[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Gregory Charles Link, Washington Appellate Project, Seattle, WA, for Appellant/Cross-Respondent.
Kathleen Proctor, Thomas Charles Roberts, Pierce County Prosecuting Atty. Office, Tacoma, WA, for Respondent/Cross-Appellant.
[178 Wn.App. 899] PENOYAR, J.
¶ 1 A jury convicted Darcus Allen of first degree premeditated murder for 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.
¶ 2 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 [178 Wn.App. 900] 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, (4) the t-shirts did 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.
¶ 3 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.
¶ 4 In the week before the shooting, Clemmons indicated that he was planning to harm police officers. Allen twice heard Clemmons threaten to harm police if they came looking for him. Both times, he displayed a gun. Allen also knew that Clemmons had cut off his ankle monitor.
¶ 5 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 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.
[178 Wn.App. 901]¶ 6 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.
¶ 7 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.
¶ 8 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.
¶ 9 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 safety— justified the warrantless arrest.
¶ 10 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.
[178 Wn.App. 902] ¶ 11 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.
¶ 12 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.
¶ 13 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.
I. INSUFFICIENT EVIDENCE OF KNOWLEDGE
¶ 14 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 significant incriminating testimony, there is sufficient evidence [178 Wn.App. 903] to prove that Allen knew he was assisting Clemmons in the murders.
¶ 15 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 Wash.2d 414, 420-21, 5 P.3d 1256 (2000). We interpret all reasonable inferences in the State's favor. State v. Hosier, 157 Wash.2d 1, 8, 133 P.3d 936 (2006). Direct and circumstantial evidence carry the same weight.
State v. Varga, 151 Wash.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 Wash.2d 819, 831, 132 P.3d 725 (2006).
¶ 16 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 Wash.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 Wash.2d 51, 104, 804 P.2d 577 (1991); State v. Davis, 101 Wash.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).
¶ 17 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 [178 Wn.App. 904] heard Clemmons threaten to shoot police officers. Both times, Clemmons had displayed a gun. Allen also knew that Clemmons had removed his ankle monitor.
¶ 18 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.
¶ 19 Moreover, flight may be circumstantial evidence of guilty knowledge. State v. Bruton, 66 Wash.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, 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.
II. PROSECUTORIAL MISCONDUCT
¶ 20 Next, Allen argues that the State committed misconduct by misstating the law regarding the level of [178 Wn.App. 905] 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.
¶ 21 In closing argument, after first correctly stating the knowledge instruction, the prosecutor repeatedly used the phrase " should have known" when discussing accomplice liability. Allen objected, but the trial court overruled his objections. The prosecutor again made several " should have known" comments in rebuttal argument, and again the trial court overruled Allen's objections.
¶ 22 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.
¶ 23 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.
CP at 2026. Neither party objected to these instructions.
[178 Wn.App. 906] ¶ 24 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 Wash.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.
¶ 25 Our Supreme Court rejected a similar argument in State v. Emery, 174 Wash.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 Wash.2d at 756, 278 P.3d 653. 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 Wash.2d at 757, 278 P.3d 653; see State v. Warren, 165 Wash.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 Wash.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 Wash.2d 667, 680, 257 P.3d 551 (2011) (applying the constitutional harmless error standard where the prosecutor deliberately injected racial bias into closing argument), and the misconduct [178 Wn.App. 907] occurred during closing argument and could not be likened to instructional error. Emery, 174 Wash.2d at 757-59, 278 P.3d 653.
¶ 26 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 Wash.2d at 757, 278 P.3d 653; Warren, 165 Wash.2d at 26 n. 3, 195 P.3d 940. Further, the misconduct did not involve racial bias and it occurred during ...