Oral Argument January 6, 2014
Appeal from Pierce County Superior Court. Docket No: 08-1-05882-6. Date filed: 08/19/2011. Judge signing: Honorable John a Mccarthy.
Lila J. Silverstein (of Washington Appellate Project ), for appellant.
Mark E. Lindquist, Prosecuting Attorney, and Kimberley A. DeMarco, Deputy, for respondent.
AUTHOR: Lisa Worswick, C.J. We concur: Jill M Johanson, J., Thomas R. Bjorgen, J.
[180 Wn.App. 140] ¶ 1 Marsele Kenith Henderson appeals his conviction for first degree murder with extreme indifference to human life while armed with a firearm. Henderson argues that the trial court erred by refusing to instruct [180 Wn.App. 141] the jury on the lesser included offenses of first degree manslaughter and second degree manslaughter. We reverse and remand for a new trial because Henderson was entitled to a lesser included instruction for first degree manslaughter.
A. The Shootings
¶ 2 Philip Johnson and Henderson were Hilltop Crip gang members and close friends. Johnson told Henderson that he was going to a party at the Boys' and Girls' Club (BGC). Henderson told Johnson not to attend the BGC party because it was too close to the 96th Street Murderville Folk gang's territory. Johnson went to the BGC party despite Henderson's warning. Johnson was shot at the BGC party and later died.
¶ 3 Henderson, Lewis Davis, and D'Orman McClarron immediately went to the BGC party to check on Johnson. After Henderson, Davis, and McClarron learned that Johnson had been taken to the hospital, they went to the hospital.
¶ 4 On the same night, there was another house party on South Yakima Street in Tacoma. The Yakima Street party took place in a house with a front yard that bordered a street. Attendees had spilled out from the house and formed a large crowd in the front yard. Many people associated with the 96th Street Murderville Folk gang were present. Victor Schwenke worked as security for the party.
¶ 5 Henderson and McClarron left the hospital and went to the Yakima Street party. While Henderson and McClarron were in the street that ran in front of the house, shots were fired from that street, through the front yard, and toward the house. Schwenke was shot and killed.
¶ 6 The State charged Henderson with first degree murder with an extreme indifference to human life while armed [180 Wn.App. 142] with a firearm, alleging that Henderson shot Schwenke when shooting into the Yakima Street party.
¶ 7 The State argued at trial that Henderson was a Hilltop Crip and that he shot indiscriminately into the Yakima Street party with the motive of retaliating against the 96th Street Murderville Folk gang for the shooting of Johnson (a fellow Hilltop Crip). Henderson argued at trial that McClarron, also a Hilltop Crip, was the shooter.
B. Lesser Included Jury Instructions
¶ 8 Henderson asked the trial court for lesser included jury instructions for first degree manslaughter and second degree manslaughter. At two points during trial, the trial court denied Henderson's requests to give the lesser included instructions.
¶ 9 First, during the defense case, Henderson asked the trial court for lesser included instructions for first degree manslaughter and second degree manslaughter. The trial court declined, citing State v. ...