114 P.3d 646 (Wash. 2005), 74414-9, State v. Gamble

Docket Nº:74414-9.
Citation:114 P.3d 646, 154 Wn.2d 457
Opinion Judge:BRIDGE
Party Name:STATE of Washington, Respondent, v. Jacob GAMBLE, Petitioner.
Attorney:James J. Sowder, Vancouver, for Petitioner., Richard Alan Melnick, Philip A. Meyers, Thomas C. Duffy, Vancouver, for Respondent.
Case Date:June 23, 2005
Court:Supreme Court of Washington
 
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Page 646

114 P.3d 646 (Wash. 2005)

154 Wn.2d 457

STATE of Washington, Respondent,

v.

Jacob GAMBLE, Petitioner.

No. 74414-9.

Supreme Court of Washington, En Banc.

June 23, 2005

Argued Nov. 10, 2004.

Page 647

[154 Wn.2d 459] James J. Sowder, Vancouver, for Petitioner.

Richard Alan Melnick, Philip A. Meyers, Thomas C. Duffy, Vancouver, for Respondent.

BRIDGE, J.

¶ 1 This case requires us to consider whether the Court of Appeals, after properly vacating a conviction for second degree felony murder, erred in remanding the case with directions to enter a verdict of guilty on the offense of first degree manslaughter. Specifically, we must consider whether first degree manslaughter is a lesser included offense of second degree felony murder where second degree assault, as set forth in RCW 9A.36.021(1)(a), is the predicate felony. While both parties petitioned this court to review numerous issues, our grant of review is limited to the question of whether the Court of Appeals remand instructions were proper. We hold that despite the unique nature of the predicate assault elements, manslaughter [154 Wn.2d 460] is not a lesser included offense of second degree felony murder where second assault, RCW 9A.36.021(1)(a), is the predicate felony. We thus conclude the Court of Appeals erroneously remanded for an entry of conviction of first degree manslaughter.

I

¶ 2 On March 26, 1999, 19-year-old Jacob Gamble attended a party at a neighbor's house. By 11:30 p.m., over 50 individuals were at the party, most drinking alcohol or smoking marijuana. Gamble's friend, Kevin Phommahasay expressed an intent to confront and fight Curtis Esteban that night. When Esteban, along with his friend Daniel Carroll, arrived at the party, Phommahasay immediately went outside to confront Esteban and struck him in the head with a beer bottle. At that time, Gamble struck Carroll in the face, knocking him to the ground. Carroll hit his head on the ground and was rendered unconscious. Gamble and Ryan May then began to kick and stomp on Carroll. Carroll died of blunt head trauma.

¶ 3 The State charged Gamble with first degree felony murder with robbery as the predicate felony and, alternatively, with second degree felony murder with second degree assault as the predicate felony. At trial, Gamble requested the court instruct the jury on the offense of first degree manslaughter as a lesser included offense to the charge of second degree felony murder. The trial court denied Gamble's proposed instruction, ruling manslaughter is not a lesser included offense of felony murder. A jury convicted Gamble on both felony murder charges. Gamble appealed. 1

¶ 4 In relation to the second degree felony murder conviction, Gamble asserted that the trial court erred in failing to instruct the jury on manslaughter. Gamble argued that [154 Wn.2d 461] the lesser included offense test, as set forth in State v. Berlin, 133 Wash.2d 541, 545-46, 550, 947 P.2d 700 (1997), compelled a finding that manslaughter is a lesser included offense in this case. During the pendency of his appeal, this court decided In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002) (holding assault cannot serve as predicate felony for felony murder) and the Court of Appeals solicited additional briefing on its impact. Gamble, 116 Wash.App. 1016, 2003 WL 1298906, *6. In response to this request, in a reverse course from his earlier position, Gamble conceded in his supplemental briefing that Washington law does not provide for lesser included offenses to second degree felony murder. See Appellant's Second Suppl. Br. at 6 (noting appellant "is not allowed access to such lesser included-offenses [as manslaughter] if Felony Murder in the Second Degree is charged") (citing State v. Tamalini, 134 Wash.2d 725, 747, 953 P.2d 450 (1998)). The State consistently

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maintained, at trial and on appeal, that manslaughter is not, and cannot be, a lesser included offense of felony murder.

¶ 5 In light of the Andress decision, because the predicate felony with which Gamble was charged was an assault, the Court of Appeals vacated the second degree felony murder conviction. State v. Gamble, 118 Wash.App. 332, 336, 72 P.3d 1139 (2003). The Court of Appeals then independently crafted a remedy neither party sought. The Court of Appeals remanded to the trial court with directions to enter a guilty verdict on what it determined to be "the lesser included offense of first degree manslaughter." Gamble, 118 Wash.App. at 340, 72 P.3d 1139. In reaching this result, the Court of Appeals recognized that its ruling was contrary to decisions of this court explicitly holding that manslaughter is not a lesser included offense to felony murder. Id. (noting Tamalini, 134 Wash.2d at 729, 953 P.2d 450). The Court of Appeals nonetheless asserted it was bound by the lesser included offense standard set forth in State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978), and reaffirmed in Berlin, 133 [154 Wn.2d 462] Wash.2d at 548-49, 947 P.2d 700 2 Gamble, 118 Wash.App. at 340, 72 P.3d 1139. The Court of Appeals reasoned that, in this case, the Workman standard compelled a result contrary to our pronouncement in Tamalini. Id.

¶ 6 In petitioning for review, both Gamble and the State now contend that the Court of Appeals erred in holding that manslaughter is a lesser included offense of second degree felony murder. We granted review to decide whether the Court of Appeals properly remanded for entry of conviction of first degree manslaughter.

II

¶ 7 The sole dispositive issue Before the court is whether first degree manslaughter is a lesser included offense of second degree felony murder where assault, as defined in RCW 9A.36.021(1)(a), 3 is the predicate felony.

¶ 8 Defendants have a federal and state constitutional right to be informed of the charges against them. 4 We have stated that generally a defendant may be convicted only of those crimes with which he or she has been charged. Berlin, 133 Wash.2d at 544, 947 P.2d 700. However, both the defendant and the State have a statutory right to present lesser included offense instructions to the jury. Tamalini, 134 Wash.2d at 728, 953 P.2d 450. The relevant statute provides: "[T]he defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged [154 Wn.2d 463] in the indictment or information." RCW 10.61.006. 5 To establish that an offense is a lesser included offense, "first, each of the elements of the lesser offense must be a necessary element of the offense charged; second, the evidence in the case must support an inference that the lesser crime was committed." Berlin, 133 Wash.2d at 548, 947 P.2d 700

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(citing and reinstating rule set forth in Workman, 90 Wash.2d at 447-48, 584 P.2d 382) (referred to herein as the " Workman standard"). The first prong is often referred to as the "legal prong" and the second as the "factual prong." See, e.g., Tamalini, 134 Wash.2d at 729, 953 P.2d 450. The legal prong encompasses the constitutional requirement that a defendant have notice of the charges against him or her. Berlin, 133 Wash.2d at 546, 947 P.2d 700.

¶ 9 Applying this standard, we have previously held that manslaughter is not a lesser included offense to either degree of felony murder. These cases have consistently held that such an instruction would fail the legal prong of the Workman standard. See Tamalini, 134 Wash.2d at 729-30, 953 P.2d 450 (fails "legal prong" as "all of the elements of the lesser offenses were not necessary elements of the greater offense"); Berlin, 133 Wash.2d at 550, 947 P.2d 700 (reaffirming result reached in Davis, infra ); State v. Davis, 121 Wash.2d 1, 7, 846 P.2d 527 (1993) (noting "the specific mental elements required to prove first and second degree manslaughter [do] not apply to felony murder"); 6 State v. Dennison, 115 Wash.2d [154 Wn.2d 464] 609, 627, 801 P.2d 193 (1990) (fails the legal prong because "[t]he statutory definitions of first and second degree manslaughter require proof of specific mental elements that are not required to prove ... felony murder"); State v. Frazier, 99 Wash.2d 180, 191-92, 661 P.2d 126 (1983) (same).

¶ 10 Both parties rely on Tamalini for the proposition that manslaughter is not a lesser included offense of felony murder. As here, in Tamalini the defendant was convicted of second degree felony murder with second degree assault as the predicate felony. 134 Wash.2d at 727, 953 P.2d 450. The majority in Tamalini, without conducting an analysis of the predicate assault felony, concludes that the specific mental elements of manslaughter are not elements of the felony murder statutes. Id. at 729-30. Tamalini does not cite to the relevant assault statute in its opinion. Id. Nevertheless, Tamalini correctly concluded in holding that neither degree of manslaughter, in that case, was a lesser included offense of second degree felony murder. Id. This practice is consistent with this court's prior approach to the issue. See, e.g., Berlin, 133 Wash.2d at 549-50, 947 P.2d 700 (holding felony murder lacks mental elements required to prove manslaughter, but performing no explicit analysis of elements of predicate offense); Davis, 121 Wash.2d at 7, 846 P.2d 527 (same); Dennison, 115 Wash.2d at 627, 801 P.2d 193 (same); but see also Frazier, 99 Wash.2d at 192, 661 P.2d 126 (looking to elements of predicate felony and accordingly noting that felony murder requires no specific mental state "other than the one necessary for the predicate crime--in this case, robbery in the first degree"). In sum, in our previous cases regarding lesser included offenses to felony murder, we have compared the elements of manslaughter and felony murder without consistently...

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