State v. Green

• Decision Date: 28 August 1980
• Docket Number: No. 44705,44705
• Citation: 94 Wn.2d 216,616 P.2d 628
• Parties: STATE of Washington, Respondent, v. Michael Charles GREEN, Appellant.
• Court: Washington Supreme Court

Page 216

94 Wn.2d 216

616 P.2d 628

STATE of Washington, Respondent, v. Michael Charles GREEN, Appellant.

No. 44705.

Supreme Court of Washington, En Banc.

Aug. 28, 1980.

Timothy K. Ford, Seattle, Kempton, Savage & Gossard, Anthony Savage, John Strait, Seattle, for appellant.

Norm Maleng, King County Pros., J. Robin Hunt, Deputy Pros. Atty., Seattle, for respondent.

STAFFORD, Justice.

Michael Charles Green petitions this court for reconsideration of our decision in State v. Green, 91 Wash.2d 431, 588 P.2d 1370 (1979) (Green I ) on three major issues: (1) our ruling that a statement made by appellant was not the product of custodial interrogation in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966); (2) our ruling that the State did not possess unfettered discretion under RCW 9A.32.045(7) ¹ and .030(1)(c)(2) and (5) to seek varying degrees of punishment for different persons who commit identical crimes thus violating equal protection of the law; and (3) our disposition of the issues raised by an allegation that appellant committed aggravated murder in the first degree in the furtherance of first degree kidnapping (kidnapping) or first degree rape (rape). For the reasons set forth in Green I we adhere to our original disposition of the Miranda and equal protection issues. We depart from Green I, however, after reconsidering the issue of kidnapping as an element of aggravated first degree murder as defined by Initiative Measure 316, § 2. After considering the evidence most favorable to the State, we conclude there is not substantial evidence to support a determination of kidnapping. This conclusion is also compelled by the recent decision of the United States Supreme Court, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Moreover, the nature of the verdict form in this case makes it impossible for us to know if the jury was unanimous in determining whether aggravated first degree murder was committed in the furtherance of kidnapping or rape. Therefore, the charge of aggravated first degree murder must be remanded, based as it is on the remaining element of first degree rape or attempted first degree rape.

Pursuant to RCW 9A.32.045(7), the charge of aggravated murder in the first degree must be established by proving beyond a reasonable doubt that appellant caused the victim's death in the course of or in the furtherance of rape, (RCW 9A.44.040), or kidnapping, (RCW 9A.40.020). While rape and kidnapping are elements of aggravated murder in the first degree, each is a separate and distinct major crime having specific elements which also must be proved beyond a reasonable doubt. Thus, the initial question is whether those separate and distinct crimes, or either of them, have been established under either the substantial evidence test or the reasonable doubt test of Jackson v. Virginia, supra.

In dealing with the claimed inadequacy of proof to establish the elements of kidnapping, Green I held, 91 Wash.2d at page 442, 588 P.2d at page 1377: "(r) eview of the sufficiency of evidence is limited to a determination of whether the State has produced substantial evidence tending to establish circumstances from which a jury could reasonably infer the fact to be proved." (First italics ours.) Then, after citing State v. Randecker, 79 Wash.2d 512, 487 P.2d 1295 (1971), Green I held: "(i)n determining whether the necessary quantum of evidence exists, it is unnecessary for the (reviewing) court to be satisfied of guilt beyond a reasonable doubt. It is only necessary for it (the reviewing court) to be satisfied that there is substantial evidence to support the State's case or the particular element in question." State v. Green, supra, 91 Wash.2d at 442-43, 588 P.2d at 1377. (Italics ours.) Thereafter Green I reviewed the evidence and concluded substantial evidence existed from which the jury could have inferred appellant killed the victim in the course of or in furtherance of kidnapping, a conclusion with which we now disagree after more careful reflection.

There is, however, an even more salient reason for departing from our view in Green I. Shortly after the publication of Green I, the United States Supreme Court held in Jackson v. Virginia, supra, that on review the proper test is whether there was sufficient evidence to justify a rational trier of fact to find guilt beyond a reasonable doubt. ² "After Winship (397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970)) the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be not simply to determine whether the jury was properly instructed, but to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, supra, 443 U.S. at 318, 99 S.Ct. at 2789. (Italics ours.) This inquiry does not require the reviewing court to determine whether it believes the evidence at trial established guilt beyond a reasonable doubt. "Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, supra at 319, 99 S.Ct. at 2789. (Italics ours.) The criterion impinges upon a jury's discretion only to the extent necessary to protect the constitutional standard of reasonable doubt. As pointed out in Jackson at page 320, 99 S.Ct. at page 2790, a lesser standard would fail "to supply a workable or even a predictable standard for determining whether the due process command of Winship has been honored."

Accordingly, the appropriate test for determining the sufficiency of the evidence of kidnapping is not that applied in Green I, i. e., whether, after viewing the evidence most favorable to the State, there is substantial evidence to support kidnapping. The issue, as framed in Jackson v. Virginia, supra, is whether, after viewing the evidence most favorable to the State, any rational trier of fact could have found the essential elements of kidnapping beyond a reasonable doubt.

The Green I "substantial evidence" rule of review cannot be equated with Jackson's "reasonable doubt" rule. The clear statement of the rule employed by Green I precludes our holding that the "substantial evidence" rule of review and the "reasonable doubt" rule of review are the same albeit differently stated. Numerous cases following Randecker, including Green I, have reiterated and relied upon the obvious difference. Nevertheless, despite the clear difference we hold the evidence is insufficient to meet either rule of review.

In order to determine whether the facts pertaining to kidnapping satisfy either the substantial evidence test or the more rigorous Jackson test, it is necessary to review the facts surrounding the victim's death. The examination must be made in a manner as devoid of subjective reactions, argument or comment as possible.

Shortly before 4 p. m. on September 28, 1976, Kelly Emminger, an 81/2-year-old girl, took a younger child for a walk in the Capital Hill area of Seattle. They headed down an alley adjacent to the apartment house where both lived. At approximately 5 p. m., witnesses both within and without the apartment heard screams coming from the alley. At first the sounds were disregarded as the noise of children playing. Within 15 seconds of the first scream, however, Barry Miners, a resident of the apartment, looked from his second story balcony and saw two people almost directly below him. They were huddled on the sidewalk bordering the alley. He recognized one as Kelly, the other was an adult male with shoulder-length brown hair. As Kelly screamed and kicked, the man lifted her from behind and was observed to place his hand over her mouth in an apparent attempt to silence her. At that time Kelly was fully clothed.

Mr. Miners watched the man carry Kelly a short distance to his right, along the sidewalk, before they disappeared around the corner toward the back of the apartment. The screams ceased within moments after they passed from view. Mr. Miners went to a window overlooking the sidewalk toward which the man and Kelly had moved but saw and heard nothing further. He returned to the balcony and directly below, where the pair had huddled, he saw a butcher knife lying in one of two adjoining pools of blood.

Mr. Miners left his apartment and ran down the back stairs from the second floor. As he reached the stair landing above the apartment's exterior loading area, ³ he observed some blood on the carpet below him. He also saw the man near the bottom of the stairs, holding Kelly. They were about 8 feet away, near the entrance to the exterior loading area. Kelly was quiet and very pale. Although she was clearly unconscious, Mr. Miners was not sure whether she was dead. Her clothing, from the middle part of her body to her ankles, had been ripped away. The man's clothing was covered with blood.

Mr. Miners asked the man whether help was needed and he replied "yes, she's been hurt pretty bad. Call an ambulance." Mr. Miners departed to summon aid and was gone about one minute. Upon his return he found the man had moved Kelly to the lawn in back of the apartment building. At that point Miners felt sure she was dead. He later identified the man as appellant Green.

In setting the scene for the foregoing events we also note the incident began on the sidewalk in front of the ground-level apartment occupied by Herman Tower and his parents. Kelly screamed and as Herman looked out the window he saw Green, not more than 10 feet away, lift Kelly off her feet and carry her kicking and screaming toward the corner of the apartment building. She ceased screaming as she and Green disappeared from view around the corner. As Herman exited his apartment, he saw the two pools of blood and the butcher knife on the sidewalk near his door.

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