Opinion
No. 26855-1-III.
April 21, 2009.
Appeal from a judgment of the Superior Court for Ferry County, No. 07-1-00007-1, Allen Nielson, J., entered February 8, 2008.
Reversed and remanded by unpublished opinion per Sweeney, J., concurred in by Schultheis, C.J.; Korsmo, J., dissenting.
UNPUBLISHED OPINION
The trial court must instruct a jury on manslaughter as a lesser included offense of intentional murder if sufficient evidence supports an inference that the defendant acted negligently or recklessly in defending himself. Here, the court refused a manslaughter instruction after it concluded that the record was not sufficient to support the instruction. We disagree with that decision and therefore reverse and remand for a new trial.
FACTS
The State charged Philip Strong with first degree murder while armed with a firearm for shooting and killing Trent Irby. Mr. Strong claimed self-defense and pleaded not guilty.
Mr. Strong lived in a trailer in Melinda Jarrett's backyard. Ms. Jarrett and Mr. Irby were friends. Mr. Irby and his girl friend, Kelly Stout, stayed at Ms. Jarrett's house. Mr. Irby had been at Ms. Jarrett's house for several days before Mr. Strong shot him.
Ms. Stout saw Mr. Strong shoot Mr. Irby. She testified that Mr. Strong walked into Ms. Jarrett's house with a rifle draped over his arm. He walked up to the table where Mr. Irby was sitting, stood across the table from him, and asked, "`What do you think about today being your day to die?'" Report of Proceedings (RP) at 229-30. Mr. Irby responded by raising his hands in the air and saying, "`Whatever, motherf[___], bring it on.'" RP at 230, 261.
Mr. Strong then shot Mr. Irby once in the chest. Mr. Irby fell facedown on the floor. Mr. Strong then stepped around the table, pointed the gun at Mr. Irby's back, and shot him once more. The first shot likely incapacitated Mr. Irby and would have been fatal. The second shot was instantly fatal; it struck Mr. Irby's heart and a lung.
Mr. Strong testified that he recalled several instances in the days leading up to the shooting where Mr. Irby had intimidated or threatened him. He testified that he walked into Ms. Jarrett's house to use the phone the day Mr. Irby died. He admitted that he carried a rifle into the home but maintained the rifle's chamber was empty and its lever was open. Mr. Strong walked past Mr. Irby, who was sitting at a table. He heard Mr. Irby say, "`[B]ring it on, motherf[].'" RP at 1088. Mr. Strong turned around to see
Mr. Irby pointing a pistol at him. He told Mr. Irby he just wanted to use the phone, but Mr. Irby repeated his earlier statement. Mr. Strong raised his rifle and closed the lever. He told Mr. Irby, "`You don't want to die.'" RP at 1088. Mr. Strong then saw Mr. Irby "bearing down on that trigger." RP at 1088. So he shot Mr. Irby. Mr. Irby fell on the floor. Mr. Strong thought Mr. Irby landed on his pistol and was trying to pull it out from underneath his body to shoot him. So Mr. Strong shot Mr. Irby again, this time in the back.
The court gave the State's proposed first aggressor instruction to the jury. But it refused Mr. Strong's request for instructions on first and second degree manslaughter. The court instructed the jury on the offenses of first degree and second degree murder only.
The jury asked the judge during deliberations if it could consider other offenses. The judge responded that it could not. The jury then found Mr. Strong guilty of second degree murder while armed with a firearm.
DISCUSSION
First and Second Degree Manslaughter Instructions
Mr. Strong contends that the court erred by refusing to instruct the jury on the elements of manslaughter. He argues that he met his burden of producing evidence that would support the jury finding that he acted recklessly or negligently.
The State agrees that Mr. Strong would be entitled to manslaughter instructions if he produced evidence that showed he defended himself recklessly or negligently. But the State maintains that therein lays the problem. The State urges that, on this record, either Mr. Strong murdered Mr. Irby or he killed Mr. Irby in self-defense; there was no evidence to support an imperfect self-defense here — an overreaction to the threat posed by Mr. Irby. The State, then, urges that the court properly refused to instruct on manslaughter.
Mr. Strong is entitled to instructions that are sufficient to allow him to argue his theory of the case. State v. Tili, 139 Wn.2d 107, 126, 985 P.2d 365 (1999). That means that, if sufficient evidence in the record supports instructions for manslaughter, Mr. Strong is entitled to those instructions. State v. Speece, 115 Wn.2d 360, 362, 798 P.2d 294 (1990). And the court's refusal to so instruct would be an error of law. State v. Jones, 95 Wn.2d 616, 623, 628 P.2d 472 (1981). We, accordingly, review the decision de novo. State v. Walker, 136 Wn.2d 767, 772, 966 P.2d 883 (1998).
Mr. Strong is entitled to instructions on the lesser included offense of manslaughter if (1) each element of the lesser included offense is a necessary element of the offense charged; and (2) the evidence in the case supports an inference that the lesser included offense was committed. State v. Fernandez-Medina, 141 Wn.2d 448, 454, 455, 6 P.3d 1150 (2000). "A defendant may be convicted of a lesser included offense even if the State did not charge the lesser included offense." State v. Prado, 144 Wn. App. 227, 241, 181 P.3d 901 (2008) (citing RCW 10.61.006; Fernandez-Medina, 141 Wn.2d at 453). Manslaughter is a lesser included offense of first degree murder. See State v. Warden, 133 Wn.2d 559, 563, 947 P.2d 708 (1997). So, again, the question before us is whether sufficient evidence supports the inference that Mr. Strong defended himself recklessly or negligently. See State v. Schaffer, 135 Wn.2d 355, 358, 957 P.2d 214 (1998).
A person who recklessly causes another person's death commits first degree manslaughter. RCW 9A.32.060(1)(a). A person acts recklessly "when he knows of and [unreasonably] disregards a substantial risk that [death] may occur." RCW 9A.08.010(1)(c); see State v. Gamble, 154 Wn.2d 457, 467-68, 114 P.3d 646 (2005). A person who, with criminal negligence, causes another person's death commits second degree manslaughter. RCW 9A.32.070(1). And a person "acts with criminal negligence when he fails [unreasonably] to be aware of a substantial risk that [death] may occur." RCW 9A.08.010(1)(d).
The trial court here concluded that there was no showing that Mr. Strong acted recklessly or negligently:
And counsel, as I think about it on the [manslaughter] instructions, I agree with Mr. Hillman [deputy prosecutor] in the final analysis. I think there is a meaningful distinction between here — this case and the Schaffer case, and that being that Mr. Strong quite simply said "I was faced with an
armed man, a man that even once I shot him still was trying to get me, and I had to shoot him a second time; I had no choice." That's what he said happened. And it's either justified or not.
And so, you know, the idea that he was reckless or negligent in using excessive force, no, not by his version. If what he said is true, he did what probably anybody else would do, given that situation, where somebody was bent on shooting him. And that's not reckless or negligent; that's just facing the situation and dealing with it.
RP at 1201-02.
But the trial court's task, as well as ours here on appeal, is to view all the evidence in the light most favorable to Mr. Strong when determining whether or not an instruction should have been given. Fernandez-Medina, 141 Wn.2d at 455-56. If the evidence supports a reasonable inference that Mr. Strong defended himself negligently or recklessly, then he is entitled to a manslaughter instruction. Schaffer, 135 Wn.2d at 358. Said another way, the court should have instructed the jury on manslaughter if the jury could have found that Mr. Strong reasonably believed he was in imminent danger but recklessly used more force than necessary to repel Mr. Irby's attack. Id.
In Schaffer, the defendant shot the victim five times, twice in the back and three times in the legs, because he thought the victim was reaching for a gun during an argument. Id. at 357. The Supreme Court concluded that the evidence showed the defendant acted in self-defense but that five shots were sufficient proof that he recklessly or negligently used excessive force to repel the danger he perceived. Id. at 358. The court reversed and remanded for a new trial: "[t]he trial court erred in failing to instruct the jury on manslaughter as a lesser included offense to premeditated murder." Id. at 359.
Here, both the State and Mr. Strong showed Mr. Strong knew that shooting Mr. Irby carried the risk of death but that he shot Mr. Irby anyway. The State showed that Mr. Strong held a rifle in his hands and asked Mr. Irby, "`What do you think about today being your day to die?'" RP at 230. And Mr. Strong testified that, just before shooting Mr. Irby in self-defense, he told Mr. Irby, "`You don't want to die.'" RP at 1088. That first shot incapacitated Mr. Irby. But Mr. Strong shot him a second time because he thought Mr. Irby was reaching for his gun again.
Even assuming self-defense, then, a reasonable person would not have shot Mr. Irby a second time because he no longer posed a threat. Mr. Strong did, however, shoot Mr. Irby a second time. It was this second gunshot that killed Mr. Irby instantly. A jury could rationally conclude on this evidence that Mr. Strong used excessive force (the second shot), which killed Mr. Irby. Enough evidence was produced, then, to justify instructing the jury on first degree manslaughter. Warden, 133 Wn.2d at 564.
The court in State v. Bergeson correctly analyzed the problem presented here. 64 Wn. App. 366, 372-73, 824 P.2d 515 (1992). It is what the law should be. When a defendant intentionally shoots his victim, as Mr. Strong did here, he should not be entitled to an instruction that the killing was reckless. Id. We agree. But Bergeson is not the law. The Supreme Court in Schaffer announced a different rule. 135 Wn.2d at 358. And so it is Schaffer that we must apply. The only question here is whether the evidence or a reasonable inference from that evidence supports the notion that Mr. Strong recklessly used too much force in defense of himself. Id. We answer that question in the affirmative.
The evidence is not sufficient, however, to justify an instruction for second degree manslaughter. Both parties presented evidence that Mr. Strong made a statement about death to Mr. Irby just before shooting him. Both statements suggest that Mr. Strong was aware that shooting Mr. Irby could cause his death. See RCW 9A.08.010(1)(d) (defining criminal negligence as the unreasonable failure to be aware of the risk that death might occur). We find, then, no inference that Mr. Strong was unaware that shooting Mr. Irby might cause his death. Mr. Strong was not entitled to a second degree manslaughter instruction.
The failure to instruct the jury on first degree manslaughter was error. Jones, 95 Wn.2d at 623 (concluding refusal to give manslaughter instruction was reversible error because defendant was prevented from presenting his theory that the killing there was unintentional). We, therefore, reverse the conviction and remand for a new trial. Schaffer, 135 Wn.2d at 359.
Aggressor Instruction
Mr. Strong also contends that the court erred when it gave the first aggressor instruction. He says that the aggressor instruction given was not supported by the evidence and prevented him from asserting his self-defense theory. The court instructed that:
No person may, by any intentional act reasonably likely to provoke a belligerent response, create a necessity for acting in self-defense and thereupon kill another person. Therefore, if you find beyond a reasonable doubt that the defendant was the aggressor, and that defendant's acts and conduct provoked or commenced the fight, then self-defense is not available as a defense.
Clerk's Papers (CP) at 130 (Instruction 16). The court concluded that the evidence justified the instruction:
Well, counsel, the court will give the aggressor instruction. And the — question I have to ask is whether there's evidence to support the argument by the state that Mr. Strong was the initial aggressor. And I believe there is. And there's evidence on the other side, too, as emphasized by Mr. Graham. But I do believe it's a proper instruction for the jury to consider here, because the entry into the residence was intentional. He went in there, he would say, to use the phone and then leave and take the gun up to somebody else. And the state would say, no, he went in there intending to shoot Mr. Irby.
So I think that there's evidence here that supports giving of the instruction.
RP at 1242-43.
We agree that the State was entitled to the instruction. Evidence is sufficient to support an aggressor instruction where: (1) the jury can reasonably determine from the evidence that the defendant provoked or started the fight; (2) the evidence conflicts as to whether the defendant's conduct provoked or commenced the fight; or (3) the evidence shows that the defendant made the first move by drawing a weapon. State v. Riley, 137 Wn.2d 904, 909-10, 976 P.2d 624 (1999).
The State showed Mr. Strong carried a rifle into Ms. Jarrett's house, stood across the Jarrett kitchen table from a seated and unarmed Mr. Irby, and asked Mr. Irby, "`What do you think about today being your day to die?'" RP at 228-30. Mr. Irby responded by raising his hands in the air and saying, "`Whatever, motherf[], bring it on.'" RP at 230, 261. Mr. Strong then shot Mr. Irby. This evidence supported the State's theory that Mr. Strong was the aggressor here.
The State's evidence differs from Mr. Strong's description of the events. Mr. Strong testified that he walked into Ms. Jarrett's house, that he carried his rifle, and that he intended to use the phone. He had his back to Mr. Irby when Mr. Irby said, "`[B]ring it on, motherf[].'" RP at 1088. Mr. Strong turned around and saw Mr. Irby pointing a pistol at him. He told Mr. Irby he just wanted to use the phone. But Mr. Irby kept saying, "`Bring it on.'" RP at 1088. Mr. Strong raised his rifle and told Mr. Irby, "`You don't want to die.'" RP at 1088. He then saw Mr. Irby "bear down on that trigger," so he shot Mr. Irby. RP at 1088. Mr. Strong's version of the events suggests he was not the initial aggressor.
Sufficient evidence supports the aggressor instruction here. And the instruction did not prevent Mr. Strong from arguing self-defense. See Riley, 137 Wn.2d at 908 n. 1 (noting that an aggressor instruction did not deny the defendant the ability to argue self-defense where defendant's attorney asserted self-defense in the opening statement and closing argument and the court instructed the jury on self-defense). Statement of Additional Grounds
Mr. Strong argues that the trial court should have allowed him to impeach the character of a State witness, Kelly Stout, using her drug and criminal history. The court excluded Ms. Stout's criminal history under ER 609. It also excluded Ms. Stout's drug history under State v. Tigano, 63 Wn. App. 336, 818 P.2d 1369 (1991). The court did, however, allow Mr. Strong to offer evidence that Ms. Stout used drugs on the day of the crime. We review the court's ruling on these evidence questions for abuse of discretion. State v. Bankston, 99 Wn. App. 266, 268, 992 P.2d 1041 (2000) (ER 609).
Evidence of prior convictions may be admissible to attack a witness's credibility. ER 609(a). But convictions that are more than 10 years old are inadmissible. ER 609(b). Two of Ms. Stout's prior convictions were more than 10 years old. See CP at 40. And her three remaining convictions (drug convictions) do not qualify as crimes involving dishonesty for purposes of admissibility. State v. Hardy, 133 Wn.2d 701, 707, 709-10, 946 P.2d 1175 (1997) (concluding that prior drug convictions are neither crimes of dishonesty nor probative of a witness's veracity). The trial court, then, properly excluded Ms. Stout's criminal history from evidence.
Evidence of drug addiction is generally inadmissible because it is impermissibly prejudicial. Tigano, 63 Wn. App. at 344-45. And Mr. Strong does not argue how the court, in this instance, abused its discretion by excluding evidence of Ms. Stout's drug history. We, therefore, cannot conclude that the trial court abused its discretion.
Mr. Strong also contends that the handgun Mr. Irby pointed at him should have been tested for fingerprints or blood. But that would be difficult to do since there was no handgun.
We reverse the conviction and remand for trial with instructions to the jury on first degree manslaughter.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J., concur.
There is no affirmative evidence that only the crime of manslaughter was committed. Accordingly, the trial court correctly declined to give a lesser included offense instruction that defense counsel indicated he would not be arguing to the jury even if it was given. The second degree murder conviction should be affirmed.
A review of some of the salient facts is in order. Mr. Strong testified that when he entered the cabin, his victim, Mr. Irby, was holding a pistol and twice told Strong to "bring it on." Report of Proceedings (RP) at 230. Then, according to Strong, Irby aimed the gun at him, so Strong fired his rifle, striking Irby and dropping him to the floor on top of the pistol. When Irby raised his body up in an effort to bring the pistol to a firing position, Strong stepped up to him and fired a second shot into the man's back. RP at 1088, 1090-1091. "I was concerned with him shooting me as I was walking out of there." RP at 1091.
At the initial jury instruction conference, defense counsel indicated he did not want any lesser included offense instructions, nor did his client. RP at 1163-1164. Over the weekend counsel changed his mind and drafted a memorandum requesting instructions on both first and second degree manslaughter. Counsel theorized that a jury could find manslaughter based on either his client's decision to carry a rifle into the cabin, thereby provoking an encounter, or by firing a second shot into an incapacitated victim. Clerk's Papers (CP) at 70-75. In particular, counsel theorized that "even if Irby threatened Strong with a pistol, Strong over-reacted" and used excessive force. CP at 73. At the second instruction conference, counsel emphasized that the defense did not want any lesser included instructions, but that if the court was going to give the prosecutor's proposed instruction on second degree murder, then the defense wanted instructions on both degrees of manslaughter. RP at 1188-1189, 1195. Defense counsel subsequently objected to the court instructing the jury on the lesser degree offense of second degree murder. RP at 1238.
In closing argument, defense counsel contended that his client acted in self-defense and that the only proper verdict was not guilty. He did not argue for the lesser degree offense of second degree murder. RP at 1327-1328, 1332-1334.
This case sits at the intersection of two well-developed doctrines of Washington criminal law. The first is the right to a lesser included offense instruction. By statute, either party in a criminal case is entitled to an instruction on a lesser included offense in appropriate circumstances. RCW 10.61.006. In order to instruct on an included offense, the crime actually must be an included offense and there must be a factual basis for believing that the lesser crime was committed. State v. Workman, 90 Wn.2d 443, 447-448, 584 P.2d 382 (1978). These are known as the "legal" and "factual" prongs. State v. Berlin, 133 Wn.2d 541, 545-546, 947 P.2d 700 (1997).
Statutes also provide that parties are entitled to instructions on inferior degree offenses and attempted crimes. RCW 10.61.003; RCW 10.61.010.
First and second degree manslaughter are lesser included offenses of intentional murder, so the legal prong of the Workman standard is not at issue in this case. The factual prong is satisfied when there is affirmative evidence showing that the lesser crime actually was committed. State v. Speece, 115 Wn.2d 360, 362-363, 798 P.2d 294 (1990); State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990). The factual prong is not established merely by the fact that the jury might disregard some of evidence in the case. "Instead, some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given." Fowler, 114 Wn.2d at 67.
State v. Berlin, 133 Wn.2d 541, 543, 947 P.2d 700 (1997).
This court at one time had held the opposite, deciding that the factual prong could be satisfied by a failure of proof. State v. Wilson, 41 Wn. App. 397, 704 P.2d 1217, review denied, 105 Wn.2d 1003 (1985). Speece subsequently noted that Wilson was no longer good law after Fowler. 115 Wn.2d at 363 n. 4. This court later concurred in that assessment. State v. Johnson, 59 Wn. App. 867, 873, 802 P.2d 137 (1990), rev'd on other grounds, 119 Wn.2d 143, 829 P.2d 1078 (1992).
The second doctrine at issue is our law of self-defense. Washington does not recognize "imperfect" self-defense, i.e., use of force when the actor is mistaken about the need to act. State v. Hughes, 106 Wn.2d 176, 190-191, 721 P.2d 902 (1986). Evidence of imperfect self-defense, however, is still admissible in Washington since it may provide insight into the defendant's mental state. Id. at 189-190. That is, evidence that the defendant was acting to defend himself may tend to show that a killing was not premeditated or intentional, but merely reckless because of misapprehended facts or use of excessive force. E.g., State v. Schaffer, 135 Wn.2d 355, 358, 957 P.2d 214 (1998); State v. Jones, 95 Wn.2d 616, 623, 628 P.2d 472 (1981).
The statement in Jones certainly appears to be dicta, as was subsequently recognized by State v. Bergeson, 64 Wn. App. 366, 372 n. 3, 824 P.2d 515 (1992). Nonetheless, in Schaffer the court treated the language in both Jones and Hughes as the holding in the cases. 135 Wn.2d at 358.
Typically in cases of imperfect self-defense providing affirmative evidence of a lesser included crime, there was evidence that the defendant thought the victim was acting in a manner that required the defendant to defend himself or others. For instance, in Schaffer, the defendant testified that he saw the victim reach behind his back and thought that he was reaching for a weapon, so there was a need to shoot first in self-defense. 135 Wn.2d at 357. The victim did not have a gun. Id. Since the victim did not have a gun and apparently was turning to flee, Mr. Schaffer's actions in shooting him five times were excessive and justified an instruction on manslaughter. Id. at 358.
The fact that evidence of imperfect self-defense in Schaffer provided a factual basis for instructing on lesser included offenses does not mean that the evidence required an instruction on manslaughter in this case. Mr. Strong still had to demonstrate how the evidence in this case showed that only manslaughter, as opposed to murder, was committed. A review of the trial evidence establishes Mr. Strong did not make that showing.
Mr. Strong testified in some detail about the victim pulling a gun and aiming it at him. Mr. Strong reacted by shooting his weapon first. Once the victim allegedly tried to reach for the gun after being shot, Mr. Strong fired once more. The defendant's testimony, then, clearly supported an instruction on self-defense. It did not, however, justify an instruction on first or second degree manslaughter. Unlike Schaffer, there was no evidence that the defendant mistakenly believed he needed to use force. Likewise, there is no evidence that he needed to use force, but mistakenly used excessive force. If the victim was armed, which was a disputed fact in this case, the shooting was justified. If the victim was not armed, there was no justification for the killing. If Mr. Strong thought Mr. Irby was armed, but he actually was not, then there might have been a basis for an instruction on manslaughter. However, there was no evidence presented that defendant mistakenly believed Mr. Irby was armed when he was not. A juror, or an objective person who viewed the evidence, might think that perhaps Mr. Strong was mistaken about seeing a gun. However, that is not the affirmative evidence necessary to permit instruction on a lesser offense. Rather, it is simply repetition of the error made by the Wilson court which our Supreme Court disapproved of two decades ago. See State v. Buzzell, 148 Wn. App. 592, 604, 200 P.3d 287 (2009) (citing State v. Charles, 126 Wn.2d 353, 894 P.2d 558 (1995)).
See footnote 3.
Here, the defense theory was that Mr. Irby did have a gun, but that a witness had disposed of the weapon prior to the police arriving at the scene. RP at 1310. The defense never claimed that Mr. Strong was mistaken in his belief that Mr. Irby was armed. There also was a very logical reason for that. If Mr. Strong admitted that Mr. Irby was not armed or that he was unsure whether Mr. Irby was armed, then there would have been no factual basis on which to have a self-defense instruction. Mr. Strong's hope for an acquittal would have been baseless. Having received the benefit of a self-defense instruction, he should not also get a lesser included offense based on a factual theory that he eschewed at trial and which was inconsistent with his own testimony.
In argument to the court, the defense contended Kelly Stout disposed of the gun. RP at 1194. Defense counsel did not expressly name her in closing argument as the person who removed the weapon.
If counsel had argued a theory of the case contrary to his client's testimony, this appeal undoubtedly would have been focused on a claim of ineffective assistance of counsel for arguing a theory inconsistent with the testimony and the desire of the client for an acquittal instead of a conviction for a lesser crime.
But see State v. Bandura, 85 Wn. App. 87, 931 P.2d 174 , review denied, 132 Wn.2d 1004 (1997) (unsuccessfully arguing counsel ineffective in successfully obtaining lesser included offense verdicts over client's objection).
The majority reasons that a jury could have believed Mr. Strong's testimony that Mr. Irby was armed, but still have found the second shooting was reckless because it was unnecessary in that Mr. Irby "no longer posed a threat" after having been felled by the first shot. Majority Opinion at 7. That argument disregards both the testimony of Mr. Strong that he believed Irby still was trying to shoot him and the fact that Washington does not require one who acts in self-defense to retreat. State v. Redmond, 150 Wn.2d 489, 493, 78 P.3d 1001 (2003). Either Mr. Irby did not have a gun, in which case Mr. Strong lacked any justification to shoot him at all, or Mr. Irby did have a gun and was trying to use it, justifying Mr. Strong's decision to fire a second shot since he was under no obligation to retreat. Once again, there was no evidence that Mr. Strong was mistaken about the need to use force.
When it has been appropriate to instruct on manslaughter because of reckless use of force, it has been in the situation where the force used was totally disproportionate to the alleged threat. In Schaffer, the defendant admitted that the victim did not have a weapon. Shooting an unarmed man was certainly at least reckless conduct under the circumstances. However, here, shooting an armed man who was still trying to shoot back is not reckless conduct — it is, instead, justifiable behavior.
In State v. Bergeson, 64 Wn. App. 366, 824 P.2d 515 (1992), the court concluded that shooting a man who threatened the defendant with a knife did not involve reckless conduct justifying instructions on either degree of manslaughter. Much of the analysis in Bergeson is clearly inconsistent with Schaffer and the case is therefore of dubious vitality.
The trial court properly assessed the situation. There was no evidence that Mr. Strong mistakenly believed Mr. Irby was armed. There likewise was no evidence that the force used was out of proportion to the perceived threat. Only by disregarding the very evidence that justified the use of force in the first place could a court find a factual basis for believing the force was excessive and, therefore, reckless behavior justifying a first degree manslaughter instruction. However, our Supreme Court has already noted the fallacy in that type of reasoning and has rejected lesser included instructions based on failure of proof. Fowler, 114 Wn.2d 59; Speece, 115 Wn.2d 360; Charles, 126 Wn.2d 353.
There also is a second reason that gives me pause concerning the majority's result. That is the fact that the lesser included offenses were not wanted and were inconsistent with the defense theory of the case. While it is harmful error to not give a lesser included offense instruction when it was properly requested, State v. Parker, 102 Wn.2d 161, 166, 683 P.2d 189 (1984), it does not necessarily follow that is the case where the defense does not want and does not argue the lesser included offense. Here, defense counsel essentially sought the manslaughter instructions to either set up an issue for appeal or to encourage the jury to compromise for the sake of compromise rather than because the evidence suggested it was the proper verdict. Nonetheless, since the parties do not argue this point, I do not base my opinion on it.
This case did not involve a mistaken view of the facts. Therefore, Schaffer and its predecessors are distinguishable. There was no factual basis for a manslaughter instruction under the facts of this case. Accordingly, the trial court's decision to deny the lesser included offense instructions was proper. The conviction should be affirmed.