State v. Fernandez-Medina

• Decision Date: 24 August 2000
• Docket Number: No. 67736-1.,67736-1.
• Citation: 6 P.3d 1150,141 Wash.2d 448
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Roiland FERNANDEZ-MEDINA, Petitioner.

6 P.3d 1150

141 Wash.2d 448

STATE of Washington, Respondent, v. Roiland FERNANDEZ-MEDINA, Petitioner.

No. 67736-1.

Supreme Court of Washington, En Banc.

Argued December 9, 1999.

Decided August 24, 2000.

Mary High, Tacoma, for Petitioner.

John Ladenburg, Pierce County Prosecutor, Barbara Corey-Boulet, Deputy, Michael Sommerfeld, Deputy, Tacoma, for Respondent.

ALEXANDER, J.

This appeal presents the question of whether the trial court erred in declining to instruct the jury that second degree assault is an inferior degree offense to the offense with which the defendant was charged, first degree assault. We reverse the Court of Appeals' decision affirming the trial court's refusal to give the inferior degree offense instruction, concluding that the defendant was entitled to the instruction because there was evidence in the record which raised an inference that Fernandez-Medina only committed second degree assault, rather than the charged offense of first degree assault.

I.

On September 28, 1996, Roiland Fernandez-Medina had a falling out with Ann Carpenter, his girl friend of several weeks. As a consequence, Carpenter told Fernandez-Medina to remove himself and his belongings from the apartment they shared. Fernandez-Medina complied with her request. Later that evening, Carpenter left her apartment to visit another acquaintance. Upon returning home, she became concerned when she saw a car that Fernandez-Medina had been known to drive parked outside her apartment. She then went to the neighboring apartment of Keith Clark and engaged in conversation there with her friends, Dorothy Perkins and Wayne Butler, about what she had just observed. Shortly thereafter, someone knocked on the door of Clark's apartment. Butler went to a window and observed that two men were standing just outside the door of the apartment. He then opened the door slightly, whereupon one of the men, later identified as Roiland Fernandez-Medina, pushed the door completely open and began firing a handgun into the apartment. Butler was struck by at least two bullets, one of which severed his spinal cord. Carpenter's response was to run into the adjacent bathroom as Fernandez-Medina strode into the apartment, firing his weapon at her.¹

Perkins also tried to run away from the shooting but as she did so, she stumbled and fell down. After Fernandez-Medina had fired approximately five shots from the handgun, his companion said something to him that was not understood by anyone else in the apartment. Fernandez-Medina then walked toward the front door. As he did so, he passed very close to Perkins, who was still lying in a prone position on the floor. According to Perkins, Fernandez-Medina paused and pointed his gun at her head. Perkins said that she closed her eyes and then heard "[a] clicking sound." Verbatim Report of Proceedings (VRP) at 411. None of the witnesses claimed that they saw Fernandez-Medina pull the trigger of the handgun at that point. Carpenter, who was peering out from behind the bathroom door, could see Fernandez-Medina, but her view of his handgun and Perkins was blocked. Carpenter said that she heard a "click, the sound of a gun" but indicated that "no bullet had come out" as Fernandez-Medina paused and pointed his gun at Perkins as he "ran slowly" out of the apartment. VRP at 157.

For the shooting of Butler and the alleged attempted shooting of Perkins, the Pierce County prosecutor charged Fernandez-Medina with two counts of attempted first degree murder and, alternatively, with two counts of first degree assault. At trial, Butler, Perkins, and Carpenter gave testimony that was consistent with the above factual recitation. Fernandez-Medina also testified but denied having been present at the apartment where the shooting took place. He claimed that he had spent that night at the home of a friend.

The defense presented testimony of an expert witness who indicated that various noises can emanate from the type of handgun allegedly used by Fernandez-Medina, even when the trigger is not pulled. In support of this testimony, the witness manipulated various models of .380 handguns,² in the presence of the jury, in order to demonstrate the various sounds such weapons can emit. The State's forensic expert also testified that such a handgun can make various "clicks," even when the trigger is not pulled. See, e.g. Verbatim Report of Proceedings at 316.

At the close of the presentation of evidence, Fernandez-Medina requested a jury instruction on second degree assault as an inferior degree offense to the first degree assault charges. The trial court declined to give his requested instruction and, instead, instructed only on attempted murder and, as an alternative, first degree assault. The jury found Fernandez-Medina guilty of two counts of first degree assault. He appealed to the Court of Appeals, Division Two, assigning error only to the trial court's failure to give his proposed second degree assault instruction on count II, in which it was alleged that he assaulted Perkins. The State responded that because Fernandez-Medina presented an alibi defense, he was not entitled to an instruction on an inferior degree offense. The State also claimed that the evidence was insufficient to support the giving of the proposed instruction.

The Court of Appeals affirmed Fernandez-Medina's conviction, holding that the trial court properly refused to instruct the jury on second degree assault, on the basis that the alibi defense that Fernandez-Medina presented negated an inference that only the lesser included offense had been committed. State v. Fernandez-Medina, 94 Wash.App. 263, 267, 971 P.2d 521,review granted, 137 Wash.2d 1032, 980 P.2d 1285 (1999). We thereafter granted Fernandez-Medina's petition for review.

II.

Fernandez-Medina contends here, as he did at the Court of Appeals, that the trial court erred in refusing to instruct the jury that assault in the second degree is an inferior degree offense of first degree assault as charged in count II of the information. Fernandez-Medina asserts that because he wished to present a theory to the jury that he committed only the inferior degree offense of second degree assault, it was error for the trial court not to give his requested instruction. This argument, he suggests, is consistent with the view that "[i]f any one of the theories argued by [a] defendant [is] supported by substantial evidence, it should [be] submitted to the jury." State v. Griffith, 91 Wash.2d 572, 574-75, 589 P.2d 799 (1979). The State responds that because Fernandez-Medina presented an alibi theory, "which is a complete defense to the crime charged and the lesser degree offense," the evidence supporting the requested instruction on the inferior degree offense is negated. Resp't's Br. at 17. The trial court's refusal to instruct the jury on second degree assault, the State opines, was, therefore, not error.

It is an "ancient doctrine" that a criminal defendant may be held to answer for only those offenses contained in the indictment or information. Schmuck v. United States, 489 U.S. 705, 717-18, 109 S.Ct. 1443, 103 L.Ed.2d 734, reh'g denied, 490 U.S. 1076, 109 S.Ct. 2091, 104 L.Ed.2d 654 (1989); see also State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988)

. Consistent with that notion, Washington Const. art. I, § 22 preserves a defendant's "right to be informed of the charges against him and to be tried only for offenses charged." State v. Peterson, 133 Wash.2d 885, 889, 948 P.2d 381 (1997). However, under RCW 10.61.003, a defendant can be found guilty of a crime that is an inferior degree of the crime charged. Similarly, under RCW 10.61.006, a defendant can be convicted of an offense that is a lesser included offense of the crime charged, without being separately charged.³ In some situations, the defendant is implicitly charged with the elements of the lesser or inferior offense when he is charged with the greater offense. See State v. Berlin, 133 Wash.2d 541, 545, 947 P.2d 700 (1997).

We recently held that an instruction on an inferior degree offense is properly administered when:

"(1) the statutes for both the charged offense and the proposed inferior degree offense `proscribe but one offense'; (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense; and (3) there is evidence that the defendant committed only the inferior offense."

Peterson, 133 Wash.2d at 891, 948 P.2d 381 (quoting State v. Foster, 91 Wash.2d 466, 472, 589 P.2d 789 (1979) and State v. Daniels, 56 Wash.App. 646, 651, 784 P.2d 579 (1990)). An instruction on the close relative of an inferior degree offense, a lesser included offense, is warranted when two conditions are met: "[f]irst, each of the elements of the lesser offense must be a necessary element of the offense charged[, and] [s]econd, the evidence in the case must support an inference that the lesser crime was committed." State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978) (citations omitted).

In determining that Fernandez-Medina was not entitled to the requested instruction on second degree assault, the trial court and the Court of Appeals both failed to observe that under our case law the analysis that the trial court engages in when considering a request for an instruction on an inferior degree offense differs from the analysis it engages in when considering a request for a lesser included offense instruction. Indeed, many courts have failed to observe the distinction, and, as we have said, "[t]his confusion of terms is unfortunate because it blurs the difference between the two" types of included offenses. State v. Tamalini, 134 Wash.2d 725, 732, 953 P.2d 450 (1998).

The failure to note the distinction between lesser included and inferior degree offense instructions is not, however, significant in this case. This is so because the test for determining if a party is entitled to...