State v. Irizarry

Decision Date27 October 1988
Docket NumberNo. 53287-7,53287-7
Citation763 P.2d 432,111 Wn.2d 591
PartiesSTATE of Washington, Respondent, v. Ricardo M. IRIZARRY, Defendant, and Michael Alan Ransom, Appellant.
CourtWashington Supreme Court

Ladenburg & Haselman, Anthony H. Haselman, Tacoma, for appellant.

William H. Griffies, Pierce

County Prosecutor, Chris Quinn-Brintnall, Sr. Appellate Deputy Pierce County Prosecutor, Tacoma, for respondent.

ANDERSEN, Justice.


In the course of the planned robbery of a pizza deliveryman in Tacoma, Brander Allan Castle was stabbed to death in the early morning hours of July 8, 1984. In connection therewith, Ricardo M. Irizarry pleaded guilty to felony murder in exchange for his testimony at the trial of the defendant herein, Michael Alan Ransom.

The defendant Ransom was tried before a jury on the charge of aggravated murder in the first degree. At the request of the prosecution, and over defense objections, the jury was not only instructed on the crime of aggravated murder in the first degree but also on the "included offense" of felony murder.

The defendant Ransom was convicted of the "included offense" of felony murder. He appealed to the Court of Appeals which certified his appeal to this court. 1 We accepted review.

One principal issue is presented.


Is the crime of felony murder a lesser included offense within the crime of aggravated murder in the first degree?


CONCLUSION. Felony murder is not a lesser included offense within the offense of aggravated murder in the first degree, and the trial court erred in instructing the jury that it was. The defendant's conviction of this nonincluded offense constitutes prejudicial error requiring a new trial.

It is fundamental that under our state constitution an accused person must be informed of the criminal charge he or she is to meet at trial, and cannot be tried for an offense not charged. 2 This rule is subject to two statutory exceptions: (1) where a defendant is convicted of a lesser included offense of the one charged in the information (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 (RCW 10.61.003). 3 The first degree murder statute (RCW 9A.32.030) defines the three different ways in which the crime of murder in the first degree can be committed:

1. premeditated murder (RCW 9A.32.030(1)(a));

2. murder by extreme indifference to human life (RCW 9A.32.030(1)(b)); and

3. felony murder (RCW 9A.32.030(1)(c)). 4

The statute defining aggravated first degree murder is equally clear; 5 that crime is premeditated murder in the first degree (not murder by extreme indifference or felony In State v. Mak, 105 Wash.2d 692, 718 P.2d 407, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986), instructions on felony murder as a lesser included offense were given to the jury by the trial court in a case involving aggravated murder in the first degree. 10 As we there held, this did not constitute reversible error because it was the defendant who requested those instructions. As we pointed out in that connection, the lesser included offense instruction, not having been excepted to at trial by the defendant, became the law of the case; further, any error in connection therewith was error invited by the defendant which could not be complained of on appeal. 11 In the case before us, however, the defendant duly excepted to the giving of the felony murder included offense instructions, thus preserving his claim of error for appeal.

                murder) accompanied by the presence of one or more of the statutory aggravating circumstances listed in the criminal procedure title of the code (RCW 10.95.020). 6  These statutory aggravating circumstances are "aggravation of penalty" factors and are not "elements" of [763 P.2d 435] the crime as such. 7  A lesser included offense exists only "when all of the elements of the lesser offense are necessary elements of the greater offense."  (Italics ours.) 8  Because commission of a felony is not a necessary element of aggravated murder in the first degree, it follows that the offense of felony murder cannot  
                be an included offense within the charge of aggravated murder in the first degree.   Similarly, felony murder is not a lesser degree of aggravated murder in the first degree. 9

Since the defendant in this case was charged with aggravated murder in the first degree (i.e., the crime of premeditated murder in the first degree plus a statutory aggravating circumstance), an instruction on the lesser included offense of premeditated murder in the first degree (i.e., the crime of premeditated murder in the first degree without statutory aggravating circumstances) could have been given. 12

Since the defendant was not convicted of premeditated murder in the first degree (nor of any lesser included Dismissal of all charges against the defendant is not, however, mandated. The jury having convicted the defendant of felony murder, albeit improperly, the defendant may still be charged with that offense without violating constitutional double jeopardy prohibitions. 14

offense or lesser degree of that crime), reversal is mandated. 13

The remaining contention of the defendant's appeal is not well taken. Excusing prospective jurors for cause, where they were opposed to the death penalty, was not error as he now contends. The law of this state is well settled in that regard. 15


BRACHTENBACH, J., and HAMILTON, J. Pro Tem, concur.

UTTER, Justice (concurring).

I agree with the majority's analysis that felony murder is not a lesser included offense of aggravated murder. However, I must point out that this court has never heard argument on or decided the issue of whether excusing scrupled jurors subjects a defendant to a conviction-prone jury and is thus unconstitutional under the Washington Constitution. The cases to which the majority refers were briefed and decided with reference to the federal constitution. Because this court has not yet interpreted the Washington Constitution's restrictions on this issue, until this court has the benefit of briefing that considers at least the nonexclusive factors of State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), this is still an Despite the similar language of the sixth amendment to the United States Constitution and article 1, section 22 of the Washington Constitution, both entitling defendants to trial "by an impartial jury", this court does not presumptively apply the federal analysis if that analysis is not supported by the language, history and context of our constitution. State v. Reece, 110 Wash.2d 766, 757 P.2d 947 (1988): State v. Gunwall, supra; State v. Coe, 101 Wash.2d 364, 679 P.2d 353 (1984). I note that studies are establishing through more and more accurate methodologies the correlation between the exclusion of scrupled jurors and conviction. See R. Fitzgerald & P. Ellsworth, Due Process vs. Crime Control; Death Qualification and Jury Attitudes, 8 Law & Hum.Behav. 31, 74 (1984) ("As the controlled simulations become more realistic, the differences between death-qualified and excludable jurors becomes more pronounced.") Further, I find compelling Justice Marshall's dissent to Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) noting, among other concerns, the great difference between a jury happening to be stacked against the defendant, and it being stacked against the defendant through a scheme of excuses for cause by the prosecution. Lockhart, 476 U.S. at 194, 106 S.Ct. at 1775, 90 L.Ed.2d at 161 (Marshall, J., dissenting).

open question. State v. Wethered, 110 Wash.2d 466, 755 P.2d 797 (1988).

This court may well reject the federal analysis on this issue if we are presented with adequate briefing on the Washington Constitution. Nothing in the majority should be read to discourage Ransom in his new trial or future defendants from fully asserting their rights protected by the Washington Constitution.

PEARSON, C.J., joins.

CALLOW, Justice (concurring in part, dissenting in part).

I concur with the majority that technically, felony murder, as it was charged in this case, is not a lesser included

                offense of aggravated first degree murder.   However, I believe the rationale of the lesser included offense doctrine was not violated and I cannot agree with the result that follows from the opinion of the majority.   I submit that we should go a step further

Things cannot be put in perspective unless there is some recitation of the factual situation involved. Here a Domino's Pizza Store received an order for pizzas to be delivered to an apartment in South Tacoma. The pizzas were given to a 22-year old deliveryman for delivery. Soon thereafter, the police received a call indicating that a body had been found in the apartment complex. When the police arrived, the deliveryman was still breathing, but died shortly. The medical examiner determined that the cause of death was three stab wounds to the chest and side area. One of these wounds was 5 1/2 inches deep and perforated the heart and liver while another, 4 1/2 inches deep, also penetrated the heart. There was also evidence of wounds to the eye area and broken cartilage in the nose. Investigation revealed that the victim had been waylaid in an empty apartment and stabbed while attempting to deliver the ordered pizzas. The two pizzas were found in the apartment, and money was strewn about the floor. Blood bespattered the empty apartment. The fingerprints of both defendants were found on the frame of a broken window.


RCW 10.95.020 states:

A person is guilty of aggravated first degree murder if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a) ... and one or more of the following aggravating circumstances exists: ...

In order to be convicted of aggravated first degree murder, a person must have committed murder in...

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