IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MICHAEL HENDERSON, 

### ) No. 75510-2-I

Appellant, 

### )

) DIVISION ONE v. 

### ) STATE OFWASHINGTON, 

### ) UNPUBLISHED OPINION 

### ) Respondent. 

### ) FILED: December23, 2019
MANN, A.C.J.

— Michael Henderson appeals his conviction for second degree felony murder. Afterwe reversed Henderson’s conviction based on instructional error, the Supreme Court reversed and remanded for consideration of Henderson’s remaining arguments. Henderson argues thatthe State committed prosecutorial misconduct during closing argument. Henderson also raises several contentions in his statement of additional grounds under RAP 10.10. We affirm.

On review, the Supreme Court ofWashington stated the facts as follows: On October 11, 2015, Henderson shot and killed 20-year-old Abdi. Abdi and his friends were socializing at a restaurant and, later, at a Shell gas station across the street. There, Abdi began arguing with Nekea Terrell.No. 75510-2-1/2

While Terrell was buying alcohol atthe gas station, Abdi called her names and told herto hurry up. Terrell, Abdi, and Abdi’s acquaintances continued to insult each other. One ofTerrell’s acquaintances tried to calm herdown. Terrell knew Henderson because he dated her cousin. Terrell testified at trial that atthis point, Abdi was “getting really bold” and “pumped up.” Report of Proceedings (RP) (May 23, 2016) at 155. She said they continued to argue and she thought she was going to have to fight a “dude.” j~çj~. at 156. Terrell said she was readyto fightAbdi and Abdi never claimed he was armed or displayed a weapon. Henderson joined the small group gathered around Abdi and Terrell as they argued. Henderson, the people with him, and Abdi’s group were “cussing each otherout.” RP (May 24, 2016) at 296. Nobody made overtthreats, despite tension being high. To this point, no weapons were shown, seen, ortalked about. Henderson testified thatAbdi “flinched” his shoulders, lunged forward, moved his arms toward his waist, and seemed to reach forsomething in a pocket. RP (June 1, 2016) at 682. Henderson drew a handgun from his rear pants pocket, pointed it directly atAbdi, and pulled the triggerat close range. Abdi died almost instantly. The shooting was captured on surveillance video. Henderson’s reason fordrawing the gun, whether he pulled the trigger intentionally or accidentally, and his objective when he fired the weapon were all in dispute attrial. Thejuryfound him guilty offelony murder based on second degree assaultwith a deadlyweapon. State v. Henderson, 192 Wn.2d 508, 510-11, 430 P.3d 637 (2018). Henderson appealed his conviction to this court raising several issues including thatthe trial court erred in declining to instructthejury on accidental homicide. We reversed Henderson’s conviction based on the instructional error in an unpublished opinion. State v. Henderson, No. 75510-2-I, slip op. at 1 (unpublished) (Wash. Ct. App. Feb. 12, 2018), http://www.courts.wa.gov/opinions/pdf/7551 02.pdf, rev’d, 192 Wn.2d 508, 430 P.3d 637 (2018). The Supreme Court reversed ourdecision and remanded for
us to considerthe remaining arguments raised by Henderson. State v. Henderson, 192 Wn.2d at 510.

2No. 75510-2-1/3

Henderson argues the prosecutor committed misconduct during closing argument. We disagree. Allegations of prosecutorial misconduct are reviewed under an abuse of discretion standard. State v. Lindsay, 180 Wn.2d 423, 430, 326 P.3d 125 (2014). To prevail on a claim of prosecutorial misconduct, a defendant bears the burden of proving: (1) thatthe prosecutor’s comments were improper and (2) that the comments were prejudicial. State v. Warren, 165 Wn.2d 17, 26, 195 P.3d 940 (2008). A prosecutor’s “allegedly improper remarks must be reviewed in the context ofthe total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to thejury.” State v. Brown, 132 Wn.2d 529, 561, 940 P.2d 546 (1997). In determining ifthe comments were prejudicial, “the question to be resolved is whetherthere is a substantial likelihood thatthe prosecutor’s misconduct affected thejuryverdict, thereby denying the defendant a fairtrial.” State v. Davenport, 100 Wn.2d 757, 762-63, 675 P.2d 1213 (1984). Henderson argues the prosecutor committed misconduct by making the following argument: Was there anything reasonable aboutwhat the defendant did here, ladies and gentleman, based on the information and the evidence thatyou have? He told you that “when I see someone who is making these hand gestures and moving, I naturally assume they are armed, so I’m going to shootthem ifthinkthey are armed.” Is that reallywhatwe have come to? Is that really what the law is, that ifa person can convince themselves that another person is armed and is threatening to them, that they can shootthem? Is thatwhatthese laws are intended for? Rememberwhat I said in my opening closing arguments. The laws are designed to make sense. 3No. 75510-2-1/4

(Emphasis added). Defense counsel objected, arguing thatthe prosecutorwas inviting thejuryto question the appropriateness ofthe law. The trial court overruled the objection, but stated, members ofthejury, I’ll reread to you a portion from Instruction No. 1: “Lawyers’ remarks, statements, and arguments are intended to help you understand the evidence and applythe law. It’s importantto remember, howeverthatthe lawyers’ statements are not evidence. Evidence is the testimony and exhibits. The law is contained in my instructions to you. You must disregard any remark, statement, or argumentthat is not supported bythe evidence orthe law in my instructions.” Go ahead, please. The prosecutorthen continued, So, la-dies and gentlemen, when you go backto thejury room

-- and I assume you will look at the video again

-- you can look at it slowly or quickly or at normal speed. You have all sorts ofoptions. But at the end ofthe day, you have to askyourselfthis: was the defendant, given his situation, based on whatyou learned from him, reasonable? Henderson argues the prosecutor’s statement “misstated the law and encouraged thejuryto go beyond the instructions to considerthe appropriateness ofthe law.” He argues that his defense depended onjurors being able to consider his subjective opinion when evaluating his rightto act in self-defense. The State argues the prosecutor did not misstate the law, but simply highlighted the reasonableness element required for self-defense in response “to the defense argument, which attempted to portraythe self-defense standard as being almost entirely subjective.” A claim ofself-defense is assessed “from the standpoint ofthe reasonably prudent person, knowing all the defendant knows and seeing all the defendant sees.” State v. Janes, 121 Wn.2d 220, 238, 850 P.2d 495 (1993). In otherwords, the self defense inquiry has both a subjective and an objective portion. Janes, 121 Wn.2d at

4No. 75510-2-1/5

238. “The subjective portion ensures thatthejuryfully understands the defendant’s actions from the defendant’s own perspective, while the objective portion allows thejury to determine what a reasonably prudent person similarly situated would have done.” Janes, 121 Wn.2d 

### at 238. It is not misconductforthe prosecutorto argue that evidence does not support the defense’s theory orto fairly respond to defense counsel’s argument. State v. Thorgerson, 172 Wn.2d 438, 449, 258 P.3d 43(2011). “Remarks ofthe prosecutor,
even ifthey are improper, are not grounds for reversal iftheywere invited or provoked by defense counsel and are in replyto his or her acts and statements, unless the remarks are not a pertinent reply or are so prejudicial that a curative instruction would be ineffective.” State v. Russell, 125 Wn.2d 24, 86, 882 P.2d 747 (1994). Henderson argues the prosecutor’s rhetorical questions referring to the intent of the law could be interpreted as encouraging jury nullification orjury activism. However, taken in the context ofthe rest ofthe argument, a more reasonable interpretation ofthe prosecutor’s argument was as a call to thejuryto question whetherthe hand movements Henderson sawwould reasonably precipitate the shooting, which goes to the subjective element ofself-defense. Moreover, even ifthe State did misstate the law, any improper commentwas cured bythe court instructing the

### juryto “disregard any remark, statement, orargumentthat is not supported bythe evidence orthe law in my instructions.” Additionally, the prosecutor immediately provided the correct standard, stating, “[bjut atthe end ofthe day, you have to askyourselfthis: was the defendant, given his situation, based on what you learned from him, reasonable?”

5No. 75510-2-1/6

In the context ofthe entire closing argument, the prosecutor’s commentwas not
a misstatement ofthe law, and there is no substantial likelihood thatthe prosecutor’s argument affected thejuryverdict. Ill. Henderson raises several additional arguments in his statement ofadditional grounds. We address each in turn. A. Henderson argues thatthe prosecutor committed additional misconduct by shifting the burden to produce evidence onto Henderson. Henderson argues thatthe prosecutor committed misconduct by arguing:

What’s interesting, ladies and gentlemen, and maybe you picked up on this or maybe you didn’t, there were numerous witnesses. I counted over60 years of experience from police officers who worked thatvery area. Not one ofthem was asked, “What’s that area like?” because the RainierValley, ladies and gentlemen, is not a warzone. The Rainier Valley is not the concretejungle. It’s a part of Seattle. Does crime happen there? Sure, it does. Does crime happen there more than other places? Possibly. The only person who provided you with this understanding of how this warzoned worked was the defendant. Henderson did not object. A prosecutor may not comment on the defense’s lack ofevidence because the defense has no dutyto present evidence. Thorgerson, 172 Wn.2d at 467. An argument aboutthe amount or quality ofevidence presented bythe defense, however, does not indicate thatthe burden of proof rests with the defense. Thorcierson, 172 Wn.2d at466- 67. A prosecutor can argue thatthe evidence does not supportthe defense’s theory of the case. Lindsay, 180 Wn.2d at431-32.

6No. 75510-2-1/7

Henderson argues thatthe prosecutor’s statement shifted the burden of proving the evidence onto the defense. Henderson claimed thatthe Rainer Beach area was similarto a warzone without providing any evidence to supportthis theory aside from his own opinion. Because the defense opened the doorto the credibility ofthis evidence, the prosecutorwasjustified in arguing thatthe evidence did not support Henderson’s characterization of Rainer Beach. Further, when considering the prosecutor’s statement in context ofthe argument, it is clearthat prosecutorwas questioning Henderson’s credibility, ratherthan shifting the burden of producing evidence onto the defendant. Immediately afterthat statement, the prosecutorsaid Again, you have to assess credibilitywhen he is telling you these things, ladies and gentlemen. Ifyou find or believe thatthe defendantwas not credible, was nottelling the truth about certain things, you have to ask yourself, well, why? Whywas he not being credible? Whywould he say that if I knowthat’s nottrue? Then you have to question further: is he credible at all? Can I believe anything he told me? Here, the prosecutorwas challenging Henderson’s credibility and demonstrating that the evidence did not support Henderson’s theory ofthe case. B. Henderson argues thatthe prosecutor committed additional misconduct by coercing Shamo into testifying. Because Henderson cannot assertthis issue on Shamo’s behalf, we disagree. An aggrieved partywho is entitled to appeal is a partywhose personal right or pecuniary interests have been affected. State v. Taylor, 150 Wn.2d 599, 603, 80 P.3d 605, 607 (2003). “Fifth Amendment immunity is a personal right ofthe witness and cannot be claimed bythird parties.” Seventh Elect Church in Israel v. Rogers, 34 Wn.
7No. 75510-2-1/8

App. 91, 95-96, 660 P.2d 290 (1983) (citing Rogers v. United States, 340 U.S. 367, 71 S. Ct. 438, 95 L. Ed. 344 (1951)). Henderson claims that Shamo was coerced into testifying. The right to assert a privilege belongs to the witness alone. Even though Shamo did notwant to testify, and
was threatened with contempt, he did testify in Henderson’s trial. Because Henderson cannot appeal on behalfof Shamo, this argument fails. C. Henderson argues thatthe prosecution improperlywithheld evidence, constituting a Bradyviolation. Bradyv. Maryland, 373 U.S. 83, 83S. Ct. 1194, 10 L. Ed. 2d 215 (1963). We disagree. We review Brady claims de novo. State v. Davila, 184 Wn.2d 55, 74, 357 P.3d 636 (2015). “Suppression bythe prosecution of evidence favorable to an accused upon requestviolates due process where the evidence is material eitherto guilt orto punishment, irrespective ofthe good faith or bad faith ofthe prosecution.” Brady, 373 U.S. at 87. To establish a Bradyviolation, the defendant must establish that: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching, (2) the evidence must have been suppressed bythe State, eitherwillfully or inadvertently, and (3) the evidence must be material. Davila, 184 Wn.2d at 69. Here, Henderson contends thatthe Brady violation stems from the content oftrial testimonythatwas not previously disclosed to the defense. Specifically, Shamo testified that he picked up the screwdriverthatwas in the victim’s pocket. Shamo also

8No. 75510-2-1/9

testified that Faissal Adan was present during the investigation. Adan was not called as a witness. Henderson has not demonstrated thatthis evidence was favorable to him, that this evidence was suppressed bythe State, orthatthe evidence was material. Because Henderson has not established any ofthe elements ofa Bradyviolation, Henderson did not establish thatthe prosecution improperlywithheld evidence. D. Henderson argues that cumulative errorviolated his constitutional rightto a fair trial. We disagree. “Cumulative error may call for reversal, even if each errorstanding alone would be considered harmless.” Thorgerson, 172 Wn.2d at454. The doctrine does not apply, however, “where the defendantfails to establish how claimed instances of prosecutorial misconduct affected the outcome ofthe trial or how combined claimed instances affected the outcome ofthe trial.” Thorgerson, 172 Wn.2d at454. Here, Henderson has not demonstrated the prosecutor’s comments affected the outcome ofthe trial. Henderson cannot assert a claim for Shamo’s alleged coerced testimony. Finally, Henderson has not demonstrated thatthe prosecution withheld evidence. Because Henderson has not established errors in these instances, or established howthese claimed instances affected trial, his argumentfor cumulative
errorfails.

9No. 75510-2-1/10

We 

### affirm.

WE CONCUR:



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