It Works

Wayne Fricke; April 1998

            Recently, the Washington Supreme Court in State v. Berlin, _____ Wn.2d _____, 947 P.2d 708 (1997), along with its companion case of State v. Warden, _____ Wn.2d _____, 947 P.2d 700 (1997), reinstituted the Workman Test as it relates to whether jury instructions may be given for manslaughter when a defendant is charged with both felony murder and intentional or premeditated murder.  The cases held that manslaughter is a lesser included crime of intentional or premeditated murder. 

            In 1996 the Washington Supreme Court essentially overruled State v. Workman, 90 Wn.2d 443, 584 P.2d 382 (1978).  In the case of State v. Lucky, 128 Wn.2d 727, 912 P.2d 43 (1996), the Washington Supreme Court interpreted the prior cases of State v. Curran, 116 Wn.2d 174, 804 P.2d 904 (1991), and State v. Davis, 121 Wn.2d 1, 846 P.2d 527 (1993), as holding that a lesser included offense did not exist unless the elements of the lesser included crime were necessarily committed by committing the greater offense.  In Lucky the Court held that unless the lesser crime fell within all the alternatives of the greater crime there could not be a lesser included offense unless the alternative means of the  greater crime overlap to the extent that they were not mutually exclusive. 

            After the prosecutors appealed in Berlin and the defense appealed in Warden, the Supreme Court returned to the Workman Test and, again, established the rule that in order to get a lesser included offense instruction two prongs must be met: (1) each of the elements of the lesser offense must be a necessary element of the offense charged; and (2) the evidence in the case must support an inference that the lesser crime was committed.

            It should be noted that the crimes at issue in Berlin and Warden were felony murder and intentional or premeditated murder.  Under those circumstances the Court found that "manslaughter is a lesser included offense of intentional or premeditated murder."  The case did not extend the holding to felony murder. 

            Further, although limited to premeditated and intentional murder, the holding is no less compelling as it relates to murder by grave indifference.  Under murder by grave indifference the Supreme Court has found that the mental state of grave indifference lies somewhere between intent and recklessness.  See State v. Dunbar, 117 Wn. 2d 587, 817 P.2d 1360 (1998).  As stated therein:

                        Although the boundary is not exact, we interpret RCW 9A.32.030(1)(b) to require an aggravated or extreme form of recklessness which sets the crime apart from first degree manslaughter.

117 Wn.2d at 594 (citations omitted).

Consequently, the legal prong of the Workman Test is met and for any particular case the only remaining question is whether the factual prong is met.  Obviously, that would be done on a case by case basis, but given that the only difference is the mental state required, it appears that it would follow that manslaughter instructions should be given. 

            Indeed, in State v. Pettus, _____ Wn.App. _____, _____ P,.2d _____ (1998), Division II recently held that the defendant was not entitled to lesser included instructions on manslaughter under the facts of that case.  In holding that the defendant did not meet the factual prong of the Workman Test, the Court noted:

                        But the factual prong is not satisfied because evidence showed much more than mere reckless conduct -- a disregard of a substantial risk of causing a wrongful act.  RCW 9A.08.010(c).  The evidence showed that Pettus, who admitted that he had poor aim and was unfamiliar with the gun in his hand, used a .357 revolver to fire at least four shots from a moving vehicle while hanging out the car window.  Pettus's expert testified that a slug from a .357 magnum could travel a "mile or more" and was capable of penetrating windows and doors.  This occurred in the middle of the day in a residential neighborhood near a school playground.

                        This evidence, if believed, established that Pettus's conduct was extremely indifferent to the lives of people in the vicinity and placed them in great danger.  The mere possibility that the jury might disbelieve the State's evidence would not justify giving a manslaughter instruction.  The evidence of the force of a .357 magnum, the time of day, the residential neighborhood, and Pettus's admitted inability to control the deadly weapon, particularly from a moving vehicle, does not support an inference that Pettus's conduct presented a substantial risk of some wrongful act instead of a "grave risk of death."  Thus, even under the Berlin analysis, Pettus was not entitled to a manslaughter instruction.

            Again, the Court looked to the specific fact history in reaching its decision.  The Court did not indicate in any way that manslaughter would never be a lesser included instruction to murder under RCW 9A.32.030(1)(b).