State v. Foster

Decision Date05 January 1979
Docket NumberNo. 45509,45509
Citation91 Wn.2d 466,589 P.2d 789
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. James Thomas FOSTER, Appellant.

Richard A. Hansen, Public Defender, Seattle, for appellant.

Christopher T. Bayley, Pros. Atty., Seattle, for respondent.

HAMILTON, Justice.

Appellant was convicted of second-degree assault pursuant to RCW 9A.36.020(1). 1 The jury also found that the appellant was armed with a firearm at the time of the offense. In this appeal, appellant challenges the conviction and sentence on a number of grounds. We find all of appellant's arguments to be without merit. Therefore, we affirm the judgment and sentence.

The facts of this case can be summarized as follows:

Appellant became friends with the sisters, Terry and LaSandra Kelly, who were his next door neighbors at his apartment house. He briefly dated Terry without knowledge that she was already involved in a relationship with one Melvin Colvin. Colvin was a large man; appellant was small in stature. Terry never told Colvin about her relationship with appellant. When he found out, he became angry and jealous.

Appellant visited Terry one evening while Colvin was present. Colvin became enraged, knocked appellant down and assaulted him with a butcher knife. Appellant left, and returned with a shotgun, stating "I will kill that boy."

The next time appellant encountered Colvin was when he visited Terry's sister LaSandra without knowing that Colvin was in another room with Terry. Colvin insisted that Terry tell appellant to leave, but she refused. Colvin then knocked appellant down and held him on the floor while he struck him in the face repeatedly with a closed fist. He then pulled appellant into the hallway and struck him again knocking his head against the wall. Appellant was taken to a hospital for treatment. Despite the beating which appellant received from Colvin, appellant was uncooperative with the police and stated to them several times that he would take care of Colvin himself.

After appellant was released from the hospital, LaSandra Kelly told appellant that a gun was kept in the apartment where she and Terry lived. This was not true. Appellant testified, however, that he thought such a gun existed and believed Colvin had access to the gun. Furthermore, a friend of appellant told him that she had seen Colvin carrying a gun in a shoulder holster. Subsequent to his release from the hospital, appellant obtained and began carrying a pistol. There is dispute as to whether appellant started carrying the gun before or after he learned that Colvin might carry a gun.

Approximately 1 week after the altercation, appellant was leaving his apartment when he encountered Colvin and Terry Kelly coming up the steps toward him. According to appellant's testimony, Colvin said something to Terry, pushed her aside, and reached inside his coat. Appellant testified he thought Colvin was reaching for a gun and, remembering Colvin's previous attack, panicked, pulled out his gun, and fired wildly. Colvin received two gunshot wounds but survived the attack.

Appellant's version of the shooting incident is in conflict with other evidence presented at trial. For example, in addition to his statement to officers that he would take care of Colvin, there is evidence that immediately prior to the shooting, appellant said to Colvin, "(D)o you remember what you did?" Colvin had not reached inside his coat prior to the attack. Appellant admits that he saw no weapon in the possession of Colvin prior to commencing his shooting.

Appellant was originally charged with second-degree assault, and the information was later amended to charge first-degree assault with intent to kill, pursuant to RCW 9A.36.010(1)(a). Both informations alleged the use of a firearm. Appellant moved to dismiss the firearm allegation on the ground that it is inconsistent to enhance the penalty based upon use of a firearm when the crime itself requires the use of a firearm. The motion was denied.

At trial, the prosecution proceeded on the theory of intentional assault, and appellant presented evidence to support his claim that he acted in self- defense. In defense to the charge that he intended to kill the alleged assault victim, he testified repeatedly that he feared for his life when he saw Colvin reach inside his coat and that he fired the gun wildly with his eyes closed due to his panic.

At the close of the evidence, the trial court gave a jury instruction including the elements of second-degree negligent assault under RCW 9A.36.020(1)(e). 2 This instructional inclusion was given over appellant's objection that he was given insufficient notice of the potential inclusion of this facet of assault in the second degree, and that the criminal negligence statute was unconstitutional.

The jury found appellant not guilty of first-degree assault, but guilty of assault in the second degree. The jury also found that appellant was armed with a firearm at the time of the offense. Appellant was sentenced to prison for a maximum of 10 years with a mandatory minimum sentence of 71/2 years in accordance with the firearm finding. RCW 9.41.025. 3


Appellant asserts that the trial court erred in instructing the jury on second-degree negligent assault, as set forth in RCW 9A.36.020(1)(e), when appellant was brought to trial under an information charging him with first-degree assault with intent to kill. He contends that he could only be convicted of second-degree negligent assault if it were a lesser included offense of assault in the first-degree. We disagree with this contention.

Appellant bases this claim of error on Const. art. 1, § 22 and the sixth amendment to the United States Constitution. Both of these provisions confer upon a defendant the right to be informed of the nature and cause of the accusation against him. State v. Frazier, 76 Wash.2d 373, 456 P.2d 352 (1969).

The general rule regarding this right is that the crimes of which a person can be convicted, and those on which a jury is properly instructed, are limited to those which are charged in the information. State v. Olds, 39 Wash.2d 258, 235 P.2d 165 (1951); State v. Galen, 5 Wash.App. 353, 487 P.2d 273 (1971). There are two recognized exceptions to this rule: (1) where a defendant is convicted of a lesser included offense of the one charged in the information pursuant to RCW 10.61.006; and (2) where a defendant is convicted of an offense which is a crime of an inferior degree to the one charged, pursuant to RCW 10.61.003. State v. Galen, supra.

The statute which is dispositive of this issue is RCW 10.61.003, which provides that

(u)pon 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.

(Italics ours.)

It is our opinion that this statute gave appellant sufficient notice that he was subject to a conviction of second-degree negligent assault.

Our decision is consistent with the approach taken in Salinas v. United States, 277 F.2d 914 (9th Cir. 1960), in which the United States Court of Appeals for the Ninth Circuit considered a similar issue in the context of a due process challenge. In that case, the defendant was charged with arson in the first degree but was found innocent of that crime and was convicted of arson in the second degree. The case proceeded pursuant to Alaskan law. An Alaskan statute similar to RCW 10.61.003 provided that a defendant could be found guilty of a lower degree of the crime charged. The court stated that when an indictment charges a crime in which a lesser offense is necessarily included, or Charges a higher degree of a particular offense that is divided into degrees, the accused may, consistent with the requirements of due process, be convicted of a lesser included offense or a lower degree of the offense charged. The Salinas court viewed the statutes in issue, I. e., first- and second-degree arson statutes, "as commonly denouncing but one crime that of arson." Salinas, at 918.

Similarly, we conclude that both the first-degree and second-degree assault statutes proscribe but one offense that of assault. Since the offense upon which the trial court instructed the jury is a lesser degree crime of the one with which he was charged and the two crimes, namely assault, are not separate and distinct from one another, we conclude that appellant was given sufficient notice to satisfy the requirements of Const. art. 1, § 22 and the Sixth Amendment.

Appellant next contends that he was not given sufficient notice that the jury would be instructed on the charge of negligent assault, and therefore he was wrongfully led to waive his privilege against self-incrimination as guaranteed by the Fifth Amendment to the United States Constitution. Appellant argues that he gave the testimony that he fired wildly at Colvin in order to defend himself from the charge of first-degree assault with intent to kill. He alleges that he would not have given this testimony had he known that the jury would be instructed on second-degree negligent assault.

The Fifth Amendment to the United States Constitution states in part that "(no person) shall be compelled in any criminal case to be a witness against himself . . ." This right has been incorporated into the due process clause of the Fourteenth Amendment and therefore binds the state. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). Further, the state constitution contains a similar provision, which states in part that "(n)o person shall be compelled in any criminal case to give evidence against himself . . ." Const. art. 1, § 9. This court has held that the two provisions should be given the same interpretation. State v. Mecca Twin Theater and Film Exchange, Inc., 82 Wash.2d 87, 507 P.2d 1165 (1973); State v....

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