !d. at 87. The record contains only grayscale copies ofthe slides, but the briefing indicates that the lettering was inbright red. See Pet'r's Suppl. Br. at 2.

6State v. Walker, No. 89830-8 Pl.'s Ex. 243, at 87. There is a series ofslides suggesting Walker is guiltybecause he used the stolen money for video games and lobster. The first asserts, "DefendantWalker is GUILTY as an ACCOMPLICE to the murderbecause 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 ofWalker 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 WelmartState 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 ofmoney seized bypolice with the heading "MONEY IS MORE IMPORTANT THAN HUMAN LIFE":



### !d. at 5. Itwas not alleged that Walker, or anyone else, actually said those words. Anotherparticularlyproblematic example ofadmitted exhibits altered with inflammatorytext comes nearthe end ofthe presentation. First, a slide depicts an in-lifephotograph ofthe victim with a superimposed heading reading "DEFENDANT'S GREED AND CALLOUS DISREGARD FORHUMAN LIFE" and text detailing the money stolen and its distribution amongst the participants. 

### !d. at 88. That slide isjuxtaposed with the one immediately following it, the same photograph ofWalker and his family eating dinner at the Red Lobster used earlier, but this time with a caption '"THIS IS HOWYOU MURDERAND

8State v. Walker, No. 89830-8 ROB NIGGERS NEXT TIME IT WILL BE MORE MONEY.'"

### Id. 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-lifephotograph ofthe victim. 

### Id.



### Id. at 88-89. Duringthe State's closing, Walker's attorneyunsuccessfully objected to the State's discussion ofpremeditation and a slide analogizing premeditation to

9State 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 ofall charges. He appealedhis convictions, claiming prosecutorial misconduct, improperjury instructions, and ineffective assistance ofcounsel. In a partiallypublished opinion, the Court ofAppeals affirmed the convictions. 

### State v. Walker, 178 Wn. App. 478, 315 P.3d 562 (2013) (published in part). Walkerpetitioned for review. 1The 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 inthe PowerPoint presentationused 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 wereverse Walker's convictions due to prosecutorial misconduct, we do notreach Walker's claim that he received ineffective assistance ofcounsel. 2In its supplemental brief, the Statereasserts the cross assignment oferrorit raised on direct appeal. Thatissue is notproperlybeforeus, and we will not consider it. RAP 13.4(d). 3Walker also contends the prosecutor committed misconduct during opening statements. The prosecutor's assertion that Walker was "lyinglike crazy" because his statements to the police conflicted withWilliams-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 whetheritwas reversible errorbecause the impropriety ofthe prosecutor's closing was so egregious. 10State v. Walker, No. 89830-8 validity ofconvictions obtainedbyusing them. We reject the State's arguments that Glasmann is materially distinguishable and should be disavowed in part and holdthat, as in Glasmann, the State's PowerPointpresentation requires reversal of Walker's convictions. A. The prosecutor's duty is to seekjustice, not merely convictions We have had numerous occasions to point out the dual roles ofaprosecutor. "Aprosecutor must enforce the law byprosecuting those who have violated the peace and dignity ofthe state bybreaking 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 ofthe people in a quasijudicial capacity in a search forjustice."Id. A prosecutor does not fulfill either role by securing a convictionbased onproceedings that violate a defendant's right to a fair trial-such convictions in fact undermine the integrity ofour entire criminaljustice 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 ofthe state, and presumed to act impartially in the interest only of justice. Ifhe lays aside the impartialitythat should characterize his official action to become a heated partisan, and byvituperation ofthe
11State v. Walker, No. 89830-8 prisoner and appeals to prejudice seeks to procure a conviction at all hazards, he ceases to properlyrepresent the public interest, which demands no victim, and asks no conviction through the aid ofpassion, sympathyorresentment." 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 mayuse multimedia resources in closing arguments to summarize and highlight relevant evidence, and good trial advocacy encourages creativeuse ofsuch tools. Moreover, closing arguments are an opportunity for counsel to argue reasonable inferences from the evidence. However, advocacyhas its limits, and a prosecutorhas the dutyto "subdue courtroom zeal," not to add to it, in orderto
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 ofthe savage, bythe number oftheir victims."' (quoting State v. Montgomery, 56 Wash. 443,447-48, 105 P. 1035 (1909))). Inreversing 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 opportunityto correct the misconduct and cautionjurors to disregard it. Itprevents abuse ofthe appellate process and saves the substantial time and expense ofa new trial. State v. Emery, 174 Wn.2d 741, 761-62, 278 P.3d 653 (2012). However, the failure to object will
12State 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 ofincurable 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 orhis or her family and the expense ofa new trial. B. The prosecutor committed egregious misconduct in its closing PowerPointpresentation A defendant arguing that prosecutorial misconduct violated his or her right to a fair trial has the burden ofshowing the prosecutor's conduct was both improper and prejudicial in the context ofthe entire trial. 

### Glasmann, 175 Wn.2d at 704. And where a defendant raises the issue for the first time on appeal, the defendant must also show "thatthe 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 ofthe prejudice causedbythe violation ofexisting prosecutorial standards and whether thatprejudice could have been cured with a timely objection. 

### Emery, 174 Wn.2d at 762. Wehave no difficulty holding the prosecutor's conduct inthis case was improper. Closing argument provides an opportunityto draw thejury's attention to
13State v. Walker, No. 89830-8 the evidence presented, but it does not give aprosecutorthe right to present altered versions ofadmitted evidence to support the State's theory ofthe case, to present derogatory depictions ofthe defendant, 4 orto 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 ofan accused." The prosecution committed serious misconduct here in the portions ofits PowerPoint presentation discussed above-itincluded multiple exhibits that were altered with inflammatory captions and superimposed text; it suggested to thejurythat Walker should be convicted because he is a callous and greedyperson who spent the robbery proceeds on video games and lobster; it plainlyjuxtaposedphotographs ofthe victim withphotographs ofWalker and his family, some altered with racially inflammatorytext; and it repeatedly and emphatically expressed a personal opinion
onWalker'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 ofthe prosecutor's

4 We agree with that portion ofJustice Gordon McCloud's concurrence noting that some ofthe State's PowerPoint slides implicitly encouraged a verdict specificallybased onracial prejudice.

14State v. Walker, No. 89830-8 opinion on the defendant's guilt, and clear efforts to distract thejuryfrom its proper function as a rational decision-maker. Glasmann required thejuryto analyze the "nuanced distinctions" between different degrees ofoffenses. 

### !d. at 710. The issue at trial here was the extent, ifany, ofWalker's involvement in the crimes, requiring thejuryto make sense ofa multistage criminal scheme with several participants playing separate roles. The State's PowerPointpresentation obfuscated the complicated facts presented to thejuryhere 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 thejuryto disregard the improper slides. 5 Our analysis of"prejudicial impact" does not rely on a review ofsufficiency ofthe evidence. The Court ofAppeals minimized the prejudicial impact because "the State's case was strong and Walker's theory was not nearly as plausible as the defendants' theories inReed 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-enoughto affirm the convictions had the defendant challenged the sufficiency ofthe evidence-"[t]he focus must be on the misconduct and its impact, not on the evidence that was properly admitted."

5We decline the State's invitation to adopt the plain error standard contemplated byFed. R. Crim. P. 52(b). 15State v. Walker, No. 89830-8 Glasmann, 175 Wn.2d at 711. The voluminous number ofslides depicting statements ofthe prosecutor's beliefas to defendant's guilt, shown to thejuryjust before it was excused for deliberations, is presumptivelyprejudicial and mayin fact be difficult to overcome, even with an instruction. Equallytroubling is the Court ofAppeals' suggestion that to be entitled to a fair trial, Walkerhad the duty to come up with some plausible defense theory beyond the State's failure to meet its burden ofproofand to produce evidence in support. Walker, slip op. at 16-17 (unpublished portion). This suggestion disregards "thebedrockupon which the criminaljustice system stands"-every defendant is entitled to a presumption ofinnocence, which is overcome only when the State proves guilt beyond a reasonable doubt as determined byan impartialjury 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 invitationto 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 properpurpose. Nearly 30 years ago, the Court ofAppeals observed that "in order

6Glasmann does nothold that the colorred is inherentlyprejudicial, that the use ofall capital letters always constitutes shouting, orthat the word "guilty," whenpresented as a written word in a visual aid, always constitutes an improper expression ofthe prosecutor's opinion on guilt. Because itmisconstmes ourholdings, we need not consider the State's argument that we should disavow them. 16State v. Walker, No. 89830-8
to help thejurymore easilyunderstand other evidence, modern visual aids can and should beutilized. A trialjudgemust, however, be careful to avoid letting the visual aids beused more for their shockvalue than to educate." State v. Strandy, 49 Wn. App. 537, 541-42, 745 P.2d 43 (1987). There is also nothing new about the ideathat 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 ofsuch visual presentations, we encourage trial courtjudges to intervene and to preview such slides before they are shown to ajury. Providing the presidingjudicial officer with a printed copy ofthe Power Point slides in advance is not burdensome and could curtail the necessity ofa retrial due to misconduct. Walkerhas met his burden ofshowing that the State committed prosecutorial misconduct that was so prejudicial and flagrant that it denied Walker his constitutional right to a fair trial. II. Thejurywas properly instructed on the law ofaccomplice liability While prosecutorial misconduct committed at trial is dispositive, we address Walker's challenge to thejuryinstructions in case the issue is raised onremand. Ourreview ofthe legal sufficiency of juryinstructions is de novo. State v. Barnes, 153 Wn.2d 378, 382, 103 P.3d 1219 (2005). Jury instructions are not legally

17State v. Walker, No. 89830-8 sufficient iftheyrelieve the State ofits 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, "Aperson commits the crime ofpremeditated murder in the first degree, as charged in Count I, when, with
a premeditated intent to cause the death ofanotherperson, he or an accomplice
causes the death ofanother person." Clerk's Papers at 213. The to-convict instn1ction reads: To convict the defendant ofthe crime ofpremeditated murder in the first degree, [C]ount I, each ofthe following elements ofthe crime must beprovedbeyond a reasonable doubt: (1) That on or about [the] 2nd day ofJune, 2009, the defendant or an accomplice acted with intent to cause the death ofKurt Husted; (2) That the intent to cause the death was premeditated; (3) That Kurt Husted died as a result ofthe defendant's or an accomplice's acts; and (4) That any ofthese acts occurred inthe State ofWashington. Ifyou find from the evidence that each ofthese elements has beenproved beyond a reasonable doubt, then it will beyour duty to return a verdict ofguilty. Onthe otherhand, if, after weighing all ofthe evidence, you have a reasonable doubt as to any one ofthese elements, then it will be your duty to return a verdict ofnot guilty.

7Walker objected to the to-convict instruction at trial, 12 VRP at 1331, but did not objectto the definitional instruction. Jury instructions that relieve the State ofits burden to prove every element ofthe crime charged maybe considered for the first time onreview. State v. 0 'Hara, 167 Wn.2d 91, 100-01,217 P.3d 756 (2009). 18State v. Walker, No. 89830-8 Jd. at 216. Walker argues these instructions allowed thejuryto convict him as an accomplice to premeditated murder even ifthejurymayhave believedthat the principal (Finley, the shooter) had committed only intentional murder without premeditation. This, Walker argues, relieved the State ofits burden ofproving 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 ofknowledge or intent shared between an accomplice and principal maybe a highlyrelevant issue. See, e.g., State v. Roberts, 142 Wn.2d 471, 505, 14 P.3d 713 (2000). We do not foreclose the possibilitythat the level ofshared intent maybe 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 "ifit is committed bythe conduct ofanotherperson." 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 "legallyincapable" ofcommitting

8 The concurrence ignores the evidencepresented inthis case and instead attempts to gradually erode accomplice liability under a hypothetical case. See concurrence (Gordon McCloud, J.) at 9, 13. Contraryto the suggestion that thejurors might have convicted Walker even ifhe 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 Finleyto shoot. Jurors are not so easily confusedbymultiple instmctions and are capable oflmderstandingthe difference between guiltby association and guiltbecause a person helped plan and carry out a murder.

19State v. Walker, No. 89830-8 the crime, RCW 9A.08.020(4), and that one can be convicted as an accomplice
even ifthe principal is not prosecuted for or convicted ofthe same (or any) crime, RCW 9A.08.020(6). Walker concedes that this court and the Court ofAppeals have affirmed other convictions where ajurymayhave 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 FaiMak, 105 Wn.2d 692, 743-45, 718 P.2d 407 (1986), rejected inparton othergrounds by State v. Hill, 123 Wn.2d 641, 645, 870 P.2d 313 (1994). As heldbythe Court of Appeals below, the law ofaccomplice liability allows thejuryto reach a convictionby splitting the elements ofpremeditated first degree murder between accomplices. Walker, 178 Wn. App. at 486 (citing Haack, 88 Wn. App. at 427-28). A convictionbased on split elements maybe affirmed "[s]o long as the State provedbeyond a reasonable doubt to the satisfaction ofall ofthejurors that at least
one ofthe 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 physicallypresent at the shooting, while in Haack, Hoffman, andMcDonald there was evidence that the defendant was physicallypresent. In some cases this might be an important factual distinction, but

20State v. Walker, No. 89830-8 here it is not. A trial court'sjuryinstructions must be considered in the context of the case actuallypresented. In this case the State introduced evidence that Walker and Finleyplanned the crime ahead oftime, such that Finley could have premeditated intent and caused the death. It also introduced evidence that Walker contemporaneouslyparticipated in the crime via cellularphone, and in fact ordered the shooting, suchthat Walker could also have bothpremeditated and partially caused the death. 9 Walker concedes that splitting the elements makes sense when there is evidence that bothparticipants acted as principals. Such evidence was presented here, and the instructions wereproper. III. The lack ofa unanimityinstruction on accomplice liability did not violate Walker's right to a unanimousjuryverdict Walker also argues that thejuryinstructions discussed above, when given without a unanimityinstruction, violatedhis right to a unanimousjuryverdict. We have alreadyrejected this argument because principal and accomplice liability are not alternative means. Hoffman, 116 Wn.2d at 104-05. The Court ofAppeals correctly concluded that thejuryneeds to unanimously find only that both the principal and accomplice participated in the crime; it need not unanimously conclude as to the manner ofparticipation. It does not matterinthis case that

9Itis 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). 21State v. Walker, No. 89830-8 Finley, not Walker, performed the actual shooting given Walker's level of involvement and participation. Walkerurges us to disavow this precedent, arguing that the right to a unanimous verdict under article I, section 21 ofthe Washington Constitution is greater than that provided in the United States Constitutionunder State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808 (1986). A Gunwall analysis is appropriate where the contours ofthe Washington Constitution are not fully developed, but on this issue
ourprecedent 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 ornot an accused person has a constitutional right tojuryunanimity as to the mode ofparticipation in a felony accomplice case, and we decline to do so without sufficient analysis. CONCLUSIONS We affirm the Court ofAppeals' holding that thejuryinstructions properly stated the law on accomplice liability and did not violate Walker's right to a unanimousjuryverdict. However, we reverse its conclusion that Walker received a fair trial in light ofthe prosecutorial misconduct the State committed in its closing argument and we reverse Walker's convictions and remand for a new trial.

22State 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 ofOdies Delandus Walker's conviction, consistent with our decision in In re Personal Restraint ofGlasmann, 

### 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, IjoinJustice Gordon McCloud's concurrence on this issue. In light of the court's holding on prosecutorial misconduct during closing argument, ifis unnecessary to opine on any other issues. Nonetheless, the majority and concurrence correctlyrecognize thatthe trial court on remand maybenefit from guidance with respect to the jury instn1ctions addressing accomplice liability. I concurin the majority's resolution ofthis 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-ratherthan the former, impermissible category. I write separately to try to clarify the difference between the two categories: the permissibleuse ofunaltered, admitted, butvery damaging evidence on the one hand and the impermissible use ofinflammatory 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. Iwrite separatelyto explainthemajority'sperhapsunstated assumption: those slides
are inflammatory and prejudicial because theyhighlight the defendant's race.
1State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)

I also write to disagree with the majority's endorsement ofthe wording ofthe elements, or "to convict," instruction. That instruction allowed thejuryto convict if either the accomplice "or" the defendant held a specific mens rea and either the accomplice "or"the defendantcommitted specific acts. Itis confusing. Theproblem is notjustthe onethemajorityaddresses, i.e., thatthe instruction allows a conviction
even ifthejury concludes that the prohibited act and the prohibited mens rea are "split" between the defendant and some otherparticipant. The problem is that such
an instruction couldbe readto allow thejuryto convict evenifitconcludes that both theprohibited act andtheprohibitedmens rea are attributable to anotherparticipant, and not to the defendant. I would not endorse that language but would advise trial courts to go backto using an accomplice liabilityinstruction along with a simple "to convict" instruction referring solely to the defendant. The combination ofthe two allows thejuryto convict the defendant as eitherprincipal or accomplice without all the confusion. Forthese reasons, I respectfully concur. I. The Prosecutor Committed Misconduct by Vouching and by Making InflammatoryArguments, but NotbyUsing Admitted Evidence The majority correctly explains that it is impermissible for the prosecutor to vouch for the credibility ofwitnesses, to appeal to jury prejudices, or to convey a personal opinion about the defendant's guilt. In re Pers. Restraint ofGlasmann, 175 2State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)

Wn.2d 696,286 PJd673 (2012); State v. 

### Lindsay, 180 Wn.2d 423,432,437, 326 P.3d 125 (201.4). The majority tracks the closing argument inthis case and explains how the deputy prosecutor committed each of those errors, again and again, during closing. But not all ofthe images pictured on the Power Point slides that the majority criticizes contain personal opinions about guilt. Some of them contained actual quotations from orportions ofphotos from properlyadmitted evidence, orboth. 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 certainlyprobative ofwhetherhe is the one who committed andbenefittedfrom thatrobbery. 1 Andtherecord further shows that witness Williams-Irby testified, when referring to both the murder and the robbery, that it was Walker himselfwho 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 ofunusual amounts ofmoney around the time ofthe robbery
... is relevant in that it has some tendency to make it more probable that [the defendant] committed the robbery"). 3State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)

murderthese n[,
___ ] and get this money. The next time, it will bemore 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. ER401. 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 withthemajoritythatthe slide containingthe "n

---

### " quote was improper. I write separatelyto explain why. Theproblemis thatthe state alteredthephoto (Ex. 210) oftheblackdefendant and his black family, at dinner, by superimposing on it a quote highlighting race as
some kind ofimportant factor with the moniker, "niggers." There is no denying that this word is powerful, gripping, and emotional. But it was irrelevant-therewas no indication of a racial motive in this case, and indeed, the victim apparently referenced was not evenblack In context, placing that quote on that photograph of the defendant's blackfamily did notjustalterbothpieces ofevidence in violation of Glasmann. It also created imagery highlighting the defendant's race-his

4State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)

blackness-in a case where that had absolutely no relevance. That alteration ofthe evidence is inflammatory, whethertheprosecutor intended it ornot. 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. at779. A trier offact 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 andjudges 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 RacialBias in Public Defender Triage, 122 YALE L.J. 122 (2013) (analyzing unconscious race bias inpublic defender decision-maldng). As our court statedinSaintcalle, 178 Wn.2dat 34,42 n.l, "'[B]iaspervadesthe entirelegal system in general and hence [minorities] do not trust the court system to resolve their disputes or administerjustice evenhandedly."' (Quoting TASK FORCE ON RACE AND THE CRIMINAL JUSTICE SYSTEM, PRELIMINARYREPORT ONRACEAND WASHINGTON'S CRIMINALJUSTICE SYSTEM at 6 (2011) (second alteration in original), available at http://www.law.washington.edu/About/RaceTaskForce/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. 5State 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 ofstatement for thejury. Nevertheless, I agree with the majoritythat all the slides ofthebooking 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, thebookingphoto was used as
a part-one-sixth-of the photo montage (Ex. 74A) that an independent witness viewedbefore 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'
6State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring) booking photo excised from a part ofexhibit 74A with a superimposed quote. The next problem is that, in context, superimposing that text on a booking photo ofthe defendant from after the crime, looking disheveled, antisocial, and tough, highlights the defendant's appearance at booking. That is an irrelevant fact. Use ofone ofthe many photos ofthe 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 ofaffectingthe

### jur~ opinion ofthe 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 maybe admitted only ifit 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 bookingphoto withthe word 'GUILTY' written across his batteredface." (citing Glasmann with approval andholding that this constitutedprejudicial error));Area v. State, 71 Md. App. 102, 105-06, 523 A.2d 1064 (1987) (abuse ofdiscretion to admit mug shots ofdefendantinaphoto arraywhereidentitywas notinissue); 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 ofWashington has itselfseenprejudicial inferences inthe 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) (givenprejudice posedbyuse ofbooking 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 oftheir introduction at trial must be such that it [did] not draw particular attention to the source or implications of the photographs."' (quotingReddv. Commonwealth, 591 S.W.2d704, 708 (Ky. App. 1979))). 7State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)
35A-D, or 36A-D) would have been far more relevant, butracial differences are not always clearly apparent in them. Race is not a relevant fact in this case. Itwas a robbery-murder with a greed motive and a question about whetherMr. Walker, who was notpresent at the murder
scene itself, orchestrated the crime and gave the kill order. The answer to that question was based mainly onwitness credibility. Where credibility, not race, is the issue, such a powerful focus on race through altered evidence is error. In sum, I agree withthemajoritythat a digital mediapresentationhighlighting the prosecutor's personal opinion about Walker's guilt over and above the evidence, throughout closing, constitutes error under Glasmann. But many ofthe items of evidencelisted above, ifleftunaltered, wouldnot fall into that category. Theywould be evidence, which is whattheprosecutor is supposedto 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 haverecognizedthatour State criminaljustice systemis notimmune fromunconscious, 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 (whichreflects the attitudes orbeliefs that one endorses at a conscious level), implicit bias 8State 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 instructionthatis confusing. Whether an elements instruction shouldpermitthejury to convict one defendant upon proofthat "an accomplice," but not the defendant, hadtheprohibitedintent andthat "anaccomplice," butnotthedefendant, committed
a prohibited act is a question offirst impressionin ourcourt. Based on ourcase law,
we must concludethat such an instructionmightbe confusing and, hence, we should not endorse it. The challenged elements instructionprovides: To convict the defendant ofthe crime ofpremeditated murder in the first degree, [C]ount I, each ofthe following elements ofthe crime mustbeproved beyond a reasonable doubt: 

### (1) That on or about [the] 

### 2nd day ofJune, 

### 2009, the defendant oran accomplice actedwith intent to cause the death ofKurt Husted; (2) That the intent to cause the death was premeditated;

is the bias injudgment 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).
9State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)
(3) That Kurt Husted died as a result 

### ofthe defendant's or an accomplice's acts; and (4) That any ofthese acts occurred in the State ofWashington. Ifyou find from the evidence that each ofthese elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict ofguilty. Onthe otherhand, if, afterweighing all ofthe evidence, youhave a reasonable doubt as to any one ofthese elements, then it will be your duty to return a verdict ofnot guilty. Clerk's Papers (CP) at 216 (emphasis added). The majority identifies the issue as whether a single error in the elements instruction, whichpermittedthejuryto "split" the elements ofthe crimebetweenthe defendant and a different participant, is improper. But the real issue is whether the double error shownbythe elements instruction above, which actually permitted the juryto convictWalker evenifhe did nothing and a differentparticipantwas 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 canberead as relieving the State ofthe burden ofproving that Walkerharbored the intent or committed the acts required for murder. It can even be read to relieve the State ofthe burden of

5 The majority's note 8 argues that given the amount ofevidence against Walker, thejurycouldnot possiblyhave convictedWalker on animproperbasis. Majorityat 19 n. 8. The majority is probably correct about this. Butthatjustmeans thatthe error I discuss below was harmless. It was, however, still an error. 10State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring) proving that Walker harbored the lesser mens rea ofknowledge or committed the
more limited act of"aid[ing]" required for accomplice liability. In fact, instruction 13 tells thejurythat it couldconvictWalkerevenifadifferentparticipanthad "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. Itis certainly true that under Washington law, ajury can convict a defendant
as an accomplice evenifthat defendant does nothavethe sameintent as theprincipal (or as any otherparticipant) and who 9id not commit the same acts as the principal (or as any otherparticipant). Ajurycan convict a defendant as an accomplice ifthat 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). Itis 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 ifthat defendant has only 

### '"knowledge that [his or her acts] will promote or facilitate the commission ofa crime,"' not intent. 

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

### State v. Guloy, 104
11State 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 ifhe were "'present at the scene and ready to assist,"' State v. Rotunno, 

### 95 Wn.2d 931, 933, 631 P.2d 951 (1981), even ifhe did not have premeditated intent to kill and did not himselfcommit the murder. In fact, ajurycould 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 ajury cannot convict Walker ifhe 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 hepersonally attempted or committed the robbery ifit 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 ofthe crime to be committed, but the State does not have to prove that accomplice knew details ofthat crime, such as its degree or elements); seegenerally State v. WR.,
_ 

### Wn.2d _, 336 P.3d 1134 (2014) (the due process clause requires the State to prove
12State v. Walker (Odies Delandus), No. 89830-8 

### (Gordon McCloud, J., 

### Concurring)

all elements ofcharged crime-as defined bythe 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 thejuryto find that the other participant who had the prohibited intent and committed the prohibited act was "an accomplice." CP at 216. Instruction 9then defines "accomplice" as one who "either

... encourages ... anotherperson 

### 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 ofthe 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 thejury concluded that Walker was a principal or an accomplice. The majority and the Court ofAppeals cite several decisions in support of their conclusions to the contrary and imply that those cases show that the wording ofthis elements instruction is well accepted in Washington law. One ofthese cases
13State 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 bymajority 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 ofthe individual named; "(2) Thatthe defendant acted withthe intentto cause the death; "(3) That the defendant acted withpremeditated intent to cause the death; "(4) That the death was a result ofthe acts ofthe defendant or his accomplice; 

### "(5) That one or more ofthe 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 ofaggravated murder in the first degree based on an accomplice theory." !d. 

### at 739. Second, in Mak, 

### the court added the words ''orhis accomplice" only to the elements involving the cause ofdeath, not to the elements concerning intent. See id. 

### at 744 (discussing the instruction with
14State 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 ofdeath, 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 ofAppeals 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 afterRoberts 

### and Cronin, 

### such as: [T]he accomplice liability statute predicates criminal liability on general knowledge ofthe crime and not on specific knowledge ofthe elements ofthe participant's crime. Accomplice liability represents a legislative decision that one who participates in a crime is guilty as a principal, regardless ofthe degree ofthe 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 inHoffman 

### actuallyrequiredthejuryto find thatthe defendantpersonally committed unlawful acts and personallyharbored an unlawful intent before thejury

15State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)


### could convicthim (the court defined "accompliceliability" in a separate instruction); the elements instruction stated: "To convict a Defendant of the crime of Murder in the First Degree, each ofthe following elements ofthe 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 ofDefendant'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. Ifthe court had used this Hoffman 

### instruction, no error would have occurred. Another case cited in support ofthe 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. InHaack, 

### the Court ofAppeals did state that ajurycould 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 ofharm. But the court in Haack 

### did not hold that ajury could convict a defendant without the State 16State 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 provedbeyond a reasonable doubt
... that at least one ofthe participants intended to inflict greatbodilyharm and at least onebutnot necessarilythat sameparticipantinflicted greatbodilyharm during the attack on the victim, thejurywith 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, butwho actedas a lookout to alert the remainingparticipants 

## if thepolice shouldarrive. 

### 88 Wn. App. at 429 (emphasis added). Thus, the Haack 

### court actually held that a jurycannot convict a defendant chargedwiththe group's acts unless the Stateproves 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 ifthe police should arrive"). Id. 

### The elements instruction here contains none ofthese 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 ofcommitting the crime and hence they are not subject to ourjurisprudence
onjury unanimity regarding means ofcommission ofa crime. 138 Wn.2d at 687- 17State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)

88. Like the decisions cited above, the court inMcDonaldclearlyrequired 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 jurorsneednothave decidedwhetheritwas BassettorMcDonaldwho actuallykilled 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 certainlyborethat burden ofproofin that case: Even if the jury concluded that McDonald did not act as a principal when he shotMichael in the head, it could have found that McDonald aided Bassett in the commission ofa crime. McDonald, by his own admission, shotMichaelBassett in the headwhile he was still alive. Surely a more compelling example ofparticipation in a crime couldnotbefound. Wehavewrittenthat "itmatters notthat somejurors 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 bythis court. I also disagree with its conclusionthat the elements instruction accurately and clearly describes the law ofaccomplice liability for thejury. I thinkthat it is far less confusing to instruct thejuryonthe elements ofthe crime in one instruction (withoutusing the alternative
18State 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. Eachparty can then argue its theory without fear thatthejurywill convictbasedupon association, ratherthanbasedupon 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 ofan elements instruction in a case where the court also gives an accomplice liability instruction. The far better practice is to provide thejury with the elements ofthe 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.

19State v. Walker (Odies Delandus), No. 89830-8 (Gordon McCloud, J., Concurring)

20