State v. Tamalini

• Decision Date: 26 March 1998
• Docket Number: No. 64303-2,64303-2
• Citation: 953 P.2d 450,134 Wn.2d 725
• Parties: STATE of Washington, Respondent, v. Reno TAMALINI, Petitioner.
• Court: Washington Supreme Court

Page 725

134 Wn.2d 725

953 P.2d 450

STATE of Washington, Respondent, v. Reno TAMALINI, Petitioner.

No. 64303-2.

Supreme Court of Washington En Banc.

Argued Oct. 24, 1996.

Decided March 26, 1998.

Anna-Mari Sarkanen, Seattle, Amicus Curiae for Washington Association of Criminal Defense Attorneys.

Nielsen, Broman & Associates, Eric Broman, Eric Nielsen, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, Donald Raz and Lee Yates, Deputies, Seattle, for Respondent.

ALEXANDER, Justice.

The issue we are confronted with here is whether the offenses of manslaughter in the first or second degree are lesser included offenses or inferior degrees of second degree felony murder. We conclude that they are not and, consequently, affirm the Court of Appeals.

The charge against Reno Tamalini that led to this appeal arose out of an altercation that Tamalini and two of his companions, Laeli Talaga and Pete Leaupepetele, had with Robert Jackson and Michael Hall. The altercation, which took place in the parking lot of a Seattle nightclub, resulted in Jackson sustaining severe injuries to his head. These injuries ultimately led to Jackson's death some six weeks later. As a consequence, Tamalini, Leaupepetele and Talaga were, together, charged with second degree felony murder "while committing and attempting to commit the crime of Assault in the Second Degree." Clerk's Papers at 4.

During trial, Hall and several patrons of the nightclub testified about the events that led to Jackson's death. Hall told the jury that he witnessed Tamalini holding a piece of concrete above his head as he stood over Jackson's body. Hall said that he then charged Tamalini and the two men engaged in a struggle until Hall was knocked unconscious.

Tamalini took the stand in his own defense and testified that he was so intoxicated on the night of the incident that his only recollection was being struck by a person or object and then waking up later in a car. Leaupepetele also took the stand and told the jury that he fought with Jackson in self-defense after Jackson attacked him with a beer bottle.

Talaga and Tamalini proposed a jury instruction which read, in pertinent part, as follows:

the defendant may be found guilty of any lesser crime, the commission of which is necessarily included in the crime charged....

The crime of second degree murder necessarily includes the lesser crimes of first degree manslaughter and also second degree assault; first degree manslaughter necessarily includes the lesser crime of second degree manslaughter....

When a crime has been proven against a person and there exists reasonable doubt as to which of two or more degrees or crimes that person is guilty, he or she shall be convicted only of the lowest degree....

Supplemental Br. of Pet'r at App. B. The trial court refused to submit the proposed instruction to the jury, concluding that, "I just cannot find from reading the statutes that they [manslaughter and felony murder statutes] are, in fact--they necessarily contain the same elements, the lesser included. And I'm not going to give the manslaughter lesser included." Verbatim Report of Proceedings at 1245-46.

The jury found Tamalini and Leaupepetele guilty of second degree felony murder. It acquitted Talaga. Tamalini and Leaupepetele appealed separately to Division One of the Court of Appeals and their convictions were both affirmed. State v. Tamalini, No. 31661-3-I, 1996 WL 537228 (Wash.Ct.App. June 3, 1996). Tamalini thereafter petitioned this court for review. We granted his petition "solely on the issue of whether the trial court erroneously failed to instruct the jury on manslaughter." Supreme Court Order Cause No. 64303-2, 129 Wash.2d 1029, 922 P.2d 97 (Sept. 4, 1996).

I. Is First or Second Degree Manslaughter a Lesser Included Offense of Second Degree Felony Murder?

The right to have a lesser included offense instruction presented to the jury is, in appropriate cases, a statutory right. See State v. Bowerman, 115 Wash.2d 794, 805, 802 P.2d 116 (1990). This right arises out of RCW 10.61.006, which states "[i]n all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that which he is charged in the indictment or information."

Either the defense or the prosecution is entitled to request a lesser included offense instruction and we have developed a two-part test for determining when such an instruction is warranted: "First, each of the elements of the lesser offense must be a necessary element of the offense charged [legal prong]. Second, the evidence in the case must support an inference that the lesser crime was committed [factual prong]." State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978) (citations omitted). Because the trial court rejected Tamalini's proposed instruction on the basis that first and second degree manslaughter are not, as a matter of law, lesser included offenses of second degree felony murder, we review the claimed error de novo. State v. Lucky, 128 Wash.2d 727, 731, 912 P.2d 483 (1996), overruled on other grounds by State v. Berlin, 133 Wash.2d 541, 947 P.2d 700 (1997) (citing Braden v. Rees, 5 Wash.App. 106, 110, 485 P.2d 995, review denied, 79 Wash.2d 1009 (1971)).

Tamalini's contention that first and second degree manslaughter are lesser included offenses of second degree felony murder fails the legal prong of the Workman analysis. Our conclusion in that regard is fully supported by our previous decision in State v. Davis, 121 Wash.2d 1, 6, 846 P.2d 527 (1993). Davis, like Tamalini, was charged with second degree felony murder with second degree assault as the predicate felony. He requested a jury instruction almost identical to that sought here by Tamalini. The trial court refused to give the proposed instruction and Davis was ultimately convicted of second degree felony murder. Davis thereafter appealed to the Court of Appeals, Division One, which reversed his conviction, concluding that it was error to fail to give the proposed instruction. State v. Davis, 64 Wash.App. 511, 827 P.2d 298 (1992), rev'd, 121 Wash.2d 1, 846 P.2d 527 (1993). On review, we reversed the Court of Appeals and reinstated Davis's conviction, concluding that there are no lesser included offenses to second degree felony murder. Davis, 121 Wash.2d at 6, 846 P.2d 527.

In Davis, we relied, in part, on State v. Dennison, 115 Wash.2d 609, 801 P.2d 193 (1990) and State v. Frazier, 99 Wash.2d 180, 661 P.2d 126 (1983), ¹ cases in which we held that both degrees of manslaughter are not lesser included offenses of first degree felony murder because the specific mental elements of first and second degree manslaughter are not elements of first degree felony murder. Applying that rationale to second degree felony murder, which does not structurally differ from first degree felony murder, we concluded that all of the elements of the lesser offenses were not necessary elements of the greater offense. Davis, 121 Wash.2d at 6-7, 846 P.2d 527.

Davis is controlling. We conclude, therefore, that the trial court did not err in refusing to instruct the jury that first and second degree manslaughter are lesser included offenses of second degree felony murder.

II. Is First or Second Degree Manslaughter an Inferior Degree of Second Degree Felony Murder?

Tamalini's second contention is that the trial court erred in refusing to give the proposed jury instruction on the basis that first and second degree manslaughter are inferior degrees of second degree felony murder. Preliminarily, we note that Tamalini's proposed instruction does not contain the words "inferior degree." Consequently, it is technically a stretch to say that Tamalini requested an instruction that first and second degree manslaughter are inferior degree offenses of second degree felony murder. A defendant cannot claim that the trial court erred in refusing an instruction he did not offer unless the failure to so instruct is violative of a constitutional right. State v. Scott, 93 Wash.2d 7, 14, 604 P.2d 943, cert. denied, 446 U.S. 920, 100 S.Ct. 1857, 64 L.Ed.2d 275 (1980). Although Tamalini does not claim that a constitutional right was violated by the trial court when it declined to give the proposed instruction, we nevertheless choose to consider the claimed error because the terms "inferior degree offense" and "lesser included offense" have often been used interchangeably. Thus it is likely that Tamalini intended his proposed instruction to apply to both. ²

As a general rule, criminal defendants are entitled to notice of the charge they are to meet at trial and may be convicted only of those crimes charged in the information. State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988). However, RCW 10.61.003 provides that a criminal defendant may also be convicted of a crime which is an inferior degree of the crime charged, the statute reading as follows: "Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense." ³

As noted above, the terms "lesser included offense" and "inferior degree offense" have often been used interchangeably. See State v. Berge, 25 Wash.App. 433, 607 P.2d 1247, review denied, 94 Wash.2d 1016 (1980). See also State v. Dodd, 53 Wash.App. 178, 181, 765 P.2d 1337 (1989); State v. Boyd, 21 Wash.App. 465, 468, 586 P.2d 878 (1978); State v Humphries, 21 Wash.App. 405, 407, 586 P.2d 130 (1978). This confusion of terms is unfortunate because it blurs the difference between the two. The test, as we noted above, for determining if a crime is a lesser included offense is the Workman test. On the other hand, a defendant is entitled to an instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed...