State v. Walker

• Decision Date: 18 November 2011
• Docket Number: No. 39420–1–II.,39420–1–II.
• Citation: 164 Wash.App. 724,265 P.3d 191
• Parties: STATE of Washington, Respondent, v. Aquarius Tyree WALKER, Appellant.
• Court: Washington Court of Appeals

164 Wash.App. 724

265 P.3d 191

STATE of Washington, Respondent,

v.Aquarius Tyree WALKER, Appellant.

No. 39420–1–II.

Court of Appeals of Washington, Division 2.

Nov. 8, 2011.As Corrected Nov. 18, 2011.

Casey Grannis, Nielsen Broman & Koch, PLLC, Seattle, WA, for Appellant.

Brian Neal Wasankari, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

JOHANSON, J.

[164 Wash.App. 726] ¶ 1 Aquarius Tyree Walker appeals his convictions of first degree murder, two counts of first degree assault, and second degree unlawful possession of a firearm. He argues, inter alia, that the prosecutor committed prosecutorial misconduct during closing arguments by (1) using a fill-in-the-blank argument, (2) comparing the reasonable doubt standard to everyday decision making, (3) telling the jury its job was to declare the truth and return a just verdict, (4) commenting on the length of Walker's presentation of evidence, and (5) misstating the defense of others standard. We hold that the prosecutor's cumulative improper comments constituted prosecutorial misconduct and reverse Walker's convictions for first degree murder and first degree assault and remand for a new trial.¹ Because we reverse on the prosecutorial misconduct issue, we do not reach Walker's remaining arguments.

FACTS

Background

¶ 2 On the night of July 28, 2006, Aquarius Walker, Tavarrus Moss, Henri Moss, and Jenelle Dart went to the Brickyard Bar and Grill. As the group left the bar, an argument broke out between a group of Samoans—which included Rooney Key—and Henri and Tavarrus.²

¶ 3 At trial, a number of witnesses testified about the events that occurred outside of the bar. Trial testimonies conflicted about whether a fight occurred, how many people were involved in the fight, who was standing where during the fight, who and how many people fired guns, how many gunshots were fired, and how much risk of harm Tavarrus faced during the incident.

¶ 4 Generally, most witnesses agreed to several parts of the incident. At one point, Key picked up Tavarrus by his shirt collar and pants and slammed him into a nearby vehicle. At another point, Walker retrieved a gun from a nearby vehicle and fired warning shots into the air. Eventually, Walker fired several more shots, this time aiming at Key who was still holding on to Tavarrus; but, one shot allegedly struck Tavarrus. Walker fled the scene and hid in a nearby vehicle.

¶ 5 After the shooting, Tavarrus lay on the ground with a bullet wound in his forehead. He died later that day from the wound. Henri had been shot in the left thigh, and Key had been shot in his right arm.

[164 Wash.App. 728] ¶ 6 The Lakewood Police Department quickly responded to the scene. With the help of a canine unit, police found Walker hiding in a nearby vehicle. Officers read Walker his Miranda³ rights and asked why he was hiding. Walker stated that he had heard gunshots and had taken off running. He denied ever having a gun. At the scene, Dart identified Walker as the shooter. Behind a tire store near where Walker had hidden, officers found a black Glock 27, .40 caliber pistol with a laser sight attached.

Procedure

¶ 7 The State charged Walker with first degree murder by extreme indifference (Tavarrus), under RCW 9A.32.030(1)(b); second degree felony murder (Tavarrus), under RCW 9A.32.050(1)(b); and two counts of first degree assault (Henri and Key), under RCW 9A.36.011(1)(a). The State also alleged firearm sentencing enhancements for each of these four counts. Finally, the State charged Walker with second degree unlawful possession of a firearm, under RCW 9.41.040(2)(a)(i).

¶ 8 At trial, Dr. John Howard, a forensic pathologist and medical examiner, testified that Tavarrus died from a gunshot wound to his head. Tavarrus had other wounds, including abrasions on his hands, forehead, and bruising on his nose and left eyelid. Tavarrus also had a black eye, but Dr. Howard concluded that it was a result of the gunshot wound. Dr. Howard considered the non-gunshot wounds minor and believed they did not indicate that Tavarrus had been severely beaten prior to being shot. But Dr. Howard acknowledged that if someone had punched Tavarrus in the same area as the bleeding gunshot wound, he would not have been able to distinguish the two injuries.

¶ 9 Witnesses also differed in their trial testimonies about the risk of harm Tavarrus faced during the incident. Over the course of a trial that spanned well over a month, the State and defense called numerous witnesses and experts to testify. Much of the testimony at trial conflicted.

¶ 10 During closing argument, the prosecutor: (1) told the jury its job was to declare the truth; (2) in explaining reasonable doubt, made the “fill-in-the-blank” argument and compared the standard to everyday decision making; (3) commented on the length of the defense's case; and (4) told the jury that in evaluating Walker's defense of others claim, the standard comes down to whether they would have committed the same actions, too. Each argument included a PowerPoint slide that emphasized the State's points.

¶ 11 The jury found Walker guilty on all counts and returned special firearm verdicts. Walker appeals.

ANALYSIS

Prosecutorial Misconduct

¶ 12 Walker argues that five categories of statements the prosecutor made during closing argument constituted prosecutorial misconduct. These statements were that: (1) the jury had to fill-in-the-blank to find reasonable doubt, (2) the reasonable doubt standard was similar to everyday decision making, (3) the jury's role was to declare the truth, (4) Walker's evidence dragged on for a long time, and (5) the defense of others standard was whether the jury would have done it too.⁴ We hold that four of the statements were misconduct and that their cumulative effect denied Walker a fair trial.⁵

A. Standard of Review

¶ 13 An appellant claiming prosecutorial misconduct must show both improper conduct and resulting prejudice. State v. McKenzie, 157 Wash.2d 44, 52, 134 P.3d 221 (2006). Prejudice exists only where there is a substantial likelihood the misconduct affected the jury's verdict. State v. Brown, 132 Wash.2d 529, 561, 940 P.2d 546 (1997), cert. denied, 523 U.S. 1007, 118 S.Ct. 1192, 140 L.Ed.2d 322 (1998). We review a prosecutor's comments 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. Brown, 132 Wash.2d at 561, 940 P.2d 546. Defense counsel's failure to object to alleged prosecutorial misconduct at trial fails to preserve the issue for appeal, unless the misconduct is so flagrant and ill intentioned that it evinces an enduring and resulting prejudice incurable by a curative instruction. State v. Gregory, 158 Wash.2d 759, 841, 147 P.3d 1201 (2006).

B. Improper Conduct

1. Fill–in–the–Blank Argument

¶ 14 Walker argues that the State committed prosecutorial misconduct by using the so-called fill-in-the-blank argument. We agree.

¶ 15 When explaining the reasonable doubt standard during closing argument, the prosecutor said, that beyond a reasonable doubt did not mean,

Beyond any doubt, beyond all doubt, to a hundred percent certainty, or beyond a shadow of a doubt.... The instruction is important for what it says. It says “a doubt for which a reason exists.” If you are to find the defendant not guilty in this case, you have to say, “I had a reasonable doubt.”

25 Verbatim Report of Proceedings (VRP) at 54. “When someone says, ‘What was your reasonable doubt?’ You tell them.” 25 VRP at 54. The prosecutor also included a PowerPoint slide that stated:

A do

If you were to find the defendant not guilty, you have to say:

“I had a reasonable doubt”

What was the reason for your doubt?

“My reason was _______________.”

Clerk's Papers (CP) at 352 (emphasis added). Walker did not object.

¶ 16 Walker correctly states that the fill-in-the-blank argument employed here improperly suggested that Walker had to provide a reason for the jury to find him not guilty. State v. Johnson, 158 Wash.App. 677, 684–85, 243 P.3d 936 (2010), review denied, 171 Wash.2d 1013, 249 P.3d 1029 (2011); State v. Venegas, 155 Wash.App. 507, 523, 228 P.3d 813, review denied, 170 Wash.2d 1003, 245 P.3d 226 (2010); State v. Anderson, 153 Wash.App. 417, 431, 220 P.3d 1273 (2009), review denied, 170 Wash.2d 1002, 245 P.3d 226 (2010). ⁶

¶ 17 The State attempts to distinguish Anderson and Venegas, claiming that the statements made here are not similar because the prosecutor did not tell the jury that it must find a reason to find Walker not guilty. This is incorrect. Even if the prosecutor's comments did not qualify as a fill-in-the-blank argument, his PowerPoint slide told the jury it had to articulate a reason before it could find Walker not guilty: “If you were to find the defendant not guilty, you have to say: ‘I had a reasonable doubt ... My reason was _______________.’ ” CP at 352 (emphasis added). The prosecutor, as in Anderson and Venegas, told the jury that before it could find Walker not guilty, it needed a reason. This shifted the burden of proof to Walker. The prosecutor's comments were improper.

2. Everyday Decisions Argument

¶ 18 Again relying on Anderson, Walker argues that the prosecutor also committed prosecutorial misconduct by comparing the burden of proof to everyday decisions. Here, the prosecutor also argued that the reasonable doubt standard “is a common standard that you apply every day” and compared it to having surgery and leaving children with a babysitter. 25 VRP at 55–56. Walker did not object to this argument at trial. We agree with Walker that the prosecutor's arguments were improper.

¶ 19 In Anderson, we held that similar comments were improper “because they minimized the importance of the reasonable doubt standard and of the jury's role in determining whether the State has met its burden.” Anderson, 153 Wash.App. at 431, 220 P.3d 1273. We continued, “By comparing the certainty...