State v. McJimpson

• Decision Date: 05 September 1995
• Docket Number: No. 31653-2-I,31653-2-I
• Citation: 79 Wn.App. 164,901 P.2d 354
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Darcemon Derondo McJIMPSON, Appellant.

Page 164

79 Wn.App. 164

901 P.2d 354

STATE of Washington, Respondent, v. Darcemon Derondo McJIMPSON, Appellant.

No. 31653-2-I.

Court of Appeals of Washington,

Division 1.

Sept. 5, 1995.

Acosta & Nielsen, Seattle, for appellant.

Donald James Raz, Deputy Pros. Atty., Seattle, for respondent.

COX, Judge.

An exchange of angry words in the parking lot of a Seattle minimart swiftly escalated to a fatal shooting. During the encounter, Darcemon McJimpson brandished a handgun at Andre Watts and fired two shots that hit Ezekial Franklin. Franklin died the next day. Because (a) McJimpson's convictions for felony murder and felony assault do not constitute multiple punishment for the same crime, (b) the trial court properly refused to instruct the jury on manslaughter, and (c) we find no merit to McJimpson's other contentions, we affirm.

On the night of March 27, 1992, McJimpson and his companion, "Money," were outside a minimart. Money insulted Watts' sister and her friend. When Watts confronted the two men, McJimpson pulled out a gun and threatened to shoot. Money punched Watts, and McJimpson put the gun away because he thought Watts would fight with Money. Instead, as Watts got back on his feet, he approached McJimpson, and McJimpson pulled the gun out again to scare him. When Watts continued to approach him, McJimpson began shooting. He believed he was aiming "in the air," but a clerk inside the minimart saw him holding the gun at body level and aiming "straight toward" the others who were running. Two bullets hit Ezekial Franklin and ultimately caused his death.

The State charged McJimpson with second degree assault with a deadly weapon of Watts and with the second degree felony murder of Franklin. At trial, McJimpson contended he acted in self-defense by using lawful force. The jury found him guilty as charged. McJimpson appeals.

I. Double Jeopardy

By entering convictions and sentences for both the second degree assault and the second degree felony murder based on the assault, did the trial court impose multiple punishments for the same offense and thus violate the constitutional prohibition against double jeopardy? We hold it did not.

McJimpson did not expressly raise this issue below. However, McJimpson may raise it for the first time on appeal because the issue is one of constitutional magnitude. RAP 2.5(a)(3); State v. Lynn, 67 Wash.App. 339, 345, 835 P.2d 251 (1992).

The double jeopardy clauses of the state and federal constitutions protect a defendant from multiple prosecutions and multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 688, 100 S.Ct. 1432, 1435-36, 63 L.Ed.2d 715 (1980); State v. Vladovic, 99 Wash.2d 413, 423, 662 P.2d 853 (1983). However, multiple punishments for the same offense are not unconstitutional when the Legislature intentionally imposes such punishments. Vladovic, 99 Wash.2d at 422, 662 P.2d 853 (relying on Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 1145, 67 L.Ed.2d 275 (1981)). Our role is limited to assuring that the trial court did not exceed the authority which the Legislature granted it. State v. Calle, 125 Wash.2d 769, 776, 888 P.2d 155 (1995).

In determining whether the Legislature intended to authorize multiple punishments for second degree assault and second degree felony murder when the predicate felony is the assault, we first review the statutes proscribing those offenses. See Calle, 125 Wash.2d at 776, 888 P.2d 155. RCW 9A.32.050(1)(b) defines second degree felony murder as follows:

A person is guilty of murder in the second degree when:

. . . . .

(b) He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(1)(c) [first degree felony murder], and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants[.]

A person commits second degree assault by assaulting another with a deadly weapon. RCW 9A.36.021(1)(c). Because neither statute addresses whether the two offenses may be punished cumulatively, we must apply the rules of statutory construction. Calle, 125 Wash.2d at 777, 888 P.2d 155.

Washington has adopted the "same evidence" rule of construction which provides that a defendant is subjected to double jeopardy if he or she is convicted of offenses that are identical both in fact and in law. Calle, 125 Wash.2d at 777, 888 P.2d 155; State v. Roybal, 82 Wash.2d 577, 581-82, 512 P.2d 718 (1973). However,

[i]f there is an element in each offense which is not included in the other, and proof of one offense would not necessarily also prove the other, the offenses are not constitutionally the same and the double jeopardy clause does not prevent convictions for both offenses.

Vladovic, 99 Wash.2d at 423, 662 P.2d 853; see also In re Fletcher, 113 Wash.2d 42, 47, 776 P.2d 114 (1989). As Calle states, our "same evidence" test is comparable to the test set out in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), which reads:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.

The elements of second degree assault with a deadly weapon as applied to these facts are (1) McJimpson assaulted Watts (2) with a deadly weapon. See RCW 9A.36.021(1)(c). The elements of second degree felony murder here are (1) McJimpson committed or attempted to commit the felony of second degree assault against Watts, and (2) in the course of and in furtherance of that crime or in flight therefrom, (3) he caused Franklin's death. See RCW 9A.32.050(1)(b). Both elements of the assault against Watts are contained in the first element of the felony murder of Franklin, and thus proof of the felony murder also necessarily proved the assault. See Vladovic, 99 Wash.2d at 423, 662 P.2d 853. The two crimes therefore are the same in law. The same result would follow from the Blockburger test. 284 U.S. at 304, 52 S.Ct. at 182.

However, the two crimes are not the same in fact even though they arose from the same transaction. See Vladovic, 99 Wash.2d at 423, 662 P.2d 853 (offenses committed during a single transaction are not necessarily the "same offense" for purposes of double jeopardy). Each offense harmed a different victim. Because they are not the same in fact, the two offenses were not the same offense under the "same evidence" test, and McJimpson was not subjected to double jeopardy.

McJimpson's reliance on State v. Johnson, 48 Wash.App 531, 740 P.2d 337, review denied, 109 Wash.2d 1011 (1987), is misplaced. There, the two defendants were both convicted of two counts of second degree robbery. On appeal they argued that each of their two convictions arose from the same offense and thus violated the prohibition against double jeopardy. 48 Wash.App. at 534, 740 P.2d 337. The State argued that because there were two clerks in the store at the time of the robbery, there were two separate victims and thus two robberies. 48 Wash.App. at 535, 740 P.2d 337. This court disagreed and reversed one of each defendant's convictions.

That situation is significantly different from the present situation where there are two distinct crimes against two distinct victims. See State v. Rupe, 101 Wash.2d 664, 693, 683 P.2d 571 (1984) (by robbing two bank tellers, each of whom was responsible for the money in her till, the defendant committed two separate robberies and his two convictions did not place him in double jeopardy); State v. Larkin, 70 Wash.App. 349, 352-57, 853 P.2d 451 (1993) (relying on Rupe and distinguishing Johnson, this court found no double jeopardy violation when the defendant was convicted of two counts of first degree robbery which arose out of the same conduct; the defendant took different property belonging to two victims, thus those offenses were not identical in fact).

We are aware that the Supreme Court has stated that "[i]t is sufficient to constitute second jeopardy if one [offense] is necessarily included within the other, and in the prosecution for the greater offense, the defendant could have been convicted of the lesser offense." Roybal, 82 Wash.2d at 582, 512 P.2d 718. However, the Roybal court did not have before it the unique situation of the felony murder rule. In State v. Davis, 121 Wash.2d 1, 6, 846 P.2d 527 (1993), the Supreme Court expressly held that "there are no lesser included offenses to second degree felony murder." Thus, Roybal 's test of whether two crimes are identical in fact and law does not apply in the felony murder context. McJimpson's convictions do not constitute double jeopardy.

II. Inferior Degree Offense Instruction

McJimpson concedes that second degree manslaughter is not a lesser included offense of second degree felony murder. But he asserts that second degree manslaughter is an inferior degree offense of that crime, and the court erred by refusing to instruct the jury accordingly. We disagree.

In general, the crimes charged in an information are the only crimes of which the defendant may be convicted and on which a jury may be instructed. State v. Foster, 91 Wash.2d 466, 471, 589 P.2d 789 (1979). However, the defendant may be convicted of, and the jury instructed on, a crime that is an inferior degree to the one charged. Foster, 91 Wash.2d at 471, 589 P.2d 789. As RCW 10.61.003 provides,

[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.

Thus, a defendant is entitled to an instruction on an inferior degree offense if (1) the statutes for both the charged offense and the...