State v. Berlin, 17862-1-II
| Decision Date | 01 March 1996 |
| Docket Number | No. 17862-1-II,17862-1-II |
| Citation | 911 P.2d 414,80 Wn.App. 734 |
| Parties | The STATE of Washington, Respondent, v. Leslie W. BERLIN, Appellant. |
| Court | Washington Court of Appeals |
Thomas Adkins Copland, Copland & Micheau, Aberdeen, for Appellant.
Gerald R. Fuller, Grays Harbor County Deputy Pros. Atty., Office of Prosecutor, Montesano, for Respondent.
*
Defendant Leslie Berlin killed his friend Robert Kuehny by shooting him in the abdomen with a shotgun. The State charged Berlin with second degree murder by the alternative means of intentional murder and felony murder committed in the course of second degree assault. The jury found Berlin not guilty of second degree murder, but guilty of manslaughter in the first degree. We reluctantly conclude that recent Supreme Court decisions compel us to hold that manslaughter is
not a lesser included offense of second degree murder. We reverse Berlin's conviction.
On the night of August 14, 1993, Berlin and Kuehny drank heavily and argued heatedly. Berlin shot Kuehny in the abdomen from a distance of six inches, killing him. Berlin told Kuehny's girlfriend that he shot Kuehny because "he deserved it; that nobody treats [me] that way." Berlin testified at trial that the gun went off after Kuehny tried to pull it away from him, and that he did not intend to shoot Kuehny.
Berlin was charged with second degree murder committed in violation of RCW 9A.32.050(1)(a), intentional murder, and RCW 9A.32.050(1)(b), felony murder, in the course of the crime of second degree assault. Before trial, Berlin moved to compel the State to elect between the two theories:
Based upon the Washington State Supreme Court's holding in State v. Davis, 121 Wash.2d 1 (1993), it is the defendant's position that second [degree] murder and second degree felony murder are now two separate and distinct crimes rather than "alternative means" and the defendant respectfully requests that the court enter an order requiring the state to elect which charge they are going to proceed on at trial herein.
The trial court denied the motion, but pointed out that the issue of lesser included instructions would be decided at trial based on the evidence presented.
Berlin renewed his motion for election in his trial brief, and argued against any lesser included instruction for the crime of felony murder. The trial court instructed the jury that, "[t]he crime of Murder in the Second Degree necessarily includes the lesser crimes of Manslaughter in the First Degree and Manslaughter in the Second Degree." The court instructed the jury on the elements of manslaughter. Berlin excepted to the instructions on the lesser
included offenses. The jury found Berlin not guilty of second degree murder, but guilty of first degree manslaughter.
We reject Berlin's argument that intentional second degree murder and felony second degree murder are separate and distinct crimes instead of alternative means of committing one crime. RCW 9A.32.050 defines second degree murder:
(1) A person is guilty of murder in the second degree when:
(a) With intent to cause the death of another person but without premeditation, he causes the death of such person or of a third person; or
(b) He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants....
The Supreme Court has outlined the factors for courts to consider in ascertaining whether the Legislature intended to define a single crime that may be committed by different means or whether it intended to define two crimes:
[T]here may be many factors that will aid the court, such as the title of the act; whether there is a readily perceivable connection between the various acts set forth; whether the acts are consistent with and not repugnant to each other; and whether the acts may inhere in the same transaction. 1
The Court of Appeals applied these factors to second degree murder in State v. Russell 2 to find that the Legislature intended to specify alternative means of committing a single crime:
The Legislature placed both RCW 9A.32.050(1)(a) and (b) under the title "Murder in the Second Degree." Laws of 1975, 1st Ex.Sess., ch. 260, § 9A.32.050, p. 834. The readily perceivable connection between the acts set forth is a common object: causing the death of another person. The methods of committing second degree murder are not repugnant to each other; proof of an offense under one subsection does not disprove an offense under the other subsection. Therefore, it is immaterial that RCW 9A.32.050(1)(a) and (b) contain different elements. The prohibited acts may inhere in the same transaction, although they are not so nearly indistinguishable as the acts considered in State v. Arndt.
In Berlin's case, the acts relating to the charges of felony murder and intentional murder were very closely related.
Berlin argues that this analysis has been superseded by the decision of our Supreme Court in State v. Davis. 3 In Davis, the Supreme Court held that manslaughter is not a lesser included offense of second degree felony murder because the numerous alternative means of committing second degree felony murder render that offense "unamenable to a lesser included offense instruction." 4 This is problematic because in other cases the court has held that manslaughter is a lesser included offense of intentional murder. 5 Berlin argues that intentional murder, which includes the lesser offense of manslaughter, must be a different crime from second degree felony murder, which does not include any lesser offense.
Instead of supporting Berlin's argument, Davis contradicts it. The Davis court relied on the earlier decision in State v. Curran, 6 in which the Supreme Court held that reckless driving was not a lesser included offense of vehicular homicide because it was not included within each of the alternative means of committing vehicular homicide:
In Curran, the defendant requested an instruction on reckless driving as a lesser included offense of vehicular homicide. This court stated the following:
Curran would be entitled to a jury instruction under existing Washington law on reckless driving only if the crime of vehicular homicide could not be committed without also committing the crime of reckless driving.
(Italics ours.) Curran, at 183 . We held that reckless driving was not a lesser included offense because an alternate means for committing the crime existed--i.e., driving with disregard for the safety of others. 7
In other words, the Davis court reasoned that a lesser included offense instruction was not available if the lesser offense was not included within each alternative means of committing the crime, even those means not charged. Davis impliedly assumes that a lesser offense is not necessarily a lesser included offense of each alternative means of committing a crime. Thus, Davis contradicts Berlin's argument that alternative means of committing a crime must have the same lesser included offenses.
The trial court properly denied Berlin's motion to require the State to elect between intentional second degree murder and felony second degree murder.
Berlin argues, again based on Davis, that the trial court erred in instructing the jury on the lesser included offense of manslaughter, because manslaughter is not included within second degree felony murder. We reluctantly agree with Berlin and, accordingly, we are compelled to reverse his conviction. This is an unfortunate--and doubtless an unintended--consequence of Curran and Davis. But as an intermediate appellate court we are bound to follow these most recent decisions of our Supreme Court on the subject. 8
The Legislature created the right to instructions on a lesser included offense when it enacted RCW 10.61.006:
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.
In State v. Workman, the Court announced an oft-cited two-prong test for determining whether to instruct on 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. 9
Applying the first, or "legal," prong of the Workman test, first degree and second degree manslaughter are lesser offenses of the crime of intentional murder. Under this test, we examine the elements to determine whether by committing the greater crime, the defendant also commits the lesser crime. Under RCW 9A.32.050(a), intentional murder is defined as intentionally causing the death of another. Under RCW 9A.32.060(1), first degree manslaughter is defined as recklessly causing the death of another. 10 Second degree manslaughter is causing the death of another with criminal negligence. 11 RCW 9A.08.010 ranks mental states so that the higher mental state includes lower mental states, therefore intent necessarily includes recklessness and criminal negligence. 12 Thus, the elements of manslaughter in the first and second degree are necessary elements of second degree intentional murder.
Applying the factual prong of the Workman test to the facts of this case reveals that evidence supports a conviction of manslaughter. In this case there was considerable testimony that Berlin was intoxicated at the time he killed Kuehny, which calls into doubt his ability to form an intent to kill. Under an established line of cases, first and second degree manslaughter are lesser included offenses of intentional murder if the evidence presents an issue regarding intoxication and the defendant's ability to...
To continue reading
Request your trial
-
State v. Frazier
...109 Wash.2d at 604, 746 P.2d 807. This court is bound to follow the decisions of our state Supreme Court. See State v. Berlin, 80 Wash.App. 734, 740, 911 P.2d 414 (1996)(citing State v. Gore, 101 Wash.2d 481, 487, 681 P.2d 227 (1984)). Cases addressing negligent delay do not specifically ad......
-
State v. Berlin
...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 Under the Washington Constitution, the accused in a crimi......
-
State v. Oppelt, No. 62074-6-I (Wash. App. 4/12/2010)
...and the possible burden on that proceeding, are all considerations which must be taken into account."). 10. State v.Berlin, 80 Wn. App. 734, 740, 911 P.2d 414 (1996), reversed on other grounds, 133 Wn.2d 541, 947 P.2d 700 (1997). 11. State v. Salavea, 151 Wn.2d 133, 139, 86 P.3d 125 (2004).......
- State v. Ortiz