State v. Parker , 102 Wash. 2d 161 ( 1984 )

Utter, J.

(dissenting) — Both prongs of the test set forth in State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978) must be satisfied before a lesser included offense instruction is required to be given. Under the facts here, there was no evidence upon which to acquit petitioner of the greater crime of felony flight while convicting him of the lesser crime of reckless driving. Therefore, the second prong of the Workman test was not satisfied and the trial court did not err in refusing to give the instruction on the lesser offense.

The 2-prong test set forth in Workman is a distillation of principles to which this court has adhered for nearly a century. For example, in State v. Young, 22 Wash. 273, 60 P. 650 (1900), we accorded defendant the right to have the jury consider the lesser offense if evidence existed to support it. In State v. Kruger, 60 Wash. 542, 111 P. 769 (1910), we stressed that such evidence must, in fact, exist before the lesser included offense instruction is given. "It was never the intent of the law to submit a possible verdict upon a so-called included crime because included in law. It must be included in fact, and by the facts of the particular case." (Italics mine.) State v. Kruger, supra at 544.

This same rule has been accepted by the Supreme Court and the majority of jurisdictions which require there to be sufficient facts to permit "a jury rationally to find [defendant] guilty of the lesser offense and acquit him of the greater" before a lesser included offense instruction is given. Keeble v. United States, 412 U.S. 205, 208, 36 L. Ed. 2d 844, 93 S. Ct. 1993 (1973); Beck v. Alabama, 447 U.S. 625, 637, 65 L. Ed. 2d 392, 100 S. Ct. 2382 (1980).

Application of this rule is illustrated by our two recent cases of State v. Workman, supra, and State v. Jones, 95 Wn.2d 616, 628 P.2d 472 (1981). In Workman, defendants had concealed themselves behind the pay booth of a late night gas station; they were carrying a sawed-off rifle and admittedly intended to rob the station. However, they testified that after waiting behind the booth they decided to abandon their plan. They were apprehended in a nearby alley. Defendants were each convicted of attempted first degree robbery. A new trial was granted by the superior court in each case due, in part, to the trial court's failure to instruct on the lesser included offense of unlawfully carrying a weapon. We affirmed, because the facts proffered to the jury would have supported acquittal of attempted first degree robbery and conviction of the lesser included offense of unlawfully carrying a dangerous weapon. While our discussion there focused upon the facts which supported a conviction of the lesser crime, it was equally apparent that the facts as presented would have permitted the jury to find defendants had failed to take the "substantial step" necessary to conviction of attempted robbery. Workman, at 449-52.

Similarly, in State v. Jones, supra, we found that failure to give the lesser included manslaughter instruction in a prosecution for murder in the second degree was reversible error. In Jones, appellant presented the jury with an intoxication defense which, if believed, could have reduced appellant's conviction to manslaughter. We there noted that

Without the manslaughter instruction . . . the jury was required either to find appellant guilty of second degree murder or to acquit him altogether. The refusal to give the manslaughter instruction prevented appellant from presenting his theory that the killing was unintentional by reason of his intoxication. This refusal was reversible error.

(Citation omitted.) Jones, at 623.

In contrast, in order for the jury here to have determined that petitioner was guilty of felony flight, it had to have found him conscious and capable of forming a purposeful mental state. It had to find that he: (1) willfully failed or refused to stop, (2) drove with a wanton and willful disregard for the lives or property of others, and (3) attempted to elude a police vehicle. RCW 46.61.024; State v. Sherman, 98 Wn.2d 53, 58, 653 P.2d 612 (1982). The crime of reckless driving also requires the jury to find a defendant conscious and capable of forming a purposeful mental state; he, too, must be found capable of driving with a "wilful or wanton" disregard for the safety of others. RCW 46.61.500; WPIC 95.10.

The majority here looks beyond the mental state required by both crimes to the additional expressions of. this State required by the felony flight statute and concludes: "The jury could have found that the defendant was not so intoxicated as to act without 'wilful and wanton disregard', but intoxicated to a degree preventing knowledge that he was eluding a pursuing police vehicle." Majority, at 166. Assuming it is possible simultaneously to be conscious and capable of forming the specific mental state required by both statutes, while incapable of recognizing a pursuing police vehicle with lights flashing and siren blaring, the record here is devoid of support for the majority's conclusion that petitioner had achieved this state.

What the majority ignores in reaching its conclusion is that the jury would need to disregard both the evidence presented by the State and petitioner, in addition to their respective theories, in order to find petitioner guilty of reckless driving. Under the State's theory, petitioner was capable of forming the mental state required to convict him of both felony flight and reckless driving. This merely supports the first prong of the Workman test that reckless driving is a lesser included offense of felony flight. See State v. Roybal, 82 Wn.2d 577, 583, 512 P.2d 718 (1973) (if it is impossible to commit the greater crime without also committing the lesser crime, the latter is an included offense).

Petitioner's theory of the case precluded him from arguing to the jury that he was guilty of reckless driving, because his defense disavowed his capacity to form the intent required by that statute as well. Petitioner testified that he was so intoxicated at the time of the incident that he was not capable of conscious or purposeful thought or behavior: he did not consciously see or attempt to elude his pursuers; he had been rendered an automaton. Thus, even had the requested reckless driving instruction been given, petitioner's own defense would have permitted the jury no choice but to convict him of the greater charge or acquit him altogether.

Consequently, the danger presented in Workman and Jones, that defendant was precluded from having the jury consider his defense by the court's failure to give an instruction on the lesser included offense, is not present here.

The majority tacitly abandons the second prong of Workman when it hypothesizes that some unspecified facts in the record might have led the jury to convict on the lesser charge. This conclusion is unfortunate. The second prong of Workman serves the important purpose of preventing verdicts based on mere conjecture and sympathy. This purpose is met only when the jury can, consistent with the facts presented, acquit defendant of the greater charge while convicting him of the lesser.

In this case, the only basis upon which the jury could have found petitioner guilty of reckless driving, alone, is sympathy. For these reasons, I would affirm the trial court.

Dolliver and Dimmick, JJ., concur with Utter, J.