Considered March 31, 1998. Decided June 11, 1998.
THE STATE OF WASHINGTON, Respondent, v. SEAN SCHAFFER, Petitioner
[1] Homicide - First Degree Murder - Premeditation Included Offenses - Manslaughter - In General. Manslaughter is a lesser included offense of premeditated first degree murder.
[2] Homicide - First Degree Murder - Premeditation Included Offenses - Manslaughter - Instruction - Necessity. A defendant charged with premeditated first degree murder is entitled to an instruction on manslaughter if the defendant, at the time the crime was committed, reasonably believed that he or she was in imminent danger and needed to act in self-defense but recklessly or negligently used more force than was necessary to repel the attack.
[3] Criminal Law - Lesser Included Offense - Instruction Necessity - Evidence in Support - Test. There is sufficient evidence to support a lesser included offense instruction in a criminal prosecution if the evidence would permit the jury to find the defendant guilty of the lesser offense.
[4] Homicide - Felony Murder - Second Degree Felony Murder - Included Offenses - Manslaughter - In General. Manslaughter is not a lesser included offense of second degree felony murder.
[5] Homicide - Felony Murder - Second Degree Felony Murder - Inferior Degree Offenses - Manslaughter. Manslaughter is not an inferior degree offense of second degree felony murder.
[6] Criminal Law - Lesser Included Offense - Alternative Offenses - Not Guilty of Greater Offense - Retrial Instruction - Necessity. When a defendant is charged with two alternative offenses, is convicted of the second of the two alternatives, and the conviction is reversed on appeal on the basis that the jury should have been instructed on a lesser included offense of the first alternative offense, although the defendant may not be retried on the first alternative offense, if the State elects to retry the defend
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ant for the second alternative offense and sufficient evidence supporting the lesser offense is presented, the defendant is entitled to have the jury instructed on the lesser included offense.
Nature of Action: Prosecution for premeditated first degree murder or, in the alternative, second degree felony murder and two counts of second degree assault.
Superior Court: The Superior Court for King County, No. 93-1-02680-0, Laura Inveen, J., on April 4, 1994, entered a judgment on a verdict finding the defendant guilty of second degree felony murder and both counts of second degree assault.
Court of Appeals: The court affirmed the judgment in an unpublished opinion noted at 87 Wn. App. 1032 (1997).
Supreme Court: Holding that the defendant was entitled to an instruction on manslaughter as a lesser included offense of the premeditated murder charge, the court reverses the judgment.
Lenell R. Nussbaum, for petitioner.
Norm Maleng, Prosecuting Attorney, and Lee D. Yates, Deputy, for respondent.
PER CURIAM. - Sean Schaffer was convicted of second degree murder and two counts of second degree assault. On appeal, he argued, among other things, that the trial court should have instructed the jury on manslaughter as a lesser included offense to the murder charge. The Court of Appeals rejected that contention based on State v. Lucky, 128 Wn.2d 727, 912 P.2d 483 (1996). This court subsequently overruled Lucky and held that manslaughter is a lesser included offense to intentional murder. State v. Berlin, 133 Wn.2d 541, 947 P.2d 700 (1997) and State v. Warden, 133
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Wn.2d 559, 947 P.2d 708 (1997). Schaffer contends that these cases require reversal of his murder conviction. The State on the other hand contends that reversal is unwarranted because there is insufficient evidence to support a manslaughter instruction in any event.
FACTS
The charges arise from an incident that occurred one night outside Celebrity's Club in Seattle. While dancing that evening, Schaffer had words with another patron, John Magee. When they left the club, Schaffer approached Magee, who shook his fist, swore at Schaffer, and threatened to kill him. When Magee moved his arm toward his back, Schaffer thought he was reaching for a gun. Schaffer drew his own gun and fired several shots. Two bullets struck Magee in the back and three in the legs. One bullet struck Magee's girlfriend in her little finger, and another struck a passerby in the foot. Magee died at the scene. He was not armed. Schaffer fled, but turned himself in to the police two days later. He told police he thought Magee was armed, and he acted in self-defense.
The King County prosecutor charged Schaffer with premeditated murder and second degree felony murder for killing Magee and two counts of second degree assault for injuring the other two victims. The trial court instructed the jury on self-defense, but declined to give Schaffer's proposed instructions on manslaughter. The jury found Schaffer guilty on both counts of assault and also on the felony murder charge.
ISSUE
Whether the trial court should have instructed the jury on manslaughter as a lesser included offense or inferior degree of crime to premeditated, intentional murder.
ANALYSIS
[1-3] The State now concedes manslaughter is a lesser
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included offense to the premeditated murder charge, and Schaffer was therefore entitled to an instruction on the lesser crime if there is sufficient evidence to support such an instruction. Schaffer sought the instruction based on the theory we approved in State v. Hughes, 106 Wn.2d 176, 721 P.2d 902 (1986) and State v. Jones, 95 Wn.2d 616, 628 P.2d 472 (1981). Under that theory, a defendant who reasonably believes he is in imminent danger and needs to act in self- defense, "but recklessly or negligently used more force than was necessary to repel the attack," is entitled to an instruction on manslaughter. State v. Jones, 95 Wn.2d at 623; see State v. Hughes, 106 Wn.2d at 190. In its brief on appeal, the State said "the evidence presented by the defense [showed] that for Schaffer, given his upbringing and his background, deadly force would be a reasonable act for someone in his position." Br. of Resp't at 53. The State thereby conceded there was sufficient evidence to permit the jury to find Schaffer acted in the reasonable belief he was in imminent danger. The additional evidence-that Schaffer shot the victim five times including twice in the back-was sufficient to support a finding that he recklessly or negligently used excessive force to repel the danger he perceived. The jury should therefore have been instructed on manslaughter as a lesser included offense to the first degree murder alternative.
[4-6] The jury's verdict precludes Schaffer from being retried on the first degree murder charge. Hudson v. Louisiana, 450 U.S. 40, 101 S. Ct. 970, 67 L. Ed. 2d 30 (1981); Burks v. United States, 437 U.S. 1, 98 S. Ct. 2141, 57 L. Ed. 2d 1 (1978). Though he can be retried on the felony murder alternative for which the jury convicted him, manslaughter is not a lesser or inferior degree of crime to felony murder. State v. Tamalini, 134 Wn.2d 725, 953 P.2d 450 (1998). Nevertheless, Schaffer was tried for a crime to which manslaughter is an included offense, and he was entitled to have the jury consider that alternative. Thus, if the State elects to retry him on the felony murder charge, and he again presents evidence supporting an instruction
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on manslaughter, the jury should be instructed on that offense as well. Since manslaughter will be a lesser included offense to the original charge, but not to felony murder, the instructions should refer to it simply as a lesser offense.
CONCLUSION
The trial court erred in failing to instruct the jury on manslaughter as a lesser included offense to premeditated murder. Schaffer's murder conviction is therefore reversed, and the case is remanded to superior court for further proceedings consistent with this opinion.