Oral Argument: March 18, 2014.
PUBLISHED IN PART
Appeal from Yakima Superior Court. Docket No: 11-1-00556-4. Judge signing: Honorable Ruth E Reukauf. Judgment or order under review. Date filed: 08/24/2012.
Susan M. Gasch (of Gasch Law Office ), for appellant.
James P. Hagarty, Prosecuting Attorney, and Tamara A. Hanlon, Deputy, for respondent.
Authored by Laurel H. Siddoway. Concurring: George B. Fearing, Stephen M. Brown.
[183 Wn.App. 533] ¶ 1 -- Matthew David Leonard was convicted following a jury trial of second degree felony murder; [183 Wn.App. 534] the predicate felony alleged by the State was his second degree assault of the victim, which resulted in death. Mr. Leonard argues on several grounds that the felony murder provision of our second degree murder statute, RCW 9A.32.050(1)(b), should not be construed to apply when the predicate felony committed by the defendant is an assault that results in death. He also challenges the to-convict instruction given by the court and its findings that he has the present or future ability to pay legal financial obligations (LFOs) imposed by the court.
¶ 2 Following amendment in 2003, the second degree murder statute is not ambiguous.
All of Mr. Leonard's remaining arguments are foreclosed by controlling precedent--some old, and some new. For that reason, and because Mr. Leonard's pro se statement of additional grounds identifies no error or abuse of discretion by the trial court, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶ 3 Matthew David Leonard was found guilty of second degree felony murder while armed with a deadly weapon. The victim, Jason Linder, was killed in a fight between patrons of a tavern in Yakima that began inside the tavern and continued outside, after patrons were told by tavern management to leave. Mr. Linder was stabbed one time in the chest by Mr. Leonard and died from loss of blood. The defense's theory at trial was that Mr. Leonard had acted in self-defense and in the justifiable defense of his sister.
¶ 4 At trial, the jury was instructed on both alternatives of the charged crime of second degree murder (intentional murder and felony murder) and on first degree manslaughter as a lesser included offense of second degree intentional murder. Self-defense and justifiable homicide instructions were given as to each crime. The to-convict instructions all included language that " [i]f you find from the evidence that each of these elements has been proved beyond a reasonable [183 Wn.App. 535] doubt, then it will be your duty to return a verdict of guilty." Clerk's Papers at 130.
¶ 5 The jury found Mr. Leonard not guilty of second degree intentional murder, but guilty of second degree felony murder. It returned a special verdict that he was armed with a deadly weapon at the time of commission of the crime. At sentencing, the trial court found that Mr. Leonard has the current or future ability to pay the LFOs imposed by the court, including costs of incarceration and medical care. Mr. Leonard appeals.
¶ 6 Mr. Leonard implicitly assigns error to the trial court's instruction on second degree felony murder and the sufficiency of the evidence to support the jury's verdict of guilt on that charge, arguing that (1) the second degree murder statute should be interpreted to include assault as a predicate crime to felony murder only when the assault was not the cause of death, (2) the second degree murder statute violates a defendant's equal protection right, and (3) we should reconsider Washington courts' prior unwillingness to adopt a " merger" rule for felony murder that treats an assault as merging into the resulting homicide if the assault victim dies.
¶ 7 Mr. Leonard also assigns error to the trial court's to-convict instructions as misleading the jury as to its power to acquit, and to the court's findings that Mr. Leonard has the current or future ability to pay LFOs. We address the issues in turn.
History of related challenges to Washington's second degree murder statute
¶ 8 Mr. Leonard challenges Washington's second degree murder statute, RCW 9A.32.050, on three grounds, all of which are the same as or similar to objections that defendants have raised for 50 years to the scope of second degree [183 Wn.App. 536] felony murder under Washington law. We begin, then, with a history of those objections and the judicial response, starting with the Washington Supreme Court's 1966 decision in State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966).
¶ 9 Former RCW 9.48.040(2) (1909) was challenged in Harris, and provided:
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 [robbery, rape, burglary, larceny, or arson in the first degree].
The defendant in Harris was convicted of second degree felony murder under subsection (2) of the statute. The predicate felony
(" precedent" felony was the term in use at the time) was Harris's second degree assault of the victim, whom he had shot and who died of her wound. Harris urged the court to adopt the New York " merger rule," under which the predicate felony in a felony murder must constitute a crime independent of the homicide. Under the merger rule, a felony assault--not being independent--merges into the resulting homicide. State v. Thompson, 88 Wn.2d 13, 17, 558 P.2d 202, appeal dismissed, 434 U.S. 898, 98 S.Ct. 290, 54 L.Ed.2d 185 (1977).
¶ 10 The Harris court refused to adopt the New York merger rule. It reasoned that New York adopted the rule in response to that state's criminalization of all felony murder as first degree murder. Since " practically all" homicide deaths are the direct or indirect result of an assault by the perpetrator, " under New York law, every homicide which was not justifiable or excusable would amount to first-degree murder [and] all the second-degree murder and manslaughter statutes would have been emasculated." Harris, 69 Wn.2d at 933. Washington's criminal laws were less [183 Wn.App. 537] harsh; the legislature had provided that only the felonies of robbery, rape, burglary, larceny, and arson in the first degree would support a charge of first degree felony murder. Other felonies, if resulting in death, could only be the basis of a ...