                                                                                                                        FI . EIS
                                                                                                             G UN T OF APPEALS
                                                                                                                     01` 41iS #(-,!rA I

                                                                                                            20i'          I     A         23
      IN THE COURT OF APPEALS OF THE STATE OF W

                                                            DIVISION II
                                                                                                                       ON VA
STATE OF WASHINGTON,                                                                     No. 42257 -3 - II


                           Respondent /Cross Appellant,


             V.




DARCUS D. ALLEN,                                                                     PUBLISHED OPINION


                                             ss



             PENOYAR, J. —               A jury convicted Darcus Allen of first degree premeditated murder fof

his   role   in the      murders of       four    police officers.    He appeals, arguing that ( 1) insufficient evidence

supports          his   convictions, (      2) the prosecutor committed misconduct by misstating the level of

knowledge           required       for   accomplice       liability, ( 3) evidence from the warrantless entry into his

motel    room           should    have been        suppressed, (    4) the trial court erred by not including rendering

criminal assistance as a                 lesser included    offense, (     5) his sentence enhancement for crimes against


uniformed officers does not apply to accomplices, and ( 6) the trial spectators' t -shirts violated his

fair trial        right.    He    also   includes    a statement of additional grounds (            SAG),    arguing insufficient

evidence and an invalid sentence enhancement. The State cross appeals, contending that the trial

court erred by dismissing Allen' s second degree murder counts for insufficient evidence.

             There is sufficient evidence that Allen knew his actions were furthering the crime and,

although the prosecutor misstated the mental state required for accomplice liability, this did not

prejudice          the trial' s   outcome.         Additionally, ( 1) exigent circumstances justified the warrantless

entry into Allen'            s motel room, (        2) rendering criminal assistance is not a lesser included offense

of    first degree          murder as an accomplice, (            3) the sentence enhancement applied to Allen as an


accomplice              because it   was    based    on   the   victims'   statuses and not   his   actions, (              shirts did
                                                                                                                   4) the t -
42257 -3 - II



not violate his fair trial right because they did not convey a message of innocence or guilt, and

 5) the issues in his SAG are meritless. We do not reach the State' s cross appeal because remand


is not necessary. We affirm.

                                                           FACTS


          This case arises from Maurice Clemmons' s shooting of four Lakewood police officers on

November 29, 2009.        At    about     8   A. M.,   Clemmons walked into a coffee shop with two guns, a 9

mm Glock and a . 38 caliber semiautomatic Smith and Wesson. He shot and killed four officers

and then fled the scene, wounded, in a white truck. Allen was the driver of the truck.


          In the week before the shooting, Clemmons indicated that he was planning to harm police

officers.   Allen twice heard Clemmons threaten to harm police if they came looking for him.
                                                                                                                                1
Both times, he displayed        a gun.    Allen also knew that Clemmons had                 cut off      his   ankle monitor.




          On the day of the shooting, Clemmons called Allen at 7: 30 A.M. and asked Allen to wash

his truck; Allen      agreed.    Allen admitted that he and Clemmons drove past the coffee shop, a
                                                                                                   2
known gathering       place   for   police, at     least   once on   the way to the       car wash .           According to the

coffee    shop   receipts, one of   the   officers was at     the   coffee   shop   by   7: 55   A. M.    The officer' s patrol


cars, which were parked at the coffee shop during the shooting, would have been visible from the

street.




1
    The ankle monitor was a bail condition for a previous offense.

2
 The State argues that Allen and Clemmons drove by the coffee shop twice before the shooting.
Video footage shows several white trucks passing by the coffee shop before the shooting, but the
picture is not clear enough to determine which of the trucks is Clemmons' s.
                                                               2
42257 - - II
       3




         Allen drove the truck to the                   car wash a         few      minutes after         8: 00   A. M.    A witness testified


that there   was    only    one person       in the truck         when         it   entered      the   car wash.    Clemmons entered the


coffee   shop      and    began shooting        at a     little   after    8: 00         A. M.   While Clemmons was at the coffee


shop, witnesses saw Allen at the car wash, waving the sprayer at the truck without using water.

         After the shooting, Clemmons                     arrived     back          at   the truck      on   foot. He and Allen got into


the truck and quickly left the car wash. They abandoned the truck in a grocery store parking lot,

where police found it about an hour after the shooting. Police discovered Allen' s fingerprints on

the driver'    s   side   door   of   the truck       and       Clemmons'           s    blood    on   the   passenger      side.   Police also


noted that the truck.was not wet.


         An    officer     fatally    shot   Clemmons in Seattle in the early morning                               of    December 1.       About


an   hour later,    police arrested      Allen      at   the New Horizons Motel in Federal                           Way. He was staying

with    Latanya Clemmons, Clemmons'                         s    sister,       under       the    name "     Randy Huey."            Report of


Proceedings ( RP) ( Apr. 28, 2011)                 at   3069.      Police transported him to the South Hill Precinct for


questioning.        Allen told police several versions of what happened on November 29, eventually

admitting that he was the driver of the white truck but maintaining that he did not know what

Clemmons had done.


         The State charged Allen with four counts of aggravated first degree murder and four

counts    of second        degree     felony    murder.           The trial court held a CrR 3. 6 hearing to determine

whether      Allen' s     warrantless        arrest     was      valid.         It found that           exigent     circumstances —officer




safetyjustified the warrantless arrest.

          During the trial, members of the public arrived wearing t -shirts that said " You will not be
forgotten, Lakewood Police"                  and   listed the      victims'             names.     RP ( Apr. 28, 2011)         at   3024.   Allen


objected and asked that the shirts be covered up. The trial court denied Allen' s motion.
                                                                           3
42257 -3 -II




        Allen also requested an instruction on rendering criminal assistance, arguing that it is a

lesser included       offense of         first degree    murder as an accomplice.                 The trial court declined to give


the instruction.


         During       closing       argument,         the    prosecutor        defined " knowledge"           as it is used in the


accomplice     liability    instruction for the              jury.    He   stated, "   if a person has information that would


lead a reasonable person in the same situation to believe that a fact exists, then the jury is

permitted,     but   not required,        to find that that          person acted with          knowledge."    RP ( May 12, 2011)

at   3544.     The    prosecutor          then   added, "      For    shorthand        we' re   going to   call   that `   should have


known. "'      RP (   May      12, 2011)         at   3544 -45.       He    used    the phrase "    should    have known"        several




times   during   closing       and rebuttal argument —over                    Allen' s   objections —   and implied that the jury

could find Allen guilty as an accomplice if he should have known that Clemmons was going to

murder the police officers.


         The trial     court    dismissed the          second        degree   murder counts        for insufficient evidence. The


jury found     Allen guilty         of   four   counts of premeditated              first degree   murder.    It also found that the


crime was committed against law enforcement officers and that Allen or an accomplice was

armed with a         firearm   at   the time      of   the   crimes.       The trial court imposed an exceptional 420 year


sentence. Allen.appeals. The State cross appeals, arguing that the trial court erred by dismissing

the second degree murder counts.

                                                                ANALYSIS


I.       INSUFFICIENT EVIDENCE OF KNOWLEDGE


         Allen first argues that there is insufficient evidence to prove that he knew he was

assisting in the       commission of a crime.                   Allen knew that Clemmons was threatening to shoot

police officers       and   Allen fled the            scene    and    hid   after    the shooting.     Because     of   this   and other
42257 -3 - II




significant incriminating testimony, there is sufficient evidence to prove that Allen knew he was

assisting Clemmons in the murders.

              Evidence is legally sufficient to support a guilty verdict if any rational trier of fact,

viewing the evidence in the light most favorable to the State, could find the elements of the

charged crime          beyond      a reasonable     doubt. State v. Longshore, 141 Wn.2d 414, 420 -21, 5 P. 3d


1256 ( 2000).          We interpret       all reasonable      inferences in the State'         s   favor.   State v. Hosier, 157


Wn.2d 1,         8, 133 P. 3d 936 ( 2006).           Direct and circumstantial evidence carry the same weight.

State    v.    Varga, 151 Wn.2d 179, 201, 86 P. 3d 139 ( 2004).                        Credibility determinations are for the

trier of      fact   and are not subject       to   review.     State   v.   Cantu, 156 Wn.2d 819, 831, 132 P. 3d 725


 2006):


              A person is guilty of a crime committed by another if he is an accomplice to the

commission            of   the   crime.    RCW 9A.08. 020( 1), (         2)(   c).     A person is an accomplice if, with


knowledge that it will promote or facilitate the commission of the crime, he solicits, commands,

encourages, or requests the other person to commit the crime or aids or agrees to aid the other in

planning        or   committing the       crime.    RCW 9A.08. 020( 3).              A person knows or acts with knowledge


when he is aware of facts or circumstances described by a statute defining an offense or he has

information that would lead a reasonable person in the same situation to believe that such facts

exist.        RCW 9A.08. 010( 1)( b).          Physical presence and assent, without more, are insufficient to

establish accomplice              liability.   State   v.   Roberts, 80 Wn.           App.   342, 355, 908 P. 2d 892 ( 1996).


But the accomplice does not have to have specific knowledge of the elements of the principal' s

crime.        State   v.   Hoffman, 116 Wn.2d 51, 104, 804 P. 2d 577 ( 1991); State v. Davis, 101 Wn.2d


654, 655, 682 P. 2d 883 ( 1984) ( holding                   that the State is not required to prove that the accomplice

knew the principal was armed).

                                                                    5
42257 -3 -II




         Here, there is sufficient evidence for the jury to find that Allen knew he was assisting

Clemmons in the      murders.    In the week leading up to the murders, Allen twice heard Clemmons

threaten to shoot police officers.         Both times, Clemmons had displayed            a gun.    Allen also knew


that Clemmons had removed his ankle monitor.


         On the morning of the murders, Allen and Clemmons drove past the coffee shop, where

police cars were parked,       before going to the        car wash.       A witness testified that there was only

one person     in the truck   when   it   pulled   into the   car wash.    Witnesses then saw Allen waving the

sprayer without water coming out of it, and, when the truck was discovered about an hour later, it

was not wet.     From these facts, the jury could conclude that Allen, knowing about Clemmons' s

threats against police, dropped Clemmons off at the coffee shop and was pretending to wash the

truck until Clemmons returned from the murders.


         Moreover, flight may be           circumstantial     evidence    of   guilty knowledge.   State v. Bruton,


66 Wn.2d 111, 112, 401 P. 2d 340 ( 1965).               After the shootings, Clemmons, who had been shot


and was bleeding, walked from the coffee shop to the car wash, and he and Allen got into the

truck and quickly drove away.             They then abandoned the truck in a grocery store parking lot a

couple of miles     from the    car wash ,   3 and Allen checked into a motel in Federal Way under the

name "   Randy Huey."         When police found Allen, he demonstrated guilty knowledge by giving

several different versions of the events on the morning of the shooting before admitting that he

was the driver. There was sufficient evidence for the jury to infer Allen' s knowledge that he was

assisting Clemmons in the murders by driving him to and from the coffee shop, and we affirm

the jury' s verdict.


3 Although Allen claimed that he got out of the truck a few blocks from the car wash when he
noticed Clemmons bleeding, Clemmons' s blood was found only on the passenger side of the
truck when the truck was recovered from the grocery store parking lot.
                                                              6
42257 -3 -II



II.      PROSECUTORIAL MISCONDUCT


         Next, Allen argues that the State committed misconduct by misstating the law regarding

the   level   of   knowledge   required   for   accomplice   liability. Because the trial court' s instructions

correctly stated the law regarding knowledge, any improper argument by the prosecutor was not

prejudicial. We affirm.


         In closing argument, after first correctly stating the knowledge instruction, the prosecutor

               used   the   phrase " should     have known"      when   discussing   accomplice   liability.   Allen
repeatedly


objected, but the trial court overruled his objections. The prosecutor again made several " should


have known"          comments in rebuttal argument, and again the trial court overruled Allen' s

objections.




          During deliberation, the jury asked the court " If someone ` should have known' does that

make     them an      accomplice ?"    Clerk' s Papers ( CP)       at   2014.   After seeking input from both

counsel, the trial court referred the jury to its existing instructions.

          The trial court had instructed the jury that

                     The lawyers' remarks, statements, and arguments are intended to help you
          understand     the   evidence and     apply the law. It is important, however, for you to
          remember that the lawyers' statements are not evidence. The evidence is the
          testimony and the exhibits. The law is contained in my instructions to you. You
          must disregard any remark, statement, or argument that is not supported by the
          evidence or the law in my instructions.

CP at 2017. The trial court had also instructed the jury that

                     A person knows or acts knowingly or with knowledge with respect to a
          fact or circumstance when he or she is aware of that fact or circumstance.
                     If a person has information that would lead a reasonable person in the
          same situation to believe that a fact exists, the jury is permitted but not required to
          find that he or she acted with knowledge of that fact.
                When acting knowingly is required to establish an element of a crime, the
          element is also established if a person acts intentionally.


                                                             7
42257 -3 -II




CP at 2026. Neither party objected to these instructions.

             To establish a prosecutorial misconduct claim, the defendant must prove that, in the

context of the record and circumstances of the trial, the prosecutor' s conduct was both improper

and prejudicial.      In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 704, 286 P. 3d 673 ( 2012).

But Allen       asks us    to apply   a   divergent        standard of review.    He contends that we should instead


apply the constitutional harmless error standard, which requires the State to prove beyond a
reasonable doubt that its misconduct did not contribute to the verdict.


             Our Supreme Court rejected a similar argument in State v. Emery, 174 Wn.2d 741, 757,

278 P. 3d 653 ( 2012).              There, the defendants argued for the constitutional harmless error


standard, alleging that the prosecutor' s remarks violated their right to the presumption of

innocence       and shifted    the burden          of proof.      Emery,    174 Wn.2d    at   756.   The court declined to


adopt the constitutional harmless error standard, reasoning that it had previously refused to adopt

the standard under similar circumstances where the misconduct did not directly violate the

defendant' s constitutional rights. Emery, 174 Wn.2d at 757; see State v. Warren, 165 Wn.2d 17,

26   n. 3,   195 P. 3d 940 ( 2008) (      declining to apply the constitutional harmless error analysis where

the error involved counsel' s argument over the application of instructions on reasonable doubt

and the burden of proof and the error could be cured with a jury instruction and distinguishing

this   misconduct      from that      of a prosecutor            violating the defendant' s     right   to   silence);   State v.


Easter, 130 Wn.2d 228, 234, 242, 922 P. 2d 1285 ( 1996) (                         applying the constitutional harmless

error analysis where the defendant' s right to silence had been violated by testimony and closing

argument       regarding defendant'         s pre -arrest silence).        The court also noted that the misconduct did


not    involve    racial   bias,   see,   e. g.,   State   v.   Monday,    171 Wn.2d 667, 680, 257 P. 3d 551 ( 2011)


 applying the       constitutional        harmless     error standard where        the   prosecutor     deliberately     injected
42257 -3 - II




racial   bias into closing             argument),           and the misconduct occurred during closing argument and

could not be likened to instructional error. Emery, 174 Wn.2d at 757 -59.

          The      same    reasoning is             applicable     in this   case.         Similar to the defendants in Emery, Allen

alleges that the State' s comments eliminated its burden of proof. The Supreme Court has twice


declined to apply the constitutional harmless error analysis where the defendants have not

alleged      that the   misconduct              directly    violated a constitutional right.                  Emery, 174 Wn.2d at 757;

Warren, 165 Wn.2d             at   26       n. 3.   Further, the misconduct did not involve racial bias and it occurred


during       closing       argument            and    did    not     involve          an    instructional      error.        Accordingly,   the



constitutional harmless error standard does not apply here.

          Under the established standard of review, we first consider whether the prosecutor' s

remarks were         improper.              Glasmann, 175 Wn.2d                  at   703.    The prosecutor argued multiple times


during closing argument that the jury could find that Allen had knowledge that his actions were

furthering         Clemmons'       s    crime        if Allen "    should        have known"            his actions were furthering .the

crime. These statements were accompanied by PowerPoint slides that also contained the " should

have known" language.4 Allen objected to the phrase as a misstatement of the law, but the trial

court overruled         his   objections.             The State admits that it was improper for the prosecutor to use


    should    have known"              as    shorthand       for knowledge.                Resp' t' s   Br.   at   16 -17.    The jury is not

required      to   find knowledge if the defendant "                   should         have known "; instead, it is permitted to find


knowledge if the defendant has information that would lead a reasonable person in the same

situation      to believe that          such        facts   exist.    State v. Shipp, 93 Wn.2d 510, 514, 610 P. 2d 1322

    1980). We agree that the prosecutor' s comments were improper.


4
    Several     of   the   slides      are      titled " Should Have Known" and one slide crosses out the words
    Premeditate, Intend, Purpose, Plan, Want, Hope, Care, Know"                                               and    leaves " Should Have
Known." Ex. 351, at 5, 6.
                                                                             9
42257 -3 - II



         Next, we must decide whether the prosecutor' s improper remarks prejudiced Allen.


Glasmann,        175 Wn.2d at 704. A defendant establishes prejudice by showing a substantial

likelihood that the        misconduct          affected      the    jury   verdict.      Glasmann, 175 Wn.2d         at   704.   In


determining whether the misconduct warrants reversal, we consider its prejudicial nature and

cumulative effect.        State    v.   Boehning,      127 Wn.        App.    511, 518, 111 P. 3d 899 ( 2005).        We review


a prosecutor' s remarks during closing argument in the context of the total argument, the issues in

the   case,   the    evidence addressed         in the      argument, and         the   jury   instructions.   State v. Dhaliwal,


150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003).                             We presume that the jury followed the court' s

instructions. State v. Russell, 125 Wn.2d 24, 84, 882 P. 2d 747 ( 1994).


         We have considered a number of factors in assessing the likely prejudicial effect of the

prosecutor' s improper argument. First, knowledge was a key issue here and the State repeatedly

misstated the law regarding knowledge during its closing argument, incorrectly emphasizing

    should    have known"         as    the   standard      for knowledge.              And Allen properly objected to this

argument.           Further, the jury' s question during deliberation reflects that at least some jurors

focused on the State' s " should have known" argument.5

             On the other hand, the jury instructions correctly instructed the jury on knowledge and

stated   that the law is contained in the instructions                     and not    the lawyer'    s arguments.   Additionally,

the State initially correctly stated the knowledge instruction during closing. argument and argued

throughout closing argument that Allen actually knew his actions were facilitating Clemmons' s

5
    Allen     also urges us   to       consider     juror   affidavits      in   deciding      this issue.   But a court may not
consider an affidavit that relates to a factor that inheres in the verdict. State v. Gobin, 73 Wn.2d
206, 211, 437 P. 2d 389 ( 1968). A factor inheres in the verdict if it concerns the jurors' mental
processes, such as        their   motives,      intents,     or    beliefs.   State v. Hatley, 41 Wn. App. 789, 793, 706
P. 2d 1083 ( 1985) ( quoting State             v.   Crowell, 92 Wn.2d 143, 146, 594 P. 2d 905 ( 1979)).                   Here, the

affidavits relate to the jurors' mental processes in reaching the verdict; therefore, we do not
consider the affidavits.
                                                                      10
42257 -3 - II



crime,    accompanying this            argument    with     evidence   supporting his knowledge.          Notably, the

prosecutor focused on facts known to Allen: Allen twice heard Clemmons threaten to harm


police if they came after him; Clemmons displayed a gun when making those threats; Clemmons

had cut off his ankle monitor; Allen drove the truck past the coffee shop where the police cars

were visible; Allen waited at the car wash waving the sprayer at the truck without using any

water; and Allen quickly drove from the car wash when Clemmons, bleeding from a gunshot

wound, returned.          The State also made some references to what a reasonable person would have


known.      The State did        not argue      that any inference      was    mandatory.      And during his closing

argument, Allen countered the State' s " should have known" argument by telling the jury " Well,

read   those    instructions. He       needed   to know."      RP ( May 12, 2011)      at   3604. In the context of the


entire   closing    argument,         the   nuances    of   what    Allen "   should   have known"      versus   what   a



reasonable person would have known based on the information known to Allen likely had no

prejudicial     impact     on   the   jury. Finally, the trial court redirected the jury to the instructions,

which properly stated the law, in response to its question regarding " should have known."

          We also note that Allen could have requested specific curative instructions, such as an


instruction specifically referring to the knowledge instruction with the correct statement of law

or an    instruction   directly   refuting the    prosecutor' s misstatement.          Not acting on this opportunity

to rectify the error, Allen agreed to the trial court' s proposal of simply referring the jury back to
the   legally   correct   instructions already        given.   A clear curative instruction could have eliminated


any possible confusion and cured any potential prejudice stemming from the prosecutor' s

improper remarks.




                                                               11
42257 -3 -II




           Considering all of these factors and the context of the total argument, we conclude that

there is not a substantial likelihood that the prosecutor' s misstatement affected the jury verdict.

We will not reverse on this record.


III.       SUPPRESSION


          Next, Allen argues that the trial court erred by failing to suppress evidence arising from

the    officers'   warrantless             entry into Allen'    s    hotel   room and     Allen' s    warrantless arrest.          Because


exigent circumstances justified the officers' entry and Allen' s arrest, we affirm the trial court' s

denial of Allen' s suppression motion.


           Allen does not challenge any of the trial court' s findings of fact from the suppression
           6
hearing.        Unchallenged findings                are verities      on    appeal.    State v. Hill, 123 Wn.2d 641, 644, 870

P. 2d 313 ( 1994).             We    review conclusions of             law from        a suppression       hearing de    novo.     State v.


Gaines,        154" Wn.2d            711,     716,   116      P. 3d 993 ( 2005).              Allen   challenges       the trial    court' s


conclusions that exigent circumstances justified his detention and that it was reasonable for the


officers to not take chances with their own safety.


           At the suppression hearing, police testified that they learned of Allen' s involvement in

the    shootings and           his   current     location from informants.              Based on this information, police went


to room 25 of the New Horizons Motel in Federal Way, where Allen was allegedly staying, to

question       him.   They           did   not   have   a warrant.          At the motel, police asked the manager for the


           for             25,                                                                             Allen' s   aliases — and   had a
receipt          room            which was registered               to "   Randy Huey" — one          of




copy     of a    driver'   s   license      with   Allen' s   picture on        it. CP   at   807.    They knocked on the door of


6
 Allen assigns error to four of the trial court' s " Reasons for Admissibility or Inadmissability of
the Evidence" " to the extent [ they are] finding[ s] of fact." CP at 811, Appellant' s Br. at 2 -3. But
all of the reasons are conclusions of law relating to exigent circumstances and the reasonableness
of the police' s conduct rather than findings of fact.
                                                                           12
    42257 -3 - II



    room     25   and announced             their   presence, and          Latanya Clemmons             opened    the door.      Officers saw


    Allen inside the        room,         sitting   on   the   bed   next      to   some pillows.      When he saw the officers, Allen


    said "   I knew   you were            coming     and    coming hard."            CP   at   808.   The officers could not see Allen' s


    hands and he appeared to be moving toward the pillows, so a SWAT team entered the room and

    handcuffed him.              Officers then placed him in a patrol car and drove him to the precinct for


    questioning.


              In the absence of exigent circumstances, the Fourth Amendment prohibits police from


    making a warrantless and nonconsensual entry into a suspect' s home in order to arrest the

    suspect.       State   v.   Eserjose, 171 Wn.2d 907, 912, 259 P. 3d 172 ( 2011) (                              citing Payton v. New

    York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 ( 1980)).                                         A guest in a hotel room is


    similarly     entitled      to   constitutional protection against warrantless searches.                        Stoner v. California,


    376 U. S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856 ( 1964). Washington courts have held that


         danger to [ the] arresting           officer or       to the    public "'    can constitute an exigent circumstance. State


    v.   Smith, 165 Wn.2d 511, 517, 199 P. 3d 386 ( 2009) (                               quoting State v. Counts, 99 Wn.2d 54, 60,

    659 P. 2d 1087 ( 1983)).


               The State bears the burden of proving that the exigent circumstances exception applies.

i   Smith, 165 Wn.2d                 at   517.    We determine whether the evidence supports a finding of exigent

    circumstances          by looking        at   the    totality   of   the   situation.      Smith, 165 Wn.2d      at   518.   We consider


    six factors in analyzing the situation:

                  1) the gravity or violent nature of the offense with which the suspect is to be
               charged; (       2)   whether     is reasonably believed to be armed; ( 3) whether
                                                    the suspect

               there is reasonably trustworthy information that the suspect is guilty; ( 4) there is

               strong reason to believe that the suspect is on the premises; ( 5) a likelihood that
               the suspect will escape if not swiftly apprehended; and ( 6) the entry is made
               peaceably.



                                                                                13
                                                                                                              r
42257 -3 -II




State   v.   Cardenas, 146 Wn.2d 400, 406, 47 P. 3d 127 ( 2002).                         Because we analyze the totality of

the situation, the State does not have to prove all six factors to show that exigent circumstances

existed. Smith, 165 Wn.2d at 518.


             Here,      the evidence supports the finding that exigent circumstances permitted the

warrantless        entry     and   Allen' s   arrest.    The    offense the        shooting   of   four   police   officers —was




extremely grave and violent, and the arresting officers had information from multiple sources

indicating        that Allen       was   involved.      Although some of the officers knew that Clemmons had


been killed before they entered Allen' s motel room, Clemmons' s death did not decrease the

gravity      of   his   crimes or    the   officers'    perception of     Allen'   s   involvement in them.        And, because


Allen' s hands were not visible and he appeared to be reaching for something under the pillows,

the   officers       could   have reasonably believed he                was   reaching for    a gun.      Further, there was a


strong       reason     to believe that Allen          was   on   the   premises —     an informant told police he was in


room 25 at the motel, police found his alias on a receipt for room 25, and the driver' s license

picture      from the     receipt matched       the     police' s picture of    him.     Finally, there is evidence that the

officers'      entry     was   relatively     peaceable.       The officers knocked and announced their presence,


then waited for someone to answer the door before entering the room. See Cardenas, 146 Wn.2d

at    408 (   holding that police entered a motel room peaceably when they were in uniform,

announced their presence, and entered through an unlocked window).


             Police did not know whether Allen was armed, and there was no evidence that Allen was


attempting to           escape     the   motel room.         But even if these two factors were not met, given the


totality of the circumstances, including Allen' s involvement in the shooting of four uniformed

officers and simultaneous statement that he knew the officers were coming and " coming hard,"



                                                                    14
42257 -3 - II



exigent    circumstances        justified   the   police   officers'   warrantless entry and Allen' s arrest.

Therefore, the trial court correctly denied Allen' s suppression motion.

IV.       LESSER INCLUDED OFFENSE


          Allen contends that the trial court erred by refusing to instruct the jury on rendering

criminal assistance as a lesser included offense of first degree murder as an accomplice. Because


the elements of rendering criminal assistance are not necessary elements of the charged offense,

this argument fails.


          We apply a two -prong test to determine whether a defendant is entitled to a lesser

included offense instruction: first, each element of the lesser offense must be a necessary element

of the charged offense; second, the evidence must support an inference that the lesser crime was

committed.      State   v.   Sublett, 176 Wn.2d 58, 83, 292 P. 3d 715 ( 2012).       We view the evidence in


the light most favorable to the party requesting the instruction. Sublett, 176 Wn.2d at 83.

          Under RCW 9A.76. 050,


          a person " renders criminal assistance" if, with intent to prevent, hinder, or delay
          the apprehension or prosecution of another person_who he or she knows has
          committed a crime or juvenile offense or is being sought by law enforcement
          officials for the commission of a crime or juvenile offense or has escaped from a
          detention facility, he or she:
           1) Harbors or conceals such person; or
           2) Warns such person of impending discovery or apprehension; or
           3) Provides such person with money, transportation, disguise, or other means of
          avoiding discovery or apprehension; or
           4)   Prevents or obstructs, by use of force, deception, or threat, anyone from
          performing an act that might aid in the discovery or apprehension of such person;
          or

           5)   Conceals,     alters, or destroys any physical evidence that might aid in the
          discovery or apprehension of such person; or
           6) Provides such person with a weapon.




                                                            15
42257 -3 - II




A person is guilty of a crime as an accomplice if, with knowledge that it will promote or

facilitate the commission of the crime, he solicits, commands, encourages, or requests another to


commit     the   crime or aids   in planning       or   committing the     crime.   RCW 9A.08. 020( 1), (    2), ( 3)( a).


         The elements of rendering criminal assistance are not necessary elements of first degree

murder as an accomplice because both the mental states and the required acts differ for each

offense.    Rendering         criminal   assistance requires        a   greater   degree   of   culpability— intent— than


accomplice       liability,   which requires       only knowledge.          Compare RCW 9A.76. 050 with RCW


9A.08. 020.      Further, rendering criminal assistance requires proof of the defendant' s acts after a

crime has been committed, but a person is guilty as an accomplice if he assists in the planning or

commission        of   the    crime,    acts which do not necessarily require assistance after the fact.

Compare RCW 9A.76. 050 with RCW 9A.08. 020. The trial court correctly denied Allen' s lesser

included offense instruction.


V.       AGGRAVATING FACTOR


         Next, Allen challenges the trial court' s application of an aggravating factor to enhance his

sentence, asserting that the accomplice liability statute cannot be the basis for imposing a

sentence    enhancement.          Because the enhancement statute at issue here refers to the victims'


statuses rather than the defendant' s acts, we hold that the enhancement was properly applied to

Allen.


           The   jury found     the    following   aggravating factor       under   RCW 9. 94A. 535( 3)(    v):   the crime



was committed against law enforcement officers who were performing their official duties at the

time of the      crime and     the defendant       knew the    victims were       law   enforcement officers.     The trial


court used this finding to impose an exceptional sentence.



                                                               16
42257 -3 -II




        Washington courts have recognized that the accomplice liability statute itself cannot be

the basis for imposing a sentence enhancement because it imposes liability only for the crime of

another,     and     sentence       enhancements       do   not   define      crimes.    State v. Pineda -
                                                                                                         Pineda, 154 Wn.


App. 653,          661,        226 P. 3d    164 ( 2010).      Therefore, "       the authority to impose a sentencing

enhancement on the basis of accomplice liability must come from the specific enhancement

statute."     Pineda -Pineda, 154 Wn. App. at 661.

        For         example,       in Pineda -
                                             Pineda, Division One vacated the defendant' s school zone


enhancement,             holding    that the     enhancement      did   not   apply to an     absent   accomplice.      154 Wn.


App.   at   664.      There, the defendant was convicted as an accomplice to delivery of a controlled

substance after he facilitated a drug deal between his accomplices and the buyer. Pineda -
                                                                                         Pineda,

154 Wn.           App.    at   658, 659.     The defendant was not present at the actual delivery, which took

place within        25 feet      of a school     bus stop. Pineda- Pineda, 154 Wn. App.                at   659.   The jury found

that the defendant delivered a controlled substance within 1, 000 feet of a school bus stop, and the

trial court imposed an exceptional sentence under RCW 69. 50. 435, which states

             1)    Any     person who       violates   RCW 69. 50. 401          by ...    delivering, or possessing
            with    the intent to ...       sell or deliver a controlled substance.


            c) Within one thousand feet of a school bus route stop designated by the school
            district; ...
            may be            by a fine . . .
                           punished             or by imprisonment of up to twice the
            imprisonment otherwise authorized by this chapter.

Pineda -Pineda, 154 Wn. App. at 659. Division One held that this statute does not explicitly

authorize          imposition       of     the   sentence    enhancement          on     an   accomplice;      accordingly,   the



defendant' s own acts must form the basis for the enhancement. Pineda -
                                                                      Pineda, 154 Wn. App. at

664.    Because the defendant was not physically present at the delivery, the school bus stop

enhancement was improper. Pineda -
                                 Pineda, 154 Wn. App. at 664.
                                                                   17
42257 -3 - II




           This   case                                    Pineda.
                           is distinguishable from Pineda -                              In Pineda -
                                                                                                   Pineda, the sentence


enhancement was           based       on   the defendant'     s conduct.     Therefore, the State had to show that the


defendant actually         engaged         in the   conduct,   namely,      delivering   drugs   within a school zone.   By

contrast, the sentence enhancement here is based on the victims' statuses as police officers and


not   on   the defendant' s          conduct.       See RCW 9. 94A.535( 3)(        v).    Accordingly, the enhancement

statute allows for imposition of accomplice liability even if Allen was not physically present at

the shooting.       The victims' statuses as officers were not contested, and the enhancement was


properly applied to Allen.

VI.        SPECTATOR T- SHIRTS


           Finally, Allen argues that the spectators' t -shirts deprived him of his right to a fair trial.

Because the t -shirts did not convey a message of guilt or innocence, they did not prejudice

Allen' s fair trial right and the trial court' s decision to allow them was not manifestly

unreasonable.




           We review the trial court' s decision to allow the spectators' t -
                                                                            shirts to determine whether

the decision      was     manifestly        unreasonable       or   based   on untenable    grounds   or reasons.   State v.

Lord, 161 Wn.2d 276, 283 -84, 165 P. 3d 1251 ( 2007).                         We must consider whether the courtroom


scene presented       to the        jury   was "`   so inherently prejudicial as to pose an unacceptable threat to

defendant'      s right   to   a   fair trial. "'   Lord, 161 Wn.2d at 285 ( quoting Holbrook v. Flynn. 475 U. S.

560, 572, 106 S. Ct. 1340, 89 L. Ed. 2d 525 ( 1986)) (                      emphasis omitted).



           Our Supreme Court has held that silent displays of affiliation by trial spectators that do

not   explicitly    advocate guilt or           innocence     are permissible.     Lord, 161 Wn.2d at 289; In re Pers.


Restraint of Woods, 154 Wn.2d 400, 416, 418, 114 P. 3d .607 ( 2005).                               In Lord, trial spectators


wore   buttons     with a picture of          the   victim.   161 Wn.2d at 282. The court held that the buttons did

                                                                     M.
42257 -3 -II




not prejudice the defendant' s fair trial right because they did not convey any message regarding

guilt   or    innocence.     Lord, 161 Wn.2d           at   289.        Additionally, the defendant failed to make a

motion for mistrial or a curative jury instruction, which, the court noted, has been held to

constitute waiver. Lord, 161 Wn.2d at 291.


          The t -
                shirts     at   issue here    are   similarly     permissible.       The t -
                                                                                           shirts    said "   You will not be


forgotten, Lakewood Police"             and   listed the    names of        the   victims.     RP ( Apr. 28, 2011) at 3024.


Although they did have writing on them, they did not convey a message of guilt or innocence;

they    were    merely    worn   in   remembrance of        the    victims.       Moreover, like the defendant in Lord,


Allen did not move for a mistrial or request a curative instruction and thereby waived his

objections.         The trial court' s decision to allow the t -
                                                               shirts was not manifestly unreasonable and

we affirm.



VII.         SAG


             In his SAG, Allen first argues that the evidence is insufficient to establish the mental state

and acts required        for first degree     murder as either an accomplice or principal.                    The State argued


only that Allen was an accomplice to the murders; accordingly, it had to prove only that Allen

had knowledge that he was promoting or facilitating the crime and that he aided Clemmons in

planning       or   committing the      crime.      RCW 9A.08. 020( 3).            We discussed the. sufficiency of the

evidence regarding knowledge above and we do not consider it again here. Additionally, there is
sufficient evidence        that Allen   aided    Clemmons in committing the                  crime — he drove Clemmons to


and     from the     murder scene.      See State v. Rainwater, 75 Wn. App. 256, 257 n. l, 876 P. 2d 979

 1994) (      holding   that getaway driver         was an accomplice             to theft).   There is sufficient evidence


that Allen acted as an accomplice. His first argument fails.




                                                                   19
42257 -3 - II



          Next,        Allen       argues     that     his   sentence        enhancement      is     invalid    because        RCW


9. 94A.535( 3)(       v)    is   an element of      the   crime   he   was    convicted of.    This argument is incorrect.


Allen   was        convicted       of premeditated        first degree      murder.    Premeditated first degree murder


requires the State to prove that Allen or an accomplice acted with premeditated intent to cause

the   death     of   the   victim and     that the victim died        as a result.   RCW 9A.32. 030( 1)(       a).    The victims'


statuses      as     police      officers the       aggravating factor        under   RCW 9. 94A. 535( 3)(           v) —is   not an


element of         first degree    murder.      Therefore, Allen' s second argument also fails.


VIII.      STATE' S CROSS APPEAL


          In its cross appeal, the State argues that the trial court erred by dismissing the felony

murder counts              for insufficient   evidence.      In the event that we remand for a new trial, the State

asks us    to   reverse      the trial   court' s   dismissal   of   the   felony murder   counts.    Because we affirm, it is


not necessary to reach this issue.

           Affirmed.




I concur:




                                                                      20
42257 -3 - II



          MAXA, J. (       dissenting     in   part,    concurring in       part) —     I concur with the majority on all of

the   issues    presented        except   prosecutorial           misconduct.         I cannot agree that the prosecutor' s


repeated misstatements of the law regarding the level of knowledge the State must prove to

convict    Allen      as   an   accomplice –       which         the State      admitted   constituted    misconduct –      did not


prejudice Allen. I dissent on that issue. I conclude that the misstatements were repeated so often


and were so significant in the context of the trial evidence that there was a substantial likelihood


that the jury' s verdict was affected. Therefore, I would reverse and remand for a new trial.

A.        PROSECUTORIAL MISCONDUCT


          A defendant has a fundamental right to a fair trial under the Sixth and Fourteenth

Amendments to the United States Constitution and article I, section 22 of the Washington State

Constitution.         In   re   Pers. Restraint of Glasmann, 175 Wn.2d 696, 703, . 286 P. 3d 673 ( 2012).


Prosecutorial "       misconduct" –        whether           deliberate   or   inadvertent – can deprive a defendant of this


constitutional right. Glasmann, 175 Wn.2d at 703 -04.


           To prevail on a prosecutorial misconduct claim, a defendant bears the burden of proving

that the   prosecutor' s conduct was              both improper            and prejudicial.    Glasmann, 175 Wn.2d at 704.


In analyzing         prejudice     the   conduct        is   not viewed        in isolation, but " in the context of the total


argument,       the issues in the        case,   the     evidence, and         the instructions   given   to the   jury."   State v.


Warren, 165 Wn.2d 17, 28, 195 P. 3d .940 ( 2008).                                 If the defendant objected at trial to the


conduct,       the   prejudice        standard     is    whether      the      conduct "   resulted in prejudice that had a


substantial     likelihood       of   affecting the      jury' s   verdict."      State v. Emery, 174 Wn.2d 741, 760, 278

P. 3d 653 ( 2012).          If the defendant did not object at trial, the defendant is deemed to have waived




7 I agree with the majority that the constitutional harmless error standard is inapplicable here.
Emery, 174 Wn.2d at 756 -57. Majority at 10.
                                                                      21
42257 -3 - II




any     error   unless "   the prosecutor' s misconduct was so flagrant and ill intentioned that an

instruction could          not   have    cured     the resulting              prejudice."    Emery,      174 Wn.2d at 760 -61.


Significantly, when deciding whether prosecutorial misconduct requires reversal it is immaterial
whether       there is   sufficient     evidence         to    justify    upholding the      jury' s   verdict.          Glasmann, 175


Wn.2d at 711.


          Misconduct that is relatively                  minor     or    insignificant is     not   grounds        for   reversal.    Our


Supreme Court has           noted   that " `[    a] defendant is entitled to a fair trial but not a perfect one.' "


State    v.   Davis, 175 Wn.2d 287, 345, 290 P. 3d 43 ( 2012) ( internal quotation marks omitted)


 quoting Brown v. United States, 411 U.S. 223, 231 -32, 93 S. Ct. 1515, 36 L. Ed. 2d 208 ( 1973)),

cent.   denied, No. 12 -9685, 2013 WL 1490614 ( U. S. Wash. Oct. 7, 2013); see also State v.


Garcia, _         Wn.    App. _,        313 P. 3d 422, 430 ( 2013), petition for review filed, No. 89691 -7


 Wash. Dec. 20, 2013).


B.        IMPROPER ARGUMENT


          The prosecutor' s misconduct in this case was misstating what level of knowledge the

State    was     required    to   prove    to     convict        Allen        as   an   accomplice.      Under the Washington


accomplice liability statute, a person is an accomplice to a crime only if he or she has actual,

subjective knowledge that his or her conduct will promote or facilitate the commission of the

charged crime.        RCW 9A. 08. 020 ( 3)(          a);      RCW 9A.08. 010( 1)( b); see State v. Roberts, 142 Wn.2d


471, 511, 14 P. 3d 713 ( 2000); In              re   Pers. Restraint of Sarausad, 109 Wn.                     App.       824, 838 &   n.6,


39 P. 3d 308 ( 2001).            If the defendant has information that would lead a reasonable person to


have such knowledge, the jury is allowed but is not required to infer that the defendant had

actual,       subjective   knowledge.           State     v.    Shipp,        93 Wn.2d 510, 516, 610 P. 2d 1322 ( 1980);


Sarausad, 109 Wn.            App.   at   838     n. 6.     The trial      court     instructed the     jury   on   this concept.      But

                                                                         22
42257 -3 -II




comparing the defendant to an ordinary person creates only an inference, and the jury still must

find that the defendant acted with actual, subjective knowledge. Shipp, 93 Wn.2d at 517 ( stating

that even if the jury finds that an ordinary person would have had knowledge under the

circumstances, the jury must still be allowed to conclude that the defendant was less attentive or

intelligent than the ordinary person).

         At the beginning of his closing argument, the prosecutor properly stated the law

regarding      actual   knowledge —     that if a reasonable person would have known, the jury was

permitted   but    not required   to   find that Allen   acted with   knowledge.   However, throughout the


remainder of closing argument he argued both directly and indirectly that a jury could convict

Allen if it found either that he knew or that he should have known that Clemmons would murder

the   officers.    Instead of arguing that the jury could infer Allen' s knowledge from what a

reasonable person would know, the prosecutor argued that if a reasonable person would have

known and Allen should have known, then Allen was an accomplice.


         If a person had information and a reasonable person would have known, then he
         knew.     Because it' s really hard to get direct evidence of somebody' s knowledge,
         right?



Report of Proceedings ( RP) at 3545.


          W]hat a jury should do is look at all the facts and all the circumstances
         surrounding it and say, well, what would a reasonable person know.
            And if a reasonable person would have known that Maurice Clemmons was
         going to go in there and kill those cops, then his getaway driver knew that, too.

RP at 3545 ( emphasis added).


         And under the law, even if he doesn' t actually know, if a reasonable person would
         have known, he should have known, he' s guilty.
            So you' re an accomplice if you help another person commit a_crime and you
         know or should have known that your actions are going to help. And Mr. Allen is
         an accomplice because he helped Maurice Clemmons commit these murders, and



                                                          23
42257 -3 - II




           he knew or should have known that his actions were going to help these murders
           happen.


RP at 3546 ( emphasis added).
            So the   question    becomes — and       really, the question in the case is did he know or
           should    he have known. Did he know or would a reasonable person have known?
            Well, did he know? Should he have known?


RP at 3548 -49 ( emphasis added).


            Information that would lead a reasonable person in the same situation to believe.
            He knew. And he should have known.


RP at 3566 ( emphasis added).


            The PowerPoint slides that accompanied the prosecutor' s argument were just as

significant.        The jury repeatedly was shown slides stating that Allen was an accomplice if he

knew       or should    have known.        The    most egregious were    two   sequential slides entitled "           Should


Have Known" which listed several words potentially descriptive of Allen' s mental state, the last

two   of which were "          Know"   and "     Should Have Known."       Ex. 352,   at   5 - 6.    All the words were


crossed      out —    including "   Know" —        except   for " Should Have Known."               Ex. 352,   at    5.   The


message was          clear.    The jury did not have to find that Allen actually knew Clemmons would

murder the officers, only that he should have known.

            The same argument was repeated in the rebuttal argument by a different prosecutor, along

with additional PowerPoint slides.


                      This is the knowledge instruction.           What did he know, what should he
            have known....
                              Should have known there        were police   inside the Forza....           Should
            have known those        police ...    were going to be killed by Clemmons... .
                              He should have known that Clemmons was going to carry out this
            plan.




RP    at    3614 -15.     Four    slides   were    titled " Defendant   Should Have Known,"              none       of which




indicated that the jury had to find actual knowledge. Ex. 354, at 3 -4.
                                                              24
42257 -3 - II



         Allen    argues   that the   prosecutor          intentionally        attempted     to   mislead   the   jury.   I do not


necessarily     agree.   A closing argument is not the same as a written brief, where the author can

carefully craft legal statements and ensure they are correct. During closing a prosecutor is on his

or   her feet arguing in the " heat       of   the   moment,"        and as a result some misstatements may occur.


Although the      slide presentation — prepared              in   advance of      closing     argument — included         multiple


references to a " should have known" standard, those slides would not have been improper if the

prosecutor      had carefully    explained          the    correct     legal    standard     when    discussing      them.    The


prosecutor here simply may have gone astray while making an honest attempt to state the law

regarding       accomplice   liability.    However, for purposes of a prosecutorial misconduct claim


whether statement is intentional or inadvertent is immaterial to determining whether the

statement was      improper.    Cf. State      v.   Ish, 170 Wn.2d 189, 195          n. 6,    241 P. 3d 389 ( 2010) ( refusing


to draw fine lines between       error and misconduct).                My dissent here is not based on a finding that

the prosecutor engaged in deliberate misconduct.


          The    State correctly      acknowledged            on     appeal     that the     prosecutors'         arguments   were




improper. Therefore the only issue is whether those arguments prejudiced Allen.

C.        PREJUDICE


          Allen objected twice to the " should have known" arguments on the basis that they were

incorrect statements of the law, once during closing and once during rebuttal. RP at 3545 -46; RP

at   3614.   The trial   court overruled        both      objections,    stating, " It'   s argument."       RP at 3546; RP at


3614.     As a result, the prejudice standard is whether the improper arguments had a substantial


likelihood of affecting the jury' s verdict. Emery, 174 Wn.2d at 760.




                                                                  25
42257 -3 - II



             1.        Factors Showing Prejudice

          Several factors, considered together, compel the conclusion that the improper arguments

prejudiced          Allen'   s constitutional right    to   a   fair trial. First, and most important, the misconduct


was   not         an   isolated incident.      The arguments were made repeatedly and persistently, in both

closing      argument and rebuttal argument.                The prosecutor told the jury several times that it could

convict       Allen if he      should   have known that Clemmons                 would murder           the   officers.   The court in


Glasmann acknowledged that misconduct can be so pervasive that prejudice cannot be avoided,

even with a curative            instruction. " `[ T] he cumulative effect of repetitive prejudicial prosecutorial


misconduct may be so flagrant that no instruction or series of instructions can erase their

combined prejudicial              effect.' "    Glasmann, 175 Wn.2d                 at   707 (   alteration    in   original) (   quoting


State   v.        Walker, 164 Wn.       App.   724, 737, 265 P. 3d 191 ( 2011), adhered to on remand, noted at


173 Wn. App. 1027, review denied, 177 Wn.2d 1026 ( 2013)).

             Second, the improper arguments were accompanied by slides that repeated the arguments

in   visual        form.      The court in Glasmann emphasized that visual images can be especially

prejudicial when used during closing argument:

             Highly prejudicial         images may sway            a   jury    in   ways    that   words      cannot.     Such

             imagery then, may          be very difficult to       overcome with an              instruction. Prejudicial

             imagery may become all the more problematic when displayed in the closing
             arguments of a trial, when the jury members may be particularly aware of, and
             susceptible to, the arguments being presented.

175 Wn.2d at 709 -10 ( internal citations omitted).


             Third, the improper arguments involved an incorrect statement of the law of accomplice

liability. " The prosecuting attorney misstating the law of the case to the jury is a serious

irregularity having            the   grave potential   to   mislead      the   jury." State v. Davenport, 100 Wn.2d 757,

763, 675 P. 2d 1213 ( 1984);               see also    Walker, 164 Wn.              App.   at    736.   In Warren the prosecutor

                                                                   N61
42257 -3 - II




repeatedly misstated the burden of proof and made misleading statements about the presumption

of   innocence.      165 Wn.2d at 23, 25. Fortunately, in that case after the third misstatement the trial

court   interrupted       and gave a         lengthy    curative   instruction.    Warren, 165 Wn.2d at 24. On appeal,


our Supreme Court stated that it would have found prejudice but for the curative instruction.

 Had the trial [ court] not intervened to give an appropriate and effective curative instruction, we

would not hesitate to conclude that such a remarkable misstatement of the law by a prosecutor

constitutes reversible error."                Warren, 165 Wn.2d at 28.


          Fourth, the State'           s"    should     have known" argument was the focus of the entire


case.    The State produced no direct evidence that Allen actually knew that Clemmons

was     going to        murder   the        officers.    The State did argue that circumstantial evidence


showed that Allen had actual knowledge, but its primary argument was that Allen was

                                        have known the                                        Because the "
guilty because he          should                              murders      would    occur.                   should




have known" issue was so critical, it is more likely that a misstatement regarding the law

would affect the verdict.



             Finally, the jury' s question about accomplice liability demonstrated that at least
                                                          the improper                     The                        If
one     member       of   the   jury    considered                          arguments.           question   read, "




someone ` should           have known' does that              make      them an     accomplice ?"   Clerk' s Papers


 CP)    at   2014.      This question shows that the prosecutor' s misstatements made an impact

because the "           should   have known" language was not used in the instructions and,


therefore, must have come from closing argument.

             2.    Majority Arguments Against Prejudice

             The majority makes four arguments in support of its conclusion that the improper

 arguments        did   not prejudice         Allen.    Majority   at   10 -12.   First, the majority states that the
                                                                     27
42257 -3 -II




trial court properly instructed the jury that the law is contained in the instructions and not

in   arguments of counsel.           Majority        at   10.     However, as the court noted in Glasmann, the


jury   may be    more susceptible           to   prejudicial conduct            during   closing    argument.      175 Wn.2d


at   709 -10. Further,      we     have   emphasized            that "[   i] f a self -
                                                                                      serving comment at the start of a

closing    argument         could     save         the    prosecutor           from   repeated,     intentional,    improper


comments, there would be no disincentive to committing prosecutorial misconduct."

Walker, 164 Wn. App at 739 n.8.

          Second, the majority points out that the State initially stated the law correctly and

did argue that Allen had actual knowledge as well as that he should have known.

Majority    at   10 -11.     However, correctly stating the law once hardly can compensate for

misstating the law          multiple other          times.        And making a legitimate argument that Allen

had actual knowledge is immaterial because the State improperly argued in the alternative

that the jury could convict based on actual knowledge or based on a finding that Allen

should have known.


          Third, the majority notes that Allen countered the State' s argument in his closing

by telling     the   jury   to "   read   th[ e]    instructions"         and     that Allen "   needed   to know."    RP at


3604.     Majority     at 11.      However, it is difficult to conclude that Allen' s attempt to counter


the prosecutor' s improper arguments would have neutralized any impact on the jury

given the pervasive nature of the misstatements.


          Fourth, the majority                states      that     the    trial    court "   redirected the jury to the

instructions, which properly stated the law, in response to its question regarding ` should

have known.' "          Majority       at   11.     However, the trial court did not specifically direct the

jury    to the   correct    instruction.          The trial      court    merely      wrote, "   Please refer to the court' s

                                                                          28
42257 -3 -II



instructions."        CP   at   2012.     Further, the knowledge instruction does not reference the


phrase " should       have known" that the State             repeated so often.        As a result, it is naive to


assume that the jury figured out the correct law on its own in the face of the State' s

relentless misstatements.



         3.      Curative Instruction


         The majority also notes that Allen could have requested specific curative

instruction and that a clear instruction could have eliminated any possible confusion and

cured   any    potential prejudice.         Majority    at   11.     However, when the defendant objects to .


improper conduct, whether an instruction could have cured the prejudice is not the

standard.      The test for prejudice is whether the conduct resulted in prejudice that had a

substantial      likelihood      of   affecting the   jury' s      verdict.   Emery,   174 Wn.2d    at   760.   The


availability of a curative instruction is only relevant when the defendant fails to object.

Emery,     174 Wn.2d        at   760 -61.    Further, there is no indication that the trial court would


have    given     a   curative     instruction here     even       if   requested.   The trial court summarily

rejected      Allen' s   objections      to the "   should   have known" arguments, and the trial court


apparently believed that the prosecutor' s arguments were proper.

         In any event, I conclude that an appropriate instruction may not have cured the

prejudice      here. The improper statement of the law was repeated so often that it became a


theme    of    the State' s      case.   Additionally, the State' s misstatement of the law was on a

crucial issue given the evidence presented at trial. And the prosecutor' s arguments likely

succeeded        in affecting the         jury, causing it to consider finding that Allen was an

accomplice because he should have known Clemmons would murder the officers. As our


Supreme Court noted in Glasmann, repetitive prejudicial prosecutorial misconduct may

                                                                    29
42257 -3 -II




be so flagrant that no instruction can eliminate the potential prejudice. 175 Wn.2d at 707.


Under the circumstances of this case, even a detailed instruction may not have eliminated

the possibility that the improper arguments would affect the verdict.

D.      CONCLUSION


        The murders of officers Griswold, Renninger, Owens and Richards profoundly

impacted the people in Pierce County and across the state. I fully understand and support

the public' s interest in prosecuting, convicting and punishing everyone who knowingly

assisted   Clemmons.       However, despite the horrifying nature of this crime, the quest for a

conviction cannot and should not trump a defendant' s constitutional right to a fair trial.

        Further,     the     courts    have      a constitutional   obligation to   intervene   when a

prosecutor' s improper conduct creates a significant risk of prejudice to the defendant.


Only if we are willing to reverse cases involving significant prosecutorial misconduct

will we " give substance to our message that `prejudicial prosecutorial tactics will not be

permitted,'     and our warning that prosecutors must avoid improper, prejudicial means of

obtaining      convictions    will    not   be empty       words.   Glasmann,   175 Wn.2d at 712 -13


 quoting State v. Charlton, 90 Wn.2d 657, 665; 585 P. 2d 142 ( 1978)).

           I would reverse and remand this case for a new trial. The jury must be allowed to

evaluate     the   evidence    of     Allen' s    actual   knowledge,   including consideration of an

inference of actual knowledge based on what an ordinary person would know, without




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being   mislead   by   improper "   should   have known"   arguments.   It may be that a jury once

again would convict Allen as an accomplice after considering all the evidence and proper

arguments. But that conviction would be the result of a fair trial.




                                                             MAXA, J.




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