Opinion
No. 28933-4-II
Filed: December 23, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 97-1-02259-4. Judgment or order under review. Date filed: 06/07/2002.
Counsel for Appellant(s), Thomas Edward Doyle, Attorney at Law, PO Box 510, Hansville, WA 98340-0510.
Patricia Anne Pethick, Attorney at Law, PO Box 7269, Tacoma, WA 98406-0269.
Counsel for Respondent(s), Kathleen Proctor, Pierce County Prosecuting Atty Ofc, Rm 946, 930 Tacoma Ave S, Tacoma, WA 98402-2102.
Terrance Terriel Powell appeals his conviction for first degree murder under means alleging that he caused a death under circumstances manifesting an extreme indifference to human life. We affirm.
Powell was previously convicted of this offense and we reversed that conviction based on juror misconduct. We set forth the facts of the case in the unreported decision, State v. Carter, No. 23819-5-II, 106 Wn. App. 1029, 2001 WL 567694 (Wash.Ct.App. May 25, 2001) (unpublished). This appeal is from the second trial where Powell was convicted, but the facts remain the same. We will repeat them here only to the extent that this crime arose from multiple shootings from a car, resulting in multiple assaults and a death.
The only significant difference in evidence between the two trials is that Kimonti Carter, the shooter, and Powell, the driver, testified in the instant trial. Carter testified that he fired the shots, did not plan to shoot anyone, did not tell Powell that he was going to shoot, and did not talk to Powell while he was shooting. Powell testified that he did not know that Carter had a gun, he heard shots and thought he was being fired on; he was accelerating to get away; he did not know Carter was going to shoot; he did not know who Carter was shooting at; he did not think he was creating a grave risk to anyone by letting Carter in the car with the gun, and he did not solicit, command, request, or encourage Carter to commit murder.
Powell contends that he was entitled to a lesser included jury instruction on first and second degree manslaughter, just as he argued in his first appeal. Our analysis of the law has not changed since our first decision; therefore, we will not repeat those doctrines applicable to lesser included offenses. We still apply the two-pronged test set forth in State v. Workman, 90 Wn.2d 443, 447-48, 584 P.2d 382 (1978). The legal test, the first prong of the test, is satisfied as we found in our prior decision. Here, again as in the first appeal, the focus is on the factual prong only: that is, whether the evidence supports a reasonable inference that the defendant committed the proposed lesser offense instead of the charged greater offense. As we stated in the former case, `some evidence must be presented which affirmatively establishes the defendant's theory on the lesser included offense before an instruction will be given.' Carter, 2001 WL 567694, at *10 (citing State v. Fowler, 114 Wn.2d 59, 67, 785 P.2d 808 (1990)).
As we held in the first appeal, based on the evidence without the testimony of Carter and Powell, no rational juror could find that Carter acted with recklessness or criminal negligence instead of extreme indifference. We hold that similarly with regard to Powell, no rational juror could find that he acted with recklessness or criminal negligence instead of extreme indifference. Because the additional evidence would have led to total exoneration, not conviction of a lesser included offense. Essentially, their testimony is a denial of knowledge and any aiding and abetting on the part of Powell. Considering all the evidence that would support either of the lesser included offense instructions proposed. Thus, the evidence still did not satisfy the factual prong to show that Powell committed only the lesser offense. The court properly refused to give the proposed instruction.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
MORGAN, P.J. and SEINFELD, J., concur.