State v. Walker

182 Wash.2d 463

341 P.3d 976

STATE of Washington, Respondent

v.Odies Delandus WALKER, Petitioner.

No. 89830–8.

Supreme Court of Washington, En Banc.

Jan. 22, 2015.

Jodi R. Backlund, Manek R. Mistry, Backlund & Mistry, Olympia, WA, for Petitioner.

Stephen D. Trinen, Pierce County Prosecutors Office, Tacoma, WA, for Respondent.

Opinion

YU, J.

¶ 1 Odies Delandus Walker was convicted as an accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy. The primary question in this case is whether those convictions must be reversed in light of the PowerPoint presentation the prosecuting attorney used during closing argument. That presentation repeatedly expressed the prosecutor's personal opinion on guilt—over 100 of its approximately 250 slides were headed with the words “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER, ” and one slide showed Walker's booking photograph altered with the words “GUILTY BEYOND A REASONABLE DOUBT, ” which were superimposed over his face in bold red letters. The prosecutor also appealed to passion and prejudice by juxtaposing photographs of the victim with photographs of Walker and his family, some altered with the addition of inflammatory captions and superimposed text. While the prosecutor is entitled to draw the jury's attention to admitted evidence, those slides, as presented, served no legitimate purpose. Their prejudicial effect could not have been cured by a timely objection, and we cannot conclude with any confidence that Walker's convictions were the result of a fair trial. Consistent with both long-standing precedent and our recent holding in In re Personal Restraint of Glasmann, 175 Wash.2d 696, 286 P.3d 673 (2012), we must reverse Walker's convictions and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2 We summarize the underlying facts to provide a context for our decision in this case. The State's evidence supports the following version of the events.

¶ 3 During the relevant time period, Walker lived with his girlfriend, Tonie Marie Williams–Irby; several of their children; and Walker's cousin, Calvin Finley. Williams–Irby worked at a Walmart in Lakewood as a department manager. Williams–Irby told Walker, Finley, and another friend (Jonathan) that she knew what time an armored truck arrived each day to pick up the store's daily receipts and knew the average daily amount of those receipts from staff meetings. Several weeks later, Walker discussed the armored truck with Finley and Jonathan, saying it would be “easy money.” 7 Verbatim Report of Proceedings (VRP) at 656.

¶ 4 Jonathan was later excluded from the robbery discussions. Other potential participants were considered, and ultimately Walker, Finley, and their friend Marshawn Turpin made a plan to rob the armored truck “custodian.” 4 VRP at 170. During this preliminary planning stage, Walker and Finley discussed the possibility that Finley might need to shoot the armored truck custodian. Walker told Finley to “do what you got to do,” 7 VRP at 665, and that Walker would provide a gun. Williams–Irby was aware of these plans and would regularly answer Walker's questions about the amount of the store's daily receipts.

¶ 5 On the day of the crime, Walker drove Williams–Irby to work and asked her to find out what the day's receipts would be. Williams–Irby went to the daily staff meeting and reported to Walker that the day's receipts totaled $207,000. Walker and Finley then drove to the Walmart in a white Buick. Turpin arrived in a gold Nissan Maxima, then entered the parked Buick. When the armored truck arrived to pick up the money, Finley and Turpin entered the store while Walker remained in the Buick. Finley was armed with a handgun. As the armored truck custodian reached the store entrance to leave, Finley and Turpin approached him and Finley shot him in the head, killing him. Finley and Turpin grabbed the money bag and fled in the Buick. Walker drove them to an alley behind a friend's house to ditch the car. Walker later returned to the Walmart to pick up the gold Nissan.

¶ 6 When Williams–Irby returned home from work, Walker told her that they needed to go to where he had left the Buick so he could wipe away his fingerprints. When they got there, police officers were milling around the car, so they left and drove to another friend's house (Al Trevino). Williams–Irby testified that on the way to Trevino's house, Walker told her that he was in the white Buick in the Walmart parking lot and was on the phone with Finley during the robbery. When Finley asked for the money, the armored truck driver laughed, so Walker told Finley to “kill the mother fucker.” 8 VRP at 729.

¶ 7 Finley and Turpin were already at Trevino's house when Walker and Williams–Irby arrived. After distributing some of the cash, Walker, Finley, and Turpin placed the clothes they were wearing during the robbery and the now-empty money bag into a plastic bag, which Finley discarded in a nearby river.

¶ 8 Walker and Williams–Irby left Trevino's house after about 30 minutes and drove to a motel in Fife where Walker met up with Finley and Trevino. Walker and Williams–Irby then drove to a Walmart in Federal Way, and Walker bought two safes and a video game system. Walker kept one safe for himself and drove back to Fife to give the other safe to Finley. Walker and Williams–Irby then returned home, where Walker put a gun and his share of the robbery proceeds in his safe and put the safe and the video game system in his bedroom closet.

¶ 9 Walker then took Williams–Irby and their children out for dinner at Red Lobster. At dinner, Walker told Williams–Irby's son, “This is how you murder these niggers and get this money.” Id. at 773. Walker paid the bill for the meal, nearly $200, in cash. Police pulled over and arrested Walker and Williams–Irby as they drove home from the restaurant. Williams–Irby told police she didn't know anything. When interviewed by police, Walker denied having any involvement with the robbery.

¶ 10 Williams–Irby was charged and, after entering into a plea agreement with the State, testified against Walker consistent with the above factual summary. The State charged Walker as an accomplice to aggravated first degree premeditated murder, first degree felony murder, first degree assault, first degree robbery, first degree solicitation to commit robbery, and first degree conspiracy to commit robbery. The State also sought deadly weapon enhancements for the murder, assault, and robbery charges.

¶ 11 In opening statements, the prosecutor said:

When the police question the defendant, he is being—he is adamant. He is cursing. He is yelling. He is swearing. He is saying he didn't have any idea why the police stopped him. Why did you arrest me? I didn't do anything. I had nothing to do with it. My wife, Williams–Irby, she didn't have anything to do with this. He is lying like crazy to the police. Williams–Irby pled guilty to second-degree murder, and she will tell you what she had to do with it. He told the cops he didn't have anything to do with it.

... At the close of this case, we are going to ask you to convict the defendant of each one, every one of these righteous charges that have been filed against him.

Suppl. VRP (Mar. 7, 2011) at 48, 52. Walker's counsel did not object to these statements.

¶ 12 During closing remarks, the prosecutor utilized a PowerPoint presentation made up of approximately 250 slides. Over 100 of those slides have the heading “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER. ” Pl.'s Ex. 243, at 6–7, 9–49, 54, 56–59, 61–66, 68–77. Two slides have the heading “DEFENDANT WALKER GUILTY OF ASSAULT IN THE FIRST DEGREE, ” id. at 83, and three have the heading “DEFENDANT WALKER GUILTY OF SOLICITATION TO COMMIT ROBBERY, ” id. at 85–86. The PowerPoint also includes a slide superimposing the words “GUILTY BEYOND A REASONABLE DOUBT ” over Walker's booking photo. Id. at 87. The record contains only grayscale copies of the slides, but the briefing indicates that the lettering was in bright red. See Pet'r's Suppl. Br. at 2.

Pl.'s Ex. 243, at 87.

¶ 13 There is a series of slides suggesting Walker is guilty because he used the stolen money for video games and lobster. The first asserts, “Defendant Walker is GUILTY as an ACCOMPLICE to the murder because he SPLURGED ON FRIVOLOUS THINGS. ” Id. at 63. The next slides explain that those splurges included “[two] safes, a WII [sic] and several games at the Federal Way Walmart,” as well as “$200.00 for dinner at the Red Lobster.” Id. at 63–64. The next slide is a photo of Walker and his family happily eating that dinner. Id. at 64.

Id. at 63–64.

¶ 14 Several other slides include photographs that were admitted exhibits, but altered with captions, headings, and superimposed text. For example, one slide is a photograph of money seized by police with the heading “MONEY IS MORE IMPORTANT THAN HUMAN LIFE”:

Id. at 5. It was not alleged that Walker, or anyone else, actually said those words.

¶ 15 Another particularly problematic example of admitted exhibits altered with inflammatory text comes near the end of the presentation. First, a slide depicts an in-life photograph of the victim with a superimposed heading reading “DEFENDANT'S

GREED AND CALLOUS DISREGARD FOR HUMAN LIFE

” and text detailing the money stolen and its distribution amongst the participants. Id. at 88. That slide is juxtaposed with the one immediately following it, the same photograph of Walker and his family eating dinner at the Red Lobster used earlier, but this time with a caption “ ‘THIS IS HOW YOU MURDER AND ROB NIGGERS NEXT TIME IT WILL BE MORE MONEY. ’ ” Id. at 89. Next comes Walker's booking photograph, altered with the caption, “ ‘WE ARE GOING TO BEAT THIS, ’ ” contrasted with the final image, an in-life photograph of the victim. Id.

Id. at 88–89.

¶ 16 During the State's closing, Walker's attorney unsuccessfully objected to the State's discussion of premeditation and a slide analogizing premeditation to...