Bowman v. State

Decision Date21 November 2007
Docket NumberNo. 78739-5.,78739-5.
Citation172 P.3d 681
PartiesIn the Matter of the Personal Restraint Petition of Jacob BOWMAN, Petitioner, v. STATE of Washington, Respondent. In the Matter of the Personal Restraint Petition of Johnny Nav, Petitioner, v. State of Washington, Respondent.
CourtWashington Supreme Court

Suzanne Lee Elliott, Attorney at Law, Jason Brett Saunders, Washington Appellate Project, Seattle, WA, for Petitioner.

Hilary A. Thomas, Kimberly Anne Thulin, Whatcom County Prosecutors Office, Bellingham, WA, Andrea Ruth Vitalich, King County Prosecutor's Office, Seattle, WA, for Respondent.

MADSEN, J.

¶ 1 Petitioner Johnny Nav pleaded guilty to second degree felony murder with the predicate crime of reckless endangerment, and petitioner Jacob Bowman pleaded guilty to second degree felony murder with the predicate crime of drive-by shooting.1 Petitioners seek review of a Court of Appeals decision dismissing their respective personal restraint petitions as time-barred. The issue presented here is whether our holding in In re Personal Restraint of Andress, 147 Wash.2d 602, 56 P.3d 981 (2002), precludes use of the offense of drive-by shooting or reckless endangerment as a predicate for the crime of second degree felony murder. Because we conclude it does not, we affirm the Court of Appeals.

FACTS

¶ 2 In 1997 Johnny Nav pleaded guilty to second degree felony murder with the predicate crime of reckless endangerment. In 1998 Jacob Bowman pleaded guilty to second degree felony murder with the predicate crime of drive-by shooting. Both petitioners fired weapons from a vehicle, killing another person.

¶ 3 Bowman and Nav filed pro se personal restraint petitions in October 2003 and January 2005, respectively, seeking relief from confinement on their second degree murder convictions in light of this court's decision in Andress. The acting chief judge of the Court of Appeals linked the two petitions and the court subsequently dismissed Bowman's and Nav's personal restraint petitions as time-barred under RCW 10.73.090(1) (limiting collateral review to one year after the judgment becomes final). Because Bowman and Nav were convicted of drive-by shooting/reckless endangerment and not assault, the Court of Appeals declined to "extend" Andress' holding. In re Pers. Restraint Petition of Bowman, noted at 132 Wash.App. 1017, slip op. at 4-5, 2006 WL 848413, *2 (2006). Accordingly, the court held Andress is not a change in the law material to petitioners' convictions because that decision was "limited to whether the crime of assault could be used as a predicate for second degree felony murder." Id. at 4, 2006 WL 848413, *2 (emphasis added); see RCW 10.73.100(6) (providing an exception for a significant change in the law, which is material to the conviction or sentence). Thus, the court determined Bowman's and Nav's petitions were not exempt from the one year time bar in RCW 10.73.090. Bowman, slip op. at 5-6, 2006 WL 848413, *2. Bowman and Nav sought review of the Court of Appeals' decision, which we granted at 158 Wash.2d 1002, 148 P.3d 1045 (2006).

ANALYSIS

¶ 4 In Andress we were asked to decide whether assault could serve as a predicate crime to support a conviction for second degree felony murder following the 1976 amendment to the second degree murder statute, former RCW 9A.32.050 (1975). Under the earlier statute, a person could be convicted of second degree felony murder in connection with the killing of another "[w]hen 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 [former] RCW 9.48.030." Former RCW 9.48.040(2) (1909).

¶ 5 Former RCW 9.48.040 was repealed effective July 1, 1976, when the legislature recodified some criminal statutes, amending some of them at the same time. Laws of 1975, 1st Ex.Sess., ch. 260, § 9A.32.050 (effective July 1, 1976), see Laws of 1975, 1st Ex.Sess., ch. 260, § 9A.04.010; Laws of 1975-76, 2d Ex.Sess., ch. 38, § 4. The new statute defining second degree felony murder changed the language relating to felony murder, providing in relevant part that

(1) A person is guilty of murder in the second degree when:

....

(b) He commits or attempts to commit any felony other than those enumerated in RCW 9A.32.030(1)(c), and, in the course of and in furtherance of such crime or in immediate flight therefrom, he, or another participant, causes the death of a person other than one of the participants.

Former RCW 9A.32.050 (1976) (emphasis added). In Andress, we held assault cannot serve as the predicate felony for second degree murder under former RCW 9A.32.050 because the "`in furtherance of' language would be meaningless as to that predicate felony." Andress, 147 Wash.2d at 610, 56 P.3d 981. We concluded, "unlike the cases where arson is the predicate felony, the assault is not independent of the homicide." Id. (emphasis added).2

¶ 6 In reaching our conclusion, we carefully reviewed the history of the felony murder rule and the relevant statutory and decisional law that had developed since this court first rejected the argument that assault cannot serve as the predicate felony to felony murder. We noted that in 1966, this court first considered, in State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966), whether the felony murder rule should apply to homicides where the predicate felony is an assault on the person killed. Andress, 147 Wash.2d at 607, 56 P.3d 981. In Harris we recognized that at the time the felony murder doctrine was first recognized, nearly all felonies were punishable by death. Harris, 69 Wash.2d at 931, 421 P.2d 662. We noted that, over time, offenses that once were characterized as misdemeanors and gross misdemeanors were made felonies by statutes, and as a result the common law rule became too harsh. Andress, 147 Wash.2d at 606, 56 P.3d 981. We observed that the harsh impact of the rule was ameliorated in American jurisdictions in several ways, including adoption of a "merger rule." Under that rule "`the precedent felony, if an assault on the person killed, is merged in the resulting homicide.'" Id. at 606, 56 P.3d 981 (quoting Harris, 69 Wash.2d at 932, 421 P.2d 662). Put another way, an assault cannot be the predicate felony for felony murder because it is not a felony independent of the homicide. Id. at 607, 421 P.2d 662.

¶ 7 As we noted in Andress, this court reaffirmed its decision in Harris, rejecting the merger rule in State v. Wanrow, 91 Wash.2d 301, 588 P.2d 1320 (1978) and State v. Thompson, 88 Wash.2d 13, 558 P.2d 202 (1977). Andress, 147 Wash.2d at 607, 56 P.3d 981. But, we also noted that the cases rejecting the merger rule preceded the 1976 amendment. Thus, we turned for guidance to State v. Leech, 114 Wash.2d 700, 790 P.2d 160 (1990), in which we had construed the "`in furtherance of'" language of the amendment to mean that the death "`was sufficiently close in time and place to the arson to be part of the res gestae of that felony.'" Andress, 147 Wash.2d at 609, 56 P.3d 981 (quoting Leech, 114 Wash.2d at 709, 790 P.2d 160). This construction was necessary in order to avoid the absurd results that would have followed if the "in furtherance of" language applies only to the time when the arson fire was set. Id.

¶ 8 Applying our construction of the "in furtherance of" language from Leech, we reasoned that assault could not be used to support the charge of second degree felony murder. Specifically, we reasoned that as to assault, it made no sense to say that a death is sufficiently close in time and place to an assault as to be part of the res gestae of the assault. Andress, 147 Wash.2d at 610, 56 P.3d 981. Thus, we concluded that the legislature did not intend that assault serve as a predicate offense for second degree felony murder after the 1976 amendment to the statute. Id. at 610-11, 56 P.3d 981.

¶ 9 Bowman and Nav claim that the reasoning of Andress applies with equal force to their predicate crimes and does not require, as the State suggests, a "broad application"3 or an extension of Andress, as the Court of Appeals held. In particular, they rely on a passage from Andress where we observed that

[i]t is nonsensical to speak of a criminal act — an assault — that results in death as being part of the res gestae of that same criminal act since the conduct constituting the assault and the homicide are the same. Consequently, in the case of assault there will never be a res gestae issue because the assault will always be directly linked to the homicide.

Id. at 610, 56 P.3d 981. Nav and Bowan contend that under Andress' reasoning, drive-by shooting, like assault, may not serve as the predicate offense to second degree felony murder because the drive-by shooting is not independent of and will always be "directly linked to the homicide." Id.

¶ 10 As explained below, Nav's and Bowman's contention that Andress is material to their cases is indeed an unduly expansive view of that decision.

¶ 11 First, as Andress explains, the felony murder statute is intended to apply when the underlying felony is distinct from, yet related to, the homicidal act. In the case of the crime of assault that results in death, the underlying felony is not distinct from the homicide. That is because assault statutes punish conduct causing bodily injury, or the fear of bodily injury, to another. In other words, assault can be viewed as a continuum, with the furthest point being death. As the Court of Appeals recently observed, homicide cannot result without an assault. State v. Daniels, 124 Wash.App. 830, 841, 103 P.3d 249 (2004). Thus, in Andress we concluded that applying the Leech construction of "in furtherance of" to the predicate crime of assault rendered an absurd result.

¶ 12 The same cannot be said when the predicate crime is drive-by shooting. Drive-by shooting was initially codified as first degree reckless endangerment....

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