State v. Jones

Citation95 Wn.2d 616,628 P.2d 472
Decision Date21 May 1981
Docket NumberNo. 46767-6,46767-6
PartiesSTATE of Washington, Respondent, v. Stephen Conrad JONES, Appellant.
CourtUnited States State Supreme Court of Washington

Brian P. Coughenour, Port Angeles, for appellant.

Grant S. Meiner, Clallam County Prosecutor, Kenneth L. Cowsert, Deputy Pros. Atty., Port Angeles, for respondent.

WILLIAMS, Justice.

This is an appeal from a conviction of murder in the second degree. Because the case presents an issue of broad public importance, we accepted direct review. RAP 4.2(a)(4). We reverse the judgment of conviction and remand for a new trial.

According to testimony adduced at trial, on August 18, 1979, appellant Stephen Jones, a Canadian then aged 15, came over to Port Angeles from his home on Vancouver Island, British Columbia. While in Port Angeles he planned to stay with his uncle, who lived in the Doyle Apartments. He was accompanied by several friends.

Sometime on the evening of August 19, 1979, appellant and two of his friends looked in the window of one of the downstairs units at the Doyle Apartments. According to appellant, they saw Dudley Bates, the victim, and another male engaging in a homosexual act. The testimony showed that Bates was a mentally retarded person with Downs Syndrome. He lived alone but was often visited by other developmentally disabled friends and by neighbors from the Doyle Apartments.

The next day, August 20, 1979, appellant and some of his companions apparently spent much of the afternoon drinking beer. During the course of this activity they spent some time in Bates' apartment. Eventually appellant and Bates found themselves alone in the apartment, with Bates dressed only in his underwear. Appellant described the next events as follows:

Appellant asked Bates, "Hey Dudley, just to be on the curious side, are you gay or something?" RP at 283. Bates responded by saying nothing, getting up to go into the kitchen, procuring a kitchen knife, and approaching appellant in a manner which appellant considered menacing. "He tried to get me, and I went like and that is when he got (cut) my pinky finger here, I guess." RP at 289. Bates then dropped the knife, and appellant pushed him away and picked it up. A struggle ensued, and Bates was stabbed. Bates then went into his bedroom. Appellant followed him "(t)o see if he was badly hurt", but a further struggle occurred there, and Bates was stabbed several more times. RP at 290. Bates then left the room again, and appellant went up to his uncle's apartment. By the time an ambulance and police arrived to tend Bates, who by then was out on the lawn, appellant had left the premises. He was apprehended some minutes later by a state patrolman, about 50 or 60 yards from the Doyle Apartments.

Bates died of his wounds. A pathologist testified at trial that Bates had suffered nine cuts or stabs, two of which the doctor considered lethal.

After being advised of his rights and taken to the police station, appellant made a tape-recorded statement describing what had happened from the time he arrived in Port Angeles. The officer who conducted the questioning testified that before activating the recorder he told appellant that he wanted to tape the interview and that appellant gave permission for the taping. This colloquy was not itself recorded, however. The tape was ruled admissible by a trial judge at a suppression hearing and was later played to the jury at trial.

The juvenile court declined jurisdiction, and appellant was tried as an adult on an information charging second degree murder. The trial court refused to give instructions on manslaughter in the first or second degree as lesser included offenses. The court apparently concluded both that manslaughter was not a lesser included offense of murder and that in any event there was insufficient evidence of the "reckless" or "negligent" culpability required in the respective degrees of manslaughter. The court also refused to give appellant's proposed "standing in the shoes" self-defense instruction, but did give appellant's voluntary intoxication instruction. Appellant took proper exception to the court's refusal to give his proposed instructions on manslaughter and self-defense.

Appellant also took exception to the admission of the tape-recorded statement which he made to the police 3 hours after the incident. He argued both that his statement had not been made voluntarily and that there was a technical violation of the privacy statute, which rendered the tape inadmissible. RCW 9.73.090(1)(b)(i). Finally, appellant objected to the admission of five photographs of the victim's body taken by the pathologist who performed the autopsy to determine the cause of death.

Appellant first argues that the trial court erred in refusing to instruct the jury that they could consider first degree manslaughter as a lesser included offense to the charge of second degree murder. Appellant requested the following instructions:

If you are not satisfied beyond a reasonable doubt that the defendant is guilty of the crime charged, the defendant may be found guilty of any lesser crime, the commission of which is necessarily included in the crime charged, if the evidence is sufficient to establish the defendant's guilt of such lesser crime beyond a reasonable doubt.

The crime of Murder in the Second Degree necessarily includes the lesser crime of Manslaughter.

When a crime has been proven against a person and there exists a reasonable doubt as to which of two or more degrees that person is guilty, he or she shall be convicted only of the lowest crime.

Appellant's proposed instruction No. 2.

A person commits the crime of manslaughter in the first degree when he or she recklessly causes the death of another person unless the killing is justifiable.

Appellant's proposed instruction No. 5. Appellant's instruction No. 6 contained the proof requirements for the crime of manslaughter in the first degree and was likewise rejected by the court. 1

The trial court evidently concluded that as a matter of law manslaughter could not be a lesser included offense to murder as those two crimes are defined in the new criminal code. RCW 9A.32. The court reasoned that the state-of-mind element of second degree murder ("intent to cause the death of another") is entirely different from the state-of-mind element of first degree manslaughter ("recklessly causes the death of another"). RCW 9A.32.050(1)(a); 9A.32.060(1)(a). Thus, manslaughter could not be a lesser included offense of murder because the two crimes are essentially unrelated.

There are a number of problems with this reasoning. First, as demonstrated by numerous cases which were decided under the common law or prior statutes, murder and manslaughter have always been considered related to the extent that instructions on both could be given in a case with appropriate evidence. Brandon v. Webb, 23 Wash.2d 155, 165, 160 P.2d 529 (1945); State v. Foley, 174 Wash. 575, 580, 25 P.2d 565 (1933); State v. Berge, 25 Wash.App. 433, 607 P.2d 1247, petition for review denied, 94 Wash.2d 1016 (1980); State v. Crudup, 11 Wash.App. 583, 524 P.2d 479 (1974). Moreover, in a case with appropriate evidence arising under the new criminal code, at least one division of the Court of Appeals has held it to be error to refuse to give the first degree manslaughter instruction, as well as instructions on first and second degree murder. State v. Berge, supra; and see WPIC 4.11, and comment thereto, 11 Wash.Prac. 40-41 (1977).

Second, the various homicide crimes in RCW 9A.32 are defined in part by reference to the kinds of culpability set forth in RCW 9A.08.010(1). The statute further provides:

(2) Substitutes for Criminal Negligence, Recklessness, and Knowledge. When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly, or recklessly. When recklessness suffices to establish an element, such element also is established if a person acts intentionally or knowingly. When acting knowingly suffices to establish an element, such element also is established if a person acts intentionally.

RCW 9A.08.010(2). The comments to the original draft of this section of the new criminal code explained:

(T)he four mental states are ranked or related in such a way that proof of any one mental state establishes all lower mental states. Thus, where an offense requires a mental state of criminal negligence, proof of intent would also establish criminal negligence, a sort of "lesser included" mental state.

(Italics ours.) Legislative Council Judiciary Committee, Revised Washington Criminal Code § 9A.08.020, Comment at 34-35 (1970).

It seems plain, therefore, that the drafters of the code contemplated that if intent were established in a criminal case, recklessness would be deemed also established. This approach resolves the trial court's difficulty over whether recklessness or intent are inconsistent mental states. 2 Accordingly, we hold that the trial court erred in deciding as a matter of law that first degree manslaughter cannot be a lesser included offense of second degree murder under the current criminal code. Indeed, the State does not seriously dispute this point on appeal and argues instead that there was insufficient evidence to support a manslaughter instruction.

The jury was instructed that homicide is a voluntary act which may be either murder, manslaughter, excusable homicide, or justifiable homicide. Instruction No. 5. They were further instructed that self-defense is a defense to second degree murder. Instruction No. 6. Finally, the court gave the following instruction on intoxication:

No act committed by a person while in a state of voluntary intoxication is less criminal by reason of that condition, but whenever the actual existence of any particular mental state is a necessary element to constitute a particular kind or degree...

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