State v. Walker

Gordon McCloud, J.

¶40 (concurring) — I agree with the majority that the prosecutor’s closing argument in this case contained so much personal opinion, vouching, and inflammatory imagery that we must reverse. But it is the vouching, prejudice, and the inflammatory imagery that necessitate reversal, not the prosecutor’s use of actually admitted evidence. And some of the material on the PowerPoint slides that the majority quotes and reproduces fall into the latter, permissible category — evidence—rather than the former, impermissible category. I write separately to try to clarify the difference between the two categories: the permissible use of unaltered, admitted, but very damaging evidence on the one hand, and the impermissible use of inflammatory images that were not admitted on the other. I conclude that the many slides carrying the prosecutor’s opinion of “guilty” are not just impermissible but also inflammatory and prejudicial. The majority, however, also criticizes several slides that do not contain the prosecutor’s opinion. I write separately to explain the majority’s perhaps unstated assumption: those slides are inflammatory and prejudicial because they highlight the defendant’s race.

¶41 I also write to disagree with the majority’s endorsement of the wording of the elements, or “to convict,” instruction. That instruction allowed the jury to convict if either the accomplice “or” the defendant held a specific mens rea and either the accomplice “or” the defendant committed specific acts. It is confusing. The problem is not just the one the majority addresses, i.e., that the instruction allows a conviction even if the jury concludes that the prohibited act and the prohibited mens rea are “split” between the defendant and some other participant. The problem is that such an instruction could be read to allow the jury to convict even if it concludes that both the prohibited act and the prohibited mens rea are attributable to another participant, and not to the defendant. I would not endorse that language but would advise trial courts to go back to using an accomplice liability instruction along with a simple “to convict” instruc*487tion referring solely to the defendant. The combination of the two allows the jury to convict the defendant as either principal or accomplice without all the confusion.

¶42 For these reasons, I respectfully concur.

I. The Prosecutor Committed Misconduct by Vouching and by Making Inflammatory Arguments, but Not by Using Admitted Evidence

¶43 The majority correctly explains that it is impermissible for the prosecutor to vouch for the credibility of witnesses, to appeal to jury prejudices, or to convey a personal opinion about the defendant’s guilt. In re Pers. Restraint of Glasmann, 175 Wn.2d 696, 286 P.3d 673 (2012) (plurality opinion); State v. Lindsay, 180 Wn.2d 423, 432, 437, 326 P.3d 125 (2014). The majority tracks the closing argument in this case and explains how the deputy prosecutor committed each of those errors, again and again, during closing.

¶44 But not all of the images pictured on the PowerPoint slides that the majority criticizes contain personal opinions about guilt. Some of them contained actual quotations from or portions of photos from properly admitted evidence, or both. For example, the majority criticizes the PowerPoint slide containing a photo of the defendant’s family at dinner after the murder with an inculpatory caption. But the photo of the family at dinner was admitted (over what sounds like a relevance objection). Ex. 210; 8 Verbatim Report of Proceedings (VRP) at 775. It was certainly relevant: whether Walker had extra money burning a hole in his pocket immediately after a $200,000 robbery is certainly probative of whether he is the one who committed and benefitted from that robbery.10 And the record further shows that witness Williams-Irby testified, when referring to both the murder and the robbery, that it was Walker himself who *488stated, after the robbery-murder, “This is how you murder these [n***] and get this money. The next time, it will be more money.” 8 VRP at 773. I agree that this testimony is highly damaging to Walker. But it was a statement that witness Williams-Irby attributed to Walker. Id. It is thus both admissible, Evidence Rule (ER) 801(d)(2), 804(b)(3), and relevant to whether Walker committed murder and robbery. ER 401. In fact, it’s a confession. I think we should make clear that extremely damaging evidence and confessions, which constitute actual evidence, are fair game during closing.

¶45 Nevertheless, I agree with the majority that the slide containing the “n***” quote was improper. I write separately to explain why.

¶46 The problem is that the State altered the photo (Ex. 210) of the black defendant and his black family, at dinner, by superimposing on it a quote highlighting race as some kind of important factor with the moniker “niggers.” There is no denying that this word is powerful, gripping, and emotional. But it was irrelevant — there was no indication of a racial motive in this case, and indeed, the victim apparently referenced was not even black. In context, placing that quote on that photograph of the defendant’s black family did not just alter both pieces of evidence in violation of Glasmann. It also created imagery highlighting the defendant’s race — his blackness — in a case where that had absolutely no relevance. That alteration of the evidence is inflammatory, whether the prosecutor intended it or not.11

*489¶47 Similarly, the majority correctly criticizes the State for repeatedly using Walker’s booking photo and presenting it once with the caption, “ We are going to beat this.’ ” Majority at 474 (emphasis and capitalization omitted) (quoting Pl.’s Ex. 243, at 89). The majority characterizes this and other slides as impermissibly “altered with inflammatory text.” Majority at 473. To be sure, altering evidence on PowerPoint slides constitutes misconduct. Glasmann, 175 Wn.2d 696. But the quote alone would not be improperly damaging. It was a direct quotation that Ms. Williams-Irby attributed to Walker. 8 VRP at 781. The court admitted it without objection. Id. at 779. A trier of fact might interpret it as reflecting consciousness of guilt, so it is relevant to whether Walker committed the charged crimes. ER 401, 402. Once again, I think we should make clear that it is proper for the State to highlight that type of statement for the jury.

¶48 Nevertheless, I agree with the majority that all the slides of the booking photo were improper. I write separately to explain why.

¶49 The first problem is that in one slide, the quote was superimposed on the defendant’s booking photo. This alters both the quote and the photo. The second problem is that the booking photo was never admitted into evidence in that form. According to the record we have been supplied with, the booking photo was used as a part — one-sixth—of the photo montage (Ex. 74A) that an independent witness viewed before failing to identify, and only later claiming to identify, the defendant’s photo in position two as the driver of a Buick leaving Walmart after the murder. 5 VRP at 239-43. The montage was admitted (Ex. 74A). The booking photo was not. There was probably a good reason for that: booking photos are notoriously prejudicial and inflamma*490tory and are generally admissible only if specifically relevant.12 So the PowerPoint slide showed a doubly altered image — a booking photo excised from a part of exhibit 74A with a superimposed quote. The next problem is that, in context, superimposing that text on a booking photo of the defendant from after the crime, looking disheveled, antisocial, and tough, highlights the defendant’s appearance at booking. That is an irrelevant fact. Use of one of the many photos of the crime itself (e.g., Exs. 30A-D, 31A-D, 32A-D, 33A-D, 34A-D, 35A-D, or 36A-D) would have been far more relevant, but racial differences are not always clearly apparent in them.

¶50 Race is not a relevant fact in this case. It was a robbery-murder with a greed motive and a question about *491whether Walker, who was not present at the murder scene itself, orchestrated the crime and gave the kill order. The answer to that question was based mainly on witness credibility. Where credibility, not race, is the issue, such a powerful focus on race through altered evidence is error.

¶51 In sum, I agree with the majority that a digital media presentation highlighting the prosecutor’s personal opinion about Walker’s guilt over and above the evidence, throughout closing, constitutes error under Glasmann. But many of the items of evidence listed above, if left unaltered, would not fall into that category. They would be evidence, which is what the prosecutor is supposed to use in closing argument. It is the fact that the evidence was altered in a way that emphasized the prosecutor’s opinion and — perhaps unintentionally — the defendant’s race that caused the problem.13

II. The Elements Instruction Is Confusing Because It Allows the Jury To Convict One Alleged Participant in the Crime Based Solely on Another’s Actions and Intent

¶52 I also respectfully disagree with the majority’s endorsement of an elements instruction that is confusing. Whether an elements instruction should permit the jury to convict one defendant upon proof that “an accomplice,” but not the defendant, had the prohibited intent and that “an accomplice,” but not the defendant, committed a prohibited *492act is a question of first impression in our court. Based on our case law, we must conclude that such an instruction might be confusing and, hence, we should not endorse it.

¶53 The challenged elements instruction provides:

To convict the defendant of the crime of premeditated murder in the first degree, [Cjount I, each of the following elements of the crime must be proved beyond a reasonable doubt:
(1) That on or about [the] 2nd day of June, 2009, the defendant or an accomplice acted with intent to cause the death of Kurt Husted;
(2) That the intent to cause the death was premeditated;
(3) That Kurt Husted died as a result of the defendant’s or an accomplice’s acts; and
(4) That any of these acts occurred in the State of Washington.
If you find from the evidence that each of these elements has been proved beyond a reasonable doubt, then it will be your duty to return a verdict of guilty.
On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

Clerk’s Papers (CP) at 216 (emphasis added).

f 54 The majority identifies the issue as whether a single error in the elements instruction, which permitted the jury to “split” the elements of the crime between the defendant and a different participant, is improper. But the real issue is whether the double error shown by the elements instruction above, which actually permitted the jury to convict Walker even if he did nothing and a different participant was the only one harboring the prohibited mens rea and doing the prohibited acts, is improper.14

¶55 The answer to that question is that such an instruction can be read as relieving the State of the burden of *493proving that Walker harbored the intent or committed the acts required for murder. It can even be read to relieve the State of the burden of proving that Walker harbored the lesser mens rea of knowledge or committed the more limited act of “aid[ing]” required for accomplice liability. In fact, instruction 13 tells the jury that it could convict Walker even if a different participant had “intent to cause the death” but that Walker did not, and a different participant “acted” with that intent and committed “acts” causing death but that Walker did not. Id.

¶56 It is certainly true that under Washington law, a jury can convict a defendant as an accomplice even if that defendant does not have the same intent as the principal (or as any other participant) and who did not commit the same acts as the principal (or as any other participant). A jury can convict a defendant as an accomplice if that defendant is the one who “(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 the crime.” 11 Washington Practice: Washington Pattern Jury Instructions: Criminal 10.51 (3d ed. 2008); see also RCW 9A.08.020(3)(a)(i), (ii); State v. Roberts, 142 Wn.2d 471, 510, 14 P.3d 713 (2000); State v. Cronin, 142 Wn.2d 568, 576-77, 14 P.3d 752 (2000). It is not necessary for the accomplice’s mens rea to match the crime’s mens rea; a jury can convict a defendant as an accomplice even if that defendant has only “ ‘knowledge that [his or her acts] will promote or facilitate the commission of a crime,’ ” not intent. State v. Hoffman, 116 Wn.2d 51, 104, 804 P.2d 577 (1991) (quoting State v. Guloy, 104 Wn.2d 412, 431, 705 P.2d 1182 (1985)). This means that a jury could convict Walker if he were “ ‘present at the scene and . . . ready to assist,’ ” State v. Rotunno, 95 Wn.2d 931, 933, 631 P.2d 951 (1981), even if he did not have premeditated intent to kill and did not himself commit the murder. In fact, a jury could convict Walker as an accomplice even if the principal were . . . prosecuted or convicted. RCW 9A.08.020(6); accord State v. Ciernan, 18 Wn. App. 495, 499-500, 568 P.2d 832 (1977).

*494¶57 But a jury cannot convict Walker if he did nothing objectionable at all. The jury must find, at the very least, that he had knowledge of “the crime” to be committed and that he acted with knowledge that his conduct would promote or facilitate that crime. Roberts, 142 Wn.2d at 510-11; Cronin, 142 Wn.2d at 579 (conviction reversed); State v. Evans, 154 Wn.2d 438, 114 P.3d 627 (2005) (reversing felony murder; jury instruction allowed conviction on murder without finding he personally attempted or committed the robbery if it found he was only an accomplice to theft); see also In re Pers. Restraint of Sarausad, 109 Wn. App. 824, 835-36, 39 P.3d 308 (2001) (State must prove accomplice had knowledge of the crime to be committed, but the State does not have to prove that accomplice knew details of that crime, such as its degree or elements); see generally State v. W.R., 181 Wn.2d 757, 336 P.3d 1134 (2014) (the due process clause requires the State to prove all elements of charged crime — as defined by the applicable state statute — beyond a reasonable doubt).

¶58 A jury instruction stating that the jury could convict the defendant of premeditated murder even if someone else had the prohibited intent or knowledge and someone else committed the prohibited act or facilitation does not ensure that that standard is satisfied. That is why instruction 13 can be confusing.

¶59 It is true that instruction 13 requires the jury to find that the other participant who had the prohibited intent and committed the prohibited act was “an accomplice.” CP at 216. Instruction 9 then defines “accomplice” as one who “either . . . encourages . . . another person to commit the crime; or . .. aids . . . another person in . . . committing the crime.” CP at 212 (emphasis added). It doesn’t say who the other person has to be, whether it has to be the defendant identified in the “to convict” instruction or one of the other participants, or what the definition of “another person” or “participant” is. In sum, the court’s instructions require too many unclear cross-references to ensure that the jury concluded that Walker was a principal or an accomplice.

*495¶60 The majority and the Court of Appeals cite several decisions in support of their conclusions to the contrary and imply that those cases show that the wording of this elements instruction is well accepted in Washington law. One of these cases is State v. Kwan Fai Mak, 105 Wn.2d 692, 740, 718 P.2d 407 (1986) (cited by majority at 483), overruled on other grounds by State v. Hill, 123 Wn.2d 641, 870 P.2d 313 (1994). But the “to convict” instruction in Mak was strikingly different than the “to convict” instruction here. In Mak, the “to convict” instruction listed the following elements:

“(1) That on . . . February, 1983, the defendant or an accomplice caused the death of the individual named;
“(2) That the defendant acted with the intent to cause the death;
“(3) That the defendant acted with premeditated intent to cause the death;
“(4) That the death was a result of the acts of the defendant or his accomplice',
“(5) That one or more of the following aggravating factors was present.”

Id. There are two critical differences between Mak and this case. First, in Mak, the defendant did not raise and the court did not consider the issue raised here. The only challenge to accomplice liability raised in Mak was whether “the defendant could be convicted of aggravated murder in the first degree based on an accomplice theory.” Id. at 739. Second, in Mak, the court added the words “or his accomplice” only to the elements involving the cause of death, not to the elements concerning intent. Id. at 744 (discussing the instruction with approval in part because the words “or an accomplice” were added only to the elements concerning cause of death, not the elements concerning intent). Thus, the Mak elements instruction did not suffer the same infirmity as the elements instruction in this case.

*496¶61 Another case that the majority and the Court of Appeals cite to support the notion that a “to convict” instruction like the one used in this case is well accepted in Washington law is State v. Hoffman, 116 Wn.2d 51, 804 P.2d 577 (1991). Majority at 483; State v. Walker, 178 Wn. App. 478, 486-87, 315 P.3d 562 (2013). In Hoffman, this court made several general statements about accomplice liability that remain correct today, even after Roberts and Cronin, such as:

[T]he accomplice liability statute predicates criminal liability on general knowledge of the crime and not on specific knowledge of the elements of the participant’s crime. Accomplice liability represents a legislative decision that one who participates in a crime is guilty as a principal, regardless of the degree of the participation.

116 Wn.2d at 104 (footnote omitted).

¶62 But with respect to the particular issue about the correct phrasing of the elements instruction, Hoffman provides the majority with no help. The elements instruction in Hoffman actually required the jury to find that the defendant personally committed unlawful acts and personally harbored an unlawful intent before the jury could convict him (the court defined “accomplice liability” in a separate instruction); the elements instruction stated:

“To convict a Defendant of the crime of 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 27th day of August, 1986, the Defendant shot Louis A. Millard;
“(2) That the Defendant acted with intent to cause the death of Louis A. Millard;
“(3) That the intent to cause the death was premeditated;
“(4) That Louis A. Millard died as a result of Defendant’s acts; and
“(5) That the acts occurred in Okanogan County, Washington.”

*497Id. at 107-08. The elements instruction in this case was totally different. If the court had used this Hoffman instruction, no error would have occurred.

¶63 Another case cited in support of the elements instruction used here is State v. Haack, 88 Wn. App. 423, 958 P.2d 1001 (1997). See majority at 483; Walker, 178 Wn. App. at 486. In Haack, the Court of Appeals did state that a jury could convict even if one participant in a group crime held one intent, another participant held another intent, and different participants committed different acts with differing levels of culpable intent or knowledge, causing different levels of harm. But the court in Haack did not hold that a jury could convict a defendant without the State proving that the defendant held any objectionable mens rea or committed any objectionable act at all. Instead, the Haack court stated,

So long as the State proved beyond a reasonable doubt... that at least one of the participants intended to inflict great bodily harm and at least one but not necessarily that same participant inflicted great bodily harm during the attack on the victim, the jury with its differing viewpoints as to what actually happened could rationally convict all the participants of first degree assault, including Participant D, who struck no blows and who did not intend to inflict great bodily harm, but who acted as a lookout to alert the remaining participants if the police should arrive.

88 Wn. App. at 429 (emphasis added). Thus, the Haack court actually held that a jury cannot convict a defendant charged with the group’s acts unless the State proves that that specific defendant is a “participant[ ],” that that specific defendant took actions to further the crime (“acted as a lookout”), and that that specific defendant took those actions to facilitate the crime (“to alert the remaining participants if the police should arrive”). Id. The elements instruction here contains none of these prerequisites to conviction.

¶64 Finally, the majority cites to State v. McDonald, 138 Wn.2d 680, 981 P.2d 443 (1999), as support for the either-or *498elements instruction given in this case. Majority at 483. But the only holding of the McDonald case with regard to accomplice liability is that accomplice and principal liability are not alternative means of committing the crime and hence they are not subject to our jurisprudence on jury unanimity regarding means of commission of a crime. 138 Wn.2d at 687-88. Like the decisions cited above, the court in McDonald clearly required the State to prove that the defendant was a culpable “ ‘participa [nt]’ ” in the crime and that the defendant facilitated the crime while having knowledge of the crime: “Here the jurors need not have decided whether it was Bassett or McDonald who actually killed Michael ‘so long as both participated in the crime.’ State v. Hoffman, 116 Wn.2d 51, 105, 804 P.2d 577 (1991).” Id. at 688. And, in fact, as the McDonald court described in detail, the State certainly bore that burden of proof in that case:

Even if the jury concluded that McDonald did not act as a principal when he shot Michael in the head, it could have found that McDonald aided Bassett in the commission of a crime. McDonald, by his own admission, shot Michael Bassett in the head while he was still alive. Surely a more compelling example of participation in a crime could not be found. We have written that “it matters not that some jurors may have believed that the petitioner fired the gun, while others may have believed that his only role was in aiding and abetting [the other participant], so long as all twelve agreed that he did participate.”

Id. at 690 (emphasis added and omitted) (alteration in original) (internal quotation marks omitted) (quoting Hoffman, 116 Wn.2d at 105).

¶65 I therefore respectfully disagree with the majority’s statement that the elements instruction used in this case is well accepted by this court. I also disagree with its conclusion that the elements instruction accurately and clearly describes the law of accomplice liability for the jury. I think that it is far less confusing to instruct the jury on the elements of the crime in one instruction (without using the *499alternative “or an accomplice” in that elements instruction) and to provide a definition of “accomplice liability” in a separate instruction. Each party can then argue its theory without fear that the jury will convict based on association, rather than based on the defendant’s acts and knowledge.

III. Conclusion

¶66 I agree with the majority’s decision to reverse Walker’s conviction due to prosecutorial misconduct. I respectfully disagree with its statements about the proper wording of an elements instruction in a case where the court also gives an accomplice liability instruction. The far better practice is to provide the jury with the elements of the crime in one instruction, without an either-or clause about who must commit those elements, and to provide the jury with the definition of “accomplice liability” in a separate instruction. I therefore concur.

State v. Luvene, 127 Wn.2d 690, 709, 903 P.2d 960 (1995) (defendant’s “possession of unusual amounts of money around the time of the robbery ... is relevant in that it has some tendency to make it more probable that [the defendant] committed the robber/’).

I do not mean to suggest that only prosecutors are susceptible to making unintentional appeals to race — indeed, criminal defense lawyers and judges can be. See, e.g., State v. Saintcalle, 178 Wn.2d 34, 44-48 & n.3, 309 P.3d 326 (2013); L. Song Richardson & P.A. Goff, Implicit Racial Bias in Public Defender Triage, 122 Yale L. J. 2626 (2013) (analyzing unconscious race bias in public defender decision-making). As our court stated in Saintcalle, “ ‘[B]ias pervades the entire legal system in general and hence [minorities] do not trust the court system to resolve their disputes or administer justice evenhandedly.’” 178 Wn.2d at 34, 42 n.l (quoting Task Force on Race and the Criminal Justice System, Preliminary Report on Race and Washington’s Criminal Justice System at 6 (2011) (second alteration in original), http://www.law.washington.edu/About/ RaceTaskForce/preliminary_report_race_criminaljustice_030111.pdf (quoting Wash. St. *489Minority & Justice Comm’n, 1990 Final Report at xxi (1990), http://www.courts.wa.gov/coimnit-tee/pdfi'TaskForce.pdf); see also Saintcalle, 178 Wn.2d at 62 (Madsen, C.J., concurring). The issue raised in this case, though, was prosecutorial misconduct.

State v. Walter, No. WD 76655, __ S.W.3d __, 2014 WL 4976913, at *17-18, 2014 Mo. App. LEXIS 1130, at *49-50 (“Giving the State the widest possible latitude, there is still no rational justification for the prosecutor’s use of the mug shot during closing argument. Showing Walter wearing an inmate uniform with the word ‘GUILTY’ prominently displayed across his face added nothing to the State’s argument. Rather, the only purpose it could have served was to portray Walter in a negative light to the jury. Accordingly, the prosecutor injected incompetent and potentially prejudicial matters into its closing argument by displaying an altered piece of evidence to the jury for the sole purpose of affecting the jury’s opinion of the defendant.” (footnote omitted)); State v. Lazo, 209 N. J. 9, 19, 34 A.3d 1233 (2012) (“[a]rrest photos raise particular concerns, though, because they can inject prejudice by suggesting a defendant has a prior criminal record”; “an arrest photo may be admitted only if it is presented ‘in as neutral a form as possible’ ” (quoting State v. Taplin, 230 N.J. Super. 95, 99, 552 A.2d 1015 (App. Div. 1988)); Watters v. State, 313 P.3d 243, 245, 247 (Nev. 2013) (“At trial, the State used a PowerPoint to support its opening statement to the jury. The presentation included a slide showing Watters’s booking photo with the word ‘GUILTY’ written across his battered face.” (citing Glasmann with approval and holding that this constituted prejudicial error)); Arca v. State, 71 Md. App. 102, 105-06, 523 A.2d 1064 (1987) (abuse of discretion to admit mug shots of defendant in a photo array where identity was not in issue); Smith v. Rhay, 419 F.2d 160, 164 (9th Cir. 1969) (“the introduction into evidence of ‘mug shots’ for purposes of identification has been held to be highly prejudicial. The Supreme Court of Washington has itself seen prejudicial inferences in the introduction of ‘mug shots,’ State v. Devlin, 145 Wash. 44, 258 P. 826 (1927) . . .” (citation omitted)); Williams v. Commonwealth, 810 S.W.2d 511, 513 (Ky. 1991) (given prejudice posed by use of booking photos at trial, they are inadmissible unless “ ‘(1) the prosecution [had] a demonstrable need to introduce the photographs; (2) the photos themselves, if shown to the jury, [did] not imply that the defendant had a criminal record; and (3) the manner of their introduction at trial must be such that it [did] not draw particular attention to the source or implications of the photographs’ ” (quoting Redd v. Commonwealth, 591 S.W.2d 704, 708 (Ky. Ct. App. 1979))).

There are certainly no explicit appeals to racial bias anywhere in the record. But we have recognized that our State criminal justice system is not immune from unconscious, implicit racial bias and that we need to devise strategies to deal with it. Saintcalle, 178 Wn.2d at 46-47 nn.3-6. We are not alone. The National Center for State Courts counsels that implicit bias is pervasive and operates without our awareness: “Unlike explicit bias (which reflects the attitudes or beliefs that one endorses at a conscious level), implicit bias is the bias in judgment and/or behavior that results from subtle cognitive processes (e.g., implicit attitudes and implicit stereotypes) that often operate at a level below conscious awareness and without intentional control.” Nat’l Ctr. For State Courts, Helping Courts Address Implicit Bias: Frequently Asked Questions, http://www.ncsc.Org/~/media/Files/PDF /Topics/Gender%20and%20Racial%20Fairness/Implict%20Bias%20FAQs% 20rev.ashx (last visited Jan. 8, 2015).

The majority’s note 8 argues that given the amount of evidence against Walker, the jury could not possibly have convicted Walker on an improper basis. Majority at 482 n.8. The majority is probably correct about this. But that just means that the error I discuss below was harmless. It was, however, still an error.