THE STATE OF WASHINGTON, Respondent, v. LINDA MARIE THOMPSON, Appellant
No. 44039
Supreme Court of Washington
January 6, 1977
88 Wn.2d 13 | 558 P.2d 202
Petition for rehearing denied March 18, 1977
HAMILTON, J. (dissenting)—For the reasons stated in State v. Byers, 85 Wn.2d 783, 539 P.2d 833 (1975), I would affirm the Court of Appeals. Accordingly, I dissent.
HUNTER and WRIGHT, JJ., concur with HAMILTON, J.
Dysart, Moore, Tiller & Murray, by Daniel J. Murray, for appellant.
DOLLIVER, J.—This is an appeal from a conviction for murder in the second degree. The victim was defendant‘s husband, Wayland D. Thompson. On the day of the killing, the defendant‘s husband had consumed considerable amounts of alcohol and used drugs excessively. During the evening, he had been driving recklessly with defendant and two other passengers in the car and had struck defendant and threatened to kill her. The сar reached the Thompson residence and the two passengers got out and went into the house. Shortly thereafter, shots were heard. Defendant called the sheriff and reported she had shot her husband. At the trial she claimed she had shot him in self-defense.
Defendant was charged by an amended information with causing the death of Wayland Thompson while engaged in the commission of a felony, assault in the second degree. In the trial before a jury, defendant was found guilty of murder in the second degree. We affirm.
Prior to trial, appellant filed a written waiver of jury trial. She gave the following reasons: recent crimes had been committed in the county which had generated public
The statute controlling the waiver of a jury, states:
No person informed against or indicted for a crime shall be convicted thereof, unless by admitting the truth of the charge in his plea, by confession in open court, or by the verdict оf a jury, accepted and recorded by the court: Provided however, That except in capital cases, where the person informed against or indicted for a crime is represented by counsel, such person may, with the assent of the court, waive trial by jury and submit to trial by the court.
Cases required to be tried by jury shall be so tried unless the defendant files a written waiver of a jury trial, and has consent of the court.
In State v. Jones, 70 Wn.2d 591, 424 P.2d 665 (1967), we held that the withholding of the assent of the court was reversible only on the issue of whether the discretion was clearly untenable or manifestly unreasonable. State v. Maloney, 78 Wn.2d 922, 481 P.2d 1 (1971), held that absent a showing that the appellant was prejudiced by having his cause heard before a jury or an indication that the trial court abused its discretion, no reversible error could be found.
Here the trial judge refused to allow the appellant to waive a jury for the following reasons: the seriousness of the crime charged; a jury would prevent the appearance of impropriety, lack of fairness, or injustice; the verdict should represent the thinking of the community as representеd by 12 jurors; and a jury would free the court from having to weigh the evidence.
No constitutional rights are here involved (Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965)); the trial judge did not abuse his discretion; and we decline appellant‘s invitation to modify the standards of Jones and Maloney.
A challenge to the sufficiency of the evidence or a motion having that effect admits the truth of the state‘s evidence and all inferences that reasonably can be drawn therefrom. Furthermore, the evidence is interpreted most strongly against the defendant and in a light most favorable to the state.
See also State v. Randecker, 79 Wn.2d 512, 487 P.2d 1295 (1971); State v. Dugger, 75 Wn.2d 689, 453 P.2d 655 (1969); State v. Gibson, 79 Wn.2d 856, 490 P.2d 874 (1971).
The State produced evidence that the defendant reported she shot her husband. There was additional evidence that there were three shots fired with a .38 caliber pistol. Testimony of the State‘s witnesses revealed that the defendant and her husband had been drinking on the evening of the shooting, that they had argued violently and that he had struck her. While the defendant claims that the shooting was done in self-defense, she apparently was disbelieved by the jury. See State v. Turpin, 158 Wash. 103, 290 P. 824 (1930). In reviewing the record, we are satisfied that there was sufficient evidence to send the case to the jury and to support the verdict.
Finally, appellant urges that we overrule State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966). The relevant statutes considered in Harris are, in part:
The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either—
(1) With a premeditated design to effect the death of the person killed, or of another; or
(2) By an act imminently dangerous to others and evincing a depraved mind, regardless of human life, without a рremeditated design to effect the death of any individual; or
(3) Without design to effect death, by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a robbery, rape, burglary, larceny or arson in the first degree . . .
The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when—
(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or
(2) When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated in RCW 9.48.030.
In Harris, we held that, where the precedent felony in a felony murder is an assault and inherent in the homicide, the assault does not merge into the resulting homicide. Most states which have considered the question have adopted the merger rule, resulting in a holding that only felonies independent of the homicide can support a felony murder conviction. State v. Mosley, 84 Wn.2d 608, 528 P.2d 986 (1974). Washington and Maine appear to be the only jurisdictions which have considered and rеjected the merger rule. See Annot., 40 A.L.R.3d 1341 (1971). Both appellant and the courts of other jurisdictions consider this to be a matter of statutory interpretation rather than one of constitutional rights.
In State v. Mosley, supra, we granted a petition to review the Harris rule. Before the day set for hearing, the petitioner escaped from custody. Consequently, the petition was dismissed.
While it may be that the felony murder statute is harsh, and while it does relieve the prosecution from the burden of proving intent to commit murder, it is the law of this state. The legislature recently modified some parts of our criminal codе, effective July 1, 1976. However, the statutory context in question here was left unchanged.
The rejection by this court of the merger rule has not been challenged by the legislature during the nearly 10
The judgment is affirmed.
STAFFORD, C.J., HAMILTON and BRACHTENBACH, JJ., and HALE, J. Pro Tem., concur.
UTTER, J. (dissenting)—The majority decision, by giving continuing approval to use of the doctrine of felony murder in instances where the sole felony providing the basis for implementation of the doctrine is the assault upon the victim which was the direct cause of death, leaves us in a position shared by virtually no other state. I am convinced that we are compelled by both the due process and equal protection clauses of the United States Constitution to abandon this isolated position and join with the vast majority of United States jurisdictions in holding the felony-murder rule applicable only to instances in which the underlying felony giving rise to the operation of the rule is independent in fact of the homicide.
The facts of this case illustrate the injustice of the rule. At the time of his death Mr. Thompson and the appellant had been married nearly 2 years. During 1973 and 1974, while recovering from injuries sustained in an automobile accident, Mr. Thompson began to abuse the drugs which had been prescribed for him and to engage in heavy drinking. This situation had steadily worsened, and Thompson tended to be violent, particularly toward his wife, while intoxicated or using drugs. On the night of his death, the defendant and two friends were in the company of the victim for most of the evening. Uncontrovertеd evidence established that the victim had been drinking throughout the afternoon and evening and had used drugs excessively during the same period, including at one point taking a quantity of Nembutal (a barbiturate) by injection.
Late in the evening the group left for a drive. Despite his obvious intoxication, Mr. Thompson insisted upon driving.
Eventually the group arrived back at the Thompson residence. The two passengers left the car immediately and did not see or hear what took place thereafter. The appellant and Thompson remained seated in the car which was then parked in the driveway of their residence. The sole evidence as to subsequent events is a product of the testimony of the appellant, who took the stand on her own behalf. According to the appellant, her husband continued his threats and further stated that he was “going to take this car out and kill everybody.” Mrs. Thompson continued to try to calm her husband and endeavored to gain control of the vehicle. Thompson responded by striking her several more times, both with his fists and the wine bottle. According to her testimony, the defendant then рroduced a pistol which she carried in her purse and after further threats and physical abuse, shot and killed her husband in an effort to save her own life. Following her arrest Mrs. Thompson was examined by a physician and treated for cuts, bruises, abrasions, loose teeth, and soreness suffered in the altercation. It is apparent from the record that the only assault committed by the victim was the act of discharging the pistol in the
The prosecutor initially charged appellant with intentionally causing the death of her husband and with causing the death of her husband while engaged in the commission of a felony (assault in the second degree). Later, an amended information was filed charging her only with felony murder. She was convicted of that charge and this appeal followed.
The felony-murder rule was developed in England as a part of the early common law of homicide. At that time the doctrine was broad in scope and applied whenever one whose conduct while engaged in the commission of a felony, brought about a death. The result of its use was guilt for murder. The rule operated without regard to the actual intent of the felon, the nature of the felony, or the likelihood that death might result from the defendant‘s action. The felony-murder rule, subject to some limitations, continues to function in the same way, supplying a substitute for the elements of specific intent and premeditation. The justification for this strict liability has traditionally been said to be the generally malicious stаte of mind of the actor proven to establish guilt of the felony. This underlying general felonious intent having been established, it is thus felt unnecessary to prove a specific mental state as to the homicide itself. Once it is established that a defendant has the requisite intent sufficient to establish guilt as to the underlying felony, the felony-murder rule then operates as a conclusive presumption that the defendant possessed the intent necessary for murder.
At the time the rule developed all felonies were punishable by death; thus, the use оf the felony-murder rule was generally not of serious consequence to the defendant. As the number and nature of activities constituting felonies increased, and the penalties for the convictions thereof began to vary, the rule came to have a progressively greater impact upon the criminal law. The result of this greater impact has been an almost universal effort to restrict the
This conclusion has been reached by every jurisdiction in this country, with the exception of the State of Washington, required to directly face the issue.4 The states have formulated their conclusions in slightly different ways. See, e.g., People v. Huter, 184 N.Y. 237, 77 N.E. 6 (1906) (where the only felony committed apart from the homicide itself is the assault upon the victim, the assault “merges” with the killing and does not provide a basis for operation of the felony-murder rule); State v. Fisher, 120 Kan. 226, 243 P. 291 (1926) (the felony must be so distinct as to not bе an ingredient of the homicide). See also People v. Ireland, 70 Cal. 2d 522, 450 P.2d 580, 75 Cal. Rptr. 188 (1969); State v. Branch, 244 Ore. 97, 415 P.2d 766 (1966); State v. Essman, 98 Ariz. 228, 403 P.2d 540 (1965). The reasoning of these decisions is summarized by the California Supreme Court.
We have concluded that the utilization of the felony-murder rule in circumstances such as those before us extends the operation of that rule “beyond any rational function that it is designed to serve.” . . . To allow such use of the felony-murder rule would effectively preclude the jury from considering the issue of malice aforethought in all cases wherein homicide has been committed as a result of a felоnious assault—a category which
In State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966), a majority of this court declined to adopt this position, taking the view that the legislature had, by establishing degrees of murder and limiting the first-degree felony-murder rule to only specific crimes, effectively eliminated the compelling need for the merger rule which had been found to exist under New York‘s statutory scheme. In so doing the majority overlooked the fact that the merger rule has been expressly adopted in the state of Oregon (see State v. Branch, supra). That state‘s homicide statutes are virtually identical to our own.
The dissenters in Harris pointed out that the use of the rule approved by the majority would effectively convert into second-degree murder any crime properly viewed as manslaughter, because manslaughter itself is a felony, and that prevention of precisely such a result was the purpose of the New York court in adopting the felony-murder merger rule. (See State v. Harris, supra at 936-38, Hunter, J., dissenting.)
I believe it clear that the underpinnings of the Harris dissent and the decisions of those courts adopting a merger rule, or its functional equivalent, are far more substantial than those recognized by the majority in Harris. Implicit in these holdings is a recognition that any statutory definition of murder, as a crime malum in se, must include an element of specific intent. A statutory formulation which eliminates the requirement of establishing this essential element is fundamentally defective and therefore violative of the defendant‘s right to substantive due process. State v. Turner, 78 Wn.2d 276, 474 P.2d 91, 41 A.L.R.3d 493 (1970); Seattle v. Gordon, 54 Wn.2d 516, 342 P.2d 604 (1959). Where, as here, there can fairly be said to have been but one culpable act committed by the appellant, the use of the felony-murder rule effectively obviates the necessity to establish any element of intent in support of the conviction
To summarize, murder is a crime malum in se. Conviction of that crime requires proof of acts resulting in death coexisting with proof, from some source, of specific intent. State v. Turner, supra; Seattle v. Gordon, supra. This intent is found, in the case of felony murder, in the generally malicious mind evidenced by proof of guilt as to a distinct felony involving another act committed with appropriate felonious intent. The act of assault which here resulted in death is not such a separate crime. The act of “assault” is, in fact, the murder. Thus, in this case there exists no separate actus reus coupled with a felonious intent which may be “transferred” to the act resulting in death. People v. Moran, supra; State v. Fisher, supra; People v. Ireland, supra. The result is conviction of murder by virtue of proof of an act resulting in death. The crucial element of proof—the existence of a particular intent, coupled with the specific act—is thus eliminated. For these reasons any formulation of our homicide statutes which allows conviction of felony murder to be based upon an underlying felony, which is an offense included in fact in the homicide, is violative of substantive due process and therefore fatally defective.
Thе failure to limit the operation of the rule is equally violative of the
In Collins (holding that in all cases where it is applicable the negligent homicide statute supersedes the manslaughter statute), this court stated at page 470:
The principle of equality before the law is inconsistent with the existence of a power in а prosecuting attorney to elect, from person to person committing this offense, which degree of proof shall apply to his particular case.
Similarly, in Gardner, at page 366, this court reiterated the principle first enunciated in Olsen v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956), quoting from that case as follows:
A statute which prescribes different punishments or different degrees of punishment for the same act committed under the same circumstances by persons in like situations is violative of the equal protection clause of the fourteenth amendment of the United States constitution.
by altering our homicide statute in the course of recent revisions to the criminal code, is indicative of a state policy that the Harris rule be retained. Because I find the adoption of a merger rule to be a constitutional necessity, this argument is not determinative. However, it should be observed that our criminal code revisions, as initially presented to the legislature in 1970, contained a homicide provision which read as follows: “(1) A person is guilty of murder when . . . (c) he commits or attempts to commit a forcible felony other than manslaughter or assault, and, in the course [therеof] . . . recklessly causes the death of a person . . .” (Italics ours.) Revised Washington Criminal Code (Dec. 3, 1970 Proposal) Section 9A.32.020. The RWCC (often referred to as “the Orange Code“) was the product of 3 years’ work by the Judiciary Committee of the Washington Legislative Council and a Citizens’ Advisory Committee representing a broad cross section of individuals concerned with our criminal law. Passage of this code was delayed pending submission of an alternative set of bills prepared by the state prosecutors’ association which was submitted to the legislature in 1973. This proposed code eliminated the language precluding application of the felony-murder rule to assault and manslaughter which had been a part of the “Orange Code.” The provision ultimately adopted and referred to by the majority here was thus introduced to the legislature by a group representing those persons vested with a constitutionally impermissible degree of discretion as a result of that same provision. I therefore do not find the majority‘s argument to be particularly persuasive. A discussion of the evolution of our new criminal code may be found in G. Golob and G. Mooney, Revised Criminal Code Training and Seminar Manual, Washington State Criminal Justice Training Commission (1976).
State v. Harris, supra, should be overruled and Washington should join the other states of this nation which have rejected this doctrine.
ROSELLINI, HUNTER, and HOROWITZ, JJ., concur with UTTER, J.
Petition for rehearing denied March 18, 1977.
Notes
In Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975), the Supreme Court enunciated the principle that any presumption which affirmatively shifts the burden of persuasion as to a particular element of the offense charged to the defendant violates due process. The court therein relied upon In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970), holding that the due process clause requires proof beyond a reasonable doubt by the prosecution of every element necessary to constitute the crime charged.
Our court has held that in order for a criminal presumption to be valid the fact presumed (here intent to kill) must follow from the facts proven (commission of a felony) beyond a reasonable doubt. State v. Alcantara, 87 Wn.2d 393, 552 P.2d 1049 (1976); State v. Odom, 83 Wn.2d 541, 520 P.2d 152 (1974). It is not clear that the felony-murder rule, a conclusive presumption, could withstand an assault based upon these two lines of cases. We need not, however, reach that broad issue here.
“The killing of a human being, unless it is excusable or justifiable, is murder in the second degree when—
“(1) Committed with a design to effect the death of the person killed or of another, but without premeditation; or
“(2) When perpetrated by a person engaged in the commission of, or in an attempt to commit, or in withdrawing from the scene of, a felony other than those enumerated in
” . . .
“(4) Shall wilfully assault another with a weapon or other instrument or thing likely to produce bodily harm . . .
” . . .
“Shall be guilty of assault in the second degree . . .”