State v. Snook , 18 Wash. App. 339 ( 1977 )

Roe, J.^*

(dissenting)—Because I believe that in this case an instruction on second-degree murder as a lesser-included offense should have been given, I feel compelled to dissent as to assignment of error (a), while concurring in the balance of the majority opinion.

RCW 10.61.006 provides that a defendant may be found guilty of an offense, the commission of which is necessarily included within that with which he is charged. State v. Dolan, 17 Wash. 499, 50 P. 472 (1897). See State v. Miller, 5 Wn. App. 422, 425, 487 P.2d 640 (1971), where the court stated "[W]hen the evidence will support a conviction of either grand larceny or of petit larceny, the jury must be instructed as to both offenses,..." citing authorities. Laws of 1909, ch. 249, § 140, p. 930 defines murder in the first degree as: "The killing of a human being, . . . committed either— 1. With a premeditated design to effect the death of the person killed, or of another; ..." (Italics mine.) Laws of 1909, ch. 249, § 141, p. 930 defines murder in the second degree as: "Committed with a design to effect the death of the person killed or of another". (Italics mine.) Thus, the difference between first- and second-degree murder is the element of premeditation.

It would seem to me, therefore, that if there is evidence upon which a jury could find lack of premeditation when the defendant is tried for first-degree murder, the instruction on second-degree murder should be submitted.

There was abundant evidence of premeditation in this case, as set out in the majority opinion, but the critical evidence of premeditation was the admission by defendant Snook, himself, in a taped confession which was admitted in this trial. There were no other witnesses to the crime and no weapon.

However, when the defendant testified at the trial, he repudiated that statement and further stated he did not intend to kill and that he was under the influence of drugs. He mentioned that he was on medication, equanil or meprobamate and lithium bicarbonate. There was evidence that these drugs were available to him, that he saved them up, and that their effect would be to numb the mind and give him a mental high.

It would appear to me that this testimony would thus make it a jury question, whether there is premeditation or lack of it.

The only testimony which the State relied upon to limit the instructions to murder in the first degree originated with the defendant. When the defendant repudiated that statement, it then became a question of fact whether he is more believable in his pretrial confession or in his testimony at the trial. If the jury believed the live witness rather than his pretrial confession, it could find no intent and thus no premeditation or design. It was a disputed question of fact as to intent and premeditation. The jury could have believed such trial testimony.

In fact, if the jury found the defendant had totally impeached himself by his inconsistency, then there might not be a scintilla of evidence of premeditation.

With the trial court's refusal to instruct on second-degree murder, the defendant was not given an opportunity to have that issue resolved, and he was deprived of his right to argue his theory of the case. I believe this is error compelling reversal.

As the majority correctly points out, in order to demand the instruction on the lesser-included offense, there must be some substantial evidence to support it. In State v. Zamora, 6 Wn. App. 130, 132, 491 P.2d 1342 (1971), the definition given is "that character of evidence which would convince an unprejudiced, thinking mind of the truth of the fact". In that case the court held there was not substantial evidence of intoxication because the testimony of a lay person that the defendant appeared incoherent and stumbling was insufficient. There was no testimony as to the amount of alcohol ingested. There was also other evidence of the crime.

In the case at bench where the confession is the pivotal evidence upon which premeditation rests and where the crime was not witnessed by anyone, the repudiation of the confession, coupled with the evidence of drugs, would raise a substantial question.

It would serve no purpose to extend this dissent by reference to the various cases and treatises on the reliability or unreliability of confessions and the reason for the strict rules surrounding their admissibility.

The majority cites State v. Much, 156 Wash. 403, 287 P. 57 (1930). In that case the evidence was entirely different. The officer investigated the death, found the body, and statements and exclamations of the defendant were used in trial. The case did not rest upon a confession or a repudiation thereof.

State v. Thompson, 17 Wn. App. 639, 564 P.2d 820 (1977), was also mentioned wherein the court held that, where the only evidence of intoxication was the defendant's own assertion that his memory was kind of fuzzy, such evidence did not amount to substantial evidence of intoxication. There was a plethora of other evidence to show the commission of the crime; the conviction did not depend on a confession.

Nor is it an answer to the pertinent question to say that, because the jury found murder in the first degree, that finding foreclosed further inquiry. That argument could be urged in the grand-petit larceny cases, but it is not acceptable here. Confronted with the admitted reality of a heinous murder and the definite choice of acquittal or first-degree murder, it would tax credulity to think the jury would acquit. The jury was given no meaningful alternative.

The question of punishment is somewhat academic: Mandatory life for first-degree murder; 20 years to discretionary life for second-degree murder.

One final point needs comment. As the majority notes, the defendant's counsel may not have strictly followed the rules in excepting to the instructions. The purpose of CrR 6.15(c) is to afford the court the opportunity to correct any error. However, counsel did propose an instruction on second-degree murder. The court was obviously advised of defense counsel's position and declined to give the instruction, citing reasons. This is sufficient to apprise the court of the theory of his case and is adequate upon which to base error. State v. Colwash, 88 Wn.2d 468, 564 P.2d 781 (1977).

Accordingly, I dissent.

Petition for rehearing denied September 1, 1977.

Review denied by Supreme Court March 29, 1978.

* Judge Willard J. Roe is serving as a judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150.