State v. Bingham

Skarperuds' quo. of the status review, alteration RAP 18.1. is attorney granted. fees motion the commissioner's modify motion Skarperuds' dismissed, except is appeal and the ruling granted civil regular and continued is reinstated counterclaim 42(b). CR stricken. being instead of docket J., concur. Green, C.J., and Thompson, May 1985. denied Reconsideration May 8, Two. 7464-8-II. Division 1985.] [No. v. Charles Respondent, Washington, The State Bingham, Appellant. Dean (of Kathryn Timothy Jones, Ross, K. Ross Ford Mallory), appellant. & Luke, Casteel for Prosecuting Attorney, respon- Bruneau, for David H. dent. whether C.J. We areasked to decide Worswick, strangulation is alone suffi

time to effect manual death finding in the absence cient to of finding. any supporting We hold it such a of other evidence Accordingly, of the conviction Charles is not. we reverse degree Bingham aggravated first murder. We also Dean for App. 720, Smith, Wn. overrule State v.

(1975),1 can be read to hold otherwise. that it to the extent living at Cook, adult the Laurisden

Leslie retarded raped strangled Angeles, was on Febru- Home in Port ary Bingham the last she was with whom 1982. got Angeles-Sequim them off the Port was seen. The of two p.m. They February together Sequim 15. about on bus grocery and two residences. The last of these visited a store Bingham for ride was asked back Enid Pratt's where they Angeles. refused, would he was he said Port When Olympic infrequently They Old traveled hitchhike. took body Highway. days in a later, Three Cook's discovered approximately Pratt residence. field Vi mile expert that, cause trial, in order to At testified State's by strangulation, had to have assailant would death Cook's pressure on her wind- maintain substantial and continuous cert, (1977). denied, 1Affd, U.S. Wn.2d pipe The State contended minutes. for 3 to 5 enough that the murder an inference to raise alone was agreed judge premeditated. of State because The trial premedi supra.2 issue of Therefore, it allowed Bingham jury. of go convicted tation aggravating rape being aggravated murder, first Bingham appeal, concedes counsel for circumstance. On justified; guilty finding he chal murder was that a contending premeditation, only finding lenges agree. support it. We insufficient to evidence was separate and distinct element is a Premeditation mental It involves the weighing reflection, thinking beforehand, over period reasoning short, time, however after for a Brooks, State v. kill is formed. intent which the required The time P.2d 217 permit strangulation deliberation. is sufficient manual 9A.32.020(1); Gaines, 144 Wash. See RCW cert, (1927), However, denied, 277 U.S. 81 P. 508 enough. must be sufficient is not The evidence time alone only support had not the defendant the inference that actually so. To he deliberate, the time to but permit require anything the to focus on less would process killing of the mental exclusion to the method of premeditation. separate of element involved in the begin- concept sure had a slow but of years history. legal ning Anglo-American than 500 More in surprising ago, English jurists conclusion the not arrived at deserving of the most the those worst criminals—and preparation. opin and of 2In there was some evidence of motive however, ion, sharply can be read to hold the but does not focus on this evidence premeditation. It can also be read to hold alone sufficient to time element preceding killing and required, the to events more is inasmuch as it refers surrounding 12 passing the child's death". reference to "the circumstances makes up purpose referring clear this confusion. in Smith is to at 732. Our Supreme Court decided before our also be noted that Smith was It should Green, beyond in State v. 94 adopted a reasonable doubt standard enunciated the sup- (1980), sufficiency testing of the evidence for the jury finding. port a planned punishment—were kill those who ultimate began the movement classifica- then did so. Thus toward resulted in of the death homicides that restriction tion of penalty involving prepensed" "malice or "malice to those Washington's aforethought."3 first criminal code was When Legislature 1854, language in Territorial abandoned this enacted the phrase pre- used the "deliberate and archaic defining first It meditated malice" thereby separation between malicious intent made a clear arriving deliberating at before and the of intent.4 recognized Supreme the need for evidence of

Our Court Arata, in State v. of deliberation both time for and fact (1909). Although it reversed a 185, 189, P. Wash. portion because a conviction murder approved the erroneous, it remainder the instruction saying: instruction, said, substance, the court law bar, In the case upon specific reflects time; if the man act a knows no sufficient; time act, it is

moment antecedent long; premeditation need if that not be deliberation and show furnishes room for reflection facts existed, is sufficient then it such reflection upon point with and closed instruction appreciable space statement: need no "There intention to kill and of the between formation Put thought" ambiguous accused's Wash. Director 3See Confusion & Lee L. Rev. In a recent Sayre, Planning involved state of and should be discarded Pub. inevitably crept Mens mind. See case, Prosecutions, Back Into Rea, one of opinion Harv. the Premeditation in as to ^[1974] See English L. of Lord Regina Rev. favor of 2 All E.R. 41. whether Justices Hailsham language (1932); Walther, Doherty, Requirement pointed concept more St. out that the term was Cox Crim. Marylebone, descriptive of "malice Should Murder?, Cas. Virginia Hyam of the afore 279, Shirley, 277, 1854, 78, 12; p. 60 373 P.2d State v. Wn.2d 4See Laws § 777

557 destroyed killing." By last words the court these few gave good statement, in entire once all frequently has held a rule which court This error. erroneous. was reversible Wash, (Italics ours.) analysis seems Arata, at 189. This 56 although imperfectly implicitly recognized, have been expressed, as well.5 in more recent cases appears frequently subject premeditation in way Washington However, discussed in a cases. it is seldom guidance judges objective in trial clear, that affords sufficiency determining it. evidence to each one Nevertheless, these cases reveals review of sufficient, has there has been found where the evidence beyond a could time from which some evidence been included, has This evidence infer fact of deliberation. planning acquisition weapon, motive, alia, inter directly killing. White, See State v. 60 Wn.2d related cert, (1963); (1962), denied, 551, P.2d 942 U.S. 883 374 375 (1960); 344, v. Ross, v. 56 P.2d 885 State State (1985); App. Lindamood, 517, State 39 Wn. App. Commodore, 38 Wn. fact of deliberation

Unless evidence of both time for and required, any premeditation be inferred could requires effecting more than where the means of death merge practical purposes, it moment in all would time. For proof premed- proof intent become intent; with would separate. Premedi- However, itation. two elements are Brooks, intent. State tation cannot be inferred from (court (1962) White, 5E.g., evi found P.2d 942 State v. 60 Wn.2d span adequate), assaults, premeditation repeated then held dence of from cert, Trickel, App. denied, (1963); P.2d 139 375 U.S. (instructions (1976) must have been suffi that there held sufficient inform Tikka, App. fact); P.2d 101 8 Wn. time and State v. cient deliberation (the (1973) the time separately behavior and defendants' court considered the Lanning, sufficient); 487 P.2d 5 Wn. both element and found (1971) sufficient, apparent (court found held time then him). weapon brought fact that defendant with 558 supra.6 Commodore, 876; State v.

Wn.2d at by proved evidence, direct or it can can Premeditation be by proved where the circumstantial evidence inferences jury sup- the evidence drawn reasonable and are porting jury's findings Luoma, State v. is substantial. 28, There was such 88 Wn.2d 558 756 no evi- P.2d here, dence either or circumstantial. direct Bingham had known There was no evidence Cook February By a kill he had motive to her. before 15 or that companion they When chance, bus. Cook's took same Sequim Bingham go her, with on to the bus refused to got back to the Laurisden Home offered to see Cook apparently his he still intention when asked later. That was It residence. could be inferred that for the Pratt a ride at away, A mile he decided and the field to between there rape jury could infer from this A not her. reasonable beyond planned he kill also her. doubt reasonable premedi finding There evidence is no other strangulation, more, leads us The without tation. fact only speculated as to the mental conclude that enough. not This is involved premeditation finding stand. cannot dispose question of how to

There remains difficult Bingham Bingham is concedes that this case. Counsel for 9A.32.050-( guilty RCW murder. See least of second l)(a).7 murder on second was instructed necessarily req found the as a lesser included offense it did. See the verdict uisite elements reach order to (1891); State State, P. v. 504, Watson v. 2 27 226 Wash. Duncan, Ross, Shirley, supra; supra; also State v. State 101 6See State v. 122, (1911); Blaine, (1918); P. 660 172 P. 116 Wash. 64 Wash. State Coella, Rutten, (1895); 3 Wash. P. Wash. State v. State v. 43 P. 30 Tikka, (1891); supra. 9A.32.050(l)(a) provides: 7RCW (1) person guilty in the degree. of murder second in the second A "Murder degree when: ”(a) person premedita- but without intent to cause death of another With tion, person;..." a third death of or of he causes the such on (1982), overruled P.2d Plakke, App. 31 Wn. Davis, grounds other supported have also would the evidence We believe 9A.32.030(l)(c). How RCW murder under felony finding felony murder. with charge Bingham not ever, the State to instruct correctly refused judge The trial crime as of the lesser included offense was a felony murder aggrava requirement satisfy In order charged. murder was find that required tion, the jury of the or in furtherance in the course of either committed 10.95.020(9). However, murder stat felony RCW rape. in the both be committed the offense requires ute RCW 9A.32- rape. of the and in the furtherance course here a discussion .030(l)(c).9 offering We will refrain from to note the It will suffice of these terms. meanings mean two terms Legislature intent of the evident Gimlett, Wn.2d Marriage In re See things. different (1981). know whether impossible It is 699, P.2d 450 only one. elements or the existence of both found felony murder unless sentencing for remand for We cannot found expressly the jury the record that it is clear from Green, See State v. crime. the elements of that each of Jones, 22 Wn. (1980); State 216, P.2d 628 Martell, 22 (1979); Wn. State 447, 591 P.2d 796 App. (1979). circumstances, In 591 P.2d 789 App. 10.95.020(9) (b) provides: 8RCW of, of, "(9) in or in in course furtherance was committed The murder following flight . . . one of the crimes: immediate "(b) degree;' Rape in the first or second 9A.32.030(1)(c) part: provides in relevant 9RCW (1) degree. person guilty in the first A of murder first "Murder in the . . . when: " (1) robbery, in the (c) attempts either the crime of to commit He commits or (3) burglary (2) degree, rape in the degree, second in the first or first or second (5) kidnapping, (4) in first or second degree, degree, in the first arson in immediate and; crime or in furtherance of such degree, course of and other therefrom, he, participant, the death of causes flight or another participants;..." than one of the murder the first charge felony not State's election 4.3; such a now. CrR charge precludes instance cert, denied, 739, 638 P.2d Anderson, 96 Wn.2d U.S. 842 entry judgment Remanded for sentence

Reversed. for second J., concurs.

Petrich, (dissenting)—I J. would have this court Alexander, in the similar case of State v. adhere its decision (1975), affd, 88 Wn.2d cert, denied, 434 U.S. 876 Consistent I believe that where evidence shows with that holding, slowly by strangulation manual that death was caused here, trier as we have a rational of fact circumstances such a reasonable doubt beyond could be convinced death after intentionally caused deliberation perpetrator premeditation. view, the law this issue is majority on Contrary law Washington unsettled. and statutes do unclear and premeditation, forcing us provide precise not definition relationship the crime and the to examine the nature of "Pre- concepts of intent between the thinking mental of encompasses the meditated" reflection, beforehand, weighing reasoning Brooks, time, State v. of short. for a however period (1982). 9A.32.020(1) pro- P.2d 217 RCW Wn.2d vides: required

(1) premeditation chapter, used in this As of murder of the crime conviction in order to moment more than a must involve time. point mine.)

(Italics evidence, by circumstantial may proved be Premeditation evidence from that jury inferences drawn where the Wn.2d Luoma, v. reasonable. State are from the facts premeditation infer may A jury time in appreciable had crime when the defendant kill, may such time though intent which to deliberate Smith, supra. State very short. A essence. number literally be of the Time, then, may is prop- the element of held that cases have time to death. lapse evidence of inferable from erly (1979); State P.2d 799 91 Wn.2d Griffith, State v. Harris, Luoma, supra; P. 508 Gaines, 144 Wash. (1963); cert, denied, 277 U.S. 81 (1927), the evidence revealed supra, v. Griffith, In State against basketball bounced a ball playing of children group defendant, home. The wall of defendant's the outside with this, some harsh words upset by engaged apparently afterward, Shortly their ball. two and took the children defendant, home men, to the went to defendant's strangers a discussion on the During the ball be returned. to ask that and shot one of the produced gun the defendant porch, supported held that the evidence the ver- men. The court It stated: premeditated dict of of time in which these events tran- period Although minutes, there sufficient approximately spired could have found that from which evidence defendant upon formulated an intent and deliberated question Premeditation is a for the shooting. prior . . jury. at 577.

Griffith, 91 Wn.2d Luoma, plan- there was no evidence of supra, In State v. However, of the crime itself. the court independent ning transport the fact that the murderer had to held that miles, bank, her there steep place take her down a victim 5 with a rock was sufficient evidence large and crush her head appreciable period to find that an permit the defendant to have deliberated. elapsed court stated: intent, premedita- proof was no direct there

Although tion inferred logically where intent may still be found . . . . . . could facts of the crime from the [t]he impul- conclude the death was not the result that of an sive, spontaneous act.

Luoma, 88 Wn.2d at 33-34. This suggests, contrary at majority's position page premeditation that can be solely the effecting inferred from method of death. Harris, In State 62 Wn.2d at our Court Supreme premeditation found the evidence of to be sufficient where the head times the victim struck on several instrument, face, struck in with a blunt the and then stran with a vacuum cleaner The was the gled strangling cord. immediate cause of death. The court held that the premeditation could infer the circumstances of even killing though was unwitnessed killing The testify. "appreciable period" defendant not "elapsed beating time that between the first blow of the permit to choking [causing perpetrator death] case, kill ..." An form an intent to earlier to Wash, Gaines, involved a death caused held is true choking. similar The court that: "It beating alone, pre fact of does proof killing, that not raise premeditation or but sumption premedita may be inferred from the tion or deliberation circumstances killing." to for a to find majority suggest seems preceded deliberation it must have or hold, words, kill. In formation intent other seems be no impulsively if the intent to kill is formed there can case law leads me to con- logic Neither nor premeditation. for the cur with that conclusion. fact of deliberation If key ingredient requisite is caused, is for deliberation before death opportunity there is of an the death is not result may find very It is not supra. act. See State Griffith, impulsive therefore, analysis speculation to engage productive, kill or first, of intent formation over which occurred suggests pre- sense on intent. Common reflection already if on reflecting much one is exists as meditation deliberating kill as it when one intent does formed and deliber- case, reflection kill. In either or not whether appreciable present, is for an if the deliberation are ation killing reflection, then follows this If the time. killing. premeditated is a presented to evidence was case,

In uncontroverted this by jury effect death to 5 minutes to that it takes 3 justified jury strangulation. was, therefore, The manual elapsed period appreciable concluding from time that an placed hands on his hand or the defendant the time might regardless then his intent throat, of what the victim's strangulation her death. caused been, the act of until have concluding justified further be A would done, that the case, it must have this as circumstances of necessarily dur- his attention riveted have defendant would ing application period what effect the of time on windpipe might pressure "child-like" of this have on the large significant was a man that the defendant It is woman. sign struggle kill- scene of the at the there was little and ing. the result the death was not These facts indicate that attempt flowing impulsive spontaneous from an act an or short, In sexual contact. or to effect to overcome resistance compels lapse crime scene time and of the the evidence of ample opportunity had that the defendant the conclusion premeditate intended to on what he and to deliberate ultimately by choking that he his victim. The fact achieve justifies by strangulation the conclusion her death caused reflecting deed for the kill on the to after that he intended requisite time. majority's part that conclusion

I with the evidence so this where the in a case such as not inferable is period I strongly for deliberation. of time establishes a although premeditation agree cannot automati- would elapsed cally time, be should inferred from what it permitted determine the evidence to examine to premeditation. The both intent about tells them appreciable suggests majority evidence of enough I do not While establish deliberation. to alone is not pre- prove tending show to or the evidence concede that time, limited I this conclusion meditation here is believe It contrary particularly law discussed above. is case Smith, supra, major- the case that contrary In which "classic" ity would overrule. case lacked premeditation, lying such as planning evidence of his wait, defendant's act grabbing the court held him by long enough neck under water holding son of intent kill provided drown him sufficient evidence premeditation. majority attempts to distinguish was evi- present in Smith there stating motive and There was none. preparation. dence of court stated: no proven, motive was

Although definite with substantial evidence of the existence of presented . . . mine.) (Italics 732. The evidence of at in primarily Smith of the fact that consisted son at midnight defendant had taken his out the him. facts the to observe drowned Those alone caused court period elapse." did "appreciable that in by The other discussed the court Smith only evidence the to other than time involved premeditation, in reference fact the had discussed drowning, in the that defendant prior Though they wife separation from his the did, they if separate, agreed had not to that decided children, custody including of their the vic- she would have than facts evidence of motive the provide tim. less Those It is difficult to that a facts this case. believe surrounding he be motivated to kill his child because person could his wife. It is easier losing custody feared or wanted hurt here, kill in that, defendant chose to order to believe as rape. a to silence his victim conceal elapses I the time that am led to conclude of the act which causes death to the commencement to find jury be to allow a may of death sufficient moment of evidence notwithstanding absence act causing commencement of the before the planning the rule in this this has been death. I would submit harmony in with our RCW a rule statute. state 9A.32.020U). permitting jury majority seems concerned that premeditation in a as allow infer case such this would killing exclu- of the to focus on method concerning process involved evidence the mental sion of suggest disagree. I I do not element of mental allowed exclude evidence of that a process. should be precluded they hand, should not

On the other killing very considering if nature the method of its from provides perpetrator. the mental of the clues to only Legislature must have intended I can assume distinguishing murder, second between first and establishing penalties greater murder, discourage opportunity killing to think when one has an continuously period during which it. The time one about pressure on victim's to block exerts sufficient a throat breathing turn, which, in and then causes unconsciousness opportunity person significant death, for a affords change person consciously rejects oppor- If a of heart. tunity pressure period, may person to lessen the in that required, the be found to have deliberated. The more time probability greater the a slow time to even thinker had reflect. correctly majority there is observes this case prior planning. tes-

no evidence of tify The defendant did not trial not know mental state and thus his except investigating as he revealed it to officers. What always intends is difficult thinks or to determine any pry However, we cannot into the mind. because gauge is often best his or her what does thinking. upon The fact finder is called to determine premeditated from the facts sur- whether defendant they rounding killing. Here, concluded, as well mentally might, that defendant this retarded took County, raped young woman to a secluded area of Clallam difficulty strangled minutes her, her with little 3 to proceeded dead, her dead bite until she was then From trier of fact could con- body. this evidence rational beyond a reasonable doubt defendant clude sufficiently his reflect on deed capable reflecting him in the guilty premeditated to cause to be murder supports the I would degree. The evidence verdict and affirm. 10, 1985.

Reconsideration denied June September 1985. granted by Supreme Review Court May 7, Division Two. 6932-6-II. [No. 1985.] Department Raymond L. Respondent, Snyder, v. The Appellants. al, Industries, Labor and et

Case Details

Case Name: State v. Bingham

Court Name: Court of Appeals of Washington

Date Published: May 8, 1985

Citation: 699 P.2d 262

Docket Number: 7464-8-II

Court Abbreviation: Wash. Ct. App.