State v. Green

Firestone, at Gertz and expressed opinions its recent who neither to claims are respect persons least with nor public public figures. officials permits jury case majority opinion

The liability who, employed by upon though one impose or control over the county, responsibility no exercised whose governmental county position affairs from scrutiny, entirely public apart one which invited my To scrutiny engendered by charges. the published mind, of the doctrine this is an unwarranted extension New York Times. court a number of assignments

There are before the error, necessary to dis- which the has not found majority cuss. must be it has found them to be The conclusion merit, solely for the without since the case is remanded on I have purpose taking question evidence malice. given assignments serious consideration to those of error in agreement they with the do not majority am trial. granting warrant a of a new

Wright, C.J., Hicks, JJ., and Hamilton concur with J. Rosellini, January En Banc. 44705.

[No. 1979.] Respondent, Washington, Michael State Green, Appellant. Charles Ford, Smith, Ford, Theiler Timothy Withey, K. Kaplan, Strait, Sowa, & Anthony Savage, John for appellant. and Prosecuting Bayley, Attorney, T. and J. Christopher Hunt, Deputy, Robin respondent. for appeal by a defendant J. This is a direct Hamilton, to death. of murder and sentenced convicted reimposition but We affirm the conviction remand sentence. the murder an charged Green was with appellant

The necessary setting as 1/2-year-old girl, Kelly. The factual briefly. may be described understanding to an issues Kelly took a early evening September In the alleyway adjacent an along child for a short walk younger Hill area of Seattle. Capitol to an house the apartment children left for 10 minutes after two Approximately walk, screams were heard within by adults and without Then, the apartment youngster house. reported another Kelly was The injured. mother of the child who had been Kelly with investigated; when she did she her observed alleyway unharmed, child standing near a pool A child, blood. knife nearby. butcher was Picking up her Kelly. she went to look for

Meanwhile, apartment a resident of an who heard had the screams outside. vantage point looked From a on the balcony of his he two apartment, figures could see huddled in the alleyway directly below. recognized Kelly. He The adult, figure, other an off Kelly lifted She up ground. was kicking screaming. and This witness also observed place individual hand mouth in apparent his over her an effort to muffle noise she making. was moments,

Within out Kelly was of the witness' carried sight as holding the individual her turned the corner of the later, A building. few seconds exited apart- the witness his ment, downstairs, ran was appellant observed the who now located recessed stairwell at rear the apart- ment house. holding Kelly. He was clothes were Appellant's blood; Kelly's away covered with ripped were from her body. She pale quiet. appellant He he asked what do could to call help requested an ambulance. so, As body he did took appellant Kelly's the apartment where down. lawn he set it

Shortly thereafter, police arrived on the scene and He of a spoke appellant. gave police description person assaulting Kelly. he claimed to have observed description and a search police was broadcast addition, general vicinity was initiated. appellant yet, explained why body he moved the onto the lawn. As alley appellant person had not been identified as the Kelly. with police

The to the station transported appellant officers order to statement. went with- Appellant along obtain his station, the on- objection. appellant out While was at witness, Another a 13- investigation the-scene continued. description provided forward and new year-old boy, carne closely matched description This new Kelly's assailant. appellant's. state-

Meanwhile, appellant's a detective had obtained description of ment, unusually minute included an which assaulting Kelly. he observed appellant asserted person asked was the detective completed, After statement it could be his so the blood on clothing to remove appellant so, the noticed blood did detective typed. appellant When undershorts, spot thought, his too he have large, on through approximately At appellant's pants. soaked moment, that a witness same word reached detective was strug- had the individual who appellant described as appellant then alley. Only in the gling Kelly with advised of his Miranda rights charged and arrested. He murder. trial,

At stabbed theory appellant was that State's rape. At Kelly, killing her in the course case, made several appellant close the State's dismiss, court He then rested. motions denied. jury guilty, Washing- The returned a verdict of and under mandatorily imposed. ton law the death penalty was Appellant argues: I. suppressed The court should have his product statement to the detective as it was the of a Miranda interrogation prior custodial conducted without II. trial his warnings; granted court should have information, statutory motion to scheme dismiss 9A.32.030(1) (c)(2) (5) created RCW and RGW 9A.32.045(7) III. equal The trial court protection; violates kill- to convict if it jury erred found permitting IV. The rape ing kidnapping; occurred the course unconstitutional. mandatory penalty death

I gave to the argues the statement he Appellant been since suppressed Seattle detective should have police conducted interrogation product it was the custodial Arizona, Miranda v. 384 U.S. rights. without advice of prior 436

436, 694, 1602, 16 L. Ed. 2d Ct. 10 86 S. A.L.R.3d 974 (1966). all argues interrogation He custodial should include Creach, v. on State 77 questioning, relying station house Vining, State v. 194, 2 (1969), Wn.2d P.2d Wn. 461 329 (1970). 802, 564, 472 App. P.2d 53 A.L.R.3d 390 Creach, In outside a step the defendant was asked to hotel and answer some was admissibil- questions. issue ity of to response questions. the statements made those ques- We held the statements were admissible because the tioning during investigation. the course a routine Gibson, v. from United States we 392 Although quoted (4th 1968), adopt F.2d 373 Cir. we did not the view expressed questioning per therein that station house se v. Vining, State interrogation custodial as suggested supra at 806. Creach, Hilliard, State v. recently 89 Wn.2d

430, (1977), difficulty 573 P.2d 22 we inher- recognized which to establishing judge ent an all-inclusive rule the need for Miranda but we warnings, held that: to

[Ojnce probable officer has cause investigating an has committed an person believe that confronted offense, expected permit the officer cannot be to the sus- At that point, pect interrogation to leave his presence. custodial, suspect be warned of his becomes and the must rights. Creach, v.

(Italics ours.) 198, supra State quoted at Hilliard, in State v. supra at 435. approval reasonable Probable cause to arrest arises when there is within circumstances ground suspicion, supported officer, which would arresting warrant knowledge of a guilty belief that the individual person's a cautious Parker, Hilliard, v. supra; State v. State Wn.2d 79 crime. (1971). Thus, 326, suspicion before the 485 P.2d 60 mere enough is not to turn rou reasonably developed facts are witness into a custodial questioning of a investigatorial tine v. Hilliard, Oregon see supra; State interrogation. Mathiason, L. Ed. 2d 97 S. Ct. 429 U.S. curiam). (1977) (per being police without a statement gave

Appellant so, did At the time he Miranda. his under rights advised of however, no there is evi- station; a police he was located at involuntary. Fur- there was presence dence indicate his procedure ther, testimony it was routine indicates record order to to the station take material witnesses arrived at the sta- At time appellant their statements. insufficient tion, possessed by police the evidence had com- appellant person's warrant a cautious belief suspicions general involved. Whatever mitted the crime by circum- yet unsupported felt may officers have were cause. given probable which would have rise stances free to Therefore, appellant to assume was is reasonable When, however, his clothes appellant removed leave. and was informed that observed blood and detective had been seen person answering appellant's description in then Kelly alley, supported facts struggling crime, follow- committed the appellant a reasonable belief his Miranda of appropriately which he was advised ing rights.

Thus, to the prior of questioning appellant, we hold the his and the detective received clothing time he removed was not investigation description, part general was of accord- police interrogation. His statement custodial not conducted interrogation since the ingly admissible of Miranda. violation II him should against the information Appellant urges next trial, because, of based have dismissed at the outset been facts, could elect upon prosecutor same set of 9A.32.045(7) under RCW charge either murder death) felony-murder under RCW mandatory or (penalty: (5) He 9A.32.030(1)(c)(2) life (penalty: imprisonment). in effect discretion allows charging claims unfettered dif- degrees punishment prosecutor varying to seek This, he crimes. who commit identical ferent persons asserts, denies equal protection Olsen v. Del law. more, 545, 550, State v. 48 Wn.2d P.2d (1956); Zornes, (1970); 78 Wn.2d 475 P.2d 109 U.S. Const. 14, 1, amend. and Const. art. 12. § § statute, first-degree felony-murder in pertinent part, states:

(1) A person guilty murder degree first when: (c) attempts He commits or the crime of commit (2) ... rape

either in the first or second ... degree, or (5) kidnaping, and; in the or first second degree, of and in course furtherance such crime or in immedi- therefrom, he, ate flight or participant, another causes death a person other than one of the participants; 9A.32.030G)(c)(2) (5). RCW The aggravated murder statute states:

A person guilty aggravated murder the first degree when he commits degree murder the first defined in of the RCW or accompanied any 9A.32.030 under

following circumstances: (7) The defendant committed the murder the course of or furtherance of the rape kidnaping crime in immediate flight therefrom. 9A.32.045(7). (Initiative 1.)

RCW No. 316 Measure § It is a principle fundamental constitutional law that no person subjected shall be to any the same offense greater punishment to differing from that which others Delmore, Zornes, Olsen v. supra; State v. may be subjected. supra. statutes, this case we faced with two are one

which generally felony-murder first-degree defines and another types later initiative measure which treats two felony-murder specially by types more those defining as See 9A.32.030(l)(c)(2) aggravated (5); murder. RCW and 9A.32.045(7). Generally special RCW speaking, statutes qualifying general have the effect of more enactments.

439 Guard, 864, P.2d 87 Wn.2d 557 Washington v. Nat'l Wark (1976). 844 measure, the voters initiative

By passing particularly crimes which are identify those to intended of such the status society to elevate to and outrageous expressed it is since We evidence of this intent crimes. have in contained in of the initiative favor the statement (1975).1 And those statements 6 Pamphlet Official Voters and effect determining purpose may considered 113, Wylie, 1 28 Wn.2d ex rel. PUD v. State an initiative. & (1947); v. Labor Lynch Department 182 P.2d 706 (1944). Indus., 802, P.2d 19 Wn.2d 145 265 qualify action was to The clear effect of the voters' statute, By RCW 9A.32.030. existing supplement and statute, qualifying the the voters initiative and passing the essence, repeal which does not thus, a statute enacted incorporates overlays, supplements, but rather 9A.32.030(l)(c)(2) (5). It mur makes RCW reference2 9A.32.030, der, of RCW pertinent as defined subsections rape or furtherance and which occurs the course i.e., crime, separate a distinct and kidnapping, punishment. subject are enhanced murder. Such crimes Thus, of RCW 9A.32- language RCW while the 9A.32.046. (5) .030(1)(c)(2) definitionally, may where be used course of murder support facts and circumstances provide a functions. It would would serve several vital social "Initiative 316 specified murderer; identify those crimes it would deterrence the would-be society; particularly outrageous serve to reinforce and it would Initiative 316 as society's dignity life." Voters of innocent human Official for the and value concern (1975). Pamphlet previously 2Analogous principles law. We have rec found in other areas of are Improve overlay In Leschi ognized and reference statutes. the existence both (1974), Comm'n, 271, Highway we 525 P.2d 774 ment Council v. State 84 Wn.2d 43.21C) (RCW supple Policy Act of 1971 held Environmental State Holly, In Knowles v. mentary existing 82 Wn.2d 513 P.2d law. and overlaid legal terms (1973), recognized We stated the effect of reference statutes. we referring incorporated into the be treated as if made are to which reference is See State ex act, they explicitly just completely written therein. as if had been (1948). Authority Yelle, Bridge 200 P.2d 467 rel. Toll 32 Wn.2d first- or second-degree rape or kidnapping, prosecutor, of virtue the distinct effect of initiative, the voter is left with no discretion but to charge aggravated murder. we discern no Accordingly,, equal protection violation.

m Appellant assigns error to the jury which instructions permitted jurors to appellant convict of aggravated an murder which was committed or more one alternative fatally means.3 He contends the verdict is defective because court, by the trial instructing so to jury, failed insure jurors agree unanimously to the alternative used.

First, appellant two argues separate crimes are upon by instructed an allegation that the in killing occurred of or course rape kidnapping. disagree. We aggravated "To convict of the defendant the crime murder in the first degree, following proved beyond each must elements the crime be a rea sonable doubt: ”(1) day September, 1976, Kelly on or That about the 28th Ann Emmin- ger, killed; "(2) attempting degree rape to commit in the That defendant was first or kidnapping degree; in the first "(3) Kelly Emminger in That the defendant caused the death of Ann rape degree kidnapping course of or in first or furtherance the first degree; ”(4) Kelly Emminger participant crime; That Ann was not a in the "(5) King That the acts caused the death of the decedent occurred County, Washington. you proved "If find from the evidence that elements has each these been doubt, beyond your duty guilty. it will to return reasonable then be a verdict of hand, if, weighing you "On other after all the evidence have a reasonable any elements, your duty doubt as to one of it will these then return a verdict guilty." of not Instruction No. 5. person degree "A the crime of murder in first when commits degree attempts rape he commits or commit the first degree, rape degree, course in the first first of and furtherance of degree, participant in the first the defendant another causes the person participants. of a than death other one if, specific person attempts "A intent commit commit a crime with crime, any step he act which is substantial toward the commission of that does 7. crime." Instruction No. exception No was taken to Instruction No. 7. appellant assigns to which instructions jury 9A.32.045(7). In RCW part language in of error reflect by various committable determining crime single whether crimes described means, and distinct are separate or State intent. instructions, examine the lawmaker's we must (1976). intent is Arndt, 374, If v. P.2d 1328 87 Wn.2d 553 it must unambiguous, of the statute language clear and meaning, conformity with its obvious be construed Irrigation Roza interpretation. for judicial is no room there (1972); King State, v. 633, 497 P.2d 166 Dist. 80 Wn.2d Seattle, 988, (1967); v. P.2d 887 County 70 Wn.2d 425 cf. Arndt, v. supra State at 378. with which we are concerned states:

The statute in the first murder person guilty aggravated A is degree first he commits murder degree when by any accompanied in RCW under or defined of 9A.32.030 circumstances: following (7) the course committed the murder The defendant or rape kidnaping furtherance of the crime flight immediate therefrom. 9A.32.045(7). (Italics ours.) RCW circumstances

By defining specify specific penalty, question voters without crime and enhance the murder, but aggravated intended describe one crime — Further, by various which could be committed means. murder premeditated first-degree analogous statute is alter felony-murder. charged, Where these crimes are another, may means, to one repugnant nate offense, killing, only since upon single instructed Talbott, 431, v. 91 P.2d 1020 committed. State 199 Wash. murder); State v. (1939) premeditated (felony-murder (1939) (indecent liberties); Stuhr, 521, 1 P.2d 479 Wn.2d 96 Milan, 956, 107 v. 185, Rptr. P.2d Cal. 9 Cal. 3d 507 People Chavez, People v. murder); 37 Cal. (1973) (first-degree v. murder); State (1951) (first-degree 2d 234 P.2d 632 (1972) Hazelett, (first-degree P.2d 501 8 Ore. App. murder); (Brachtenbach, supra Arndt, see State v. at 390 dissenting), J., and the cases cited therein.4 clearly single involved in statute this case describes a is, however, offense. It one which can be committed one ways, repugnant or more neither of which is to the other. being jury required so, This verdict was to be unani- guilt appellant aggravated mous as to the long murder, so presented support as substantial evidence each committing of the alternative circumstances or methods supra; supra. Arndt, it. Talbott, State v. State Appellant argues, however, no that there is evidence to support kidnapping. Thus, the alternative method he asserts reversal warranted under the above test. statutory appel- scheme,

Under order to find that lant committed murder necessary jurors alternative, it was for the to find that appellant committed the crime while the course of or in an furtherance of of abduction the victim. RCW 9A.32- .045(7), 9A.32.030(1)(c)(5), RCW and RCW 9A.40.010 and purposes .020. As defined for statute, (a) person by secreting abduct "to means: restrain a either holding place likely or him in found, he is not to where be (b) using deadly threatening to use force". RCW 9A.40.010(2). person's And restrain means restriction "a legal authority movements without consent without and substantially liberty. a manner which interferes with his 9A.40.010(1). RCW

Appellant suggests the evidence is insufficient to sufficiency establish abduction. Review of the evidence is pro limited to a determination of whether the State has tending duced substantial evidence to establish circum jury reasonably stances from which a infer the could fact to proved. Randecker, 512, be v. State 79 Wn.2d 487 P.2d Arndt, noted, 374, that State v. respect, 4It 87 Wn.2d should be 553 Golladay, (1976), in State pertinent v. P.2d 78 Wn.2d 1328 overrules the dicta (1970), opinion. 470 P.2d insofar inconsistent with The same 191 as it is that reasoning applies here. result

443 (1971). necessary quan- In whether determining 1295 exists, for the court to unnecessary it is tum of evidence only It is nec- beyond doubt. reasonable guilt satisfied evi- essary to there substantial for it be satisfied particular element case or the State's support dence Luoma, v. Randecker, State supra; State question. (1977). P.2d Wn.2d heard and case, jury which the

In this the evidence victim, believe, would establish was entitled to be carried clothed, swept off her feet fully physically individual by an away point of initial encounter from the resisted, evidently She fitting description appellant. could, kicking and by child 1/2-year-old an 8 as best muffle attempt screaming. Her resistance was met an of a knife. The victim screams and then use butcher her wounds, on her one a defensive wound had two described as chest, her another her the latter penetrating hand and victim, bleeding stabbing, heart and the aorta. After the where profusely, was removed to a secluded stairwell substantially nude with her then appellant was observed body.

Furthermore, pants outside of shirt and appellant's addition, it was victim's blood. were stained fly appellant's pants station that police noted at the the shorts askew shorts were blood smeared and his genitals. such as to his expose a fashion circumstances, From could rea- jury these facts and sonably appellant attempted physically believe that met alleyway, victim in restrain the when he butcher he used the with her screams resistance deadly accomplishing knife —a force —as a means instructed, statutory Further, in lan- jury restraint. have jurors could by secreting.5 on abduction guage, 5 degree he person in the first when "A the crime of commits any intentionally person commission of another with intent facilitate abducts felony flight or thereafter. by person restrain a either Abduct' means to 444 reasonably isolate,

also appellant believed that wanted conceal, in and hold the victim order to commit his crime of in

rape, and thus killed furtherance of so the vic- secreting tim the secluded alcove of the stairwell.

We are satisfied that there exists substantial evidence from which the jury appellant could infer killed while the course of or statutorily furtherance of the defined offense of kidnapping. Appellant not challenge does sufficiency Thus, of the evidence regarding rape. since there circumstances, is substantial evidence of both applying Arndt, error to instruct jury the alter- native.

IV argument The final we must address is the constitution ,6 ality of RCW 316, the codification of Initiative 9A.32.046 2, insofar as it imposes mandatory death penalty. § Appellant argues it violates eighth fourteenth amendments to the United States Constitution as inter v. Gregg Georgia, 153, preted 859, 428 L. 2d U.S. 49 Ed. Florida, v. (1976); 242, 96 S. Ct. 2909 L. 428 U.S. 49 Proffitt Texas, Jurek v. 913, (1976); Ed. 2d 96 S. Ct. 2960 428 U.S. 262, 929, L. Woodson (1976); 49 Ed. 2d 96 S. Ct. 2950 Carolina, North 280, 944, L. 428 U.S. 49 Ed. 2d Ct. 96 S. Louisiana, Roberts v. (1976); 2978 L. 428 U.S. 49 Ed. Louisiana, Roberts v. (1976); 2d 96 S. Ct. "(a) secreting holding place likely found, or her in a where is not to be she or "(b) using deadly threatening to use force. .". ." Instruction No. 9. n person guilty aggravated degree "A found murder the first as defined 9A.32.045, by punished mandatory RCW shall be sentence death. Once a person guilty aggravated degree, is found murder in the first as defined in RCW 9A.32.045, jury suspend neither the court nor the shall have the discretion to imposition defer the or execution of the of death. sentence shall be sentence Such upon any degree automatic conviction of first murder. The death sen place penitentiary pursu tence shall take at the state under the direction of and Provided, arrangements superintendent ant to made thereof: That the time judge imposing of such execution shall be set the trial at the time of sentence part and as a thereof." RCW 9A.32.046. (1977) (per 2d 97 S. Ct. 1993 52 L. Ed. U.S. curiam). constitutionality urges uphold us to respondent

The First, Supreme Court's failure argues of this law. our justifies in the cases forth a rationale above majority set our in reaching these cases disregarding the effect of decision. case without a rationale subscribed

Theoretically, a only result. general court for its majority stands Decisions, No-Clear-Majority Court Comment, Supreme Decisis, (1956). Study A in Stare L. And 24 U. Chi. Rev. down manda- striking in the series of Court cases Supreme notes, is, tory penalty respondent death statutes there clearly on the majority split The court is lack rationale. should ever be of whether or the death penalty issue employed society. a civilized case,

The in each how result court has reached ever, death mandatory has been consistent: invalidation of penalties. recently reemphasized disap court its has proval mandatory penalty by of the stating: death is essential that the decision allow capital-sentencing [I]t

for may circumstances mitigating consideration whatever particular or the

be relevant either the offender particular offense. Louisiana, ours.)

(Footnote Roberts omitted. Italics supra at 637. clear; a manda- import language

We believe scru- tory penalty death cannot withstand constitutional Thus, disregard tiny. respondent's we decline invitation to Supreme Court on this issue. the decisions of approved man- Respondent points also out a voter to the datory yet subject death has not been penalty case when analysis. It to consider that Supreme urges Court's us case, penalty would uphold with such a the court faced challenge. constitutional against mandatory voter belief initiative

Respondent's be sustained penalty might death such as RCW 9A.32.046 death aspects on troubling based one of more penalty Supreme legisla cases. The Court has invalidated tively mandatory penalties by resting enacted death on the Eighth Amendment. That amendment assures that a state's power punish is exercised within the limits of civilized supra. standards. Woodson v. Carolina, North To deter mine these limits and reach the conclusion that a manda tory penalty death limits, is excess of the the court history, juror legislative looked to attitudes, and enact ments. It then reached the decision to invalidate the man datory penalty by finding death evidence of a societal belief unduly punishment. that it was an harsh Woodson v. North supra. Carolina, respondent argues

But, necessarily that the court would opposite have to reach an result where voters initiate the penalty give approval. evidence of societal While this argument points pitfall resting out the inherent in a consti holding beliefs, tutional on social we cannot conceive the uphold court would RCW 9A.32.046. It has considered the possibility mandatory pen that reenactment of the death alty approval pen evinces a trend toward societal of that alty. rightfully, court concluded, The has and we believe drafting mandatory penalty that the death statutes was misreading multi-opinioned the result of of the court's Georgia, decision in Furman v. 238, 408 U.S. 33 L. Ed. 2d (1972).7 346, 92 S. Ct. 2726 v. Carolina, Woodson North supra yet adopted Further, at 298-99. the court has urged respondent, public perceptions view alone are propriety conclusive on the issue of the of criminal sanc penalty dignity, A tions. must also accord with human concept underlying Eighth which is the basic Amend Gregg Georgia, supra ment. at 173. holdings Supreme of the Court lead us to an ines-

capable Specifically, conclusion. 9A.32.046, RCW which is 7Indeed, among arguments by proponents Washington's advanced man datory penalty Supreme capital death was that the United States Court had ruled punishment mandatory. (1975). must Pamphlet Official Voters This was Georgia, clearly misreading of Furman v. 408 U.S. 33 L. Ed. 2d 92 S. (1972). Ct. 2726 9A.32, of RCW section mandatory penalty death amendments and fourteenth eighth invalid as violates the Constitution. the United States guilty aggra- judgment appellant We affirm the conclusory holding, degree. murder in the first Our vated however, imposed appel- of death on defeats the sentence Accord- to RCW 9A.32.046. pursuant lant the trial court reimposition the cause for ingly, we remand sentence. appropriate Brachtenbach,

Wright, C.J., Rosellini, and Horo- witz, JJ., concur.

Stafford, concur with the (dissenting part) J. —I Miranda, equal protection, majority's disposition analysis I majority's death issues. dissent from the penalty 9A.32.045, mur- aggravated under RCW der statute. mur- proper

For there to be a instruction on which, der in circumstances at degree the first under here, requires issue murder to be committed first-degree kidnapping, the course of or furtherance of there must be I aggravating substantial evidence of that circumstance. not agree with the dissent that there is substantial evidence However, I interpret require- of would not kidnapping. 9A.32.045(7) broadly. ments of RCW intentionally A person commits when he (1) in the vic- ways: restraining abducts another one of two him in not by secreting holding place tim or a where he is (2) found; or likely restraining by using to or the victim For discussed threatening deadly to use force. the reasons dissent, I deadly contemplated in would hold the force 9A.40.010(2)(b) instant case. by RCW is absent Further, I con- agree majority's with the dissent 9A.40.010(1) if to results struction of RCW will lead absurd kid- of a victim is characterized as nonsubstantial restraint Moreover, recognize majority's analysis fails napping. enacting of effort spirit legislature's and intent particularly statute and its of inclusion kidnapping as one of the attendant ele- circumstances that degree aggravated vates murder the first murder. The severity of creation the crime of murder and the only punishment of the attached thereto indicate that sub- independent stantial movement or isolation the murder of contemplated by is the statute. Under the bare facts itself case, committed, of the absence of the murder it is highly improbable permitted prosecutor would have been go jury kidnapping charge. to the on a agree

I incidental with the dissent the mere might restraint and movement of a victim which ing occur dur- genuine the course of a murder are not kid- indicia napping. they part At best are a of the murder itself. characterizing the movement and restraint here as inciden- suggest, tal, I do not as the seems to indi- mean dissent every cate, that under conceivable set facts a movement secreting in of 20 feet or a stairwell would be incidental. solely That which movement constitutes incidental measuring matter of feet and inches. Rather it is a deter- light case, mination made under the facts each totality surrounding circumstances. This characterization as much a consideration of the relation between the precise restraint the murder as a measure of the dis- place Thus, tance moved held. involves evaluation in which the nature the restraint distance is but one fac- tor to be considered.

In the instant case there is no substantial evidence of by secreting holding place restraint of the victim her unlikely where she was to be found.

Hicks, J., J. Stafford, concurs (dissenting) majority's J. concur treat- Utter, —I challenge, equal protection issue, ment of the Miranda majority penalty argument. agree I with the and the death attempt rape that there is sufficient evidence of an majority's treat- However, dissent from I must victim. kidnap- jury which included the of the instructions ment by jury. among ping to be considered issue the matters quite possibly guilty of defendant been found The has killing, repulsive course most crime all—the young abuse, A to overturn child. reluctance sexual a I Nev- one such a conviction and share. is understandable ertheless, I and the conviction must be reversed believe this jury instructions exist case retried serious errors because now, which, if us until the law is will haunt corrected corrected. majority's analysis kidnapping is less on issue crystal difficult to confi-

than For this it is clear. reason dently assuming precise Nevertheless, declare effect. its vitality analysis majority's kidnapping will that the have beyond case, of two it will have at least one alternative consequences It is which must follow from this decision. arguable majority opinion that both must flow from it. The applica- comprehensive seems to make a crime nearly overlapping against person, and ble to all crimes robbery, superfluous rape rendering all statutes on opinion "abduct", term, assault. The directly seems to define the contrary intent to the indications of drafters' contrary to law is the New York after our statute patterned. language majority

Second, its to make seems also every aggra- killing occurring intentional in this state an charged degree, vated which must be murder the first emphasize and tried as I least of these such. that at one consequence opin- majority results must occur possible explain away other, ion; or the but the one ground. conviction must or other rest on one statutory when, scheme, our occurs Under "intentionally only when, abducts" the defendant in the victim. RCW 9A.40.020-.030. "Abduct" is defined (a) secreting person as "to either statute restrain a likely holding place found, him in he where is not (b) using threatening deadly or to force". 9A.40- use RCW .010(2). kidnapping Thus, there can be no victim unless the place likely found, is held where not to be victim or the subjected deadly is to use or the threat of force. possible upon majority

There are three which bases the may relying support finding be to of its sufficient evidence requisite of a here. The "abduction" must be (1) predicated upon through "secreting" restraint (2) place unlikely victim in found, where to be restraint through application deadly force, other than the fatal (3) stabbing, by killing supplied or restraint the itself. (1) (2) require analysis, they Because similar are con- together portion dissent, sidered the next of this while (3) postponed consideration of basis is to a later section.

I entirely contrary any allegation The evidence to secreting holding place the victim in a where she was unlikely apparent recognition In fact, to be found. of this prosecutor any upon the himself disclaimed reliance this provision closing argument. pros- Further, of the law ecutor characterized the which the victim was distance only perhaps point moved as from the initial feet attack. The to which victim location was removed was public, quite despite majority's description outside and Although public perhaps itof as a "secluded stairwell". less point than the which at the defendant first accosted possibly victim, the stairwell cannot be characterized as a place truly "unlikely where the victim was found". to be stairway help The led to a door have from would stairway by victim; been obtainable was a common by routinely used area the residents and visitors multi-dwelling building entirely served. area was nearby visible from a house and from numerous other van- tage points. Conviction based on cannot upon portion of if accord rested the definition we are to any meaning requirement at all that the victim be unlikely held It me where be discovered. seems to only to situa- clearly apply this definition is so intended open public areas its tions of isolation from actual to the facts of this case absurd. application deadly Further, only or use of the threat evidence inflicted actual wounds at force to the victim is the restrain fact, evidence and the fatal stabbing. time of clearly of the facts majority's even characterization time of kill- deadly threat of force until the show no use or other than ing. any No witness testified to form restraint her or carrying the victim off the lifting ground her. As the holding pushing pulling onto her arms and it, "resisted, an the as best majority victim phrases 1/2- year-old could, by screaming." Obviously, kicking child off her carried an inadequate being "best" was resist male; restraining adult capable the was the defendant force, victim deadly without use of and all the evidence did in her. Until the indicates that he so restrain fact wound, the evi- moment the infliction of the fatal under therefrom, produced dence inferences there reasonable satisfactory deadly was no the use or threat of showing of force. the rationale or characteriza- upon "secreting"

Reliance victim, tion of than fatal applied the force to the other itself, supply the element of stabbing deadly as force interpre- necessary the statute strains abduction under tation that beyond kidnapping requisites of these addition, every it reasonable, makes or even tolerable. crime kid- person robbery, rape, assault —a against — each well, interpretation as because under napping inherently these an abduction "to facilitate crimes involves necessary felony felony . of a . ."—with the commission being robbery, rape, itself. or assault

If or held here to be considered secreted the victim were found, under RCW place likely to be where she 9A.40.010(2)(a), every then one above-mentioned at except crimes when committed would be a busy building open or inside a crowded intersection encompass virtually public. would statute all crimes, such as persons committing them seldom select such high-density locations for their if Similarly, acts. majority were to claim that deadly force, evidence of other than the itself, fatal stabbing produced sufficiently here to meet requirements 9A.40.010(2)(b), any then level of force or threat force, thereof must be termed deadly any robbery, rape, or assault contains an element of deadly force as defined for kidnapping purposes. necessarily This follows from the fact the evidence shows no use or threat of any use of weapon prior to the stabbing; only fatal I what force, would term nonlethal physical muscular strength, preceded the stabbing under the evidence adduced at If trial. superior muscular force is to be regarded force", "deadly prosecutor could convert a class C felony or gross A, even a misdemeanor into a class B, or at least a felony. class Through this bootstrapping, third-degree assault —for example, forceably resisting violation, arrest when stopped a traffic a class C fel- ony gives rise to a potential kidnap- conviction for —also ping degree first because that kidnapping would have occurred felony, to facilitate commission of a the third- degree prosecutor assault itself. While would be unlikely press kidnapping charge, potential with its sentence of not years, less than 20 the mere fact could charged as such would give prosecutor intoler- able leverage plea even in bargaining, a case where the likelihood of conviction on charge the assault is minimal. Further, extraordinary possible such an charge for a rela- tively minor would surely offense invite occasional abuse when particularly a defendant distasteful to the prosecutor police subject charge. to the and/or expressed The concerns herein are not fanciful nor A unique opinion. to this number of courts have simi- been abuse, larly potential disturbed with the for and have every to find a kidnapping therefore refused inherent One of the against person. exposi- crime most direct Adams, People found in v. problem tions of this is 34 Mich.

453 Mich. (1971), modified, 389 560, N.W.2d 19 546, 192 App. (1973): 222, 415 205 N.W.2d becomes standards by fixed thus unbound Discretion rather, term, but, legal in the sense discretion arbitrary power. and

naked battery, assault, any virtually any that It obvious is con- "intentional robbery involves some any any rape, kid- To read of the victim. person of the finement" napping misdemeanor, for literally to convert a statute A offense. battery, capital into a example, assault a permit would kidnapping statute of the reading literal assailant, any against charges aggravate prosecutor robber, literal violation by charging the rapist inevitably accompany which must kidnapping statute offenses. of those each connection, to remember important In it is prosecutor a practice present precedent under governed solely no there are judgments; his personal Plea bar- which must be applied. standards objectifiable may, a prosecutor practice; an established gaining is with a offense therefore, capital conviction a threaten any without review of his extracting guilty plea view to charging decision. Miles,

(Footnotes omitted.) also, v. 23 e.g., People See denied, 913, 688, cert. 527, N.E.2d 297 N.Y.S.2d N.Y.2d 245 467, (1969); Peo 948, L. Ct. 2028 23 Ed. 2d 89 S. 395 U.S. (1973); State Adams, 222, 415 v. 389 Mich. 205 N.W.2d ple (1973).8 490, Dix, 897 v. 282 N.C. 193 S.E.2d In kidnapping text. experience is discussed later York 8The New Dix deci Carolina, statutory subsequent reversed much enactment North asportation required quality to sustain respect to the nature and sion with However, of the Dix case was important kidnapping most core conviction. legislation Supreme interpretation preserved through of the new Court's separate apart inher require, kidnapping, from that which is a "restraint for Fulcher, 503, 523, felony.” State v. N.C. 294 in the commission of the other ent (1978). 338, 351 243 S.E.2d yet prosecutorial expressed left the abuse have concern over Other courts have Knowles, 175, People P.2d 1 v. possibility Cal. 2d for such abuse intact. commentator, Court, (1950), Supreme "made in the words of one the California attorney of his office abused the trust the district had clear that it felt Merger Aspects Parker, charges." prosecuting the defendant on Nevertheless, (1970). Kidnapping, the Law L. Rev. 55 Cornell Johnson, Super. In State upheld. 67 N.J. conviction 454

I fear that majority this case takes our kidnapping law into a quagmire the experience of other states teaches us cannot be gracefully. exited I prefer would profit from the experiences of other jurisdictions instead of gaining wisdom through the more brutal process repeat- ing their errors.

The history California the definition stretching kidnapping to affirm particularly convictions is instructive as an example of magnitude problem majority here willingly problems assumes. Although 1950, began Knowles, before the case of v. People 35 Cal. 175, 2d 217 1 (1950), P.2d real commenced the difficulties from which California is recovering. still statute effect at that time proscribed kidnapping in similar terms to that upon by relied majority here. Kidnapping "'seizes, occurred anyone confines, when . . . abducts, con- ceals, . . . with detain, intent to hold or or who holds detains, ransom, individual for reward or to commit [an] robbery. Knowles, extortion or . . at 180. The court Knowles presented with a conviction for kidnapping upon facts indicating only a simple robbery minor involving incidental movement of Nevertheless, the store attendants. the defendant was sentenced to without imprisonment life possibility of parole for "kidnapping." his

Knowles never served kidnapping his sentence on this Parker, conviction. See Law Aspects Merger in the (1961), Appellate Jersey Superior 170 A.2d 830 Division of Court the New prosecutor's obligation" prosecuting declared it was the "moral from for refrain kidnapping truly "obliga prosecution. when the facts did not That warrant such tion", however, approach not to be enforced an seems the courts. Such irrational; prosecution is, kidnapping judicial if a for construction of the under law, kidnapping legally proper gross prosecutorial but nevertheless a abuse of dis cretion, extremely strong applica it is evidence that court's construction and then, surprising, tion of the offense is It bit erroneous. the least People Daniels, abandoned, that Knowles has been totally see 71 overruled and 225, (1969), that Johnson Rptr. 2d Cal. 459 P.2d 80 Cal. has been place duty scrutiny modified to on the courts to assure that a Hampton, separate committed, see State v. from other crimes has been 61 N.J. (1972). 250, 294 A.2d 23 (1970). Commen- L. Rev. Kidnapping, 55 Cornell absurd, and as ridiculous and the result regarded tators statutory in its realistic failing to be castigated the court the revolved around criticism interpretations. major The in every inherent kidnapping to find a willingness court's Kid- See, Judicial Construction Comment, e.g., robbery. of Comment, Statutes, (1951); Albany L. Rev. 65 napping 15 (1950); L. Robbery Kidnaping, 3 Stan. 156 Becomes Rev. the Rob- Purpose Kidnapping Criminal Law: Note, for of Law-Kid- Criminal Note, bery, (1950); L. Rev. 38 Cal. 920 209, L. Code Section 24 S. Cal. napping Penal —California the (1951). regarded result legislature state Rev. 310 The immediately law Knowles so the outrageous in the require asportation amended to before Cal. Code 209 robbery course of a could be found. Pen. § (West 1955). Court all

Subsequent Supreme decisions California destroyed asportation requirements but and ignored the "carrying inserted in the amendment requiring 1951 away" rob support charge kidnapping during Knowles result bery. essentially court returned to The v. People and affirmed a conviction for Chessman, (1951), 166, Cal. P.2d 1001 38 2d 238 feet, robbery one of victims 22 defendant moved his penalty imposed death and carried out.9 thereafter, court, years it for language that haunted 18 fact, distance, "It of forcible declared: v. People ..." kidnaping removal which constitutes Chessman, supra language upon at 192. This was relied Wein, v. 2d People all, 50 Cal. incredible case most 383, (1958), P.2d 457 the defendant's death uphold 326 The defendant that case had kidnapping. sentence (1951), Chessman, 166, People v. Cal. 238 P.2d 1001 was evi 9After 38 2d passed response to Knowles had accom legislation dent that all the California plished robberies from the reach of was the removal of absolute "standstill" robbery" any slightest "kidnapping movement of in the statute. The course virtually every automatically part rob occurs as an inherent victim —which bery prosecution kidnapping. based on allowed —still broken into homes and robbed and raped victims, forc- ing incidental movement entirely and solely within the vic- tims' own In case, houses. one the "movement" supporting the kidnap conviction victim, was the forcing from a standing position bed, next to the onto the bed itself. See People Wein, v. supra (Carter, J., at 412 dissenting). Quite rightly, Professor Packer People Wein, v. supra, termed "reductio ad absurdum case". See The Case for Packer, Revision Code, the Penal 252, 13 Stan. L. Rev. 259 n.41 (1961).

California struggled with represented the albatross legacy unfortunate until 1969 Supreme when the Court finally held that merely robbery incidental movement of a victim could not be Daniels, People kidnapping. Cal. 2d 459 P.2d Rptr. (1969), 80 Cal. court reviewed robbery-rapes three in which the victims had been moved as little as 5 feet and as much as 30 feet within homes, their own and observed at pages 1126-27:

Under the rule of Wein, Chessman and such brief move- ments of the victims would constitute or car- "kidnaping rying away" within the of meaning the statute and would therefore be sufficient to support defendants' convictions of violating section 209. believe, however,

We the time has come to reconsider the placed construction Chessman upon the statute applied Wein. More than and elapsed a decade has decision, since the latter and almost two decades since the During former. period this kidnaping the law of has not remained stagnant. been, There have as we will dem- onstrate, judicial fresh approaches, far-reaching legisla- innovations, tive of analysis considerable problem by legal of commentators and scholars. Out this ferment has arisen a current of common sense construction and application of defining statutes Wein, crime of kidnaping. Chessman it now appears, stand as obstructions to the flow of that current in Cal- ifornia.

In overruling Wein, Chessman the court invoked a judicial doctrine of construction which I believe should be applied in the instant case as well: General construction. should receive a sensible "All laws not to application their should be so limited terms It consequence. or an absurd oppression, injustice, lead to therefore, the legislature always, presumed will would avoid language, its exceptions intended results the law such of character. The reason of (United v. States over letter." prevail should its cases (7 Wall.) (1868) 482, L.Ed. Kirby 74 U.S. 486-487 [19 (1961) People v. Oliver accord, 278, 279]; 55 Cal.2d cited.) 593], 361 P.2d and cases Cal.Rptr. 767 [12 Daniels Daniels, supra v. Although at 1130. People kidnap- of interpreting all problems has not ended decision Note, Struggling see California, ping statutes Provision, Robbery Commit Kidnaping California's force (1976), major it has been a L.J. Hastings it. rationalizing history discarding nor its ultimate

Neither California's People In majority's kidnapping analysis unusual. Adams, supra, quoted Court of Michigan Appeals in Daniels. statutory construction as set out above canon assault, that canon to case of the court sum- applying a page at marized 568:

We have concluded that under the statute not constitute aspor- movement of the victim does an independent it has significance tation unless And, from the victim is removed the envi- assault. ronment where he unless found, consequences independently sig- are movement itself to the victim does from assault —the movement not mani- nificant separate commission crime —and fest punishment the victim must be founded injury kidnapping. crimes than upon other law-wrenching experience York went through New Parker, Aspects to 1965. See prior to California's similar L. Kidnapping, in Law 527 Merger 55 Cornell Rev. in (1970), description experience of New York's and the v. 159, Daniels, Levy, v. People supra. People In 15 N.Y.2d (1965), 842, the New 164-65, N.E.2d N.Y.S.2d 793 256 earlier, Chessman- of Appeals York Court overruled was kidnapping held statute Wein-like cases and that applicable only to in "'kidnapping' the conventional sense

The New York experience particularly compelling cur- rently because that state's defining statute util- kidnapping nearly izes language identical to in employed RCW 9A.40.010(2) 9A.40.030(1): and RCW "A person is guilty in kidnapping the second degree when he abducts another person." 1975). New York Pen. Code (McKinney 135.20 § "Abduct" code, in 135.00, defined section as "to restrain a person with intent to prevent his liberation (a) either secreting or him in holding place where he is found, (b) not likely to be using threatening to use deadly physical force." Since incorporated the 1967 revision provisions law, these into York New the New York Court of Appeals has prior finding merger reaffirmed its of kid- napping into other offenses when the technical "kidnap- ping" is incidental the commission of A another crime. conviction for will not be sustained New York when the circumstances activity indicate that constituting "kidnapping" merely incidental to the commission of People another crime. Cassidy, 40 N.Y.2d (1976), 358 N.E.2d N.Y.S.2d 45 court held that statute not applicable grabbed where the defendant victim dragged her 70 feet, at knifepoint, attempted rape her inside a garage, similarity and then fled. The striking; the instant case is Cassidy factually suggest differences case would strongly support more do kidnapping than deadly facts this case because force was evident victim, case, movement of the unlike and the even- tual location of the sexual assault public was far less Cassidy in Cassidy observed, than it was here. The court at pages 765-68: merger of judicial origin doctrine was and was

based on an to prosecuting aversion a defendant on a him kidnapping charge expose order to the heavier available, penalty thereby period made where the brief, abduction was the criminal its enterprise robbery no more than an offense entirety appeared genuine "kidnapping" lacking rape, and there . . . flavor to conviction intended preclude doctrine is merger much so part on which are

for based acts kidnapping substantive crime crime that substantive another such without acts and not could that have been committed fairly not may independent responsibility criminal merger kind of factual to "It is this attributed them. preparatory, with the preliminary, crime of ultimate recog- designed is or concurrent action the rule of the 'true' nize, prevent and thus unnatural elevation of, not but charged. suggestive crime to be It a merger is attempt like, merger quite preparation crime, concept with the consummated a familiar criminal law." Appellate Division that there

... with the agree We abduction; the detention of here no independent commission of the crimes of victim was incidental no aspor- abuse. There was attempted sexual assault conviction of a for predicate tation which could be the offense; accept cannot the con- separately tention the we cognizable place not on that, assault did take because the spot where the attack in full at the public street view cover in a garage but was initiated rather occurred under prosecute away, permissible about feet it should be defendant as well.

(Citations omitted.) approach, current experience, logic

New York's its present ours similarity of its statute to combine and the However, us its there reason for to follow lead. imposing an adopting reason for New York's compelling is an additional patterned only to, similar but approach: our statute drafting with the of our involved New York's. Persons after genesis in New York law identify our statute's statute Training and Seminar Manual Criminal Code the Revised Training Com- Criminal Justice Washington State (1976). Further, mission, the comment accom- at 9A.40.010 statute, 135.00, quoted York's section New panying our intent: drafters' expressing verbatim

The term "abduct" is defined such fashion as to restraint, make strongly lence a very serious savoring abduction form of removal, of the substantial isolation vio- and/or usually genuine associated kidnapping. (Italics mine.) Washington State Criminal Justice Training Commission, Revised Criminal Code Training and Seminar (1976). Manual at 9A.40.010 This evidence intent strongly suggests inapplicability in "genuine" statute the absence of a kidnapping. Except itself, for stabbing later, the fatal a to be up matter taken removal, isolation, there no substantial violence and/or of Further, a kind indicating genuine a it kidnapping. can confidently be stated that the did not intend drafters that the statute to kidnapping applicable be all robberies and they assaults10 because is doubtful that would intention- ally render their work on those If superfluous. crimes kid- punishable severely in napping, all instances as as the crime, underlying always applied any can be whenever occurs, other crime the drafters wasted considerable time preparing statutes on other in these offenses the new crimi- I nal code. would follow the analysis unassailable that New York developed, particularly has cur- because New York's approach rent experience is the in product gained repairing damage legal sustained the minefield we now enter. minor Defendant's movement and restraint victim in to this case was incidental his assault. sexual nor prosecution Neither would majority suggest any any that there is that had evidence the defendant restraining any intention of the victim for other purpose. I would kidnapping chargeable hold that a is under our only separate statute where there an abduction which is is from, of, and independent another crime. Restraint during incidental movement of a victim robbery, rape, rape part accomplished separately; 10Revision of the law not a it was 9A. See prepared adopted was, the new criminal code 9.79. It as Title RCW however, legislature during enacted as same the same session the new code, analysis suggesting reasonably rape applied criminal that the same can be to applied robbery assault, code, that to is two offenses covered the new Title 9A. are, they genuine kidnapping; not indicia of a are assault of the rob- integral part necessary and instead, generally which movement Restraint and bery, or assault itself. rape, one of necessary complete reasonably do not exceed that believe, inherent should, I construed be be those crimes any extinguishes which crime, in a resulting merger in the separate offense.11 kidnapping determining judgments merger approach, difficult this there are 11Under truly to and inherent other and movements are incidental

whether restraints issues; Here, however, presented the facts of are not with such difficult crimes. we attempted rape clearly that present to an we so incidental case movement grapple precise to other crimes. not with definition conduct incidental need merger kidnapping expositions merger doctrine refer Some may Indeed, merger analysis suggests not cases lesser crimes. dictum some applicable underlying perceived more than crime to be serious when is be merger part, question more kidnapping. with a serious crime For the most moot, generally sought where for conviction will because Further, greater kidnapping convic- underlying penalties. even if a crime carries crime, kidnapping is for more serious tion is addition one returned any unlikely appeal; greater the more serious sentence for to be the focus of eliminates, terms, any may practical prejudice flow from kid- crime napping conviction. addition, merger depend upon making such doctrine a circumstance penalty rape or whether the for is more less severe than whether a victim dies indefensible; explained analytically such a result can be only pyramid upon committing in of an emotional to convictions one terms desire murder, actually regard particularly to whether the defendant a horrible without clearly part any given crime. If a set of are so a committed additional acts warranted, separate kidnapping charge simply is not it crime that another a charges consequence kidnapping the victim died. The of little for that should be murder, robbery, properly assault, rape to a because allows an become death However, statutory statutorily is consistent. the such intended and enhancement death; consistency kidnapping to the victim's survival or definition of is unrelated vary requires interpretation given based considera- the that not on that definition kidnapping tions unrelated to the offense itself. merger lesser-greater applying application the doc- Even distinction philosophy require merger underlying find of that trine would we a here. The that to that unfair allow crime be distinction is is and unreasonable case, ordinary application bootstrapped into In the homicide one more serious. philosophy prohibit kidnapping in for addition one this would not a conviction serious, murder, it is murder the more unaf- for because the conviction is However, charge kidnapping kidnapping here the fected the and conviction. crime, aggra- bootstrap ever more serious itself into an was used to the murder doctrine, merger even when precisely the This the result that vated murder. is distinction, designed prevent. lesser-greater limited the II analysis foregoing applies only two the three (1) possible bases finding for a kidnapping secreting here: (2) victim found, the unlikely deadly where to be other stabbing. Remaining force than the fatal for analysis basis, possible the third killing supplying itself as the necessary "restraint" for may an abduction. This be well the actual for majority's foundation kidnapping deci- approach sion because this does completely disregard statutory the requirements of the definition of kidnapping as would others, either of the and because the majority seems to suggest upon reliance this rationale.

Finding the itself to killing supply necessary the restraint does, however, serious, for an abduction raise even disas- trous, consequences of its own. Aside from all the same problems discussed, merger previously upon reliance killing itself as a "restraint" kidnapping purposes seri- ously distorts the homicide law this state. While inflic- tion of a fatal might properly regarded wound as "restraint", sense, form of general ultimate through force, I deadly that, use of cannot believe used statute, the term designed to scramble the law of homicide way analysis. it must under this this theory, every

Under is also a kid- killing intentional napping killing because the supplies requisite itself and, hence, restraint abduction under RCW 9A.40.010-.030. Automatically, killing this intentional becomes murder 9A.32.030(c)(5) degree the first RCW provides under death of causing any one another the course of automatically first "guilty murder degree." killing,

This intentional converted into first-degree thus murder, necessarily inevitably also becomes 9A.32.045(7) murder under RCW because it was committed Thus, course of from time kidnapping. forward circumstances, every what killing, intentional no matter in by is definition aggravated degree. murder the first Fur- charged it must be and as such. As ther, tried majority the here, the facts and circumstances itself "where declares second-degree in course of first- support murder the the by virtue of distinct rape kidnapping, prosecutor, the no but is discretion initiative, effect of the voter left mine.) (Italics charge to murder." aggravated desirable, can I I result nor cannot believe that this voters, punish the 316 to passing that Initiative believe murder", every to intentional "aggravated intended convert death, by into a crime which sentence killing punishable term, must very every out with conviction.12 The carried murder", suggests another "aggravated category of inten- murder circumstances. killing, aggravating tional without society culpability Our found even long degrees has all, within most societal serious crime homicide. This of penalties has found perception expression range available for different classes of homicide RCW 9A.32. My is that it was intended understanding Initiative 316 and, in "degrees analysis culpability" enhance majority's terms, identify own "to crimes which are those society the status particularly outrageous and elevate In words, adding of such crimes." other voters were than, hierarchy majority's another level rather mandates, analysis eliminating among all distinctions painstakingly, killings. specifi- intentional The initiative cally, laboriously specific sets out seven circumstances ordinary is to be first-degree murder elevated an into is not a hint punishable a crime death. There purpose simple that its was as as declar- elaborate scheme in the to be murders ing killings all intentional first death. If this degree, punishable all instances intended, of the initia- truly what was drafters result convoluted, remarkably tive the voters selected a indirect, obtusely grossly overwritten method it. accomplishing penalty provisions majority agree recognize death and I that 12I it, passing evaluating voters' intent unconstitutional. of the initiative are provided passed

however, for an auto initiative as remember we must following conviction. sentence death matic and irreversible of consequences fully predictable. this result are not Prosecutors, now requirement charging faced with the of aggravated they any murder whenever are to prosecute may intentional find to convict killing, juries well reluctant now, which, situations chargeable before would be second-degree likely murder. This reluctance to stem juries' knowledge from the that conviction means defendant must receive a nonmodifiable sentence of life Further, without of imprisonment possibility parole.13 pros- judges likely ecutors and are to feel uncomfortable about clearly such involving sentences situations crimes mandatory, penalties intended be covered harsh of Initiative 316.

I rationality much in sacrificing conclude we are too defendant, merely retrying and fairness avoid and that we conviction and a new trial. must reverse his order My applies irrespective upon conclusion of the basis majority conviction; although relies upholding precise vary the basis consequences depending upon used, any of consequences upon reliance the various substantially equivalent severity bases are and undesir- I from ability. majority's approval dissent allowing jury upon instructions to found a conviction kidnapping.

Ill There is one other aspect of the majority from opinion which I I must dissent. believe the majority's approval of jury instructions allowing conviction for aggravated murder without agreement unanimous as to the mode of case, commission —in this rape or kidnapping —violates right beyond defendant's to conviction a reasonable doubt by a jury. unanimous legislature statute, already aggravated particu 13The has modified the murder

larly provisions penalty imposition making of the death a death sentence commenting upon automatic under all circumstances. Without its constitutional ity prematurely, possibility I do it note that has returned the of death for those aggravated through finding bootstrapping technique convicted murder inherently kidnapping. the murder itself to be a Arndt, Wn.2d State is not controlled This case Arndt, (1976). involved— the crime 374, 553 P.2d 1328 fraud —contained alternative larceny welfare grand through often committing overlapping it which were ways case, however, the "alterna- In this indistinguishable. even murder committing aggravated the offense of ways tive" Additionally, acts. separate are themselves distinct at murder issue committing "methods" themselves separate rape —are here — discreet or the criminal acts. Proof must establish one (or both). Here, could entirely possible that there other crime, although one underlying conviction for no either must, statute, attempted or the other under resting six were their belief accomplished. Perhaps jurors I upon rape. six guilt upon depended here, where, specific believe that commission necessary criminal to sustain conviction underlying acts is offense, specified jury unanimity upon particular for a required. mode is entirely analysis, proper

Under the it would be majority crime, com- legislature comprehensive to define a ways encompass which mittable numerous unrelated crimes. Suc- whole of our current definitions individual for this "master" crime would entail prosecution cessful defendant merely convincing juror engaged each conduct, two although form not even some of criminal any act jurors agree guilt particular would have to on one I recognize disagree now as a crime. separate we any analysis possible. which makes such a result J., J.

Dolliver, Utter, concurs with April 1979. granted Reconsideration

Case Details

Case Name: State v. Green

Court Name: Washington Supreme Court

Date Published: Jan 5, 1979

Citation: 588 P.2d 1370

Docket Number: 44705

Court Abbreviation: Wash.