A man serving a nearly 60-year prison sentence after being convicted of shooting a security guard to death outside a Tacoma house party six years ago should get a new trial, the state Court of Appeals has ruled.
In an opinion released Wednesday, a three-judge panel from Division II said Superior Court Judge John McCarthy erred when he did not allow a jury hearing the first-degree murder case against Marsele Henderson to consider a lesser charge of first-degree manslaughter.
The jury convicted Henderson of first-degree murder in the November 2008 death of Victor Schwenke, 18, and McCarthy then sentenced him to 59 years, four months in prison.
Prosecutors argued Henderson, then the member of a street gang, fired into a crowd of people outside a party where members of a rival gang were thought to be in attendance.
The shooting was thought to be retaliation for an earlier gang-related shooting that left one of Henderson's friends dead.
Schwenke had been hired to provide security at the party and was not connected with the shooting of Henderson's friend.
Prosecutors argued at trial that Henderson showed an "extreme indifference to human life" when he opened fire into the crowd.
His defense attorney argued at the time that the jury should have been able to consider the lesser charge of first-degree manslaughter - that Henderson acted recklessly when he opened fire - but McCarthy rejected that argument.
The appeals court sided with Henderson.
"Viewing the evidence in the light most favorable to Henderson, we hold that a rational jury could find Henderson shot into a crowd but that he did so with a disregard for a substantial risk of homicide, rather than an extreme indifference that caused a grave risk of death," the court wrote. "A rational jury could convict Henderson of first-degree manslaughter, while acquitting him on first-degree murder with extreme indifference."
Henderson's trial also was notable because he was attacked in a courthouse hallway by three men while corrections officers were escorting him back to jail following a hearing.