STATE v. MILEY, 124 Wn. App. 1039 (2004)

No. 49877-1-IThe Court of Appeals of Washington, Division One.
Filed: December 20, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of Island County. Docket No. 00-1-00193-3. Judgment or order under review. Date filed: 01/22/2002. Judge signing: Hon. Alan R Hancock.

Counsel for Appellant(s), Nielsen Broman Koch Pllc, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Jennifer K. Ryan Gilman, Barrett Gilman Ziker, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.

David Bruce Koch, Attorney at Law, 1908 E Madison St, Seattle, WA 98122.

Counsel for Respondent(s), Gregory Marshall Banks, Attorney at Law, Island Co Pros Atty, PO Box 5000, Coupeville, WA 98239-5000.

GROSSE, J.

In re Personal Restraint of Andress[1] requires reversal of Linda Miley’s second degree felony murder conviction. However, her conviction for manslaughter in the first degree remains.

FACTS
The facts are well-known to the parties and will not be restated. Miley was charged by Third Amended Information with one count of Murder in the First Degree (premeditation) (Count I), one count of Felony Murder in the Second Degree, with a predicate felony of Assault in the Second Degree (Count II), and one count of Theft in the First Degree (Count III). The State also alleged Miley was armed with a deadly weapon. The jury found Miley guilty under Count I of the lesser included offense of Manslaughter in the First Degree, guilty of Felony Murder in the Second Degree under Count II, and not guilty of Theft in the First Degree. The jury found she was armed with a deadly weapon. This appeal follows.

ANALYSIS
Linda Miley first argues her second degree felony murder conviction must be vacated under the holding of In re Personal Restraint of Andress.[2] We agree.

Following reversal of the felony murder conviction, the question remains as to whether Miley can be sentenced on the manslaughter conviction. She argues she cannot, that reviving the manslaughter verdict would be a violation of double jeopardy.

The double jeopardy clauses of the Fifth Amendment and article I, section 9 of the Washington Constitution prohibit multiple punishments for the same offense.[3] Felony murder and intentional murder, or its lesser included crimes, of the same victim are alternative means of committing one offense, and are therefore the same offense for double jeopardy purposes. Miley’s argument is correct that convicting and sentencing a defendant for both felony murder and first degree manslaughter for a single homicide violates both state and federal guarantees against double jeopardy.[4] But that is not what happened in this case.

Miley was not convicted of and sentenced to both charges. Instead, the sentencing court entered judgment and sentenced Miley only on the felony murder charge.[5] Although the sentencing court may have technically misused the term `merger’ here, the court properly understood that felony murder and manslaughter are alternative means of committing one crime, and thus, there could be only one conviction for which punishment is issued. In State v. Johnson,[6] this court noted that the sentencing court’s use of the term `merger’ did not mean it necessarily committed error, even though the doctrine of merger did not apply.[7] The Johnson court held that the use of the term `merge[d]’ was not to invoke the merger doctrine, but to create the effect of a merger resulting in only one conviction.[8] The Johnson court determined the trial court properly understood the alternative means of the two charges and convictions and, further recognized there could be only one punishment for the conviction.[9] The same is true here. By sentencing Miley to one crime, the court acted appropriately and there was no double jeopardy violation because she did not receive multiple punishments.[10] Further, even trial defense counsel agreed that the court’s position was appropriate.[11]

In Andress, our Supreme Court noted that the State could initiate any lawful proceedings that did not conflict with its decision after vacation of a defendant’s felony murder conviction in order to prevent a defendant from benefiting from a windfall as a result of the sentencing error.[12] This court will place Miley in the same position she would have been in had there been no error.

The underlying judgment set forth that Miley was convicted by a jury of manslaughter in the first degree as well as the felony murder conviction. However, because Miley was not punished for that conviction due to the verdict and sentence on the felony murder charge, once that charge is vacated the remaining conviction is left for sentencing. The case must be remanded to the lower court for entry of judgment and sentence on the conviction for manslaughter in the first degree.

Miley argues that if this court remands for judgment and sentence on the manslaughter conviction, then she challenges the underlying conviction due to instructional error. Miley asserts she was entitled to a diminished capacity instruction where manslaughter in the first degree, and therefore recklessness, was at issue.

However, `[j]ury instructions are sufficient if they permit each party to argue his [or her] theory of the case and properly inform the jury of the applicable law.’[13]

The jury was instructed:

Evidence of mental illness or disorder may be taken into consideration in determining whether the defendant had the capacity to form premeditation and/or intent.

The court declined to give the instruction proposed by the defense which added the following language to the end of the above instruction, `whether the defendant acted recklessly or with negligence.’

The trial court declined to give the additional language because it found that Dr. George Harris, Miley’s expert, did not testify about the effect of diminished capacity on the mental states of recklessness and negligence. Rather, he confined his testimony to premeditation and intent. To establish a diminished capacity defense, a defendant must produce expert testimony demonstrating that a mental disorder, not amounting to insanity, impaired his or her ability to form the culpable mental state to commit the crime charged.[14] As noted by the trial court, Miley’s expert opined that she could not form the intent to murder, assault or commit theft, but failed to offer an opinion regarding any lesser mental states, specifically any mental state necessary to commit a reckless or criminally negligent act. Therefore, the trial court did not err in refusing to give the expanded instruction.

In her pro se brief Miley asserts a large number of claims. We have fully reviewed the claims and find they have no merit. Accordingly, we reverse Miley’s second degree felony murder conviction as Andress requires, and remand the case to the trial court with directions to enter judgment and sentence on Miley’s conviction for first degree manslaughter.

KENNEDY, J. and BAKER, J., concur.