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1. Wanrow: The
State of Washington, Respondent, v. Yvonne
Wanrow, Petitioner, No. 45102, SUPREME COURT OF
WASHINGTON 91 Wash. 2d 301; 588 P.2d 1320; 1978
Wash. LEXIS 1179
December 28,
1978
SUBSEQUENT
HISTORY: [***1]
Reconsideration
Denied February 28, 1979.
PRIOR HISTORY:
Superior Court: The Superior Court for Spokane
County, No. 20876, William H. Williams, J., on
August 16, 1977, refused to dismiss the murder
charge.
DISPOSITION:
Upon granting a petition for discretionary
review, the court holds that the merger rule is
not applicable in this state to felony murder
charges, and that there is no constitutional
defect in the former second-degree felony murder
statute. The refusal to dismiss the murder charge
is affirmed.
HEADNOTES: [1]
Homicide -- Felony Murder -- Elements -- Intent
To Kill. Intent to kill is not an element of
second-degree felony murder under former RCW
9.48.040(2). The basis of that offense is the
general malice which may be inferred from the
malicious felonious intent which must be present
in the underlying felony.
[2] Homicide --
Second-Degree Murder -- Statutory Provisions --
Intent To Kill. Former RCW 9.48.040(1), which
defines second-degree murder as an unpremeditated
homicide committed with intent to kill, is not
rendered meaningless by construing subsection (2)
of that statute, which defines second-degree
felony murder, as not requiring an intent to
kill.
[***2] [3]
Homicide -- Felony Murder -- Merger Rule --
Public Policy. Policy considerations favoring the
merger of an assault into a resulting homicide,
for purposes of felony murder prosecutions, are
not sufficient to override clear legislative
intent that persons who commit such an act be
punished under the felony murder statute.
[4]
Constitutional Law -- Determinations by U. S.
Supreme Court -- Summary Dismissal. A summary
dismissal by the United States Supreme Court of
an appeal under 28 U.S.C. @ 1257(2) for want of a
substantial federal question is a decision on the
merits and is binding on state courts as to the
applicability of federal constitutional
provisions to the matter before the court.
[5] Homicide --
Felony Murder -- Validity -- Constitutional
Considerations. Former RCW 9.48.040(2), which
defines second-degree felony murder, does not
violate due process, the privilege against
self-incrimination, the right to trial by jury,
or equal protection.
[6] Criminal Law
-- Crimes -- Discretion To Charge -- Validity.
There is no violation of equal protection when a
prosecutor has discretion to charge different
crimes with different punishments [***3] on the
basis of a defendant's acts so long as the
different crimes have different elements.
SYLLABUS: Nature
of Action: The defendant was charged with
second-degree murder and first-degree assault
after she shot a man who entered the house where
she was staying.
COUNSEL:
Elizabeth M. Schneider, Susan B. Jordan, Cumings,
Jordan & Morgan, Mary Alice Theiler, and
Smith, Kaplan, Withey, Ford & Theiler, for
petitioner.
Donald C.
Brockett, Prosecuting Attorney, and Fred J.
Caruso, Deputy, for respondent.
Mark Leemon,
Richard A. Hansen, and Robert C. Boruchowitz on
behalf of Seattle-King County Public Defender
Association, Ronald L. Hendry on behalf of
Washington Association of Prosecuting Attorneys,
and Jeremy Randolph, Prosecuting Attorney for
Lewis County, amici curiae.
JUDGES: En Banc.
Horowitz, J. Rosellini, Hamilton, Stafford,
Brachtenbach, and Dolliver, JJ., concur. Hicks,
J. (concurring). Utter, J. (dissenting). Wright,
C.J., concurs with Utter, J.
OPINIONBY:
HOROWITZ
OPINION: [*302]
[**1320] Petitioner Yvonne Wanrow seeks review of
the denial of her motion to dismiss count 1 of
the information charging her with second-degree
(felony) murder. She [***4] asks this court to
consider once again applying the doctrine of
merger to the crime of second-degree
felony-murder, i.e., that the assault resulting
in the homicide is merged with the homicide so as
to lose its separate identity, and accordingly to
hold that a death resulting from a felonious
assault cannot be felony-murder. We have twice
before considered and rejected this doctrine.
State v. Harris, 69 Wn.2d 928, 421 P.2d 662
(1966); State v. Thompson, 88 Wn.2d 13, 558 P.2d
202 (1977). We treated [*303] the matter as
settled in State v. Roberts, 88 Wn.2d 337, 344
n.4, 562 P.2d 1259 (1977). In Harris and
Thompson, strong dissents suggested the merger
doctrine was a desirable policy in face of the
harsh results of the felony-murder rule. We
recognize that the consequences under our
statutes of death resulting from an assault --
criminal liability for felony-murder -- are
harsh. Nonetheless, we are now firmly convinced
that adoption of the merger doctrine is not
compelled either by principles of sound statutory
construction or by the state or federal
constitutions, and that adoption of the doctrine
[**1321] by this court would be an unwarranted
and [***5] insupportable invasion of the
legislative function in defining crimes. We
therefore reaffirm this court's refusal to apply
the doctrine of merger to the crime of
felony-murder in this state.
In August 1972
petitioner Wanrow shot William Wesler, a man much
larger than herself, who had entered the home in
which Ms. Wanrow was staying, unexpectedly,
without permission of the occupants, intoxicated,
and under circumstances suggesting the existence
of a real threat to the safety of the children
and women occupying the home. These circumstances
are set out in full in State v. Wanrow, 88 Wn.2d
221, 559 P.2d 548 (1977). Mr. Wesler died and
petitioner was subsequently charged with
second-degree murder and first-degree assault.
Petitioner was convicted of these charges, but
her conviction was reversed on appeal. We
affirmed that reversal on the ground that certain
evidence was improperly admitted at trial. State
v. Wanrow, supra. The majority opinion also set
out a second ground for reversal, that the jury
was not properly instructed on Ms. Wanrow's
defense of self-defense. We emphasized that Ms.
Wanrow, a small woman who was partially disabled
at the time and whose children were [***6]
present in the home, must be allowed to present
to the jury her perception of the situation that
night, "including those perceptions which
were the product of our nation's 'long and
unfortunate history of sex discrimination.'
Frontiero v. Richardson, 411 U.S. 677, 684, 36 L.
Ed. 2d 583, 93 S. Ct. 1764 (1973)." [*304]
State v. Wanrow, supra at 240. Petitioner's case
was remanded for a new trial.
It was on
remand, prior to commencement of the trial, that
petitioner moved for dismissal of count 1 of the
information, charging her with the crime of
second-degree (felony) murder. She raised the
entirely separate and distinct question of the
merger doctrine, that is, whether a death
resulting from a felonious assault can be a
felony-murder. Her motion to dismiss was denied.
We accepted discretionary review of the order of
denial, and we affirm.
Count 1 of the
information alleges Ms. Wanrow committed homicide
on William Wesler while engaged in the commission
of a second-degree assault on him. Since
second-degree assault is a felony, a resulting
homicide becomes second-degree felony-murder
under RCW 9.48.040(2).
At this point a
brief description of the applicable statutory
[***7] scheme is necessary. The homicide statute
applicable in this case is the old RCW 9.48 (now
superseded as to all acts committed on or after
July 1, 1976, by RCW 9A.32). In that scheme, all
punishable homicides are either murder (first- or
second-degree) or manslaughter. Murder in the
first degree includes both premeditated murder
and homicides committed in the course of certain
felonies (first-degree felony-murder). RCW
9.48.030. Murder in the second degree includes
both intentional but unpremeditated homicides,
and homicides committed in the course of all
other felonies (second-degree felony-murder).
Petitioner is charged under this latter section.
RCW 9.48.040(2). Manslaughter is all other
nonjustified or nonexcused homicides. RCW
9.48.060. A homicide is manslaughter under this
statute when the act resulting in death is
unlawful but not felonious, and when the killing
is unintentional. State v. Sill, 47 Wn.2d 647,
289 P.2d 720 (1955).
The felony
alleged in this case is second-degree assault.
The statute is RCW 9.11.020 (now superseded by
RCW 9A.36). The relevant portion of the statute
is as follows:
[*305] RCW
9.11.020 Assault in the second degree . . .
[***8] Every person who, under circumstances not
amounting to assault in the first degree --
. . .
(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 . . .
[**1322] Under
the second section of the second-degree murder
statute, a second-degree assault which results in
death becomes murder in the second degree. RCW
9.48.040(2). The second-degree murder statute is
as follows:
RCW 9.48.040
Murder in the second 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 [the first-degree
murder statute].
In this case the
alleged assault on William Wesler is the felony
giving rise to the charge of second-degree
felony-murder. The assault is also the same act
which caused his death. Thus, the felony
underlying [***9] the murder charge is the very
act which constitutes the murder. The proposed
rule of construction known as the merger
doctrine, as has been pointed out, is that an
assault resulting in a homicide is merged with
the homicide so that it no longer remains a
separate and distinct assault. Since there is
therefore no separate felonious assault, there is
no basis for felony-murder. The crime, if proved,
is a homicide, but not felony-murder. If the
merger doctrine just described were applied to
these statutes, the result would be that the
facts alleged in the information would not show a
felony-murder in the second degree, but would
constitute only manslaughter, that is,
"[a]ny homicide other than, murder in the
first degree, or murder in the second degree, and
not being excusable or justifiable." RCW
9.48.060. This would create [*306] a new category
of manslaughter, i.e., where the death results
from a felonious assault, contrary to this
court's construction of the manslaughter statute
in State v. Sill, supra. It is petitioner's
contention that this court is compelled, both as
a matter of sound statutory construction and by
constitutional law, to apply the merger [***10]
doctrine and classify the crime alleged here as
manslaughter. We decline to overrule State v.
Sill or apply the merger doctrine, for the
reasons stated hereafter.
I
Petitioner urges
this court to adopt the merger doctrine as a
matter of statutory construction where the
underlying felony is second-degree assault. She
contends adoption of the doctrine is necessary in
order to make sense of the statutory scheme and
preserve the basic distinctions among various
crimes of homicide. A close reading of the
homicide statute fails to support her position.
[1] Petitioner's
arguments that the merger doctrine is necessary
are complex and varied, but most rely on the
basic and erroneous assumption that intent to
kill is an element of second-degree felony-murder
under RCW 9.48.040(2). We can think of no simpler
or clearer way to state it: intent to kill is not
an element of second-degree felony-murder. See
New York Life Ins. Co. v. Jones, 86 Wn.2d 44, 541
P.2d 989 (1975). The theoretical basis of
felony-murder is that general malice (not intent
to kill) may be inferred from the malicious
felonious intent which must be present to prove
the underlying felony. Where malice [***11] is
present and homicide results, felony-murder may
be shown. Intent to kill is not the sine qua non
of felony-murder, either historically or in this
statutory scheme.
Thus, in order
to prove second-degree felony-murder in this case
the State must prove: (1) that petitioner
committed an assault in the second degree under
RCW 9.11.020(4) (willful assault on another with
a weapon likely to produce harm), and (2) that
the homicide was perpetrated while [*307]
petitioner was engaged in the commission of the
assault. No intent to kill need be shown.
[**1323] We must
therefore reject petitioner's numerous arguments
that the statutory scheme is distorted if the
merger doctrine is not applied, which are based
on the assumption that intent to kill is a
necessary element of second-degree felony-murder.
[2] Petitioner
further argues, however, that the second-degree
murder statute itself does not make sense unless
the merger doctrine is applied. The argument is
that without the merger doctrine, any homicide,
intentional or not, can be proved as a
second-degree murder under subsection (2) of RCW
9.48.040 by alleging a willful assault. Thus, it
is claimed subsection (1) of [***12] RCW
9.48.040, which defines second-degree murder
where the homicide is unpremeditated but
committed with intent to kill, is rendered
meaningless, because the State will never need to
allege or prove intent to kill.
It is true that
where a willful assault has resulted in death, a
prosecutor can allege and prove second-degree
felony-murder under subsection (2) and not have
to show intent to kill. This does not, however,
render subsection (1) meaningless, because there
are many conceivable circumstances in which an
intent to kill is both present and clearly
manifested. In these circumstances the State may
properly charge under subsection (1). In practice
it may be that most second-degree murders are
proved through subsection (2), but as long as
clear cases of unpremeditated acts with a
manifest intent to kill are conceivable,
subsection (1) is not meaningless.
Our conclusion
that the merger doctrine is not necessary to make
sense of the statutory scheme, and should
therefore be rejected, was the reason this court
declined to adopt the doctrine in State v.
Harris, supra. The legislature has taken no steps
to change the Harris rule. Other states which
have declined to adopt [***13] the merger
doctrine have also done so on the grounds it was
not required by their statutes. See Baker v.
State, 236 Ga. 754, 225 S.E.2d 269 [*308] (1976);
People v. Viser, 62 Ill. 2d 568, 343 N.E.2d 903
(1975); Hilliard v. Texas, 513 S.W.2d 28 (Tex.
Crim. App. 1974); Robles v. State, 188 So. 2d 789
(Fla. 1966). In fact, the early cases adopting
the doctrine, in New York, Missouri and Kansas
did so in order to avoid the wholly unacceptable
result, under the applicable statutory scheme of
the state involved, that all homicides not
justified or excused become first-degree murder.
See State v. Clark, 204 Kan. 38, 460 P.2d 586
(1969), discussing State v. Fisher, 120 Kan. 226,
243 P. 291 (1926); People v. Moran, 246 N.Y. 100,
158 N.E. 35 (1927); State v. Shock, 68 Mo. 552
(1878). We are not faced with such a faulty
statutory scheme here.
[3] More
recently state courts adopting the doctrine have
purported to follow the reasoning of the early
cases, but have not shown their statutes are
similar to the statutes construed in the early
cases. See Massie v. State, 553 P.2d 186 (Okla.
Crim. App. 1976); People v. Ireland, 70 Cal. 2d
522, 450 [***14] 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). It can be assumed these courts
were persuaded the doctrine was desirable as a
policy matter, as a step toward limiting the
scope of the admittedly harsh felony-murder rule.
Such a rationale for application of the rule is
popular with commentators. See, for example,
Comment, The Merger Doctrine as a Limitation on
the Felony-Murder Rule: A Balance of Criminal Law
Principles, 13 Wake Forest L. Rev. 369 (1977).
Nonetheless, the
intent of the legislature to punish those who
commit a homicide in the course of a felony under
the applicable murder statute is clear. There is
no basis for assuming the rule was not meant to
apply where the underlying felony is assault.
Furthermore, the felony-murder rule itself has a
firm historical basis in the criminal law, and
the authority of the legislature to adopt the
rule, apart from the constitutional objections we
consider next, is not questioned. We find the
suggested policy basis for applying [*309] the
merger doctrine under [**1324] these
circumstances both inadequate to override the
[***15] legislative intent clearly expressed in
the homicide statute and an invasion of
legislative power to define crimes.
II
Petitioner next
contends this court is required as a matter of
constitutional law to adopt the merger doctrine
in cases where second-degree assault is the
underlying felony. Her constitutional arguments,
we note, are applicable to the operation of the
felony-murder rule generally, and are not
confined in theory to cases where the underlying
felony is assault. Her attack is thus on the
constitutionality of the felony-murder rule per
se.
In the majority
decision in State v. Thompson, supra, in which we
rejected for a second time the application of the
merger doctrine to our homicide statutes, we
acknowledged explicitly the view that the merger
doctrine did not involve constitutional issues.
State v. Thompson, supra at 17. A strong dissent
disagreed, raising the very constitutional
questions petitioner urges now. Our holding,
which implicitly rejected the constitutional
arguments, was appealed to the United States
Supreme Court under 28 U.S.C. @ 1257(2), an
appeal available as of right when properly taken.
The appellant there alleged RCW 9.48.040(2)
[***16] unconstitutionally deprived her of due
process and equal protection of the laws, the
very constitutional grounds now urged by
petitioner Wanrow. The appeal was dismissed in
October 1977 after discretionary review of
petitioner Wanrow's motion was granted by this
court, "for the want of a substantial
federal question." Thompson v. Washington,
434 U.S. 898, 54 L. Ed. 2d 185, 98 S. Ct. 290
(1977).
The United
States Supreme Court has unequivocally ruled that
a summary dismissal of an appeal under section
1257(2) for want of a substantial federal
question is a decision on the merits. Hicks v.
Miranda, 422 U.S. 332, 45 L. Ed. 2d 223, 95 S.
Ct. 2281 (1975). That court's dismissal of the
appeal in Thompson is therefore binding on this
court [*310] as a decision on the merits of the
federal constitutional issues of due process and
equal protection raised there. Petitioner
maintains the Thompson dismissal should not be so
construed, that the constitutional issues there
were not properly raised and the dismissal could
therefore not be a dismissal on the merits. We
cannot agree.
[4] The question
whether a constitutional issue was properly
raised goes to the jurisdiction [***17] of the
United States Supreme Court over the appeal.
Where that court dismisses, on the merits, for
want of a substantial federal question on such an
appeal, it has obviously already decided the
jurisdictional question itself. We cannot
disregard its decision on jurisdiction and
independently determine whether that court had
jurisdiction or not. As explained in Hicks v.
Miranda, supra at 344, the Supreme Court of the
United States has no discretion to refuse
adjudication when an appeal is properly presented
under section 1257(2). It is not, however,
required to give the appeal plenary
consideration. A summary dismissal for want of a
substantial federal question is thus the method
by which the court dismisses the appeal on the
merits. Hicks v. Miranda, supra. Petitioner
maintains that Maryland & Virginia Eldership
of Churches of God v. Church of God, 396 U.S.
367, 24 L. Ed. 2d 582, 90 S. Ct. 499 (1970), is
authority for the proposition that the United
States Supreme Court may dismiss for want of a
substantial federal question when the state court
disposed of the issue on state grounds, where no
federal question was properly raised. However,
that case was not disposed [***18] of summarily,
as was Thompson. A decision was filed in the
case, and even though that decision ends with the
phrase "dismissed for want of a substantial
federal question," it is not controlling
authority for the proposition that a case
summarily dismissed on those grounds is not a
decision on the merits. Hicks v. Miranda, supra,
on the other hand, is controlling [**1325]
authority for the proposition that such a
dismissal, when summary, is a decision on the
merits. We [*311] therefore deem the action of
the court on the Thompson appeal controlling as
to the constitutional issues raised there.
[5] Even if
Thompson were not controlling on the
constitutional questions, however, we would reach
the same result, for we find no violation of due
process or equal protection in the felony-murder
rule. n1
- - - - - - - -
- - - - - - - - - -Footnotes- - - - - - - - - - -
- - - - - - -
n1 The approach
we take is consistent with the opinions of
Justices Blackmun and Rehnquist in Lockett v.
Ohio, 438 U.S. 586, 57 L. Ed. 2d 973, 98 S. Ct.
2954 (1978) (Blackmun, J., concurring in part and
concurring in the judgment, at 594 n.2;
Rehnquist, J., concurring in part and dissenting,
at 628).
- - - - - - - -
- - - - - - - - -End Footnotes- - - - - - - - - -
- - - - - - - [***19]
Petitioner's due
process argument is once again based on the
erroneous assumption that intent to kill is a
necessary element of second-degree felony-murder.
The felony-murder rule, she argues, conclusively
presumes the existence of an intent to kill from
the existence of the malicious felonious intent,
in this case, an intent to commit assault. This
conclusive presumption, it is argued, shifts the
burden of proof to petitioner to prove the lack
of intent to kill, requiring her to come forward
and testify, and thereby infringing on her
privilege against self-incrimination. Furthermore
petitioner argues, since the statute does not
state that intent to kill is a necessary element,
the issue is not presented to the jury. This, she
claims, deprives her of a fair trial and trial by
jury of each element of the crime.
Petitioner's
argument once again ignores the fact that intent
to kill is not an element of second-degree
felony-murder. See New York Life Ins. Co. v.
Jones, supra. The intent necessary to prove the
felony-murder is the intent necessary to prove
the underlying felony. That intent must be proved
by the State as a necessary element of the crime,
and the question whether [***20] it was present
is presented to the jury. The argument that the
felony-murder presumes the existence of intent to
kill misconstrues the nature of the felony-murder
rule and must be rejected. Both state and federal
courts have rejected the argument that the
felony-murder rule presumes the existence of an
intent to kill, or [*312] any other intent
necessary for the crime of murder, in violation
of the due process clause. Westberry v. Murphy,
535 F.2d 1333 (1st Cir. 1976), cert. denied, 429
U.S. 889 (1977); People of the Territory of Guam
v. Root, 524 F.2d 195 (9th Cir. 1975), cert.
denied, 423 U.S. 1076, 47 L. Ed. 2d 86, 96 S. Ct.
861 (1976); U.S. ex rel. Rock v. Pinkey, 430 F.
Supp. 176 (N.D. Ill. 1977); State v. Nowlin, 244
N.W.2d 596 (Iowa 1976); Warren v. State, 29 Md.
App. 560, 350 A.2d 173, review denied, 278 Md.
738 (1976).
By contrast,
petitioner has cited no case, and we know of
none, which holds the felony-murder rule violates
due process, the privilege against
self-incrimination or the right to trial by jury.
Petitioner also
argues that the felony-murder rule gives the
prosecutor an unconstitutional degree of
discretion to choose the [***21] statute under
which her acts will be prosecuted in violation of
equal protection guaranties. Under the facts of
this case, she points out, the prosecutor could
charge second-degree assault, manslaughter or
second-degree murder. Petitioner relies on Olsen
v. Delmore, 48 Wn.2d 545, 295 P.2d 324 (1956) in
which we held that a statute which prescribes
different degrees of punishment for the same acts
committed under the same circumstances by persons
in similar situations violates equal protection.
[6] We have also
held, however, that no constitutional defect
exists when the crimes which the prosecutor has
discretion to charge have different elements.
State v. Reid, 66 Wn.2d 243, 401 P.2d 988 (1965).
That is the case here. Although the events giving
rise to the prosecution of petitioner may support
charges for varying crimes carrying varying
punishments, the elements [**1326] of those
crimes are different. Proof of the elements of
one does not constitute proof of the elements of
another. Nor does it violate petitioner's right
to equal protection that the prosecutor may
choose to enforce one criminal statute against
her and not another. The discretion vested in
[***22] the prosecutor to selectively enforce
criminal statutes is not unconstitutional if not
based on unjustifiable standards. State v. Lee,
87 Wn.2d 932, [*313] 558 P.2d 236 (1976).
Petitioner does not contend the decision to
prosecute her in this case was based on
arbitrary, unreasonable, or otherwise
insupportable grounds. We therefore conclude she
has not been denied equal protection.
The order below
denying petitioner's motion to dismiss count 1 of
the indictment against her is affirmed and the
case is remanded for further proceedings.
CONCURBY: HICKS
CONCUR: Hicks,
J. (concurring)
Were I a member
of the legislature, I would vote to adopt the
merger rule where assault is the precedent felony
in a felony-murder charge, for that seems the
fairer rule to me. Nonetheless, I concur in the
result in this case for the reason set forth in
State v. Thompson, 88 Wn.2d 13, 17-18, 558 P.2d
202 (1977), where we stated:
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 code,
effective July 1, [***23] 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 years since Harris [State v. Harris, 69 Wn.2d
928, 421 P.2d 662 (1966)] . . .
While the
legislature did not adopt the merger rule
following Harris, it had an opportunity to do so
when it substantially modified the state criminal
code effective July 1, 1976. Therefore, I view
this case in the same light as one coming within
our rule that following this court's construction
of a statute, its reenactment without change
indicates legislative approval of the
construction. Consequently, I believe that if the
merger rule is to be adopted for a felony-murder
case where assault is the precedent felony, the
legislature, rather than this court, should make
the change.
DISSENTBY: UTTER
DISSENT: [*314]
Utter, J. (dissenting)
I dissent from
the majority which construes our second-degree
felony-murder statute in a way I believe denies
the defendant both due process and equal
protection guaranteed by the state and federal
constitutions. Many of my reasons for so
believing are stated in my dissent [***24] in
State v. Thompson, 88 Wn.2d 13, 18, 558 P.2d 202
(1977).
I will not
attempt to restate each of the points made in
that dissent. In that case, as here, neither
necessity nor previous cases compel the result
reached by the majority. I will point out only
the special areas of disagreement I have with the
present opinion.
First and most
important, despite the majority's conclusion to
the contrary, this case, coming soon after our
decision in Thompson, both demonstrates and
insures that a specific intent to kill is no
longer a meaningful part of the second-degree
murder provision. Heretofore RCW 9A.32.050(1) has
reflected this state's conformance with the
accepted view that specific intent murder,
without the added ingredients of premeditation
and deliberation, is the first element of murder
in the second degree. See W. LaFave & A.
Scott, Handbook on Criminal [**1327] Law 568
(1972). But there is no prosecutor with knowledge
of the law who would undertake to prove the
existence of such a specific intent when the
absence of the mental element will make no legal
difference to the disposition of the case. Thus,
the practical effect of the majority's decision
[***25] here makes the statutory provision a
historic relic, abandoned by prosecutors to a
simple proof of second-degree assault with
resulting death.
Second, I
believe the majority cannot correctly assume that
the legislature intends the felony-murder rule to
apply to an underlying felony of assault. The
existence of a scheme of homicide provisions,
varying in penalties with the degree of a
defendant's culpability, and including
manslaughter provisions more appropriate to the
unintentional homicide considered here than is
the felony-murder provision, manifests a
legislative purpose reserving the felony-murder
[*315] rule for felonies not included-in-fact
within the homicide itself. The majority
construction of the felony-murder provision
frustrates rather than furthers the legislature's
purpose in enacting these homicide statutes.
Third, I cannot
agree with the implication by the majority that
adoption of the merger doctrine would require
overruling State v. Sill, 47 Wn.2d 647, 289 P.2d
720 (1955). Sill was a case in which the
defendant was convicted of manslaughter and
appealed that conviction. The court, in setting
out the nature of the crime, noted manslaughter
to be [***26] an unintentional killing "by
one committing an unlawful, but not felonious,
act." Sill, at 651. To the extent this short
remark apparently distinguished manslaughter from
murder, it was wholly dicta to the decision,
since at issue was whether the defendant would be
acquitted of the manslaughter charge -- not
whether he should have been found guilty of
murder. n2 Thus Sill need not be overruled in
turning away from the mistaken course the
majority has chosen in Thompson.
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n2 State v.
Turpin, 158 Wash. 103, 290 P. 824 (1930), cited
by the court in Sill for the definition of
manslaughter, similarly arose from a verdict of
manslaughter, to which any distinction between
manslaughter and murder would be irrelevant.
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Finally, the
cases cited by the majority from other
jurisdictions to suggest the same result has been
reached by these jurisdictions, are not, I
believe, strong support for the propositions for
which they are cited. In Robles v. State, 188 So.
2d 789 (Fla. 1966), the application [***27] of
the felony-murder doctrine was predicated upon
the defendant's commission of burglary, during
the course of which he stabbed to death the
victim. While the burglary itself was in part
predicated upon an intent to commit felonious
assault within the victim's home, the Florida
court's opinion demonstrates that it was the
defendant's conduct not included-in-fact within
the homicide which permitted a verdict of
felony-murder. Indeed, the court emphasized that
the Florida statutes precluded assault from
serving as a foundation to felony-murder, and
thus there was no need [*316] for judicial
adoption of the merger doctrine. The majority's
use of Baker v. State, 236 Ga. 754, 225 S.E.2d
269 (1976), also does not support its cause. In
that case, the Georgia court concluded that
unique features of the Georgia homicide statutes
precluded it from adopting the merger doctrine.
Georgia's manslaughter provisions are expressly
so narrow, the court found, that to find no guilt
could attach under the felony-murder provision
would result in the defendant's freedom from any
charge of homicide. The court proceeded to note
that where the manslaughter statutes are those of
the "reckless" [***28] or
"negligent" homicide type, precisely
those we have in Washington, RCW 9A.32.060(1)(a)
and 9A.32.070, a court may adopt a merger
analysis.
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n3 In a
subsequent case, Malone v. State, 238 Ga. 251,
232 S.E.2d 907 (1977), the same Georgia court
held that commission of voluntary or involuntary
manslaughter under the state's statutes will not
invoke the felony-murder rule as to the death of
the main victim.
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I believe the
majority does not succeed in making its case. The
view adopted by the [**1328] majority here, as in
Thompson, remains at odds with a broad
construction of the enacted scheme of homicide
provisions. Already the first scholarly review of
Thompson has registered a distinct criticism of
the result reached there. Comment, An Assault
Resulting in Homicide may be Used to Invoke the
Felony-Murder Rule, 13 Gonzaga L. Rev. 268
(1977).
For these
reasons I dissent.
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