State v. Irizarry

Facts of Case

In the course of the planned robbery of a pizza deliveryman in Tacoma, Brander Allan Castle was stabbed to death in the early morning hours of July 8, 1984. In connection therewith, Ricardo M. Irizarry pleaded guilty to felony murder in exchange for his testimony at the trial of the defendant herein, Michael Alan Ransom.

The defendant Ransom was tried before a jury on the charge of aggravated murder in the first degree. At the request of the prosecution, and over defense objections, the jury was not only instructed on the crime of aggravated murder in the first degree but also on the "included offense" of felony murder.

The defendant Ransom was convicted of the "included offense" of felony murder. He appealed to the Court of Appeals which certified his appeal to this court. We accepted review.

One principal issue is presented.

Issue

Is the crime of felony murder a lesser included offense within the crime of aggravated murder in the first degree?

Decision

Conclusion. Felony murder is not a lesser included offense within the offense of aggravated murder in the first degree, and the trial court erred in instructing the jury that it was. The defendant's conviction of this nonincluded offense constitutes prejudicial error requiring a new trial.

It is fundamental that under our state constitution an accused person must be informed of the criminal charge he or she is to meet at trial, and cannot be tried for an offense not charged. This rule is subject to two statutory exceptions: (1) where a defendant is convicted of a lesser included offense of the one charged in the information (RCW 10.61.006); and (2) where a defendant is convicted of an offense which is a crime of an inferior degree to the one charged (RCW 10.61.003).

The first degree murder statute (RCW 9A.32.030) defines the three different ways in which the crime of murder in the first degree can be committed:

1. Premeditated murder (RCW 9A.32.030(l)(a));

2. Murder by extreme indifference to human life (RCW 9A.32.030(l)(b)); and

3. Felony murder (RCW 9A.32.030(l)(c)).

The statute defining aggravated first degree murder is equally clear; that crime is premeditated murder in the first degree (not murder by extreme indifference or felony murder) accompanied by the presence of one or more of the statutory aggravating circumstances listed in the criminal procedure title of the code (RCW 10.95.020). These statutory aggravating circumstances are "aggravation of penalty" factors and are not "elements" of the crime as such. A lesser included offense exists only "when all of the elements of the lesser offense are necessary elements of the greater offense." (Italics ours.) Because commission of a felony is not a necessary element of aggravated murder in the first degree, it follows that the offense of felony murder cannot be an included offense within the charge of aggravated murder in the first degree. Similarly, felony murder is not a lesser degree of aggravated murder in the first degree.

In State v. Mak, 105 Wn.2d 692, 718 P.2d 407, cert. denied, 479 U.S. 995, 93 L. Ed. 2d 599, 107 S. Ct. 599 (1986), instructions on felony murder as a lesser included offense were given to the jury by the trial court in a case involving aggravated murder in the first degree. As we there held, this did not constitute reversible error because it was the defendant who requested those instructions. As we pointed out in that connection, the lesser included offense instruction, not having been excepted to at trial by the defendant, became the law of the case; further, any error in connection therewith was error invited by the defendant which could not be complained of on appeal. In the case before us, however, the defendant duly excepted to the giving of the felony murder included offense instructions, thus preserving his claim of error for appeal.

Since the defendant in this case was charged with aggravated murder in the first degree (i.e., the crime of premeditated murder in the first degree plus a statutory aggravating circumstance), an instruction on the lesser included offense of premeditated murder in the first degree (i.e., the crime of premeditated murder in the first degree without statutory aggravating circumstances) could have been given.

Since the defendant was not convicted of premeditated murder in the first degree (nor of any lesser included offense or lesser degree of that crime), reversal is mandated.

Dismissal of all charges against the defendant is not, however, mandated. The jury having convicted the defendant of felony murder, albeit improperly, the defendant may still be charged with that offense without violating constitutional double jeopardy prohibitions.

The remaining contention of the defendant's appeal is not well taken. Excusing prospective jurors for cause, where they were opposed to the death penalty, was not error as he now contends. The law of this state is well settled in that regard.

Reversed and remanded.

Brachtenbach, J., and Hamilton, J. Pro Tern., concur.

RCW 2.06.030; RAP 4.2.

Const. art. 1, § 22 (amend. 10); State v. Carr, 97 Wn.2d 436, 439, 645 P.2d 1098 (1982); State v. Pelkey, 109 Wn.2d 484, 487, 745 P.2d 854 (1987).

State v. Foster, 91 Wn.2d 466, 471, 589 P.2d 789 (1979); Pelkey, at 487-88.

"Murder in the first degree. (1) A person is guilty of murder in the first degree when:

"(a) With a premeditated intent to cause the death of another person, he causes the death of such person or of a third person; or

" (b) Under circumstances manifesting an extreme indifference to human life, he engages in conduct which creates a grave risk of death to any person, and thereby causes the death of a person; or

" (c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnapping, in the first or second degree, and; in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants; . . .“ RCW 9A.32.030(1) (part). See generally WPIC 26.

"Aggravated first degree murder defined. A person is guilty of aggravated first degree murder if he or she commits first degree murder as defined by RCW 9A.32.030(1) (a), as now or hereafter amended, and one or more of the following aggravating circumstances exist:

"(1) The victim was a law enforcement officer, corrections officer, or fire fighter who was performing his or her official duties at the time of the act resulting in death and the victim was known or reasonably should have been known by the person to be such at the time of the killing;

"(2) At the time of the act resulting in the death, the person was serving a term of imprisonment, had escaped, or was on authorized or unauthorized leave in or from a state facility or program for the incarceration or treatment of persons adjudicated guilty of crimes;

" (3) At the time of the act resulting in death, the person was in custody in a county or county-city jail as a consequence of having been adjudicated guilty of a felony;

"(4) The person committed the murder pursuant to an agreement that he or she would receive money or any other thing of value for committing the murder;

" (5) The person solicited another person to commit the murder and had paid or had agreed to pay money or any other thing of value for committing the murder; " (6) The victim was:

" (a) A judge; juror or former juror; prospective, current, or former witness in an adjudicative proceeding; prosecuting attorney; deputy prosecuting attorney; defense attorney; a member of the board of prison terms and paroles; or a probation or parole officer; and

" (b) The murder was related to the exercise of official duties performed or to be performed by the victim;

" (7) The person committed the murder to conceal the commission of a crime or to protect or conceal the identity of any person committing a crime;

"(8) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;

"(9) The murder was committed in the course of, in furtherance of, or in immediate flight from one of the following crimes:

" (a) Robbery in the first or second degree;

" (b) Rape in the first or second degree;

"(c) Burglary in the first or second degree;

"(d) Kidnapping in the first degree; or

" (e) Arson in the first degree;

"(10) The victim was regularly employed or self-employed as a newsreporter and the murder was committed to obstruct or hinder the investigative, research, or reporting activities of the victim." (Italics ours.) RCW 10.95.020.

State v. Kincaid, 103 Wn.2d 304, 312, 692 P.2d 823 (1985); State v. Mak, 105 Wn.2d 692, 745, 718 P.2d 407, cert. denied, 479 U.S. 995, 93 L. Ed. 2d 599, 107 S. Ct. 599 (1986). See footnote 5.

Kincaid, at 307, 312.

State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 (1973); State v. Bishop, 90 Wn.2d 185, 191, 580 P.2d 259 (1978); Pelkey, at 488; State v. Miller, 30 Wn. App. 443, 445, 635 P.2d 160 (1981), review denied, 96 Wn.2d 1026 (1982).

See ROW 10.61.003; Mak, at 745.

Mak, at 746-47.

Mak, at 747-49.

See Roybal, at 583; Miller, at 445.

See U.S. Const. amend. 6; Const. art. 1, § 22 (amend. 10); State v. Bingham, 40 Wn. App. 553, 559-60, 699 P.2d 262 (1985), aff'd, 105 Wn.2d 820, 719 P.2d 109 (1986).

See State v. Dowling, 98 Wn.2d 542, 543-44, 656 P.2d 497 (1983); State v. Anderson, 96 Wn.2d 739, 742, 638 P.2d 1205, cert. denied, 459 U.S. 842 (1982).

State v. Hughes, 106 Wn.2d 176, 180-88, 721 P.2d 902 (1986); Mak, at 707-08.