State v. Wanrow

• Decision Date: 28 December 1978
• Docket Number: No. 45102,45102
• Parties: STATE of Washington, Respondent, v. Yvonne WANROW, Petitioner.
• Court: Washington Supreme Court

Page 301

91 Wn.2d 301

588 P.2d 1320

STATE of Washington, Respondent, v. Yvonne WANROW, Petitioner.

No. 45102.

Supreme Court of Washington, En Banc.

Dec. 28, 1978.

Smith, Kaplan, Withey, Ford & Theiler, Mary Alice Theiler, Seattle Elizabeth M. Schneider, c/o Center for Constitutional Rights, New York City, for petitioner.

Donald Brockett, Pros. Atty., Fred Caruso, Deputy Pros. Atty., Spokane, for respondent.

HOROWITZ, Justice.

Petitioner Yvonne Wanrow seeks review of the denial of her motion to dismiss count 1 of the information charging her with second degree (felony) murder. She asks this court to consider once again applying the doctrine of merger to the crime of second degree felony-murder, I. e., that the assault resulting in the homicide is merged with the homicide so as to lose its separate identity, and accordingly to hold that a death resulting from a felonious assault cannot be felony-murder. We have twice before considered and rejected this doctrine. State v. Harris, 69 Wash.2d 928, 421 P.2d 662 (1966); State v. Thompson, 88 Wash.2d 13, 558 P.2d 202 (1977). We treated the matter as settled in State v. Roberts, 88 Wash.2d 337, 344 n. 4, 562 P.2d 1259 (1977). In Harris and Thompson, strong dissents suggested the merger doctrine was a desirable policy in face of the harsh results of the felony-murder rule. We recognize that the consequences under our statutes of death resulting from an assault criminal liability for felony-murder are harsh. Nonetheless, we are now firmly convinced that adoption of the merger doctrine is not compelled either by principles of sound statutory construction or by the state or federal constitutions, and that adoption of the doctrine by this court would be an unwarranted and insupportable invasion of the legislative function in defining crimes. We therefore reaffirm this court's refusal to apply the doctrine of merger to the crime of felony-murder in this state.

In August 1972 petitioner Wanrow shot William Wesler, a man much larger than herself, who had entered the home in which Ms. Wanrow was staying, unexpectedly, without permission of the occupants, intoxicated, and under circumstances suggesting the existence of a real threat to the safety of the children and women occupying the home. These circumstances are set out in full in State v. Wanrow, 88 Wash.2d 221, 559 P.2d 548 (1977). Mr. Wesler died and petitioner was subsequently charged with second degree murder and first degree assault. Petitioner was convicted of these charges, but her conviction was reversed on appeal. We affirmed that reversal on the ground that certain evidence was improperly admitted at trial. State v. Wanrow. The majority opinion also set out a second ground for reversal, that the jury was not properly instructed on Ms. Wanrow's defense of self-defense. We emphasized that Ms. Wanrow, a small woman who was partially disabled at the time and whose children were present in the home, must be allowed to present to the jury her perception of the situation that night, "including those perceptions which were the product of our nation's 'long and unfortunate history of sex discrimination.' Frontiero v. Richardson, 411 U.S. 677, 684, 93 S.Ct. 1764, 1769, 36 L.Ed.2d 583 (1973)." State v. Wanrow, supra at 240, 559 P.2d at 559. Petitioner's case was remanded for a new trial.

It was on remand, prior to commencement of the trial, that petitioner moved for dismissal of count 1 of the information, charging her with the crime of second degree (felony) murder. She raised the entirely separate and distinct question of the merger doctrine, that is, whether a death resulting from a felonious assault can be a felony-murder. Her motion to dismiss was denied. We accepted discretionary review of the order of denial, and we affirm.

Count 1 of the information alleges Ms. Wanrow committed homicide on William Wesler while engaged in the commission of a second degree assault on him. Since second degree assault is a felony, a resulting homicide becomes second degree felony-murder under RCW 9.48.040(2).

At this point a brief description of the applicable statutory scheme is necessary. The homicide statute applicable in this case is the old Ch. 9.48 RCW (now superseded as to all acts committed on or after July 1, 1976 by Ch. 9A.32 RCW). In that scheme, all punishable homicides are either murder (first or second degree) or manslaughter. Murder in the first degree includes both premeditated murder and homicides committed in the course of certain felonies (first degree felony-murder). RCW 9.48.030. Murder in the second degree includes both intentional but unpremeditated homicides, and homicides committed in the course of all other felonies (second degree felony-murder). Petitioner is charged under this latter section. RCW 9.48.040(2). Manslaughter is all other nonjustified or nonexcused homicides. RCW 9.48.060. A homicide is manslaughter under this statute when the act resulting in death is unlawful but not felonious, and when the killing is unintentional. State v. Sill, 47 Wash.2d 647, 289 P.2d 720 (1955).

The felony alleged in this case is second-degree assault. The statute is RCW 9.11.020 (now superseded by RCW 9A.36). The relevant portion of the statute is as follows RCW 9.11.020 Assault in the second degree . . . Every person who, under circumstances not amounting to assault in the first degree

(4) Shall wilfully assault another with a weapon or other instrument or thing likely to produce bodily harm . . .

Shall be guilty of assault in the second degree . . .

Under the second section of the second degree murder statute, a second degree assault which results in death becomes murder in the second degree. RCW 9.48.040(2). The second degree murder statute is as follows:

RCW 9.48.040 Murder in the second degree. 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 RCW 9.48.030 (the first degree murder statute).

In this case the alleged assault on William Wesler is the felony giving rise to the charge of second degree felony-murder. The assault is also the same act which caused his death. Thus, the felony underlying the murder charge is the very act which constitutes the murder. The proposed rule of construction known as the merger doctrine, as has been pointed out, is that an assault resulting in a homicide is merged with the homicide so that it no longer remains a separate and district assault. Since there is therefore no separate felonious assault, there is no basis for felony-murder. The crime, if proved, is a homicide, but not felony-murder. If the merger doctrine just described were applied to these statutes, the result would be that the facts alleged in the information would not show a felony-murder in the second degree, but would constitute only manslaughter, that is, "(a)ny homicide other than, murder in the first degree, or murder in the second degree, and not being excusable or justifiable." RCW 9.48.060. This would create a new category of manslaughter, I. e., where the death results from a Felonious assault, contrary to this court's construction of the manslaughter statute in State v. Sill, supra. It is petitioner's contention that this court is compelled, both as a matter of sound statutory construction and by constitutional law, to apply the merger doctrine and classify the crime alleged here as manslaughter. We decline to overrule State v. Sill or apply the merger doctrine, for the reasons stated hereafter.

I

Petitioner urges this court to adopt the merger doctrine as a matter of statutory construction where the underlying felony is second degree assault. She contends adoption of the doctrine is necessary in order to make sense of the statutory scheme and preserve the basic distinctions among various crimes of homicide. A close reading of the homicide statute fails to support her position.

Petitioner's arguments that the merger doctrine is necessary are complex and varied, but most rely on the basic and erroneous assumption that intent to kill is an element of second degree felony-murder under RCW 9.48.040(2). We can think of no simpler or clearer way to state it: intent to kill is Not an element of second degree felony-murder. See New York Life Ins. Co. v. Jones, 86 Wash.2d 44, 541 P.2d 989 (1975). The theoretical basis of felony-murder is that general malice (not intent to kill) may be inferred from the malicious felonious intent which must be present to prove the underlying felony. Where malice is present and homicide results, felony-murder may be shown. Intent to kill is not the sine qua non of felony-murder, either historically or in this statutory scheme.

Thus, in order to prove second degree felony-murder in this case the state must prove: (1) that petitioner committed an assault in the second degree under RCW 9.11.020(4) (wilful assault on another with a weapon likely to produce harm), and (2) that the homicide was perpetrated while petitioner was engaged in the commission of the assault. No intent to kill need be shown.

We must therefore reject petitioner's numerous arguments that the statutory scheme is distorted if the merger doctrine is not applied, which are based on the assumption that intent to kill is a necessary element of second degree felony-murder.

Petitioner further argues, however, that the second degree murder statute itself does not make sense unless the merger doctrine is applied. The argument is that without the merger doctrine, any homicide, intentional or not, can be proved as a second degree murder under subsection (2) of RCW 9.48.040 by alleging a wilful assault. Thus, it is claimed subsection (1) of RCW 9.48.040, which defines...