State v. Bowerman
| Decision Date | 13 December 1990 |
| Docket Number | No. 57047-7,57047-7 |
| Citation | 115 Wn.2d 794,802 P.2d 116 |
| Parties | The STATE of Washington, Respondent, v. Diane Elaine BOWERMAN, Petitioner. En Banc |
| Court | Washington Supreme Court |
Washington Appellate Defender Ass'n, Jesse Wm. Barton, Suzanne Lee Elliott, Julie A. Kesler, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Theresa Fricke, Deputy, Seattle, for respondent.
A jury found Diane Bowerman guilty of aggravated first degree murder. In an unpublished opinion, the Court of Appeals affirmed the conviction. We granted her petition for review to consider the following questions:
(1) Since Bowerman was charged in the alternative with felony murder, to which if she pleaded guilty she would have received a maximum penalty of life with the possibility of parole, and aggravated first degree murder, does her sentence of life in prison without the possibility of parole unconstitutionally penalize her for exercising her right to trial?
(2) Did the trial court's refusal to grant instructions on the lesser included offenses of second degree murder and first and second degree manslaughter require reversal?
(3) Was she denied effective assistance of counsel?
After considering all of these issues, we affirm the conviction and sentence.
On August 4, 1987, James Hutcheson killed Matthew Nickel by striking him several times in the head with a tire iron. The next day the King County prosecutor filed an information accusing Diane Bowerman (Nickel's coworker and former girlfriend), Diane Peterson, and Hutcheson of premeditated first degree murder. The State later amended the information to charge Hutcheson with killing Nickel pursuant to an agreement that he receive money for the murder. 1
On October 22, the State filed a third amended information accusing Bowerman of committing aggravated murder in the first degree by paying Hutcheson to kill Nickel. On that same day, defense counsel informed the State that Bowerman would present a diminished capacity defense at trial.
On the first day of the trial, in contemplation that the jury might accept Bowerman's diminished capacity claim, the State moved to amend the information to add a count of first degree felony murder. The prosecutor characterized her amendment as merely adding a lesser included offense to the information. The trial court ruled that the defense had adequate notice of the facts supporting the felony murder charge and allowed the amendment. Bowerman did not request a continuance.
During the trial Bowerman presented expert testimony that she was incapable of forming either the intent or the premeditation to kill Nickel. The defense theory of the case was that Bowerman contracted with Hutcheson merely to injure Nickel, and that she neither wanted nor contemplated Nickel's death.
At the close of the trial, defense counsel requested jury instructions for the lesser included offenses of second degree murder and first and second degree manslaughter. The trial court refused the offered instructions, and defense counsel timely objected. Over defense counsel's objection, the trial court did instruct the jury that felony first degree murder was a lesser included offense of aggravated first degree murder.
The jury found Bowerman guilty of aggravated first degree murder. The court sentenced her to life without possibility of parole. In an unpublished opinion, the Court of Appeals affirmed the conviction and sentence.
Bowerman argues that her sentence unconstitutionally penalizes her for exercising her right to a jury trial. She bases her argument on the holding in United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968). In Jackson, the Supreme Court held the Federal Kidnapping Act unconstitutional, since the act imposed a greater penalty on those who were convicted by a jury than it did on those who pleaded guilty. Bowerman asserts that the sentence she received is greater than the one she would have received if she pleaded guilty. Therefore, she argues, her sentence is unconstitutional. In order to invoke the Jackson doctrine, Bowerman first raises several issues related to the amendment of the information, the trial court's failure to rearraign her on the fourth amended information, and her right to plead guilty.
Bowerman argues that the trial court erred in not rearraigning her on the fourth amended information containing the felony murder charge. If the trial court had rearraigned her, Bowerman asserts she had a right to plead guilty to just the felony murder charge, thereby foreclosing any trial on the aggravated murder charge. She does not argue that any of these alleged errors by themselves require reversal of her sentence. Instead, she raises these issues because she believes she needs to assert her right to plead guilty in order to raise the Jackson issue. The Jackson analysis does not, however, hinge on whether the defendant has a right to plead guilty. Instead, the focus is on whether the statutory scheme unconstitutionally infringes defendant's right to trial. Nonetheless, we will briefly discuss Bowerman's claim that she had a right to plead guilty to the felony murder portion of the amended information, and that she would have thereby avoided the greater penalty associated with a trial on the aggravated murder charge.
There is no constitutional right to plead guilty. Jackson, 390 U.S. at 584, 88 S.Ct. at 1217; State v. Martin, 94 Wash.2d 1, 4, 614 P.2d 164 (1980). However, the State may confer a statutory right to plead guilty. North Carolina v. Alford, 400 U.S. 25, 38 n. 11, 91 S.Ct. 160, 168 n. 11, 27 L.Ed.2d 162 (1970); Martin, 94 Wash.2d at 4, 614 P.2d 164. In State v. Martin, supra, this court held that CrR 4.2(a) 2 grants a criminal defendant the right to plead guilty "unhampered by a prosecuting attorney's opinions or desires." Martin, at 5, 614 P.2d 164. However, that right is not, as Bowerman asserts, a right to plead guilty to just one alternative means of committing a crime when more than one means is charged. The statutory right to plead guilty is a right to plead guilty to the information as charged.
In State v. Duhaime, 29 Wash.App. 842, 631 P.2d 964 (1981), review denied, 97 Wash.2d 1009 (1982), the defendant went to trial on several charges. Count 3 of the information charged the defendant with having committed premeditated murder in the first degree and felony murder. Mid-trial the defendant attempted to enter a plea of guilty to just the felony murder portion of count 3. The judge refused to accept the guilty plea, and the jury found the defendant guilty of premeditated murder. The Court of Appeals upheld the conviction, noting that nothing in Martin or the court rules requires that a defendant be allowed to plead guilty to a lesser offense solely to avoid the harsher punishment of the greater offense. Duhaime, 29 Wash.App. at 854, 631 P.2d 964. In essence, the Duhaime court held that the right to plead guilty is only a right to plead as charged.
Bowerman's situation is similar to that of the defendant in Duhaime. Count 1 of the fourth amended information charged Bowerman with the single crime of first degree murder. The count alleged two alternative ways of committing that single crime: (1) aggravated, premeditated murder, and (2) felony murder. Premeditated murder and felony murder are not separate crimes. They are alternate ways of committing the single crime of first degree murder. State v. Ellison, 36 Wash.App. 564, 574-75, 676 P.2d 531, review denied, 101 Wash.2d 1010 (1984). Where there are alternate ways to commit a crime it is permissible to charge both alternatives in the same count. State v. Scott, 64 Wash.2d 992, 993, 395 P.2d 377 (1964). Had Bowerman been rearraigned on the amended information, she would have been rearraigned on both alternate ways of committing the one crime of first degree murder charged in count 1. At that time she would have had a statutory right to plead guilty to first degree murder. She would not have had the right to choose one portion (felony murder) of the charges against her and plead guilty to just that portion of the charge.
This is consistent with our holding in State v. James, 108 Wash.2d 483, 739 P.2d 699 (1987). In James, the defendant entered a not guilty plea to a charge of second degree murder. After further investigation the State amended the information to charge premeditated first degree murder. The defendant opposed the amendment, and sought to plead guilty to the original charge of second degree murder. The trial court refused defendant's guilty plea, and a jury found James guilty of first degree murder. In upholding the conviction, this court reasoned that allowing James to enter a plea of not guilty and then later demand the right to plead to the original charge would give him the right to enforce a mandatory plea bargain against the prosecutor's wishes. 108 Wash.2d at 489, 739 P.2d 699.
Accepting Bowerman's argument would have similar effects. It would allow defendants to force a plea bargain on a prosecutor anytime that prosecutor charges more than one means of committing a crime. It would also undercut the prosecutor's well-recognized discretion to determine which charges to file. 3 The statutory right to plead guilty recognized in Martin cannot be stretched so far as to include a right to plead guilty to only one alternative means out of several that are charged. Where an information alleges more than one means of committing a single crime, the right to plead guilty is a right to plead guilty to the one crime charged. 4
This brings us to petitioner's Jackson argument. In its third amended information, the State charged Bowerman with aggravated first degree murder in violation of RCW 10.95.020(4) (murder for hire) and RCW 9A.32.030(1)(a). The minimum penalty for aggravated first degree murder is life without possibility of parole. RCW 10.95.030(1).
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