State v. Whitaker

• Citation: 195 Wash.2d 333,459 P.3d 1074
• Decision Date: 19 March 2020
• Docket Number: No. 96777-6,96777-6
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent, v. John Alan WHITAKER, Petitioner.

195 Wash.2d 333

459 P.3d 1074

STATE of Washington, Respondent,

v.John Alan WHITAKER, Petitioner.

No. 96777-6

Supreme Court of Washington.

Argued October 22, 2019

Filed MARCH 19, 2020

Neil Martin Fox, Law Office of Neil Fox, PLLC, 2125 Western Ave. Ste. 330, Seattle, WA, 98121-3573, for Petitioner.

Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc. 504, 3000 Rockefeller Ave., Everett, WA, 98201-4061, Prosecuting Attorney Snohomish, Snohomish County Prosecuting Attorney, 3000 Rockefeller Ave. M/s 504, Everett, WA, 98201, for Respondent.

GONZÁLEZ, J.

¶ 1 Duress generally excuses a person who commits a crime if they are threatened with immediate death or grievous bodily injury. RCW 9A.16.060. Faced with such grave danger, a person may be excused for choosing the lesser evil. State v. Harvill, 169 Wash.2d 254, 262, 234 P.3d 1166 (2010). But because killing an innocent person is never the lesser of two evils, a duress defense is not available when a person is charged with murder. Id . ; RCW 9A.16.060(2). John Whitaker was convicted of aggravated first degree murder based on the aggravating circumstance that the murder was committed in the course of a kidnapping. He unsuccessfully sought to argue to the jury that he committed the kidnapping under duress. Because Whitaker was charged with murder, not kidnapping, the Court of Appeals held he was not entitled to assert a duress defense. We affirm.

FACTS

¶ 2 In 2002, Rachel Burkheimer was brutally murdered. Two years later, a jury found Whitaker guilty of aggravated first degree murder and conspiracy to commit murder based on his part in her death. Whitaker’s convictions were reversed on collateral review in 2013 due to a public trial right violation.¹ On remand, the State again charged Whitaker with one count of aggravated first degree murder predicated on kidnapping and robbery and one count of conspiracy to commit first degree murder. The State presented evidence that Whitaker helped his friend John Anderson and several others kidnap and kill Burkheimer, Anderson’s ex-girlfriend, in Everett in September 2002. Whitaker helped Anderson and others lure Burkheimer to a home, beat and bind her, hide her in a garage, and take her to a remote area. There, Whitaker helped to dig a grave, take her clothes and jewelry, and bury her body after Anderson shot her.

¶ 3 At the close of the evidence, Whitaker unsuccessfully requested the jury be instructed on duress as a defense to the robbery and kidnapping aggravators. His theory was that he acted out of fear of Anderson. The trial court concluded there was insufficient evidence to support giving a duress instruction.

¶ 4 The jury found Whitaker guilty of premeditated first degree murder with an aggravating circumstance of kidnapping.² Whitaker appealed on numerous grounds, and the Court of Appeals affirmed. See State v. Whitaker , 6 Wash. App. 2d 1, 10, 429 P.3d 512 (2018). Among other things, the Court of Appeals concluded the trial court properly denied Whitaker’s request for a duress instruction because duress may not be asserted as a defense to an aggravating circumstance of murder. Id. at 15, 429 P.3d 512. We granted Whitaker’s petition for review on the issue of duress. See State v. Whitaker , 193 Wash.2d 1012, 443 P.3d 800 (2019).

ANALYSIS

¶ 5 The duress defense is based on the principle that it may be excusable to break the law if compelled to do so to avoid immediate death or grievous bodily harm. State v. Mannering, 150 Wash.2d 277, 281, 75 P.3d 961 (2003) (citing ROLLIN M. PERKINS & RONALD N. BOYCE , CRIMINAL LAW 1059 (3d ed. 1982)). However, at common law, duress was not a defense to murder on the principle that it was better to die than to take an innocent person’s life. Id. (citing WAYNE R. LAFAVE & AUSTIN W. SCOTT , JR. , CRIMINAL LAW § 5.3(b) (2d ed. 1986); PERKINS & BOYCE , supra, at 1059). As we explained in Harvill , "Faced with danger to his or another’s safety, the defendant is excused for choosing the lesser evil of perpetrating a crime, unless the crime involves killing an innocent person, which is never the lesser of two evils." 169 Wash.2d at 262, 234 P.3d 1166.

¶ 6 Our legislature codified the common law duress defense as part of a comprehensive criminal code in 1909. See LAWS OF 1909, ch. 249, § 4. As originally enacted, the duress statute incorporated the common law bar on duress as a defense to murder. Id. The legislature subsequently extended the bar on duress to manslaughter and homicide by abuse. See LAWS OF 1975, 1st Ex. Sess., ch. 260; LAWS OF 1999, ch. 60, § 1. Today, the statute provides in relevant part:

(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 she 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, manslaughter, or homicide by abuse.

(3) The defense of duress is not available if the actor intentionally or recklessly places himself or herself in a situation in which it is probable that he or she will be subject to duress.

RCW 9A.16.060. By barring duress as a defense to murder and manslaughter and requiring an apprehension of immediate death or grievous bodily injury, our duress statute imposes stringent requirements. State v. Riker, 123 Wash.2d 351, 365-66, 869 P.2d 43 (1994). Those stringent requirements reflect "the law’s traditional skepticism regarding the defense of duress." Id. As a matter of public policy, "the defense should be limited" because one who successfully raises it "is freed from criminal liability for harm caused to an innocent third party." Id.

¶ 7 Whitaker was charged with aggravated first degree murder under RCW 10.95.020(11)(d). Under that statute, aggravated first degree murder consists of premeditated first degree murder as defined by RCW 9A.32.030(1)(a) and a statutory aggravating circumstance. In this case, the proven statutory aggravator was that "[t]he murder was committed in the course of, in furtherance of, or in immediate flight from ... [k]idnapping in the first degree." RCW 10.95.020(11)(d). A person convicted of aggravated first degree murder was eligible for the death penalty. RCW 10.95.040, .050. In State v. Gregory , 192 Wash.2d 1, 5, 427 P.3d 621 (2018) (plurality opinion), we held the death penalty provisions unconstitutional as applied because they have been administered in an arbitrary and racially biased manner and have failed to serve any legitimate penological goals. As a result, the sentence for aggravated first degree murder is now life imprisonment without the possibility of parole. RCW 10.95.090.

¶ 8 Whitaker argues that a criminal defendant charged with aggravated murder under RCW 10.95.020(11)(d) may assert duress as a defense to the aggravating circumstance of kidnapping. Whether the duress statute allows the defense to be asserted to an aggravating circumstance that elevates premeditated first degree murder to aggravated murder is a question of law that we review de novo. See State v. Read , 147 Wash.2d 238, 243, 53 P.3d 26 (2002). When interpreting the scope of a statute, our fundamental goal is to "ascertain and carry out the Legislature’s intent."

Dep’t of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002). To determine the legislature’s intent, we begin with the statute’s plain meaning as "discerned from the ordinary meaning of the language at issue, the context of the statute in which that provision is found, related provisions, and the statutory scheme as a whole." State v. Engel , 166 Wash.2d 572, 578, 210 P.3d 1007 (2009). If the plain meaning is unambiguous, we give it effect. State v. Armendariz , 160 Wash.2d 106, 110, 156 P.3d 201 (2007).

¶ 9 The plain meaning of the duress statute unambiguously bars duress as a defense to the aggravating circumstance in RCW 10.95.020(11)(d). The statute provides that "[i]n any prosecution for a crime," it is a defense that the actor "participated in the crime" under duress, unless "the crime charged is murder, manslaughter, or homicide by abuse." RCW 9A.16.060(1)(a), (2). Under this plain language, a criminal defendant may assert duress as a defense to a charged crime so long as it is not murder, manslaughter, or homicide by abuse. A defendant who is charged with aggravated first degree murder under RCW 10.95.020(11) is not charged with the underlying felony. Rather, the defendant is charged with aggravated first degree murder, and the State is required to prove, as an element of the murder charge, that the murder was committed "in the course of, in furtherance of, or in immediate flight from" the underlying felony. RCW 10.95.020(11).

¶ 10 Whitaker argues that under State v. Allen, 192 Wash.2d 526, 431 P.3d 117 (2018), a kidnapping aggravating circumstance is effectively a separately charged crime and that, as such, a defendant is entitled to all statutory defenses, including duress. In Allen, we held that double jeopardy bars retrial on aggravating circumstances under RCW 10.95.020 after acquittal. Id. at 534, 431 P.3d 117. We reasoned that aggravating circumstances are elements of aggravated first degree murder for double jeopardy purposes because they increase the mandatory minimum penalty for the crime. Id. We did not find, as Whitaker argues, that aggravating circumstances are separately charged crimes.

¶ 11 This court held long ago that when a felony is an element of murder, duress may not act as an affirmative defense to the underlying felony. See State v. Moretti, 66 Wash. 537, 539-41, 120 P. 102 (1912) ; State v. Ng, 110 Wash.2d 32, 39, 750 P.2d 632 (1988). The legislature has indicated no...