State Of Washington, Respondent/cross V Darcus D. Allen, Appellant/cross

• Court: Court of Appeals of Washington
• Decided: January 14, 2014
• Docket: 42257-3
• Status: Published

Opinion

FI . EIS G UN T OF APPEALS 01` 41iS #(-,!rA I

20i' I A 23 IN THE COURT OF APPEALS OF THE STATE OF W

DIVISION II ON VA STATE OF WASHINGTON, No. 42257 -3 - II

Respondent /Cross Appellant,

V.

DARCUS D. ALLEN, PUBLISHED OPINION

ss

PENOYAR, J. — A jury convicted Darcus Allen of first degree premeditated murder fof

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.

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

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, ( shirts did 4) the t - 42257 -3 - II

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.

FACTS

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.

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. 1 Both times, he displayed a gun. Allen also knew that Clemmons had cut off his ankle monitor.

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 2 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.

1 The ankle monitor was a bail condition for a previous offense.

2 The State argues that Allen and Clemmons drove by the coffee shop twice before the shooting. Video footage shows several white trucks passing by the coffee shop before the shooting, but the picture is not clear enough to determine which of the trucks is Clemmons' s. 2 42257 - - II 3

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.

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.

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.

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

safetyjustified the warrantless arrest.

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. 3 42257 -3 -II

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.

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.

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.

ANALYSIS

I. INSUFFICIENT EVIDENCE OF KNOWLEDGE

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 42257 -3 - II

significant incriminating testimony, there is sufficient evidence to prove that Allen knew he was

assisting Clemmons in the murders.

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 Wn.2d 414, 420 -21, 5 P. 3d

1256 ( 2000). We interpret all reasonable inferences in the State' s favor. State v. Hosier, 157

Wn.2d 1, 8, 133 P. 3d 936 ( 2006). Direct and circumstantial evidence carry the same weight.

State v. Varga, 151 Wn.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 Wn.2d 819, 831, 132 P. 3d 725

2006):

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 Wn. 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 Wn.2d 51, 104, 804 P. 2d 577 ( 1991); State v. Davis, 101 Wn.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).

5 42257 -3 -II

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 heard Clemmons

threaten to shoot police officers. Both times, Clemmons had displayed a gun. Allen also knew

that Clemmons had removed his ankle monitor.

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.

Moreover, flight may be circumstantial evidence of guilty knowledge. State v. Bruton,

66 Wn.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 , 3 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.

3 Although Allen claimed that he got out of the truck a few blocks from the car wash when he noticed Clemmons bleeding, Clemmons' s blood was found only on the passenger side of the truck when the truck was recovered from the grocery store parking lot. 6 42257 -3 -II

II. PROSECUTORIAL MISCONDUCT

Next, Allen argues that the State committed misconduct by misstating the law regarding

the level of 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.

In closing argument, after first correctly stating the knowledge instruction, the prosecutor

used the phrase " should have known" when discussing accomplice liability. Allen repeatedly

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.

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.

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.

7 42257 -3 -II

CP at 2026. Neither party objected to these instructions.

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 Wn.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.

Our Supreme Court rejected a similar argument in State v. Emery, 174 Wn.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 Wn.2d at 756. 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 Wn.2d at 757; see State v. Warren, 165 Wn.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 Wn.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 Wn.2d 667, 680, 257 P. 3d 551 ( 2011)

applying the constitutional harmless error standard where the prosecutor deliberately injected 42257 -3 - II

racial bias into closing argument), and the misconduct occurred during closing argument and

could not be likened to instructional error. Emery, 174 Wn.2d at 757 -59.

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 Wn.2d at 757;

Warren, 165 Wn.2d at 26 n. 3. Further, the misconduct did not involve racial bias and it occurred

during closing argument and did not involve an instructional error. Accordingly, the

constitutional harmless error standard does not apply here.

Under the established standard of review, we first consider whether the prosecutor' s

remarks were improper. Glasmann, 175 Wn.2d at 703. The prosecutor argued multiple times

during closing argument that the jury could find that Allen had knowledge that his actions were

furthering Clemmons' s crime if Allen " should have known" his actions were furthering .the

crime. These statements were accompanied by PowerPoint slides that also contained the " should

have known" language.4 Allen objected to the phrase as a misstatement of the law, but the trial

court overruled his objections. The State admits that it was improper for the prosecutor to use

should have known" as shorthand for knowledge. Resp' t' s Br. at 16 -17. The jury is not

required to find knowledge if the defendant " should have known "; instead, it is permitted to find

knowledge if the defendant has information that would lead a reasonable person in the same

situation to believe that such facts exist. State v. Shipp, 93 Wn.2d 510, 514, 610 P. 2d 1322

1980). We agree that the prosecutor' s comments were improper.

4 Several of the slides are titled " Should Have Known" and one slide crosses out the words Premeditate, Intend, Purpose, Plan, Want, Hope, Care, Know" and leaves " Should Have Known." Ex. 351, at 5, 6. 9 42257 -3 - II

Next, we must decide whether the prosecutor' s improper remarks prejudiced Allen.

Glasmann, 175 Wn.2d at 704. A defendant establishes prejudice by showing a substantial

likelihood that the misconduct affected the jury verdict. Glasmann, 175 Wn.2d at 704. 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. State v. Dhaliwal,

150 Wn.2d 559, 578, 79 P. 3d 432 ( 2003). We presume that the jury followed the court' s

instructions. State v. Russell, 125 Wn.2d 24, 84, 882 P. 2d 747 ( 1994).

We have considered a number of factors in assessing the likely prejudicial effect of the

prosecutor' s improper argument. First, knowledge was a key issue here and the State repeatedly

misstated the law regarding knowledge during its closing argument, incorrectly emphasizing

should have known" as the standard for knowledge. And Allen properly objected to this

argument. Further, the jury' s question during deliberation reflects that at least some jurors

focused on the State' s " should have known" argument.5

On the other hand, the jury instructions correctly instructed the jury on knowledge and

stated that the law is contained in the instructions and not the lawyer' s arguments. Additionally,

the State initially correctly stated the knowledge instruction during closing. argument and argued

throughout closing argument that Allen actually knew his actions were facilitating Clemmons' s

5 Allen also urges us to consider juror affidavits in deciding this issue. But a court may not consider an affidavit that relates to a factor that inheres in the verdict. State v. Gobin, 73 Wn.2d 206, 211, 437 P. 2d 389 ( 1968). A factor inheres in the verdict if it concerns the jurors' mental processes, such as their motives, intents, or beliefs. State v. Hatley, 41 Wn. App. 789, 793, 706 P. 2d 1083 ( 1985) ( quoting State v. Crowell, 92 Wn.2d 143, 146, 594 P. 2d 905 ( 1979)). Here, the

affidavits relate to the jurors' mental processes in reaching the verdict; therefore, we do not consider the affidavits. 10 42257 -3 - II

crime, accompanying this argument with evidence supporting his knowledge. Notably, the

prosecutor focused on facts known to Allen: Allen twice heard Clemmons threaten to harm

police if they came after him; Clemmons displayed a gun when making those threats; Clemmons

had cut off his ankle monitor; Allen drove the truck past the coffee shop where the police cars

were visible; Allen waited at the car wash waving the sprayer at the truck without using any

water; and Allen quickly drove from the car wash when Clemmons, bleeding from a gunshot

wound, returned. The State also made some references to what a reasonable person would have

known. The State did not argue that any inference was mandatory. And during his closing

argument, Allen countered the State' s " should have known" argument by telling the jury " Well,

read those instructions. He needed to know." RP ( May 12, 2011) at 3604. In the context of the

entire closing argument, the nuances of what Allen " should have known" versus what a

reasonable person would have known based on the information known to Allen likely had no

prejudicial impact on the jury. Finally, the trial court redirected the jury to the instructions,

which properly stated the law, in response to its question regarding " should have known."

We also note that Allen could have requested specific curative instructions, such as an

instruction specifically referring to the knowledge instruction with the correct statement of law

or an instruction directly refuting the prosecutor' s misstatement. Not acting on this opportunity

to rectify the error, Allen agreed to the trial court' s proposal of simply referring the jury back to the legally correct instructions already given. A clear curative instruction could have eliminated

any possible confusion and cured any potential prejudice stemming from the prosecutor' s

improper remarks.

11 42257 -3 -II

Considering all of these factors and the context of the total argument, we conclude that

there is not a substantial likelihood that the prosecutor' s misstatement affected the jury verdict.

We will not reverse on this record.

III. SUPPRESSION

Next, Allen argues that the trial court erred by failing to suppress evidence arising from

the officers' warrantless entry into Allen' s hotel room and Allen' s warrantless arrest. Because

exigent circumstances justified the officers' entry and Allen' s arrest, we affirm the trial court' s

denial of Allen' s suppression motion.

Allen does not challenge any of the trial court' s findings of fact from the suppression 6 hearing. Unchallenged findings are verities on appeal. State v. Hill, 123 Wn.2d 641, 644, 870

P. 2d 313 ( 1994). We review conclusions of law from a suppression hearing de novo. State v.

Gaines, 154" Wn.2d 711, 716, 116 P. 3d 993 ( 2005). Allen challenges the trial court' s

conclusions that exigent circumstances justified his detention and that it was reasonable for the

officers to not take chances with their own safety.

At the suppression hearing, police testified that they learned of Allen' s involvement in

the shootings and his current location from informants. Based on this information, police went

to room 25 of the New Horizons Motel in Federal Way, where Allen was allegedly staying, to

question him. They did not have a warrant. At the motel, police asked the manager for the

for 25, Allen' s aliases — and had a receipt room which was registered to " Randy Huey" — one of

copy of a driver' s license with Allen' s picture on it. CP at 807. They knocked on the door of

6 Allen assigns error to four of the trial court' s " Reasons for Admissibility or Inadmissability of the Evidence" " to the extent [ they are] finding[ s] of fact." CP at 811, Appellant' s Br. at 2 -3. But all of the reasons are conclusions of law relating to exigent circumstances and the reasonableness of the police' s conduct rather than findings of fact. 12 42257 -3 - II

room 25 and announced their presence, and Latanya Clemmons opened the door. Officers saw

Allen inside the room, sitting on the bed next to some pillows. When he saw the officers, Allen

said " I knew you were coming and coming hard." CP at 808. The officers could not see Allen' s

hands and he appeared to be moving toward the pillows, so a SWAT team entered the room and

handcuffed him. Officers then placed him in a patrol car and drove him to the precinct for

questioning.

In the absence of exigent circumstances, the Fourth Amendment prohibits police from

making a warrantless and nonconsensual entry into a suspect' s home in order to arrest the

suspect. State v. Eserjose, 171 Wn.2d 907, 912, 259 P. 3d 172 ( 2011) ( citing Payton v. New

York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 ( 1980)). A guest in a hotel room is

similarly entitled to constitutional protection against warrantless searches. Stoner v. California,

376 U. S. 483, 490, 84 S. Ct. 889, 11 L. Ed. 2d 856 ( 1964). Washington courts have held that

danger to [ the] arresting officer or to the public "' can constitute an exigent circumstance. State

v. Smith, 165 Wn.2d 511, 517, 199 P. 3d 386 ( 2009) ( quoting State v. Counts, 99 Wn.2d 54, 60,

659 P. 2d 1087 ( 1983)).

The State bears the burden of proving that the exigent circumstances exception applies.

i Smith, 165 Wn.2d at 517. We determine whether the evidence supports a finding of exigent

circumstances by looking at the totality of the situation. Smith, 165 Wn.2d at 518. We consider

six factors in analyzing the situation:

1) the gravity or violent nature of the offense with which the suspect is to be charged; ( 2) whether is reasonably believed to be armed; ( 3) whether the suspect

there is reasonably trustworthy information that the suspect is guilty; ( 4) there is

strong reason to believe that the suspect is on the premises; ( 5) a likelihood that the suspect will escape if not swiftly apprehended; and ( 6) the entry is made peaceably.

13 r 42257 -3 -II

State v. Cardenas, 146 Wn.2d 400, 406, 47 P. 3d 127 ( 2002). Because we analyze the totality of

the situation, the State does not have to prove all six factors to show that exigent circumstances

existed. Smith, 165 Wn.2d at 518.

Here, the evidence supports the finding that exigent circumstances permitted the

warrantless entry and Allen' s arrest. The offense the shooting of four police officers —was

extremely grave and violent, and the arresting officers had information from multiple sources

indicating that Allen was involved. Although some of the officers knew that Clemmons had

been killed before they entered Allen' s motel room, Clemmons' s death did not decrease the

gravity of his crimes or the officers' perception of Allen' s involvement in them. And, because

Allen' s hands were not visible and he appeared to be reaching for something under the pillows,

the officers could have reasonably believed he was reaching for a gun. Further, there was a

strong reason to believe that Allen was on the premises — an informant told police he was in

room 25 at the motel, police found his alias on a receipt for room 25, and the driver' s license

picture from the receipt matched the police' s picture of him. Finally, there is evidence that the

officers' entry was relatively peaceable. The officers knocked and announced their presence,

then waited for someone to answer the door before entering the room. See Cardenas, 146 Wn.2d

at 408 ( holding that police entered a motel room peaceably when they were in uniform,

announced their presence, and entered through an unlocked window).

Police did not know whether Allen was armed, and there was no evidence that Allen was

attempting to escape the motel room. But even if these two factors were not met, given the

totality of the circumstances, including Allen' s involvement in the shooting of four uniformed

officers and simultaneous statement that he knew the officers were coming and " coming hard,"

14 42257 -3 - II

exigent circumstances justified the police officers' warrantless entry and Allen' s arrest.

Therefore, the trial court correctly denied Allen' s suppression motion.

IV. LESSER INCLUDED OFFENSE

Allen contends that the trial court erred by refusing to instruct the jury on rendering

criminal assistance as a lesser included offense of first degree murder as an accomplice. Because

the elements of rendering criminal assistance are not necessary elements of the charged offense,

this argument fails.

We apply a two -prong test to determine whether a defendant is entitled to a lesser

included offense instruction: first, each element of the lesser offense must be a necessary element

of the charged offense; second, the evidence must support an inference that the lesser crime was

committed. State v. Sublett, 176 Wn.2d 58, 83, 292 P. 3d 715 ( 2012). We view the evidence in

the light most favorable to the party requesting the instruction. Sublett, 176 Wn.2d at 83.

Under RCW 9A.76. 050,

a person " renders criminal assistance" if, with intent to prevent, hinder, or delay the apprehension or prosecution of another person_who he or she knows has committed a crime or juvenile offense or is being sought by law enforcement officials for the commission of a crime or juvenile offense or has escaped from a detention facility, he or she: 1) Harbors or conceals such person; or 2) Warns such person of impending discovery or apprehension; or 3) Provides such person with money, transportation, disguise, or other means of avoiding discovery or apprehension; or 4) Prevents or obstructs, by use of force, deception, or threat, anyone from performing an act that might aid in the discovery or apprehension of such person; or

5) Conceals, alters, or destroys any physical evidence that might aid in the discovery or apprehension of such person; or 6) Provides such person with a weapon.

15 42257 -3 - II

A person is guilty of a crime as an accomplice if, with knowledge that it will promote or

facilitate the commission of the crime, he solicits, commands, encourages, or requests another to

commit the crime or aids in planning or committing the crime. RCW 9A.08. 020( 1), ( 2), ( 3)( a).

The elements of rendering criminal assistance are not necessary elements of first degree

murder as an accomplice because both the mental states and the required acts differ for each

offense. Rendering criminal assistance requires a greater degree of culpability— intent— than

accomplice liability, which requires only knowledge. Compare RCW 9A.76. 050 with RCW

9A.08. 020. Further, rendering criminal assistance requires proof of the defendant' s acts after a

crime has been committed, but a person is guilty as an accomplice if he assists in the planning or

commission of the crime, acts which do not necessarily require assistance after the fact.

Compare RCW 9A.76. 050 with RCW 9A.08. 020. The trial court correctly denied Allen' s lesser

included offense instruction.

V. AGGRAVATING FACTOR

Next, Allen challenges the trial court' s application of an aggravating factor to enhance his

sentence, asserting that the accomplice liability statute cannot be the basis for imposing a

sentence enhancement. Because the enhancement statute at issue here refers to the victims'

statuses rather than the defendant' s acts, we hold that the enhancement was properly applied to

Allen.

The jury found the following aggravating factor under RCW 9. 94A. 535( 3)( v): the crime

was committed against law enforcement officers who were performing their official duties at the

time of the crime and the defendant knew the victims were law enforcement officers. The trial

court used this finding to impose an exceptional sentence.

16 42257 -3 -II

Washington courts have recognized that the accomplice liability statute itself cannot be

the basis for imposing a sentence enhancement because it imposes liability only for the crime of

another, and sentence enhancements do not define crimes. State v. Pineda - Pineda, 154 Wn.

App. 653, 661, 226 P. 3d 164 ( 2010). Therefore, " the authority to impose a sentencing

enhancement on the basis of accomplice liability must come from the specific enhancement

statute." Pineda -Pineda, 154 Wn. App. at 661.

For example, in Pineda - Pineda, Division One vacated the defendant' s school zone

enhancement, holding that the enhancement did not apply to an absent accomplice. 154 Wn.

App. at 664. There, the defendant was convicted as an accomplice to delivery of a controlled

substance after he facilitated a drug deal between his accomplices and the buyer. Pineda - Pineda,

154 Wn. App. at 658, 659. The defendant was not present at the actual delivery, which took

place within 25 feet of a school bus stop. Pineda- Pineda, 154 Wn. App. at 659. The jury found

that the defendant delivered a controlled substance within 1, 000 feet of a school bus stop, and the

trial court imposed an exceptional sentence under RCW 69. 50. 435, which states

1) Any person who violates RCW 69. 50. 401 by ... delivering, or possessing with the intent to ... sell or deliver a controlled substance.

c) Within one thousand feet of a school bus route stop designated by the school district; ... may be by a fine . . . punished or by imprisonment of up to twice the imprisonment otherwise authorized by this chapter.

Pineda -Pineda, 154 Wn. App. at 659. Division One held that this statute does not explicitly

authorize imposition of the sentence enhancement on an accomplice; accordingly, the

defendant' s own acts must form the basis for the enhancement. Pineda - Pineda, 154 Wn. App. at

664. Because the defendant was not physically present at the delivery, the school bus stop

enhancement was improper. Pineda - Pineda, 154 Wn. App. at 664. 17 42257 -3 - II

This case Pineda. is distinguishable from Pineda - In Pineda - Pineda, the sentence

enhancement was based on the defendant' s conduct. Therefore, the State had to show that the

defendant actually engaged in the conduct, namely, delivering drugs within a school zone. By

contrast, the sentence enhancement here is based on the victims' statuses as police officers and

not on the defendant' s conduct. See RCW 9. 94A.535( 3)( v). Accordingly, the enhancement

statute allows for imposition of accomplice liability even if Allen was not physically present at

the shooting. The victims' statuses as officers were not contested, and the enhancement was

properly applied to Allen.

VI. SPECTATOR T- SHIRTS

Finally, Allen argues that the spectators' t -shirts deprived him of his right to a fair trial.

Because the t -shirts did not convey a message of guilt or innocence, they did not prejudice

Allen' s fair trial right and the trial court' s decision to allow them was not manifestly

unreasonable.

We review the trial court' s decision to allow the spectators' t - shirts to determine whether

the decision was manifestly unreasonable or based on untenable grounds or reasons. State v.

Lord, 161 Wn.2d 276, 283 -84, 165 P. 3d 1251 ( 2007). We must consider whether the courtroom

scene presented to the jury was "` so inherently prejudicial as to pose an unacceptable threat to

defendant' s right to a fair trial. "' Lord, 161 Wn.2d at 285 ( quoting Holbrook v. Flynn. 475 U. S.

560, 572, 106 S. Ct. 1340, 89 L. Ed. 2d 525 ( 1986)) ( emphasis omitted).

Our Supreme Court has held that silent displays of affiliation by trial spectators that do

not explicitly advocate guilt or innocence are permissible. Lord, 161 Wn.2d at 289; In re Pers.

Restraint of Woods, 154 Wn.2d 400, 416, 418, 114 P. 3d .607 ( 2005). In Lord, trial spectators

wore buttons with a picture of the victim. 161 Wn.2d at 282. The court held that the buttons did

M. 42257 -3 -II

not prejudice the defendant' s fair trial right because they did not convey any message regarding

guilt or innocence. Lord, 161 Wn.2d at 289. Additionally, the defendant failed to make a

motion for mistrial or a curative jury instruction, which, the court noted, has been held to

constitute waiver. Lord, 161 Wn.2d at 291.

The t - shirts at issue here are similarly permissible. The t - shirts said " You will not be

forgotten, Lakewood Police" and listed the names of the victims. RP ( Apr. 28, 2011) at 3024.

Although they did have writing on them, they did not convey a message of guilt or innocence;

they were merely worn in remembrance of the victims. Moreover, like the defendant in Lord,

Allen did not move for a mistrial or request a curative instruction and thereby waived his

objections. The trial court' s decision to allow the t - shirts was not manifestly unreasonable and

we affirm.

VII. SAG

In his SAG, Allen first argues that the evidence is insufficient to establish the mental state

and acts required for first degree murder as either an accomplice or principal. The State argued

only that Allen was an accomplice to the murders; accordingly, it had to prove only that Allen

had knowledge that he was promoting or facilitating the crime and that he aided Clemmons in

planning or committing the crime. RCW 9A.08. 020( 3). We discussed the. sufficiency of the

evidence regarding knowledge above and we do not consider it again here. Additionally, there is sufficient evidence that Allen aided Clemmons in committing the crime — he drove Clemmons to

and from the murder scene. See State v. Rainwater, 75 Wn. App. 256, 257 n. l, 876 P. 2d 979

1994) ( holding that getaway driver was an accomplice to theft). There is sufficient evidence

that Allen acted as an accomplice. His first argument fails.

19 42257 -3 - II

Next, Allen argues that his sentence enhancement is invalid because RCW

9. 94A.535( 3)( v) is an element of the crime he was convicted of. This argument is incorrect.

Allen was convicted of premeditated first degree murder. Premeditated first degree murder

requires the State to prove that Allen or an accomplice acted with premeditated intent to cause

the death of the victim and that the victim died as a result. RCW 9A.32. 030( 1)( a). The victims'

statuses as police officers the aggravating factor under RCW 9. 94A. 535( 3)( v) —is not an

element of first degree murder. Therefore, Allen' s second argument also fails.

VIII. STATE' S CROSS APPEAL

In its cross appeal, the State argues that the trial court erred by dismissing the felony

murder counts for insufficient evidence. In the event that we remand for a new trial, the State

asks us to reverse the trial court' s dismissal of the felony murder counts. Because we affirm, it is

not necessary to reach this issue.

Affirmed.

I concur:

20 42257 -3 - II

MAXA, J. ( dissenting in part, concurring in part) — I concur with the majority on all of

the issues presented except prosecutorial misconduct. I cannot agree that the prosecutor' s

repeated misstatements of the law regarding the level of knowledge the State must prove to

convict Allen as an accomplice – which the State admitted constituted misconduct – did not

prejudice Allen. I dissent on that issue. I conclude that the misstatements were repeated so often

and were so significant in the context of the trial evidence that there was a substantial likelihood

that the jury' s verdict was affected. Therefore, I would reverse and remand for a new trial.

A. PROSECUTORIAL MISCONDUCT

A defendant has a fundamental right to a fair trial under the Sixth and Fourteenth

Amendments to the United States Constitution and article I, section 22 of the Washington State

Constitution. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 703, . 286 P. 3d 673 ( 2012).

Prosecutorial " misconduct" – whether deliberate or inadvertent – can deprive a defendant of this

constitutional right. Glasmann, 175 Wn.2d at 703 -04.

To prevail on a prosecutorial misconduct claim, a defendant bears the burden of proving

that the prosecutor' s conduct was both improper and prejudicial. Glasmann, 175 Wn.2d at 704.

In analyzing prejudice the conduct is not viewed in isolation, but " in the context of the total

argument, the issues in the case, the evidence, and the instructions given to the jury." State v.

Warren, 165 Wn.2d 17, 28, 195 P. 3d .940 ( 2008). If the defendant objected at trial to the

conduct, the prejudice standard is whether the conduct " resulted in prejudice that had a

substantial likelihood of affecting the jury' s verdict." State v. Emery, 174 Wn.2d 741, 760, 278

P. 3d 653 ( 2012). If the defendant did not object at trial, the defendant is deemed to have waived

7 I agree with the majority that the constitutional harmless error standard is inapplicable here. Emery, 174 Wn.2d at 756 -57. Majority at 10. 21 42257 -3 - II

any error unless " the prosecutor' s misconduct was so flagrant and ill intentioned that an

instruction could not have cured the resulting prejudice." Emery, 174 Wn.2d at 760 -61.

Significantly, when deciding whether prosecutorial misconduct requires reversal it is immaterial whether there is sufficient evidence to justify upholding the jury' s verdict. Glasmann, 175

Wn.2d at 711.

Misconduct that is relatively minor or insignificant is not grounds for reversal. Our

Supreme Court has noted that " `[ a] defendant is entitled to a fair trial but not a perfect one.' "

State v. Davis, 175 Wn.2d 287, 345, 290 P. 3d 43 ( 2012) ( internal quotation marks omitted)

quoting Brown v. United States, 411 U.S. 223, 231 -32, 93 S. Ct. 1515, 36 L. Ed. 2d 208 ( 1973)),

cent. denied, No. 12 -9685, 2013 WL 1490614 ( U. S. Wash. Oct. 7, 2013); see also State v.

Garcia, _ Wn. App. _, 313 P. 3d 422, 430 ( 2013), petition for review filed, No. 89691 -7

Wash. Dec. 20, 2013).

B. IMPROPER ARGUMENT

The prosecutor' s misconduct in this case was misstating what level of knowledge the

State was required to prove to convict Allen as an accomplice. Under the Washington

accomplice liability statute, a person is an accomplice to a crime only if he or she has actual,

subjective knowledge that his or her conduct will promote or facilitate the commission of the

charged crime. RCW 9A. 08. 020 ( 3)( a); RCW 9A.08. 010( 1)( b); see State v. Roberts, 142 Wn.2d

471, 511, 14 P. 3d 713 ( 2000); In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 838 & n.6,

39 P. 3d 308 ( 2001). If the defendant has information that would lead a reasonable person to

have such knowledge, the jury is allowed but is not required to infer that the defendant had

actual, subjective knowledge. State v. Shipp, 93 Wn.2d 510, 516, 610 P. 2d 1322 ( 1980);

Sarausad, 109 Wn. App. at 838 n. 6. The trial court instructed the jury on this concept. But

22 42257 -3 -II

comparing the defendant to an ordinary person creates only an inference, and the jury still must

find that the defendant acted with actual, subjective knowledge. Shipp, 93 Wn.2d at 517 ( stating

that even if the jury finds that an ordinary person would have had knowledge under the

circumstances, the jury must still be allowed to conclude that the defendant was less attentive or

intelligent than the ordinary person).

At the beginning of his closing argument, the prosecutor properly stated the law

regarding actual knowledge — that if a reasonable person would have known, the jury was

permitted but not required to find that Allen acted with knowledge. However, throughout the

remainder of closing argument he argued both directly and indirectly that a jury could convict

Allen if it found either that he knew or that he should have known that Clemmons would murder

the officers. Instead of arguing that the jury could infer Allen' s knowledge from what a

reasonable person would know, the prosecutor argued that if a reasonable person would have

known and Allen should have known, then Allen was an accomplice.

If a person had information and a reasonable person would have known, then he knew. Because it' s really hard to get direct evidence of somebody' s knowledge, right?

Report of Proceedings ( RP) at 3545.

W]hat a jury should do is look at all the facts and all the circumstances surrounding it and say, well, what would a reasonable person know. And if a reasonable person would have known that Maurice Clemmons was going to go in there and kill those cops, then his getaway driver knew that, too.

RP at 3545 ( emphasis added).

And under the law, even if he doesn' t actually know, if a reasonable person would have known, he should have known, he' s guilty. So you' re an accomplice if you help another person commit a_crime and you know or should have known that your actions are going to help. And Mr. Allen is an accomplice because he helped Maurice Clemmons commit these murders, and

23 42257 -3 - II

he knew or should have known that his actions were going to help these murders happen.

RP at 3546 ( emphasis added). So the question becomes — and really, the question in the case is did he know or should he have known. Did he know or would a reasonable person have known? Well, did he know? Should he have known?

RP at 3548 -49 ( emphasis added).

Information that would lead a reasonable person in the same situation to believe. He knew. And he should have known.

RP at 3566 ( emphasis added).

The PowerPoint slides that accompanied the prosecutor' s argument were just as

significant. The jury repeatedly was shown slides stating that Allen was an accomplice if he

knew or should have known. The most egregious were two sequential slides entitled " Should

Have Known" which listed several words potentially descriptive of Allen' s mental state, the last

two of which were " Know" and " Should Have Known." Ex. 352, at 5 - 6. All the words were

crossed out — including " Know" — except for " Should Have Known." Ex. 352, at 5. The

message was clear. The jury did not have to find that Allen actually knew Clemmons would

murder the officers, only that he should have known.

The same argument was repeated in the rebuttal argument by a different prosecutor, along

with additional PowerPoint slides.

This is the knowledge instruction. What did he know, what should he have known.... Should have known there were police inside the Forza.... Should have known those police ... were going to be killed by Clemmons... . He should have known that Clemmons was going to carry out this plan.

RP at 3614 -15. Four slides were titled " Defendant Should Have Known," none of which

indicated that the jury had to find actual knowledge. Ex. 354, at 3 -4. 24 42257 -3 - II

Allen argues that the prosecutor intentionally attempted to mislead the jury. I do not

necessarily agree. A closing argument is not the same as a written brief, where the author can

carefully craft legal statements and ensure they are correct. During closing a prosecutor is on his

or her feet arguing in the " heat of the moment," and as a result some misstatements may occur.

Although the slide presentation — prepared in advance of closing argument — included multiple

references to a " should have known" standard, those slides would not have been improper if the

prosecutor had carefully explained the correct legal standard when discussing them. The

prosecutor here simply may have gone astray while making an honest attempt to state the law

regarding accomplice liability. However, for purposes of a prosecutorial misconduct claim

whether statement is intentional or inadvertent is immaterial to determining whether the

statement was improper. Cf. State v. Ish, 170 Wn.2d 189, 195 n. 6, 241 P. 3d 389 ( 2010) ( refusing

to draw fine lines between error and misconduct). My dissent here is not based on a finding that

the prosecutor engaged in deliberate misconduct.

The State correctly acknowledged on appeal that the prosecutors' arguments were

improper. Therefore the only issue is whether those arguments prejudiced Allen.

C. PREJUDICE

Allen objected twice to the " should have known" arguments on the basis that they were

incorrect statements of the law, once during closing and once during rebuttal. RP at 3545 -46; RP

at 3614. The trial court overruled both objections, stating, " It' s argument." RP at 3546; RP at

3614. As a result, the prejudice standard is whether the improper arguments had a substantial

likelihood of affecting the jury' s verdict. Emery, 174 Wn.2d at 760.

25 42257 -3 - II

1. Factors Showing Prejudice

Several factors, considered together, compel the conclusion that the improper arguments

prejudiced Allen' s constitutional right to a fair trial. First, and most important, the misconduct

was not an isolated incident. The arguments were made repeatedly and persistently, in both

closing argument and rebuttal argument. The prosecutor told the jury several times that it could

convict Allen if he should have known that Clemmons would murder the officers. The court in

Glasmann acknowledged that misconduct can be so pervasive that prejudice cannot be avoided,

even with a curative instruction. " `[ T] he cumulative effect of repetitive prejudicial prosecutorial

misconduct may be so flagrant that no instruction or series of instructions can erase their

combined prejudicial effect.' " Glasmann, 175 Wn.2d at 707 ( alteration in original) ( quoting

State v. Walker, 164 Wn. App. 724, 737, 265 P. 3d 191 ( 2011), adhered to on remand, noted at

173 Wn. App. 1027, review denied, 177 Wn.2d 1026 ( 2013)).

Second, the improper arguments were accompanied by slides that repeated the arguments

in visual form. The court in Glasmann emphasized that visual images can be especially

prejudicial when used during closing argument:

Highly prejudicial images may sway a jury in ways that words cannot. Such

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 709 -10 ( internal citations omitted).

Third, the improper arguments involved an incorrect statement of the law of accomplice

liability. " The prosecuting attorney misstating the law of the case to the jury is a serious

irregularity having the grave potential to mislead the jury." State v. Davenport, 100 Wn.2d 757,

763, 675 P. 2d 1213 ( 1984); see also Walker, 164 Wn. App. at 736. In Warren the prosecutor

N61 42257 -3 - II

repeatedly misstated the burden of proof and made misleading statements about the presumption

of innocence. 165 Wn.2d at 23, 25. Fortunately, in that case after the third misstatement the trial

court interrupted and gave a lengthy curative instruction. Warren, 165 Wn.2d at 24. On appeal,

our Supreme Court stated that it would have found prejudice but for the curative instruction.

Had the trial [ court] not intervened to give an appropriate and effective curative instruction, we

would not hesitate to conclude that such a remarkable misstatement of the law by a prosecutor

constitutes reversible error." Warren, 165 Wn.2d at 28.

Fourth, the State' s" should have known" argument was the focus of the entire

case. The State produced no direct evidence that Allen actually knew that Clemmons

was going to murder the officers. The State did argue that circumstantial evidence

showed that Allen had actual knowledge, but its primary argument was that Allen was

have known the Because the " guilty because he should murders would occur. should

have known" issue was so critical, it is more likely that a misstatement regarding the law

would affect the verdict.

Finally, the jury' s question about accomplice liability demonstrated that at least the improper The If one member of the jury considered arguments. question read, "

someone ` should have known' does that make them an accomplice ?" Clerk' s Papers

CP) at 2014. This question shows that the prosecutor' s misstatements made an impact

because the " should have known" language was not used in the instructions and,

therefore, must have come from closing argument.

2. Majority Arguments Against Prejudice

The majority makes four arguments in support of its conclusion that the improper

arguments did not prejudice Allen. Majority at 10 -12. First, the majority states that the 27 42257 -3 -II

trial court properly instructed the jury that the law is contained in the instructions and not

in arguments of counsel. Majority at 10. However, as the court noted in Glasmann, the

jury may be more susceptible to prejudicial conduct during closing argument. 175 Wn.2d

at 709 -10. Further, we have emphasized that "[ i] f a self - serving comment at the start of a

closing argument could save the prosecutor from repeated, intentional, improper

comments, there would be no disincentive to committing prosecutorial misconduct."

Walker, 164 Wn. App at 739 n.8.

Second, the majority points out that the State initially stated the law correctly and

did argue that Allen had actual knowledge as well as that he should have known.

Majority at 10 -11. However, correctly stating the law once hardly can compensate for

misstating the law multiple other times. And making a legitimate argument that Allen

had actual knowledge is immaterial because the State improperly argued in the alternative

that the jury could convict based on actual knowledge or based on a finding that Allen

should have known.

Third, the majority notes that Allen countered the State' s argument in his closing

by telling the jury to " read th[ e] instructions" and that Allen " needed to know." RP at

3604. Majority at 11. However, it is difficult to conclude that Allen' s attempt to counter

the prosecutor' s improper arguments would have neutralized any impact on the jury

given the pervasive nature of the misstatements.

Fourth, the majority states that the trial court " redirected the jury to the

instructions, which properly stated the law, in response to its question regarding ` should

have known.' " Majority at 11. However, the trial court did not specifically direct the

jury to the correct instruction. The trial court merely wrote, " Please refer to the court' s

28 42257 -3 -II

instructions." CP at 2012. Further, the knowledge instruction does not reference the

phrase " should have known" that the State repeated so often. As a result, it is naive to

assume that the jury figured out the correct law on its own in the face of the State' s

relentless misstatements.

3. Curative Instruction

The majority also notes that Allen could have requested specific curative

instruction and that a clear instruction could have eliminated any possible confusion and

cured any potential prejudice. Majority at 11. However, when the defendant objects to .

improper conduct, whether an instruction could have cured the prejudice is not the

standard. The test for prejudice is whether the conduct resulted in prejudice that had a

substantial likelihood of affecting the jury' s verdict. Emery, 174 Wn.2d at 760. The

availability of a curative instruction is only relevant when the defendant fails to object.

Emery, 174 Wn.2d at 760 -61. Further, there is no indication that the trial court would

have given a curative instruction here even if requested. The trial court summarily

rejected Allen' s objections to the " should have known" arguments, and the trial court

apparently believed that the prosecutor' s arguments were proper.

In any event, I conclude that an appropriate instruction may not have cured the

prejudice here. The improper statement of the law was repeated so often that it became a

theme of the State' s case. Additionally, the State' s misstatement of the law was on a

crucial issue given the evidence presented at trial. And the prosecutor' s arguments likely

succeeded in affecting the jury, causing it to consider finding that Allen was an

accomplice because he should have known Clemmons would murder the officers. As our

Supreme Court noted in Glasmann, repetitive prejudicial prosecutorial misconduct may

29 42257 -3 -II

be so flagrant that no instruction can eliminate the potential prejudice. 175 Wn.2d at 707.

Under the circumstances of this case, even a detailed instruction may not have eliminated

the possibility that the improper arguments would affect the verdict.

D. CONCLUSION

The murders of officers Griswold, Renninger, Owens and Richards profoundly

impacted the people in Pierce County and across the state. I fully understand and support

the public' s interest in prosecuting, convicting and punishing everyone who knowingly

assisted Clemmons. However, despite the horrifying nature of this crime, the quest for a

conviction cannot and should not trump a defendant' s constitutional right to a fair trial.

Further, the courts have a constitutional obligation to intervene when a

prosecutor' s improper conduct creates a significant risk of prejudice to the defendant.

Only if we are willing to reverse cases involving significant prosecutorial misconduct

will we " give substance to our message that `prejudicial prosecutorial tactics will not be

permitted,' and our warning that prosecutors must avoid improper, prejudicial means of

obtaining convictions will not be empty words. Glasmann, 175 Wn.2d at 712 -13

quoting State v. Charlton, 90 Wn.2d 657, 665; 585 P. 2d 142 ( 1978)).

I would reverse and remand this case for a new trial. The jury must be allowed to

evaluate the evidence of Allen' s actual knowledge, including consideration of an

inference of actual knowledge based on what an ordinary person would know, without

30 42257 -3 -II

being mislead by improper " should have known" arguments. It may be that a jury once

again would convict Allen as an accomplice after considering all the evidence and proper

arguments. But that conviction would be the result of a fair trial.

MAXA, J.