State v. Morgan

• Decision Date: 29 May 2018
• Docket Number: No. 75072-1-I,75072-1-I
• Court: Washington Court of Appeals
• Parties: STATE OF WASHINGTON, Respondent, v. DAVID ZACHERY MORGAN, Appellant.

STATE OF WASHINGTON, Respondent, v. DAVID ZACHERY MORGAN, Appellant.

No. 75072-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

May 29, 2018

UNPUBLISHED

COX, J. — David Morgan appeals his convictions for one count of first degree attempted murder, first degree arson, and first degree assault, all crimes of domestic violence. The trial court did not abuse its discretion in declining to dismiss these charges following Morgan's mistrial motion. And double jeopardy did not bar retrial of these charges. But police authorities seized Morgan's clothing from bags inside his hospital room without authority of law. The State failed to prove by clear and convincing evidence that exigent circumstances existed. That clothing was later admitted into evidence at trial. Accordingly, we reverse and remand for a new trial.

David Morgan and Brenda Welch were divorced and shared custody of their eight-year old daughter, K. Morgan spent three weekends per month with K. Welch would pick her up at Morgan's house on Sunday evenings.

On Saturday night, November 15, 2014, Morgan left K. with his mother. Morgan claims to have been sick. He was supposed to pick up K. before Welch arrived at his home on Sunday evening. But he told officers who interviewed him that he fell asleep.

Welch left her house around 6:25 p.m. on Sunday, November 16, 2014, to pick up K. from Morgan's. Around 7:00 p.m., a neighbor saw that Morgan's house was on fire. Firefighters arrived within minutes and found Morgan on the ground, in the driveway. A lieutenant, the first firefighter to arrive, repeatedly asked Morgan if anyone else was in the house. Morgan mumbled the word "garage," and handed the garage door opener to the lieutenant.

The door opener did not work because a bin was blocking the door. After getting inside, firefighters found Welch on her back, in a pool of blood. She had severe burns on her upper body. She also smelled strongly of gasoline. She was taken to Harborview Medical Center for observation and treatment.

Welch had a skull fracture with a pattern of head lacerations that resembled a garden tool found by the front door of Morgan's home. She suffered permanent injuries. She did not remember how she got hurt.

Morgan had blood on his hands and clothing but no lacerations. He had a small wound on his forehead and his hair was singed. He was taken to Swedish Edmonds Hospital for observation and treatment.

Officer Christopher Breault of the Lynnwood Police Department went to the hospital, where Morgan was in a room being treated for smoke inhalation.He asked Morgan what had occurred that evening. Morgan spoke freely with the officer regarding his memory of events.

Later that same evening, two other police officials arrived at the hospital room to interview Morgan. During this interview, Morgan declined to give a recorded statement. Sometime during this interview, police seized his clothing, which was stored in several plastic bags located on the back counter of his hospital room.

Police arrested Morgan the next day, upon his release from the hospital.

The State charged him with attempted first degree murder, first degree assault, and first degree arson. Each charge included an allegation that it constituted a crime of domestic violence.

On the fourth day of Morgan's first jury trial, the trial court granted a mistrial due to prosecutorial misconduct. At the second trial that followed a short time later, the jury convicted Morgan on all counts. The trial court sentenced him accordingly.

Morgan appeals.

DISMISSAL UNDER CrR 8.3(b) AND CrR 4.7(h)(7)(i)

Morgan first claims that he was entitled to dismissal of the charges with prejudice under CrR 8.3(b) and CrR 4.7(h)(7)(i) due to the prosecution's allegedly outrageous and prejudicial conduct. The court did not abuse its discretion in declining to dismiss the charges with prejudice on these grounds.

CrR 8.3(b) authorizes dismissal "due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused whichmaterially affect the accused's right to a fair trial." CrR 4.7(h)(7)(i) authorizes the trial court to impose sanctions, including dismissal for discovery violations.

A trial court will only order dismissal of charges under CrR 8.3(b) if the defendant shows by a preponderance of evidence, arbitrary action or government misconduct and prejudice affecting the defendant's right to a fair trial.¹ Likewise, dismissal pursuant to CrR 4.7(h)(7)(i) is an extraordinary remedy that is only available if a defendant can show actual prejudice.²

This court reviews the trial court's decision for manifest abuse of discretion.³ A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds.⁴

Here the prosecutor elicited an opinion from an expert witness that had not been disclosed in pretrial discovery. The State properly concedes that this constitutes "government misconduct."⁵ However, Morgan still bears the burden to show that his right to a fair trial was prejudiced in a manner that could not be remedied by a new trial.⁶ But the trial court specifically determined that Morgan could be given a fair trial. And he fails to point to anything in the record of the second trial to show he did not get a fair trial.

Instead, he argues that he was prejudiced by the loss of the jury selected in his first trial, especially since the media coverage of his case made it particularly difficult for him to obtain a second unbiased jury. But he fails to point to anything in this record to show why the original jury selected would have been any fairer than the jury selected at his second trial.

Moreover, while Morgan claims that he was subject to adverse pretrial publicity, the trial court disagreed. Morgan fails to present anything other than speculation to show that the trial court was wrong in its assessment of this issue.

Morgan also argues that the mistrial, followed by retrial, worked to the State's benefit. We see no persuasive explanation why, given the eleven-day delay between termination of his first trial and commencement of his second trial.

Morgan relies on State v. Martinez, as support for his contention that dismissal was appropriate due to the prosecution's allegedly "outrageous" conduct.⁷ His reliance is misplaced.

In Martinez, the prosecution kept exculpatory evidence from Alexander Martinez until the middle of trial.⁸ The exculpatory evidence was revealed right before the State rested.⁹ The jury voted 10 to 2 to acquit, and the trial court declared a mistrial.¹⁰

When the State moved to refile the charges, Martinez moved to dismiss based on double jeopardy and CrR 8.3(b).¹¹ The trial court agreed with Martinez, dismissed the charges, and the State appealed.¹²

This court affirmed. We noted that "dismissal under CrR 8.3(b) is an extraordinary remedy that is improper except in truly egregious cases of mismanagement or misconduct that materially prejudice the rights of the accused."¹³ We then held that the prosecutor's withholding of exculpatory evidence until the middle of trial was "so repugnant to principles of fundamental fairness" that the trial court did not abuse its discretion in dismissing the charges.¹⁴

Here, the undisclosed evidence was not exculpatory. Rather, it supported the State's theory that Morgan was guilty of arson. It is true that the trial court found that the prosecution intentionally elicited an opinion that should have been disclosed earlier, but Morgan has failed to cite to any authority equating such conduct with a failure to produce exculpatory material or with other outrageous behavior. Moreover, dismissal pursuant to CrR 8.3(b) is a discretionary decision. Thus, affirming in this case is consistent with this court's decision to affirm in Martinez. In both cases, this court defers to the trial court's exercise of discretion.

Finally, Morgan argues in his opening brief that he was prejudiced because the mistrial forced him to waive his speedy trial rights. But he concedes in his reply brief that this argument was in error. Specifically, the last day for trial pursuant to CrR 3.3 was Monday, March 21 and trial began on that day. We need not further address this argument.

Morgan fails to show that he either could not receive a fair trial, or that he suffered actual prejudice that could not be remedied by retrial. Accordingly, the trial court did not abuse it discretion by refusing to dismiss the charges with prejudice.

DOUBLE JEOPARDY

Morgan next argues that double jeopardy precluded a second trial, notwithstanding that he sought the mistrial that the court granted. He further claims that the prosecutor acted in bad faith by intentionally and repeatedly eliciting highly prejudicial testimony from the State's expert in violation of the trial court's discovery order. We disagree.

Both the federal and Washington constitutions protect persons from being put into jeopardy twice for the same offense.¹⁵ Jeopardy attaches once a jury is sworn in.¹⁶ In general, double jeopardy principles do not preclude retrial if themistrial was granted upon the defendant's motion.¹⁷ This is true even if the defendant sought a mistrial due to prosecutorial error.¹⁸

Federal cases recognize one exception to the usual rule. If the prosecutor intended to goad the defense into seeking a mistrial, re-trial is precluded.¹⁹ Other bad faith actions by the prosecutor are not enough.²⁰

Washington courts have recognized the possibility of a slightly broader exception based on the Oregon Supreme Court's interpretation of its state constitution.²¹ Under the "Oregon standard," double jeopardy precludes retrial if the prosecutor "knows that the conduct is improper and prejudicial and either intends or is indifferent to the resulting mistrial or reversal."²² The difference between the federal and Oregon standards is quite narrow with the latter including cases where the prosecutor "harass[es] the defendant with what the prosecutor knows...