State v. Harris

• Decision Date: 22 April 1993
• Docket Number: No. 59434-1,59434-1
• Citation: 849 P.2d 1216,121 Wn.2d 317
• Parties: STATE of Washington, Respondent, v. Rogelle Mohammad HARRIS, Appellant. En Banc
• Court: Washington Supreme Court

Page 317

121 Wn.2d 317

849 P.2d 1216

STATE of Washington, Respondent, v. Rogelle Mohammad HARRIS, Appellant.

No. 59434-1.

Supreme Court of Washington,

En Banc.

April 22, 1993.

Gary Ival Gaer, Mount Vernon, Robert Leen, Seattle, for appellant.

John W. Ladenburg, Pros. Atty., and Kyron Huigens, Appellate Deputy Pros. Atty., Tacoma, for respondent.

UTTER, Justice.

Rogelle M. Harris appeals his Pierce County conviction for assault in the first degree. He was charged with attempted murder in the first degree, but found not guilty of that crime. Harris was found guilty of assault, which the jury was instructed was a lesser included offense of attempted murder in the first degree. On appeal, he challenges the court's instructions on first degree assault. We hold the trial court erroneously instructed the jury that assault is a lesser included offense of attempted murder in the first degree. Accordingly, we reverse Harris's conviction.

The charge of attempted murder arose out of a gang-related shooting in the Hilltop area of Tacoma on the night of March 27, 1990. The State's evidence showed that the defendant and one Melvin Johnson, both gang members from Seattle, were cruising the area in a Cadillac. Harris was driving. He parked the car in a convenience store lot and talked to some women there. One of the women saw a gun lying against his leg as he sat in the car. Two other cars, carrying several members of a Tacoma Crips gang, drove into the parking lot. One of the Crips saw Harris produce a gun. Then he and Johnson drove away. The Cadillac returned three or four minutes later, at which time the passenger pointed a gun out the window, shouted "Hey", and fired a volley of shots at the group of Crips standing in front of the store. Two of them were wounded, as was a female bystander. The Cadillac sped away, only to be stopped by police a few minutes later. Harris was still driving and Johnson was in the passenger seat. When they were stopped, Harris told the police that he had heard gunshots "near the car", but denied knowing who had fired them. A test of Johnson's hands for primer residue at the police station was consistent with his having fired a gun.

At trial, defendant testified that he knew Johnson had brought a gun with him from Seattle, but denied any intention to get involved in a shooting. He said that when he and Johnson were at the convenience store, several of the Crips drove up and started "acting funny". The Crips were yelling "snitches" at them, and one of the Crips reached inside his jacket as if to pull a weapon. Harris became frightened and started to drive away. As he did so, he saw a Crips member run towards them. Johnson reached under the car seat for his gun and fired "three or four" shots. Harris did not see if anyone was hit. Johnson threw the gun into a nearby yard as they drove away.

Harris's trial was severed from Johnson's. After trial, the jury was instructed on the elements of attempted murder in the first degree, accomplice liability, and the lesser included offenses of second degree murder, first degree assault, and reckless endangerment. Because no one was killed in the gunfire, the jury was instructed on the elements of attempt: A person is guilty of an attempt to commit a crime if, "with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1).

The charge of attempted murder went to the jury on a theory of accomplice liability. Over defense counsel's objection, the jury was instructed that assault was a lesser included offense of attempted murder. The jury convicted Harris of first degree assault. Harris appealed hisconviction to Division II of the Court of Appeals, which certified the case to this court for determination. Harris argues that the conviction was erroneous because (1) he was not charged with assault; and (2) assault is not a lesser included offense of attempted murder.

I. Washington Law

Washington Supreme Court case law on lesser included offense instructions is straightforward. The jury may find an accused guilty of a crime not charged if it is "an offense the commission of which is necessarily included within that with which he is charged in the indictment or information." RCW 10.61.006. To find an accused guilty of a lesser included offense, the jury must, of course, be instructed on its elements. A lesser included offense instruction is proper when: (1) each of the elements of the lesser offense is a necessary element of the offense charged (a legal test); and, (2) the evidence supports an inference that the lesser crime was committed (a factual test). State v. Workman, 90 Wash.2d 443, 447-48, 584 P.2d 382 (1978). Stated differently, if it is possible to commit the greater offense without committing the lesser offense, the latter is not an included crime. State v. Bishop, 90 Wash.2d 185, 191, 580 P.2d 259 (1978), citing State v. Roybal, 82 Wash.2d 577, 583, 512 P.2d 718 (1973).

The first prong of the Workman test, the legal prong, is at issue in this case. Specifically, the question presented is whether each of the elements of first degree assault is a necessary element of attempted first degree murder. As charged in this case, first degree murder requires a premeditated intent to cause the death of another. RCW 9A.32.030(1)(a). A person is guilty of criminal attempt if, "with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime." RCW 9A.28.020(1). Assault in the first degree requires that, with intent to inflict great bodily harm, a person "[a]ssaults another with a firearm or any deadly weapon or by any force or means likely to produce great bodily harm or death; ...". RCW 9A.36.011(1)(a).

Harris concedes a first degree assault is included within the crime of premeditated murder in the first degree. He argues, however, that first degree assault is not included within attempt to commit first degree murder, because one may take a substantial step toward committing murder--may lie in wait, for example--without ever assaulting the victim. See State v. Workman, 90 Wash.2d at 451-52, 584 P.2d 382, (adopting the Model Penal Code of the American Law Institute's approach to the definition of "substantial step". Under that approach a substantial step need not be an overt act, as long as it is behavior strongly corroborative of the actor's criminal purpose. Thus, lying in wait for the victim may constitute a substantial step.)

For ease of reference the pertinent definitions are set forth in simplified form below:

attempted murder: (1) intent to cause death

(2) substantial step

assault: (1) intent to inflict great bodily harm

(2) assaults another with weapon or force

Defendant is correct. As a matter of fact the evidence supports an instruction on first degree assault in this case; Harris was an accomplice to a shooting by Johnson, his passenger. The factual prong of Workman is therefore satisfied. The legal prerequisite for such an instruction fails, however; the greater offense of attempted murder in the first degree can be committed without necessarily committing an assault. As is evident from the elements listed above, it is possible to commit attempted murder without also committing assault. Because the legal prong of the Workman test is not met, assault is not a lesser included offense of attempted murder. The trial court therefore erred in instructing the jury on assault.

The State however asks us to revisit the law of lesser included offenses. It contends that because all attempts include the unspecified statutory element of a "substantial step" under RCW 9A.28.020(1), lesser included offenses can never be proper where attempt is the greater crime. The State therefore urges us to create a different rule where the greater offense is attempt. We decline to do so because Washington Supreme Court precedent disfavors it. In addition, the jurisprudential and practical concerns that tacitly underlie our adoption and adherence to the Workman test are equally persuasive in the case of attempts as in other categories of crimes. Although we have yet to articulate these concerns, they have been identified by one commentator as follows:

[the statutory elements approach] offers the most clarity to both practitioners and judges. Thus, perhaps the most compelling reason for adopting the strict standard is the clarity and ease with which it can be applied. Absent a statutory modification, a single determination suffices to categorize the relationship between any two criminal offenses for all subsequent cases. Each party to later criminal proceedings is then on notice regarding the availability of the lesser included offense doctrine and should therefore be better prepared to present an argument specific to the issues known to be in question.... This provides an evenhandedness impossible under the other [approaches] and encourages the parties to use the evidence to prove or disprove the case at hand, instead of inviting them to manipulate the proof to accommodate as wide a range of conclusions as possible.

(Footnote omitted.) Ettinger, 50 Brook.L.Rev. at 201, cited with approval in State v. Jeffries, 430 N.W.2d 728, 737-38 (Iowa 1988) (adopting a slightly modified version of the statutory elements approach).

II. The Development of Lesser Included Offense Law in Washington

A survey of the development of lesser included offense law in Washington indicates the absence of authority for departing from the statutory approach.

Court rule CrRLJ 6.15(f) provides with respect to lesser included offense instructions:

Several Offenses. The verdict forms for an offense charged or necessarily included in the offense charged or an attempt to commit either the offense charged or any offense necessarily included therein may be submitted to the jury.

RCW 10.61.006 similarly provides:

[T]he defendant may be found guilty of an...