96 Wash. App. 447 | Wash. Ct. App. | 1999
Dale Lyon’s ex-girlfriend, who had allowed him to stay at her residence, found Michael Courtney bludgeoned but still alive inside her home. The police lo
I
Dale Lyon’s ex-girlfriend had allowed Lyon to stay in her apartment during the preceding three weeks, and mistakenly assumed that Lyon was the injured person she discovered in her apartment when she spoke with the police. After the injured person was later identified as Michael Courtney, the police wanted to locate and interview Lyon.
Lyon was located the next morning when the police were dispatched to investigate a disturbance. Lyon had been assaulted by two individuals, allegedly over his failure to pay for illegal drugs that he took. Lyon was taken to the hospital, where he was contacted by a police detective. Upon his release from the hospital, the detective asked Lyon to go to the police station to give a statement regarding the assault that led to his injuries.
Lyon agreed to go to the police station, and police detectives interviewed Lyon about that morning’s assault. After
Courtney died a few days after Lyon gave his statement to the police. The information against Lyon reads, in part:
COUNT I: SECOND DEGREE MURDER, committed as follows: That the defendant, on or about the 12TH day of MAY, 1996, while committing or attempting to commit the felony crime of SECOND DEGREE ASSAULT, and in the course of or in furtherance of said crime or in immediate flight therefrom, did cause the death of MICHAEL ROERHIG COURTNEY, a human being, not a participant in such crime, said death occurring on or about the 17TH day of MAY, 1996; and that at the time of the commission of the crime, the defendant or an accomplice was armed with a deadly weapon other than a firearm, to wit: a wood closet dowell [sic], as provided and defined in RCW 9.94A.310, and RCW 9.94A.125; proscribed by RCW 9A.32.050(l)(b), a felony.
At trial Lyon presented evidence that another individual came to his ex-girlfriend’s apartment and proximately caused the death of Michael Courtney after the initial assault. The trial court refused a defense request to instruct on second degree assault, and the jury found Lyon guilty of second degree murder.
II
Lyon argues that the trial court erred in refusing to instruct on second degree assault as a lesser included crime of the second* degree felony murder charged on the predi
State v. Workman
In the recent case of State v. Berlin, which reaffirmed the Workman test, our Supreme Court held that the requirements of constitutional notice and the ability to argue the theory of a case both dictate that “lesser included offense analysis is applied to the offenses as charged and prosecuted, rather than to the offenses as they broadly appear in statute.”
We note that the Supreme Court, in the later case of State v. Tamalini
The charging document accused Lyon of committing second degree murder while committing or attempting to commit second degree assault. The State abandoned the “attempted” language and proceeded to trial based upon the actual commission of a second degree assault. Thus the statutory elements of the offense “charged and prosecuted” here included a completed second degree assault. Because a lesser included offense instruction should have been given under these circumstances, we reverse and remand for a new trial.
Reversed.
Agid, A.C.J., and Coleman, J., concur.
After modification, further reconsideration denied August 18, 1999.
Review denied at 140 Wn.2d 1003 (2000).
See State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 116 (1990).
See State v. Tamalini, 134 Wn.2d 725, 728, 953 P.2d 450 (1998).
Tamalini, at 728.
90 Wn.2d 443, 447-48, 584 P.2d 382 (1978).
Id.
State v. Fernandez-Medina, 94 Wn. App. 263, 971 P.2d 521 (1999).
State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997).
133 Wn.2d at 547 (quoting from State v. Lucky, 128 Wn.2d 727, 734, 912 P.2d 483 (1996)).
134 Wn.2d 725, 953 P.2d 450 (1998).
121 Wn.2d 1, 846 P.2d 527 (1993).
Tamalini, 134 Wn.2d at 729 (quoting from Davis, 121 Wn.2d at 6).
We find no abuse of discretion in the challenged evidentiary rulings of the trial court. Nor is there any merit in Lyon’s challenge to the adequacy of the “to convict” instruction given by the court.