*1 27, 1988.] En 53287-7. Banc. October [No. Respondent, v. Ricardo M. Washington, Defendant, Michael Irizarry, Ransom, Alan
Appellant. Ladenburg Haselman, & by Anthony Haselman, for H. appellant. Griffies,
William H. Prosecuting Attorney, and Chris Quinn-Brintnall, Senior Appellate Deputy, respon- for dent. J.—
Andersen,
Facts of Case In planned the course of the robbery pizza delivery- Tacoma, man in Brander Allan Castle was stabbed to death in the early hours of In morning July 1984. connection therewith, M. pleaded Ricardo Irizarry guilty to murder for his exchange testimony at the trial herein, Michael Alan Ransom. on the jury tried before Ransom was The defendant At degree. the first charge objections, over defense request prosecution, only on the crime instructed also on "included in the first but *2 felony murder. offense" of of the "included Ransom was convicted
The defendant He to the Court of felony appealed of murder. offense" We his to this court.1 appeal certified Appeals which accepted review. presented. issue is principal
One
Issue
offense
felony
crime of
murder a lesser included
Is the
degree?
aggravated
of
murder
the first
within
crime
Decision
not a lesser
included
Felony murder
is
Conclusion.
in the first
the offense of
murder
offense within
instructing
erred in
degree, and the trial court
conviction of this nonincluded
it
The defendant's
was.
trial.
requiring
error
new
prejudicial
offense constitutes
our state constitution
It
fundamental
that under
is
charge
informed of the criminal
an
must be
person
accused
trial,
tried for an
at
and cannot be
he
she is
meet
or
statutory
subject
rule is
to two
charged.2
This
offense
(1)
is
a lesser
where a
convicted of
exceptions:
in the information
charged
offense
the one
included
(2)
(RCW 10.61.006);
is
where a defendant
convicted
of an inferior
one
which is a crime
offense
(RCW 10.61.003).3
2.06.030; RAP 4.2.
1 RCW
(amend.
Carr,
10);
v.
State
art.
§
2 Const.
484, 487,
(1982);
Pelkey,
v.
3 State 9A.32.030) (RCW The first murder defines statute ways the three different the crime murder which the first be committed: degree can (RCW
1. 9A.32.030(l)(a)); Premeditated murder (RCW 2. by Murder indifference life extreme to human 9A.32.030(l)(b)); and (RCW 9A.32.030(l)(c)).4 Felony
3. murder murder is defining statute first clear;5 equally crime in the premeditated is murder (not extreme indifference or (1) degree. person "Murder the first A in the first degree when: "(a) premeditated person, With a intent to cause the death of another he person person; causes the death such or of a third or "(b) life, manifesting Under circumstances an extreme indifference to human engages grave any person, conduct he which creates a risk of death to thereby person; causes the death of a or "(c) attempts (1) robbery, He commits or to commit the either crime of (2) degree, rape (3) degree, first or second burglary in the first or second degree, degree, kidnapping, arson in the first in the first or second and; degree, in the course of or in furtherance such crime immediate *3 therefrom, he, flight participant, person or another causes the death aof other participants; 9A.32.030(1) generally (part). than one of the . . .“ RCW See WPIC 26. 5"Aggravated person first guilty murder defined. A of by he or she commits murder as RCW defined 9A.32.030(1)(a), amended, following now as or hereafter and one or more of the aggravating circumstances exist: "(1) officer, officer, The victim was a law enforcement corrections or fire performing fighter who was his or her official duties at the time of the act result- ing reasonably by in death and the victim known was or should have been known person to killing; be such at the of the time the "(2) resulting death, person At the serving time of the act in the a was imprisonment, escaped, term of had or was on or authorized unauthorized leave in facility program persons from a state or or for the incarceration or treatment of crimes; adjudicated of "(3) death, resulting person custody At the time of the act in a county county-city jail consequence having as adjudicated guilty or a of a been of felony; "(4) person pursuant agreement The committed the murder an to that he or money any thing murder; committing she would receive or other of value for "(5) person person paid The solicited another to commit the murder and had agreed money any pay thing committing had to or or other value for of mur- der; 594
murder)
or more of the
of one
accompanied by
presence
criminal
listed
circumstances
statutory aggravating
).6
(RCW
statu
These
of the code
procedure title
10.95.020
penalty"
of
are "aggravation
circumstances
tory aggravating
A
not "elements" of
as such.7
crime
and are
factors
elements
only "when all
included offense exists
lesser
elements
of the
necessary
greater
the lesser offense are
(Italics ours.)8
felony is
of a
Because commission
offense."
in the first
necessary
not a
element
felony murder cannot
it
the offense of
degree,
follows
"(6) The victim was:
"(a)
current,
judge; juror
juror; prospective,
or former witness
A
or former
prosecuting attorney;
proceeding;
attorney; deputy
adjudicative
prosecuting
paroles;
proba-
attorney;
prison
or a
a member of the board of
terms
defense
officer;
parole
tion or
"(b)
performed or to
related to the exercise of official duties
The murder was
victim;
performed
"(7)
person
the commission of
crime
committed the murder
conceal
crime;
committing
identity
any person
protect or
conceal
or
"(8)
part of
and the murders were
a common
more than one victim
There was
person;
single
plan
the result of a
act
or
or
scheme
of,
of,
"(9)
or in
in furtherance
The murder was committed
course
following
flight
one of the
crimes:
from
immediate
"(a) Robbery
degree;
in the first or second
" (b)
degree;
Rape in the first or second
"(c)
degree;
Burglary in the first or second
"(d)
degree;
Kidnapping in
or
the first
"(e)
degree;
in the first
Arson
newsreporter
"(10)
employed
self-employed
regularly
or
as a
The victim was
research,
investigative,
or hinder the
the murder was committed to obstruct
(Italics ours.)
reporting
RCW 10.95.020.
victim."
activities
Mak,
(1985);
304,
Kincaid,
312,
v.
State
105
be an included offense the charge aggravated Similarly, felony murder the first murder is not a degree. lesser degree.9 murder Mak, 407, In State v. cert. denied, 93 L. 2d Ct. U.S. Ed. 107 S. instructions on murder as a lesser included offense were given by trial court in a case involving aggravated degree.10 murder the first As we held, did there this not constitute reversible error because it was the requested who those instructions. As defendant pointed connection, we out the lesser included instruction, offense not having been excepted by to at trial defendant, case; further, became the law any error in connection therewith was error invited defendant which could not complained of on appeal.11 In us, the case however, before duly excepted defendant giving of the felony murder included offense instruc tions, thus preserving his claim of error for appeal.
Since the this case was (i.e., murder in the first degree the crime of premeditated murder plus statutory aggravating circumstance), on instruction the lesser included of premeditated offense murder the first (i.e., premeditated the crime of in the first degree statutory circumstances) without aggravating could have been given.12
Since defendant was not of premeditated convicted (nor the first any lesser included 10.61.003; Mak, 9 See ROW at 745.
10 Mak,at 746-47.
11 Mak, at 747-49. 583; Roybal, Miller,
12 See at at 445.
596 crime), is man- degree of that reversal lesser offense or dated.13 not, is the defendant charges against all
Dismissal of defend- having convicted the however, mandated. The murder, the defendant felony improperly, albeit ant of violating offense without consti- with that still be prohibitions.14 jeopardy double tutional appeal the defendant's contention of remaining The cause, jurors for where Excusing prospective taken. not well he was not error as they penalty, to the death opposed were in that of this state is well settled law now contends. regard.15
Reversed and remanded.
Brachtenbach,
J.,
Hamilton,
Tern.,
J. Pro
concur.
Utter,
majority's
I agree
J.
with the
(concurring) —
included offense
analysis
that
murder is not
lesser
However, I
that
this
point
murder.
must
out
of aggravated
the issue of
argument
has never heard
on
decided
court
subjects a
to
excusing scrupled jurors
whether
conviction-prone
under
jury and is thus unconstitutional
which the
Washington
The cases to
Constitution.
to
refers were
decided with reference
majority
briefed and
yet
court has not
federal constitution. Because this
on
restrictions
interpreted
Washington
Constitution's
issue,
briefing
this court has the benefit
until
this
v.
of State
Gun
at least the nonexclusive factors
considers
54,
is still an
wall,
808
this
106 Wn.2d
720 P.2d
(amend. 10);
1,
Bingham,
6;
v.
22
State
amend.
Const. art.
§
13 SeeU.S. Const.
820,
553, 559-60,
(1985), aff'd,
719
109
App.
Wn.2d
P.2d
open question.
(1988).
Despite the similar
the sixth amendment
language
and article
section
United States Constitution
Constitution,
both
defendants
Washington
entitling
impartial
"by
presump-
trial
this court
jury",
does
tively
federal
is not
apply
analysis
analysis
sup-
ported
history
language,
and context
our
Reece,
This court well reject federal on this issue if presented we are adequate briefing on the in Washington Nothing majority Constitution. should discourage be read in to Ransom his new trial or future fully defendants from their asserting rights protected by the Washington Constitution. C.J., J.
Pearson, Utter, concurs with part, dissenting part) J. Callow, (concurring —I technically, murder, concur majority with the case, as it was this is not a lesser included However, I murder. offense lesser doctrine believe the rationale included offense and I cannot With the result agree was violated I that we opinion majority. follows of the submit from further. go step should
Facts there is some Things put perspective unless cannot involved. Here recitation the factual situation pizzas Store an for to be Domino's Pizza received order apartment pizzas to an South Tacoma. The delivered deliveryman Soon given 22-year-old delivery. were to a for thereafter, body police indicating received a call that a in the apartment complex. police had been found When the arrived, deliveryman still died breathing, was but shortly. The medical examiner determined that the cause stab chest and side area. death was three wounds deep perforated One of these wounds was 5V2 inches another, inches also deep, the heart and liver while 4% penetrated the heart. There was also evidence wounds cartilage in nose. eye Investigation area and broken waylaid empty been revealed that the victim had attempting while to deliver apartment and stabbed apart- were found pizzas. pizzas ordered two ment, Blood money strewn the floor. about *7 of both bespattered empty apartment. fingerprints frame defendants were found on the of a broken window. Lesser Included Offense RCW 10.95.020 states: degree murder person guilty aggravated
A is first as degree murder defined he or commits first she 9A.32.030(l)(a) . . more of the follow- RCW ing aggravating . and one or circumstances exists: murder, degree first aggravated In order to be convicted in the first must have committed person a 9A.32.030(l)(a) which reads: under RCW (1) of murder first person A when:
(a) With a premeditated intent to cause the death another person, he causes the death person of such or of . . . person; third Thus, premeditated unless there is a intent to cause the death person coupled of a with one of the cir- aggravating 10.95.020, cumstances listed under RCW the commission of aggravated first In has not occurred. other words, first degree murder cannot upon occur proof 9A.32.030(l)(b) (extreme of the commission of RCW life) 9A.32.030(l)(c) indifference to human or under RCW murder). (felony Premeditated present intent must be order to fulfill requisites of aggravated first degree murder. Austin, State v.
In
105 Wn.2d
[T]he
limited to those
the information. State v.
Foster, Accord,
466,
(1979).
Wn.2d
State
However, Washington
courts have
a number of cases
involving
degree murder
routinely
instructed juries that
the crime of aggravated first degree
murder necessarily includes the lesser crime of
in State v. Ng,
murder. See
Papers
Clerk's
763,
104 Wn.2d
Rupe,
(1985);
Rupe, Campbell, as follows:
Notice Ransom In this case the amended information in the First Aggravated Degree" with crime of Murder "the Instruction defendant, Ransom, Alan of crime of "To the Michael the convict degree, following elements the crime must be murder in the first each of the of proved beyond a reasonable doubt: "1) . . . . . the . the death . That. defendant. caused "2) . . . . the . acted with intent to cause the death That defendant. "3) premeditated accomplice intent or an with That the defendant acted . . . cause the death ”4) the Brander Allan Castle as a result of the acts of defendant That died "5) County, Washington; in the acts Pierce That occurred ”6) present: following aggravating the factor was That "(a) murder to conceal the commission of the defendant committed the any committing identity person protect a and to of crime conceal crime; or "(b) of, of, or in in the furtherance was committed course Robbery Degree." flight of in the First immediate from the crime Instruction you beyond is "If a reasonable doubt that the defendant are satisfied any charged, guilty found lesser of the crime be crime, necessarily charged, if the which is the crime the commission of included beyond guilt of such lesser crime evidence is sufficient to establish the defendant's doubt. a reasonable necessarily Degree Aggravated "The in the First includes crime of Murder Degree. in the lesser crime of Murder First person proven against and there exists reasonable a crime has been "When person guilty, he or she shall of the two or more crimes that doubt as to which only be convicted of the lowest crime." Instruction person degree when or she "A the crime murder in the first he commits robbery attempts in the first or second to commit commits or flight or in immediate from such crime in furtherance of such crime course person participant of a other than one another causes death he or she or participants." Instruction degree, each of the crime of murder "To the defendant convict proved beyond following a reasonable doubt: of the crime must elements "(1) day July, Allan Castle was 8th Brander on or about the That killed: " robbery attempting committing to commit or That the defendant degree; the first or second "(3) participant death of Brander caused the the defendant or another That flight from immediate of and in furtherance of Allan course Castle such crimes: "feloniously premeditated that he did intent" cause death of and that so to the victim he did "conceal *9 in the identity any person of a crime" —"or committing of, of, in course furtherance or in immediate from the flight of Robbery contrary crime First to RCW Degree, 9A.32.030(l)(a), 10.95.020(7), RCW 9A.56- RCW .200(1) (a) (c)”. (Italics mine.) Thus, Ransom on put was that he notice was with violations of the three say identified each. He statutes and elements of cannot him the State inform it that did not that would to attempt beyond prove a reasonable doubt that he had caused a premeditated death another with intent to cause death and that he did so the commission a rob- facilitate bery.
However, if at we look technicalities and not the sense rule, a since premeditated intent is an essential to aggra- murder first degree, vated it cannot be said that premeditated is not proven prosecution intent could prove murder in the first under degree RCW 9A.32- .030(1)(c) (felonymurder).
The primarily asserted the murder in the first (under 9A.32.030(l)(c)) degree RCW was not a lesser included offense within crime of aggravated degree first felony murder claiming that murder the first is not a lesser included offense within the crime of aggravated first because murder the first degree that "in requires the murder be committed course and in furtherance such crime flight immediate therefrom" whereas first degree murder requires statute murder he committed "in the of, of, course furtherance or in immediate from" flight of the one enumerated crimes.
Thus, directly defendant did not raise the rationale majority, set forth but asserted that "(4) crimes; participant That Brander Castle was Allan not a "(5) That the acts which caused the death decedent in Pierce of the occurred County, Washington." 9A.32.030(l)(c) RCW a under lesser of included offense murder under 10.95.020(9) (a) RCW because of the difference in the word- ing describing partici- of the statutes when the manner of pation the crime. I majority ignores argument. the defendant's would it.
answer
statute,
objective
primary
When
is to
interpreting
effect to the
intent.
give
Legislature's
ascertain and
Keller, 98
Janovich
Wn.2d
Herron,
P.2d
It
read into a
provisions
for this court
statute
improper
omitted, yet
we
construe stat-
which the Legislature
consequences which
utes
as to avoid absurd or strained
so
Keller,
interpretation.
from literal
at 728.
would result
commonly
use
"or" in a
indicates
Although the
statute
alternatively and
applied
two
provisions
an intent
*10
pro-
the
indicates an intent
that
generally
the
of "and"
use
the two words
conjunctively,
visions be applied
if
with
interpretation
comports
such
interpreted otherwise
Sands,
1A
Citing
the
C.
probable
Legislature.
the
intent of
(4th
1972)
21.14,
ed.
it was
at 91
Statutory Construction §
Keller,
at
State v.
729:
supra
noted in
however,
in
of
been,
laxity
so
the use
great
has
[t]here
courts
generally
that
have
and
terms
the
"or"]
["and"
that
interchangeable
one
the
are
that
words
said
other,
if
to do so
consis-
for the
may be substituted
intent.
legislative
tent
omitted.)
(Footnote
(1906)
602, 604,
RCW 9A.56.200 first degree *11 In bar, case ments. at pizza murder deliveryman was committed both the course of and in furtherance of the crime. It was clear that the State intended to prove that the murder was committed both the course of and furtherance a robbery attempted robbery. cir- those conclusion that
I with the majority's disagree are somehow RCW 10.95.020 cumstances described that the same special category ánd transformed into a aggravating an the same acts could be describing words time an ele- at the same under RCW 10.95.020 while factor 9A.32.030(l)(c). is a This crime under RCW ment a form mechanistically imposes approach technical which over substance. me to write prompts and that problem that arises must is I be prosecutors that submit that
separately aggra- frame an information when as to how to instructed but, trial, is to at charged murder degree vated first proof premeditation a failure of on there occur as how to instruct be informed intent. Courts should also verdict forms. appropriate a situation with in such jury is degree if first murder aggravated It be that cannot a felony proven, is degree first murder charged but In circumstances where place every time. retrial must take felony a the commission of killing place a takes aggravated prosecutor appropriate charge deems it and a a con- murder, might support but the evidence degree first aggra- for felony first murder but not degree viction for defendant should be murder: vated first him, against jury, charge notified of the properly forms, consistent verdict instructions proper of the alterna- guilty find the defendant be able to should delay of second thereby the cost and avoiding tive trial.17’18 following along lines: somewhat 17 Iwould instruct charged first with the crime of "The count charges felony degree murder. These 2 with the crime of first
murder and in count allege committed an the defendant and in effect are made in the alternative either crime of act which constitutes unlawful you commit- If find that the defendant murder. or the crime of you charged, constituting then must deter- one of crimes so ted act or acts committed. so mine which of offenses particular agree guilty you to the must all as to find the defendant "In order offenses, guilty and, such you of one of find the defendant offense committed you of the other." find him not must *12 Charging the Alternative in part: 10.37.060 reads exists. RCW The mechanism or against any person, charges there are several When transaction, for two or act or or for the same persons, more acts or transactions or for two together, connected of crimes of the same class or more acts or transactions instead of offenses, may properly joined, which be or or informations the whole several joined indictments having may information, indictment, sep- in one or be counts; . . . arate 4.3(a) states
CrR may Two or more offenses Joinder of Offenses. sepa- each offense stated joined charge, one count, offenses, felonies or misde- rate when the whether meanors or both: character, Are of or similar even not the same scheme or
part single plan; of a or (2) Are based on the same conduct or on a series of parts of a together constituting single acts connected or scheme or plan. this,
I submit that under circumstances such as it would proper have been to have a defendant with two counts, one for first murder and the felony other for first murder under RCW 9A.32- .030(1)(c), I it appropriate charge submit same such manner when out of the offenses arise transac- tion but which do not fit the framework of RCW 9A.32- .030(1)(a) Orland, and RCW 10.95.020. L. 4A Wash. (3d 1983) offenses, Prac. ed. regarding joinder of § states: jury regarding multiple 18 I would also instruct the use of verdict forms as
follows: count, possible guilty "In this case there are two verdicts as to each or not guilty. possible These various verdicts are set forth in the forms of verdict which you Only possible may by you will receive. one of the verdicts be returned as to each count. may guilty guilty "You find the defendant or not you may guilty guilty find the not murder under count or 2. murder under count counts, you may find the defendant not under both but "You guilty under find the defendant both counts." separate offenses joining propriety The test of the act or arise out of the same they one information because is whether evidence together connected transaction or are State v. of the other. includes evidence of one offense 938; P.2d CrR 63 Wash.2d Courville 4.3(a)(2). in are set forth In the guidelines such a situation Russell, 349, 352-54, P.2d 332 wherein it was said: *13 attorney ultimately above, prosecuting
As related more than retrial to do information on amended the charge 9A.32.050(l)(a). murder under RCW degree intentional second add was amended to The information committing means felony murder as an "alternative" degree second murder. 4.3(c)(1) offenses" as follows. defines "related
CrR offenses, pur- for are related Two or more offenses rule, jurisdiction within the they are poses of this and are based on the same court and venue of same conduct. murder and second degree Clearly, intentional second thus intimately connected and felony are degree are related offenses within murder . . . definition. the above inten- above, charged was petitioner As indicated fel- degree and with second second degree as an alternative tional committing means of ony murder was instructed that jury murder. The degree second or degree of intentional second petitioner convict murder, felony jury second "alternative" alternative cho- particular as to the must be unanimous to the supplied form Unfortunately, the verdict sen. second distinguish did not between jurors jurors murder. The intentional second murder and ulti- on the guilty vote or were authorized to provision murder. No of second charge mate com- the alternatives each of considering made for posed charge. Smith, 744, 754-55, P.2d 571
State v.
74 Wn.2d
303, 396 P.2d
Long,
in State v.
As we said
Brunn,
145 Wash.
(1964),
from
quoting
never be
of counts should
joinder
United 331 F.2d Cir. justification for a rule joinder liberal on trial. appears economy single offenses to be the of a The argument against joinder is that the defendant may prejudiced following for one or more of the (1) reasons: he become embarrassed separate or con- defenses; founded presenting may use the evidence of one of the crimes infer disposition part a criminal on the of the defend- ant guilt from which found his of the other crime or crimes charged; jury may cumulate the evi- dence of the various crimes charged guilt and find when, if separately, considered it would not so find. A less tangible, perhaps equally persuasive, but element prejudice may hostility reside a latent feeling engendered by charging of several crimes as dis- only Thus, tinct from in any given one. case the court must to the defendant weigh prejudice caused joinder against obviously important considerations economy expedition judicial administration. Winters, See also State v. State v. Kinsey, 773, 775-76, App. 7 Wn. *14 denied, (1973). review (1972),
P.2d 470
82
1002
Wn.2d
Anderson,
In 739, 740-41,
96 Wn.2d
638 P.2d
denied,
cert.
1205,
one and the upon based RCW 9A.32.030(l)(a), other RCW are related and upon based have been in the same information. joined could Courville, See also State v. P.2d 387 (1963). 938
608 Penalty
Death
Jurors
jurors
I
for
Finally,
excusing prospective
concur
that
to the death
they
opposed
penalty
cause where
are
substantially
prevent
extent
that
their views "would
jurors
duties as
accord
performance"
their
impair
proper.
their
with the
instructions and
oath
ance
court's
45,
581,
L.
Texas,
38,
65
Ed. 2d
100 S.
Adams v.
448 U.S.
(1980);
176,
Hughes,
v.
Ct. 2521
State
Mak,
692,
407,
P.2d
(1986);
v.
718
902
105
denied,
(1986); see
Lockhart v.
also
cert.
479 U.S.
137,
McCree,
162,
L.
Conclusion long murder cases are dura- Aggravated We owe the tion, always expensive. often and complicated State, defendant, public all those involved and and duplication as to of effort direction how avoid responsible approach unnecessary I this a retrials. believe be dicta. though pronouncements even evidence, here, support as conviction of might When out of one separate arising or the other of two offenses one and offense includes evidence of transaction evidence one should the alternative. another the defendant be by It be clear to the instruction should made may not form the defendant found verdict that counts, either one be convicted under under both not both. count or other but accusations I had full notice believe him, rationale and surprised, against was "lesser included offense” doctrine common sense of the conviction, I submit uphold While I would satisfied. situations, in such we technically if retrial is mandated *15 owe it prosecutors and defendants in avoiding assist if possible. such retrials JJ., concur with J. Durham, Callow,
Dolliver January 25, Reconsideration denied 1989. 27, 1988.] 53357-1. En Banc. October
[No. John R. Respondent, v. Chevron Chemical Stewart,
Company, Appellant. notes guilt that follows the act is in "the commission of a rob- bery or of immediate therefrom". In each flight of the stat- (in of, of, utes various acts course furtherance from) flight are alternative aspects an element and the proof any individual, isolated, one of these descriptive phrases of the statute prove is sufficient the occurrence an element the crime. Neither statute when given its plain creates meaning enlarged, or magnified, super or element of the crime. There description remains but requiring proximity, involvement with connection between the death and activity, the criminal and that death occurred because the defendant committed crime. I phrases submit these descriptive ele- defining the ments the two are equivalent offenses A alternative. reasonably murder committed to effectuate a felony fits within either requirement it be "in committed of" course the crime or that it be committed "in further- of" thereby ance the crime fulfilling require- both of these