Appeal from Superior Court of King County. Docket No: 94-1-01051-1. Date filed: 07/10/94. Judge signing: Hon. Anthony P. Wartnik.
PER CURIAM. Ronald Keith Hemphill, Jr., appeals from the judgment and sentence entered following his convictions of assault in the first and second degrees. Hemphill contends on appeal that the trial court committed reversible error in refusing to instruct the jury on the lesser included offense of unlawful display of a weapon and that the prosecutor committed misconduct on cross examination by asking Hemphill to comment on whether other witnesses had lied. Because unlawful display of a weapon is not a lesser included offense of the crimes charged and the alleged prosecutorial misconduct was not committed in the presence of the jury, we affirm.
On the evening of February 5, 1994, Hemphill became involved in a confrontation with Bradley Robbins and Paul Snarski. During the course of the event, Hemphill pointed a loaded handgun in Robbins' face and then later shot Snarski in the cheek. Hemphill was charged with assault in the first degree for shooting Snarski and assault in the second degree for pointing the gun in Robbins' face. Hemphill was convicted as charged.
Hemphill first argues that the trial court erred in refusing to instruct the jury on the lesser included offense of unlawful display of a weapon. Because of this issue, Hemphill's appeal was stayed pending the Supreme Court's resolution of State v. Lucky. On March 7, 1996, the court held that a lesser included offense instruction is proper only if the lesser offense is a lesser included offense of each alternative means.
State v. Lucky, 128 Wash. 2d 727, 733, 912 P.2d 483 (1996). Specifically, the court held that unlawful display of a weapon is not a lesser included offense of assault in the second degree. Lucky, 128 Wash. 2d at 735.
The decision in Lucky conclusively resolves the question of whether the trial court erred in refusing Hemphill's request for an unlawful display instruction as a lesser included offense of assault in the second degree. In his supplemental brief, Hemphill appears to concede, and rightly so, that under the Lucky analysis unlawful display of a weapon is not a lesser included offense of assault in the first degree either.
However, Hemphill argues that this court should not follow the majority decision in Lucky because it is not supported by "persuasive reasoning or legitimate public policy concerns." Supplemental Brief of Appellant, at 2.
Even if we were to disagree with the analysis in Lucky, this court is bound by directly controlling authority decided by the Supreme Court unless it is overruled by that court. State v. Peerson, 62 Wash. App. 755, 770 n.13, 816 P.2d 43 (1991) (citing State v. Gore, 101 Wash. 2d 481, 487, 681 P.2d 227, 39 A.L.R.4th 975 (1984)), review denied, 118 Wash. 2d 1012 (1992).
Accordingly, Hemphill's invitation to reject the Lucky decision must be denied.
Hemphill next argues that his conviction should be reversed because of prosecutorial misconduct. He maintains that the prosecutor "engaged in cross examination designed to compel Hemphill to say that various witnesses were lying and to comment on the veracity of a witness." Brief of Appellant, at 13. This contention also fails.
In order to obtain a reversal based upon prosecutorial misconduct, Hemphill bears the burden of establishing both the impropriety of the prosecutor's conduct and the prejudicial effect. State v. Hoffman, 116 Wash. 2d 51, 93, 804 P.2d 577 (1991). Hemphill cites State v. Wright, 76 Wash. App. 811, 888 P.2d 1214, review denied, 127 Wash. 2d 1010, 902 P.2d 163 (1995) in support of his contention that the prosecutor's cross examination was improper. But Hemphill fails to articulate how he was prejudiced by this misconduct. The cross examination occurred in a hearing conducted outside the presence of the jury. There is no likelihood that Hemphill suffered prejudice as a result of the improper questioning.
The judgment and sentence is ...