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State v. Condon

Supreme Court of Washington, En Banc

January 8, 2015

The State of Washington, Petitioner ,
Joel Cameron Condon, Respondent

Argued February 25, 2014

Appeal from Yakima County Superior Court. 09-1-00544-9. Honorable David A. Elofson.

Daniel T. Satterberg, Prosecuting Attorney, and Jennifer P. Joseph and David B. Trefry, Deputies, for petitioner.

Jodi R. Backlund and Manek R. Mistry (of Backlund & Mistry ), for respondent.

AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Justice Susan Owens, Justice Debra L. Stephens, Justice Charles K. Wiggins, Stephen J. Dwyer, Justice Pro Tem. AUTHOR: Justice Steven C. González. WE CONCUR: Justice Charles W. Johnson, Justice Mary E. Fairhurst. AUTHOR: Chief Justice Barbara A. Madsen.


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[182 Wn.2d 310] Gordon McCloud, J.

¶ 1 The defendant, Joel Condon, was charged with multiple offenses, including aggravated first degree (premeditated) murder and first degree felony murder, stemming from his involvement in a home invasion robbery attempt. A jury found Condon

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guilty of aggravated [182 Wn.2d 311] (premeditated) first degree murder, first degree burglary, and second degree unlawful possession of a firearm. [1]

¶ 2 The primary questions before the court are whether there was sufficient evidence of premeditation and whether Condon was entitled to a jury instruction on second degree intentional murder as a lesser included offense to aggravated premeditated murder.

¶ 3 The Court of Appeals found there was sufficient evidence of premeditation, but that it was error to deny Condon's request for an instruction on the lesser included crime. State v. Condon, noted at 174 Wn.App. 1041, 2013 WL 1628247. We affirm the Court of Appeals.


¶ 4 On January 20, 2009 two men kicked down the door and entered the home where Carmelo Ramirez and Enedina Gregorio lived with their three children. The intruders apparently believed (mistakenly) that they were at the home of a drug dealer whom they planned to rob.

¶ 5 As the intruders entered and began shouting at the family, Ramirez and Gregorio's son went to a bedroom where his two younger siblings were playing. Gregorio followed and told her children to escape through the bedroom window. She then returned to the living room, where Ramirez was trying to take a gun from the taller of the two intruders. The other intruder grabbed Gregorio, threw her facedown on a sofa, and held her hands behind her back.

¶ 6 At that moment a family friend, Martin Gutirrez, pulled into the driveway and, according to Gregorio, frightened the intruders. Gregorio heard gunshots, and the two intruders fled, leaving a cell phone behind. Ramirez staggered [182 Wn.2d 312] out of the house and told Gutirrez that he had been shot. Gutirrez rushed him to a nearby Farm Workers Clinic for immediate help. The nurses were unable to save him there, and he died before reaching the hospital.

¶ 7 Approximately six weeks later, Jesus Lozano turned himself in and gave a statement to the police describing the break-in and shooting. Lozano was the owner of the cell phone left at the crime scene. He identified the other intruder as a man called " Wak-Wak," a tall, light skinned Native American with a tattoo on his neck of a scroll with writing on it. State Ex. 1 (Recorded Statement of Jesus Lozano, Mar. 10, 2009); 4 Tr. of Proceedings (TP) (Jury Trial) (Jan. 27, 2011) at 788-90. He told police that Ramirez had gotten him in a choke hold during the struggle and that Wak-Wak had shot Ramirez just as Lozano was losing consciousness from lack of oxygen.

¶ 8 From Lozano's description, police identified Joel Condon as the man called Wak-Wak. State Ex. 1; 4 TP (Jury Trial) (Jan. 27, 2011) at 788-90. The State charged Condon with one count of aggravated first degree (premeditated) murder, in violation of RCW 9A.32.030(1)(a) and RCW 10.95.020(11)(a); one count of first degree felony murder predicated on first degree burglary and attempted first degree robbery, in violation of RCW 9A.32.030(1)(c); one count of first degree burglary, in violation of RCW 9A.52.020(1)(b); and one count of second degree unlawful possession of a firearm, in violation of RCW 9.41.040(2)(a)(i). Clerk's Papers (CP) at 302-03. Some of the counts included firearm enhancements. With respect to the first degree (premeditated) murder charge, the aggravating circumstance alleged was that the murder took place " in the course of, in furtherance of, or in immediate flight from" a first degree burglary and/or an attempted first degree robbery. CP at 302.

¶ 9 At trial, the State presented Lozano's testimony that Condon had been the shooter in the burglary, testimony by a jailhouse informant that Condon had admitted to shooting [182 Wn.2d 313] a victim when he " screwed up on a home invasion," 5 TP (Jan. 31, 2011) at 1001, and Gregorio's pretrial lineup and in-court identification of Condon. Condon argued mistaken identity, pointing out the lack of forensic evidence, impugning the credibility of the State's witnesses, and criticizing the

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procedures used to facilitate Gregorio's identification. [2]

¶ 10 Before closing arguments, defense counsel requested that the jury be instructed on second degree intentional murder as a lesser included offense to aggravated (premeditated) first degree murder. Counsel reasoned that the jury could find that he committed the murder but without premeditation. The court denied the request for two reasons: first, that the evidence presented did not support an inference that the shooting was not premeditated, and second, that second degree murder was a lesser included offense to the first degree (premeditated) murder charge, but not to the first degree felony murder charge.

¶ 11 The jury convicted Condon of aggravated first degree murder, first degree burglary, and second degree unlawful possession of a firearm. The trial court imposed the mandatory minimum penalty for aggravated first degree murder: life without the possibility of parole.

¶ 12 Condon appealed, and the Court of Appeals reversed. Condon, 2013 WL 1628247. It concluded that Condon was entitled to a lesser included instruction on second degree (nonpremeditated) murder. It then conducted a harmless error analysis and considered the probability that the jury might have found the murder " intentional but impulsive rather than premeditated [182 Wn.2d 314] ." Condon, 2013 WL 1628247, at *8.  It concluded that because the trial court failed to instruct the jury on second degree intentional murder, " [t]he instructions given ... did not draw the jury's attention to the difference between premeditation and intent." Condon, 2013 WL 1628247, at *7.

¶ 13 The State petitioned this court for review, arguing that the trial court properly refused to give the lesser included offense instruction. In his answer to the State's petition, Condon raised several other issues. We granted review as to two issues in all: (1) the sufficiency of the evidence to support the jury's finding of premeditation and (2) Condon's entitlement to the lesser included offense instruction. State v. Condon, 178 Wn.2d 1010, 311 P.3d 26 (2013).


I. The Evidence Was Sufficient To Support the Jury's Finding of Premeditation

¶ 14 In considering a sufficiency of the evidence challenge, we must determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Luvene, 127 Wn.2d 690, 712, 903 P.2d 960 (1995) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1970), quoted in State v. Green, 94 Wn.2d 216, 221, 616 P.2d 628 (1980)). " A claim of insufficiency [of evidence] admits the truth of the State's evidence and all inferences that reasonably can be drawn [from it]." State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992).

¶ 15 To convict Condon of first degree premeditated murder, the State had to prove that Condon caused the death of Ramirez with premeditated intent. RCW 9A.32.030(1)(a). Condon argues there was insufficient evidence of [182 Wn.2d 315] premeditation because the facts all suggest that Condon was reacting to a struggle, not that he had planned the killing ahead of time. We disagree.

¶ 16 " Premeditation" is " 'the deliberate formation of and reflection upon the intent to take a human life'" and involves " 'the mental process of ... deliberation, reflection, weighing or reasoning for a period of time, however short.'" State v. Pirtle, 127 Wn.2d 628, 644, 904 P.2d 245 (1995)

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(quoting State v. Gentry, 125 Wn.2d 570, 597-98, 888 P.2d 1105 (1995)). Premeditation must involve " more than a moment in point of time." RCW 9A.32.020(1).

¶ 17 The State presented evidence that Condon entered the Toppenish home wielding a loaded handgun and intending to commit a robbery. That motive is relevant to establishing premeditation. See Pirtle, 127 Wn.2d at 644. Specifically, we have found that " '[a] person can form a premeditated design to effect the death of another for the purpose of better enabling him to rob the person or premises of that other.'" State v. Miller, 164 Wash. 441, 447, 2 P.2d 738 (1931) (" When the appellant entered the express office [intending to rob it] and saw two men present, he may have very hastily concluded that it was advisable to dispose of Ivester so he would have but one man to contend with." ) (quoting State v. Evans, 145 Wash. 4, 11, 258 P. 845 (1927)); Luvene, 127 Wn.2d at 713 (evidence showed the defendant entered liquor store to rob it and shot clerks; this sufficed to prove ...

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