jury improperly instructed that felony murder is a lesser included offense of first degree murder with aggravating circumstances; jury did not convict of first degree murder but did convict on felony murder; new trial required
How later courts described this case
- jury improperly instructed that felony murder is a lesser included offense of first degree murder with aggravating circumstances; jury did not convict of first degree murder but did convict on felony murder; new trial required
- remanding for new trial on the offense of felony murder despite error in instructing jury to consider it as an "included offense” of aggravated, first degree murder
- aggravated murder in the first degree is the crime of premeditated murder in the first degree plus a statutory aggravating circumstance
- RCW 9A.32.030(1)(c) should be interpreted to require proof of "in the course of" or "in furtherance of"
Written by the judges who cited it.
The opinion
Utter, J.
(concurring) — I agree with the majority's analysis that felony murder is not a lesser included offense of aggravated murder. However, I must point out that this court has never heard argument on or decided the issue of whether excusing scrupled jurors subjects a defendant to a conviction-prone jury and is thus unconstitutional under the Washington Constitution. The cases to which the majority refers were briefed and decided with reference to the federal constitution. Because this court has not yet interpreted the Washington Constitution's restrictions on this issue, until this court has the benefit of briefing that considers at least the nonexclusive factors of State v. Gunwall, 106 Wn.2d 54 , 720 P.2d 808 (1986), this is still an *597 open question. State v. Wethered, 110 Wn.2d 466 , 755 P.2d 797 (1988).
Despite the similar language of the sixth amendment to the United States Constitution and article 1, section 22 of the Washington Constitution, both entitling defendants to trial "by an impartial jury", this court does not presumptively apply the federal analysis if that analysis is not supported by the language, history and context of our constitution. State v. Reece, 110 Wn.2d 766 , 757 P.2d 947 (1988); State v. Gunwall, supra; State v. Coe, 101 Wn.2d 364 , 679 P.2d 353 (1984). I note that studies are establishing through more and more accurate methodologies the correlation between the exclusion of scrupled jurors and conviction. See Fitzgerald & Ellsworth, Due Process vs. Crime Control: Death Qualification and Jury Attitudes, 8 Law & Hum. Behav. 31 , 74 (1984) ("As the controlled simulations become more realistic, the differences between death-qualified and excludable jurors becomes more pronounced."). Further, I find compelling Justice Marshall's dissent to Lockhart v. McCree, 476 U.S. 162 , 90 L. Ed. 2d 137 , 106 S. Ct. 1758 (1986) noting, among other concerns, the great difference between a jury happening to be stacked against the defendant, and it being stacked against the defendant through a scheme of excuses for cause by the prosecution. Lockhart, 90 L. Ed. 2d at 161 (Marshall, J., dissenting).
This court may well reject the federal analysis on this issue if we are presented with adequate briefing on the Washington Constitution. Nothing in the majority should be read to discourage Ransom in his new trial or future defendants from fully asserting their rights protected by the Washington Constitution.
Pearson, C.J., concurs with Utter, J.