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State v. Henderson

Supreme Court of Washington, En Banc

February 26, 2015

The State of Washington, Petitioner,
Marsele Kenith Henderson, Respondent

Argued October 23, 2014

Mark E. Lindquist, Prosecuting Attorney, and Kimberley A. DeMarco, Deputy, for petitioner.

Lila J. Silverstein (of Washington Appellate Project ), for respondent.

AUTHOR: Justice Susan Owens. WE CONCUR: Chief Justice Barbara A. Madsen, Justice Charles W. Johnson, Justice Mary E. Fairhurst, Justice Debra L. Stephens, Justice Charles K. Wiggins. AUTHOR: Justice Sheryl Gordon McCloud. WE CONCUR: Justice Steven C. GonzalezGonz√°lez, Justice Mary I. Yu.


Page 1208

[182 Wn.2d 736]  Owens, J.

¶ 1 In criminal trials, juries are given the option of convicting defendants of lesser included offenses when warranted by the evidence. Giving juries this option is crucial to the integrity of our criminal justice system because when defendants are charged with only one crime, juries must either convict them of that crime or let them go free. In some cases, that will create a risk that the jury will convict the defendant despite having reasonable doubts. As Justice William Brennan explained, " Where 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 v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973) (second emphasis added). To minimize that risk, we err on the side of instructing juries on lesser included offenses. A jury must be allowed to consider a lesser included offense if the evidence, when viewed

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in the light most favorable to the defendant, raises an inference that the defendant committed the lesser crime instead of the greater crime. State v. Fernandez-Medina, 141 Wn.2d 448, 455-56, 6 P.3d 1150 (2000). If a jury could rationally find a defendant guilty of the lesser offense and not the greater offense, the jury must be instructed on the lesser offense. Id. at 456.

[182 Wn.2d 737] ¶ 2 Applying that rule, we hold that the jury should have been allowed to consider the lesser included charge in this case. This conclusion is based on two unique aspects of this case. First, this crime involved a shooting outside a house party and the evidence consisted largely of eyewitness testimony that varied widely and was often conflicting. Thus, viewing the evidence in the light most favorable to the defendant results in a much more significant shift than it would in cases with uncontroverted evidence. Second, the definitions of the lesser crime (disregarding a substantial risk that a homicide may occur) and the greater crime (creating a grave risk of death) are very close to each other--much closer than is typical. As a result, we cannot say that no jury could have rationally found that the defendant, Marsele Kenith Henderson, committed the lesser crime rather than the greater crime. Thus, we hold that the jury should have been allowed to determine whether Henderson committed the greater or lesser crime. We affirm the Court of Appeals and reverse Henderson's conviction.


¶ 3 On November 16, 2008, teenager Philip Johnson called his close friend (and fellow Hilltop Crips gang member) Henderson to say he was going to a party at the Boys and Girls Club. Henderson advised Johnson not to go because the club was too close to a rival gang's territory. Johnson went to the party, where, tragically, he was shot. Henderson learned of the shooting and went to the hospital with his friends, including Koloneus D'Orman McClarron, to check on Johnson. Johnson died shortly thereafter at the hospital, although McClarron and Henderson testified that they did not learn of his death at the hospital.

The House Party

¶ 4 After leaving the hospital, McClarron and Henderson decided to go to a house party. The only entry to the house [182 Wn.2d 738] party was through a gate on the side of the house, and the party was inside in the basement, garage, and backyard. However, the house party charged an entrance fee, and McClarron and Henderson did not go inside. Some witnesses testified that McClarron and Henderson were denied entry by security. McClarron and Henderson remained in front of the house near the sidewalk, along with a few other people that they knew. It was while they were outside of the house party that they learned that Johnson had died.

¶ 5 The hosts of the party testified that they were growing increasingly concerned about McClarron, Henderson, and the people with them in front of the house. The hosts had hired five people to act as security for the party and sent three of them to the front of the house.

The Factual Dispute over Whether There Was a Crowd in Front of the House

¶ 6 One of the most important--and disputed--facts in this case is how many people were in the area in front of the house at this time (just prior to shots being fired toward the house). This matters because whether a person shot into a crowd of people or whether they shot toward an area with very few people may determine the nature of the crime.

¶ 7 Witness testimony on this point varied significantly. The two party hosts specifically testified that all of the partygoers were in the basement, the garage, or the backyard, and that the only people in front of the house were the three security people. Other witnesses indicated that there were more people in front of the house, but this is complicated by the fact that the witnesses used the phrase " front of the house" to describe both the area where security was located (immediately in front of the gate on the side of the house) as well as where Henderson and McClarron were gathered with a group of people (near the sidewalk in front of the

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house). This is confusing because, as described below, the shooting came from the group of people that included Henderson and McClarron and the shots were fired at the [182 Wn.2d 739] house. As a result, some witnesses used the phrase " front of the house" to describe where the shots came from, and some witnesses used the phrase to describe the place at which shots were fired. This may explain some of the conflicting testimony about how many people were at the " front of the house." Regardless, when analyzing whether the lesser included instruction should have been given, we are required to view the evidence in the light most favorable to the defendant. Therefore, we consider what a rational jury might have concluded if the three security guards were the only people in front of the house other than the shooter and his associates.

The Shooting

¶ 8 Witnesses testified that either McClarron or Henderson pulled a gun and fired six shots toward the house from the street. McClarron testified that Henderson fired the shots, but Henderson testified that it was McClarron who did it. Neither could give an explanation as to why the other person fired the gun. Four people testified that the shooter yelled something related to the Hilltop Crips at the time of ...

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