265 P.3d 191
Wash. Ct. App.2011Background
- Walker was convicted of first degree murder, two counts of first degree assault, and second degree unlawful possession of a firearm.
- Samuels? (No, ignore) The incident occurred July 28, 2006 outside the Brickyard Bar and Grill where a fight involving multiple participants occurred.
- Walker retrieved a gun and fired several shots, including at Rooney Key during the confrontation.
- Tavarrus Moss died from a gunshot wound; Henri Moss and Key were wounded.
- Police found a Glock 27 .40 caliber pistol with a laser sight near where Walker hid; Walker gave a post‑arrest statement denying ownership of a gun.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prosecutorial misconduct: fill-in-the-blank argument | Walker argues the fill-in-the-blank argument improperly shifted burden. | State contends the argument was harmless or not reversible error. | Misconduct; cumulative prejudice. Reversed on this basis. |
| Prosecutorial misconduct: everyday decisions analogy | Walker contends comparison to everyday decisions minimized the burden of proof. | State contends it did not misstate the standard. | Misconduct; cumulative prejudice. Reversed on this basis. |
| Prosecutorial misconduct: declare-the-truth | Walker argues jury was told to declare the truth and verdict would be truthful. | State defends statements as permissible thematic closing. | Misconduct; cumulative prejudice. Reversed on this basis. |
| Prosecutorial misconduct: comment on defense length | Walker asserts comments on defense length denied fair opportunity to present theory. | State claims it commented on presentation length, not right to defense. | Not reversible issue on its own; rejected as denial of right to defense. |
| Misstatement of defense of others standard | Walker argues the standard was misstated as “would I do it too”. | State contends some misstatements were minor or not prejudicial. | Misstatement of the standard; improper and prejudicial, contributing to reversal. |
Key Cases Cited
- State v. Anderson, 153 Wash.App. 417, 220 P.3d 1273 (2009) (improper closing arguments that minimize reasonable doubt impact)
- State v. Venegas, 155 Wash.App. 507, 228 P.3d 813 (2010) (cumulative error on credibility and prosecutorial misconduct)
- State v. Johnson, 158 Wash.App. 677, 243 P.3d 936 (2010) (fill-in-the-blank argument treated as flagrant and ill-intentioned per se?)
- State v. Emery, 161 Wash.App. 172, 253 P.3d 413 (2011) (clarified that fill-in-the-blank and declare-the-truth are improper but not per se reversible)
- State v. Curtiss, 161 Wash.App. 673, 250 P.3d 496 (2011) (distinguishable from present misconduct; not controlling on Anderson analysis)
- State v. McKenzie, 157 Wash.2d 44, 134 P.3d 221 (2006) (standard of review for prosecutorial misconduct and prejudice)
- State v. Brown, 132 Wash.2d 529, 940 P.2d 546 (1997) (prejudice standard for prosecutorial error)
- State v. Janes, 121 Wash.2d 220, 850 P.2d 495 (1993) (instructional standard for defense of others)