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State v. Condon

Supreme Court of Washington, En Banc

January 8, 2015

The State of Washington, Petitioner ,
v.
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.

OPINION

Page 358

[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

Page 359

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.

FACTS

¶ 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

Page 360

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).

ANALYSIS

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 premeditation). Given that Condon entered the house with a loaded handgun, intending to rob a drug dealer, a rational jury could have found premeditation under our analysis in Miller and Luvene.

II. The Trial Court Erred by Denying Condon's Request for an Instruction on Second Degree Murder

¶ 18 The standard of review applicable to jury instructions depends on the trial court decision under review. State v. Walker, 136 Wn.2d 767, 771-72, 966 P.2d 883 (1998). If the decision was based on a factual determination, it is [182 Wn.2d 316] reviewed for abuse of discretion. Id. at 772. If it was based on a legal conclusion, it is reviewed de novo. Id.

¶ 19 In this case, the trial court's decision regarding the lesser included offense instruction had both factual and legal components. The trial court concluded as a matter of law that Condon was not entitled to the instruction on second degree intentional murder unless that crime was a lesser included offense of both alternative charges (aggravated (premeditated) first degree murder and first degree felony murder). That decision is reviewed de novo. Id. The trial court concluded as a matter of fact that the evidence did not support an inference that Condon committed the shooting without premeditation. That decision is reviewed for abuse of discretion. Id. at 771-72.

A. A party is entitled to a lesser included offense instruction whenever that instruction satisfies the two-pronged Workman test

¶ 20 The right to a lesser included offense instruction is statutory, codified at RCW 10.61.006. State v. Berlin, 133 Wn.2d 541, 545, 947 P.2d 700 (1997). In State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978), this court set forth a two-pronged test to determine whether a party is entitled to an instruction on a lesser included offense under RCW 10.61.006. Under the first prong of the test (the legal prong), the court asks whether the lesser included offense consists solely of elements that are necessary to conviction of the greater, charged offense. Id. Under the second (factual) prong, the court asks whether the evidence presented in the case supports an inference that only the lesser offense was committed, to the exclusion of the greater, charged offense. Id. at 448. The requesting party is entitled to the lesser included offense instruction when the answer to both questions is yes. Id.

¶ 21 We took a short detour from this path about 20 years ago. In State v. Lucky, this court held that when a charged crime can be committed by alternative means, a defendant [182 Wn.2d 317] is entitled to an instruction on a lesser included offense only if it is a lesser included offense of every one of the (potentially) greater offense's statutory means. 128 Wn.2d 727, 735, 912 P.2d 483 (1996), overruled by Berlin, 133 Wn.2d 541. Under the short-lived Lucky rule, it did not matter whether the State had actually charged any of the statutory alternative means; those means still had to be considered, no matter how logically irrelevant they were to the facts of the case. Id. at 733-34; see also Berlin, 133 Wn.2d at 547 (" [ Lucky ] requir[ed] us

Page 362

to look to 'the elements of the pertinent charged offenses as they appeared in the context of the broad statutory perspective, and not in the more narrow perspective of the offenses as prosecuted.'" (quoting Lucky, 128 Wn.2d at 734)).

¶ 22 One year after Lucky was decided, this court heard two companion cases, Berlin, 133 Wn.2d at 547-49, and State v. Warden, 133 Wn.2d 559, 562-63, 947 P.2d 708 (1997). Petitioners in both cases--the State in one, the defendant in the other--asked us to overturn Lucky and reinstate the traditional Workman rule. In Berlin, 133 Wn.2d at 543-44, the State wanted a lesser included instruction that was prohibited under Lucky ; in Warden, 133 Wn.2d at 561, the defendant wanted the instruction.

¶ 23 In both Berlin and Warden, the defendant had actually been charged with both intentional murder and felony murder. Berlin, 133 Wn.2d at 543 (second degree intentional murder and second degree felony murder based on assault); Warden, 133 Wn.2d at 561 (first degree premeditated murder and first degree felony murder based on robbery). In both cases, the Lucky rule precluded the requested lesser included instruction on manslaughter because manslaughter is a lesser included offense of intentional murder but not of felony murder. Berlin, 133 Wn.2d at 543; Warden, 133 Wn.2d at 561. In both cases, the petitioner argued that Lucky was incorrect and harmful, and in both cases, this court agreed. Berlin, 133 Wn.2d at 546-49; Warden, 133 Wn.2d at 562 (adopting the reasoning in Berlin ).

[182 Wn.2d 318] ¶ 24 The Berlin / Warden holding was based on statutory construction and equitable concerns. In each case, the court reasoned that the Lucky rule rendered RCW 10.61.006 (the lesser included offense statute) a virtual nullity since " [a] lesser [included] offense will seldom satisfy every statutory alternative means of committing the greater offense." Berlin, 133 Wn.2d at 548. It noted that this outcome went against the " basic rule of statutory construction to avoid rendering meaningless any provision of a statute," and it concluded that the Lucky rule was " inequitable" because it so often prevented a party from arguing a legitimate theory of its case. Id. at 547-48 (" As these companion cases so aptly illustrate, an inequity may arise for either the prosecution or the defense." ).

¶ 25 To prevent such inequities, the court reinstated Workman 's legal prong in its original form. Id. at 548. Significantly for this case, it also held that in order to satisfy Workman 's legal prong, a lesser included offense instruction need only satisfy that prong as to one of multiple charged offenses. Id. at 543-44, 550.

B. The instruction on the lesser included offense that Condon requested--second degree intentional murder--satisfies Workman's legal prong

¶ 26 The trial court ruled that Condon was not entitled to a lesser included offense instruction unless it satisfied Workman 's legal prong as to both first degree (premeditated) murder and first degree felony murder. [3] This was error. Under Berlin and Warden, Condon did not have to show that second degree intentional murder was a lesser included offense of both charges. Id. at 543-44. Second degree (intentional) murder is a lesser included offense with respect to aggravated first degree (premeditated) [182 Wn.2d 319] murder under the legal test, because it consists solely of elements that are necessary to conviction of that greater offense. [4] Thus, the requested second degree intentional murder

Page 363

instruction satisfies Workman 's legal prong in this case. Both parties agree. Suppl. Br. of Pet'r at 8 (" Second degree intentional murder meets the legal component of the Workman test because each element of that crime is a necessary element of first degree premeditated murder." ); Resp't's Second Suppl. Br. at 3 (" Petitioner concedes--as it must--that the legal prong is satisfied." ).

C. The requested lesser included offense instruction also satisfies Workman's factual prong

¶ 27 Because Condon's requested instruction satisfies Workman 's legal prong, we must determine whether it also satisfies Workman 's factual prong. Berlin, 133 Wn.2d at 551-52.

i. The evidence supported an inference that only second degree murder was committed, to the exclusion of the greater charged offense of aggravated first degree (premeditated) murder

¶ 28 As noted above, the trial court concluded that second degree intentional murder failed Workman 's factual prong because no rational juror could conclude that the shooting lacked premeditation. But the trial court based this conclusion on testimony that Condon reflected on the shooting after it had occurred:

[T]he factual prong requires that there be -- that there be facts that raise an inference that only second degree murder was committed. And I don't see that as being -- surviving the facts in this case. ...
[182 Wn.2d 320] Mr. Condon went in and I don't find that there has to be a specific amount of time for this -- premeditation to occur. The testimony seemed pretty clear, at least the unrebutted testimony is -- is that -- there was a -- a scuffle between Mr. Ramirez and Mr. Padilla-Lozano. As a result of that scuffle ... Mr. Condon shot Mr. Ramirez twice and -- was reflective enough, cool enough, to be able to say at some point that Padilla-Lozano was lucky he didn't get shot and that ultimately he probably should have shot him too.
Now, and I recognize that the latter statement is -- is offered sometime later and may reflect an overall strategy of how that could have been -- this case could have been resolved. But as the facts occurred at the time it doesn't occur to me that they lend themselves at all to an inference that only second degree murder was committed.

6 TP (Feb. 1, 2011) at 1083-84.

¶ 29 This reasoning is not sound. As the Court of Appeals correctly concluded, " premeditation ... requir[es] 'more than a moment in point of time.'" Condon, 2013 WL 1628247, at *6, (quoting RCW 9A.32.020). To prove premeditation the State must show " ' deliberate formation of and reflection upon the intent to take a human life [that] involves the mental process of thinking beforehand, deliberation, reflection, weighing or reasoning for a period of time, however short.'" Condon, 2013 WL 1628247, at *6, (alteration in original) (internal quotation marks omitted) (quoting State v. Gregory, 158 Wn.2d 759, 817, 147 P.3d 1201 (2006)). There was certainly evidence from which a jury could have inferred premeditation. But there was also evidence from which it could have inferred that premeditation was lacking. Specifically, the evidence supported an inference that the shooting was a sudden reaction, based in fear rather than " weighing or reasoning." Condon, 2013 WL 1628247, at *6, (" A jury could conclude from the testimony of the eyewitnesses that Mr. Condon shot Mr. Ramirez in reaction to Mr. Ramirez trying to wrest the handgun from him, or [182 Wn.2d 321] that he shot Mr. Ramirez because Mr. Lozano was turning purple from Mr. Ramirez's chokehold." ).

¶ 30 When applying Workman 's factual prong, a court must view the supporting evidence in the light most favorable to the party requesting the lesser included offense instruction. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). The trial court here failed to do that. The evidence supported an inference that the shooting was impulsive and reactionary. Testimony that Condon later reflected on the shooting was not sufficient to defeat that inference for purposes of Workman 's factual prong. [5]

Page 364

¶ 31 Because a rational jury could have had a reasonable doubt as to premeditation, the Court of Appeals correctly rejected the trial court's reasoning about Workman 's factual prong. The trial court erred when it concluded that the evidence did not support an inference that second degree murder was committed to the exclusion of the greater charged offense of aggravated first degree (premeditated) murder.

ii. For purposes of the Workman test, the relevant charged offense is aggravated first degree (premeditated) murder; accordingly, we consider only that offense when applying Workman's factual prong

¶ 32 On appeal, the State did not argue that the evidence was insufficient to support an inference that second degree murder was committed to the exclusion of aggravated first degree premeditated murder. [6] Instead, it argued that even if the jury had a reasonable doubt as to premeditation, there was still no doubt that the fatal shooting occurred [182 Wn.2d 322] during the course of a burglary; thus, no juror could rationally conclude that Condon committed second degree intentional murder to the exclusion of first degree felony murder : " If the jury was convinced of [Condon's] involvement in the burglary, but not premeditation, the only murder charge on which they could have convicted was the alternative, felony murder." Br. of Resp't at 16.

¶ 33 In other words, although the State recognizes that under Berlin and Warden, aggravated first degree (premeditated) murder is the only relevant charged offense for purposes of Workman 's legal prong, the State argues that under Workman 's factual prong we should also consider a second charged offense: first degree felony murder.

¶ 34 Condon does not argue that the evidence supports an inference that the fatal shooting occurred in a context other than a burglary. Instead, he argues--and the Court of Appeals agreed--that because the felony murder charge is irrelevant under Workman 's legal prong, it is also irrelevant under Workman 's factual prong.

¶ 35 There is admittedly some tension in our case law regarding the application of Workman 's factual test in cases where the State charges both intentional murder and felony murder. In some cases, we have applied Workman 's factual test just as Condon urges and the Court of Appeals did below. In those cases, we have asked whether the facts support an inference that the defendant committed the lesser crime to the exclusion of only one charged offense--the greater, charged offense relevant under Workman 's legal prong. E.g., Berlin, 133 Wn.2d at 551-52 (concluding that Workman 's factual prong was satisfied because the evidence supported an inference that the defendant had no ability to form the " requisite intent to kill" --an intent necessary for conviction of charged second degree murder, but not for charged felony murder); Warden, 133 Wn.2d at 564 (same); accord State v. Schaffer, 135 Wn.2d 355, 357, 957 P.2d 214 (1998); State v. Grier, 171 Wn.2d 17, 25, 246 P.3d 1260 (2011). Under that approach, we do not inquire [182 Wn.2d 323] whether the facts also support an inference that the defendant committed the lesser crime to the exclusion of the separate felony murder charged. Berlin, 133 Wn.2d at 551-52; Warden, 133 Wn.2d at 564.

¶ 36 But in other cases we have taken the approach advocated by the State. In those cases we have considered only one charged offense under Workman 's legal prong (intentional or premeditated murder), but two charged offenses under Workman 's factual prong (intentional or premeditated murder and felony murder). E.g., State v. Ortiz, 119 Wn.2d 294, 313-14, 831 P.2d 1060 (1992); State v. Bowerman, 115 Wn.2d 794, 805-08, 802 P.2d 116 (1990).

Page 365

These cases proceed on the theory that while the felony murder charge is irrelevant under Workman 's legal test, it will still bar a lesser included offense instruction under Workman 's factual test when the evidence does not support an inference that the lesser offense occurred to the exclusion of the felony murder charged. Ortiz, 119 Wn.2d at 313-14; Bowerman, 115 Wn.2d at 805-08.

¶ 37 The tension between these cases--the Ortiz line and the Berlin / Warden line--highlights some difficult issues regarding the interaction between felony murder and lesser included offense instructions. These issues include whether felony murder can ever be considered a greater offense with respect to manslaughter [7] and whether felony murder can be an alternative offense to, or a lesser included offense of, aggravated premeditated murder. [8] The specific difficult [182 Wn.2d 324] issue presented in this case--and the only one we address--is whether we should follow the Berlin line, under which Condon is entitled to a lesser included offense instruction on second degree intentional murder, or the Ortiz line, under which he is not.

¶ 38 For two reasons, we affirm the Berlin line and disapprove the analysis in the Ortiz line. First, Berlin and its progeny are the more recent precedent. Thus, to the extent the Ortiz line is inconsistent, its reasoning has been undermined by the Berlin line.

¶ 39 Second, the reasoning in Berlin and its companion case, Warden, is significantly more in-depth than the reasoning in Ortiz. As explained above, Berlin and Warden came to this court as a request to overrule the recent Lucky decision and prompted a wide-ranging analysis of this court's cases on felony murder and the Workman test. See discussion of Berlin, 133 Wn.2d at 547-49, and Warden, 133 Wn.2d at 562, supra, pp. 9-18. We do not overturn precedent lightly and did so in Berlin / Warden only after carefully considering questions of statutory interpretation, precedent, policy, and equity. Such considerations are entirely absent from the Ortiz decision. 119 Wn.2d at 331.

¶ 40 Under Berlin 's approach, which we now expressly affirm, a defendant charged with both intentional (or premeditated) murder and felony murder is entitled to a lesser included offense instruction if it satisfies both prongs of the Workman test as to intentional (or premeditated) murder. In other words, the party requesting an instruction on a crime that is a lesser offense of intentional or premeditated murder under Workman 's legal test does not need to [182 Wn.2d 325] show that it is also a lesser included offense of felony murder under the legal test, or that the evidence supports an inference that the lesser crime occurred to the exclusion of felony murder under the factual test.

¶ 41 We know this because the evidence in Berlin did not support an inference that the defendant had committed manslaughter--the lesser included offense instruction requested--to the exclusion of the alternatively

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charged felony murder. Instead, the evidence--from Berlin's own testimony--was that the defendant and the victim had " struggled" and that a gun in the defendant's possession had accidentally discharged during the " struggle[ ]." 133 Wn.2d at 552. These facts established that the defendant had, at the very least, accomplished a killing during the course of an assault. [9] Nevertheless, this court held that the defendant was entitled to the manslaughter instruction because " ample evidence was offered of [his] drinking to the point of potentially impairing his ability to form the requisite intent to kill." Id. at 552 (emphasis added).

¶ 42 The intent to kill is necessary for conviction of intentional murder, but not for conviction of felony murder. State v. Gamble, 154 Wn.2d 457, 468-69, 114 P.3d 646 (2005). Thus, it is clear that in Berlin, the felony murder charge played no role in the application of Workman 's factual test. Under that factual test, just as under the legal test, the Berlin court focused only on the intentional murder charge and did not ask whether the evidence also supported an inference that manslaughter occurred to the exclusion of felony murder.

¶ 43 The same was true in Warden, 133 Wn.2d 559, which is even closer factually to Condon's case. In Warden, the defendant was charged with both first degree premeditated [182 Wn.2d 326] murder and felony murder predicated on robbery. Id. at 561. The defense asserted diminished capacity due to Warden's posttraumatic stress disorder; a defense expert testified that " it was his opinion that Warden lacked the mental capacity to form the intent to kill." Id. at 564. This court did not say anything about whether there was any evidence negating Warden's intent to rob. It nevertheless held that the defendant was entitled to an instruction on the lesser included offense of manslaughter because her evidence of diminished capacity supported an inference that she " lacked the intent to kill... yet ... acted recklessly or negligently in causing [the victim's] death." Id. It made no inquiry into whether the evidence supported an inference that the defendant lacked the requisite intent to commit the robbery supporting the felony murder charge.

¶ 44 We apply the same analysis here. At Condon's trial, evidence was presented that supported an inference that second degree (intentional) murder occurred to the exclusion of premeditated murder. Under our Berlin line of cases, this is all that Workman 's factual prong requires.

¶ 45 Finally, as the dissent acknowledges, our controlling precedent holds that the erroneous failure to instruct the jury on a lesser included offense necessitates reversal. See dissent at 7-32 (citing State v. Parker, 102 Wn.2d 161, 164, 683 P.2d 189 (1984)). No one has argued that Parker is incorrect and harmful; thus, we may not hold this error harmless. See In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (precedent will not be overturned absent a showing that it is both incorrect and harmful).

¶ 46 For the foregoing reasons, we affirm the decision of the Court of Appeals.

DISSENT

Barbara A. Madsen, C.J. (concurring in the dissent)

¶ 47 I agree with the majority that Joel Condon was entitled to a jury [182 Wn.2d 327] instruction on second degree intentional murder as a lesser included offense to aggravated premeditated murder. However, considering that Condon bases his challenge to the failure to instruct on a lesser offense on lack of premeditation and the jury convicted Condon of premeditated murder and first degree burglary, as well as the fact that the jury followed the instructions, which included an admonishment not to consider felony murder unless it could not agree on aggravated premeditated murder, I am convinced that the error in failing to give the lesser included instruction was harmless in this case. Therefore, I concur with the dissent in its harmless error analysis and its result.

González, J. (dissenting)

¶ 48 An instruction on a lesser included offense is available to either the prosecution or the defense under a two-pronged test articulated in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The instruction is available when (1) the lesser included offense consists solely of elements that are necessary to convict on the greater, charged offense (the legal prong) and (2) the evidence presented in the case supports an inference that only the lesser offense was

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committed to the exclusion of the greater, charged offense (the factual prong). State v. Berlin, 133 Wn.2d 541, 546, 947 P.2d 700 (1997) (citing Workman, 90 Wn.2d at 447-48); State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000) (citing State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 116 (1990). The legal prong of the Workman test incorporates the constitutional requirement that a defendant must have notice of the offense of which he or she is charged. Berlin, 133 Wn.2d at 546 (citing State v. Ackles, 8 Wash. 462, 464, 36 P. 597 (1894)). If a defendant is charged with offenses in the alternative, the constitutional requirement of notice is satisfied as long as the legal test is met for one of the charged alternatives. Id.; see also State v. Warden, 133 Wn.2d 559, 562-63, 947 P.2d 708 (1997). I disagree with the majority opinion that from this it follows we can ignore the charged alternative when determining whether there is a [182 Wn.2d 328] factual basis to offer the lesser included instruction, and so I respectfully dissent.

¶ 49 Our lesser included statute, which dates back to 1854, was a codification of a common law rule dating back at least to 16th century English common law. RCW 10.61.006; Laws of 1854, § 123, at 120; State v. Miller, 841 N.W.2d 583, 586 (Iowa 2014) (quoting State v. Jeffries, 430 N.W.2d 728, 730 (Iowa 1988); Janis L. Ettinger, In Search of a Reasoned Approach to the Lesser Included Offense, 50 Brooklyn L. Rev. 191, 195 (1984)); see also Berlin, 133 Wn.2d at 544 (citing Beck v. Alabama, 447 U.S. 625, 633, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)). The common law rule originally developed " as an aid to the prosecution when the evidence introduced at trial failed to establish an element of the crime charged." Berlin, 133 Wn.2d at 544 (citing Beck, 447 U.S. at 633); see also Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973). The doctrine evolved to play an important role protecting procedural fairness and substantial justice for the accused as well. See, e.g., Berlin, 133 Wn.2d at 544-45. Courts observed that " [w]here one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." Keeble, 412 U.S. at 212-13 (emphasis omitted). Thus, a defendant must be able to argue an alternative theory of the case that is supported by the evidence to guarantee him or her the full benefit of the reasonable doubt standard. Id.; see also Berlin, 133 Wn.2d at 544-45 (citing Beck, 447 U.S. at 633).

¶ 50 I would affirm our line of cases where we permitted an instruction only where the evidence presented would permit a rational jury to convict a defendant of the lesser crime and acquit on both charged alternative means of committing a crime. See State v. Ortiz, 119 Wn.2d 294, 314, 831 P.2d 1060 (1992); Bowerman, 115 Wn.2d at 807; Warden, 133 Wn.2d at 564. Workman 's factual prong requires that there is evidence to support an inference that only the [182 Wn.2d 329] lesser included offense was committed to the exclusion of the charged offense. Fernandez-Medina, 141 Wn.2d at 455 (citing Bowerman, 115 Wn.2d at 805). Where the State charges the defendant with alternative means of committing an offense, there is simply no factual basis for acquittal on the greater charge and conviction on the lesser if the test is met as to one charged alternative but not the other. Although criminal defendants should be given the benefit of the doubt and all fair inferences should be indulged, " there must be some rational basis for the lesser charge; otherwise it is merely a device for defendant to invoke the mercy-dispensing prerogative of the jury, and that is not by itself a permissible basis to require a lesser-included offense instruction." United States v. Sinclair, 144 U.S. App.D.C. 13, 444 F.2d 888, 890 (1971) (footnote omitted) (citing Kelly v. United States, 125 U.S. App.D.C. 205, 207, 370 F.2d 227 (D.C. Cir. 1966)); see also Sparf v. United States, 156 U.S. 51, 63-64, 15 S.Ct. 273, 39 L.Ed. 343 (1895). Our lesser included jurisprudence has long emphasized the purpose of offering a lesser included instruction is not to " 'invite the jury to find for a lower grade than is made by the evidence.'" State v. McPhail, 39 Wash. 199, 205, 81 P. 683 (1905)

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(quoting State v. Wood, 124 Mo. 412, 27 S.W. 1114, 1114 (1894) and citing State v. Bailey, 31 Wash. 89, 96, 71 P. 715 (1903)). Rather, it is to ensure the defendant receives the full benefit of the reasonable doubt standard where an alternative theory of the case is actually supported by the evidence.

¶ 51 In Bowerman, 115 Wn.2d at 807, we held it was not error for the trial court to decline first and second degree manslaughter instructions where Bowerman was charged with premeditated murder and, in the alternative, felony murder predicated on burglary. Bowerman brought a diminished capacity defense that went to negate her capacity to premeditate on, and form the intent to bring about, the death of the victim. We found that this evidence, which supported an inference that manslaughter was committed [182 Wn.2d 330] rather than premeditated murder, " did nothing, however, to negate Bowerman's alternative charge of first degree felony murder." Id. We pointed out that " Bowerman's testimony establishe[d] that she helped Hutcheson commit first degree burglary" and there was no testimony that Bowerman " could not form the intent to ... plan the illegal entry." Id.

¶ 52 We followed the same principle in State v. Ortiz, 119 Wn.2d 294, 831 P.2d 1060 (1992). Ortiz was charged with premeditated murder and, in the alternative, felony murder predicated on rape. We held an instruction on second degree murder was unsupported by the evidence because " [i]t was unrefuted that a rape was committed" and " the same person must have committed the rape and the murder, as evidenced by the footprints sealed in blood." Id. at 314. We concluded the instruction was not warranted then because " at the very least, the crime committed was felony murder." Id.

¶ 53 In this case, an alternative theory that Condon committed the murder, but that he did so without intending to commit a burglary, is not supported by the evidence. Like in Ortiz, the crime committed was first degree felony murder at the very least. Id. The instructions as they were given to the jury permitted Condon to argue that the State failed to meet its burden of proof as to premeditation, an alternative theory that was supported by the evidence. Instead, Condon simply chose to argue that he did not participate in the events that night. Because the factual prong is not met as to both charged alternatives of first degree murder, the trial court properly denied a lesser included instruction.

¶ 54 The majority acknowledges there is tension in our case law regarding the application of Workman 's factual test in cases where the State charges intentional murder and felony murder in the alternative. But the majority follows a line of cases where we ignored, for whatever reason, a charged alternative and asked only whether the facts supported an inference that the defendant committed [182 Wn.2d 331] the lesser crime to the exclusion of the greater, charged offense relevant under Workman 's legal prong. See majority at 16-23 (citing Berlin, 133 Wn.2d at 551-52; State v. Schaffer, 135 Wn.2d 355, 357, 957 P.2d 214 (1998); State v. Grier, 171 Wn.2d 17, 25, 246 P.3d 1260 (2011)). The only reasons the majority provides for its holding is that Ortiz is older and " the reasoning in Berlin... is significantly more in-depth" since Berlin " came to this court as a request to overrule [precedent]." Majority at 19. In Berlin we were asked to overrule our holding in State v. Lucky, 128 Wn.2d 727, 912 P.2d 483 (1996), that the legal prong of the Workman test could not be met unless the elements of the lesser crime were included in every statutory alternative of the charged crime, regardless of whether any of the alternatives were actually charged. Berlin, 133 Wn.2d at 547-49. We overruled Lucky and returned to an examination of the legal elements of the crime as actually charged and prosecuted. Id. at 548. There was no controversy in Berlin about how to decide whether there was a factual basis to offer the lesser included instruction, and the " in-depth reasoning" in Berlin does not examine the question before us.

¶ 55 I also dissent because, even if it was error not to give the lesser included instruction, it was harmless. A nonconstitutional error is harmless " 'unless, within reasonable

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probabilities, had the error not occurred, the outcome of the trial would have been materially affected.'" State v. Gresham, 173 Wn.2d 405, 425, 269 P.3d 207 (2012) (internal quotation marks omitted) (quoting State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986)).

¶ 56 I recognize that in State v. Parker, 102 Wn.2d 161, 164, 683 P.2d 189 (1984), we noted we have never held that failure to give a warranted lesser included instruction may be harmless. In Parker, the trial court erroneously declined to give a lesser included instruction and the jury was given an all-or-nothing choice to convict of the charged crime or to acquit. Id. at 166. The nature of the error was such that it undermined confidence that the jury followed the instructions [182 Wn.2d 332] and gave the defendant the full benefit of the reasonable doubt standard, and so we did not employ the general presumption that the jury followed the court's instructions. Id. at 164 (quoting State v. Young, 22 Wash. 273, 276-77, 60 P. 650 (1900)). Instead, we declined to speculate on the probable results had the instruction been given. Id. (quoting Young, 22 Wash. at 276-77). But Parker is not controlling because in this case, the jury was not given an all-or-nothing choice. Other Washington courts have found the failure to give a lesser included instruction harmless where the jury was not presented with an all-or-nothing choice, and an omitted instruction would have been necessarily rejected because it is logically inconsistent with the verdicts the jury actually reached. State v. Guilliot, 106 Wn.App. 355, 368-69, 22 P.3d 1266 (2001); State v. Hansen, 46 Wn.App. 292, 296, 730 P.2d 706 (1986). We should follow this analytical approach.

¶ 57 For example, in State v. Hansen, 46 Wn.App. 292, 292, 730 P.2d 706 (1986), the defendant was convicted of first degree kidnapping and rape while armed with a deadly weapon. The jury was instructed on the lesser included crime of second degree kidnapping, but the trial court declined to instruct on the lesser included crime of unlawful imprisonment. Id. at 295-96. The Court of Appeals found it was error for the trial court to refuse the unlawful imprisonment instruction, but found it was harmless because the jury rejected the intermediate offense of second degree kidnapping. Id. at 298. The Hansen court explained:

In the case at bar, the jury was instructed on the intermediate offense of second degree kidnapping. If the jury believed that Hansen was less culpable because of his drug-induced mental disorder, logically it would have returned a conviction on the lesser crime of second degree kidnapping. Second degree kidnapping requires only an intent to abduct. To convict Hansen of first degree kidnapping, the jury had to find he intended to abduct the victim with the intent to facilitate the rape. In our view, the jury's verdict on the highest offense was [182 Wn.2d 333] an implicit rejection of all lesser included offenses that could have been based upon Hansen's diminished capacity defense.

Id.

¶ 58 Employing the same logic, the Court of Appeals in Guilliot, 106 Wn.App. at 368-69, found that failing to instruct the jury on first and second degree manslaughter (lesser included crimes of premeditated murder that were warranted) was harmless because the jury was instructed on the intermediate offense of second degree murder. There, Guilliot argued the shooting was accidental. Id. at 369. The appellate court found the jury could have concluded he acted negligently or recklessly by failing to appropriately monitor his blood sugar or not acting with caution when showing the gun, but " [i]f the jury believed Guilliot was less culpable due to accident or hypoglycemia, logically it would have returned a verdict on the lesser offense of second degree murder." Id.

¶ 59 The verdicts entered in this case demonstrate the jury would not have convicted Condon of second degree murder had the instruction been given, and thus any error was harmless. In the absence of a reason to conclude otherwise, we presume juries follow the instructions given by courts. State v. Ervin, 158 Wn.2d 746, 756, 147 P.3d 567 (2006) (citing State v. Stein, 144 Wn.2d 236, 247, 27 P.3d 184 (2001)). The jury was accurately

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instructed on the elements of premeditated murder, and it entered a guilty verdict without reaching the felony murder alternative. Applying that presumption, it follows that the jury found the State proved premeditation. Even if the jury had rejected premeditation, a verdict on second degree murder to the exclusion of felony murder would have been inconsistent with the jury's guilty verdict on burglary. That guilty verdict tells us the jury was not in the position of finding Condon guilty of a murder without committing burglary.

¶ 60 The Court of Appeals erroneously concluded that any error in this case could not be harmless because the [182 Wn.2d 334] jury's attention was not effectively drawn to the difference between intent and premeditation. State v. Condon, noted at 174 Wn.App. 1041, 2013 WL 1628247, at *7-8. In fact, the jury was instructed on the definitions of " intent" and " premeditation" because both are elements of premeditated murder. RCW 9A.32.030(1)(a). At least one other jurisdiction has found the failure to instruct on a warranted lesser included offense is not harmless where the elements of the charged crime are clearer when they are viewed in contrast with the elements of a lesser included offense. State v. Zolotoff, 354 Or. 711, 719, 320 P.3d 561 (2014). In other words, the error is not harmless where an instruction on a lesser included offense would disclose a legal distinction that is not otherwise patent and would be helpful to the jury in deciding whether the defendant is guilty of the charged offense. For example, in Zolotoff, the defendant was convicted of possession of a weapon by an inmate and the Oregon Supreme Court found that an instruction on the lesser included offense--attempted possession of a weapon--would have illuminated a nuanced distinction that the alleged weapon was not in fact a weapon if it was only partially made into a weapon. Id. at 719-20. Unlike the scenario in Zolotoff, an instruction on second degree murder would not have provided any additional clarity about the distinction between intent and premeditation.

¶ 61 I would hold Workman 's factual prong must be met as to both charged alternatives and so the lesser included instruction was not warranted. Moreover, even if there was instructional error here, it was harmless. Thus I respectfully dissent.

Johnson and Fairhurst, JJ, concur with González, J.


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