State v. Dennison

Decision Date21 November 1990
Docket NumberNo. 56333-1,56333-1
Citation801 P.2d 193,115 Wn.2d 609
CourtWashington Supreme Court
PartiesSTATE of Washington, Respondent, v. Randall Jay DENNISON, Petitioner. En Banc

Ramirez & Ramirez, Joseph A. Ramirez, Pasco, for petitioner.

Andrew K. Miller, Benton County Prosecutor, Robert Ingvalson, Deputy, Kennewick, for respondent.

CALLOW, Chief Justice.

Randall Dennison was convicted of first degree felony murder. The Court of Appeals affirmed. State v. Dennison, 54 Wash.App. 577, 774 P.2d 1237 (1989). Dennison seeks review of whether the trial court erroneously: denied his request for jury instructions regarding self-defense, proximate cause, and lesser included offenses; denied his affidavit of prejudice; did not find prosecutorial misconduct; denied the relevancy of the statute of limitations of the underlying felony of burglary; and wrongfully allowed the prosecutor in his opening statement to mention the police investigation of Dennison for possible prior crimes. We affirm.

I Facts

On January 23, 1982, while burglarizing the home of Robert Yates, Randall Dennison killed Daniel Stracner. Stracner lived in an apartment above the home of Yates, a known drug dealer. Dennison had been tipped off that Yates had a supply of marijuana in his bedroom.

After driving by Yates' home and not seeing anyone there, Dennison parked his car at a nearby convenience store and telephoned Yates; no one answered the phone. Dennison walked to Yates' house and knocked on the door. After no one answered, he kicked open the door and went to the bedroom looking for the marijuana. Dennison carried a pillowcase, a grocery sack, a hammer, and was armed with a gun.

Shortly after Dennison entered Yates' home, Stracner, also armed with a gun, appeared in the bedroom doorway. According to Dennison, Dennison grabbed Stracner's hand which was on the gun and pushed it into the air. Dennison held his own gun in Stracner's stomach. Dennison asserted that he backed Stracner out of the house and onto the porch. Dennison testified that he told Stracner that he had not taken anything, that it was all over, that he did not intend to hurt Stracner, and that he just wanted to leave. According to Dennison, Stracner said "okay." Dennison then pointed his gun down at the ground and released his grip on Stracner's hand which held the gun. After Dennison's hand was released, Dennison claims, Stracner shot at him. In response, Dennison claims he fired at Stracner, resulting in Stracner being knocked onto a couch. Stracner assertedly aimed at Dennison again and Dennison fired more shots. It was subsequently determined that Stracner's gun had in fact been fired and had jammed after the first shot. Dennison fled the scene leaving the pillowcase and burglary tools at Yates' home. Stracner died of the gunshot wounds.

A few weeks later, the police noticed the resemblance between the pillowcase left at the crime scene and a pillowcase in a picture taken at Dennison's house during a police investigation of a different crime. When the police interviewed Dennison, he denied any involvement in Stracner's murder. Approximately 5 years later, Dennison's girl friend told the police that Dennison had admitted to her that he killed Stracner. Dennison was charged with first degree felony murder.

Prior to the trial, Dennison denied shooting Stracner and denied acting in self-defense. However, during the trial he admitted to killing Stracner and claimed self-defense. The trial judge denied Dennison's request for a jury instruction on self-defense, proximate cause, and lesser included offenses. After a 5-day trial, the jury found Dennison guilty of first degree felony murder committed in the furtherance of first degree burglary.

II

Did the trial court erroneously deny Dennison's requested

instruction on self-defense?

Dennison contends the trial court erred in refusing to give his proposed instruction regarding self-defense. 1 Citing State v. Craig, 82 Wash.2d 777, 514 P.2d 151 (1973) and State v. Wilson, 26 Wash.2d 468, 174 P.2d 553 (1946), Dennison argues that at some point "withdrawal in the commission of a felony" is achievable, that he withdrew, and that a self-defense instruction was therefore appropriate. Dennison confuses two concepts of withdrawal: (1) withdrawal from a felony, and (2) withdrawal from aggressive action to revive one's right of self-defense.

A. Withdrawal from a felony

A person is guilty of first degree felony murder when:

(c) He commits or attempts to commit the crime of either (1) robbery, in the first or second degree, (2) rape in the first or second degree, (3) burglary in the first degree, (4) arson in the first degree, or (5) kidnapping, in the first or second degree, 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 ...

(Italics ours.) Former RCW 9A.32.030(1) 2.

In first degree felony murder, the premeditation 3 or extreme indifference to human life 4 required in other sections of the first degree murder statute are substituted for by the circumstances specific to the felonies enumerated in the felony murder statute. If a death occurs in the attempt, commission of, or fleeing from one of the enumerated crimes, first or second degree robbery, first or second degree rape, first degree burglary, first degree arson, and first or second degree kidnapping, it is unnecessary to prove that the person who kills another did so with malice, design or premeditation. See Craig, 82 Wash.2d at 781, 514 P.2d 151.

Circumstances common to each of these enumerated felonies are the threatened use of force and the significant prospect of violence during the attempted felony. The felon's self-determined conduct inherently enhances the risk of death to others. The felon willingly or intentionally employs dangerous means to accomplish his or her criminal objective. Consonant with the felon's decision to use force and risk death to others is the harsh result of the felony murder statute. As stated, "[t]he purpose of the felony murder rule is to deter felons from killing negligently or accidentally by holding them strictly responsible for the killings they commit." State v. Leech, 114 Wash.2d 700, 708, 790 P.2d 160 (1990). If a felon in the course of and in furtherance of one of the enumerated crimes, or in immediate flight therefrom, causes the death of someone other than one of the participants, the felon is accountable for any resultant death within the limitations of the statute. See RCW 9A.32.030.

Because Washington's felony murder statute clearly holds felons strictly responsible for any deaths occurring under the conditions specified by the statute, the issue is whether Dennison's actions fall within the statute. As the Court of Appeals noted, for the purpose of felony-murder, " ' "the burglary is deemed to be in progress after the break and entry when defendant is still on the premises or when the defendant is fleeing from the scene." ' " State v. Dennison, 54 Wash.App. at 580, 774 P.2d 1237 (quoting State v. Dudrey, 30 Wash.App. 447, 453, 635 P.2d 750 (1981), review denied, 96 Wash.2d 1026 (1982) (quoting 2 C. Torcia, Wharton on Criminal Law § 148 (14th ed. 1979))). Hence, even while Dennison was fleeing the burglary scene, the burglary was still in progress.

According to the record, Dennison unlawfully entered a house, was armed with a weapon, and was attempting to flee when the gun fire ensued resulting in Stracner's death. Regardless of Dennison's claim that he pointed his gun to the ground or told Stracner that all he wanted to do was leave, Dennison was still armed, still engaged in the activity of the burglary and was fleeing therefrom. Fleeing from a burglary is not the same as withdrawing from the burglary. Because Dennison admits that he was in the process of fleeing the scene of the felony, meaning the burglary was still in progress, Dennison's factual scenario falls squarely within the first degree felony murder statute. Since the statutory exceptions to felony murder do not apply, Dennison must be held strictly responsible for the death caused while fleeing from the first degree burglary. The proposed self-defense instruction was properly refused.

B. Withdrawing from being the aggressor reviving self-defense

Citing State v. Craig, 82 Wash.2d 777, 514 P.2d 151 (1973) and State v. Wilson, 26 Wash.2d 468, 174 P.2d 553 (1946), Dennison argues that he withdrew from being the aggressor; thus, when Stracner used "unlawful force," Dennison's right to self-defense was revived. Dennison also characterizes his crime as a property crime and argues that during the commission of a property crime, one does not lose all rights to self-defense.

Dennison mischaracterizes his crime. He was armed with a lethal weapon while breaking into a house--not a simple property crime. As stated, although Dennison was attempting to flee the scene when the gun fire ensued, by definition, the burglary was still in progress. See Dudrey, 30 Wash.App. at 453, 635 P.2d 750. Essentially, Dennison asks us to decide whether a felon's right to self-defense can be revived during the commission of a felony.

Craig, 82 Wash.2d at 783, 514 P.2d 151, held:

It is the rule that one who was the aggressor or who provoked the altercation in which he killed the other person engaged in the conflict, cannot successfully invoke the right of self-defense to justify or excuse the homicide, unless he in good faith had first withdrawn from the combat at such a time and in such a manner as to have clearly apprised his adversary that he in good faith was desisting, or intended to desist, from further aggressive action.

As Craig notes, Washington has adopted the revival theory of self-defense. See Annot., Comment Note: Withdrawal, After Provocation of Conflict, as Reviving Right of Self-Defense, 55 A.L.R.3d 1000 (1974). Craig, however, specifically...

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