State v. Mannering

• Decision Date: 11 September 2003
• Docket Number: No. 72811-9.,72811-9.
• Citation: 150 Wash.2d 277,75 P.3d 961,150 Wn.2d 277
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. Christina Ann MANNERING, Petitioner.

75 P.3d 961

150 Wn.2d 277

150 Wash.2d 277

STATE of Washington, Respondent, v. Christina Ann MANNERING, Petitioner.

No. 72811-9.

Supreme Court of Washington, En Banc.

Argued June 10, 2003.

Decided September 11, 2003.

Robert Mason Quillian, Olympia, for petitioner.

Steven Curtis Sherman, Thurston County Pros. Office, Olympia, for respondent.

FAIRHURST, J.

The issue in this case is whether a criminal defendant may raise the defense of duress to a charge of attempted murder. By statute, duress is not a defense to murder. However, the duress statute is silent as to whether it applies to attempted murder. The trial court and the Court of Appeals determined that the defense of duress is not available for attempted murder. We agree.

I. FACTS

Christina Mannering and Bill Ulery were in a romantic relationship. Ulery was a defendant in a domestic violence case in which Victorina Allie, his former girl friend, was the victim. Ulery told Mannering he wanted her to kill Allie. Mannering initially refused, and only after Ulery threatened to kill her did she agree to kill Allie. Mannering denied that she wanted Allie dead.

On April 4, 1999, Mannering knocked on the door of Allie's residence. When Allie opened the door, Mannering "barreled in the door with a knife" and attempted to kill Allie. Record of Proceedings (RP) at 55. Allie wrested the knife from Mannering's control and suffered only a cut to her left wrist. Mannering fled the scene and returned to Ulery at Motel 6 where the two were staying. Ulery helped Mannering bandage her wounds.

A police detective tracked down Mannering. She admitted her involvement in the attack and agreed to assist the police by wearing a wire to record conversations with Ulery. Mannering was charged with one count of attempted murder in the first degree and one count of burglary in the first degree, both while armed with a deadly weapon. Defense counsel initially indicated that he planned to rely on a general denial defense and a duress defense.

The State filed a motion in limine to preclude the defense of duress. At a pretrial hearing, the trial judge determined that duress was not an available defense for the crime of attempted murder. The judge reserved ruling on whether the defense was available for either of the uncharged lesser included offenses of attempted murder or burglary.

Mannering testified at trial that she had been involved in a romantic relationship with Ulery for several months prior to the incident and that Ulery was often physically and emotionally abusive toward her. She failed to provide any evidence to corroborate this claim or mention it to the police during interrogation.

On the second day of trial, defense counsel informed the judge that he would not pursue a duress defense on either attempted first degree murder or first degree burglary. Defense counsel instead argued that Mannering lacked the requisite intent for murder. The jury found Mannering guilty of attempted murder in the first degree while armed with a deadly weapon and burglary in the first degree while armed with a deadly weapon.

Mannering appealed her convictions, arguing that the trial judge erred by excluding the defense of duress for attempted first degree murder. Mannering also argued that she received ineffective assistance of counsel because her attorney did not pursue a duress defense for the crimes charged, or any possible lesser included offenses, and did not call a defense expert witness to testify regarding the defense of duress and/or her potential lack of intent. The Court of Appeals affirmed the trial court. State v. Mannering, 112 Wash.App. 268, 48 P.3d 367 (2002). Mannering sought, and was granted, discretionary review. State v. Mannering, 148 Wash.2d 1026, 67 P.3d 1097 (2003).

II. ISSUES

1. May a defendant use the affirmative defense of duress to a charge of attempted first degree murder?

2. Did Mannering receive ineffective assistance of counsel?

III. ANALYSIS

A. Defense of Duress

The duress defense derives from the common law and is premised on the notion that it is excusable for someone to break the law if he or she is compelled to do so by threat of imminent death or serious bodily injury. ROLLIN M. PERKINS & RONALD N. BOYCE, CRIMINAL LAW 1059 (3d ed.1982) (hereinafter PERKINS). However, even at common law, duress was not a defense for murder or attempted murder. Id. Public policy mandated that it was better for someone to sacrifice his or her own life instead of yielding to compulsion and taking an innocent person's life. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 5.3(b) (2d ed. 1986) ("[D]uress cannot justify the intentional killing of (or attempt to kill) an innocent third person."); PERKINS at 1059 ("[T]he common law recognizes no excuse for the intentional killing of an innocent person, even if necessary to save oneself from instant death....").

RCW 9A.16.060 provides for the defense of duress, and at the time of the incident stated:

(1) In any prosecution for a crime, it is a defense that:

(a) The actor participated in the crime under compulsion by another who by threat or use of force created an apprehension in the mind of the actor that in case of refusal he or another would be liable to immediate death or immediate grievous bodily injury; and

(b) That such apprehension was reasonable upon the part of the actor; and

(c) That the actor would not have participated in the crime except for the duress involved.

(2) The defense of duress is not available if the crime charged is murder or manslaughter.

Former RCW 9A.16.060 (1975).¹ A statutory interpretation is an issue of law, and is determined de novo by this court. Our Lady of Lourdes Hosp. v. Franklin County, 120 Wash.2d 439, 443, 842 P.2d 956 (1993).

Mannering asserts that the language of this statute is clear and unambiguous, noting that when a statute is unambiguous, the court applies the statute as written and "`assume[d] that the legislature means exactly what it says.'" In re Custody of Smith, 137 Wash.2d 1, 8-9, 969 P.2d 21 (1998) (quoting State v. McCraw, 127 Wash.2d 281, 288, 898 P.2d 838 (1995)). Mannering argues that the statutory duress defense is only unavailable for the particular crimes of murder, manslaughter, and homicide by abuse, and that "attempted murder" is not on the list. RCW 9A.16.060(2). Mannering also points out that several other statutes include the word "attempt," indicating that if the legislature did not want the duress defense to be available for attempted murder, it could have structured the statute that way.

However, statutes must be read to avoid absurd and strained interpretations. State v. McDougal, 120 Wash.2d 334, 350, 841 P.2d 1232 (1992). "Attempted murder" is not a crime listed in the statutes. Rather, criminal attempt and murder combine to form attempted murder. State v. Gay, 4 Wash.App. 834, 838-39, 486 P.2d 341 (1971). "A person is guilty of an attempt to commit crime if, with intent to commit a specific crime, he does any act which is a substantial step toward the commission of that crime." Former RCW 9A.28.020(1) (1994).² "A person is guilty of murder in the first degree when: (a) With a premeditated intent to cause the death of another person, he or she causes the death of such person or of a third person." RCW 9A.32.030(1)(a).

Few other courts have addressed the precise issue before us. Mannering offers decisions from four other states to indicate that authority is split.³ Only one of those decisions, Kee v. State, 438 N.E.2d 993 (Ind. 1982), dealt with a statute that prohibited the duress defense for murder.

Indiana's duress statute, Ind.Code § 35-41-3-8, is similar to RCW 9A.16.060 because it provides a general grant of the defense of duress but specifically excludes those who have "[c]ommitted an offense against the person as defined in IC 35-42," which includes murder. IND.CODE ANN. § 35-41-3-8(b)(2) (Michie 1998). In Kee, the defendant argued that because attempt was defined in Ind. Code § 35-41-5-1, not Ind.Code § 35-42, the duress defense was available to him. Kee, 438 N.E.2d at 994. The Indiana attempt statute states, in relevant part: "A person attempts to commit a crime when, acting with the culpability required for commission of the crime, he engages in conduct that constitutes a substantial step toward commission of the crime." IND.CODE ANN. § 35-41-5-1(1)(a) (Michie 1998). The Kee court rejected the defendant's argument, noting that:

The fallacy lies in the conclusion that I.C. XX-XX-X-X defines the crime of attempted murder which, standing alone, it does not. It is definitive of the crime charged only when read in conjunction with I.C. XX-XX-X-X (Murder). Attempted murder is, therefore, an offense against the person as defined in I.C. 35-42, and the defense of duress is expressly excluded.

Kee, 438 N.E.2d at 994.

This analysis comports with Washington precedent. This court previously held that an attempt to commit a crime is included in the crime itself. State v. Rowe, 60 Wash.2d 797, 798, 376 P.2d 446 (1962) (person may be convicted of attempt to commit crime even though evidence establishes that crime was actually committed); State v. Arnold, 144 Wash. 367, 368, 258 P. 20 (1927) (attempt is included in crime); State v. Romans, 21 Wash. 284, 285-86, 57 P. 819 (1899) (defendant charged with crime may be found guilty of attempt). RCW 10.61.010 specifically allows a jury to convict a defendant of the crime charged, or an attempt to commit the crime charged. The crime of murder includes the crime of attempted murder. It would be a strained interpretation of the duress statute to allow a defendant to assert duress for attempted murder when that charge is included within murder. Therefore, preclusion of the duress defense for murder also precludes the duress defense for attempted murder.

Numerous criminal statutes provide a defense to particular crimes under certain circumstances, yet the statutes do not specifically...