Appeal from Superior Court of Yakima County. Docket No: 94-1-01129-0. Date filed: 12/08/94. Judge signing: Hon. F. J. Gavin.
Petition for Review Denied October 7, 1997,
Authored by Frank L. Kurtz. Concurring: Ray E. Munson, John A. Schultheis.
The opinion of the court was delivered by: Kurtz
KURTZ, J. Stuart Morgan appeals his conviction of first degree manslaughter contending: (1) the court erred in denying his motion to dismiss the manslaughter charge, (2) the evidence was not sufficient to convict him of manslaughter, and (3) the court erred in imposing an exceptional sentence. Pro se Mr. Morgan also contends: (1) the prosecutor concealed material evidence, (2) the court erred in not dismissing the manslaughter charge because it was a general statute rather than a specific statute, and (3) his counsel's assistance was ineffective. We affirm Mr. Morgan's first degree manslaughter conviction and exceptional sentence.
On April 1, 1994, at 8:31 p.m., Stuart Morgan called 911 and reported "my wife passed out on the floor and she won't get up." The 911 operator told Mr. Morgan how to start CPR. Paramedics and police officers arrived several minutes later and found Beth Morgan unconscious on the floor. Police Sergeant Mel Light noticed Mr. Morgan's hair was dripping wet and when asked why his hair was wet, Mr. Morgan answered he was sweating from doing CPR. Mr. Morgan denied drugs were used, explaining his wife just fell over. Mr. Morgan appeared unusually calm, although he stated he had done CPR for 20 minutes before calling 911. Sergeant Light investigated further and observed the bathtub and shower walls were wet.
The paramedics found Ms. Morgan on the floor. Her lips were bluish, her skin ashy, her eyes glazed, and her pupils fixed and dilated, all indicating she had been without oxygen for more than five minutes. She had no heartbeat and was not breathing. Eventually, they got Ms. Morgan's heart beating again. She was taken by ambulance to the hospital. At the hospital, it was determined Ms. Morgan had suffered cardiac arrest due to an overdose of cocaine. Mr. Morgan reluctantly agreed to withdraw his wife's life support on the condition he would be the only person in the room with her when she died. On April 4, Ms. Morgan was removed from life support and died.
The Yakima County Prosecuting Attorney's Office filed an information charging Mr. Morgan with first degree manslaughter on July 19. The information was amended October 3, to add the alternative charge of controlled substance homicide. Mr. Morgan's motion to dismiss the manslaughter charge was denied.
At the trial, Dr. Harold McCartney testified he performed an autopsy on Ms. Morgan on April 5. He found bruising in the left forearm consistent by date and coloring with punctures associated with the birth of her child a month earlier. He also found three puncture marks on the right forearm.
He found nothing indicating the victim was a chronic drug user. In fact, Ms. Morgan had given birth one month earlier and there was no medical evidence of cocaine use at that time.
Dr. William Brady testified he performed a second autopsy on April 8. He observed bruises on Ms. Morgan's upper right arm, which were not observable at the first autopsy because the blood was drained, that he believed were caused by finger marks and recent needle marks. He reviewed the laboratory analysis and stated Ms. Morgan ingested cocaine in an "easily fatal amount that would have produced death very rapidly," and a small amount of alcohol. Dr. Brady opined it was physically impossible for Ms. Morgan to have grabbed her right arm, found a vein and injected herself.
Chase McCubbins testified he knew Mr. Morgan from drug treatment during the winter of 1993. While in jail together, Mr. McCubbins said Mr. Morgan told him "he shot her up" with a "good hit." Mr. McCubbins also testified that after Ms. Morgan began having her second seizure, Mr. Morgan told him he just went and took a shower to try to relax. When he came back and "[[saw__ that she was dead," Mr. Morgan hid the drugs and then called 911.
The trial produced mixed evidence concerning Ms. Morgan's use of drugs. A chemical analysis of her hair, showed the presence of cocaine consistent with chronic or repetitive cocaine use, but could not determine the time frame for when the cocaine was ingested.
Family members testified Ms. Morgan was right handed and afraid of needles. They also testified that Mr. Morgan refused the family's request to see Ms. Morgan before she was taken off of life support, refused to permit Ms. Morgan's children to see her before she was taken off of life support, denied their request for a funeral and refused to authorize publication of an obituary notifying Ms. Morgan's hearing impaired friends of her death.
Mr. Morgan elected to testify. He said Ms. Morgan began injecting cocaine the day after she came home from the hospital after childbirth. He claimed she had track marks on her hand and the back of her ankle. He stated that on April 1, Ms. Morgan had cocaine delivered to their home by a man named PeeWee. Mr. Morgan said Ms. Morgan shot herself up six or seven times that evening. Although he had no CPR training, he claimed he was giving artificial respiration when the paramedics arrived. He admitted lying to the paramedics about not seeing Ms. Morgan use cocaine that night because he was scared of getting busted for cocaine again. Mr. Morgan also admitted he did not call 911 until after Ms. Morgan's second seizure because he was trying to stop her from biting her tongue during the first seizure. He denied taking a shower before police arrived. Mr. Morgan admitted he left the hospital while Ms. Morgan's condition was uncertain to return home and dispose of the needles.
The jury found Mr. Morgan guilty of first degree manslaughter and left the verdict form blank as to controlled substances homicide. The State sought an exceptional sentence. A hearing was held December 7 and 8, 1994. Mr. Morgan's standard range was 36 to 48 months. He was sentenced to 84 months based on an egregious lack of remorse.
1. Did the court err in denying Mr. Morgan's motion to dismiss the manslaughter charge?
Mr. Morgan contends that because RCW 9A.32.010 lists the types of homicide in the disjunctive, and because the category of felony murder captures all deaths occurring as the result of one person performing a felony upon another, the crime of manslaughter cannot be based on the commission of a felony. State v. Sill, 47 Wash. 2d 647, 289 P.2d 720 (1955); State v. Dennison, 115 Wash. 2d 609, 801 P.2d 193 (1990); State v. Davis, 121 Wash. 2d 1, 846 P.2d 527 (1993). The crime of controlled substances homicide requires delivery of a controlled substance (a felony) and a death caused by the felony. RCW 69.50.415. Every time a person commits the crime of controlled substances homicide, he necessarily commits the crime of felony murder. Therefore, Mr. Morgan maintains the statutes are concurrent and a person who distributes cocaine and causes death must be charged with the more specific statute, with controlled substances homicide. However, the jury did not find Mr. Morgan guilty of the controlled substances homicide.
Rather, they found him guilty of manslaughter. Consequently, Mr. Morgan argues we should reverse this case.
A person is guilty of manslaughter in the first degree when he recklessly causes the death of another person. RCW 9A.32.060. Mr. Morgan argues that the charge of manslaughter cannot be based on a felony because the crime would thus be felony murder. He cites Sill as holding that the crime of manslaughter cannot be based on the commission of a felony.
However, he misinterprets Sill. The court in Sill only stated that the "killing of a person" must be unlawful, but not a felonious act for a charge of manslaughter. It did not say the act which amounted to the "recklessness" in a manslaughter charge could not be felonious.
The underlying felony on which felony murder is based only functions as a substitute for the mental state necessary to prove the crime. State v. Hartz, 65 Wash. App. 351, 354, 828 P.2d 618 (1992). In the same way, the element of recklessness provides the mental element for the crime of manslaughter. State v. Bowerman, 115 Wash. 2d 794, 806, 802 P.2d 116 (1990).
Here, Mr. Morgan was charged with manslaughter for recklessly failing to provide prompt medical treatment for his wife.
The prosecution needed to show that Mr. Morgan's behavior surrounding his wife's death was reckless. Recklessness is defined by RCW 9A.08.010(1)(c): "A person is reckless or acts recklessly when he knows of and disregards a substantial risk that a wrongful act may occur and his disregard of such substantial risk is a gross deviation from conduct that a reasonable man would exercise in the same situation."
In State v. Norman, 61 Wash. App. 16, 26, 808 P.2d 1159, review denied, 117 Wash. 2d 1018, 818 P.2d 1099 (1991), the jury found that Mr. Norman's failure to summon medical assistance for his son amounted to recklessness and he was convicted of first degree manslaughter. Washington has long recognized the parental duty to provide medical care for minor children. In State v. Williams, 4 Wash. App. 908, 915, 484 P.2d 1167 (1971), the court described this duty as a "natural duty existing independently of statutes" and went on to state: "We therefore hold that the violation of the parental duty to furnish medical care to a ...