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                                                                                  2013 DEC $
                                                                                                             35

      IN THE COURT OF APPEALS OF THE STATE OF                                  WA                         ING101


                                               DIVISION II
                                                                                                  EF

STATE OF WASHINGTON,                                                    No. 41970 -0 -II


                   Respondent /
                              Cross Appellant,


         V.




ODIES DELANDUS WALKER,                                         PUBLISHED IN PART OPINION


                   Appellant /
                             Cross


         PENOYAR, J.           A jury convicted Odies Walker of first degree murder, first degree

assault, first degree robbery, solicitation, and conspiracy for his role in the murder and robbery of

an armored      truck driver inside a Walmart.      Walker appeals his convictions, arguing that the " to

convict" premeditated murder instruction violated his due process rights because it allowed the

jury to convict him as an accomplice without proving that the principal committed all of the

elements of the crime. Because accomplice liability law allows a jury to convict participants

without unanimously determining which participants satisfied which elements of the crime, we

hold that the jury instructions were not erroneous.

          In the unpublished portion of the opinion, we address Walker' s additional arguments that

 1)   the prosecutor committed numerous instances of misconduct and ( 2) his trial counsel was

ineffective for failing to request a cautionary instruction on accomplice testimony and for failing

to    object   to the   prosecutor' s misconduct.   We also consider Walker' s statement of additional


grounds ( SAG) arguing that the trial court erred by denying his motion for a CrR 3. 6 hearing.
We hold that       none of   the   alleged prosecutorial misconduct committed requires reversal, counsel
    41970 -0 -II



    was not ineffective, and the trial court correctly denied Walker' s CrR 3. 6 motion because the

    items to be     suppressed were within         the    scope of a valid search warrant.'          We affirm.


                                                                   FACTS


    I.        BACKGROUND


              In June 2009, Calvin Finley and Marshawn Turpin killed and robbed an armored truck

    driver inside the Lakewood Walmart.                    Finley shot and killed Kurt Husted, a Loomis armored

    truck   driver   who   was picking up         the   store' s   daily     earnings.   The bullet went through Husted and


    struck a      bystander,   injuring    the bystander'          s   shoulder.    Turpin grabbed the bag of money on

    Husted'   s   cart, and   he   and   Finley    fled the    store     to   a white    Buick waiting in the parking lot.       A


    witness later identified Walker, who is Finley' s cousin, as the driver of the Buick, and police

    recovered Walker' s fingerprint on the driver' s side seatbelt.

              Police were able to trace the Buick because a witness had memorized a partial license

    plate number.       The Buick        was registered       to Sartara Williams, the          mother of   Finley' s   child.   At



    Finley' s request, Williams falsely reported the vehicle stolen in April and gave Finley the keys.

1   The Buick was parked behind Walker' s house under a tarp fora few months, until the robbery in

    June.    After the robbery, the police found the Buick in an alley behind Finley' s friend' s house.

    Neighbors had seen Finley, Walker, and another man in the area that same afternoon. One of the

    men was carrying a bag behind his back.

              About 30 minutes after the robbery, Walker returned to Walmart to pick up Turpin' s car.

     He then went home, where his girl friend, Tonie Williams -Irby, found him watching the news .

     when she returned from work.



      The State cross appeals, arguing that the trial court erred when it included language in the
     aggravating circumstances instruction that is only applicable in death penalty cases. Because we
     do not remand, we do not reach this issue on appeal.
                                                                         2
41970 -0 -II




          Walker and Williams -
                              Irby picked their children up from school, then Walker drove to the

alley where the Buick was parked, telling Williams -Irby that he needed to wipe fingerprints off

the car. The Buick was surrounded by police when they arrived, so Walker kept driving.

          Walker        next   drove his         family    to Al Trevino'            s   house.       On the way, Walker told Williams-

Irby   that he    was        in the Buick         and on     the    phone with            Finley during        the robbery.       When Finley

asked   the    guard      for the money, the               guard         laughed,        so   Walker told        Finley   to " kill the mother


fucker."      8 Report of Proceedings ( RP) at 729.


                              Turpin                  Trevino'                   Walker                 Walker'       family   arrived.    Walker,
          Finley    and                    were at                  s when                       and              s




Finley,    and   Turpin        went        into Trevino'     s    bathroom           and changed clothes.              They put their clothes

and a    Loomis         bag    into    a   black    plastic      bag.      Walker then            put    two $   10, 000 bundles of cash in


Williams -
         Irby'      s purse and gave               her $ 2, 500 in         cash      to pay bills. Walker also threatened Trevino,



telling him      that   it   was " on [ his]       life   and [   his]   family"         if he   said   anything. 10 RP at 1143.


          Trevino,       Finley,       and      Turpin left Trevino'             s   house together.             Trevino drove them down


near the river, where he saw Finley run in the direction of the river with the black plastic bag.

Finley did not have the bag with him when he returned to the vehicle. Trevino then drove Finley

to a motel.


           Walker left Trevino' s house with his family and drove to the Federal Way Walmart

where     he   purchased         two       safes and a      Nintendo Wii                 with cash.       Walker gave one safe to Finley

and put    the    other       in the   master       bedroom         closet at        Walker'      s   house.     Walker    put   the $    20, 000 in


cash    into the        closet   safe.          Williams -Irby put the cash Walker had given her for bills in an

envelope that she placed in her dresser drawer. Walker then took his family out to dinner, where

he   paid with cash.           While       at   dinner, he told Williams -
                                                                         Irby' s                   son, "[   T] his is how you do it. This is


how     you murder           these   niggers and get         this money."                8 RP at 773.

                                                                             3
41970 -0 -II




          On his way back from the restaurant, Walker was stopped by the police, who had

received a     tip   that   he   was   involved in -he robbery
                                                   t                       and murder.       The police arrested Walker and


Williams -
         Irby.         They      obtained a search warrant             for Walker'     s   house.       They found a safe in the

master    bedroom       closet     containing $ 20, 000,         an    envelope      containing $ 900 in the dresser, and


ammunition       for   a    9   mm     handgunthe         same    type      of weapon used         to    shoot   the   guard —in     the


closet.




          During     questioning, Walker denied any involvement in the robbery. He admitted that he


had seen the armored truck arrive at Walmart many times while he was waiting to pick up

Williams -
         Irby,         a manager        at   Walmart, from her             shift.   He also admitted that he had been at


Walmart after the robbery to pick up Turpin' s car.

          The   police arrested         Finley    the   next   day   in Trevino'     s wife' s car.       The police searched the


trunk of the car and discovered a safe containing $21, 830 in cash.

II.       TRIAL


          The State charged Walker as an accomplice with ( 1) aggravated first degree premeditated

murder, (   2) first degree felony murder further aggravated by a high degree of planning and a

destructive     and    foreseeable impact          on persons other           than the     victim, ( 3)   first degree      assault, (   4)


first degree robbery, ( 5)              first degree      solicitation        to    commit     robbery,'    and (      6) first degree


conspiracy to         commit      robbery.        The State also sought deadly weapon enhancements for the

murder, assault, and robbery charges.


          At trial, Williams -Irby, Darrell Parrott, Jessie Lewis, and Jordan Lopez all testified that

they heard Walker planning to rob the armored truck at Walmart months before June 2009.

Walker had       attempted        to   recruit   both Parrott    and       Lewis for the robbery.          In May, Walker asked

Parrott to be back up for                                      Parrott that he                  have to carry              gun.   Parrott
                                         Finley, telling                              would                            a



                                                                      11
41970 -0 -II




refused.      Around the     same    time, Walker told Lewis                  about   his   plan.       He told Lewis that Lewis' s


job would be to shoot the guard and that he, Walker, would be the getaway driver. Walker then

drove Lewis      and     Finley    to Walmart to        show     them     how the      plan would work.             Walker knew the


timing of the armored truck' s arrival and how many guards went into the store each time.

Walker      offered   both   Finley   and   Lewis       guns;    Finley       took a   gun     but Lewis         refused.    Finley and

Lewis entered the store after the guard. Lewis left the store before the guard retrieved the money

because he      was nervous about         the    plan and "     knew that       someone was             going to    get   killed."   9 RP


at   912.   Although Walker did not try to recruit her, Lopez twice overheard Walker discussing his

plans to rob Walmart with Lewis and Finley.

            Williams - rby also overheard Walker discussing his plans to rob Walmart on numerous
                     I

occasions.       In February 2009, Walker started asking Williams -Irby, who sometimes attended

Walmart staff meetings where the previous day' s earnings were announced, how much money

the   armored     truck    picked    up   each    day. Walker mentioned that he thought the armored truck

would       be " easy money."       7 RP    at   656.    In March, Williams -
                                                                            Irby heard Walker yelling at Finley

and    someone      named    Jonathan      about    the    plan      to   rob   Walmart.           Walker was angry that it was

taking so long and was worried that Jonathan would make a mistake. He told the others that they

would all go to jail if there was a mistake and that he would get the most time because he

planned      it. In April,   she   heard Walker         discussing        the robbery       with    Finley   and   Turpin. She heard


Walker say that he would be the getaway driver because he was a better driver than the others
and    he   would   be   recognized    if he     entered   the   store, where         he    used   to   work as a greeter.      She also


heard Walker        and   Finley discussing killing            the   armored       truck     guard.       Walker told Finley to " do

what you got        to   do" and then he       offered    Finley     a    9   mm   handgun. 7 RP            at   665.   On the morning

 of the robbery, Williams - rby called Walker to report Walmart' s earnings for the previous day.
                          I
                                                                     5
41970 -0 -II




          Walker attempted to challenge Williams -Irby' s credibility on cross examination, pointing

out that she had initially told the police that neither she nor Walker was involved in the robbery

and that she had entered a plea deal with the State. Walker repeatedly asked Williams -
                                                                                      Irby if she

had told the State              what    it    wanted      to hear.     Williams -Irby consistently replied that she knew the

State   wanted           the truth.          She   also    said "   My desire is to tell the truth and get closure for Mr.

Husted'   s    family."          8 RP    at   822. Walker           asked, "   The truth is determined by [ the prosecutor] isn' t

it ?" 8 RP      at       815.    Williams -Irby           replied    that "[   t]he truth is determined by what happened" and

that   she was "         telling      the truth    whether [    the    prosecutor] want[ s]       to hear it   or not."   8 RP at 815,


818.


          The    jury       found Walker guilty               as charged.          The jury also found that the State had proven

all of the alleged aggravating circumstances and that Walker or an accomplice was armed with a

firearm       during       the   murder, assault, and               robbery.        The trial court sentenced Walker to life plus

                     2
303     months.           Walker        appeals      his   convictions.            The State cross appeals, arguing that the trial

court erred in its jury instructions.

                                                                     ANALYSIS


          PREMEDITATION JURY INSTRUCTIONS


          First, Walker argues that the trial court' s premeditation instructions violated his due

process rights because ( 1) they relieved the State of its burden of proving the charged crime and

 2)    they   violated          his   right   to   a unanimous verdict.               Specifically, he asserts that the trial court' s

premeditation instructions were erroneous because, under the first degree murder and accomplice .

 liability statutes, the State had to prove that Finley, the shooter, had premeditated intent to kill

the guard and, here, the instructions allowed the jury to find Walker guilty if it found either he or.

 2 The trial court merged the two murder convictions for sentencing.
                                                                               6
41970 -0 -II




Finley had     premeditated        intent to kill the         guard.        We hold that the trial court' s instructions


properly stated accomplice liability law.

          We   review    jury    instructions de      novo.    State v. Levy, 156 Wn.2d 709, 721, 132 P. M . 076
                                                                                                           1

 2006).    Jury instructions are sufficient if, when read as a whole, they accurately state the law,

are not   misleading,     and permit each          party to   argue    its theory   of   the   case.   State v. Clausing, 147

Wn.2d 620, 626, 56 P. 3d 550 ( 2002).


          Under the first degree premeditated murder statute, the State must prove that the

defendant,     with premeditated         intent,   caused     the death      of another person.        RCW 9A.32. 030( 1)( a).


A   person   may be liable for the        acts of another       if he   acts as an accomplice.           RCW 9A.08. 020. A


person is an accomplice if, with knowledge that it will promote or facilitate the commission of a

crime, he solicits, commands, encourages, or requests another person to commit the crime or aids


or agrees to aid another in planning or committing the crime. RCW 9A.08. 020( 3)( a).

          The trial      court    gave    the   following       instructions regarding           premeditation: "   A person


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

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

of another person."        CP at 213.


                   To convict the defendant of the crime of premeditated murder in the first
          degree, count I, each of the following elements of the crime must be proved
          beyond a reasonable doubt:
                    1)    That     on    or   about    2nd     day     of    June, 2009,       the defendant or an
          accomplice acted with intent to cause the death of Kurt Husted;
                   2) That the intent to cause the death was premeditated ....


CP at 216. Neither party objected to these instructions at trial.

          Division One of this court has upheld similar jury instructions involving accomplice

liability. In State v. Haack, the State charged the defendant with first degree assault after he and


                                                                  7
41970 -0 -II



his brother both       attacked      the   victim.   88 Wn.      App.     423, 429 -30, 958 P. 2d 1001 ( 1997).       The trial


court instructed the jury that, to convict the defendant, it must find that " the defendant or an

accomplice assaulted [            the   victim]"   and that " the defendant or an accomplice acted with intent to

inflict     great   bodily   harm."        Haack, 88 Wn.          App.     at   427 (   emphasis   omitted).    The defendant


argued that this instruction allowed the jury to convict by splitting the elements of the crime

between himself and his brother. Haack, 88 Wn. App. at 427. Division One agreed but held that

the instructions were not an incorrect statement of accomplice liability law. Haack, 88 Wn. App.

at   427.    The court stated that the jury could convict all of the participants in a first degree assault

if the State proved that a life -
                                threatening injury was caused by one of the participants and that at

least one of the participants intended to inflict life -
                                                       threatening harm; the State did not have to

prove which participant actually inflicted the injury. Haack, 88 Wn. App. at 428; see also State

v.   Hoffman, 116 Wn.2d 51, 84 -85, 104, 804 P. 2d 577 ( 1991) (                          affirming defendants' first degree

murder convictions even though instructions allowed the jury to convict if they found either

defendant had premeditated the shooting; the jury did not have to unanimously agree which

defendant was the accomplice or principal).


             Walker attempts to distinguish Haack, but his argument is not persuasive. He argues that

in Haack, there was evidence that the principal both had the necessary intent and actually

committed the assault, whereas here, the evidence proved that Finley was the shooter and Walker

had    premeditated         intent. This distinction is inapposite for two                 reasons.    First, there is evidence


from                                       find that   Finley              had                     intent.    Several witnesses
          which     the    jury   could                            also          premeditated




testified that they overheard Walker and Finley discussing the robbery, including the fact that
 someone would shoot               the   guard.             Irby heard Walker tell
                                                   Williams -                                   Finley "     do what you got to


                                                     7 RP        665.   Walker                Finley   with a   loaded   gun   that
 do" in     regards   to   killing   the guard.             at                     provided
41970 -0 -II




Finley carried into Walmart both the time that he entered with Lewis and did not attempt the

robbery and the day of the murder. See State v. Ra, 144 Wn. App. 688, 703, 175 P.3d 609 ( 2008)

 listing the planned presence of a weapon at the scene of the crime as one circumstance

supporting premeditation).


          Second, even if the jury did " split the elements of the crime" between Finley and Walker,

this   was not an error under accomplice       liability   law. Appellant' s Br.     at   48.   The jury needs only

to conclude unanimously that both the principal and the accomplice participated in the crime; it

does    not need       to unanimously   conclude as   to the   manner of   their   participation.    Hoffman, 116


Wn.2d     at    104.    Therefore, as the Haack court stated, the jury could convict all participants of a

crime, even the lookout, as long as the State proved that at least one participant committed the

criminal       act and one participant —not    necessarily the    same one —   possessed the required intent.


88 Wn. App. at 429. Nor does it matter that the evidence clearly showed that Finley, not Walker,

performed the actual shooting.

          The legislature has said that anyone who participates in the commission of a
          crime is guilty of the crime and should be charged as a principal, regardless of the
          degree or nature of his participation. Whether he holds the gun, holds the victim,
          keeps a lookout, stands by ready to help the assailant, or aids in some other way,
          he is a participant. The elements of the crime remain the same.


State    v.    Carothers, 84 Wn.2d 256, 264, 525 P. 2d 731 ( 1974),           overruled on other grounds by

State v. Harris, 102 Wn.2d 148, 685 P. 2d 584 ( 1984).


              The trial court' s instructions were correct statements of accomplice liability law and did

not     deny     Walker his due     process.   There was no need for a unanimity instruction where

accomplice liability allows a jury to convict as long as it finds that the elements of the crime

were met, regardless of which participant fulfilled them.




                                                           9
41970 -0 -II



         A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for public

record in accordance with RCW 2. 06. 040, it is so ordered.


I.       PROSECUTORIAL MISCONDUCT


         Next, Walker        argues   that   prosecutorial misconduct        denied him     a   fair trial. We disagree.


He points to several instances during opening and closing arguments where the prosecutor

allegedly made prejudicial statements. Although some of the statements were improper, none of

them affected the outcome of the trial.


         A.            Standard of Review


         A defendant who alleges prosecutorial misconduct bears the burden of proving that, in

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

improper      and prejudicial.      State    v.   Thorgerson; 172 Wn.2d 438, 442, 258 P. 3d 43 ( 2011).               A


defendant establishes prejudice by showing a.substantial likelihood that the misconduct affected

the   jury   verdict.     Thorgerson, 172 Wn.2d           at   443.   Where the defendant fails to object to the


prosecutor' s improper statements at trial, such failure constitutes a waiver unless the prosecutor' s

statement      is "`   so flagrant and ill-intentioned that it causes an enduring and resulting prejudice

that   could not       have been   neutralized     by   a curative    instruction to the   jury. "'   State v. Dhaliwal,


 150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003) (              quoting State v. Brown, 132 Wn.2d 529, 561, 940 P. 2d

 546 ( 1997)).


         In determining whether the -misconduct warrants reversal, we consider its prejudicial

 nature and cumulative effect.          State v. Boehning, 127 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.
                                                               10
41970 -0 -II



Dhaliwal, 150 Wn.2d        at   578.     It is not misconduct to argue that the evidence fails to support the

defense'   s   theory, and the prosecutor is entitled to make a fair response to the defense' s

arguments. State v. Russell, 125 Wn.2d 24, 87, 882 P. 2d 747 ( 1994).


         B.         Opening Statement

         First, Walker argues that the prosecutor committed misconduct by calling Walker a liar

during   opening     statements.       But the prosecutor was stating what the evidence was expected to

show —that      Walker lied to     police.     This conduct is distinguishable from situations where the


prosecutor improperly opined about the defendant' s veracity; the prosecutor' s comments here

were not misconduct.




         In his opening statement, the prosecutor said

                    When the    police question        the defendant,   he is   being —he   is   adamant.   He
         is cursing. He is yelling. He is swearing.                He is saying he didn' t have any idea
         why the police stopped him. Why did you                  arrest me?    I didn' t do anything. I had
           nothing to do   with    it.    My wife, Williams -Irby, she didn' t have anything to do
           with this. He is lying like crazy to the police. Williams -
                                                                     Irby pled guilty to second
           degree   murder, and she will       tell   you what she   had to do   with   it. He told the cops
           he didn' t have anything to do with it.

Supp. RP at 48. Walker did not object to this comment at trial.

           The prosecutor may not give his personal opinion about the credibility of a witness. State

v.   Copeland, 130 Wn.2d 244, 290, 922 P. 2d 1304 ( 1996).                 But during an opening statement, the

prosecutor may state what the State' s evidence is expected to show. State v. Magers, 164 Wn.2d
 174, 191, 189 P. 3d 126 ( 2008).


           Walker argues that this remark is similar to the prosecutor' s remark in State v. Reed, 102

 Wn.2d 140, 145 -46, 684 P. 2d 699 ( 1984).                  In Reed, another first degree murder case, the


 Supreme Court held that the prosecutor committed reversible misconduct when he called the

 defendant a liar four times, stated that the defense did not have a case and that the defendant was
                                                             11
41970 -0 -II




clearly guilty, and implied that defense witnesses were untrustworthy because they were from

out of       town.        102 Wn.2d          at    145 -46.          The defendant objected to all of these comments at trial.


Reed, 102 Wn.2d                  at   144.        The court held that these comments were improper and that they

prejudiced      the defendant,               focusing           on   the    prosecutor' s attacks         on   the defense    witnesses.   Reed,


102 Wn.2d            at    147.       The court also noted that the State' s evidence was not overwhelming,

contributing to the likelihood that the                              comments affected            the   jury' s   decision.   Reed, 102 Wn.2d


at 147.


             Here, the       prosecutor' s              remark        was     not    misconduct.          The prosecutor stated what the


State'   s    evidence       was       expected            to    show.         The State'     s    evidence,       including Williams -
                                                                                                                                      Irby' s

testimony, was expected to show that Walker was involved in the robbery and murder and that

he lied to the            police when         he       said     he   was not.        Further, this case is distinguishable from Reed.


Unlike the defendant in Reed, Walker did                                     not object    to the   prosecutor' s arguments.         Therefore,


Walker        must meet a             higher       standard          to    show error—      flagrant and ill intentioned misconduct—


than the defendant in Reed. And, in Reed, the prosecutor baldly asserted that the defendant was a

liar, telling the                 that the defendant "                              t tell the truth              torture."   102 Wn.2d at 143.
                          jury                                            couldn'                       under




Here, the prosecutor was stating what the State' s evidence was expected to show.

             Even assuming the prosecutor' s statement was misconduct, there is not a substantial

likelihood that it affected the jury' s verdict. The statement attacked Walker' s credibility, but his

credibility     was not an            issue       at   trial.    Walker did not testify, and his argument was that the State' s

evidence was              only    circumstantial and                 its   witnesses were not credible.              Therefore, any statements

 about Walker' s own credibility would not have affected the jury' s verdict.




                                                                                    12
41970 -0 -II



         C.         PowerPoint


         Next, Walker argues that the prosecutor committed misconduct by expressing a personal

opinion of Walker' s guilt through a PowerPoint presentation during closing arguments. Under In

re   Personal Restraint of Glasmann, 175 Wn.2d 696, 286 P. 3d 673 ( 2012), it was improper for


the State to opine about Walker' s guilt, but, given the facts of this case, this misconduct did not

affect the outcome of the trial.


          The State' s closing argument presentation included several slides with text imposed over

pictures     of   Walker.   The second slide of the presentation is Walker' s booking photo with the

words "    SHOOT THE MOTHER FUCKER" imposed                          over    it. Ex. 243,    at   1.     Toward the end of


the    presentation,     the   prosecutor        included two     other    booking     photos,     one       with "   GUILTY


BEYOND A REASONABLE DOUBT" imposed on it and one with " we are going to beat this"

imposed       on   it. Ex. 243,   at   87, 89.    The presentation also includes a picture of Walker and his

family out at dinner with " THIS IS HOW YOU MURDER AND ROB NIGGERS NEXT TIME

IT WILL BE MORE MONEY" written under it, and a picture of cash on a table with " MONEY

IS    MORE         IMPORTANT           THAN HUMAN            LIFE"        imposed     on   it.         Ex.   243,     at   5,   89.


Additionally, about half of the slides have the heading " DEFENDANT WALKER GUILTY OF
PREMEDITATED MURDER." Ex. 243, at 6.


           In     Glasmann,     the    Supreme      Court reversed the defendant' s               convictions          after the


prosecutor improperly presented the jury with multiple copies of the defendant' s bloody booking

photograph with text questioning the defendant' s veracity and stating that the defendant was

     GUILTY, GUILTY, GUILTY."                    175 Wn.2d   at   706.     The Court determined that the multiple


 altered photographs were improper because the prosecutor' s modification of the photographs


 was   the   equivalent of     submitting   unadmitted evidence          to the   jury. Glasmann, 175 Wn.2d at 706.
                                                             13
41970 -0 -II




Although the booking photograph had been admitted into evidence, the prosecutor had modified

the   photograph       by   adding text asking " DO YOU BELIEVE HIM?" and " WHY SHOULD YOU


BELIEVE ANYTHING HE                         SAYS ABOUT THE ASSAULT?"                                        and proclaiming that the

defendant      was "   GUILTY."           Glasmann, 175 Wn.2d                  at   706.    Noting that " it is improper to present

evidence    that has been         deliberately           altered     in   order     to influence the         jury' s   deliberations," the


court determined that the photographs may have affected the jury' s feelings about the need to

strictly observe legal principles and the care it must take in determining the defendant' s guilt.
Glasmann, 175 Wn.2d at 706.


         Moreover, the modified photographs were inappropriate expressions of the prosecutor' s

opinion    of   the defendant'        s   guilt.     Glasmann, 175 Wn.2d                    at      706.    Because the case law and


professional        standards make         it    clear   that the     prosecutor' s         conduct—        submitting prejudicial and


unadmitted evidence            to the     jury     and    commenting           on    the defendant' s         guilt —was    improper and


because these standards were available to the prosecutor before trial, the court held that the

prosecutor engaged in misconduct. Glasmann, 175 Wn.2d at 706 -07.

          The Glasmann court further determined that the misconduct was so pervasive that it

could not      be   cured with a     jury       instruction.       175 Wn.2d         at    707. The        court reasoned   that "[   h] ighly

prejudicial     images may sway             a    jury    in   ways   that   words cannot."             Glasmann, 175 Wn.2d at 707.


Therefore, it may be difficult to                  overcome          the images with            a   jury   instruction.    Glasmann, 175


Wn. 2d    at    707.        Additionally, the court held that there was a substantial likelihood that the

misconduct affected            the   verdict.       Glasmann, 175 Wn.2d                    at   708.       The defendant had produced


 evidence that he lacked the opportunity and capacity to form the necessary intent to commit the

 charged crimes, and, absent the misconduct, the jury might have believed the defendant' s theory.

 Glasmann, 175 Wn.2d at 708.

                                                                          14
41970 -0 -II



         Here, the       State    engaged      in improper       conduct.          Like in Glasmann, ' the prosecutor


submitted modified photographs to the jury that were not admitted as evidence during the trial.

Although some of the pictures included quoted testimony, neither party introduced into evidence

a   booking    photograph of      Walker     with    text   written over or underneath        it. As in Glassman, these


deliberately altered photographs may have affected the jury' s feelings about strictly observing

legal   principles.     Additionally, the prosecutor in this case improperly expressed their opinion on

Walker'   s    guilt   by titling       many    of   their    slides "    DEFENDANT WALKER                       GUILTY OF


PREMEDITATED               MURDER"             and
                                                      by    writing " GUILTY             BEYOND           A    REASONABLE


DOUBT" over Walker' s booking photograph. Ex. 243, at 6, 87. As the Glasmann court noted, a

prosecutor     may     not use   his   position as prosecutor      to    attempt   to sway the   jury.        175 Wn.2d at 706.


Finally, the State appealed to the jury' s emotions by showing pictures of the stolen cash and

Walker at dinner with his family with prejudicial quotes written across them. The prosecutor had
notice before trial through professional standards and case law that this conduct was improper.

See Glasmann, 175 Wn.2d at 706 -07 ( citing American Bar Association Standards for Criminal

Justice and case law from 2006 and earlier stating that it is improper for a prosecutor to express

his   personal opinion of        defendant'    s guilt);    Reed, 102 Wn.2d at 147 ( holding that the prosecutor

committed       misconduct       by    expressing his       personal     opinion    of   defendant'   s   guilt).   The State' s


conduct here was clearly improper under Glasmann.

          But Walker has failed to show that there is a substantial likelihood that the improper

 conduct affected the jury' s verdict. Our Supreme Court has cautioned that reviewing a claim of




                                                                15
41970 -0 -II




prosecutorial misconduct is not a matter of determining whether there is sufficient evidence to

convict     the defendant.       Glasmann, 175 Wn.2d             at   710.   Rather, we must determine whether the


misconduct       encouraged        the   jury   to base its decision         on    improper    grounds.    Glasmann, 175


Wn.2d at 711.


            Here, not only did the State present overwhelming evidence connecting Walker to the

robbery and murder but also this case is distinguishable from cases where the misconduct' s

context required reversal.            Therefore, it is unlikely that the slides affected the jury' s decision.

The State had overwhelming               evidence      connecting Walker to the robbery            and murder.   Evidence


linked Walker to         Finley,     Turpin,    and   the Buick on the       day   of   the robbery.   Before the robbery,

several witnesses heard Walker discussing the robbery, including the possibility that a participant

would shoot       the   guard.     Williams -Irby, Trevino, and Parrott all testified about Walker' s actions

after   the robbery,     including       attempting to    wipe    the   prints off      the Buick, carrying $ 20, 000   cash,


gloating to his family about the robbery, and threatening Trevino.

            Additionally, this case is distinguishable from cases where the State' s misconduct

required reversal because the jury might have believed the defendant' s theory of the case if not

for the     misconduct.       In Reed, the defendant argued only that he did not have the requisite intent

to    commit    first degree     murder.     102 Wn.2d      at   147.    He presented evidence that he was severely

intoxicated at the time of the murder and that he suffered from borderline personality disorders.

Reed, 102 Wn.2d          at   147.    In holding that the misconduct required reversal, the court noted that

the State' s evidence was not overwhelming and the defendant' s theory was plausible. Reed, 102

Wn.2drat 147.            Similarly, in Glasmann, the defendant argued only that he did not have the

requisite intent and provided evidence supporting his claims that he was intoxicated at the time

 of   the   crimes and   that he     did,not have the opportunity to form intent. 175 Wn.2d at 708.

                                                                 16
41970 -0 -II



          In both cases, the defendants had presented plausible alternative theories supported by

evidence.        By contrast, here, the State' s case was strong and Walker' s theory was not nearly as

plausible       as   the defendants'     theories      in Reed      and    Glasmann.       Walker argued that the State' s


evidence        was            circumstantial          and   that   its     witnesses     were   not    credible.   However,
                        only


circumstantial evidence carries the same weight as direct evidence, State v. Varga, 151 Wn.2d

179, 201, 86 P. 3d 139 ( 2004),               and much of the witnesses' testimony was corroborated by other

witnesses and evidence. Further, the defendants' arguments in Glasmann and Reed depended on

the defendants' credibility,         which       the   prosecutors        in both   cases attacked.     Here, Walker did not


take the    stand and      his credibility      was not an      issue for the       jury. Therefore, although we do not

condone the State' s misconduct during closing argument, we affirm because the slides did not

affect the jury' s verdict.

          D.           Reasonable Doubt Analogies


          Walker       next argues      that the State' s      reasonable        doubt   analogies     were misconduct.   The


State'   s puzzle and railroad          tie   analogies were not           improper.      Although the basketball analogy

arguably improperly quantified the level of certainty needed to satisfy the State' s burden, it did
not affect the verdict.


           The prosecutor used three analogies to explain the beyond a reasonable doubt standard.

                       Reasonable doubt is        not an     impossible       standard.    It is not magic. Imagine,
           if   you will, a    jigsaw   puzzle of       the Tacoma Dome.             There will come a time when

           you are putting that puzzle together, that you will be able to say with some
           certainty beyond a reasonable doubt what that puzzle is. The Tacoma Dome.

 12 RP at 1393.


                       You might look at it like this, consider the elements that must be proven —
           imagine, if     you will, a set of railroad         tracks      in the   countryside.    You have the two
           steel rails.     Those   are   like the      elements     that   we   have to   prove.      Underneath that,



                                                                    17
41970 -0 -II



         supporting those         elements, are a whole      bunch      of railroad   ties.   Those are like the
         individual pieces of evidence that you have in this case....
                    Well, some of the ties, if you will, some piece of evidence might not be
         that strong in             You might give little weight to certain testimony or
                                your mind.

         pieces     of    evidence.       Still,
                                     the State can readily prove its case because the
         elements, themselves, that which we have to prove are still supported by ample
         solid evidence. If you take away, some of the railroad ties, you still have well -
         supported rails.




12 RP at 1431 -32.


                    Now, the defense — because this is March Madness basketball season, I
         will use —       forgive me for using a sports analogy, but I' ll use a basketball analogy,
         okay.


                    The defense is going to score a bucket or two on occasion. When the State
         has scored 40 points to the defendant' s 2 points, that doesn' t mean that there is a
         reasonable doubt in the case.


12 RP    at   1432 -33.    Walker did not object to any of these statements at trial.

         We review a prosecutor' s use of an analogy to explain the beyond a reasonable doubt

standard on a case         by   case   basis.   State v. Fuller, 169 Wn. App. 797, 825, 282 P. 3d 126 ( 2012),

review   denied, 176 Wn.2d 1006, 297 P. 3d 68 ( 2013).                    We have held that the State' s use of an


analogy constitutes prosecutorial misconduct where the State either equates its burden of proof to

making an everyday choice, or quantifies the level of certainty necessary to satisfy the beyond a
reasonable      doubt     standard.     Fuller, 169 Wn. App. at 827; see also State v. Anderson, 153 Wn.

App.    417, 220 P. 3d 1273 ( 2009);               State v. Johnson, 158 Wn. App. 677, 243 P. 3d 936 ( 2010).

But, where the State does not minimize its burden of proof or shift the burden of proof to the

defendant                                                        does              to the level   of misconduct.   Fuller,
               by   use of a puzzle      analogy,     such use          not rise




 169 Wn. App. at 826 ( citing State v. Curtiss, 161 Wn. App. 673, 700 -701, 250 P. 3d 496, review

denied, 172 Wn.2d 1012, 259 P. 3d 1109 ( 2011)).




                                                                 18
41970 -0 -II



        The puzzle example used in this case is nearly identical to the example we held

acceptable     in Curtiss.       161 Wn.     App.   at   700.   In both   cases,   the   examples were "          analog[ ies] to

describe the. relationship between circumstantial evidence, direct evidence, and the beyond -a-

reasonable -   doubt burden           of proof."   Curtiss, 161 Wn.       App.   at   700.    The puzzle analogy did not

equate. the burden of proof to making an everyday choice or quantify the standard necessary to

satisfy its burden. Similarly, the railroad tie analogy did not shift or trivialize the State' s burden.
        The basketball analogy              presents a more      difficult   question.       Arguably, with this analogy,

the State improperly quantified the level of certainty needed to satisfy the beyond a reasonable

doubt   standard.       But, even if this statement was improper, as discussed in the preceding section,

it did not affect the outcome of the trial.


         E.        Urging Jury to Find the Truth

         Walker next contends that the prosecutor' s statements asking the jury to " decide what the

truth is" and telling the jury that " the remedy" is for you to return " true verdicts" were improper.

Appellant' s Br.       at   68, 70.    It is improper to ask the jury to declare the truth, but this error may be

remedied by a curative instruction. Additionally, it is not improper to ask the jury to return a true

verdict.




           In its rebuttal, the State told the jury " it is your job to decide what the truth is" and " you

have to ...     tell   us   the truth of    what   happened     by   your verdicts."         12 RP   at   1435.    It also stated,


  the peace and dignity of the people of the state of Washington is offended by the crimes that are

 committed, by the defendant' s crimes, the remedy in this public trial is for you to return true
verdicts,     finding   the defendant guilty as          charged."    12 RP at 1438 -39.




                                                                19
41970 -0 -II




          The jury' s role is not to determine the truth of what happened; rather, its role is to
determine      whether    the State has      proved         the   charged crimes       beyond   a reasonable     doubt. State v.


Emery,    174 Wn.2d 741, 760, 278 P. 3d 653 ( 2012).                          The prosecutor' s comments asking the jury

to " decide what the truth is" and to " tell us the truth of what happened" suggested an improper

role   for the   jury.   12 RP at 1435. Therefore, the comments were misconduct.


          However, Walker fails to            show         that he   was prejudiced      by these    comments.       In Emery, the

State   made      similar comments          urging the        jury    to "    speak   the truth."     174 Wn.2d       at   751.   The


Supreme Court held that these comments were improper but that the defendant failed to show the

requisite prejudice.         Emery,        174 Wn.2d         at   760.     The court stated that the comments were not


inflammatory. Emery,              174 Wn.2d        at      763.     The remarks may have confused the jury, but that

                         have been                                   instruction.      Emery,   174 Wn.2d       at   764.    Because
confusion could                        cured     by   a proper



the defendants had to show that the misconduct could not have been cured by an instruction,

their   argument     failed.    Emery,      174 Wn.2d         at    764. The challenged comments were similar in this


case    to those     in Emery        and   the   jury      was     instructed —without objection either at trial or on


appeal —    about the State' s burden of proof; therefore, we follow Emery and hold that the

misconduct could be corrected by a jury instruction; thus, Walker' s argument fails.

          Additionally,        the   prosecutor' s         statement     that the " remedy ...        is for you to return true


verdicts"    was not      improper.        12 RP      at    1439.    It is improper for the prosecutor to argue that the

                             to              the community                    deter future law      breaking.    United States v.
jury    should     convict        protect                                or




Solivan, 937 F.2d 1146, 1153 ( 6th Cir. 1991) (                           quoting United States v. Monaghan, 741 F. 2d

 1434, 1441 ( D. C. Cir. 1984),             cent. denied, 470 U. S. 1085, 105 S. Ct. 1847, 85 L. Ed. 2d 146

  1985)).    In State v. Ramos, Division One of this court held that the State committed misconduct

 when it asked the jury to convict the defendant to protect the community from drug activities.
                                                                      20
41970 -0 -II



164 Wn.         App.   327, 338, 340, 263 P. 3d 1268 ( 2011).                    Here, the State did not ask the jury to

protect    the community             or   deter future law       breaking.       Instead, it        alleged — as in its charging

document —that Walker had                  committed crimes against             the "   peace and      dignity"   of Washington


and asked       the   jury   to find him guilty.        12 RP    at    1438.    Further, we have held that, although it is


improper to ask the jury to decide the truth, it is not improper to ask the jury to return a true

verdict.     See Curtiss, 161 Wn. App. at 701 ( holding that it is not misconduct to urge the jury to

return a just verdict).


           F.          Comments about Defense Strategy

           Walker next contends that the State committed misconduct when it argued that he was

misleading the          jury.        Because the State' s comments were responses to Walker' s closing

argument, they were not misconduct.

           It is improper for the prosecutor to disparagingly comment on defense counsel' s role or

impugn       counsel' s       integrity.     Thorgerson, 172 Wn.2d               at   451.     In Thorgerson, the defendant


argued that the State committed misconduct when it accused the defense of engaging in " sleight

of   hand"      and    used    disparaging     terms    like " bogus"       and "     desperation."        172 Wn.2d at 451 -52.


Focusing        on    the State'     s use of " bogus"     and    the "    sleight of       hand" comment, which the State


planned      in   advance,     the   court   determined that the State          engaged      in   misconduct.     Thorgerson, 172


Wn.2d      at   450, 452.       But the court concluded that the misconduct was not prejudicial because it

was not     likely     to have   altered     the   outcome of    the   case.    Thorgerson, 172 Wn.2d at 452.


           Here, the State'          s arguments were not misconduct.                  First, its comments were in response


 to Walker' s closing argument. In his closing argument, Walker urged the jury to have a " healthy
 distrust for     government"          because "[ t] hey   are   trying    to   sell you     something."      12 RP   at   1398.   He


        discussed                                                                      to   point    out   weaknesses.      He paid
 then                    each    witness' s        testimony   and     attempted



                                                                      21
41970 -0 -II



particular attention to Williams -Irby' s testimony, arguing that it was " bought and paid for" by

the State.          12 RP      at    1418 -19.         On rebuttal, the State addressed some of Walker' s closing

arguments and argued that his characterization of the testimony was misleading and pointed out

facts that he had             misconstrued.            For example, regarding Williams- Irby' s testimony, the State

said, "   The defense stood up here minutes ago and try [ sic] to mislead you again into thinking that

Ms. Williams -Irby only pled guilty after the ante had been upped, after the charges [ had] been

increased. That'          s   misleading. That'           s   wrong. What this is, is a desperate attempt to cast doubt."


12 RP     at   1427.     The State also referred to " desperation by the defense" and " attempts to mislead

you" while        discussing testimony                 that Walker      misstated
                                                                                    during    closing   argument (   i.e., Williams -


Irby never said she was present when Walker bought the 9 mm, she was present when he bought
the . 45; a witness at Walmart never said she saw the Buick' s window down, she said she could

not remember whether                 it   was   down). 12 RP at 1427.


           Second, although the State did. refer to some of Walker' s attempts to characterize witness


testimony         as "   desperate,"            this   was      not   misconduct.      This case is distinguishable from


Thorgerson.              In   Thorgerson, the                 State   used "   desperation"    to describe defense counsel' s


arguments, but this term was combined with other comments that the court found to be clearly

disparaging.           172 Wn.2d          at   451 -52.       In fact, the court focused on the other comments in holding

that the State         committed misconduct.                    Here, there is no other disparaging language that rises to

the level      of   the language          in Thorgerson.          Additionally, the Thorgerson court determined that the

 State had                                         hand"                  during                             the defendant.      172
                 set   up its "     sleight of                 argument             cross examination of




 Wn. 2d     at   452.     Here, there is no indication that the State planned its challenged arguments in

 advance.




                                                                         22
41970 -0 -II



         G.        Premeditation Example


         Walker next argues that the State misinformed the jury about premeditation. The State' s

premeditation example was not improper, and, even if it was, it was not likely to affect the jury' s

verdict on premeditation.




         In its closing argument, the State defined premeditation for the jury and then gave the

following      example: "   Just    by      going to—     stopping at a stop sign or a railroad crossing, that is

deliberation. You formulate the intent,                and    then you act."     12 RP at 1376.


         Premeditation involves             more     than a   moment     in   point of   time.   RCW 9A.32. 020( 1).   It is


the " deliberate formation of and reflection upon the intent to take a human life and involves the

mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a

period of     time, however      short."        Hoffman, 116 Wn.2d at 82 -83.


         The State did      not misstate           the law    on premeditation.          Although the stop sign example

suggested that premeditated intent could be formed in a short period of time, the State still

informed the jury that some time was required. Before giving its example, the State said,

 Premeditation must involve more than a moment of time. The law requires some time, however

long   or short,   in   which   it [ sic]   a   design to kill is   deliberately   formed."      12 RP at 1376.


         Walker additionally asserts that the stop sign example was inapt because few people

deliberate     about whether       to stop.        This   mischaracterizes      the State' s analogy.    As the trial court


noted, the State was referring to the decision to proceed after stopping at a stop sign and

 considering whether it is safe to go forward.

         Even if the State had misstated the law, any misstatement was cured by the jury

 instructions.     The court properly instructed the jury regarding premeditation, and we presume

 that the jury follows the trial court' s instructions. State v. Southerland, 109 Wn.2d 389, 391, 745
                                                                    23
41970 -0 -II



P. 2d 33 ( 1987). Moreover, there is not a substantial likelihood that the State' s premeditation


explanation affected the verdict because there was ample evidence of premeditation by both

Walker and Finley. Multiple witnesses testified that they heard Walker and Finley discussing the
                                                                                                         the                Lewis
robbery beforehand,               including     the possibility that       someone    might      shoot          guard.




testified that he actually went to Walmart with Finley and Walker so they could show him how

the robbery would take place and that Walker offered him and Finley guns before they entered
the   store.   And, on the day of the actual robbery, Finley entered the store with a loaded gun. See

Ra, 144 Wn. App. at 703 ( listing the planned presence of a weapon at the scene of the crime as

one circumstance supporting premeditation).


          H.             Cumulative Error


          Finally, Walker argues that, if we do not find prejudice in any individual instances of
misconduct, we should find that the misconduct, when taken together, violated his rights to a fair

trial.   We may reverse a defendant' s conviction when the combined effect of errors during trial

effectively denied the defendant his right to a fair trial, even if each error standing alone would

be harmless. State           v.    Weber, 159 Wn. 2d 252, 279, 149 P. 3d 646 ( 2006).                But, this doctrine does


not            where      the    errors are   few   and   have little   or no effect on   the   outcome of     the trial.   Weber,
      apply


 159 Wn. 2d         at    279.     Here, only some of the conduct complained of was clearly error: the

PowerPoint slides declaring Walker guilty, and the State' s comments telling the jury to " decide

what     the truth is."          12 RP   at   1435.    As discussed above, the improper slides did not affect the

outcome        of   the    case.     The      added   error   of   the " truth"   statements is not enough to establish


 cumulative error where these statements did not inflame the jury and they were easily remedied

by the court' s instructions regarding the jury' s duties. This argument fails.


                                                                     24
41970 -0 -II



II.         INEFFECTIVE ASSISTANCE OF COUNSEL


            Walker next argues that defense counsel was ineffective because counsel failed to request

a cautionary instruction for Williams -Irby' s testimony and failed to object to multiple instances

of prosecutorial        misconduct.         Because a cautionary instruction is not necessary where the

accomplice' s testimony is corroborated by other evidence and because the State' s errors were not

prejudicial, we disagree.

                        Strickland3

            Under the                      test, Walker must show that counsel' s performance was deficient

and    that this deficient        performance prejudiced          him. State v. Thomas, 109 Wn.2d 222, 225 -26,


743 P. 2d 816 ( 1987).            Performance is deficient only if it "[ falls] below an objective standard of


reasonableness."        Strickland, 466 U. S.        at   688. Performance is not deficient if counsel' s conduct


can    be   characterized as a      legitimate trial strategy. State v. Kyllo, 166 Wn.2d 856, 863, 215 P. 3d


177 ( 2009).       To establish prejudice, the defendant must show a reasonable probability that the

deficient     performance affected          the   outcome of     the trial. Thomas, 109 Wn.2d at 226.


            Walker first argues that counsel erred by not requesting a cautionary instruction regarding

accomplice        Williams -
                           Irby'      s   testimony. Where the State introduces accomplice testimony, it is

                                                                                4
the "   better   practice"   to   give a   cautionary     jury   instruction.       State v. Harris, 102 Wn.2d 148, 155,


685 P. 2d 584 ( 1984) overruled on other grounds by State v. Brown, 111 Wn.2d 124, 761 P. 2d

3 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 ( 1984).
4
      For example, the pattern instruction states:


            Testimony of an accomplice given on behalf of the [ State] should be subjected to
            careful examination in the light of other evidence in the case, and should be acted
            upon with great caution.    You should not find the defendant guilty upon such
            testimony alone unless, after carefully considering the testimony, you are satisfied
            beyond a reasonable doubt of its truth.


 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 6. 05, at 184
    3d ed. 2008).
                                                                  25
41970 -0 -II




588 ( 1988).       Failure to give the cautionary instruction is reversible error when the prosecution

relies    solely   on    accomplice         testimony, but if the accomplice testimony was substantially

corroborated by testimonial, documentary, or circumstantial evidence, then the trial court did not

commit reversible error by failing to give the instruction. Harris, 102 Wn.2d at 155.

           Here, counsel was not deficient for failing to request the instruction because Williams-

Irby' s testimony was substantially corroborated by other evidence. Parrott, Lewis, and Lopez all

also testified that they heard Walker planning the robbery beforehand, including the roles each

person would play. Parrott and Trevino corroborated Williams -Irby' s testimony about the events

after    the robbery.     Other witnesses saw Walker in the Buick in the Walmart parking lot and with

Finley    and another man after         the robbery.       There was also evidence that the Buick was parked at


Walker' s house prior to the robbery, and his fingerprint was found on the driver' s seatbelt.

            there is              footage        Walker purchasing two        safes with cash after      the robbery.   One
Finally,                video               of




of the safes was found in the car Finley was arrested in and the other was found in Walker' s

house with large amounts of cash in it. Williams -Irby' s testimony was substantially corroborated

by other testimonial, direct, and circumstantial evidence.

           Walker next argues that counsel erred by not objecting to the prosecutor' s misconduct.

Again, only a few of the prosecutor' s remarks and actions were actually errors; counsel was not

deficient for      failing   to    object   to   conduct   that was   not   improper.   But the prosecutor did err by

 giving personal opinions regarding Walker' s guilt in the closing argument PowerPoint and by
                       to decide the truth,                      failed to            to both   of   these errors.   Without
 asking the    jury                                and counsel               object




 providing any authority, Walker states that any failure to object to errors that could be cured by a

jury     instruction is deficient       performance.         Assuming this to be true, Walker has still failed to

 show any prejudice, even under the " somewhat lower" standard of prejudice used for ineffective
                                                                26
41970 -0 -II




assistance     claims.        Strickland, 466 U.S.         at   694.      The trial court correctly instructed the jury

regarding its duty in the case; therefore, the State' s " truth" comments did not affect the outcome

of   the trial.    Additionally, given the strength of the State' s evidence, the prosecutor' s closing

argument slides         did   not affect   the   outcome of      the trial.   Accordingly, Walker has failed to show

that counsel was ineffective.


III.      STATEMENT OF ADDITIONAL GROUNDS


          In his SAG, Walker alleges that the evidence found in his safe should have been

suppressed        and   that the trial     court   erred   by denying         him   a   CrR 3. 6   hearing.   Walker filed a


motion to suppress the evidence from the safe on the Friday before the trial was about to begin.

The trial    court      denied his   motion      for two   reasons: (      1) the motion was untimely and ( 2) Walker

failed to establish any basis for suppression because the search was pursuant to a warrant and the
warrant listed items that could be contained in a safe.


          Walker argues that the police cannot search a locked container, citing to cases involving

warrantless searches of vehicles and homes. But here, the search involved a house, not a vehicle,

and the police possessed a valid search warrant, which Walker does not challenge. Additionally,

the    warrant    included items that        could    fit in    a safe.     Because the motion would not have been


granted even if the trial court had held a CrR 3. 6 hearing, the trial court did not err by denying

Walker' s motion for a hearing.

IV.        STATE' S CROSS APPEAL


          In its cross appeal, the State challenges part of the trial court' s aggravating circumstances


 instruction. The trial court instructed the jury that

            f]or the aggravating           circumstance         to   apply [ to the first degree premeditated
           murder charge],the defendant must have been a major participant in acts causing
           the death of Kurt Husted and the aggravating factors must specifically apply to
                                                                     27
41970 -0 -II




          the    defendant'   s   actions.   The State has the burden of proving this beyond a
          reasonable    doubt.      If you have a reasonable doubt whether the defendant was a
          major participant, you should answer the special verdict " no."


CP   at   250.   The State argues that this language was inappropriate because it only applies when

the State is seeking the death penalty, which it did not do here. Although the jury found that the

State met its burden of proving the aggravating factors in this case, the State asks us to hold that

this language is in error and to instruct the trial court to remove this language from the

aggravating       circumstances      instruction in the   event of a remand.   Because we affirm the trial


court, there is no need to remand and no need to consider the State' s argument.

           Affirmed.




                                                                      Penoyar,


We concur:




                                                           28
