Argued September 9, 2014
Appeal from Pierce County Superior Court 10-1-00938-0 Honorable Frederick W. Fleming.
Gregory C. Link (of Washington Appellate Project ), for petitioner.
Mark E. Lindquist, Prosecuting Attorney, and Kathleen Proctor and Thomas C. Roberts, Deputies, for respondent.
AUTHOR: Justice Mary E. Fairhurst. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Susan Owens, Justice Debra L. Stephens, Justice Charles K. Wiggins, Justice Steven C. Gonzáles, Justice Sheryl Gordon McCloud, Justice Mary I. Yu.
[182 Wn.2d 369] Fairhurst, J.
¶ 1 In November 2009, Maurice Clemmons shot and killed four Lakewood police officers. Darcus Dewayne Allen, the petitioner in this case, drove Clemmons to and from the crime scene and was charged as an accomplice. We must decide whether the prosecuting attorney committed prejudicial misconduct by misstating the standard upon which the jury may convict an accomplice. In a divided decision, the Court of Appeals recognized that the statements were improper but ultimately held that they did not amount to prejudicial misconduct. State v. Allen, 178 Wn.App. 893, 317 P.3d 494 (2014). We reverse.
¶ 2 This case presents two additional issues: (1) whether an accomplice is subject to a sentence outside the statutory range based on the aggravating circumstance found in RCW 9.94A.535(3)(v) and (2) whether Allen was prejudiced when the trial judge permitted spectators to wear T-shirts bearing the
names of the murdered officers. Although the prejudicial misconduct issue is dispositive in this case, we address these two remaining issues because they are likely to arise on remand. Joyce v. Dep't of Corr., 155 Wn.2d 306, 325, 119 P.3d 825 (2005).
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶ 3 Because accomplice liability depends on whether the defendant had knowledge the principal would commit the crime, events leading up to the murders are summarized. This tragic story began in May 2009 when officers responded to reports that Clemmons was throwing rocks through his neighbors' windows. Clemmons responded violently [182 Wn.2d 370] when officers arrived at the scene, and he was arrested for punching officers. He posted bail in November 2009, the month of the shootings.
¶ 4 Shortly after his release, Clemmons attended Thanksgiving dinner at his aunt's house, where he expressed animosity toward the police. Specifically, he announced that if the police arrived to look for him, he would kill them and then go across the street to the elementary school and commit further acts of violence. Clemmons brandished a handgun while he described these acts. Allen, who was a friend and employee of Clemmons, was present at that dinner.
¶ 5 Three days later, Clemmons contacted Allen and told him they were going to wash the company truck. With Allen driving, Clemmons directed him to a car wash near a coffee shop in Lakewood. Upon arriving at the car wash, Allen parked the truck, got out, and walked across the street to a minimart. During that time, Clemmons also left the car wash and entered the coffee shop, where the shootings occurred. When Allen returned to the truck, Clemmons appeared and told Allen that they had to leave. Allen claimed he drove only a few blocks until he left the truck upon discovering Clemmons was wounded. Allen also claimed that he did not know Clemmons was going to commit the murders.
¶ 6 Clemmons eventually ended up at his aunt's house, and the truck was abandoned in a nearby parking lot. A few days later, Clemmons was killed by a Seattle police officer. Allen was arrested shortly afterward.
B. Allen's trial
¶ 7 Allen was charged with four counts of aggravated first degree murder. The State initially alleged multiple aggravating circumstances but eventually settled on the aggravator under RCW 9.94A.535(3)(v). That aggravator allowed the trial court to sentence Allen above the standard range if the jury found that (1) the victims were police [182 Wn.2d 371] officers who were performing their official duties at the time of the offense, (2) Allen knew the victims were police officers, and (3) the victims' status as police officers were not elements of the offense. RCW 9.94A.535(3)(v).
¶ 8 During trial, several spectators wore T-shirts that said, " 'You will not be forgotten, Lakewood Police,'" followed by the names of the four murdered officers. 24 Verbatim Report of Proceedings (VRP) at 3024. Allen objected to these T-shirts and asked that the shirts be covered. The trial court denied Allen's motion, stating that " [j]ustice is what this trial is all about. Sometimes [there are] competing principles. Free speech is one, public trials is another. I'm going to deny your motion." Id. at 3027.
¶ 9 The next day, spectators again arrived with the same T-shirts and Allen renewed his objection that the court bar the individuals from wearing the T-shirts in the courtroom. The trial court denied the motion, stating that it was " a matter of free speech." 25 VRP at 3157.
C. Closing argument
¶ 10 The State was required to prove that Allen had actual knowledge that Clemmons would commit the murders. During closing argument, the prosecuting attorney initially stated the correct definition of " knowledge" as it was used in the jury instruction. 29 VRP at 3544. He said, " [I]f 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." Id. However, immediately
afterward, the prosecuting attorney stated that " [f]or shorthand we're going to call that 'should have known.'" Id. at 3544-45. The prosecuting attorney went on to repeatedly and improperly use the phrase " should have known" when describing the definition of " knowledge." Id. at 3545-46, 3548-49, 3566, 3570.
¶ 11 The prosecuting attorney also presented a slide show simultaneously with his closing argument. This slide [182 Wn.2d 372] show repeatedly referred to the " should have known" standard. Pl.'s Ex. 352, at 1, 5-7, 12, and 14. One slide even stated, " You are an accomplice if: ... you know or should have known," with the words " or should have known" in bold. Id. at 6.
¶ 12 Allen objected to this characterization of the " knowledge" definition, but the trial court overruled his objections, saying, " It's argument." 29 VRP at 3546. During Allen's closing argument, Allen's attorney argued his interpretation of the statute briefly. Id. at 3604 (" Well, read those instructions. He needed to know." ).
¶ 13 The prosecuting attorney made several more " should have known" comments in rebuttal argument. Id. at 3614 (" This is the knowledge instruction. What did he know, what should he have known. This is Instruction No. 9." ). Additionally, of the four slides titled " Defendant Should Have Known," none indicated that the jury was required to find actual knowledge. Pl.'s Ex. 354, at 3-4. Allen's attorney objected again to the mischaracterization of the " knowledge" definition but was overruled. 29 VRP at 3614.
D. Jury instructions, deliberations, and verdict
¶ 14 The jury received instructions that correctly stated the law regarding " knowledge." Clerk's Papers (CP) at 2026. Particularly, instruction 9 said:
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.
¶ 15 During deliberation, the jury sent the following question to the court: " If someone 'should have known' does that make them an accomplice?" CP at 2014. The State [182 Wn.2d 373] recommended that the court refer the jury back to its instructions, and Allen agreed. Allen did not ...