Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 67632-6
Title of Case: Personal Restraint Petition Of: George Anthony Wilson
File Date: 07/02/2012
SOURCE OF APPEAL
Appeal from Pierce County Superior Court
Docket No: 97-1-00433-2
Judgment or order under review
Date filed: 03/30/1998
Judge signing: Honorable Frederick Fleming
Authored by Mary Kay Becker
Concurring: Ronald Cox
COUNSEL OF RECORD
Counsel for Petitioner(s)
Lila Jane Silverstein
Washington Appellate Project
1511 3rd Ave Ste 701
Seattle, WA, 98101-3647
Counsel for Respondent(s)
Stephen D Trinen
Pierce County Prosecutors Ofc
930 Tacoma Ave S Rm 946
Tacoma, WA, 98402-2102
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Personal Restraint ) No. 67632-6-I
Petition of )
) DIVISION ONE
GEORGE ANTHONY WILSON, )
) PUBLISHED OPINION
________________________________) FILED: July 2, 2012
Becker, J. -- In this personal restraint petition, George Anthony Wilson
challenges his first degree murder conviction. The conviction was based on an
accomplice theory of felony murder. Within the one-year time bar, Wilson
collaterally attacked his conviction by filing a motion for relief from judgment in
the trial court in 2001. The trial court ordered the motion transferred to this
court, but the transfer did not occur and the motion remained in limbo for more
than 10 years. We reject the State's argument that Wilson abandoned his
motion by failing to ask what happened to it; Wilson complied with the rules.
Addressing Wilson's collateral attack on the merits, we conclude trial counsel
was ineffective for proposing an accomplice liability instruction with "a crime"
terminology instead of "the crime." We grant relief and order a new trial.
Wilson, then 17 years old, went to a party at the home of Cecil Davis on
January 24, 1997. The party lasted into the early morning hours. Keith Burks
testified that he, Wilson, and Davis were smoking on the porch when Davis
looked across the street at the home of Yoshiko Couch and said something
about needing to rob somebody. Burks testified that he and Wilson thought
Davis was just "talking crazy" because he was drunk. Davis started walking
down the street. Wilson and Burks followed him, but they went back to the
house when Davis's sister yelled at them. They were standing on the porch
again when Davis said, "I need to kill me a motherfucker." Burks went inside,
leaving Davis and Wilson on the porch.
About five minutes later, Wilson appeared at the back door. His eyes
were "big and he had a scared look in his face." Burks unlocked the door and let
him in. Wilson told Burks that Davis was "going crazy," that he and Davis went
over to the Couch house to "rip the lady off, but Cecil just kicked in the door" and
"started beating on her and rubbing all over." Wilson told Burks he was still
outside in front of the house when Davis kicked in the door and Wilson saw the
1The underlying facts of Wilson's conviction are described in detail in this court's
unpublished opinion affirming Wilson's conviction. See State v. Wilson, noted at 101
Wn. App. 1070 (2000), review denied, 142 Wn.2d 1020 (2001). Pertinent facts are
also recounted in State v. Davis, 141 Wn.2d 798, 10 P.3d 977 (2000), and In re
Personal Restraint Petition of Davis, 152 Wn.2d 647, 101 P.3d 1 (2004).
woman coming down the stairs.
Late the next morning, friends discovered Couch's body in her upstairs
bathtub. Found dead with towels over her face, Couch had been beaten,
sexually assaulted, and forced to inhale xylene, a toxic bathroom cleaner. An
autopsy revealed Couch died from asphyxiation and xylene toxicity.
The investigation of Couch's death produced evidence indicating that
Davis was the perpetrator of the homicide and had taken property from the
Couch residence. None of the physical evidence recovered at the scene was
linked to Wilson. Davis and Wilson were arrested and charged with first degree
murder.2 The charge against Davis was later amended to aggravated first
degree murder. Wilson's charge was predicated on an accomplice theory of
Wilson and Davis were tried together in early 1998. The jury convicted
both as charged. Davis was sentenced to death. On March 30, 1998, Wilson
was given a sentence of 304 months.
Wilson appealed, raising issues of confrontation, ineffective assistance,
2 The information read in part:
That CECIL EMILE DAVIS and GEORGE ANTHONY WILSON, in
Pierce County, Washington, on or about the 25th day of January, 1997,
did unlawfully and feloniously, acting as accomplices of each other, as
defined in RCW 9A.08.020, while committing or attempting to commit the
crime of Robbery in the first or second degree and/or Rape in the first or
second degree, and/or burglary in the first degree, did enter the home of
Yoshiko Couch, and in the course of and furtherance of said crime or in
immediate flight therefrom, Yoshiko Couch, a human being, not a
participant in such crime, was choked and/or suffocated, thereby causing
the death of Yoshiko Couch, on or about the 25th day of January, 1997,
contrary to RCW 9A.32.030(1)(c), and against the peace and dignity of
the State of Washington.
speedy trial, and sufficiency of the evidence. This court affirmed Wilson's
conviction on August 4, 2000. Our Supreme Court denied review on January 9,
2001. The mandate terminating direct review was filed on January 18, 2001.
Wilson filed a motion for relief from judgment in superior court in
December 2001 under CrR 7.8. He argued the accomplice liability instruction
used at trial was improper under State v. Cronin, 142 Wn.2d 568, 14 P.3d 752
(2000), and State v. Roberts, 142 Wn.2d 471, 14 P.3d 713 (2000). On February
4, 2002, the superior court filed an order converting the motion to a personal
restraint petition pursuant to former CrR 7.8(c)(2) and ordering the case
transferred to the Court of Appeals. An administrative error occurred, and the
transfer was not accomplished. As a result, this court did not rule on the
Between 2001 and 2009, Wilson filed other postconviction motions. In
2009, he filed a motion to reinstate his original personal restraint petition. This
court dismissed the petition. The Supreme Court granted discretionary review
on February 9, 2010, and remanded to this court to determine whether Wilson
abandoned his original petition and to address the merits of the petition if he did
not abandon it. In re Pers. Restraint of Wilson, 168 Wn.2d 1001, 227 P.3d 1277
(2010). We appointed counsel and have received supplemental briefing.
In general, a collateral attack on a judgment and sentence must be filed
no later than one year after the judgment becomes final. RCW 10.73.090(1).
Wilson's original petition, filed in December 2001 as a motion for relief from
judgment, was timely under this statute. The State concedes the petition was
timely when filed but argues Wilson abandoned the petition by failing to act
when years passed with no action by the courts.
Wilson did not seek additional relief until 2006, when he made an
unrelated motion to reduce or modify his sentence. The State filed a response
on March 28, 2006. In reviewing the history of the case, the State's response
noted the existence of the transfer order of February 4, 2002, and remarked that
the appellate court never ordered the State to respond to that petition. The
State now asserts that its response gave Wilson actual notice that the court was
not acting on his original petition, and he must be deemed to have abandoned
the petition because he allowed it to languish for three more years thereafter.
There is evidence that Wilson did take some action to have his petition
acted upon. In a declaration, Wilson states he followed up in 2003 and 2007
and he was either told the court would handle it or received no response. The
declaration is irrelevant, as Wilson did not have an obligation to inquire. Wilson
timely filed a motion for relief from judgment. The State fails to show that further
action on Wilson's part was necessary to preserve his right to be heard. The
order directing the transfer of the motion to this court, to be heard as a personal
restraint petition, did not impose any obligation on Wilson to make sure the
transfer took place. Wilson complied with the rules. He is not responsible for
the administrative error. We conclude he did not abandon his 2001 petition, and
we now address it on the merits.
ACCOMPLICE LIABILITY AND INEFFECTIVE ASSISTANCE
To obtain relief on collateral review based on a constitutional error, the
petitioner must demonstrate by a preponderance of the evidence that he was
actually and substantially prejudiced by the error. In re Pers. Restraint of
Hubert, 138 Wn. App. 924, 928, 158 P.3d 1282 (2007).
Wilson's original petition alleged instructional error as the basis for
granting him a new trial. The definition of accomplice liability departed from the
statutory definition by using the phrase "a crime" where it should have said "the
crime." Defense counsel and the State both proposed the identical definition,
based on a pattern instruction. More than two years after Wilson's trial, the
Supreme Court declared in Cronin and Roberts that such an instruction is
Wilson's supplemental brief, written by an attorney, addresses the issue
under the heading, "The Accomplice Liability Instruction Impermissibly Lowered
the State's Burden of Proof," but it then reframes the issue as whether defense
counsel was ineffective by proposing the defective instruction. The State
suggests ineffective assistance is a new claim, distinct from the instructional
3 Wilson's original petition asserted that Cronin and Roberts represented a
significant and material change in the law. Contrary to that assertion, Cronin and
Roberts did not constitute a "significant change in the law" under RCW 10.73.100(6).
In re Pers. Restraint of Domingo, 155 Wn.2d 356, 119 P.3d 816 (2005). Therefore,
that exception to the one-year time limit would not apply if Wilson's petition were
issue raised in Wilson's timely original petition, and is therefore time-barred
because it does not fall under any of the exceptions to the one-year time limit.
See RCW 10.73.100; In re Pers. Restraint of Stoudmire, 141 Wn.2d 342, 349, 5
P.3d 1240 (2000).
Wilson responds that the issue of ineffective assistance is "part and
parcel" of the Cronin and Roberts issue, not a freestanding claim. We agree.
Where defense counsel proposes an erroneous instruction, review will often be
precluded because the error is invited. But if the instructional error is the result
of ineffective assistance of counsel, "the invited error doctrine does not preclude
review." State v. Kyllo, 166 Wn.2d 856, 861, 215 P.3d 177 (2009). Seeing the
accomplice liability instruction through the lens of ineffective assistance does not
transform it into a different claim; the claim remains one of instructional error.
A "new" issue is not created merely by supporting a previous
ground for relief with different factual allegations or with different
legal arguments. For example, "[a] defendant may not recast the
same issue as an ineffective assistance claim; simply recasting an
argument in that manner does not create a new ground for relief or
constitute good cause for reconsidering the previous rejected
In re Pers. Restraint of Davis, 152 Wn.2d 647, 671, 101 P.3d 1 (2004) (footnote
omitted). See also In re Pers. Restraint of Martinez, 171 Wn.2d 354, 361 n.2,
256 P.3d 277 (2011) (citing RAP 1.2 and liberally construing CrR 7.8 motion to
raise a sufficiency of the evidence issue despite fact that the petitioner initially
framed the issue as a matter of instructional error).
The State also argues the claim is barred as successive because Wilson
raised an ineffective assistance counsel claim on direct appeal. A collateral
attack may not renew an issue raised and rejected on direct appeal unless the
interests of justice require relitigation of that issue. Davis, 152 Wn.2d at 671.
The claim of ineffective assistance rejected on Wilson's direct appeal concerned
defense counsel's agreement to inform the jury that Wilson would not be subject
to the death penalty. The accomplice liability instruction presents "a distinct
legal basis for granting relief" not adjudicated in the direct appeal. See In re
Pers. Restraint of Taylor, 105 Wn.2d 683, 688, 717 P.2d 755 (1986). Wilson
raises "new points of fact and law" that were not raised in the principal action. In
re Pers. Restraint of Gentry, 137 Wn.2d 378, 388-89, 972 P.2d 1250 (1999).
Having concluded that Wilson's claim of ineffective assistance relating to
the instructional error is neither time-barred nor successive, we address it on the
To convict Wilson of first degree felony murder, the jury had to find that
Wilson or an accomplice was committing or attempting to commit first or second
degree robbery, first or second degree rape, or first degree burglary:
To convict defendant George Wilson of the charged crime of
Felony Murder in the First Degree, each of the following elements
of the crime must be proved beyond a reasonable doubt;
(1) That on or about the 25th day of January, 1997, Yoshiko
Couch was killed;
(2) That defendant George Wilson or an accomplice was
committing or attempting to commit Robbery in the First or Second
Degree, Rape in the First or Second Degree, or Burglary in the
(3) That defendant George Wilson or an accomplice caused
the death of Yoshiko Couch in the course of and in furtherance of
such crime or in immediate flight from such crime;
(4) That Yoshiko Couch was not a participant in the crime;
(5) That the acts occurred in the State of Washington.
. . .
The crimes listed in Element Number (2) are alternatives.
You must unanimously agree that defendant George Wilson or an
accomplice was committing or attempting to commit one of those
crimes, but you need not be unanimous as to any particular one of
Instruction 21 (emphasis added).
The instruction on the meaning of "accomplice" that defense counsel
proposed, and that was given to the jury, contained the same defect as the one
given in Cronin and Roberts:
A person is an accomplice in the commission of a crime if,
with knowledge that it will promote or facilitate the commission of a
crime, he either:
(1) solicits, commands, encourages, or requests another
person to commit the crime; or
(2) aids or agrees to aid another person in planning or
committing a crime.
Instruction 15 (emphasis added).
The references to "a crime" instead of "the crime" were wrong. Roberts,
142 Wn.2d at 513; Cronin, 142 Wn.2d at 579. The culpability of an accomplice
as defined in the statute does not extend beyond the crimes of which the
accomplice has knowledge. Roberts, 142 Wn.2d at 511. The fact that a
purported accomplice knows that the principal intends to commit "a crime" does
not necessarily mean that accomplice liability attaches "for any and all offenses
ultimately committed by the principal." Cronin, 142 Wn.2d at 579. To be an
accomplice, a person must have knowledge that he or she was promoting or
facilitating the crime charged. Cronin, 142 Wn.2d at 579. The erroneous
instruction unconstitutionally relieved the State of the burden of proving Wilson's
knowing participation in "the" crime, meaning the charged crime. Cronin, 142
Wn.2d at 580-82.
To prevail on the claim of ineffective assistance of counsel, Wilson must
show both deficient performance and resulting prejudice. Strickland v.
Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
Deficient performance is performance falling below an objective standard of
reasonableness. Kyllo, 166 Wn.2d at 862. When counsel's conduct can be
characterized as legitimate strategy, performance is not deficient. Kyllo, 166
Wn.2d at 863. Reasonable conduct for an attorney includes carrying out the
duty to research the relevant law. Kyllo, 166 Wn.2d at 861.
Proposing a pattern instruction does not ensure performance was
reasonable. Kyllo, 166 Wn.2d at 865-69 (holding a lawyer's performance was
deficient because there were several cases that should have indicated to
counsel that the pattern instruction was flawed).
The instruction used in this case was inconsistent with the statutory
definition in RCW 9A.08.020.4 The statute had not been amended in almost 30
years, and therefore the argument that the pattern instruction was wrong was
4 A person is an accomplice of another person in the commission of a crime if:
(a) With knowledge that it will promote or facilitate the
commission of the crime, he or she:
(i) Solicits, commands, encourages, or requests such other
person to commit it; or
(ii) Aids or agrees to aid such other person in planning or
committing it; or
(b) His or her conduct is expressly declared by law to establish
his or her complicity.
always available. In re Pers. Restraint of Domingo, 155 Wn.2d 356, 367, 119
P.3d 816 (2005). Wilson's trial attorney should have seen the inconsistency
between the pattern instruction and the statute and should have recognized that
the pattern instruction wrongly allowed an accomplice to be held strictly liable for
any and all crimes the principal committed. See Domingo, 155 Wn.2d at 368.
There is no legitimate strategic reason for allowing an instruction that incorrectly
states the law and lowers the State's burden of proof. Kyllo, 166 Wn.2d at 869.
Therefore, we conclude Wilson's counsel was deficient.
To meet the second element of the test for ineffective assistance, Wilson
must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.
Strickland, 466 U.S. at 694. A reasonable probability is a probability sufficient to
undermine confidence in the outcome. Strickland, 466 U.S. at 694.
The faulty instruction made it easier for the jury to convict Wilson of
felony murder, that is, of causing the death of Couch while committing or
attempting to commit robbery, rape, or first degree burglary. The instruction
allowed the jury to find that Wilson was an accomplice if he aided or agreed to
aid Davis in planning or committing "a" crime. In other words, the instruction
allowed the jury to conclude Wilson was guilty even if he was not a principal or
an accomplice to the charged predicate felonies.
The record indicates this was a real possibility. There was no forensic
evidence linking Wilson to the crime scene or the items taken. The primary
evidence of Wilson's participation came from the testimony of Keith Burks.
According to Burks, Wilson heard Davis announce that he needed to rob
somebody, but they both thought this was just crazy talk by a drunk. At some
point, Wilson made a remark to Burks about needing money. Burks reported
that Wilson went across the street with Davis and came back five minutes later,
looking scared and confused. He told Burks he and Davis were going "to rip the
lady off," but when Wilson saw Davis kick in the door and attack the woman, he
left. The only other witness who testified about Wilson's participation was
Davis's nephew who claimed Wilson made conflicting statements to him, first
saying he went in the house with Davis and later saying he was never inside the
During closing argument, the prosecutor argued Wilson and Davis were
accomplices to robbery and burglary (the prosecutor disavowed the theory
Wilson was an accomplice to rape). The prosecutor, however, misstated the law
by saying Wilson was guilty of the crimes because he had in mind "a crime,"
even if it was not the same crime Davis had in mind. The prosecutor argued that
once Wilson made a deliberate decision to go with Davis in the hope of getting
some money, he was responsible for the burglary and robbery that followed.
The prosecutor used the now-discredited argument of "in for a penny, in for a
pound." Cronin, 142 Wn.2d at 577. This line of argument, supported by the
erroneous instruction, was prejudicial given the meager evidence concerning
Wilson's participation and state of mind. For one thing, it foreclosed Wilson
from arguing that in going to the Couch residence with Davis to "rip the old lady
off," all he knew was that they were going to steal something. See State v.
Evans (In re Pers. Restraint of Swenson), 154 Wn.2d 438, 455-56, 114 P.3d
627, cert. denied, 546 U.S. 983 (2005). The jury was aware of theft as "a crime"
through the definition of theft set forth in the instruction defining robbery,
instruction 17. The jury was also aware of second degree burglary through the
definition in instruction 19. Neither of these two crimes could support first
degree felony murder. RCW 9A.32.030(1)(c). Burks' testimony that Wilson said
he turned back when Davis broke down the door could create reasonable doubt
about Wilson's knowledge. The evidence was sufficient for the jury to find that
Wilson was an accomplice, but sufficiency is not the test here. Because the
jurors were informed that Wilson was responsible for all crimes that followed if
he went to the Couch residence with knowledge he was promoting "a crime,"
they had no reason to assure themselves that he knew he was promoting one of
the specified predicate felonies. As a result, our confidence in the outcome is
On this record, there is a reasonable probability that, but for counsel's
failure to object to the defective instruction, the result of the proceeding would
have been different.
WILSON'S ADDITIONAL CLAIMS
In addition to the issues raised in his petition, Wilson's supplemental brief
raises two more claims. One is a claim of prosecutorial misconduct. The other
is a claim of insufficient evidence to prove he committed all of the charged
alternative means of felony murder, specifically to prove the predicate felony of
The supplemental brief serves as an amended petition when it adds a
claim not raised in the original petition. In re Pers. Restraint of Davis, 151 Wn.
App. 331, 335 n.6, 211 P.3d 1055 (2009), review denied, 168 Wn.2d 1043
(2010). As Wilson correctly concedes, the two additional claims in the amended
petition are raised past the one-year statutory time limit. In re Pers. Restraint of
Benn, 134 Wn.2d 868, 884 & n.3, 952 P.2d 116 (1998). Wilson contends that
he may raise these two issues because they meet exceptions to the time-bar
described in RCW 10.73.100. Under that statutory provision, the one-year time-
bar does not apply to a collateral attack that is based "solely" on one or more of
six grounds. RCW 10.73.100.
One of the six grounds permits review where there has been a significant
and material change in the law. RCW 10.73.100(6). Wilson argues his claim of
prosecutorial misconduct meets this exception.
The prosecutor argued that to find reasonable doubt, a juror must be able
to articulate a reason to doubt the State's evidence. This is known as a "fill in
the blank" argument. "Is the evidence that you've been presented enough to
convince you beyond a reasonable doubt, or can you say I doubt that Cecil
Davis killed Mrs. Couch because . . . and then fill in the blank. I doubt that
Anthony Wilson is an accomplice to this case because . . . and then fill in the
blank. That's the standard of proof that you apply here based on the instructions
that the Court has given you."
A "fill in the blank argument" is improper because it shifts the burden of
proof. The first Washington appellate case so holding was State v. Anderson,
153 Wn. App. 417, 431, 220 P.3d 1273 (2009), review denied, 170 Wn.2d 1002
(2010). Our Supreme Court recently held the same. State v. Emery, No. 86033-
5, 2012 WL 2146783, at *18 (Wash. June 14, 2012).
An appellate decision does not represent a significant change in the law if
the defendant could have argued the issue before publication of the decision. In
re Pers. Restraint of Stoudmire, 145 Wn.2d 258, 264, 36 P.3d 1005 (2001). No
appellate decision precluded Wilson from arguing that the "fill in the blank"
argument was improper. Burden shifting arguments, because they subvert the
presumption of innocence and turn the proof beyond a reasonable doubt
standard on its head, have always been inappropriate. See, e.g., State v.
Fleming, 83 Wn. App. 209, 214-15, 921 P.2d 1076 (1996) (prosecutorial
misconduct where prosecutor's closing argument misrepresented the burden of
proof), review denied, 131 Wn.2d 1018 (1997). Because the recent cases do
not amount to a significant and material change in the law, RCW 10.73.100(6) is
not met and the prosecutorial misconduct claim is time-barred.
Wilson argues that his claim of sufficiency of the evidence satisfies the
exception in RCW 10.73.100(4) that applies where the defendant pled not guilty
"and the evidence introduced at trial was insufficient to support the conviction."
This claim must be dismissed on a procedural ground, the "mixed petition" rule.
In a personal restraint petition filed after the one-year time-bar, where one
or more of the grounds asserted for relief falls within the exceptions in RCW
10.73.100 and one or more does not, the petition is "mixed" and the issues
sought to be raised under an exception listed in RCW 10.73.100 must be
dismissed. See In re Pers. Restraint of Turay, 150 Wn.2d 71, 85-86, 74 P.3d
1194 (2003); In re Pers. Restraint of Hankerson, 149 Wn.2d 695, 697, 702-03,
72 P.3d 703 (2003); Stoudmire, 141 Wn.2d at 349.
Even though a claim for insufficiency of the evidence is listed in RCW
10.73.100 as an exception to the one-year time limit, Wilson's claim cannot be
heard because it was "mixed" or included in an untimely amended petition with a
claim of prosecutorial misconduct that does not fit any exception to the one-year
time limit. Accordingly, it must be dismissed under the mixed petition rule.
In summary, Wilson has met his burden of showing that he was actually
and substantially prejudiced by the erroneous accomplice liability instruction that
defense counsel proposed. On this ground, his petition is granted, and a new
trial is ordered.