State Of Washington, Respondent V. Aquarius T. Walker, Appellant

PILED
COURT OF APPEALS
DIVISIT4 11
2013 FEB Alf 9.01
STAT iG
BY
A
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF.WASHINGTON, No. 39420-1-	11
Respondent,
PM
AQUARIUS TYREE WALKER,
UNPUBLISHED OPINION
AFTER REMAND
FROM SUPREME COURT
2
JOHANSON, A.C.	J. —	Our Supreme Court granted a petition for review in State v.
Walker, 164 Wn. App. 724, 265 P.3d 191 ( 2011),and remanded it to us for
reconsideration in light of State v. Emery, 174 Wn.2d 741, 278 P.3d 653 ( 2012). We
affirm our earlier decision, which reversed Aquarius Tyree Walker's first degree murder
and two first degree assault convictions because of the cumulative effect of prosecutorial
misconduct.
Walker and a group of friends went to a bar in July 2006. As Walker's group left
the bar, a fight broke out between some of Walker's friends and another group. The
argument escalated, and Walker retrieved a gun. He fired warning shots before
apparently taking aim and firing shots at a man fighting his friend —presumably to
protect his friend. One of those shots killed Walker's friend, a non -fatal shot hit another

No. 39420-1-	11
of Walker's friends, and another non -fatal shot struck a member of the opposing group.
During closing argument at trial, the State engaged in four types of misconduct
that we held deprived Walker of a fair trial. Without objection, the State (1)used the fill -
in-the -blank argument and asserted that the jury needed to explain any reason it had for
not finding Walker guilty; (2) compared reasonable doubt to everyday, common
standards people use to make decisions; and (3)tasked the jury with declaring the truth.
Walker, 164 Wn. App. at 729, 731 -33. And (4)over defense counsel's objection, in
evaluating Walker's defense -of-others claim, the State mischaracterized the law when it
argued that the defense -of-others standard involves whether the jury members would
have done the same as Walker, had they been in Walker's shoes on the night of the
shooting. Walker, 164 Wn. App. at 729, 735. Visual slides accompanied these closing
arguments, which occurred over two days. Walker, 164 Wn. App. at 729, 739 n.8. The
jury convicted Walker, but we reversed, holding that the cumulative effect of these four
instances of misconduct deprived Walker of a fair trial. Walker, 164 Wn. App. at 729.
Emery too involved prosecutorial misconduct. In Emery, the State employed the
same fill -	in-the -blank and declare-the -truth arguments,using visual slides. 174 Wn.2d at
750 -51. Although the Supreme Court held that these two arguments were improper, it
determined that these improper arguments did not warrant a new trial because defense
counsel did not object at trial, and Emery could not show that the arguments were so
prejudicial that the trial court could not have cured the prejudicial effect with an
instruction. Emery, 17.4 Wn.2d at 765. The Supreme Court stated, "Reviewing courts
should focus less on whether the prosecutor's misconduct was flagrant and ill intentioned
and more on whether the resulting prejudice could have been cured."174 Wn.2d at 762.
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No. 39420 -1 -II
First, the Supreme Court analyzed whether the State's fill -	in-the -blank and
declare-the -truth arguments were flagrant and ill -intentioned. It concluded that declare-
the -truth and fill -	in-the -blank arguments are not the type that our courts have traditionally
found inflammatory —	like arguments that appeal to racial biases and local prejudices —	so
these arguments lacked any possibility of inflammatory effect. Emery, 174 Wn.2d at
763. As a result, it held that these arguments were neither flagrant nor ill-intentioned.
Second, the Supreme Court evaluated whether an instruction could have cured the
State's improper comments. Again,the court placed great emphasis.on this analysis, and
it reviewed the facts in Emery against those of State v. Warren, 165 Wn.2d 17, 195 P.3d
940 (2008),cent. denied, 129 S. Ct. 2007 (2009).
In Warren, the State undermined the presumption of innocence by saying,
Reasonable doubt does not mean give the defendant the benefit.of the doubt, and that is
clear when you read the definition." 165 Wn.2d at 24. The State also said that the
entire trial has been a search for the truth." Warren, 165 Wn.2d at 25. In Warren,
however, the defense objected to these misstatements, and the trial court offered a
curative – instruction that Emery described as " imperfect." -174 Wn.2d at 764. -
Nevertheless, our Supreme Court held that the instruction cured the State's improper
remarks so a new trial was not warranted.
Our Supreme Court relied on Warren ' in Emery, explaining, "Because the very
similar misstatements in Warren were cured by an improper instruction, the
misstatements here could have been cured by a proper instruction."Emery, 174 Wn.2d at
1
The Supreme Court noted that Emery's trial occurred before our courts issued the most
recent flurry of prosecutorial misconduct cases, State v. Anderson, 153 Wn. App. 417,
220 P.3d 1273 (2009),review denied, 170 Wn.2d 1002 (2010);State v. Venegas, 155 Wn.
App. 507, 228 P.3d 813, review denied, 170 Wn.2d 1003 (2010).
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No. 39420 -1 -II
764. It reasoned .that, had Emery objected at trial, the trial court would have properly
explained the jury's role and reiterated the correct burden of proof. An instruction would
have eliminated confusion and cured any potential prejudice stemming from the State's
improper remarks. Emery, 174 Wn.2d at 764.
In a footnote, the Supreme Court added that, even had Emery shown that the
statements were incurable, he could not show a substantial likelihood that the statements
affected the jury's verdict. It reasoned that the State "clearly and repeatedly stated that
the State bears the burden of proof and quoted the law directly from the jury
instructions."Emery, 174 Wn.2d at 764 n.14. It also implied that the effect of the State's
improper statements was minimal because the remarks came at the end of an eight -day
trial, and included just nine total sentences. Next, the Supreme Court concluded that
Emery could not demonstrate that the statements affected the jury's verdict because the
State's case was "very strong, probably overwhelming"and lacked conflicting testimony.
Emery, 174 Wn.2d at 764 n.14. Lastly, the Supreme Court noted that the jury
instructions properly defined reasonable doubt for the jury and directed the jurors to
disregard arguments not supported by the instructions. Emery, 174 Wn.2d at 765 n.14.
Walker is similar to Emery in many ways, but it is also quite different. Like
Emery, the Walker trial occurred before our courts' recent opinions involving
prosecutorial misconduct. And like Emery, Walker involved the fill -	in-the -blank and
declare-the -truth arguments that the State presented with visual slides, and without
objection. Also, as in Emery, Walker did not object to two improper arguments.
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No. 39420 -1 -II
But the cases were also very different. In addition to the two types of misconduct
that occurred in Emery, in Walker the State also improperly analogized reasonable doubt
to common, everyday decisions —	like deciding whether to have elective surgery or leave
one's children with a new babysitter. In Walker, the State also misstated the law of self-
defense by asking the jury members whether they would have done the same thing
Walker did, if they were to defend their friends in a fight. Walker unsuccessfully
objected to this argument. So Walker involved twice as many misconduct themes.
We distinguish Walker from Emery and affirm our earlier ruling, reversing and
remanding for Walker's retrial. As an initial matter, Emery tells us to "focus less on
whether the prosecutor's misconduct was flagrant or ill intentioned and more on whether
the resulting prejudice could have been cured."Emery, 174 Wn.2d at 762. We note then
that in Walker, we held that the State acted with flagrance and ill intent because of its
frequent improper statements during closing arguments, to the point that the State
developed these improper arguments into individual themes —	and that it amplified its
misconduct through slides. Walker, 164 Wn. App. at 738.
In Emery, the Supreme Court cited Warren, and recited two improper remarks
that the trial court cured with an instruction. Walker involved considerably more than
just two improper statements. In Walker, the State's closing argument occurred over two
days, and during that closing, the State "repeatedly" made improper comments —	with
accompanying slides —involving four separate misconduct themes. The misconduct in
Warren, as cited in Emery, apparently spanned two themes and two sentences; in Emery,
just two themes over nine sentences. Walker involved four themes spanning at least
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No. 39420 -1 -II
thirteen oral sentences, with slides containing additional improper language. Emery
directs us to focus our analysis on whether the State's misconduct and resulting prejudice
could have been cured. Given the frequency of the misconduct during the two -day
closing argument, and the fact that the State visualized its misconduct on its slides, the
trial court could not have cured the misconduct through instruction. Moreover, any
attempt to secure a curative instruction may have been futile, as the trial court overruled
Walker's only objection during closing arguments —	an objection that the trial court
should have sustained.
More important, in distinguishing Emery from Walker to determine prejudice, we
note that unlike Emery, with its overwhelming evidence favoring the State, Walker
involved numerous conflicting factual issues, exacerbating the potential for prejudice
before the jury. Because of this conflicting evidence, we held that the State's improper
statements would be so prejudicial as to not be curable by an instruction. In sum, the
State committed flagrant and ill-intentioned misconduct that was so prejudicial that a
curative instruction would not have remedied the misconduct. Therefore, even in light of
2
Emery raises no concern over the use of visual imagery in its analysis. Since Emery,
our Supreme Court has issued In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 286
P.3d 673 (2012),holding that "imagery, then, may be very difficult to overcome with an
instruction. Prejudicial imagery may become all the more problematic when displayed in
the closing arguments of a trial, when the jury members may be particularly aware of,
and susceptible to, the arguments being presented." 175 Wn.2d at 707 -08 (internal
citation omitted). So while the imagery in Emery received little focus in the court's
opinion, one must consider imagery now,post -Glasmann.
3 Was Walker a lone gunman? Did he fire into a crowd or at specific individuals? Did he
fire before or after their fight began? What level of harm was Walker's friend facing?
Was Walker a first aggressor? Did Walker shoot his friend, or did someone else shoot
him?Walker, 164 Wn. App. at 73 8.
rel

No. 3 9420 -1 -II
Emery, we affirm our earlier Walker decision. The cumulative error from the many
instances of misconduct warrants a new trial.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.	06.	040,it is so ordered.
We concur:
Johanson, A. .J.
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