Court Hurls on Hurchalla

By Lance M. Hester; Sept 2000

     Recently, the State Supreme Court took on yet another issue related to jury instructions.  In recent years the Court had the opportunity to address lesser-included offenses and lesser included degrees of offenses in the notable case of State v. Berlin, 133 Wn.2d 541 (1997).  In the recent case of State v. Fernandez-Medina, ___ Wn. 2d ___ (2000), Justice Alexander had much to say about the very important issue of lesser-included offense/degree instructions when a defendant testifies inconsistent with the requested instructions.  In fact, he narrowed some outstanding issues that have been lingering for some time.

     Follow these facts closely as the intricacies make the case interesting.  The defendant was charged with two counts of attempted first degree murder and, alternatively, with two counts of first degree assault.   Following a disagreement Mr. Fernandez-Medina moved out of his girlfriend Ann Carpenter’s apartment.  Later that day Fernandez-Medina returned to the apartment complex with a companion.  Ms. Carpenter noticed Fernandez-Medina’s car outside, so she went to a neighbor’s apartment.  She shared concerns for her safety with the two people she found inside the apartment, Dorothy Perkins and Wayne Butler.  The door to the apartment was left ajar.  According to those inside the apartment, either Fernandez-Medina or his companion fired gunshots into the apartment.  Dorothy Perkins had fallen down in the apartment and testified that once inside the apartment Fernandez-Medina passed very close to her, paused and pointed a gun at her head.  She said she closed her eyes and then heard a “clicking sound.”  While one of the witnesses could see Fernandez-Medina, none actually saw him pull the trigger of the handgun.

     At trial, Fernandez-Medina testified.  His testimony included an alibi – that he had spent that night at the home of a friend.  He denied having been present at the apartment where the shooting occurred.

     Both State and defense experts testified that handguns such as the one used in the apartment can make a variety of clicks without the trigger being pulled.

     At the end of the trial the court refused to allow an instruction for second degree assault.  The issue was whether a person with an alibi defense is entitled to a second degree assault jury instruction, as an inferior degree offense to the first degree assault charges. 

     The Court of Appeals agreed that the trial court properly refused to instruct the jury on second degree assault because the alibi defense negated an inference that only the lesser included offense had been committed.  (See State v. Fernandez-Medina, 94 Wn.App. 263 (1999)). 

     The State Supreme Court, however, disagreed.

     A string of cases, some decided recently, some decided long ago, make the following clear:  cases involving inferior degree instructions and lesser-included instructions have two different legal tests that must be satisfied.  However, both types have a factual component that must be satisfied as well.  In this case the issue was factual.  And, quite simply the issue became whether a person who presents an alibi defense is barred from a lesser included instruction when his own testimony is not consistent with the evidence necessary to convict for the lesser included offense. 

      The lower courts rested their analyses’ on State v. Hurchalla, 75 Wn.App 417 (1994).  Based on completely different facts, the Hurchalla court concluded that the complete defense of self-defense negated the required inference that only the requested lesser-included offense was committed. 

     The Supreme Court, however recognized, importantly, that there is no requirement in this state that a defendant’s testimony be consistent with the rest of the evidence presented at trial.  It further noted that the above holding from Hurchalla was made without any authority.  It therefore ruled Hurchalla incorrect, and held that a different opinion (one that the Court of Appeals had said was not factually analogous), State v. McClam, 69 Wn.App 885 (1993), is the better reasoning. 

     McClam stands for the simple principle that (multiple) “defendants can present inconsistent defenses.” McClam, 69 Wn.App at 899.  The McClam opinion further held that, “an inconsistent defense goes to the weight of, but does not entirely negate the evidence supporting the lesser included instruction.” Id at 890.

     In Mr. Fernandez-Medina’s case the alibi defense was inconsistent with the testimony of the witnesses.  However, the testimony about the possible variety of sources for the weapons “click” gave rise to the possibility that it was really a second degree assault case.  Because the factual component was met, although in contradiction to the defendant’s own testimony, the court reasoned that the lesser-included instruction should have been given.