State v. Craig

• Decision Date: 20 September 1973
• Docket Number: No. 42756,42756
• Citation: 514 P.2d 151,82 Wn.2d 777
• Parties: STATE of Washington, Respondent, v. David Gene CRAIG, Appellant.
• Court: Washington Supreme Court

Page 777

82 Wn.2d 777

514 P.2d 151

STATE of Washington, Respondent, v. David Gene CRAIG, Appellant.

No. 42756.

Supreme Court of Washington, En Banc.

Sept. 20, 1973.

Rehearing Denied Nov. 29, 1973.

Mark E. Vovos, Spokane, for appellant.

Donald C. Brockett, Pros. Atty., LeRoy C. Kinnie, Deputy Pros. Atty., Spokane, for respondent.

ROSELLINI, Associate Justice.

The appellant and James Ethan Davis, Jr., were tried together and have taken separate appeals from judgments entered on verdicts of guilty of the crimes of robbery and murder in the first degree. Evidence before the jury showed that these two young men hailed a taxicab in downtown Spokane and directed the driver to an area on the outskirts of the city where they stabbed and beat him to death; that they left his body beside the road and drove the cab to the edge of a river where they abandoned it after attempting to submerge it; and that along the way they threw various items from the car, including the victim's hat and wallet and a small 'ditty bag,' all of which bore signs of having been searched.

The defendants were apprehended the following evening. At the trial both took the witness stand and testified concerning the killing. They admitted that they had intended to rob the driver when they boarded the taxicab but maintained that they had abandoned that intent prior to the attack on the victim and that this attack was the result of 'rage reaction,' induced by drugs which they had previously administered to themselves, and precipitated when the cab driver, mistakenly thinking that one of them was reaching for his wallet or money bag, struck at them with a lug wrench. It was their theory, argued to the jury, that, if they did not have the intent to rob at the time of the attack, the killing was not a 'felony-murder' and they were consequently guilty only of manslaughter. They admitted that they took the taxicab and disposed of various items which they found in it after the killing and did not claim that these acts were unintentional. According to their theory, however, this appropriation of the property of another could not be robbery because, the driver being dead at that point, it was not accomplished by force or by putting the deceased in fear.

This novel theory of defense was vigorously urged at the trial and is earnestly argued on appeal, but without citation of authority which tends to lend it validity. We will discuss the theory further as we take up the assignments of error which relate to it.

It is claimed that the trial court erred in refusing to allow a medical expert to give his opinion that the appellant did not intend to commit robbery at the moment he began to stab the taxi driver. The cases which he cites in support of his claim of error in this regard are cases which hold that, where the crime charged involves a specific intent, as opposed to a general criminal intent, evidence tending to prove that by reason of a mental condition, the defendant was incapable of forming such an intent is admissible. State v. Ferrick, 81 Wash.2d 942, 506 P.2d 860 (1973), is a recent case which enunciates this principle. The trial court advised the appellant's counsel that he might ask the doctor whether, in his opinion, the appellant's state of mind, as a result of the use of drugs, was such that he was incapable of forming the intent to commit robbery. This counsel declined to do.

For at least two reasons, the trial court properly refused to allow the appellant's counsel to elicit the doctor's opinion as to what the appellant's intention was at the time of the killing. First, the rule is that a doctor who was not a witness to the crime and does not have first hand knowledge of the defendant's state of mind at the time, may not give his opinion at to what that mental state was. State v. Tyler, 77 Wash.2d 726, 466 P.2d 120 (1970); State v. Farley, 48 Wash.2d 11, 290 P.2d 987 (1955); State v. Davis, 6 Wash.2d 696, 108 P.2d 641 (1940).

It would have been surprising to find a medical expert willing to testify that the appellant was incapable of forming an intent to rob, in light of the appellant's testimony. He admitted that he and Davis had entered the taxicab intending to rob the driver, and that they discussed their plan with each other while seated in the back seat. He testified that pursuant to the plan, they gave directions to the driver to take them to a 'make-believe' or 'fictitious' address, and that he, the appellant, placed on the floor at his feet a knife which he planned to use to intimidate the driver when he snatched his 'money bag' and which was used in the actual stabbing. The codefendant took off his belt and laid it across his lap, intending to use it to throw it around the driver's neck and hold him while the appellant grabbed his 'money bag.' It was only when the driver had stopped the taxicab to get a road map from the trunk and the codefendant Davis thought he saw him take a lug wrench from the trunk, that the two allegedly receided to abandon the robbery plan.

These are not the acts and designs of persons incapable of forming an intent to rob and it is in fact not a lack of capacity upon which the appellant relies, but rather an asserted defense that he had abandoned the intent to rob before the killing took place and was not thinking of robbery while he was in the act of committing the homicide. This brings us to a consideration of the second reason why the court did not err in refusing to allow the doctor to be questioned about the appellant's intent at the time of the killing--namely, that the appellant's state of mind at the time of the killing was immaterial, no defense of insanity having been interposed.

There is no contention that the alleged abandonment of criminal intent was communicated to the driver. That the driver had become suspicious of the pair's intentions was manifest by this time, according to their testimony, and they did and said nothing to allay these suspicions. On the contrary, they continued to pretend to be searching for an address and did not put their weapons away.

The appellant's theory assumes that regardless of these admitted facts, it was incumbent upon the state to show that he entertained, at the precise moment when the fatal attack was begun, the intent to commit robbery. If this was not a part of the state's burden, evidence of such mental state was irrelevant and other assignments of error relating to this defense are equally without merit. We turn to the statute.

RCW 9.48.030 provides:

The killing of a human being, unless it is excusable or justifiable, is murder in the first degree when committed either--

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(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, . . .

Nowhere in the statute is the state of mind of the defendant at the time of the killing made an element of the offense. Speaking of this statute in State v. Whitfield, 129 Wash. 134, 138--139, 224 P. 559, 561 (1924), we said that it substitutes the incidents surrounding certain felonies for the premeditation, deliberation or malice which otherwise would be necessary to constitute first-degree murder, and it is unnecessary to prove that the person who kills another in the commission of such a crime or the attempt to commit it or in withdrawing from the scene of its commission, had any malice, design or premeditation. In that case, the killing had occurred in connection with a rape of the victim. The defendant contended that the state should have designated in the information whether the killing took place during an attempt, consummation or flight. This court said:

The proof of the killing, together with the fact that it was committed in connection with a rape, is sufficient to constitute murder in the first degree. From the very nature of things--and the evidence in this case illustrates the situation as well as any case could--it is often impossible for the state to know at just what instant a killing was committed, whether it was done in the commission of a felony, or in attempting to commit a felony, or while withdrawing from the scene of a felony. The facts here show that there were blows on the head of the child which may have been inflicted before the rape took place or after the rape had been committed, or may have been inflicted while the accused was withdrawing from the scene. The child's throat was also cut, and the same uncertainty exists as to when that mortal would was inflicted. It is impossible to tell whether the wounds to the head or throat occasioned the death. Under such circumstances, to compel the state to make a choice as to the exact instant that an unwitnessed killing took place is but a technicality to embarrass justice. The real charge against the appellant was the killing; the rape was an incident qualifying the homicide as murder in the first degree. State v. Fillpot, 51 Wash. 223, 98 P. 659. He was charged with one crime and only one, and if the killing took place while the appellant was concerned in a rape it is immaterial if it was during the attempt, consummation, or flight.

Here the appellant was charged with both felony-murder and robbery, but what was said by the court in that case about the murder charge is equally applicable. The burden was on the state to show the killing by the defendant and that it was done in connection with the robbery, as a part of the same transaction. It was not incumbent upon it to prove the state of mind of the defendant at the time of the killing. The appellant and Davis, being the only living witnesses to the crime, know precisely what happened. The state could prove that there was a robbery and a murder. It could not prove what the defendants were thinking when they committed the murder, except by inference from the circumstances. Having killed and robbed the victim, the appellant cannot now be heard to say this his intentions were...