State v. Tamalini , 134 Wash. 2d 725 ( 1998 )

Alexander, J.

The issue we are confronted with here is whether the offenses of manslaughter in the first or second degree are lesser included offenses or inferior degrees of second degree felony murder. We conclude that they are not and, consequently, affirm the Court of Appeals.

The charge against Reno Tamalini that led to this appeal arose out of an altercation that Tamalini and two of his companions, Laeli Talaga and Pete Leaupepetele, had with Robert Jackson and Michael Hall. The altercation, which took place in the parking lot of a Seattle nightclub, resulted in Jackson sustaining severe injuries to his head. These injuries ultimately led to Jackson’s death some six weeks later. As a consequence, Tamalini, Leaupepetele and Talaga were, together, charged with second degree felony murder “while committing and attempting to commit the crime of Assault in the Second Degree.” Clerk’s Papers at 4.

During trial, Hall and several patrons of the nightclub testified about the events that led to Jackson’s death. Hall told the jury that he witnessed Tamalini holding a piece of concrete above his head as he stood over Jackson’s body. Hall said that he then charged Tamalini and the two men engaged in a struggle until Hall was knocked unconscious.

Tamalini took the stand in his own defense and testified that he was so intoxicated on the night of the incident that his only recollection was being struck by a person or object and then waking up later in a car. Leaupepetele also took the stand and told the jury that he fought with Jackson in self-defense after Jackson attacked him with a beer bottle.

Talaga and Tamalini proposed a jury instruction which read, in pertinent part, as follows:

the defendant may be found guilty of any lesser crime, the commission of which is necessarily included in the crime charged ....

The crime of second degree murder necessarily includes the lesser crimes of first degree manslaughter and also second degree assault; first degree manslaughter necessarily includes the lesser crime of second degree manslaughter ....

When a crime has been proven against a person and there exists reasonable doubt as to which of two or more degrees or crimes that person is guilty, he or she shall be convicted only of the lowest degree ....

Supplemental Br. of Pet’r at App. B. The trial court refused to submit the proposed instruction to the jury, concluding that, “I just cannot find from reading the statutes that they [manslaughter and felony murder statutes] are, in fact—they necessarily contain the same elements, the lesser included. And I’m not going to give the manslaughter lesser included.” Verbatim Report of Proceedings at 1245-46.

The jury found Tamalini and Leaupepetele guilty of second degree felony murder. It acquitted Talaga. Tamalini and Leaupepetele appealed separately to Division One of the Court of Appeals and their convictions were both affirmed. State v. Tamalini, 82 Wn. App. 1003, review granted, 129 Wn.2d 1029 (1996). Tamalini thereafter petitioned this court for review. We granted his petition “solely on the issue of whether the trial court erroneously failed to instruct the jury on manslaughter.” Supreme Ct. Order Cause No. 64303-2 (Sept. 4, 1996).

I. Is First or Second Degree Manslaughter a Lesser Included Offense of Second Degree Felony Murder?

The right to have a lesser included offense instruction presented to the jury is, in appropriate cases, a statutory right. See State v. Bowerman, 115 Wn.2d 794, 805, 802 P.2d 116 (1990). This right arises out of RCW 10.61.006, which states “[i]n all other cases the defendant may be found guilty of an offense the commission of which is necessarily included within that with which he is charged in the indictment or information.”

Either the defense or the prosecution is entitled to request a lesser included offense instruction and we have developed a two-part test for determining when such an instruction is warranted: “First, each of the elements of the lesser offense must be a necessary element of the offense charged [legal prong]. Second, the evidence in the case must support an inference that the lesser crime was committed [factual prong].” State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978) (citations omitted). Because the trial court rejected Tamalini’s proposed instruction on the basis that first and second degree manslaughter are not, as a matter of law, lesser included offenses of second degree felony murder, we review the claimed error de novo. State v. Lucky, 128 Wn.2d 727, 731, 912 P.2d 483 (1996) (citing Braden v. Rees, 5 Wn. App. 106, 110, 485 P.2d 995, review denied, 79 Wn.2d 1009 (1971)), overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997).

Tamalini’s contention that first and second degree manslaughter are lesser included offenses of second degree felony murder fails the legal prong of the Workman analysis. Our conclusion in that regard is fully supported by our previous decision in State v. Davis, 121 Wn.2d 1, 6, 846 P.2d 527 (1993). Davis, like Tamalini, was charged with second degree felony murder with second degree assault as the predicate felony. He requested a jury instruction almost identical to that sought here by Tamalini. The trial court refused to give the proposed instruction and Davis was ultimately convicted of second degree felony murder. Davis thereafter appealed to the Court of Appeals, Division One, which reversed his conviction, concluding that it was error to fail to give the proposed instruction. State v. Davis, 64 Wn. App. 511, 827 P.2d 298 (1992), rev’d, 121 Wn.2d 1, 846 P.2d 527 (1993). On review, we reversed the Court of Appeals and reinstated Davis’s conviction, concluding that there are no lesser included offenses to second degree felony murder. Davis, 121 Wn.2d at 6.

In Davis, we relied, in part, on State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990) and State v. Frazier, 99 Wn.2d 180, 661 P.2d 126 (1983),¹ cases in which we held that both degrees of manslaughter are not lesser included offenses of first degree felony murder because the specific mental elements of first and second degree manslaughter are not elements of first degree felony murder. Applying that rationale to second degree felony murder, which does not structurally differ from first degree felony murder, we concluded that all of the elements of the lesser offenses were not necessary elements of the greater offense. Davis, 121 Wn.2d at 6-7.

Davis is controlling. We conclude, therefore, that the trial court did not err in refusing to instruct the jury that first and second degree manslaughter are lesser included offenses of second degree felony murder.

II. Is First or Second Degree Manslaughter an Inferior Degree of Second Degree Felony Murder?

Tamalini’s second contention is that the trial court erred in refusing to give the proposed jury instruction on the basis that first and second degree manslaughter are inferior degrees of second degree felony murder. Preliminarily, we note that Tamalini’s proposed instruction does not contain the words “inferior degree.” Consequently, it is technically a stretch to say that Tamalini requested an instruction that first and second degree manslaughter are inferior degree offenses of second degree felony murder. A defendant cannot claim that the trial court erred in refusing an instruction he did not offer unless the failure to so instruct is violative of a constitutional right. State v. Scott, 93 Wn.2d 7, 14, 604 P.2d 943, cert. denied, 446 U.S. 920 (1980). Although Tamalini does not claim that a constitutional right was violated by the trial court when it declined to give the proposed instruction, we nevertheless choose to consider the claimed error because the terms “inferior degree offense” and “lesser included offense” have often been used interchangeably. Thus it is likely that Tamalini intended his proposed instruction to apply to both.²

As a general rule, criminal defendants are entitled to notice of the charge they are to meet at trial and may be convicted only of those crimes charged in the information. State v. Irizarry, 111 Wn.2d 591, 592, 763 P.2d 432 (1988). However, RCW 10.61.003 provides that a criminal defendant may also be convicted of a crime which is an inferior degree of the crime charged, the statute reading as follows: “Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense.”³

As noted above, the terms “lesser included offense” and “inferior degree offense” have often been used interchangeably. See State v. Berge, 25 Wn. App. 433, 607 P.2d 1247, review denied, 94 Wn.2d 1016 (1980). See also State v. Dodd, 53 Wn. App. 178, 181, 765 P.2d 1337 (1989); State v. Boyd, 21 Wn. App. 465, 468, 586 P.2d 878 (1978); State v. Humphries, 21 Wn. App. 405, 407, 586 P.2d 130 (1978). This confusion of terms is unfortunate because it blurs the difference between the two. The test, as we noted above, for determining if a crime is a lesser included offense is the Workman test. On the other hand, a defendant is entitled to an instruction on an inferior degree offense when (1) the statutes for both the charged offense and the proposed inferior degree offense “proscribe but one offense” (State v. Foster, 91 Wn.2d 466, 472, 589 P.2d 789 (1979)); (2) the information charges an offense that is divided into degrees, and the proposed offense is an inferior degree of the charged offense (see Foster, 91 Wn.2d at 472); and (3) there is evidence that the defendant committed only the inferior offense (State v. Daniels, 56 Wn. App. 646, 651, 784 P.2d 579, review denied, 114 Wn.2d 1015 (1990)).

Tamalini, as we observed above, contends here that first and second degree manslaughter are inferior degrees of second degree felony murder and that he was entitled to a jury instruction so stating. The Court of Appeals rejected this argument, relying on its previous decision in State v. McJimpson, 79 Wn. App. 164, 901 P.2d 354 (1995), review denied, 129 Wn.2d 1013 (1996). It concluded there that the manslaughter statutes and the felony murder statutes proscribe significantly different conduct and thus define separate and distinct crimes. McJimpson, 79 Wn. App. at 171-72. See also State v. Campas, 59 Wn. App. 561, 564, 799 P.2d 744 (1990) (holding that the argument that first degree manslaughter is an inferior degree of felony murder is “novel but unpersuasive”).

Tamalini contends that the Court of Appeals was incorrect in holding here and in McJimpson that first and second degree manslaughter are not inferior degrees of felony murder. His primary argument in that regard is that all degrees of murder and manslaughter constitute the single offense of homicide. See RCW 9A.32.010. The degrees of homicide, he suggests, are the two degrees of murder and the two degrees of manslaughter. He argues, additionally, that the Court of Appeals’ decision in McJimpson is contrary to its own opinion in State v. Ieremia, 78 Wn. App. 746, 899 P.2d 16 (1995), review denied, 128 Wn.2d 1009 (1996), specifically its statement in a footnote that “[s]ome lesser degree crimes simply involve a less culpable mental state—homicide, for example—but the elements of the lesser crimes are otherwise the same as the greater.” Ieremia, 78 Wn. App. at 754 n.2.

We reject Tamalini’s arguments, concluding that the two degrees of manslaughter are not inferior degrees of first or second degree felony murder. In reaching our decision, we adopt the sound reasoning of the Court of Appeals in McJimpson. We do so because we are satisfied that although the second degree felony murder statute and the manslaughter statutes proscribe the killing of another human being generally, the particular statutes are directed to significantly differing conduct of defendants. On the one hand, an individual commits second degree felony murder when, in “the course of. . . or in immediate flight” from any felony not listed in RCW 9A.32.030, that individual or another participant to the crime “causes the death of a person other than one of the participants.” RCW 9A.32.050(l)(b). On the other hand, a person commits first degree manslaughter when he or she recklessly causes death or intentionally and unlawfully kills an unborn child by inflicting injury on the mother. RCW 9A.32.060. A person commits second degree manslaughter where, with criminal negligence, the person causes a death. RCW 9A.32.070. Plainly, the second degree felony murder statute and the two statutes defining the degrees of manslaughter proscribe separate and distinct offenses. They do not proscribe just one offense.

The conclusion we reach here is supported by our previous holding in In re Brandon, 23 Wn.2d 155, 165-66, 160 P.2d 529 (1945). There, the defendant pleaded guilty to second degree murder. Nine years later, he petitioned for a writ of habeas corpus, arguing that his conviction was void because “no jury was ever impaneled to determine the ‘degree’ of murder of which he was guilty.” Brandon, 23 Wn.2d at 158. In upholding the defendant’s guilty plea, conviction and sentence, we said, “While manslaughter is sometimes loosely spoken of as a degree of murder, it is actually not so, and has never been so denominated by any statute of this state. Although it is an included offense within the crime of murder, it is nevertheless a distinct crime of itself.” Brandon, 23 Wn.2d at 165 (emphasis added).

The dissent urges us to “[l]et the jury decide,” arguing that because Tamalini testified he was so intoxicated he could not remember what had occurred, he was entitled to an instruction on manslaughter as an inferior degree of second degree felony murder. Dissenting op. at 742. According to the dissent, Tamalini’s recklessness or negligence, if the jury found either, would make him “guilty of manslaughter alone.” Dissenting op. at 742. That overlooks RCW 9A.36.031, the statute that defines the felony offense of third degree assault. It says, in pertinent part, that one commits the offense of third degree assault when he or she:

(d) With criminal negligence, causes hodily harm to another person by means of a weapon or other instrument or thing likely to produce bodily harm; or

(f) With criminal negligence, causes bodily harm accompanied by substantial pain that extends for a period sufficient to cause considerable suffering[.]

(Emphasis added.) If, as the dissent suggests, Tamalini was so intoxicated that he could not have intended to assault the victim, a jury might well conclude that he committed a predicate felony, third degree assault, if it found that he acted with criminal negligence.⁴

We are also satisfied that manslaughter is not an inferior degree of felony murder simply because manslaughter and murder are both included in the statutory definition of homicide. We specifically reject Tamalini’s argument to the contrary and note with approval the McJimpson court’s statement that the location of a statute in the criminal code is not determinative of whether a certain crime is an inferior degree offense of another crime. McJimpson, 79 Wn. App. at 172.⁵ We note also that Tamalini’s reliance on the language in the footnote to the decision in Ieremia is misplaced. McJimpson was decided by the Court of Appeals after Ieremia was decided. If the Court of Appeals had intended to transport the thought behind the footnote in Ieremia to McJimpson, it could have done so. It did not.

Tamalini argues, finally, that the Court of Appeals should not have concluded that McJimpson controls here because the trial court gave the jury an instruction which defined homicide as including manslaughter.⁶ This instruction, according to Tamalini, became the law of the case and thus rendered its conclusion that manslaughter is not an inferior degree of felony murder contrary to the law of the case. See State v. Ng, 110 Wn.2d 32, 39, 750 P.2d 632 (1988) (holding that where the State raises no challenge to the trial court’s instruction, it becomes the law of the case).

We disagree. The definition of homicide contained in the trial court’s instruction merely corresponds to the statutory definition of that term. While Tamalini is correct in stating that instructions not objected to become the law of the case, his argument that this instruction trumps the holding that first and second degree manslaughter are not inferior degree offenses of second degree felony murder is simply a way of restating his previous argument that murder and manslaughter are all degrees of the crime of homicide. We reject the argument under this guise as well.

The Court of Appeals is affirmed.

Durham, C.J., and Dolliver, Smith, Guy, and Talmadge, JJ., concur.

1 To some extent, our decision in Davis relied on State v. Curran, 116 Wn.2d 174, 804 P.2d 558 (1991). In Curran, we held that a lesser included offense instruction is not available whenever alternative means exist for committing the crime charged. Indeed, we noted in Davis that Curran was dispositive because there are numerous ways of committing second degree felony murder apart from assault. Davis, 121 Wn.2d at 6.

Our decisions in Davis and Curran were followed by Lucky, 128 Wn.2d 727, in which we stated “if, when viewed from a perspective where only the statutory elements are considered, it is possible to commit the ‘greater offense’ without necessarily committing the purported lesser offense, an instruction on the lesser offense is not warranted. The logical consequence of this rule is that whenever there are alternative means of committing a ‘greater’ crime, there can be no lesser included offense unless the alternative means each overlap to the extent that they are not mutually exclusive.” Lucky, 128 Wn.2d at 735. This court recently overruled that portion of the Lucky decision, indicating that we “retreat to reaffirming the lesser included rule as laid forth in Workman, prior to our discussions in Curran, Davis, and Lucky.” Berlin, 133 Wn.2d at 548.

2 Tamalini’s proposed instruction was modeled after WPIC 4.11. The comments to that pattern instruction may have contributed to the perception that there is no distinction between a lesser included offense and an inferior degree of offense, the comment indicating “there is no logical distinction between a lesser degree of a crime and a lesser included crime.” 11 Washington Pattern Jury Instructions: Criminal § 4.11 cmt. (2d ed. 1994).

3 See also RCW 10.61.010, which states:

“Upon the trial of an indictment or information, the defendant may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime. Whenever the jury shall find a verdict against a person so charged, they shall in their verdict specify the degree or attempt of which the accused is guilty.”

4 RCW 9A.08.010 provides, in part:

“(d) ... A person is criminally negligent or acts with criminal negligence when he fails to be aware of a substantial risk that a wrongful act may occur and his failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable man would exercise in the same situation.

“(2) . . . When a statute provides that criminal negligence suffices to establish an element of an offense, such element also is established if a person acts intentionally, knowingly or recklessly.”

5 The dissent claims that prior case law indicates that manslaughter is an inferior degree of felony “murder.” Dissenting op. at 737-41. For that proposition, the dissent primarily relies on State v. Greer, 11 Wash. 244, 39 P. 874 (1895), State v. Rader, 118 Wash. 198, 203 P. 68 (1922), and State v. Berry, 52 Wn.2d 748, 328 P.2d 891 (1958). We first observe that reliance on cases predating the adoption of the current manslaughter statute is not particularly helpful. Furthermore, the aforementioned cases do not support the proposition that manslaughter is an inferior degree of felony murder. The language in Greer upon which the dissent relies is clearly dicta, this court stating “the determination of this question is not necessary to the decision of this case” because the defendant had not preserved the issue for appeal. Greer, 11 Wash, at 247 (emphasis added). Rader is also of no assistance, the defendant there being charged with first degree premeditated murder, whereas Tamalini, as we have noted, was charged with felony murder. Our holding is only that manslaughter is neither a lesser included offense nor an inferior degree of felony murder.

Finally, Berry is not helpful. Although Berry, like Tamalini, was charged with felony murder, we analyzed that case under ROW 10.61.010, the “conviction of lesser crime” statute which provides that a defendant may be convicted of either an inferior degree of the crime charged or of a lesser included offense of the crime charged. In Berry, our review was limited to the question of whether manslaughter was a lesser included offense of felony murder. We concluded that “there was sufficient evidence to warrant the trial court’s giving instruction No. 6, which submitted to the jury the issue of whether or not he was guilty of the lesser included offense of manslaughter.” Berry, 52 Wn.2d at 755 (emphasis added). Furthermore, we made no reference to ROW 10.61.003 which expressly relates to offenses that are inferior in degree. In light of our recent holdings that there are no lesser included offenses of felony murder, Berry has been overruled sub silentio. See State v. Davis, 121 Wn.2d 1, 846 P.2d 527 (1993); State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990); State v. Frazier, 99 Wn.2d 180, 661 P.2d 126 (1983).

6 instruction 26 states, “Homicide is the killing of a human being by the voluntary act of another if death occurs within three years and a day and is either murder, manslaughter, excusable homicide, or justifiable homicide.” Clerk’s Papers at 60.