State v. Kincaid
| Decision Date | 03 January 1985 |
| Docket Number | No. 49298-1,49298-1 |
| Citation | 692 P.2d 823,103 Wn.2d 304 |
| Parties | STATE of Washington, Respondent, v. William Floyd KINCAID, Appellant. |
| Court | Washington Supreme Court |
Roy & Pell, Ted Roy, Yakima, for appellant.
William Floyd Kincaid, pro se.
Jeffrey Sullivan, Yakima County Prosecutor, Robert N. Hackett, Jr., Deputy Pros. Atty., Yakima, for respondent.
Defendant appeals his conviction at a jury trial of non-capital aggravated first degree murder and murder in the There was little issue at trial about the manner of the killings; the primary issue being whether the defendant had the mental capacity to premeditate the killings.
second degree. He was sentenced to life imprisonment without possibility of parole on the aggravated first degree murder conviction with his sentence on the murder in the second degree conviction to run concurrently. We granted direct review
The murders were committed in Yakima County on June 14, 1982. The defendant and his wife, Charla Lynn Kincaid, were separated. The wife and their young son were residing with the wife's sister, Debra Denise Kruse. On the day of the killings, the defendant visited his wife at her sister's place and they discussed reconciliation. The wife told him she had decided not to come back to him and that she planned to keep their child with her. The wife then went upstairs with her sister. Shortly afterwards, the defendant followed them upstairs where he overheard his wife and her sister discussing him and the marriage.
The defendant then went back downstairs and out to his truck. There he got his 12-gauge Magnum shotgun and loaded it with five shells. He returned to the house with the gun and proceeded upstairs. The sister saw the defendant and screamed for her boyfriend, who was downstairs, and the wife locked herself in the small upstairs bathroom. In response to the scream, the boyfriend started up the stairs but retreated when the defendant pointed the shotgun at him and threatened to shoot him if he didn't leave. The boyfriend went outside, gathered up the three children of the wife and her sister and put them in his car.
The defendant then fired upward at the sister, shooting her in the neck and jaw and killing her. Then he went to the bathroom and kicked the door in. As the wife cowered between the toilet and the wall, the defendant shot her in the back of the head causing her instantaneous death. The defendant tried to shoot himself but apparently failed due to the length of the shotgun barrel. He went outside again, loaded more shells into the gun and returned upstairs to Two principal issues are presented for review.
the scene of the two killings. This time the defendant managed to shoot away part of his jaw and mouth
ISSUE ONE. In a prosecution for aggravated first degree murder, must any alleged aggravating circumstance be included as an element of the crime in the "to convict" instruction for that offense?
ISSUE TWO. In order for a defendant to be convicted of aggravated first degree murder under statutory aggravating circumstance number 8, namely, that there is "more than one victim and the murders were part of a common scheme or plan or the result of a single act" (RCW 10.95.020(8)), must the "murders" referred to in that subsection of the statute be premeditated first degree murders?
ISSUE ONE.
CONCLUSION. The statutory aggravating circumstances which, when present, raise premeditated first degree murder to aggravated first degree murder punishable by mandatory life imprisonment or death, are "aggravation of penalty" factors which enhance the penalty for the offense, and are not elements of a crime as such. Accordingly, it is unnecessary that the aggravating circumstances alleged to exist be set forth as elements of the offense in the "to convict" instruction on the underlying murder charged; provided, as here, the jury is otherwise properly instructed as to how the existence of any such aggravating circumstance is to be determined.
In the interest of readability, the citations in this opinion have been placed in the margin wherever feasible.
By way of background, it was in 1972 that the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) nullified the capital punishment laws of 39 states (including the State of Washington) and the District of Columbia. In the following decade or more, a majority of the states have struggled to bring their capital punishment statutes into conformity with changing and sometimes uncertain guidelines laid down by the United States Supreme Court. A comprehensive chronological review of those efforts is contained in this court's opinion in State v. Bartholomew, 98 Wash.2d 173, 654 P.2d 1170 (1982), State's cert. granted, --- U.S. ----, 103 S.Ct. 3530, 77 L.Ed.2d 1383, defendant's cert. denied, --- U.S. ----, 103 S.Ct. 3548, 77 L.Ed.2d 1395 (1983) (Bartholomew I).
A further brief look at the history of aggravated first degree murder in this state, from the standpoint of the overall statutory framework in which it is contained, is helpful in putting the issues of this case into perspective.
RCW Title 9A is the Washington Criminal Code. 1 It defines four kinds of homicide, one of which is murder. 2 It then goes on in two separate statutes to define two kinds of murder, namely, murder in the first degree 3 and murder in the second degree. 4 Each of these two kinds of murder can be committed in any of the various ways enumerated in the statutes defining these offenses.
There was a time in our recent history when a third kind of murder was defined in RCW Title 9A, the Washington Criminal Code. That came about in 1975 through Initiative Measure 316, when the people took matters into their own hands and directly enacted, as they were empowered to do, a law establishing the crime of aggravated murder in the first degree. By the terms of that initiative, anyone who committed murder in the first degree, in any manner, when the murder was accompanied by any of the seven aggravating factors specified in the initiative, was guilty of the crime of aggravated murder in the first degree for which the death penalty would then be mandatory. 5
This court subsequently held that it is essential that a capital sentencing decision allow for consideration of whatever mitigating circumstances may be relevant to the offender or the offense, and that since Initiative 316 made no allowance for that, the mandatory death penalty provision of the initiative was unconstitutional. 6 Subsequent legislative efforts to cure drafting and constitutional problems were likewise struck down by this court. 7 A comprehensive new enactment by the 1981 Legislature followed, and it is that enactment which is now the law. 8
The present law relating to aggravated first degree murder and the penalty therefor is RCW 10.95. Of significance to this case, is that the Legislature did not place this new statute in RCW Title 9A, the Washington Criminal Code, but entitled the bill "AN ACT Relating to capital punishment" and enacted the new statute as a part of RCW Title 10, the criminal procedure title of the revised code. 9
Basically, the present law is a refined version of Initiative 316 and earlier legislative changes thereto. 10 It provides for enhanced penalties when: (1) a premeditated first degree murder is committed and (2) one or more statutory aggravating circumstances are also found to exist. The part of the statute so providing, insofar as pertinent to this case, is as follows:
A person is guilty of aggravated first degree murder if he or she commits first degree murder as defined by RCW 9A.32.030(1)(a), as now or hereafter amended, and one or more of the following aggravating circumstances exist:
* * *
(8) There was more than one victim and the murders were part of a common scheme or plan or the result of a single act of the person;
RCW 10.95.020(8). The statutory reference in the quoted portion of this statute, namely, "RCW 9A.32.030(1)(a)", is to the premeditated murder statute.
The statute provides for a bifurcated procedure. At the first, the guilt phase of the trial, it is determined whether the defendant is guilty of premeditated murder in the first degree, and, if so, it is then determined whether one or more of the statutory aggravating circumstances exist. If the death penalty has not been asked (as in this case), the defendant who is found guilty of premeditated murder in the first degree where one or more aggravating circumstances exist, is sentenced to life imprisonment without possibility of parole; 11 but, if the death penalty is sought, the trial then shifts into a separate capital sentencing phase where it is determined whether there are sufficient mitigating circumstances to merit leniency and, if not, the death penalty is imposed. 12
Washington statutes thus provide three levels of punishment for persons convicted of premeditated first degree murder. Persons convicted of premeditated first degree murder alone are sentenced to life imprisonment with possibility of parole. 13 Persons convicted of premeditated first degree murder, where one or more of the statutory aggravating circumstances are found, and the death penalty is not sought or obtained, are sentenced to mandatory life imprisonment. And persons convicted of premeditated first degree murder, where one or more of the statutory aggravating circumstances are found, and where the death penalty is sought, are sentenced to death if it is determined that there are not sufficient mitigating circumstances to merit leniency. It is the existence of one or more of the statutory aggravating circumstances which satisfies the constitutional imperative of narrowing the class of persons eligible for the death penalty and which justifies the imposition of the more severe sentence. 14
In this case, the trial court instructed the jury in accordance with ...
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People v. Ramsey
...that could be used to undermine the general verdict and thus did not "fall into the vice of a special verdict"); State v. Kincaid, 103 Wash.2d 304, 311, 692 P.2d 823 (1985) (jury properly instructed that, if they found the defendant guilty of premeditated first-degree murder, they should re......
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...would have defined "common scheme or plan." That jury instruction was substantially similar to one we approved in State v. Kincaid, 103 Wash.2d 304, 692 P.2d 823 (1985). In Kincaid, the defendant killed his wife and her sister with a shotgun and attempted to kill himself. The trial judge in......
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