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                                                                                             FI' .
                                                                                               L
                                                                                      COURT OF APPEALS
                                                                                          DI tv "s, 1
                                                                                                  l0Ib
                                                                                     2013 ;TT?23 PP 12: 03



   IN THE COURT OF APPEALS OF THE STATE OF W

                                        DIVISION II

STATE OF WASHINGTON,                                             POREmm


                               Respondent,



VERONICA WITTEN,                                           UNPUBLISHED OPINION


                               2


       JOHANSON, A. .
                 J.
                  C            Veronica Witten appeals her jury convictions for attempted first
                                —


degree murder—
             domestic violence, first degree burglary—
                                                     domestic violence, and a restraining
order violation. Witten argues that the State engaged in prosecutorial misconduct by improperly

questioning witnesses about her silence and by referring to her silence in closing arguments.
Witten also argues that the jury was biased. We affirm Witten's convictions because Witten

failed-to preserve- alleged prosecutoriaLmisconduct for review and her_
                  the       __                      _              bias_
                                                                   _  jury_
                                                                          arguments

either lack merit or lack an adequate record for review.

                                             FACTS


       Michael'   and Witten   were   married and both served in the United . tates Army. The
                                                                            S



marriage experienced difficult periods, the couple often lived apart, and Witten eventually sought
counseling for depression. Witten told mental health professionals that Michael was physically
and verbally abusive. The couple separated in April 2008 when Michael was deployed to Iraq.

 We refer to Michael Witten by his first name for clarity,intending no disrespect.
No.42021 0 II
         - -



In July 2009, Michael returned and Witten served him with divorce papers. The superior court

entered mutual restraining orders.

         One day in December 2009, Michael arrived home and found his new girlfriend, Anna

Meuangkhot, in the kitchen making dinner. Michael stepped outside, saw someone approaching,

and immediately knew it was Witten. Witten said she bet that he did not expect to see her ever

again and Michael told her that she was not supposed to be there. Witten replied, I know."3
                                                                                  "
Verbatim Report of Proceedings (VRP)at 343. Michael re-
                                                      entered the apartment. As Michael
tried to lock the door, he observed Witten outside holding a handgun. Witten shot Michael in his

abdomen and then aimed the gun toward Meuangkhot. Michael struggled with Witten and took

the gun from her. Witten then " alked off all nonchalant"to a grayish-colored vehicle, one that
                              w
Michael thought     was   a   rental car, and   slowly   drove off. 3 VRP at 352. Michael later told


Deputy Inga Carpenter that he had been shot by his estranged wife and another deputy found the
gun on the floor next to Michael.

          Deputy Brian Heimann was dispatched to Witten's address and soon saw a red Toyota
Celica approach. Knowing that Witten owned ared -Toyota,he stopped the vehicle, took Witten --
                 --
into custody, and read her Miranda warnings. Deputy Heimann asked Witten if she was willing
to speak and she declined 3 Deputy Heimann then transported her to and eventually booked her
                          .
in the Pierce County Jail. Detective James Loeffelholz searched Witten's vehicle and found (1)a
receipt for a silver rental car that had been rented a few days before the shooting and was
returned to the nearby rental facility on the evening of the shooting, 2) black baseball cap, 3)
                                                                       ( a                    (


 2 Miranda v. Arizona, 384 U. . 436, 86 S. Ct. 1602,16 L.Ed. 2d 694 (1966).
                            S
 3
     Deputy Heimann's testimony about this was during trial testimony in front of the jury.

                                                         2.
No. 42021 0 II
          - -



black shoes, and (4) 9 mm cartridge. At the jail,Witten asked Deputy Heimann how Michael
                    a

was doing and if someone could check on her dogs. Michael later gave Detective Loeffelholz a

receipt for a 9 mm handgun that he found in Witten's car and paperwork he found in Witten's
home showing that she had hired a private investigator in September 2009 to find out where he

was living and other details about him.

         The State charged Witten with attempted first degree premeditated murder, first degree

burglary, and violating a restraining order. Both counts included a firearm enhancement. The
State later filed an amended information which added a domestic violence aggravator.

          Pretrial, Witten stipulated that her statements to Deputy Heimann were not made as a
result of or during custodial interrogation. At trial, the prosecutor asked Deputy Heimann and
Detective Loeffelholz about Witten's behavior, demeanor, and statements she made during her

arrest and booking at jail,including whether she asked any questions after her arrest.
          Deputy Heimann testified that Witten did not really speak or ask him any questions
during her arrest or her transport but that in the interview room, Witten asked him how Michael
was doing and         asked someonecould check
                            -                         on her
                                                         -     dogs . -Detective Loeffelholz testified that-
                                                                -      --                    -


Witten did not ask him any questions about the charges and that if she had said something
important he would have included it in his report.

          Witten presented a defense of diminished capacity claiming a dissociative event caused
 by                   traumatic stress disorder.
       her severe post-                                    Dr. April Gerlock's testimony supported this
                                                                       abuse. Dr. Gerlock
 defense, allegedly caused by Michael's years of physical violence and

 testified that during a dissociative event the person's brain is not connected with what their body
 is   saying   or   doing. Dr. Gerlock testified that Witten's actions after the shooting were consistent


                                                       3
No. 42021 0 II
          - -



with her opinion that Witten did not have the intent to follow through with an intentional crime
on the day of the shooting. Dr. Gerlock testified that she knew from reviewing the police reports
that Witten did not ask the officers questions about who they were, or why they were contacting

her, nor did Witten try to explain her circumstances after arrest, but that she did ask about
Michael and her   dogs. These things did not change Dr. Gerlock's opinion about Witten's

dissociative event. Witten did not take the stand or present any other witnesses.

       During trial,the court excused a juror who briefly spoke to a police officer during a court
recess about the Maurice Clemmons case, which occurred in the Tacoma area just days before

Witten shot Michael.    The court interviewed the juror in question, determined that she was

truthful, but excused her as an additional precaution. Witten did not object to the procedure or
the removal of the juror.

       Defense counsel's closing argument focused on Witten and Michael's relationship and on

Dr. Gerlock's opinion that Witten did not intend to commit a criminal act due to her depression,
post -traumatic stress disorder, and dissociative event. In response, during rebuttal closing, the
prosecutor referred to Witten's lack of questions to the police an her -
                    -             -                             -      statements to Deputy - -- - -
Heimann about Michael's conditions and her dogs. The jury found Witten guilty of all charges,

including special verdicts that Witten and Michael were family members and that Witten was
 armed with a firearm. Witten appeals.

                                           ANALYSIS


                                 I. PROSECUTORIAL MISCONDUCT


        Witten argues prosecutorial misconduct deprived her of a fair trial and that reversal is
 required because the prosecutor wrongfully elicited testimony from several witnesses and made


                                                 E
No. 42021 0 II
          - -



comments during closing argument that violated her right to remain silent and violated her
fundamental   right   to   due process.     We disagree. But, as discussed below, the State did not

commit misconduct in its examination of witnesses nor in its closing arguments because Witten

made voluntary statements and placed her mental state at issue by raising a diminished capacity

defense. Accordingly, having failed to object at trial,Witten has failed to preserve these alleged
errors for appeal.

                                            A. Standard of Review


       To establish prosecutorial misconduct, a defendant must show both improper conduct and
resulting prejudice. State v. Emery, 174 Wn. d 741, 756, 278 P. d 653 (2012). A defendant
                                           2                  3
fails to preserve a prosecutorial misconduct claim for appeal when she does not object at trial to
alleged misconduct, unless the misconduct is so flagrant and ill intentioned that an instruction
could not have cured the resulting prejudice. Emery, 174 Wn. d at 760 61. This court reviews a
                                                           2          -

prosecutor's comments during closing argument in the context of the total argument, the issues
in the case, the evidence addressed in the argument, and the jury instructions. State v. Brown,
T32 Wn. d 529, 561,940 P. d 546 (1997), - denied,U. 1007 ( 998). - -- - — - - - -
      2                " 2           cent.        S-.- 1
        Our   Supreme Court         has   recognized   that "` [t]
                                                                 he   State can take no action which will

unnecessarily `chill' or penalize the assertion of a constitutional right and the State may not draw
adverse inferences from the exercise of          a   constitutional   right. "' State v. Gregory, 158 Wn. d
                                                                                                        2

 759, 806, 147 P. d 1201 ( 2006) quoting State v. Rupe, 101 Wn.2d 664, 705, 683 P. d 571
                3                (                                               2
 1984)).However, both the United States Supreme Court and Washington courts have

 recognized that not all arguments " touching upon a defendant's constitutional rights are
                 comments           the.exercise of those rights." Gregory, 158 Wn. d
                                                                                  2            at 806.   The
 impermissible                 on




                                                          5
No. 42021 0 II
          - -



State Supreme Court has characterized the relevant issue as "` hether the prosecutor manifestly
                                                             w
intended the remarks to be      a   comment   on   that   right. "' Gregory, 158 Wn. d at 806 07 (
                                                                                   2          - quoting

                                                                                        But
State   v.   Crane, 116 Wn. d 315, 331, 804 P. d 10, cent. denied, 501 U. . 1237 (1991)).
                          2                  2                          S


when a defendant does not remain silent and instead talks to police, the State may comment on

what he does not say. State v. Clark, 143 Wn.2d 731, 765, 24 P. d 1006, cent. denied, 534 U. .
                                                              3                            S
1000 (2001)

                                                   B. Analysis

         Witten argues that the prosecutor's comments were improper because post -Miranda
silence cannot be used as evidence to disprove mental illness, citing Wainwright v. Greenfield,

474 U. . 284, 106 S. Ct. 634, 88 L.Ed. 2d 623 (1986)and Matire v. Wainwright, 811 F. d 1430
     S                                                                             2

11th     Cir.   1987).   The State argues these cases are immediately distinguishable because the
defendants in both Greenfield and Matire did not make any statements to the law.enforcement
officers, whereas here Witten did make a few statements. This is an important distinction that
Witten fails to reconcile.


             In Greenfield, the Supreme Court held that it was fundamentally-unfair for a prosecutor - -
                                                               -
to use a defendant's postarrest, post -Miranda silence as evidence of sanity when the defendant's
theory at trial was that he was not guilty because he was insane. 474 U. . at 285, 295. The
                                                                       S
 Supreme Court reasoned that its conclusion in Doyle v. Ohio that it was unfair for a prosecutor
 to breach the implicit promises of Miranda warnings by using the defendant's postarrest, post -
 Miranda silence to impeach his or her trial testimony compelled the same result under the facts
 of Greenfield, 474 U. ..
                    at 295.
                     S

 4
     Doyle v. Ohio, 426 U. . 610, 96 S. Ct. 2240, 49 L.Ed. 2d 91 (1976).
                         S


                                                           2
No. 42021 0 I1
          - -



       However, in State v. Scott, Division One of this court stated:

       We see no reason why the State's right to comment upon inconsistencies between
       a defendant's post -Miranda " artial silence"and trial testimony by the defendant
                                   p
       does not extend, with equal logic, to inconsistencies between such partial silence
       and defense theories pursued at trial without actual testimony from the defendant.

State v. Scott, 58 Wn. App. 50, 55, 791 P. d 559 (1990).The Scott court explained that where a
                                         2

defendant waives the right to remain silent and makes a partial statement to police; the State may

use the statement to impeach the defendant's subsequent defense at trial. Scott, 58 Wn. App. at

55. Witten alleges several instances of improper commentary. Witten did not object to any of
these statements at trial.


        First, Witten challenges the following from Deputy Heimann's testimony:

        Q: ...     During your transport of Ms. Witten from Fort Lewis down to the
        County City Building, can you describe for the jury any things that you were able
               -
        to observe of her demeanor?
        A:       Really, no emotions, didn't really speak at all.
        Q:       Do you recall thedid she ask you any questions at that time?
                                  —
        A:       No.
        Q:       When you placed Ms. Witten under arrest, did youdid she ask you any
                                                                 —
        questions at that time?
        A:       No.


        Q:       Now, did you observe the defendant doing anything during that time
        period? (
               while in custody in the patrol car)
        A:       No, I did not.
        Q:       Okay. And during that time period, did she ask you any questions?
        A:       No, she] didn't.
                     [

5 VRP at 591, 593.

        This testimony highlighted only that the defendant asked no questions between the time
 of arrest and the time of arrival at the   police   station. This was not a direct comment on the


 defendant's silence and the prosecutor in closing argument did not suggest to the jury that this

 silence was an admission of guilt. Instead, this testimony was impeachment to show Witten was

                                                     7
No.42021 0 II
         - -



not suffering from confusion shortly after the shooting. We conclude this was not a comment on

Witten's silence.


       Second, Witten also argues the following testimony of Deputy Heimann was improper:

       Q: ... [      D]ring the times that you were alone with Ms. Witten while she was
                      u
       in the interview room, can you describe for the jury what her demeanor was?

       A: ...      She did not cry, didn't really show any emotion. When the detectives
       left the room, she cried. She was shaking. She asked me to check on Michael,
       and she asked me to check on her dogs.

5 VRP at 594.


       This testimony was a simple description of Witten's demeanor and recounted the

voluntary statements that Witten made post -Miranda. Accordingly, this testimony was not an
improper comment on Witten's right to remain silent.

        Third, Witten challenges Detective Loeffelholz's following testimony:

        Q: . . . [      D]d you have an opportunity to speak with Ms. Witten in the
                         i
        interview room?
        A: Briefly.

        Q:        Did you advise [Witten] what it was that she was under arrest for?
       A: I-- - - - -
           did:
        Q:        And did she ask you any questions about the charges that youthat you
                                                                               —
        indicated to her?
        A:        I don't recall.
        Q:        If she had said something, is that something that you would have indicated
        in your report?
        A:      If it was significant, I would have.

 6 VRP at 736, 738.

        This   testimony   was      only   a   brief mention that Witten did not say    anything. The main

 point of this testimony   was   that Witten did not ask any     questions   that the officer could   recall, and
No.42021 0 II
         - -



that if she had said   anything significant, he   would have included it in his report. This brief


testimony does not rise to the level of a direct comment on Witten's right to remain silent.

       Fourth, Witten challenges Dr. Gerlock's cross -examination testimony:

       Q:       And then her contact with the policeat no point in.time in the records, or
                                                    —
       based off of your conversation with ...     Witten, did she tell you that she asked the
       officers who they were?
       A: No. I don't believe so, no.
       Q:   Okay. And at no point       in time did she share with you or include in the
       police reports that would indicate that she asked why they were contacting her?
       A:       She thought they were pulling her over for harassment.
       Q:     Okay. But she didn't express that. She didn't ask them if they were pulling
       her over for harassment, did she?
       A:     No,not at the time, no.
       Q:     Okay. And so you've indicated that she says that she thought that they
        were pulling her over for harassment?
        Q:      Yes.
        Q:      Okay. So that's an exercise in assessing the situation and then coming up
        with the reason for the contact[,]
                                        right?
        A:      Correct. Yeah.


        Q:      Okay. And apparently, when she is talked to by the detectives, she didn't
        try to explain her circumstances or that she doesn't remember or anything like
        that to them?
        A:      I don't believe so, no.
        Q: ... [     B] off what's
                        ased              in the police reports, she did ask an officer to check
        on Michael,didn't she? -
        A:      Yes.
        Q:      And she also asked the officer to check on her dogs?
        A:      Yes. I believe so, yeah.
        Q:      And that would also presume that she has the, at least, cognitive ability to
        recognize that she's not at home with the dogs; the dogs need some care?
        A:      Correct.


7 VRP at 982 84.
             -


        This testimony was elicited to attack the basis of the expert's opinion that Witten suffered
 diminished capacity at the time of the shooting. Accordingly, it was not a direct comment on




                                                    G
No. 42021 0 II
          - -



Witten's right to remain silent, and it was not used as substantive evidence of guilt or argued that

Witten's failure to ask questions was an admission of guilt.

       Finally, Witten challenges a portion of the State's rebuttal closing argument that relied on
the above   testimony. When discussing that Witten was able to follow Deputy Heimann's

commands, the State explained:

       That requires not only thought process but the ability to move one's body in
       response to the command, and then he talks with her right when he arrests her.
       They bring her down to -talk with the detectives; and when she's down there
       talking with the detectives and with Deputy Heimann, at no point in time did she
                       E"
       ever ask them,    hat
                         I[]are you doing? Why are you talking to me? What's
                             W
        going on? I
                E"
                 If   you're fuzzy, don't        youI don't understand.
                                                    —                       Why are you arresting
       me?What are you accusing me of?What do you think I'e done?None of that,
                                                              v
       nothing to explain, look, I' confused. I don't know where I am. I don't know
                                  m
       how I got here. I don't know who you are. None of that. When she gets down to
        the station, she says two things to Deputy Heimann. Would you have someone
        check on Michael? Deputy Heimann did not tell herhe told you he did not tell
                                                           —
        her anything about Michael because he didn't know about Michael's condition.
                       He didn't know that.'She knew that; and that's why she asked Deputy
        Heimann to check        on   Michael but then in the   same   breath asked, E" ,
                                                                                     Can   somebody
                                             3
        also check in    on   the   dogs ?

8 VRP at 1100 02.
              -


        Here, the theory that Witten argued was that she was experiencing a dissociative event
and that she did not know what was going on at the time of the shooting. But her actions at the
time of arrest and      questioning     could indicate otherwise.      Witten's statements and her partial

 silence created an inference that her theory at trial was fabricated, permitting the State to 'so

 argue. Scott, 58 Wn. App. at 55. The State properly argued that Witten was able to follow the
 arresting officers commands, that she did not appear to be confused about why the police
 arrested her, that she seemed to understand what was going on, that she asked no questions about
 what was happening, but that she did ask about Michael's condition and that someone check on

                                                         10
No..
  42021 04I
        -



her dogs. This was proper impeachment argument addressing Witten's theory at trial that she

was experiencing a dissociative event.

         Further, the prosecutor's comments during rebuttal closing were responsive to the
defense's closing argument.    Defense's closing argument. focused on Witten and Michael's

relationship and on Dr. Gerlock's opinion that Witten could not have intended a criminal act due
to her                    traumatic    stress   disorder, and dissociative   event.        Defense counsel
         depression, post -

explained Witten as experiencing " n unusual sensation" at the time of the shooting and that she
                                 a
felt like her ears were plugged up, that she knew Michael was there, that she could not see his
face, that she did see brown carpet and hear something shatter, that she felt Michael touching
her,that she did not see Meuangkhot, and that she did not recall leaving. 8 VRP at 1093.

         The prosecutor's statements in rebuttal closing that she was actually able to move her
body in response to Deputy Heimann's commands and that she appeared to understand where
she was and what was going on after being arrested were responsive to defense counsel's
closing. They Were also reasonable inferences from the evidence and well within a prosecutor's
                                                                                            860. --Thus,- -
                                                                                                        the
Wide latitude in   making arguments -to- -jury." Gregory Wn. d
                                       the       --        2                          at



prosecutor's comments on Witten's partial postarrest silence did not amount to misconduct.
Because Witten placed her mental state at issue when she raised a diminished capacity defense,
and because Witten did make some statements after advice of Miranda warnings, we hold the

prosecutor did not improperly comment on her right to remain silent. Accordingly Witten failed
to preserve these errors for appeal.




                                                     11
No. 42021 0 II
          - -



                          IL STATEMENT OF ADDITIONAL GROUNDS: JURY BIAS


         Witten asserts that statements and conduct of a particular juror tainted the jury, and that a

high -
     profile shooting crime occurring contemporaneously with Michael's shooting prevented the

jury from rendering an impartial decision. We disagree.

         We review the trial court's determination of whether to dismiss a juror for abuse of

discretion. State v. Depaz, 165 Wn. d 842, 852, 204 P. d 217 (2009).Abuse of discretion exists
                                  2                  3

when a trial court bases its discretion on untenable grounds or reasons. Depaz, 165 Wn. d at 852
                                                                                      2

citing   State   v.   Powell, 126 Wn. d 244, 258, 893 P. d
                                    2                  2                 Deciding
                                                             615 ( 1995)). "           whether juror

misconduct occurred and whether it affected the verdict are matters for the discretion of the trial

court, and will not be reversed on appeal unless the court abused.its discretion."Breckenridge v..

Valley Gen. Hosp, 150 Wn. d 197, 203, 75 P. d 944 (2003).
                        2                 3

         Witten alleges that a juror committed misconduct by speaking with a police officer

outside the courtroom, off the record and that "damage to [her] case was done" because she is

unaware of what the juror told the rest of the jury after she spoke with the officer. Statement of
Additional Grounds (SAG)at 2. Upon defense motion to dismiss thejuror, the court interviewed - --
the juror, determined that her ability to be a juror in the case was not impaired, but as an
additional   precaution, the    court excused her from the   jury. The record shows that the juror

reported that she had spoken to a police officer, who may have been a witness at Witten's trial,
about the Clemmons case. The juror testified that the two did not speak about anything that had
to do with Witten's case, that she had told the rest of the jury that she had spoken to a police

 officer, and that she also informed them that it had nothing to do with Witten's case.




                                                   12
No. 42021 0 II
          - -



       While Witten asserts that the juror told the entire jury something that apparently

prejudiced the whole jury,the court found the juror to be truthful when she testified that she had
not talked to the officer about Witten's case. Witten does not argue that any specific prejudice

resulted, only that "damage to [her] case was done." SAG at 2. Witten fails to show that the
trial court's decision to excuse the juror and its determination that no prejudice occurred was

manifestly unreasonable or based on untenable grounds. Powell, 126 Wn. d at 258.
                                                                     2

       Witten also asserts that the jury was negatively influenced and biased because she was

incarcerated with individuals related to Clemmons and because of similarities between her case

and the Clemmons case. Because the record does not show if or how the jury was biased, Witten

must rely on matters outside the record to support her argument. We do not consider arguments

that rely on facts outside the record. State v. McFarland, 127 Wn. d 322, 335, 899 P. d 1251
                                                                 2                  2
1995).

        We affirm.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will - -filed for public record in accordance with RCW - - - -
                                       be                         -
040,
2.6.it is so ordered.
 0




                                                                  Johanson, A. .
                                                                            J.
                                                                             C
We concur:




                 Quinn -
                       Brintnall, J.


                       gen, J.



                                                 13
