State v. Strong, No. 26855-1-III (Wash. App. 4/21/2009)
| Decision Date | 21 April 2009 |
| Docket Number | No. 26855-1-III.,26855-1-III. |
| Court | Washington Court of Appeals |
| Parties | STATE OF WASHINGTON, Respondent, v. PHILIP J. STRONG, Appellant. |
Appeal from Ferry Superior Court. Docket No: 07-1-00007-1. Judgment or order under review. Date filed: 02/08/2008. Judge signing: Honorable Allen C Nielson.
Counsel for Appellant(s), Susan Marie Gasch, Gasch Law Office, Po Box 30339, Spokane, WA, 99223-3005.
Counsel for Respondent(s), John Christopher Hillman, Atty General's Office, Criminal Justice, 800 5th Ave Ste 2000, Seattle, WA, 98104-3188.
UNPUBLISHED OPINION
The trial court must instruct a jury on manslaughter as a lesser included offense of intentional murder if sufficient evidence supports an inference that the defendant acted negligently or recklessly in defending himself. Here, the court refused a manslaughter instruction after it concluded that the record was not sufficient to support the instruction. We disagree with that decision and therefore reverse and remand for a new trial.
The State charged Philip Strong with first degree murder while armed with a firearm for shooting and killing Trent Irby. Mr. Strong claimed self-defense and pleaded not guilty.
Mr. Strong lived in a trailer in Melinda Jarrett's backyard. Ms. Jarrett and Mr. Irby were friends. Mr. Irby and his girl friend, Kelly Stout, stayed at Ms. Jarrett's house.
Mr. Irby had been at Ms. Jarrett's house for several days before Mr. Strong shot him.
Ms. Stout saw Mr. Strong shoot Mr. Irby. She testified that Mr. Strong walked into Ms. Jarrett's house with a rifle draped over his arm. He walked up to the table where Mr. Irby was sitting, stood across the table from him, and asked, "`What do you think about today being your day to die?'" Report of Proceedings (RP) at 229-30. Mr. Irby responded by raising his hands in the air and saying, "`Whatever, motherf[____], bring it on.'" RP at 230, 261.
Mr. Strong then shot Mr. Irby once in the chest. Mr. Irby fell facedown on the floor. Mr. Strong then stepped around the table, pointed the gun at Mr. Irby's back, and shot him once more. The first shot likely incapacitated Mr. Irby and would have been fatal. The second shot was instantly fatal; it struck Mr. Irby's heart and a lung.
Mr. Strong testified that he recalled several instances in the days leading up to the shooting where Mr. Irby had intimidated or threatened him. He testified that he walked into Ms. Jarrett's house to use the phone the day Mr. Irby died. He admitted that he carried a rifle into the home but maintained the rifle's chamber was empty and its lever was open. Mr. Strong walked past Mr. Irby, who was sitting at a table. He heard Mr Irby say, "`[B]ring it on, motherf[_____].'" RP at 1088. Mr. Strong turned around to see Mr. Irby pointing a pistol at him. He told Mr. Irby he just wanted to use the phone, but Mr. Irby repeated his earlier statement. Mr. Strong raised his rifle and closed the lever.
He told Mr. Irby, "`You don't want to die.'" RP at 1088. Mr. Strong then saw Mr. Irby "bearing down on that trigger." RP at 1088. So he shot Mr. Irby. Mr. Irby fell on the floor. Mr. Strong thought Mr. Irby landed on his pistol and was trying to pull it out from underneath his body to shoot him. So Mr. Strong shot Mr. Irby again, this time in the back.
The court gave the State's proposed first aggressor instruction to the jury. But it refused Mr. Strong's request for instructions on first and second degree manslaughter.
The court instructed the jury on the offenses of first degree and second degree murder only.
The jury asked the judge during deliberations if it could consider other offenses.
The judge responded that it could not. The jury then found Mr. Strong guilty of second degree murder while armed with a firearm.
Mr. Strong contends that the court erred by refusing to instruct the jury on the elements of manslaughter. He argues that he met his burden of producing evidence that would support the jury finding that he acted recklessly or negligently.
The State agrees that Mr. Strong would be entitled to manslaughter instructions if he produced evidence that showed he defended himself recklessly or negligently. But the State maintains that therein lays the problem. The State urges that, on this record, either Mr. Strong murdered Mr. Irby or he killed Mr. Irby in self-defense; there was no evidence to support an imperfect self-defense here — an overreaction to the threat posed by Mr. Irby. The State, then, urges that the court properly refused to instruct on manslaughter.
Mr. Strong is entitled to instructions that are sufficient to allow him to argue his theory of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999). That means that, if sufficient evidence in the record supports instructions for manslaughter, Mr. Strong is entitled to those instructions. State v. Speece, 115 Wn.2d 360, 362, 798 P.2d 294 (1990). And the court's refusal to so instruct would be an error of law. State v. Jones, 95 Wn.2d 616, 623, 628 P.2d 472 (1981). We, accordingly, review the decision de novo. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
Mr. Strong is entitled to instructions on the lesser included offense of manslaughter if (1) each element of the lesser included offense is a necessary element of the offense charged; and (2) the evidence in the case supports an inference that the lesser included offense was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 455, 6 P.3d 1150 (2000). "A defendant may be convicted of a lesser included offense even if the State did not charge the lesser included offense." State v. Prado, 144 Wn. App. 227, 241, 181 P.3d 901 (2008) (citing RCW 10.61.006; Fernandez-Medina, 141 Wn.2d at 453). Manslaughter is a lesser included offense of first degree murder. See State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997). So, again, the question before us is whether sufficient evidence supports the inference that Mr. Strong defended himself recklessly or negligently. See State v. Schaffer, 135 Wn.2d 355, 358, 957 P.2d 214 (1998).
A person who recklessly causes another person's death commits first degree manslaughter. RCW 9A.32.060(1)(a). A person acts recklessly "when he knows of and [unreasonably] disregards a substantial risk that [death] may occur." RCW 9A.08.010(1)(c); see State v. Gamble, 154 Wn.2d 457, 467-68, 114 P.3d 646 (2005). A person who, with criminal negligence, causes another person's death commits second degree manslaughter. RCW 9A.32.070(1). And a person "acts with criminal negligence when he fails [unreasonably] to be aware of a substantial risk that [death] may occur."
RCW 9A.08.010(1)(d).
The trial court here concluded that there was no showing that Mr. Strong acted recklessly or negligently:
And counsel, as I think about it on the [manslaughter] instructions, I agree with Mr. Hillman [deputy prosecutor] in the final analysis. I think there is a meaningful distinction between here — this case and the Schaffer case, and that being that Mr. Strong quite simply said "I was faced with an armed man, a man that even once I shot him still was trying to get me, and I had to shoot him a second time; I had no choice." That's what he said happened. And it's either justified or not.
And so, you know, the idea that he was reckless or negligent in using excessive force, no, not by his version. If what he said is true, he did what probably anybody else would do, given that situation, where somebody was bent on shooting him. And that's not reckless or negligent; that's just facing the situation and dealing with it.
But the trial court's task, as well as ours here on appeal, is to view all the evidence in the light most favorable to Mr. Strong when determining whether or not an instruction should have been given. Fernandez-Medina, 141 Wn.2d at 455-56. If the evidence supports a reasonable inference that Mr. Strong defended himself negligently or recklessly, then he is entitled to a manslaughter instruction. Schaffer, 135 Wn.2d at 358. Said another way, the court should have instructed the jury on manslaughter if the jury could have found that Mr. Strong reasonably believed he was in imminent danger but recklessly used more force than necessary to repel Mr. Irby's attack. Id.
In Schaffer, the defendant shot the victim five times, twice in the back and three times in the legs, because he thought the victim was reaching for a gun during an argument. Id. at 357. The Supreme Court concluded that the evidence showed the defendant acted in self-defense but that five shots were sufficient proof that he recklessly or negligently used excessive force to repel the danger he perceived. Id. at 358. The court reversed and remanded for a new trial: "[t]he trial court erred in failing to instruct the jury on manslaughter as a lesser included offense to premeditated murder." Id. at 359.
Here, both the State and Mr. Strong showed Mr. Strong knew that shooting Mr. Irby carried the risk of death but that he shot Mr. Irby anyway. The State showed that Mr. Strong held a rifle in his hands and asked Mr. Irby, "`What do you think about today being your day to die?'" RP at 230. And Mr. Strong testified that, just before shooting Mr. Irby in self-defense, he told Mr. Irby, "`You don't want to die.'" RP at 1088. That first shot incapacitated Mr. Irby. But Mr. Strong shot him a second time because he thought Mr. Irby was reaching for his gun again.
Even assuming self-defense, then, a reasonable person would not have shot Mr. Irby a second time because he no longer posed a threat. Mr. Strong did, however, shoot Mr. Irby a second time. It was this second gunshot that killed Mr. Irby instantly. A jury could rationally conclude on this evidence that Mr. Strong used excessive force (the second shot), which killed Mr. Irby. Enough evidence was produced, then, to justify...
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