           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

  STATE OF WASHINGTON,                              No. 75072-1-I

                                    Respondent,     DIVISION ONE

                  V.                                UNPUBLISHED OPINION

 DAVID ZACHERY MORGAN,

                                   Appellant.       FILED: March 9, 2020

           CHUN, J.   —   This matter comes before us on remand from the Washington

State Supreme Court. This court reversed David Morgan’s convictions for

attempted first degree murder, first degree assault, and first degree arson. The

Supreme Court reversed the Court of Appeals decision, reinstating Morgan’s

convictions and remanding to us to address the remaining issues he raises in his

appeal. We affirm.

                                      BACKGROUND

       The State charged Morgan with attempted first degree murder, first degree

assault, and first degree arson, all alleged as crimes of domestic violence

committed against his ex-wife, Brenda Welch. Police found Welch lying in a pool

of blood in Morgan’s garage while the house was on fire. She suffered

permanent injuries and did not remember what happened to her.1 A first trial

       1 The facts are set forth in detail in this court’s unpublished opinion. State v.
MorQan, noted at 3 Wn. App. 2d 1063 (2018). We repeat only those facts necessary to
resolve the issues before us now on remand.
 No. 75072-1-1/2


ended in a mistrial after the prosecutor elicited an opinion from an expert witness

the State did not disclose in pretrial discovery. After a second trial, a jury found

Morgan guilty as charged.

          Morgan appealed, raising a number of issues: (1) the trial court erred by

denying his motion to dismiss for prosecutorial misconduct, (2) retrial of the

charges following a mistrial violated the prohibition against double jeopardy,

(3) the trial court erred by denying his motion to suppress evidence of his clothing

that was seized without a warrant, (4) the trial court erred by denying his motion

to suppress his statements to police that were not preceded by Miranda2

warnings, (5) the prosecutor committed misconduct in closing argument by

comments that shifted the burden of proof and impugned defense counsel,

(6) the trial court erred by instructing the jury that it need not be unanimous on

the means by which he committed the arson, and (7) the trial court erred by

refusing to instruct the jury it must presume the fire was caused by accident or

natural causes.

       This court held the trial court did not abuse its discretion by declining to

dismiss the charges following the mistrial trial motion and double jeopardy did not

bar retrial, but reversed the trial court’s order denying suppression of Morgan’s

clothing, concluding that neither the exigent circumstances nor the plain view

exception to the warrant requirement applied. Morgan, Slip op. at 1, 27. Holding

this was reversible error, we remanded for a new trial. Morgan, Slip op. at 29,

35. We then proceeded to “only address those remaining issues that may recur

      2   Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).


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at trial on remand,” and held that Miranda warnings were not required during

Morgan’s interrogation and the trial court did not abuse its discretion by refusing

to give an instruction that a fire is presumed accidental or caused by natural

causes. Morgan, Slip op. at 29. We did not reach Morgan’s claims of

prosecutorial misconduct in closing argument or his challenge to the first degree

arson “to convict” instruction. Morgan, Slip op. at 29 (finding   “[ut is unnecessary
to address the other issues raised in this appeal”).

       The State petitioned for review and the Washington State Supreme Court

reversed, holding that the plain view exception applied to permit the seizure of

Morgan’s clothing. The Supreme Court reinstated Morgan’s convictions and

remanded to this court for further proceedings. Accordingly, we address the

remaining issues not reached in the first appeal.

                                     ANALYSIS

Jury Unanimity

       Morgan contends the first degree arson “to convict” instruction violated his

constitutional right to jury unanimity because it instructed the jurors that they did

not need to be unanimous. That instruction states:
            To convict the defendant of the crime of Arson in the First
       Degree as alleged in Count Ill, each of the following four elements of
       the crime must be proved beyond a reasonable doubt:
            (1) That on or about the 16th day of November, 2014, the
       defendant caused a fire;
            (2) That the fire
                (a) damaged a dwelling or
                (b) was in a building in which there was at the time a human
                being who was not a participant in the crime; and



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             (3) That defendant acted knowingly and maliciously; and
             (4) That this act occurred in the State of Washington.
             If you find from the evidence that elements (1), (3), (4), and any
       of the alternative elements (2)(a), or (2)(b), have been proved
       beyond a reasonable doubt, then it will be your duty to return a
       verdict of guilty. To return a verdict of guilty, the jury need not be
       unanimous as to which of alternatives (2)(a), or(2)(b), have been
       proved beyond a reasonable doubt, as long as each juror finds that
       at least one alternative has been proved beyond a reasonable doubt.
               On the other hand, if, after weighing all the evidence, you have
       a reasonable doubt as to any one of elements (1), (2), (3) or (4), then
       it will be your duty to return a verdict of not guilty.
The court gave this instruction to the jury over the defense’s objection.

       The standard of review for a trial court’s decision on whether to give a jury

instruction depends on the reason for the decision. If the decision was based on

a factual determination, we review it for an abuse of discretion. State v. Condon,

182 Wn.2d 307, 315-316, 343 P.3d 357 (2015). If, as in this case, it was based

on a legal conclusion, we review it de novo. Condon, 182 Wn.2d at 316.

       Morgan claims he has a right to jury unanimity on the specific means of

committing the crime, citing the dissent in State v. Franco, 96 Wn.2d 816, 833-

35, 639 P.2d 1320 (1982) (Utter, J., dissenting) and case law from other

jurisdictions. But he also noted our Supreme Court’s pending consideration of a

similar to convict instruction. Since the filing of Morgan’s briefing, the Supreme

Court issued its opinion in State v. Armstrong, 188 Wn.2d 333, 335, 340-343,

394 P.3d 373 (2017), and reaffirmed well-settled case law that, in alternative

means cases, jury unanimity on the specific means is not required where

substantial evidence supports both alternatives submitted to the jury.




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        Here, there was substantial evidence of each means. The evidence

 established that the fire damaged Morgan’s house, a dwelling, and that Welch, a

 non-participant in the crime, was present in the building at the time of the fire.

Accordingly, the “to convict” instruction correctly stated the law. See Armstrong,

 188 Wn.2d at 344 (noting that while an instruction on jury unanimity on the

alternate method is preferable, “an instruction being preferable does not make it

a requirement”).

Prosecutorial Misconduct

       Morgan next contends the prosecutor committed misconduct during

rebuttal closing argument by making comments that impugned defense counsel

and shifting the burden of proof. Specifically, he challenges the prosecutor’s

comments that one of Morgan’s lawyers did not attend defense interviews of the

State’s witnesses and that Morgan did not provide an explanation for questions

raised by his version of the facts.

       We review allegations of prosecutorial misconduct for an abuse of

discretion. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). “To

prevail on a claim of prosecutorial misconduct, the defendant must establish ‘that

the prosecutor’s conduct was both improper and prejudicial in the context of the

entire record and the circumstances at trial.” State v. Thorgerson, 172 Wn.2d

438, 442, 258 P.3d 43(2011) (internal citation and quotation marks omitted)

(quoting Statev. Magers, 164 Wn.2d 174, 191, 189 P.3d 126 (2008)). The

defendant bears the burden of establishing prejudice, which requires the

defendant to prove there is a substantial likelihood that the misconduct affected


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the jury’s verdict. Thorgerson, 172 Wn.2d at 442-443. When reviewing a claim

that prosecutorial misconduct requires reversal, we review the statements in the

context of the entire case. Thorgerson, 172 Wn.2d at 443.

       Morgan first challenges the following comments as impugning defense

counsel and shifting the burden of proof:
             And if there was any reason to believe that every single known
       fact would be reported by these firefighters at 1:09 in the morning,
       after they’ve saved a woman’s life, after they’ve fought other fires,
       after they cleaned their equipment Why did Todd Reeves tell you
                                              --


       this morning, I interviewed 40 people; we had statements from most
       of these folks, reports, forensic reports? Well, there may be more
       questions. And in those few interviews where Ms. Silbovitz was
       there, even when you were done, did she ask some questions? Yep.
       Well, Mr. Wackerman ever show up at any of these interviews? No.
       And that’s fine. But they were never asked until   —




At trial Morgan objected to these comments as “burden shifting.” The court

overruled the objection, stating, “The jury is reminded that this is closing

argument, as distinct from the evidence portion.”

       “In closing argument the prosecuting attorney has wide latitude to argue

reasonable inferences from the evidence, including evidence respecting the

credibility of witnesses.” Thorgerson, 172 Wn.2d at 448. But “[i]t is improper for

the prosecutor to disparagingly comment on defense counsel’s role or impugn

the defense lawyer’s integrity.” Thorgerson, 172 Wn.2d at 451 (citing State v.

Warren, 165 Wn.2d 17, 29-30, 195 P.3d 940 (2008); State v. Necirete, 72 Wn.

App. 62, 67, 863 P.2d 137 (1993)). Comments implying defense counsel’s

deception or dishonesty in the context of a court proceeding impugn defense

counsel’s integrity and amount to misconduct. Thorgerson, 172 Wn.2d at 452




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 No. 75072-1-117


 (referring to defense counsel’s presentation as “sleight of hand”); Lindsay, 180

Wn.2d at 433 (stating that defense counsel had “pitched.     .    .    a crock” to the jury);

see ~so Warren, 165 Wn.2d at 29-30 (describing defense counsel’s argument as

a “classic example of taking these facts and completely twisting them to their own

benefit, and hoping that you are not smart enough to figure out what in fact they

are doing”); Negrete, 72 Wn. App. at 66 (stating defense counsel was “being paid

to twist the words of the witnesses”). In Lindsay, the court noted the difference

between comments implying deception and dishonesty that impugned counsel,

and those that were “unprofessional,” “obnoxious,” “rude” and focused on the

lawyer’s personalities, which “alone, probably did not fundamentally undermine

defense counsel’s role or integrity.” 180 Wn.2d at 432-33.

       “A prosecutor generally cannot comment on the defendant’s failure to

present evidence because the defendant has no duty to present evidence.”

Thorcierson, 172 Wn.2d at 453. But “[ijt is not misconduct       ...   for a prosecutor to

argue that the evidence does not support the defense theory.’ As an advocate,

the prosecuting attorney is entitled to make a fair response to the arguments of

defense counsel.” State v. Brown, 132 Wn.2d 529, 566, 940 P.2d 546 (1997)

(quoting State v. Russell, 125 Wn.2d 24, 87, 882, P.2d 747 (1994)); In re Pers.

Restraint of Caldellis, 187 Wn.2d 127, 143-44, 385 P.3d 135 (2016).

      Morgan asserts the comment about Mr. Wackerman’s failure to “show up”

at the interviews impugned defense counsel by suggesting he was lazy or failed

to perform a duty. But Morgan fails to show this comment implies deception or

dishonesty in a court proceeding. See Thorgerson, 172 Wn.2d at 452; Lindsay,


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 No. 75072-1-1/8


 180 Wn.2d at 433. Viewed in context, the prosecutor appeared to respond to the

 defense argument that the State’s witnesses testified inconsistently with what

 they said in defense interviews. As defense counsel argued:
        Why do all these inconsistencies matter? Because credibility
        matters. It affects the assessment of Mr. Morgan; it shows that the
        testimony these witnesses have provided is colored by their interest
        in serving the prosecution. It’s for all of these fire- --most of these
                                           --


        firefighters, their testimony’s not neutral; it’s not disinterested.
            There are other ways in which they test-       --   their credibility is at
        issue; they testified inconsistently.
        While the purpose of the prosecutor’s reference to Mr. Wackerman is not

entirely clear, he appears to have been pointing out that Mr. Wackerman could

not know if the witnesses’ testimony was inconsistent with what they said in the

defense interviews since he was not there. In any event, this single reference to

one of Morgan’s lawyers not attending defense interviews does not imply

defense counsel engaged in deception or dishonesty in a court proceeding, or

otherwise undermine defense counsel’s role.3 Morgan fails to show this

comment rises to the level of impugning defense counsel as established in cases

where the court found misconduct.

        For the same reasons, Morgan fails to show this comment improperly

shifted the burden of proof. Morgan asserts that by making this comment, the

prosecutor “claimed that defense counsel had failed to fulfill his investigatory

obligations by failing to attend interviews.” But again, viewed in context, it was

        ~ In any event, the prosecutor did say, “And that’s fine,” after noting
Mr. Wackerman did not show up at the interviews, apparently acknowledging that
attending the interviews was not counsel’s obligation. Morgan asserts this was actually
an underhanded way of saying it was not “fine,” but here it is impossible for us to discern
what was meant beyond the actual words in the transcript.

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 No. 75072-1-119


likely a response to the defense argument that the witnesses lacked credibility

because their testimony was inconsistent. If Mr. Wackerman did not attend the

interviews, he could not know for sure what was asked and what they said.

Morgan fails to show the prosecutor’s comment amounts to misconduct. ~

Brown, 132 Wn.2d at 566 (not misconduct for prosecutor to argue evidence does

not support the defense theory).

       Moreover, Morgan fails to show this comment prejudiced the outcome of

the case. See Thorgerson, 172 Wn.2d at 452 (even though comment impugning

counsel amounted to misconduct, it was not likely to have altered the outcome of

the case where relevant evidence showed the defendant committed the crimes).

Relevant evidence established that Morgan committed the crimes. The State’s

evidence established the fire was intentionally set, that Morgan knew about the

fire in advance, and that he was standing close to Welch when she was

assaulted. Given this relevant evidence of Morgan’s guilt, it was unlikely that this

brief, isolated, and not entirely clear comment about defense counsel’s

participation in a witness interview affected the jury’s verdict.

       Morgan further claims the prosecutor improperly shifted the burden of

proof by the following comments:
          No soot. If he had been helping her take off that sweater, he
      would have breathed in that soot. If he had lit her on fire and ran out
      of that room and chased her down and hit her, there would be no
      soot. There would be no smoke inhalation. Thank you. And the one
      question that isn’t answered by his theory, by his question   —




      The one question that his explanation that you’ve heard does not
      provide for us, was this self-inflicted? Did she break the eye herself,


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 No. 75072-1-I/ID

        smash that in herself, wound herself, and spray blood on the left
        handed Mr. Morgan’s left arm?
 Morgan objected as “burden shifting,” and the court overruled the objection.

       These comments were responsive to the defense closing argument, which

focused on Morgan’s version of the facts. They were not improper. As defense

counsel argued: Mr. Morgan has given you a version of what happened. Has

anyone given you a version to contradict this? No. Has the State offered or

proved an alternative story? No.” He then proceeded to describe in detail

Morgan’s version of events, including his efforts to help her take off her sweater

while she was on fire.

       Morgan’s reliance on State v. Fleming, 83 Wn. App. 209, 921 P.2d 1076

(1996), is misplaced. There, the prosecutor argued there was no reasonable

doubt because there was no evidence the victim was lying or confused and if

there had been any such evidence, the defendant would have presented it.

Fleming, 83 Wn. App. at 214. But here, the prosecutor pointed out

inconsistencies between Morgan’s version of events and the evidence that was

presented. The prosecutor did not tell the jury Morgan had to disprove the

State’s evidence or he should be convicted because of a lack of evidence, as in

Fleming. Rather, the prosecutor argued Morgan’s theory of the case was

inconsistent with the evidence that was presented. This was a “fair response” to

defense argument. ~ [n re Pers. Restraint of Caldellis, 187 Wn.2d at 143-44

(prosecutor’s statements that defense counsel forgot a big reason why defendant

did not testify and that he could think of one more, were fair response to defense




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No. 75072-1-I/il


counsel’s closing where defense counsel suggested many reasons why

defendant would not testify).

       Moreover, as the State points out, when a defendant gives a partial

statement to police, a prosecutor may comment on inconsistencies between the

defendant’s “partial silence” and defense theories pursued at trial. State v. Scott,

58 Wn. App. 50, 55, 791 P.2d 559 (1990) (citing State v. Belgarde, 110 Wn.2d

504, 511, 755 P.2d 174 (1988)). Here, as presented in closing argument,

Morgan’s theory of the case was based largely on his statements to police. In

responding to that theory, the prosecutor properly commented that those

statements failed to explain key facts, pointing out inconsistencies between the

statements and the evidence, not Morgan’s failure to present evidence. Morgan

fails to show the prosecutor’s comments improperly shifted the burden of proof.

Because Morgan has not established that any of the challenged comments

amounts to prosecutorial misconduct, we need not determine whether they

prejudiced the outcome of the trial.

      We affirm.




WE CONCUR:
