In re Personal Restraint of Andress

Decision Date24 October 2002
Docket NumberNo. 71170-4.,71170-4.
Citation56 P.3d 981,147 Wash.2d 602
PartiesIn re PERSONAL RESTRAINT Petition OF Shawn ANDRESS, Petitioner.
CourtWashington Supreme Court

MacDonald, Hoague & Bayless, Timothy Ford, Seattle, for Petitioner.

Norm Maleng, King County Prosecutor, James Whisman, Deputy, Deborah Dwyer, Deputy, Lee Yates, Deputy, Seattle, for Respondent.

Patricia Novotny, Seattle, Amicus Curiae on Behalf of WACDL.

MADSEN, J.

Personal restraint petitioner Shawn Andress was convicted of second degree felony murder. He urges this court to reconsider whether assault can serve as the predicate felony for second degree felony murder. We agree that the time has come to reassess this question. We conclude that in light of a change in the second degree felony murder statute that we have not previously considered in the context here and decisions that together illuminate the illogic of a conviction of second degree felony murder where assault is the predicate crime, assault cannot serve as the predicate felony for second degree felony murder. Accordingly we grant Andress's personal restraint petition on this issue, vacate his conviction for second degree felony murder, and remand for resentencing consistent with our opinion.

FACTS

Andress became involved in a fight outside a bar with Eric Porter and Edwin Foster. After the fight had continued for a time, Porter saw Foster stumble off holding his chest, and a little later Porter realized that both he and Foster had been stabbed by Andress. Foster died from the stabbing. The State charged Andress with second degree intentional murder and second degree felony murder with assault in the second degree as the predicate felony, arising from the stabbing of Foster, and first degree assault, arising from the stabbing of Porter; the information alleged that Andress committed each of these offenses while armed with a deadly weapon. In an amended information, the State dropped the second degree intentional murder alternative, leaving only the second degree felony murder charge predicated on assault as the underlying felony. The jury found Andress guilty of second degree felony murder (Foster) and second degree assault (Porter). The jury also returned a deadly weapon verdict on each count.

Andress appealed, and the Court of Appeals affirmed his convictions in an unpublished opinion. This court denied discretionary review of the Court of Appeals decision. State v. Andress, 138 Wash.2d 1002, 984 P.2d 1034 (1999). Andress filed a personal restraint petition, which the Acting Chief Judge of the Court of Appeals dismissed. Andress then sought discretionary review, RAP 16.14(c), which we granted only on the question whether assault may serve as the predicate felony for second degree felony murder.

ANALYSIS

Andress raises both constitutional and nonconstitutional challenges to his felony murder conviction. We turn to the nonconstitutional challenge first. Where a personal restraint petitioner asserts nonconstitutional grounds for relief from personal restraint, the petitioner "must establish (1) he or she is being unlawfully restrained, (2) due to a `fundamental defect which inherently results in a complete miscarriage of justice.'" In re Pers. Restraint of Fleming, 129 Wash.2d 529, 532, 919 P.2d 66 (1996) (quoting In re Pers. Restraint of Cook, 114 Wash.2d 802, 812, 792 P.2d 506 (1990)). Andress maintains that when the Legislature changed the wording of the second degree felony murder statute in 1975, it became clear that assault could not serve as the predicate felony. We agree that the language of the statute, particularly in light of decisional law, does not encompass assault as a predicate felony. Our conclusion results from a careful review of the history of this question and the relevant statutory and decisional law that has developed since this court first rejected the argument that assault cannot serve as the predicate felony to felony murder. Since we agree that Andress is entitled to relief from personal restraint based upon his nonconstitutional challenge, we do not reach the constitutional challenges he raises.

In 1966, this court first considered whether the felony murder rule should apply to homicides where the predicate felony is an assault on the person killed. State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966). The court noted that the felony murder doctrine originated in the common law as early as 1536 in England. Id. at 931, 421 P.2d 662 (citing Albert E. Arent & John W. MacDonald, The Felony Murder Doctrine and its Application under the New York Statutes, 20 CORNELL L.Q. 288, 289 (1935); Mansell & Herbert's Case, 2 Dyer 128b (1536)). At the time the doctrine was first recognized, nearly all felonies were punishable by death. Harris, 69 Wash.2d at 931, 421 P.2d 662; see WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 7.5(a) (2002). As time passed, offenses that once were characterized as misdemeanors and gross misdemeanors were made felonies by statutory enactments, and as a result the common law rule became too harsh. This harshness was ameliorated in American jurisdictions in several ways, including limitations requiring that the defendant's actions proximately or legally cause the victim's death, that the attempted or completed predicate felony be dangerous to life, that the predicate felony be independent of the homicide, or that strict interpretation be made of the requirement that the death occur in the commission or attempted commission of a felony. Id. Limiting the felony murder rule to certain predicate felonies has taken various forms, with Washington limiting first degree felony murder to crimes that were generally felonies at common law, i.e., robbery in the first or second degree, rape in the first or second degree, burglary in the first degree, arson in the first or second degree, kidnapping in the first or second degree. RCW 9A.32.030(c); see LaFave & Scott, supra. However, the second degree felony murder statute is not similarly restricted; instead, the statute refers to "any felony other" than those referred to in the first degree felony murder provision. RCW 9A.32.050(b).

In Harris, the court was asked to adopt New York's "merger rule," that is, "the precedent felony, if an assault on the person killed, is merged in the resulting homicide." 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. The court declined to adopt the assault-felony murder merger rule, reasoning that the statutory schemes of Washington and New York were sufficiently distinct that the justification for the rule in New York did not apply in Washington. As the court observed, under New York law practically all cases of homicide resulted directly or indirectly from an assault. Id. Every homicide that was not justifiable or excusable would amount to first degree felony murder in the absence of the merger rule, with the result being that "all the second-degree murder and manslaughter statutes would have been emasculated." Id. at 933, 421 P.2d 662. Further, the court noted, absent the merger rule, it would never be necessary in New York to show intent to kill, deliberation or premeditation because every murder could be charged as first degree felony murder. Id. The court in Harris concluded that the same was not true in Washington, given the Legislature's specific designation of felonies that would result in a first or second degree felony murder charge. The court did note, though, that the felony murder doctrine might be in need of reform in Washington, but not in a case, such as Harris, where the defendant had, with gun in hand, threatened to kill several people, pointed the gun at one, and pulled the trigger. Harris, 69 Wash.2d at 934, 421 P.2d 662. The court added that the defendant was fortunate not to have been charged with first degree murder. Id.

The court subsequently adhered to its decision rejecting the merger rule. E.g., State v. Wanrow, 91 Wash.2d 301, 306-10, 588 P.2d 1320 (1978)

; State v. Thompson, 88 Wash.2d 13, 23, 558 P.2d 202 (1977). In Wanrow, the court again considered Washington's statutory scheme, concluding that it did not support adoption of the merger rule.1 In Thompson, however, the court recognized that "[m]ost 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." Id.,

88 Wash.2d at 17,

558 P.2d 202.

Harris, Wanrow, and Thompson all involved a prior version of the second degree felony murder statute, which provided:

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 [former] RCW 9.48.030.

Former RCW 9.48.040 (1974). Subsection (2) defined the crime of second degree felony murder.

Former RCW 9.48.040 was replaced 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 is the same version in effect now. It provides in relevant part:

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

(a) With intent to cause the death of another person but without premeditation, he causes the death of such person or of a third person; or
(b) He commits or attempts to commit any felony other than those
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