# l I FILED FEBRUARY 

### 9, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III 

# COURT OF APPEALS, DIVISION 

# III, STATE OF WASHINGTON STATE OF WASHINGTON, Respondent,


### v. DON ARTHUR MOORE, Appellant. ) ) ) ) ) ) ) ) ) ) No. 32925-9-111
ORDER GRANTING MOTION FOR RECONSIDERATION AND WITHDRAWING OPINION

The court has considered appellant's motion for reconsideration of our opinion filed on December 15, 2016, and is ofthe opinion the motion should be granted. THEREFORE, IT IS ORDERED the motion for reconsideration is granted. IT IS FURTHER ORDERED that the opinion filed on December 15, 2016, shall be withdrawn and a new opinion shall be filed this day. PANEL: Judges Lawrence-Berrey, Fearing and Korsmo FOR THE COURT: GEORGEFING CHIEF JUDGE

### FILED FEBRUARY 9, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE STATE OF WASHINGTON, Respondent,
v. DON ARTHURMOORE, Appellant. ) ) ) ) 

### ) ) 

### ) ) ) No. 32925-9-111

UNPUBLISHED OPINION

LAWRENCE-BERREY,

### J.

- DonArthurMoore appeals his conviction for first degree murder and one ofhis sentence enhancements. He argues: (1) his right to a public trial was violated because thejuror seating charts that documented venirejuror strikes
were not readily available to the public, (2) the trial court erred in giving a first aggressor instruction, (3) he received ineffective assistance ofcounsel, and (4) he was improperly sentenced to a firearm enhancementwhen thejuryreturned two deadly weapon special verdicts. Finding no error, we affirm.

# l l I I 

# 1

·I·., '

# l I No. 32925-9-III State 

### v. Moore
FACTS In late December 2012, Moore asked Bruce Molony to live at his rural home near Riverside, Washington, so his personal belongings would be safe while he was out of town for an extendedperiod. In early March 2013, Moore returned. After some time, he beganto notice that items were missing from his home. Moore decided thatMolony had taken the items. OnApril 11, 2013, Moore wentto the Okanogan County Sheriffs Office where he spoke with Deputy Dennis Irwin. Moore told Deputy Irwinthat Molony hadrecently watched his property for a few months and when he returned he noticedthat several scrap items were missing. Moore told Deputy Irwin he believed Molony hadtakenthose items. On April 12, Moore gave Detective Irwin additional information. The next day, Deputy Irwin told Moore he did notthen have probable cause to arrest Molony for theft. Deputy Irwin also told Moore he would be out ofthe office for a few days, but assured Moore he would resume the investigation upon his return. Moore told Deputy Irwin he had considered confronting Molony, but Molony was armed and someone might get shot. On April 19, Moore visited two friends, EdwardMcIntyre and Ronald Skogstad. McIntyre heard Moore say about Molony, I'llkill the son ofa bitch. Skogstad also testified that Moore saidhe was going to kill Molony. OnApril 20, Moore learnedhe was missing a clutch. He then armed himselfwith
a gun and drove to where Molony lived. The only living witness to the events at Molony's residence is Moore.
2

### No. 32925-9-111 State v. Moore


### Moore gave various statements to law enforcement. Details ofhis various statements were inconsistent. He also testified at trial. The statements and testimony all involved a central narrative: He intended to confront Molony about the missing clutch. Butwhen he confronted Molony about the clutch, Molony feigned confusion and then attacked Moore with a rock or a knife. While being attacked, Moore drew his gun and shot Molony at close range several times, and then stabbed Molony several times. Butthe physical evidence contradicted Moore's narrative: The physical evidence supported the State's argument that Moore killed Molony from a distance. Afterkilling Molony, Moore got his car stuck in the driveway. Afterthat, Moore exited his car and cut himselfwith his own knife to support a claim ofself-defense. The physical evidence also supported the State's argument that Moore then used his own knife to stab a lifeless Molony several times, planted his knife near Molony's dead body, and planted his knife sheath in Molony's backpocket. In addition to the physical evidence, the State also presentedthejurywith a recordedjail telephone call between Moore and Skogstad. In that call, Skogstad said he recalled Moore saying he was going to kill Molony. Moore, knowing the call was recorded, warned his friend to be careful what he said. Moore then claimed he had earlier said he would kill Molony if 

### Molony pulled a gun first. Skogstadresponded with confusion, and then said, "'Youtold me a couple times you were gonna offhim
....' " Report ofProceedings (RP) at 322. Again, Moore warned his friend not to talk like that. Skogstad then responded, "'Okay. That's right. Sorry.'" RP at 323.
3

### No. 32925-9-III State v. Moore
Procedural facts 

### Duringjury selection, one ofthe potentialjurors said he could not serve on a capital case because he was opposedto the death penalty. The State accurately responded that this was not a capital case. Moore did not objectto this response. Counsel exercised their for-cause challenges andperemptory challenges in open court. Their challenges were memorialized on a four-page seating chart. The chart shows the venirejurornames, the venirejurornumbers, which venirejurorswere excused or struck, and whichparty struck them. During trial, Moore elicited evidence ofhis peaceful characterthroughhis friend Skogstad. In rebuttal to that testimony, the State asked Skogstad ifMoore had ever acted violently toward him. Skogstad admitted Moore once grabbed his throat for no apparent
reason. Moore did not object. Moore proposed and received a self-defensejury instruction. The State proposed
a first aggressor instruction. Mr. 

### Moore did not object to that instruction, and the court gave it. The State also proposed and received an instruction for second degree murder. Mr. 

### Moore did not object, nor did he request an instruction for manslaughter. Thejury instructions included one special verdict form, one for the charged deadly weapon enhancement and the other arguably for the charged firearm enhancement. The jury found Moore guilty offirst degree murder, and answered ''yes" on the special verdict form relative to the enhancements. Clerk's Papers (CP) at 23. Moore appealed.

4No. 32925-9-111 State v. Moore
Additionalevidence on review Moore's appellate counsel could not obtain a docket number for the seating chart. Moore brought a motion to add evidence to establishthat the seating chartwas notpart of the record. The State then askedthe clerk's office to look for the seating chart. Eleven days later, butmore than 12 months after trial, the clerk's office provided a copy ofthe seating chart to the State, and explainedthe chart had been misplaced in a clerk's box, separate from other documents relating to Moore's case. ARGUMENT A. PUBLICTRIAL Moore contends his right to a public trial was violated. He argues the seating chart
was not entered into the public record at the conclusion ofthe case, andrecent case law mandates thatthese types ofwritten documents mustbe available for public viewing or a
newtrial is required. A criminal defendant's right to a public trial is found in article I, section 22 ofthe Washington Constitution and the Sixth Amendmentto the United States Constitution. Both provide a criminal defendant the right to a public trial by an impartialjury. The state constitution also provides that "[i]ustice shall be administered openly," which grants the public an interest in open, accessible proceedings, similarto rights granted in the First Amendment to the United States Constitution. WASH. CONST. art. I, 

### § 1 O; State v. Lormor, 172 Wn.2d 85, 91, 257 P.3d 624 (2011). Whether an accused's constitutional



### 5No. 32925-9-111 State v. Moore public trial right has been violated is a question oflaw that we review de novo. State v. Easterling, 157 Wn.2d 167, 173-74, 137 P.3d 825 (2006). Itis clear that for-cause and peremptory challenges implicate the public trial right. State v. Love, 183 Wn.2d 598, 605, 354 P.3d 841 (2015), cert. denied, 136 S. Ct. 1524, 194 L. Ed. 2d 604 (2016). In Love, the defendant argued silent peremptory challenges,
even documented by ajuror strike sheet, violated his right to a public trial. In disagreeing, the Love court noted: [T]he public had ample opportunity to oversee the selection ofLove'sjury because no portion ofthe process was concealed from the public; nojuror was questioned in chambers. To the contrary, observers could watch the trialjudge and counsel ask questions ofpotentialjurors, listen to the answers to those questions, see counsel exercise challenges at the bench and on paper, and ultimately evaluate the empaneledjury. The transcript of the discussion about for cause challenges andthe struck juror sheet showing theperemptory challenges are bothpubliclyavailable. Id. at 607 (emphasis added). The Love court held that written peremptory challenges "are consistent with the public trial right so long as they are filed in the public record." Id. The facts here are similarto the facts inLove. In both cases, no processes were concealed from the public. Observers could watchthe entire process and evaluate the process from startto finish, including whichvenirejurors were excused, which were struck, and which were empaneled asjurors. Buthere, the documented record ofthe written peremptory challenges was notreadily available to the public. The relevant posttrial record establishes that the seating chartwas not scanned into the electronic filing system for more than one year after Moore's trial. Itwas not until

6

# I I 1 1 

# l \ No. 32925-9-III State v. Moore
Moore's counsel brought a motion to add evidence to the appellate recordthatthe State learned ofthis problem. The State e-mailedthe elected county clerk and asked herto look for the seating chart. Eleven days later, the elected county clerk responded to the State. In herresponse, she provided a copy ofthe seating chart to the State, and explained the chart was found in a boxbelongingto one ofher deputy clerks, separate from documents related to Moore's case. Because the seating chart was not scanned and made part ofthe clerk's file for
over one year, Moore argues it was not available for public view and his right to a public trial was violated. The State, citing RCW 36.23.030, argues the seating chart is not required to be assigned a docket number, so the lack ofa docket number is not determinative. The State further argues that Moore fails to showthatthe seating chart
was not publically available. We resolve this issue in a practical manner consistent withthe purposes and practicalities ofpublic trial rights. At all times, the public couldview thejury selection process that occurred in open court. Afterthe notations onthe seating chart were made, a member ofthepublic could have requested and would have eventually received a copy of the seating chart. Here, once tasked with looking for the seating chart, the clerk's office located it in 11 days. Ifpublic trial rights required same-day receipt ofrequested peremptory challenge information, a copy ofperemptory challenge discussions-which mighttake several days to transcribe-wouldbe insufficientto satisfy a defendant's right to a public trial. ButLove implies thatthe eventual public availability ofsuch a transcript
7

# I 1 1 No. 32925-9-111 

### State v. Moore
is sufficient. 

### Love, 183 Wn.2d at 607. By extension, a temporarily misplaced written record ofperemptory challenges does not render an openproceeding closed. In reaching this conclusion, we note thatthe seating chartwas always in the clerk's office, albeit misplaced, and there was no court action thatprevented a requesting party from obtaining
a copy ofthe chart. B. FIRSTAGGRESSORINSTRUCTION Moore argues the trial court erred when it gave a first aggressor instruction. Moore did not objectto this instruction at trial. He argues thatthe practical effect ofa first aggressor instruction is to relieve the State ofthe burden ofdisproving self-defense. He argues this instructional error is reviewable by this court because it is a manifest error affecting a constitutional right. 

### See RAP 2.5(a)(3). Moore argues the instruction was given in errorbecause the evidence does not supportthe instruction. 

### Reviewability of unpreservederror This court ordinarily will not review a claim oferror raised for the first time on review unless one ofthree exceptions exist. RAP 2.5(a). One exception is ifthe claim is for a manifest error affecting a constitutional right. RAP 2.5(a)(3). The appellant must demonstrate both that the purported error is ofconstitutional magnitude and that the error is "manifest." 

### State v. Gordon, 172 Wn.2d 671, 676, 260 P.3d 884 (2011). A "manifest"
error is one that is "so obvious onthe record thatthe error warrants appellate review." 

### State v. O'Hara, 167 Wn.2d 91, 100,217 P.3d 756 (2009). Once the defendant has

8

# 1 

# l I 

# l 1 No. 32925-9-111 

### State 

### v. Moore
identified such an error, it is for the State to establishthat the error was harmless beyond
a reasonable doubt. 

### Gordon, 172 Wn.2d at 676 n.2. We note thatMoore has failed to explicitly identify the constitutional right involved. We nevertheless proceed in determining whetherthe alleged constitutional
error ofgiving the first aggressor instruction was obvious onthe record. When a defendant seeks to have ajury instructed on self-defense, the State in tum may seek a first aggressor instruction. Such an instruction informs thejurythat selfdefense is not available ifthejury finds the defendant provokedthe need to act in selfdefense. 

### State v. 

### Bea, 162 Wn. App. 570, 577, 254 P.3d 948 (2011). Because such an instruction relieves the State ofits burden ofprovingthe absence ofself-defense, such an instruction should be given sparingly. 

### Id. at 575-76. A first aggressor instruction is proper where (1) thejury can reasonably determine from the evidence the defendant provoked the fight, (2) the evidence conflicts as to whether the defendant's conduct provoked the fight, or (3) the evidence shows the defendant made the first move by drawing a weapon. 

### State v. 

### Stark, 158 Wn. App. 952, 959, 244 P.3d 433 (2010). In determining whetherthe instruction was properly given, we view the evidence in the light most favorable to the party that requested the instruction. 

### Bea, 162 Wn. App. at 577. The evidence here supports giving the first aggressor instruction. Moore told Skogstad he was going to kill Molony. Physical evidence suggests Molony was several feet away from Moore whenMoore shot Molony. Physical evidence also suggests Moore plantedhis own knife nearMolony's body and his ownknife sheath in Molony's back
9No. 32925-9-111 

### State v. Moore pocket. Although Moore testified Molony provokedthe fight, we mustviewthe evidence in the light most favorable to the State. Viewingthe evidence in this manner, the trial courtproperly gave the first aggressor instruction. Forthis reason also, the alleged error is not obvious onthe record, so we decline to further review it. C. INEFFECTIVE ASSISTANCE OF COUNSEL Moore next contends he received ineffective assistance ofcounsel. He argues his trial counsel was ineffective because (1) he failed to objectto the State's comment during jury selection thatthis was not a capital case, (2) he failed to requestthe trial courtto give
a manslaughter instructionto thejury, and (3) he failed to objectto evidence ofa prior bad act. A criminal defendant has a Sixth Amendmentrightto effective assistance of counsel. 

### Strickland

### v. Washington, 466 U.S. 668, 685-86, 104 S. Ct. 2052, 80 

### L. Ed. 2d 674 (1984). "A claim ofineffective assistance ofcounsel is an issue ofconstitutional magnitude that may be considered for the first time on appeal." 

### State v. 

### Ky/lo, 166 Wn.2d 856, 862, 215 P.3d 177 (2009). The claim is reviewed de novo. 

### State 

### v. Sutherby, 165 Wn.2d 870, 883, 204 P.3d 916 (2009). To establish ineffective assistance ofcounsel,
a defendant mustprove the following two-pronged test: (1) [D]efense counsel's representation was deficient, 

### i.e., it fell below an objective standard ofreasonableness based on consideration ofall the circumstances; and (2) defense counsel's deficient representation prejudicedthe defendant, 

### i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result ofthe proceeding wouldhave been different.

10No. 32925-9-111 State v. Moore
State v. McFarland, 127 Wn.2d 322, 334-35, 899 P.2d 1251 (1995) (citing State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987)). There is a strongpresumption that counsel'sperformance was reasonable. State v. Grier, 171 Wn.2d 17, 42, 246 P.3d 1260 (2011). To rebut this presumption, the defendantbears the burden ofestablishing that no conceivable legitimate tactic exists to explain counsel's performance. Id. 1. Failure to objectduring voir dire Washington has a "long-standing rule that no mention may be made ofsentencing in noncapital cases," and counsel's failure to object falls belowprevailingprofessional
norms. State v. Townsend, 142 Wn.2d 838, 847, 15 P.3d 145 (2001). In response to any mention ofcapital punishment, the trialjudge should state generally thatthejury is notto consider sentencing. State v. Hicks, 163 Wn.2d 477,487, 181 P.3d 831 (2008). Based on that precedent, defense counsel's failure to objectto the State's remarks thatthe case was not a capital case fell below an objective standard ofreasonableness. Nevertheless, Moore cannot show he was prejudiced by his counsel's failure to object. In Townsend, the State informedthejury during voir dire thatthe case was a very serious criminal case that involved a charge offirst degree murder, but the case was not a capital case. Townsend, 142 Wn.2d at 842. The Townsend court heldthat defense counsel's failure to objectto the State's comment did not prejudice the defendant, and thus was not ineffective assistance ofcounsel. 

### Id. at 849. There, the onlyjury issue was premeditation, so the Townsendcourt reviewed the ample evidence ofpremeditation: Townsend brought a gun and had spoken to a friend about "'taking care of" the victim.
11No. 32925-9-111 

### State v. Moore


### Id. at 848. After Townsend shotthe victim, perhaps accidently, a friend said the victim
was still alive and recommended that he and Townsend take the victim to the hospital. 

### Id. Instead, Townsend shotthe victim in the head. 

### Id. at 849. Similarto 

### Townsend, Moore brought a gun to confrontMolony and had earlier told friends he was going to kill Molony. Also, after first shooting Molony at a distance, Moore fired several more shots into Molony and later stabbed him several times. Similar to 

### Townsend, we determine that defense counsel's deficient performance did not prejudice Moore, in light ofthe overwhelming evidence thatMoore did not act in selfdefense. We, therefore, reject Moore's argument that his trial counsel's failure to object to the State's remarks during voir dire constituted ineffective assistance ofcounsel. 

### 2. Failure to requestmanslaughter instruction Where the claim ofineffective assistance ofcounsel is based upon counsel's failure to request a particular instruction, the defendant must showhe was entitled to the instruction, counsel'sperformance was deficient in failing to request it, and the failure to request the instruction causedprejudice. 

### State v. Thompson, 169 Wn. App. 436,495,290 P.3d 996 (2012). A defendant is entitled to a lesser included offensejury instruction iftwo conditions are met. 

### State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). "First, each ofthe elements ofthe lesser offense mustbe a necessary element ofthe offense charged." 

### Id. "Second, the evidence inthe case must support an inference that [only] the lesser crime was committed." 

### Id. at 448. The evidence must affirmatively
12No. 32925-9-111 

### State 

### v. Moore support the defendant's theory ofthe case; it is not enough thatthejury might disbelieve the evidence pointingto guilt. 

### State v. 

### Fernandez-Medina, 141 Wn.2d 448,456, 6 P.3d 1150 (2000). Manslaughter can be a lesser included offense offirst degree murder. 

### State 

### v. Warden, 133 Wn.2d 559, 562-63, 947 P.2d 708 (1997). A defendant who reasonably believes he is in imminent danger and needs to act in self-defense butnegligently or recklessly uses more force than necessary is entitled to an instruction on manslaughter. 

### State v. Schaffer, 135 Wn.2d 355,358, 957 P.2d 214 (1998). Moore's own testimony undermines his assertion that he was entitled to an instruction on manslaughter. He testified he sawMolony armed with a knife, which he first thought was a gun. Hetestified he was scared, he felt threatened, and he thought he
was going to be killed. [State:] And so ifhe was moving while you were stabbing him, did he move off-offofhis stomach? Didhe expose any area otherthan his back? [Moore:] I have no idea, sir. That he was moving which is why I continued the attack. Again, you do not stop an attack when someone is trying to take you out. Youtake them out first. Ifyou stop, you are very likely to be the one who does not walk away. RP at 853. Moore's testimony is notthat he negligently orrecklessly used more force than was necessary to repel an attack. Moore testified he 

### intentionally killed Molony in self-defense. Becausethe evidence does not affirmatively support a finding of manslaughter, Moore was not entitledto a manslaughter instruction. We conclude defense counsel was not ineffective for failing to request such an instruction.
13

### No. 32925-9-111 

### State v. Moore
3. Failure to object toprior badact evidence Evidence ofapertinenttrait ofa defendant's character is not admissible for the purpose ofproving action in conformity with that character. ER404(a). Exceptions to the rule exist. One exception is whenthe State elicits evidence to rebut to defendant's character evidence. ER404(a)(l). When character evidence is admissible, it may be made on cross-examination by testimony ofspecific instances ofconduct. ER405(a). Moore elicitedtestimony ofhis character from his friend Skogstad: [Defense counsel:] So----so [Mr. 

### Moore] is your friend. You'd admit you know himpretty well. [Skogstad:] Yeah. [Defense counsel:] Did you know his personalitypretty well? [Skogstad:] Yeah. [Defense counsel:] How would you describe his personality? [Skogstad:] Decent. [Defense counsel:] Okay. And, now, you're saying you didn't think [Moore would kill Molony]? [Skogstad:] Nah. [Defense counsel:] Why did you say that? [Skogstad:] Because I can'tlook at a friend who says somethin' like that-youjust can'tbelieve somethin' like that. I didn't think it was gonna happen-

...honest-honestly with all my heart, I did not think it was gonna happen. RP at 326-28. In rebuttal to this, the State asked: [State:] Didthe defendant have somewhat ofatemper? [Skogstad:] Notthat I saw. [State:] Was there a priortime where he grabbed ahold ofyour throat one time? [Skogstad:] Yeah, but that was-we'dbeen out on a road trip. We went and looked at a car and somethin' like that, him and I. He didn'thave
14No. 32925-9-111 

### State v. Moore wheels, so we took my pickup. And-and I don'tknow whathappened. It just-out ofthe clear blue, he reached out and grabbed my throat withhis right hand, and 

### I knocked it offwith myright hand andtold him he better not do that again. Butthat was the end ofthat. [State:] Thatwas not expected? [Skogstad:] No. I have no idea where it even came from. RP at 329. Because the State elicited the above testimony to rebutthe character evidence Moore himselfhad introduced, the rebuttal questions were proper. We conclude Moore did notreceive ineffective assistance ofcounsel when his attorney failed to object to the State'sproperrebuttal questions. D. FIREARMENHANCEMENT Moore argues thejuryreturned a special verdict for two deadly weapon enhancements, but his sentence was erroneously enhanced with a deadly weapon enhancement and a firearm enhancement. Moore contends the firearm enhancement must be vacated. Erroneous sentences may be challenged for the first time on appeal. 

### State v. Bahl, 164 Wn.2d 739, 744, 193 P.3d 678 (2008). A sentencing court may not exceed the authority issuedto it by thejury's determination, such as by imposing a sentence in violation ofthe defendant's Sixth Amendment right to have ajury decide a sentencing enhancement. 

### State v. Bainard, 148 Wn. App. 93, 101, 199 P.3d460 (2009) (citing 

### Apprendiv. New Jersey, 530 U.S. 466,490, 120 S. Ct. 2348, 147 

### L. Ed. 2d435 (2000); 

### Blakelyv. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 

### L. Ed. 2d 403 (2004)). We review this constitutional challenge de novo. 

### Id.

15No. 32925-9-111 State v. Moore
A deadly weapon enhancementrequires thejuryto find thatthe defendant used a deadly weapon, as defined by statute, inthe commission ofthe charged crime. RCW 9.94A.825. A firearm enhancementrequires thejuryto find that a firearm was used inthe commission ofthe charged crime. RCW 9.94A.533(3); RCW 9.41.010. Ourreview ofthe record confirms the State chargedMoore with a deadly weapon enhancement and a firearm enhancement. Atthe conclusion ofthe case, the trial court providedthejurywith instructions, including a special verdict form. The special verdict form was worded unconventionally, but the meaning is plain: QUESTION 1: Was the defendant armed with a deadly weapon that was [a] knife having a blade longerthan three inches, atthe time ofthe commission ofthe crime? ANSWER: YES (Write "yes" or "no") QUESTION 2: Was the defendant armedwith a deadly weapon that was apistol, revolver, or any other firearm, atthe time ofthe commission ofthe crime? ANSWER: YES (Write "yes" or "no") CP at 23 (emphasis added). Question 1requires thejuryto make a finding with respect to a deadly weapon enhancement, and question 2 requires thejuryto make a finding with respect to a firearm enhancement. Thejury answered yes to each question. The trial courtthereafterproperly sentenced Moore consistentwiththese two findings. We find no
error in this. E. STATEMENT OF ADDITIONAL GROUNDS FORREVIEW (SAG) ARGUMENTS Mr. Moore lists seven grounds for reversal in his SAG arguments. Many ofhis grounds have multiple subarguments, which we identify with lettered subparts. Rather

16No. 32925-9-111 State v. Moore
than take each listed argument and subargument inthe orderpresentedby Mr. Moore, we organize the SAG issues into subject matter. 

### SAG ISSUE 

### 1: PROSECUTORIAL MISCONDUCT Mr. Moore contends the State committedprosecutorial misconduct in three distinct ways. Specifically, Mr. Moore argues the State committedprosecutorial misconduct by (1) using the terms "murder" and ''victim"throughouttrial, (2) making arguments during closing that contradicted his testimony, and (3) eliciting perjury from Mr. Skogstad. To prevail on a claim ofprosecutorial misconduct, a defendant must showthat in the context ofthe record and all ofthe circumstances ofthe trial, the prosecutor's conduct
was both improper andprejudicial. State v. Thorgerson, 172 Wn.2d 438,442,258 P.3d 43 (2011). Misconduct is prejudicial ifthere is a substantial likelihood it affected the verdict. State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012). However, a defendant waives any error by failing to object to the prosecutor's improper conduct, unless that conductwas so flagrant and ill-intentionedthat an instruction could nothave curedthe resulting prejudice. Id. at 760-61. In the context ofclosing arguments, the prosecutorhas "'wide latitude in making arguments tothejury and prosecutors are allowedto draw reasonable inferences from the evidence."' State v. Fisher, 165 Wn.2d 727,747,202 P.3d 937 (2009) (quoting State v. Gregory, 158 Wn.2d 759, 860, 147 P.3d 1201 (2006)).

17No. 32925-9-111 State v. Moore


### 1. Ground #1: Use of terms "murder" and "victim " throughout trial A prosecutor does not engage in misconduct by arguing a position supportedby the evidence. State v. McKenzie, 157 Wn.2d 44, 54, 134 P.3d 221 (2006). Similarly, whenthe evidence presented in a criminal trial indicates thatthe defendant is a particular type ofcriminal, the prosecutormay label the defendant, including using terms such as "murderer." Id. at 57. Here, the Statepresented evidence that Mr. Molony was a victim and that Mr. Moore was a murderer. There was noprosecutorial misconduct. 2. Ground#5A: ContradictingMr. Moore's testimony during closing As discussed in the main opinion, the State had ample physical evidence to support its version ofevents that it argued to thejury. Theprosecutorwaspermittedto argue the State's theory ofthe case andwas not limited byMr. Moore's testimony, even though Mr. Moore was the only living witness ofMr. Molony's killing. 3. Ground#7B: Elicitingperjury from Mr. Skogstad The assertedperjury relies on matters outside the trial record. Mr. Moore cites to discovery documents that showMr. Skogstad made two slightly different statements than howhe testified during trial. The substance ofthe statements was the same: in all ofthe statements, Mr. Skogstad said heheard Mr. Moore sayhe would shoot (ormurder) that "mother[],"referring to Mr. Molony. IfMr. Moore wishes to discuss matters outside the record, he mustpresentthem in a personal restraintpetition. McFarland, 127 Wn.2d at 335.

18No. 32925-9-111 

### State v. Moore
SAG ISSUE 2: Ground #2A: IMPROPERADMISSION OF EVIDENCE Mr. Moore contends the trial court erred in admitting the knife and a BB gun. However, Mr. Moore did not objectto these items being admitted. Proper objection must be made at trial to perceived errors in admitting evidence and failure to do so precludes raising the issue on appeal. 

### State v. 

### Guloy, 104 Wn.2d 412,421, 705 P.2d 1182 (1985). 

### SAG ISSUE 

### 3: INEFFECTIVEASSISTANCE OF COUNSEL Mr. Moore contends he received ineffective assistance ofcounsel, and makes five arguments in this vein. The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to effective assistance ofcounsel. 

### Strickland, 466 U.S. at 685-86. "Aclaim ofineffective assistance ofcounsel is an issue of constitutional magnitude that may be considered for the first time on appeal." 

### Ky/lo, 166 Wn.2d at 862. The claim is reviewed de novo. 

### Sutherby, 165 Wn.2d at 883. To establish ineffective assistance ofcounsel, a defendant mustprove the following twoprongedtest: (1) [D]efense counsel's representation was deficient, 

### i.e., it fell below an objective standard ofreasonableness based on consideration ofall the circumstances; and (2) defense counsel's deficient representation prejudicedthe defendant, 

### i.e., there is a reasonable probability that, except for counsel's unprofessional errors, the result ofthe proceeding would have been different. 

### McFarland, 127 Wn.2d at 334-35 (citing 

### Thomas, 109 Wn.2d at 225-26). There is a strong presumption that counsel's performance was reasonable. 

### Grier, 171 Wn.2d at 42.

19

### No. 32925-9-111 State v. Moore
To rebut this presumption, the defendant bears the burden ofestablishingthat no conceivable legitimate tactic exists to explain counsel's performance. Id. 

### 1. Grounds #3A & #3C: Failure to request a CrR 3.5 hearingor requesta trial continuance Mr. Moore asserts his attorney provided ineffective assistance by not requesting a hearing to challenge the admissibility ofhis statements to the police. He implies that his mental capacity was so deficient atthe time ofthe killing that his statements to police
were not voluntary. He similarly asserts his attorney provided ineffective assistance by not requesting a trial continuance to address his mental health. The record shows that the trial court ordered a medical examination that established thatMr. Moore was competent to proceed to trial. There was no need for defense counsel to request a trial continuance. Moreover, defense counsel chose a trial strategy ofself-defense as opposed to diminished capacity. Mr. Moore's statements to police were consistentwith self-defense. Because allowing this evidence to be presentedto thejurywas consistentwith Mr. Moore's defense and thus a legitimate trial tactic, defense counsel did notperform deficiently. 

### 2. Ground#3B: Failure to investigate diminishedcapacitydefense Mr. Moore asserts his attorney provided ineffective assistance by not investigating his prior mental diagnoses, including posttraumatic stress disorder. Again, defense counsel soughtto establish self-defense. Defense counsel might have determinedthat a

20No. 32925-9-111 

### State v. Moore
self-defense argument would be weakened by introducing evidence ofdiminished capacity. Because not introducing evidence ofmental instability was a legitimate trial tactic, defense counsel did notperform deficiently. 3. 

### Ground#2B: Failure to object toprosecutorparadingknife andgun infront of thejury Mr. Moore next argues that counsel provided ineffective assistance by not objecting to the prosecutor "parading"the knife and BB gun in front ofthejury. There is
no evidence in the record to supportthis assertion. IfMr. Moore wishes to discuss matters outside the record, he mustpresentthem in a personal restraintpetition. 

### McFarland, 127 Wn.2d at 335. 4. 

### Ground#5B: Failure to objectduringprosecutor's closing argument Mr. Moore next argues that counsel provided ineffective assistance by not objecting to the prosecutor's statements during closing that were inconsistentwithMr. Moore's testimony ofthe killing. As discussed above, defense counsel did not have grounds to object given thatthe prosecutor was properly arguing from the forensic and physical evidence already present in the case. 5. 

### Ground# 7C: Failure to object to Mr. Skogstad'spurported perjurious testimony Mr. Moore next argues that counsel provided ineffective assistance by not objecting to the allegedperjury ofMr. Skogstad. The allegedperjury requires a comparison ofthe statement or statements Mr. Skogstad made to law enforcement and his

21No. 32925-9-111 State v. Moore testimony at trial. A comparison ofthe statements shows a slightly different phrasing of Mr. Moore's threat to kill Mr. Molony. Nevertheless, the gravamen ofthe threat is identical. As we statedpreviously on this point, because Mr. Moore's argument relies on evidence outside ofthe trial record, ifMr. Moore wishes topursue this argument, he must do so through the personal restraint petitionprocess. SAG ISSUE 4: Ground #4: MOTIONTO DISMISS FORSPEEDY TRIAL VIOLATIONS Mr. Moore argues thatthe trial court failed to dismiss his case for speedy trial violations. The motion to dismiss was set for August 28. During the motion, the trial court asked when Mr. Moore's speedy trial date would expire. The State responded that speedy trial would expire on September 22. Defense counsel apparently agreed, because he did not contestthe date provided by the State. The parties agreed to move the trial commencement date to September 9, and the record establishes that date as the actual commencement date ofthe trial. Becausetrial commencedpriorto September 22, the trial court did not violate Mr. Moore's right to a speedy trial. But even ifthe September 22 date was not accurate, Mr. Moore waived his challenge by failing to contest the date provided by the State. Moreover, toward the end ofthe August 28 hearing, the trial court inquired ofMr. Moore whetherhe understood that the new trial date ofSeptember 9 did not violate his speedy trial right. Mr. Moore saidhe understood and agreed, and initialed the orderresetting the trial date.

22No. 32925-9-111 State v. Moore
SAG ISSUE 5: Ground #6: OMNIBUS HEARING Mr. Moore argues thatthe omnibus hearings resulted in the parties exchanging no information. He acknowledges there is no current record ofthe omnibus hearings. IfMr. Moore wishes to argue matters outside the current record, the properprocedure is to bring
a personal restraint petition. McFarland, 127 Wn.2d at 335. SAG ISSUE 6: Ground #7A: STATE WITHHELD EXCULPATORY EVIDENCE Mr. Moore contends the State withheld exculpatory evidence from him. When interviewed by law enforcement, Mr. Moore said he heard thatMr. Molony wantedto kill him. In his argument here, he contends the State had an obligationto investigate whathe told law enforcement, andthe State's failure to investigate deprived him ofa fair trial. The State has an obligationtopreserve and disclose evidence to the defendant when the evidence is material to a defendant's guilt or innocence. State v. Judge, 100 Wn.2d 706, 716, 675 P.2d 219 (1984). Althoughthis obligation requires law enforcementto preserve the evidence that comes into its possession, it does not require law enforcementto search for exculpatory evidence. Id. at 717. IfMr. Moore learned from otherpeople that Mr. Molony had threatened him, Mr. Moore shouldhave advised his attorney so his attorney could have contactedthese otherpeople andpotentially have them testify. F. APPELLATE COSTS Moore asks this court to deny the State an award ofappellate costs should it prevail on appeal. By general order adopted June 10, 2016, we require such a motionto
23No. 32925-9-111 State v. Moore
be contained in the appellant's opening briefor filed within 60 days thereof. Moore's opening briefwas filed several months before we adopted the June 2016 order. Noting that he could notpossibly comply with the order, Moore cites RAP 1.2(c) and requests
we waive the time requirements ofthe order so to best serve the ends of justice. Waiver ofthe time requirement in this situation would serve the ends of justice, so we agree to waive them and considerMoore's request. In Moore's certified report as to continued indigency, Moore notes he has property worth $47,000. We conclude Moore is not indigent and deny his request for waiver of appellate costs. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public recordpursuant to RCW 2.06.040.
Lawrence-B7rri°iJ. ( WE CONCUR: 

## j

Fearing, C

### .J.

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