Skip navigation
× You have 2 more free articles available this month. Subscribe today.

The Unmourned Death of Felony Murder by Assault in Washington

by Suzanne Lee Elliott and David B. Zuckerman

For at least 36 years, Washington has permitted defendants to be convicted of felony murder in the second degree when the underlying felony is assault. Prisoners rightly complained that this led to absurd and unfair results. Every homicide involves an assault. Why should a defendant who only meant to fight get the same sentence as one who intentionally kills? Shouldn't the first defendant be charged with manslaughter?

On October 24, 2002, the Washington State Supreme Court thoughtfully abandoned its previous precedent and declared that assault could no longer serve as a predicate for felony murder. In re Andress , #71170-4 (filed 10/24/02). The Court found that none of its prior decisions addressed the effect of the 1976 amendment to the felony murder statute.

"It is nonsensical to speak of a criminal act _ an assault _ that results in death as part of the res gestae of that same criminal act since the conduct constituting the assault and the homicide are the same."

This is great news to the hundreds of Washington prisoners serving time for felony murder based on assault. Those who still have appeals or personal restraint petitions (PRP's) pending should consider filing a supplemental claim. Others may be able to file new PRP's. Andress should apply retroactively to those with old convictions because "[o]nce the Court has determined the meaning of a statute, that is what the statute has meant since its enactment." In re Johnson , 131 Wn.2d 558, 568, 933 P.2d 1019 (1997). Prisoners should be excused from the one-year time limit because their convictions are invalid "on their face," RCW 10.73.090, because the sentence imposed was in excess of the court's jurisdiction, RCW 10.73.090(5), and because Andress represents a significant, intervening change in the law. RCW 10.73.090(6). Prisoners who have already filed and lost PRP's on other grounds should be permitted to file a successive petition because the new decision gives them "good cause." RCW 10.73.140. Prisoners who have already lost a PRP on the same ground are barred from the Court of Appeals, but can seek relief in the Washington Supreme Court. In re Johnson , 131 Wn.2d 558, 566, 933 P.2d 1019 (1997). Unfortunately, the reasoning of Andress probably does not apply to anyone whose crime was committed before July 1, 1976 (the date that the felony murder statute was amended).

We are not sure whether any states other than Washington permit felony murder to be based on assault. If so, prisoners in those states can cite Andress as authority for overturning precedent.

David Zuckerman and Suzanne Elliott are Seattle criminal defense attorneys, focusing on appeals and postconviction petitions.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

In Re Andress

[46] The present statutory scheme dictates that the jury will not be instructed on any lesser included or lesser degree offenses where the charge is second degree felony murder, in contrast to a charge of second degree intentional murder, where both might be appropriate. In addition, a defendant may be charged and convicted of second degree felony murder without any need for the State to prove intent to kill or any comparable mental element with respect to the assault. Thus, as the recent decisions make clear, the present second degree felony murder statute occupies a place in the homicide statutes more analogous to that of the New York first degree felony murder statute discussed in Harris than recognized at that time. In this regard we also note that the dissent in Tamalini observed, albeit in connection with the issue in that case:

[47] "A felony-murder rule that punishes all homicides committed in the perpetration of a felony whether the death is intentional, unintentional or accidental, without the necessity of proving the relation of the perpetrator's state of mind to the homicide, violates the most fundamental principle of the criminal law -- "criminal liability for causing a particular result is not justified in the absence of some culpable mental state in respect to that result.'" Tamalini, 134 Wn.2d at 746 (Sanders, J., dissenting) (citing Commonwealth v. Matchett, 386 Mass. 492, 436 N.E.2d 400, 409 (1982) (quoting People v. Aaron, 409 Mich. 672, 708, 299 N.W.2d 304, 328 (1980))).

[48] We recognize, of course, that the Legislature may nonetheless intend that a felony murder statute not require proof of a mental element vis vis the killing. However, under the present statutory scheme, if assault can serve as the predicate felony for the second degree felony murder rule, then a negligent third degree assault resulting in death can be second degree murder, although RCW 9A.32.070 provides that a person who with criminal negligence causes the death of another is guilty only of second degree manslaughter. That makes little sense. We are reluctant to conclude that the Legislature intended that result.*fn4

[49] In conjunction with our conclusion that the "in furtherance of" language in RCW 9A.32.050(1)(b) makes no sense if applied where assault is the predicate felony, the undue harshness of using assault as the predicate felony for second degree felony murder persuades us that the Legislature did not intend assault to serve as the predicate felony for second degree felony murder. Accordingly, we construe the 1976 version of the second degree felony murder statute so as to avoid strained and absurd results, and conclude that assault is not a predicate felony for purposes of RCW 9A.32.050(1)(b).

[50] This holding is consistent with the State's concession that manslaughter cannot serve as the predicate felony for second degree felony murder. Suppl. Br. of Resp't at 6 n.1 ("{i}t is axiomatic that manslaughter cannot be the predicate for felony murder{,}") (citing Wayne R. LaFave & Auston W. Scott Jr., Substantive Criminal law, sec. 7.5(g)(1) (2002)). What the State fails to note is that the same treatise cited by the State treats manslaughter and aggravated battery, i.e., felony assaults such as assault with a deadly weapon or that causes great bodily harm, together when discussing whether either should serve as predicate felonies for the felony murder rule.

[51] Andress has met his burden under In re Personal Restraint of Cook, since he was improperly sentenced on a conviction of second degree felony murder. Accordingly, we grant his personal restraint petition on the limited issue of whether assault can serve as the predicate felony for second degree felony murder. We vacate his sentence and remand for further proceedings in accord with this decision.*fn5

[52] IRELAND, J. (dissenting)

[53] The court today reexamines the argument that assault cannot be the predicate felony for second-degree felony murder, an argument which we have, for sound reasons, explicitly rejected. This court has consistently declined to apply the merger doctrine to exclude a felonious assault resulting in death as the basis for a second degree felony murder charge. The court should maintain this position in order to give effect to the intent and purpose of the Legislature in creating the second degree felony murder statute. Limstrom v. Ladenburg, 136 Wn.2d 595, 607, 963 P.2d 869 (1998).

[54] Under Washington's felony murder provisions, the Legislature's intent is clear: punish, under the applicable murder statutes, those who commit a homicide in the course or furtherance of a felony. State v. Leech, 114 Wn.2d 700, 708, 790 P.2d 160 (1990); (quoting State v. Wanrow, 91 Wn.2d 301, 308, 588 P.2d 1320 (1978)). The second degree felony murder statute states that a person is guilty when he or she "commits or attempts to commit any felony other than those enumerated in {the first degree felony murder statute}." RCW 9A.32.050(1)(b) (emphasis added). The Legislature has not excluded "assault" from the express statutory language. This court cannot assume that the felony murder rule was not meant to apply in instances where the underlying felony is assault. Applying the merger doctrine to RCW 9A.32.050(1)(b) overrides the legislative intent clearly expressed in the statute and results in "an invasion of legislative power to define crimes." Wanrow, 91 Wn.2d at 309.

[55] This court first declined to apply the merger doctrine to the second degree felony murder statute over 35 years ago in State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966). Until now, we have repeatedly rejected invitations to adopt the merger doctrine in this context. See majority at 5-7. The majority contends that the issue bears reassessment because the statute, as examined under Harris and subsequent cases, was revised in 1975 to include the language "in the course of and in furtherance of." RCW 9A.32.050(1)(b); majority at 7-8. Although the majority points out that the revised language has not yet been interpreted in this context, we determined its meaning in State v. Leech. In Leech, the defendant started a fire which resulted in the death of a fire fighter. He was charged with first degree felony murder. The defendant argued that as the death occurred after he had completed the crime, the death could not be "in furtherance" of the arson. The court rejected this contention, stating that such an interpretation would mean that an arsonist whose fire resulted in a death would almost never be charged with felony murder. 114 Wn.2d at 709. Instead, the court construed the language to mean close proximity in time and distance between the predicate felony and the non-participant's death. Id. The language need not be reinterpreted here.

[56] The majority claims to follow Leech, but in fact construes Leech to support the contention that "an assault on the person killed is not encompassed within the newer version of the second degree felony murder statute." Majority at 9. The majority distinguishes assault as a predicate crime from arson on the basis that arson is an independent act:

[57] It is nonsensical to speak of a criminal act - an assault - that results in death as being part of the res gestae of that same criminal act since the conduct constituting the assault and the homicide are the same.

[58] Consequently, in the case of assault there will never be a res gestae issue because the assault will always be directly linked to the homicide.

[59] Therefore, if the assault were encompassed within the unenumerated felonies in RCW 9A.32.050(1)(b), the "in furtherance of" language would be meaningless as to that predicate felony. In short, unlike the cases where arson is the predicate felony, the assault is not independent of the homicide. Majority at 9.

[60] However, this distinction is misleading. The arson in Leech was not independent of the homicide. Leech committed one crime which resulted in a death Leech did not intend. The same is true for Andress. Although a death resulting from an assault might usually be in proximity in time and place to the assault as the majority notes, the same is true of a death resulting from arson. It is precisely this proximity that supports a charge of felony murder.

[61] One concern shared by proponents of merger is that in order to punish and deter felonies that cause death, the felonious act must be separable from the act that causes death. Assault and felony murder, however, are separable because they are independent acts. Not all assaults result in death, and not all felony murders are caused by assault. The two are distinct crimes. See State v. Tamalini, 134 Wn.2d 725, 732, 953 P.2d 450 (1998) (the manslaughter and felony murder statutes were enacted to proscribe different types of conduct and describe separate and distinct crimes). This position on merger, abandoned today by the majority, has been maintained not because courts are mechanically bound by precedent, but because the law is clear and unambiguous.

[62] The majority also objects to giving the State the choice to charge second degree felony murder with assault as the predicate crime, thereby escaping the need to prove intent to kill as required for a second degree intentional murder charge. While there may be seemingly unfair consequences when a crime not requiring a specific intent, such as third degree assault, is the predicate crime, that issue is not before the court.

[63] Such a case is best addressed in the context of its own facts and our lesser included jurisprudence, rather than to anticipatorily abrogate legislative intent for the sake of a hypothetical. The instant case certainly does not fit the hypothetical. Here, Andress elevated the seriousness of his alleged drunken brawl to a felony assault when he formed the specific intent to and did brandish a nine-inch knife to inflict harm on Foster. Under Washington law, using a deadly weapon to cause and inflict serious injury on another is second degree assault. When a felony assault is furthered through such design and precision that it results in the death of a human being, that death is punishable as felony murder.

[64] The court should maintain its position that assault may be the predicate crime for second degree felony murder. To do otherwise is to invade the province of the Legislature and abandon the well-reasoned, established jurisprudence of this court.

Opinion Footnotes

[65] *fn1 The court has also rejected arguments that the assault-felony murder merger doctrine must be adopted in order to avoid constitutional infirmities in the felony murder statutes. State v. Crane, 116 Wn.2d 315, 333, 804 P.2d 10 (1991); State v. Leech, 114 Wn.2d 700, 712, 790 P.2d 160 (1990); State v. Wanrow, 91 Wn.2d 301, 309-13, 588 P.2d 1320 (1978).

[66] *fn2 The State also maintains that the Legislature has acquiesced in decisions of this court rejecting the assault-felony murder merger rule. This argument is of little persuasiveness, given that we have never directly addressed the language of the 1976 second degree felony murder statute in this context.

[67] *fn3 The court in State v. Lyon, 96 Wn. App. 447, 450, 979 P.2d 926 (1999) found a lesser included instruction on assault was appropriate where there was evidence from which the jury could conclude that the death resulted from a later, unrelated assault by another person.

[68] *fn4 Andress also contends that the harshness of using assault as a predicate felony for second degree felony murder is exacerbated by decisions of the Court of Appeals that Andress characterizes as holding that a victim of assault resulting in death who was involved in a mutual fight is not a "participant" for purposes of the second degree assault statute. E.g., State v. Goodrich, 72 Wn. App. 71, 863 P.2d 599 (1993); State v. Langford, 67 Wn. App. 572, 837 P.2d 1037 (1992); State v. Brigham, 52 Wn. App. 208, 758 P.2d 559 (1988).

[69] *fn5 The State has moved for reconsideration or for clarification of this decision. We deny the motion for reconsideration. As to clarification, our original decision concluded by stating, "We vacate his sentence and remand for resentencing in accord with this decision." We have amended that statement as reflected in the text and make the following observation. The State acknowledges that joinder rules generally prohibit pursuit of theories in a second trial that were not pursued in a first trial. The State urges, however, that in some cases where a second degree felony murder conviction is overturned because assault cannot serve as a predicate felony, a motion to dismiss a charge for a related offense could be denied under CrR 4.3.1(b)(3) on the basis that the ends of justice would be defeated if the motion were granted. The State also urges that in some cases where the second degree felony murder conviction cannot stand because assault was the predicate felony, entry of judgment and sentence on lesser felonies should be permitted where a conclusion of guilt on the lesser charge was necessary to the jury's verdict. We did not intend that the State be more restricted on remand than our rules, statutes, and constitutional principles demand. Accordingly, we clarify our instructions for remand, and direct that the State is not foreclosed from any further, lawful proceedings consistent with our decision in this case. Finally, in connection with the State's motion for reconsideration, we grant Andress's motion to strike the State's appendices consisting of prosecutors' declarations purporting to summarize other cases that will be affected by our decision. This "factual" material has no basis in the record, was not submitted in connection with the Court of Appeals' decision or our decision in this case, and has never been made part of this case. Further, we doubt the State's assertion that all of the 299 cases included in its appendices will be affected by our decision in this case. There are too many variables that may influence how this opinion affects other cases to predict the outcome of cases not now before the court. Aside from these considerations, and most importantly, the declarations are not relevant because the legal issue here, whether assault can serve as the predicate felony for second degree felony murder under RCW 9A.32.050(1)(b) does not depend upon how many other cases might be affected. The judiciary must decide cases on legal principles, and each case must be decided on its own merits.