State v. Lucky

• Decision Date: 07 March 1996
• Docket Number: No. 62930-7,62930-7
• Citation: 128 Wn.2d 727,912 P.2d 483
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Sean LUCKY, Appellant.

Page 727

128 Wn.2d 727

912 P.2d 483

The STATE of Washington, Respondent, v. Sean LUCKY, Appellant.

No. 62930-7.

Supreme Court of Washington,

En Banc.

March 7, 1996.

Reconsideration Denied April 15, 1996.

Richard Tassano, David Donnan, Seattle, for appellant.

Norm Maleng, King County Prosecutor, Henry Corscadden, III, Deputy, Theresa Fricke, Deputy, Lee Yates, Deputy, Seattle, for respondent.

ALEXANDER, Justice.

We are asked to decide whether the trial court erred in declining to instruct the jury that the crime of unlawful display of a weapon is a lesser included offense of assault in the second degree, when the thrust of the State's case was that the Defendant committed the species of second degree assault commonly referred to as assault with a deadly weapon. See RCW 9A.36.021(1)(c). We affirm the trial court, reaffirming the rule we articulated in State v. Davis, 121 Wash.2d 1, 4, 846 P.2d 527 (1993) and State v. Curran, 116 Wash.2d 174, 183, 804 P.2d 558 (1991).

Late in the evening of January 22, 1994, Sean Lucky stopped at a restaurant on the shores of Lake Union in Seattle. A short while later, an employee of the restaurant, Shon Powell, saw Lucky carrying an alcoholic beverage in an area of the restaurant where alcohol was not permitted to be carried. When Powell informed Lucky that he could not carry the beverage in that part of the facility, Lucky responded by acting in a generally obnoxious manner. Eventually, after Lucky argued with the restaurant manager, the manager asked Powell to "get him [Lucky] out of here." Report of Proceedings at 83. Powell consequently proceeded to physically remove Lucky from the building. He was assisted in this effort by a patron of the restaurant, John Gilday, who held the restaurant's main doors open as Powell escorted Lucky out of the building. Once outside, Powell released Lucky. Immediately thereafter, Gilday and Powell noticed that Lucky had a gun in his right hand. A brief scuffle ensued, during which Gilday and Powell subdued Lucky and took the gun from him. No shots were fired.

A City of Seattle police officer was summoned and arrived at the scene of the incident soon after Lucky was subdued. Gilday directed the officer to the handgun that Powell and Gilday had taken from Lucky. It was later found to be loaded with a full complement of 15 rounds and fully operational as a semi-automatic weapon.

Lucky was subsequently charged by information in King County Superior Court with:

the crime of Assault in the Second Degree, committed as follows:

That the defendant SEAN HARDY LUCKY in King County, Washington during a period of time intervening between January 22, 1994 through January 23, 1994, did assault Shon T. Powell with a deadly weapon, to-wit: a 9-millimeter handgun;

Contrary to RCW 9A.36.021(1)(c), and against the peace and dignity of the State of Washington.

Am. Information, Clerk's Papers at 7. ¹ The information also contained a special allegation that Lucky was armed with a deadly weapon during the commission of the charged offense. See RCW 9.94A.125.

Powell, Gilday, and Lucky testified at the ensuing jury trial. Powell said that after he initially released Lucky outside of the restaurant, he noticed that Lucky had a gun in his right hand. Powell said that Lucky then raised the gun, aiming it at Powell's stomach. Powell indicated that he then slapped the gun so that it pointed downward, and swiveled Lucky around to gain a position behind him. Powell also testified that, after slapping the gun, he "saw a second pair of hands come and grab the gun." Report of Proceedings at 87.

The second set of hands that Powell observed belonged to Gilday, who testified that as Powell and Lucky were exiting together through the restaurant's double doors, he saw Lucky use his right hand to take hold of a gun from beneath his overcoat. Gilday said that he then grabbed Lucky's forearm with both hands and continued to hold Lucky's wrist until Lucky was thrown to the ground by Powell, because the gun "was pointed at ... us [Powell and Gilday] through [Lucky's] body." Report of Proceedings at 44.

Lucky testified that he had a permit to carry a concealed weapon, and that he did not point the gun at anyone. He said that the handgun, which he claimed he was carrying for personal protection, shook loose when Powell initially grabbed him and spun him around. He said that he "didn't want it [the handgun] to fall out in the middle of the lobby, so [he] grabbed it ... held it down [and] tried to put it in [his] coat pocket." Report of Proceedings at 109.

Lucky's trial counsel sought a jury instruction from the trial court to the effect that the offense of unlawful display of a weapon is a lesser included offense of assault in the second degree. ² The trial court refused to give the requested instruction.

The jury subsequently returned a guilty verdict on the charge of assault in the second degree. In response to a special interrogatory, it found that Lucky was armed with a deadly weapon at the time of the commission of the assault. Lucky appealed his conviction to the Court of Appeals, Division One, which certified the case to this court pursuant to the provisions of RCW 2.06.030(d). We accepted review.

Lucky contends that the trial court abused its discretion in declining to give the requested lesser included offense instruction. A trial court's refusal to give a requested instruction, when based on the facts of the case, is a matter of discretion and will not be disturbed on review except upon a clear showing of abuse of discretion. State ex rel. Carroll v. Junker, 79 Wash.2d 12, 26, 482 P.2d 775 (1971). See Grant v. Huschke, 70 Wash. 174, 177, 126 P. 416 (1912), overruled on other grounds by Larson v. City of Seattle, 25 Wash.2d 291, 171 P.2d 212 (1946). When, as here, a trial court's decision regarding a jury instruction is "predicated upon rulings as to the law," however, it is reviewed de novo for error of law. Braden v. Rees, 5 Wash.App. 106, 110, 485 P.2d 995 (quoting Johnson v. Howard, 45 Wash.2d 433, 436, 275 P.2d 736 (1954) (citing Huschke, 70 Wash. 174, 126 P. 416)), review denied, 79 Wash.2d 1009 (1971).

A defendant has a right to be informed of the nature of the offense against which he or she must be prepared to defend at trial. See Const. art. I, § 22 (amend. 10). As a general rule, therefore, a defendant can be convicted of only those crimes of which he or she is charged in the information. State v. Irizarry, 111 Wash.2d 591, 592, 763 P.2d 432 (1988). Two statutory provisions expand upon that rule, and provide that, in addition to the charge specified in the information, a defendant may also be convicted of certain, related crimes. First, a defendant may be convicted of an offense that is a crime of an inferior degree to the charged offense. RCW 10.61.003. Second, "[i]n all other cases the defendant may be found guilty of 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.

Lucky relies solely on the provisions of RCW 10.61.006 in contending that unlawful display of a weapon is a lesser included offense of assault in the second degree. This court interpreted that statute in State v. Workman, 90 Wash.2d 443, 584 P.2d 382 (1978), and concluded that:

a defendant is entitled to an instruction on a lesser included offense if two conditions are met. First, each of the elements of the lesser offense must be a necessary element of the offense charged. Second, the evidence in the case must support an inference that the lesser crime was committed.

Workman, 90 Wash.2d at 447-48, 584 P.2d 382 (citations omitted); accord State v. Charles, 126 Wash.2d 353, 355, 894 P.2d 558 (1995); State v. Davis, 121 Wash.2d 1, 4, 846 P.2d 527 (1993); State v. Curran, 116 Wash.2d 174, 183, 804 P.2d 558 (1991). We refer to the first condition as the "legal prong" of the Workman test, and the second condition as the "factual prong."

When this court has applied the test that we pronounced in Workman, we have indicated that a defendant "would be entitled to a jury instruction under existing Washington law on [a lesser included offense] only if the [greater crime] could not be committed without also committing the [lesser offense]." Curran, 116 Wash.2d at 183, 804 P.2d 558. The Court of Appeals, Division One, has accurately paraphrased the Curran articulation of the Workman test in this manner: "where there are numerous ways of committing the greater crime charged, and the crime can be committed by one but not another of the alternative means, then any lesser included offense must be a lesser included offense of all the means." City of Seattle v. Wilkins, 72 Wash.App. 753, 757, 865 P.2d 580 (1994). More recently, another panel of that division of the Court of Appeals, relying on the Curran decision, stated the rule even more succinctly, as follows: "if alternate means of committing a crime exist and the lesser included offense does not have to be committed to commit the crime by all of those alternate means, there cannot be a lesser included offense." State v. Hurchalla, 75 Wash.App. 417, 422, 877 P.2d 1293 (1994). See also State v. Ferguson, 76 Wash.App. 560, 570, 886 P.2d 1164 (1995).

Lucky asserts that the legal prong of the Workman test is met because each element of unlawful display of a weapon is a necessary element of RCW 9A.36.021(1)(c), the specific section of the second degree assault statute with which we are here concerned. In support of that assertion, he argues that under the facts of this case, and as specifically charged in the information, he could not have assaulted Powell with a deadly weapon, the greater offense, without also displaying a weapon in a manner that warranted alarm for the safety of other persons. The State responds that while Lucky's assertion may be valid under these facts, it is nevertheless possible to commit an assault in the second degree, as...