State v. Berlin

• Decision Date: 02 December 1997
• Docket Number: No. 63891-8,63891-8
• Citation: 133 Wn.2d 541,947 P.2d 700
• Court: Washington Supreme Court
• Parties: STATE of Washington, Petitioner, v. Leslie W. BERLIN, Respondent.

Page 541

133 Wn.2d 541

947 P.2d 700

STATE of Washington, Petitioner, v. Leslie W. BERLIN, Respondent.

No. 63891-8.

Supreme Court of Washington En Banc.

Argued Oct. 9, 1996.

Decided Nov. 20, 1997.

As Modified Dec. 2, 1997.

H. Steward Menefee, Grays Harbor County Prosecutor, Gerald R. Fuller, Deputy County Prosecutor, Montesano, for Petitioner.

Thomas Copland, Aberdeen, for Respondent.

JOHNSON, Justice.

Once again, we are asked to interpret RCW 10.61.006, which requires us to revisit our decision in State v. Lucky, 128 Wash.2d 727, 912 P.2d 483 (1996). This case, along with its companion case, State v. Warden, 133 Wash.2d 559, 947 P.2d 708 (1997), presents the issue of whether jury instructions may be given for manslaughter when a defendant is charged with both felony murder and intentional or premeditated murder. We hold manslaughter is a lesser included offense of intentional or premeditated murder in this case. The State is not required to elect between the alternative means of committing second degree murder. However, the jury must be instructed that manslaughter is a lesser included offense of intentional murder only.

In this case, it is the State that argues the manslaughterinstructions given at trial were correct, and asks us to overrule our decision in Lucky. In Warden, the companion case, it is the Defendant who sought manslaughter instructions and asks us to overrule Lucky. We take this opportunity to reaffirm and clarify our longstanding interpretation of when a lesser included offense instruction is available and, to the extent our opinion in Lucky is inconsistent with this opinion, it is expressly overruled.

Here, the Court of Appeals reversed Defendant's manslaughter conviction, holding manslaughter is not a lesser included offense of second degree murder and, therefore, no instruction for manslaughter may be given when a defendant is charged with second degree murder by the alternative means of intentional murder and felony murder. See State v. Berlin, 80 Wash.App. 734, 911 P.2d 414 (1996). We reverse the Court of Appeals and affirm the trial court's conviction.

I

Under the Washington Constitution, the accused in a criminal trial has the right to be informed of the nature and cause of the offense against which he or she must defend at trial. Const. art. I, § 22 (amend.10). Generally, a defendant can be tried and convicted only of crimes with which he or she is charged. State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988). However, at common law, a jury was permitted to find a defendant guilty of a lesser offense necessarily included in the offense charged. Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 2387, 65 L.Ed.2d 392 (1980).

This rule originally developed as an aid to the prosecution when the evidence introduced at trial failed to establish an element of the crime charged. Beck, 447 U.S. at 633, 100 S.Ct. at 2387. Thus, the rule gave the prosecution the flexibility to instruct the jury consistent with the evidence actually presented. The rule also benefited the defendant by providing a third alternative to either conviction for the offense charged or acquittal. Beck, 447 U.S. at 633, 100 S.Ct. at 2387. Thus, the rule allowed the defendant to instruct the jury on an alternative theory of the case, a lesser crime than that charged by the State.

Washington codified this common law rule at RCW 10.61.006. The statute provides: "In all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information." Our lesser included statute in some form dates back to its enactment by the Legislature of the Washington Territory in 1854. Wash. Terr. § 123, at 20 (1854).

As early as 1894, we interpreted this statute to include the constitutional notice requirement. State v. Ackles, 8 Wash. 462, 464-65, 36 P. 597 (1894). In Ackles, we found that assault with a deadly weapon was not a lesser included offense of assault to commit murder because assault with a deadly weapon included an additional element--that it be committed without considerable provocation or that it be the impulse of a willful, abandoned and malignant heart. Ackles, 8 Wash. at 465, 36 P. 597. The information there did not set forth these additional elements, nor were these elements included in the statutory definition of the greater offense; therefore, the defendant could not be convicted of the lesser offense. Ackles, 8 Wash. at 464-65, 36 P. 597. This analysis, while not explicitly stating our modern test for lesser included offenses, begins our history of looking to the elements of the statutory offenses as charged. Because the defendant must have notice of the offense of which he or she is charged, the elements of any lesser included offense must necessarily be included in the elements of the offense as charged. A defendant thus implicitly receives constitutionally sufficient notice.

Our modern interpretation of RCW 10.61.006 is set forth in State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978). In Workman, we explicitly established a two-part test to serve as the basis for our lesser included analysis. 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. Workman, 90 Wash.2d at 447-48, 584 P.2d 382. We refer to the first prong of the test as the "legal prong" and the second prong as the "factual prong." This has been the test for lesser included offenses and will continue to be the test for lesser included offenses. ¹

The Workman test incorporates the constitutional requirement of notice into its legal prong. See Ackles, 8 Wash. at 464, 36 P. 597. Into its factual prong, it incorporates the rule that each side may have instructions embodying its theory of the case if there is evidence to support that theory. It would be error to give an instruction not supported by the evidence. State v. Benn, 120 Wash.2d 631, 654, 845 P.2d 289 (1993). We have explained the factual prong of Workman by stating:

It is not enough that the jury might simply disbelieve the State's evidence. Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.

State v. Fowler, 114 Wash.2d 59, 67, 785 P.2d 808 (1990) (citing State v. Rodriguez, 48 Wash.App. 815, 820, 740 P.2d 904 (1987)).

In Lucky, we announced the Workman rule had been replaced with a new rule drawn from State v. Curran, 116 Wash.2d 174, 804 P.2d 558 (1991) and State v. Davis, 121 Wash.2d 1, 846 P.2d 527 (1993). We stated:

[I]f, when viewed from a perspective where only the statutory elements are considered, it is possible to commit the "greater offense" without necessarily committing the purported lesser offense, an instruction on the lesser offense is not warranted. The logical consequence of this rule is that whenever there are alternative means of committing a "greater" crime, there can be no lesser included offense unless the alternative means each overlap to the extent that they are not mutually exclusive.

Lucky, 128 Wash.2d at 735, 912 P.2d 483.

In Lucky, the defendant was charged with second degree assault, committed with a deadly weapon, under RCW 9A.36.021(1). The defendant sought a jury instruction for the offense of unlawful display of a weapon under RCW 9.41.270(1). Lucky argued the legal prong of the Workman test was met for the offense of unlawful display of a weapon because all of the elements of the unlawful display of a weapon charge are necessary elements of assault in the second degree committed with a deadly weapon. The State argued it was not a lesser included offense because it is possible to commit second degree assault, under RCW 9A.36.021, without displaying a deadly weapon.

We looked to our decisions in Curran and Davis, and interpreted them as requiring us to look to "the elements of the pertinent charged offenses as they appeared in the context of the broad statutory perspective, and not in the more narrow perspective of the offenses as prosecuted." Lucky, 128 Wash.2d at 734, 912 P.2d 483. In other words, we interpreted our own case law to require us to look to the broad statutory elements of second degree assault, rather than second degree assault, committed with a deadly weapon. Because Lucky failed to convince us that the rule established by this court in Curran and Davis was either incorrect or harmful, we ruled in favor of the State's analysis. Stare decisis requires a clear showing that an established rule is incorrect and harmful before it is abandoned. Lucky, 128 Wash.2d at 735, 912 P.2d 483.

However, we now find our decision in Lucky both incorrect and harmful. First, our decision in Lucky would virtually eliminate the Legislature's codification of a common law rule. This goes against our basic rule of statutory construction to avoid rendering meaningless any provision of a statute. In re Estate of O'Brien, 109 Wash.2d 913, 918, 749 P.2d 154, 81 A.L.R.4th 1111 (1988). Second, the decision is incorrect because it effectively overruled cases without the requisite showings of incorrectness and harmfulness. Third, the decision is harmful because the lesser included doctrine was appropriately and fairly set forth under the Workman test. Fourth, the decision is harmful because the Lucky rule is inequitable in that it precludes a lesser included offense instruction whenever a crime may be statutorily committed by alternative means. A lesser offense will seldom satisfy every statutory alternative means of committing the greater offense. As these companion cases so aptly illustrate, an inequity may arise for either the prosecution or the defense.

A lesser included instruction is available to both the prosecution and the defense, the constitutional requirement of notice is...