IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
THE STATE OF WASHINGTON, No. 86559-5-I
Respondent,
v. UNPUBLISHED OPINION
BRYSON THOMAS MORGAN,
Appellant.
BOWMAN, A.C.J. — Bryson Thomas Morgan appeals his jury conviction for
first degree murder with a firearm enhancement. Morgan argues (1) the trial
court erred when it denied his peremptory challenge under GR 37, (2) it erred by
admitting irrelevant prejudicial evidence, (3) the prosecutor improperly elicited
testimony about and commented on Morgan’s right to pre-arrest silence, (4)
insufficient evidence supports his murder conviction, and (5) cumulative error
deprived him of his right to a fair trial. We affirm.
FACTS
At about 4:00 a.m. on January 14, 2021, Trader Joe’s assistant manager
Truston Silva was opening the store for arriving staff at the Capitol Hill location in
Seattle. He found a person, later identified as Morgan, passed out in the driver’s
seat of a Toyota sedan at an intersection stoplight. The car was running. Silva
knocked on the window a couple of times but Morgan did not wake up. Silva
noticed that the front passenger seat of the car “appeared to be wet” and that the No. 86559-5-I/2
liquid was “in the shape of . . . or in the outline of a person’s body.” He also saw
a “high-end designer bag” in the back seat with women’s clothing on top of it.
Silva called 911 and Seattle police officers arrived shortly after.
Seattle Police Officer Robert Bulloch and his partner Officer Christopher
McMahon responded to the 911 call. They walked up to the car, and Officer
Bulloch shined his flashlight into the driver’s compartment. They saw Morgan in
the driver’s seat unresponsive. The officers opened the driver’s door and woke
Morgan, who “seemed . . . in shock,” then removed him from the from the car.
Morgan had blood and mud on his clothes and shoes but was not injured or
bleeding. And he had what appeared to be brain matter on his clothes. When an
officer asked, “So none of that blood in that car is from you,” Morgan replied, “No,
sir.” Morgan insisted he was fine but gave officers no other information about
how he ended up in the intersection covered in blood.
Officers saw a “large amount” of “blood or some sort of red liquid sprayed
or splattered throughout” the car. They found two spent shell casings in the front
passenger seat and a Glock-style pistol with “obliterated” serial numbers in the
center console. The car did not have license plates, but officers found a
temporary plate under a seat.1 They also found more bullet casings, a fired
bullet, a wallet with Morgan’s identification, his passport, suspected
methamphetamine, and a cell phone throughout the car.
At around 5:30 that same morning, Wesley Hiserman was on his morning
run in Seward Park when he found the naked body of a woman. Much of the
1 The officers also noticed tape residue on the rear window where the temporary
license plate had been.
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woman’s face was “missing” and there was a lot of blood on and around her.
Hiserman called 911 and Seattle police responded.
Between the park’s paved path and where Hiserman found the woman’s
body by the lakeshore, officers saw “a path carved in the mud as if someone had
been dragged through it.” They also found a black sock in the “drag marks”
closest to the paved path. Officers recovered a bullet and bullet fragments from
under her body. Near her body, they found an unfired bullet, a piece of plastic
inside balled-up clothing that appeared to be car trim, and another black sock.
There was a third black sock found between the victim’s legs that appeared to
match the sock found near the paved path.
The woman was later identified as Autumn Young. An autopsy confirmed
that Young died of several gunshots to the head. There were five entrance
wounds on the left side of her head and five exit wounds on the right side of her
head. The bullets all travelled from left to right and were fired from within two to
three feet of Young. Forensic examiners determined that the bullets found near
Young’s body were fired from the same gun found in the center console of
Morgan’s car. And they matched the DNA blood samples found on Morgan and
in his car to Young. Finally, detectives determined that the cell phone in
Morgan’s car belonged to Young. Young’s phone records showed that she made
a call from her phone at 1:54 a.m. on January 14, 2021.
Morgan’s cell phone records showed that his phone travelled from north
Seattle to Seward Park between 1:30 and 3:24 a.m. on January 14. The phone
remained in Seward Park for about 12 minutes. At 3:32 a.m., Morgan called his
3 No. 86559-5-I/4
father, Thomas Morgan. On the call, his father heard water in the background.
Morgan sounded “really distraught” and told his father, “I didn’t sign up for this.”
But he assured his father that he was okay and did not want him to come get
him. By 3:59 a.m., the phone travelled to Capitol Hill.
On January 20, 2021, the State charged Morgan with first degree murder
of Young with a firearm enhancement. The case went to jury trial in January
2024. During voir dire, Morgan’s attorney and juror 82 had the following
exchange:
[DEFENSE COUNSEL]: . . . . Juror 82, tell me a little bit about your thoughts about serving on this jury. JUROR NO. 82: I’m not excited. [DEFENSE COUNSEL]: You’re not excited. Yeah. You don’t look excited. Can you tell me why? JUROR NO. 82: It’s very serious. It’s heavy, a criminal trial. [DEFENSE COUNSEL]: Yeah. I mean, that was one of the questions, too, on [the juror questionnaire] was, does anyone have any moral or religious or philosophical issues judging someone or making decisions on a jury. I don’t know, did you check “yes” to that? JUROR NO. 82: No. I consider it a civic responsibility, but it’s not one that I have to be excited about. [DEFENSE COUNSEL]: Sure. Okay. And putting that aside, obviously, you not being excited, I mean, do you feel like this is a case that you would be a good juror on? JUROR NO. 82: I — I don’t have any specific objections other than maybe having difficulty giving credibility to witnesses who are heavy drug users — [DEFENSE COUNSEL]: Okay. JUROR NO. 82: — if that was to come up. I’m not really sure in what sense drugs are involved in this case. [DEFENSE COUNSEL]: Yeah. I know you don’t know anything really, but just kind of what little you do know, I’m trying to get at if this would be a tough case for you to sit on. JUROR NO. 82: I think only in the sense that it’s a murder case.
4 No. 86559-5-I/5
[DEFENSE COUNSEL]: Okay. But it sounds like you would take that role seriously. JUROR NO. 82: Yes.
During peremptory challenges, Morgan moved to strike juror 82. The
court noted that the juror “identifies as BIPOC”2 and raised a GR 37 objection.
Morgan’s counsel explained that the juror was
just simply not excited about being on the jury, didn’t seem happy to want to do it, but more importantly, from what we’re concerned, is that she indicated she would have trouble giving credibility to anyone who is a drug user or uses drugs, and I have some concerns that that may impact her . . . [.] [T]here could be evidence, if my client testifies, that there was drug use. She indicated that she would . . . not give him credibility because of that.
The court denied the peremptory challenge. It explained that it was “going
to deny the challenge for the following reasons”:
This witness did say that she was not excited to serve, but there were other jurors that were present in the room that also had similar feelings. Regarding the credibility of heavy drug users, I wrote that in my notes as well, so I do accept defense counsel’s representation that she did say that she would have trouble with the credibility of a heavy drug user; however, there was no follow- up questions about — and especially, this is key in my analysis, is the State had questioned many individuals about how to assess the credibility of someone while testifying, and there was no follow-up questions of her at all about whether that was tied to whether someone was intoxicated at the time that they perceived an event and whether they can accurately relay . . . information that happened while they were intoxicated versus just a complete dislike for individuals that were heavy drug users. No follow-up questions were done on that issue as to her initial statement, and I do find, under GR 37, that an objective observer could view that the reason why this juror is being struck is due to her ethneticity (sic) so I am denying the challenge.
At trial, the State called several witnesses, including police officers who
responded to the scene, several detectives, and forensic experts. Morgan’s
2 Black, Indigenous, and People of Color. Morgan is white.
5 No. 86559-5-I/6
roommate, Alexander Gonzalez, testified about his friendship with Morgan and
his observations of the brief relationship between Morgan and Young in the days
before her murder. He also told the jury that Morgan owned and regularly carried
a gun. Morgan’s father testified about the phone call he received from Morgan
after 3:00 a.m. on January 14, 2021. And Seattle Police Detective George Abed
testified that the firearm found in the center console of Morgan’s car had
“obliterated” serial numbers, making it illegal and untraceable.
Morgan also testified at trial. He told the jury that he met Young in early
January 2021 when he “bumped into her” on the street. Eventually, at Young’s
request, he got her a hotel room for the night. The two got along well, and the
next day, she started staying with Young and Gonzalez at their apartment. In the
following days, Morgan and Young made a plan to meet a man Morgan did not
know to pay off a debt she owed. They were to meet him at 1:00 a.m. on
January 14, 2021. Morgan brought “a bigger bag” and “a couple of smaller bags”
of methamphetamine3 and his firearm to the meetup. He placed the gun in the
center console of his car.
According to Morgan, the meetup did not happen until 2:00 a.m., south of
“the Safeway on 22nd and Madison.”4 The unnamed man approached Morgan’s
car while Morgan stayed in the driver’s seat and Young in the front passenger
seat. The man stood outside Young’s door and the two began insulting each
3 Morgan testified that “the expectation was we were going to tender him about
an ounce of methamphetamine, or possibly, then I was going to upsell him to maybe purchasing something else.” 4 The Safeway at 22nd Avenue E and E Madison Street is .3 miles from the
Capitol Hill Trader Joe’s.
6 No. 86559-5-I/7
other. Young then pulled out Morgan’s gun from the center console, and the
man reached in and grabbed it from her. He then walked around to the driver’s
side of the car, stuck the gun through the open window near where Morgan was
sitting, and shot Young several times. Morgan wrestled the gun out of the man’s
hands, and he ran away.
Morgan told the jury he was scared to call the police because he thought
he would “be in trouble” and “go to jail for a murder [he] did not do based on a
legal technicality,” so he “decided to cover it up.” He drove to Seward Park and
planned to “throw her body in the lake.” But it was so muddy that he slipped and
fell several times, so he left Young’s body by the shore. Morgan explained that
he took off her clothing because she had borrowed it from him and he did not
want the police to trace the clothes back to him.
Morgan told the jury that he had bought his gun “months” before he met
Young and knew it was missing its serial numbers. He said he bought it for its
safety features, not because it was untraceable. Morgan also testified that
around the time of the incident, he had been using drugs and alcohol in
quantities “more than most people.” He said he smoked only cannabis late in the
day on January 13 and did not consume any drugs on the morning of January
14.
On cross-examination, the State asked Morgan about the police
contacting him in his car on January 14. The prosecutor said, “You didn’t tell
[them it] was [Young]’s blood, right?” Morgan said, “No.” The prosecutor
7 No. 86559-5-I/8
continued, “You didn’t tell them where [Young] was at —,” and defense counsel
objected. After a sidebar, the court sustained the objection.
During its rebuttal, the State called toxicologist Brian Capron to testify
about the drug content in Morgan’s blood just after the incident. Capron
explained that the toxicology results from Morgan’s blood draw showed the
presence of THC,5 fentanyl, methamphetamine, and benzoylecgonine, the
chemical released when the body breaks down cocaine. Capron also testified
about how long those drugs may stay in the body and the general effect of the
drugs on a person’s judgment and behavior, including misperception and
sedation. On cross-examination, Capron testified that Morgan’s toxicology
results showed usage “within a day, day and a half.”6
The jury convicted Morgan of first degree murder and determined that he
was armed with a firearm at the time. The court imposed a sentence of 360
months.
Morgan appeals.
ANALYSIS
Morgan argues (1) the trial court erred when it denied his peremptory
challenge under GR 37, (2) it erred by admitting irrelevant prejudicial evidence,
(3) the prosecutor improperly elicited testimony about and commented on
5 Tetrahydrocannabinol.
6 During its closing argument, the State told the jury that when officers arrived on
the scene and asked, “ ‘What’s going on with all that blood in the car,’ ” Morgan replied, “ ‘I don’t know what’s going on, sir.’ ” Defense counsel did not object. The State also repeatedly argued during closing that Morgan killed Young at Seward Park. Again, Morgan did not object.
8 No. 86559-5-I/9
Morgan’s right to pre-arrest silence,7 (4) insufficient evidence supports his murder
conviction, and (5) cumulative error deprived him of his right to a fair trial. We
address each argument in turn.
1. GR 37
Morgan argues that the trial court erred by denying his peremptory
challenge to juror 82. We disagree.
We review a trial court’s decision on a GR 37 motion de novo. State v.
Booth, 22 Wn. App. 2d 565, 571, 510 P.3d 1025 (2022). The purpose of GR 37
is to eliminate the unfair exclusion of potential jurors based on race or ethnicity.
GR 37(a). Under GR 37(c), a party or the court “may object to the use of a
peremptory challenge to raise the issue of improper bias.” “After an objection
has been raised, the party exercising a peremptory challenge is required to
articulate its reasons for doing so.” State v. Listoe, 15 Wn. App. 2d 308, 319,
475 P.3d 534 (2020); GR 37(d). “The trial court then evaluates the reasons for
exercising the challenge under the totality of the circumstances.” Listoe, 15 Wn.
App. 2d at 319; GR 37(e).
7 Morgan also contends the prosecutor committed misconduct when he “argued
facts not in evidence and elicited expert testimony that he later used for an improper purpose in closing argument.” He points to the prosecutor’s statements that Morgan drove Young “out to a secluded area, Seward Park, and killed her there.” He also points to the prosecutor’s improper reliance on toxicologist Capron’s testimony “to argue that [the] downswing effects [of his drug use], including paranoia, misperception, and suspicion,” was “motive” for Morgan to kill Young. But Morgan did not object to the prosecutor’s statements below. While Morgan insists he did, the record shows his “objection” was to the State’s attempt to introduce toxicology evidence, not to statements the prosecutor made to the jury. So, any error is waived absent misconduct so flagrant and ill intentioned that an instruction could not have cured the resulting prejudice. State v. Emery, 174 Wn.2d 741, 760-61, 278 P.3d 653 (2012). And Morgan fails to show that the prosecutor’s statements were incurably flagrant and ill intentioned. Morgan waived these arguments.
9 No. 86559-5-I/10
If “an objective observer could view race or ethnicity as a factor in the use
of the peremptory challenge, then the peremptory challenge shall be denied.”
GR 37(e). An “objective observer is aware that implicit, institutional, and
unconscious biases, in addition to purposeful discrimination, have resulted in the
unfair exclusion of potential jurors in Washington.” GR 37(f). The circumstances
that the court should consider in evaluating a party’s proffered race-neutral
reasons include, “but are not limited to”:
(i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or types of questions about it; (ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror . . . in contrast to other jurors; (iii) whether other prospective jurors provided similar answers but were not . . . challenge[d] . . . ; (iv) whether a reason might be disproportionately associated with a race or ethnicity; and (v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity.
GR 37(g). A proffered race-neutral reason for a peremptory strike must be
specific and supported by the record. See State v. Tesfasilasye, 200 Wn.2d 345,
359-60, 518 P.3d 193 (2022) (race could be viewed as a factor where the record
did not support State’s claim that a dismissed juror—a Korean woman—“might
be biased” because of her son’s experience with the legal system, while the
State did not challenge other jurors with similar experiences or “even jurors who
were more equivocal in their assurances that they could be fair”).
Here, the trial court objected to Morgan’s peremptory challenge to juror 82
under GR 37 because the juror identified as “Hispanic/Latino.” Morgan’s attorney
10 No. 86559-5-I/11
then articulated the reasons for his challenge. He explained that juror 82 said
she was not excited to be on the jury and, more importantly, that “she indicated
she would have trouble giving credibility to anyone who is a drug user or uses
drugs.” So, if Morgan were to testify about his drug use, juror 82 would discount
his credibility.
But Morgan did not question juror 82 about that concern. And several
other jurors also revealed in their questionnaires that they had strong feelings
about drug use that would make it difficult to be fair. Two of those jurors, 30 and
39, identified as “Caucasian” and ultimately sat on Morgan’s jury. Morgan asked
no questions of juror 30’s disclosure. And he followed up with juror 39, eliciting
that despite her strong opinions, she would be fair and impartial. From these
circumstances, an objective observer could conclude that race was a factor in
Morgan’s use of a peremptory challenge to juror 82.
In any event, even if the court erred, any error was harmless. We analyze
an erroneous denial of a peremptory challenge using the nonconstitutional
harmless error standard. Booth, 22 Wn. App. 2d. at 584. Under this standard,
an “ ‘error is not prejudicial unless, within reasonable probabilities, had the error
not occurred, the outcome of the trial would have been materially affected.’ ” Id.8
(quoting State v. Aljaffar, 198 Wn. App. 75, 86, 392 P.3d 1070 (2017)).
Morgan argues that any error is not harmless because juror 82 expressed
“actual bias” toward heavy drug users and did not assert that she could set those
biases aside. But Morgan did not challenge juror 82 for cause. And “[a] juror
8 Internal quotation marks omitted.
11 No. 86559-5-I/12
who was not subject to a for-cause challenge is necessarily competent and
unbiased.” State v. Hillman, 24 Wn. App. 2d 185, 195, 519 P.3d 593 (2022)
(citing Booth, 22 Wn. App. 2d at 584-85). So, any error was harmless.
2. Obliterated Serial Numbers
Morgan argues the trial court abused its discretion by admitting evidence
that the serial numbers on his gun were “obliterated.” We disagree.
We review a trial court’s decision to admit or exclude evidence for abuse
of discretion. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.2d 1090 (2014).
A court abuses its discretion if its decision is manifestly unreasonable or based
on untenable grounds or reasons. State v. Darden, 145 Wn.2d 612, 619, 41
P.3d 1189 (2002). We will reverse an evidentiary ruling only if it results in
prejudice. State v. Neal, 144 Wn.2d 600, 611, 30 P.3d 1255 (2001). Again, an
“error is prejudicial if, ‘within reasonable probabilities, had the error not occurred,
the outcome of the trial would have been materially affected.’ ” Id. (quoting State
v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)). Improperly admitted
evidence is harmless if it is of minor significance in relation to the evidence as a
whole. Id.
Evidence is “relevant” if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence.” ER 401. We presume that
relevant evidence is admissible, and the party seeking its exclusion bears the
burden of establishing unfair prejudice. Carson v. Fine, 123 Wn.2d 206, 224-25,
867 P.2d 610 (1994). Evidence is unfairly prejudicial if it is likely to elicit an
12 No. 86559-5-I/13
emotional response rather than a rational decision. State v. Powell, 126 Wn.2d
244, 264, 893 P.2d 615 (1995). Unfair prejudice is that caused by evidence of
“ ‘scant or cumulative probative force, dragged in by the heels for the sake of its
prejudicial effect.’ ” Carson, 123 Wn.2d at 223 (quoting United States v. Roark,
753 F.2d 991, 994 (11th Cir. 1985)). We afford trial courts broad discretion “in
balancing the probative value of evidence against its potential prejudicial impact.”
State v. Coe, 101 Wn.2d 772, 782, 684 P.2d 668 (1984).
Citing State v. Mee, 168 Wn. App. 144, 275 P.3d 1992 (2012), and State
v. McDaniel, 155 Wn. App. 829, 230 P.3d 245 (2010), Morgan argues that
evidence of the obliterated serial numbers was unduly prejudicial because it
required the jury to speculate that he personally obliterated the numbers to
render the gun untraceable. But these cases are inapposite.
In Mee, the trial court erroneously admitted evidence about the meaning of
certain gang behaviors without any showing that the defendant engaged in those
behaviors. 168 Wn. App. at 159. And in McDaniel, the trial court admitted
evidence of flight when the defendant was not the driver of the fleeing car. 155
Wn. App. at 838. Division Two concluded this was error because the evidence of
the police chase and arrest was more prejudicial than probative, as “nothing
demonstrated the [the defendant]’s flight was volitional.” Id. at 855.
This case is not like Mee or McDaniel. Here, the relevance of the
evidence flows from Morgan’s knowledge that the gun had obliterated serial
numbers, rendering it untraceable, not whether Morgan personally obliterated
13 No. 86559-5-I/14
them. And Morgan testified that he purchased the gun knowing that it had no
serial numbers.
The trial court did not err by admitting evidence that the serial numbers on
Morgan’s gun were obliterated.9
3. Violation of Right to Pre-Arrest Silence
Morgan argues the prosecutor improperly elicited testimony about and
then commented on his right to pre-arrest silence. The State argues that Morgan
waived this argument because he did not object at trial and has not shown
manifest constitutional error. We agree with the State.
Generally, we do not consider unpreserved errors raised for the first time
on appeal. State v. Kirkman, 159 Wn.2d 918, 926, 155 P.3d 125 (2007) (citing
RAP 2.5(a)). This is because a party’s failure to object deprives the trial court of
an opportunity to prevent or correct the error. Id. at 935. Still, we may review the
alleged error if the appellant shows it is manifest constitutional error. Id. at 926-
27; RAP 2.5(a)(3). To establish manifest constitutional error, an appellant must
“identify a constitutional error and show how, in the context of the trial, the
alleged error actually affected [their] rights.” State v. McFarland, 127 Wn.2d 322,
333, 899 P.2d 1251 (1995).
Here, Morgan argues that the prosecutor improperly elicited testimony
about his pre-arrest silence during cross-examination. Specifically, he points to
9 Morgan’s attorney also used failure to investigate as a general theme
throughout cross-examination and his closing argument. He argued the police had “made up” their minds that Morgan was guilty and decided not to investigate the evidence. But the police did not investigate the history of the gun because the missing serial numbers made it untraceable. So, the evidence was also admissible to rebut Morgan’s argument that the police botched the investigation.
14 No. 86559-5-I/15
the prosecutor’s questions to Morgan about whether he told police that the blood
in his car belonged to Young. And then he points to the prosecutor’s comments
on that testimony in closing argument. But Morgan did not object to the question
on cross-examination or to the prosecutor’s argument in closing. And he makes
no attempt to show manifest constitutional error. So, he waived his argument
that the State violated his right to pre-arrest silence.10
4. Sufficiency of the Evidence
Morgan argues that his first degree murder conviction is not supported by
sufficient evidence of premeditation. We disagree.
We review de novo the sufficiency of the evidence. State v. Hummel, 196
Wn. App. 329, 352, 383 P.3d 592 (2016). To determine whether sufficient
evidence supports a conviction, we view the evidence in a light most favorable to
the prosecution and consider whether “any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” State v.
DeJesus, 7 Wn. App. 2d 849, 882, 436 P.3d 834 (2019). A sufficiency challenge
admits the truth of the State’s evidence and accepts the reasonable inferences
made from it. State v. Fedorov, 181 Wn. App. 187, 193-94, 324 P.3d 784 (2014).
We defer to the fact finder on issues involving conflicting testimony,
witness credibility, and the persuasiveness of the evidence. DeJesus, 7 Wn.
App. 2d at 883. Circumstantial evidence and direct evidence are equally reliable
10 Morgan also argues Seattle Police Detective Alan Cruise commented on his
pre-arrest silence during Detective Cruise’s testimony on rebuttal. But the record shows that Detective Cruise testified about information the police learned after hearing Morgan’s testimony at trial. Detective Cruise made no reference to Morgan’s pre-arrest silence.
15 No. 86559-5-I/16
in determining the sufficiency of evidence. State v. Scanlan, 193 Wn.2d 753,
770, 445 P.3d 960 (2019). But “inferences based on circumstantial evidence
must be reasonable and cannot be based on speculation.” State v. Vasquez,
178 Wn.2d 1, 16, 309 P.3d 318 (2013).
The element of premeditation differentiates first degree murder from
second degree murder. State v. Bingham, 105 Wn.2d 820, 823, 719 P.2d 109
(1986). Premeditation requires “more than a moment in point of time.” RCW
9A.32.020(1). The State must show “the deliberate formation of and reflection
upon the intent to take a human life” by “thinking beforehand, deliberation,
reflection, weighing or reasoning for a period of time, however short.” State v.
Hoffman, 116 Wn.2d 51, 82-83, 804 P.2d 577 (1991).
The State may prove premeditation by circumstantial evidence where the
jury’s inferences are reasonable and its verdict is supported by substantial
evidence. State v. Pirtle, 127 Wn.2d 628, 643, 909 P.2d 245 (1995). While the
defendant’s mere opportunity to deliberate cannot by itself support a finding of
premeditation, a wide range of facts can support the inference of premeditation.
State v. Finch, 137 Wn.2d 792, 831, 975 P.2d 967 (1999). There are four
characteristics particularly relevant to establishing premeditation—“motive,
procurement of a weapon, stealth, and the method of killing.” DeJesus, 7 Wn.
App. 2d at 883. Circumstantial evidence that the defendant brought a weapon to
the scene and fired multiple shots supports a reasonable inference of
premeditation. State v. Barajas, 143 Wn. App. 24, 36, 177 P.3d 106 (2007).
16 No. 86559-5-I/17
Here, the trial court instructed the jury that to convict Morgan of first
degree murder, the State had to prove beyond a reasonable doubt that he “acted
with intent to cause the death of Autumn Young” and that “the intent to cause the
death was premeditated.” It instructed the jury that “[a] person acts with intent or
intentionally when acting with the objective or purpose to accomplish a result that
constitutes a crime.” And, consistent with controlling case law, it instructed the
jury that “premeditated” means
thought over beforehand. When a person, after any deliberation, forms an intent to take human life, the killing may follow immediately after the formation of the settled purpose and it will still be premeditated. Premeditation must involve more than a moment in point of time. The law requires some time, however long or short, in which a design to kill is deliberately formed.[11]
Viewing the evidence in a light most favorable to the State, a rational trier
of fact could conclude that Morgan premeditated Young’s murder by using
stealth, bringing a weapon to the scene, and firing multiple shots. Cell phone
records showed that Morgan took Young to a remote area before he went to
Capitol Hill. He travelled from north Seattle to Seward Park and remained there
for around 12 minutes—longer than he was at any other spot during the relevant
time frame. Morgan brought his gun with obliterated serial numbers and his
passport. Morgan’s car had no license plates, and the temporary license plate
had been removed from the rear window and stashed under a car seat. Finally,
Morgan brought his gun and used it to shoot Young five times at close range in
11 The court also instructed the jury on the lesser-included crime of second
degree murder, which does not include the element of premeditation.
17 No. 86559-5-I/18
the side of her head. The evidence showed that all the bullets travelled from left
to right and that a pool of Young’s blood was in Morgan’s front passenger seat.
Still, Morgan argues his case is “virtually indistinguishable” from Austin v.
United States, 382 F.2d 129 (D.C. Cir. 1967), abrogated in part on other grounds
by United States v. Foster, 783 F.2d 1082 (D.C. Cir. 1986). We disagree.
In Austin, the defendant and the victim were seen together at an after-
hours establishment before driving off together in the defendant’s truck around
4:30 a.m. 382 F.2d at 132. “The Government produced no witness as to what
happened” after. Id. But at around 5:00 a.m., police saw the defendant near the
victim, who was nearly deceased with 26 stab wounds. Id. A jury convicted the
defendant of first degree murder, and he appealed. Id. at 131.
The circuit court held that “the Government’s evidence was insufficient to
warrant submission to the jury of the issue of premeditation.” Austin, 382 F.2d at
138. The court reasoned that the defendant’s use of a knife to accomplish the
murder was not probative of premeditation because he carried it “as a matter of
course.” Id. at 139. And the violence and multiple wounds “standing alone”
cannot support premeditation. Id. Further, the defendant’s “ample time [between
4:30 and 5:00 a.m.] to premeditate and deliberate is not evidence” that he
actually premeditated his intent to kill. Id. And finally, the prosecution did not
show any motive for the crime. Id. The court concluded that “the jury could only
speculate and surmise, without any basis in the testimony or evidence, that
appellant acted with premeditation.” Id.
18 No. 86559-5-I/19
This case is different from Austin. The jury here was not left to speculate
about premeditation. And the jury found Morgan’s version of events not credible.
As discussed above, affirmative evidence supported the jury’s conclusion that
Morgan acted with premeditation.
5. Cumulative Error
Morgan contends he is entitled to a new trial because the cumulative
effect of all his asserted errors denied him a fair trial. We disagree.
Under the cumulative error doctrine, a defendant may be entitled to a new
trial when cumulative errors produce a trial that is fundamentally unfair. State v.
Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (3012). Cumulative error “is limited to
instances where there have been several trial errors that standing alone may not
be sufficient to justify reversal but when combined may deny a defendant a fair
trial.” State v. Greiff, 141 Wn.2d 910, 929, 10 P.3d 390 (2000). Morgan shows
no prejudicial error, so he is not entitled to a new trial based on cumulative error.
Because the trial court did not abuse its discretion and Morgan shows no
prejudicial error, we affirm his conviction and sentence.
WE CONCUR: